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Ninth Circuit:
Dissenter Bemoans Watering Down of Materiality Standard
Bumatay Says Majority’s Granting of Habeas Petition in Kidnapping Case Botches Analysis Governing Claim That Prosecutor Failed to Fully Correct False Testimony of Informant
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held Friday that habeas relief was erroneously denied in a kidnapping case due to the prosecutor violating due process protections by failing to correct the testimony of a jailhouse informant —who falsely said he had received no benefits from his cooperation—drawing a sharp dissent due to significant impeachment of the informant at trial and the defendant having admitted holding the victims hostage.
Petitioner Charles Clements was sentenced to two consecutive life sentences plus 18 years after a jury convicted him of two counts of kidnapping to commit robbery and three counts of second-degree robbery.
The jury deadlocked on a solicitation of murder charge based largely on the testimony of Donald Boeker, a jailhouse informant who testified that Clements asked him to murder the pregnant victim to prevent her testimony in the kidnapping case. Boeker reached out to police to offer his testimony against Clements after he faced a parole violation hearing and the detective in the case contacted the parole agent to request a more lenient sentence.
After Boeker testified that he came forward due to concern for the victim, he was impeached based on his criminal record and evidence that he received help from officers with his pending parole violation.
The petition for relief centered on a violation of a Napue claim—named for the 1959 U.S. Supreme Court decision of Napue v. Illinois—holding that the prosecution violates due process when it knowingly offers or fails to correct false or misleading testimony.
In his dissent, Circuit Judge Patrick J. Bumatay argued:
“[T]he majority waters down the materiality standard for Napue. Contrary to our precedent, the majority seemingly equates materiality with anything that ‘support[s]’ an element of the charged offenses. Indeed, the majority lowers the materiality bar so low that it grants this habeas petition on grounds that Clements conceded at trial. Besides that, the majority engages in rank speculation to elevate the importance of Boeker’s testimony. By botching the materiality standard, we create confusion within our circuit on the proper Napue standards, which does a disservice to both criminal defendants and governments in the Ninth Circuit.”
Majority Decision
Senior District Court Judge Matthew Kennelly of the Northern District of Illinois, sitting by designation, wrote the opinion reversing the denial of a habeas corpus petition by Senior District Court Judge Dean Pregerson of the Central District of California. Circuit Judge Kim McLane Wardlaw joined in the opinion.
Kennelly said:
“Clements contends that the Napue violation entitles him to relief on the aggravated kidnapping conviction because Boeker’s testimony was highly probative of Clements’s consciousness of guilt and identity on the aggravated kidnapping counts, it was relevant regarding the criminal implications of his alleged aggravated kidnapping, and it went directly to the essential element of whether he created a substantial increase in risk to the victims. We agree.”
The jurist acknowledged the impeachment evidence but said:
“The State’s argument that Boeker was impeached in other respects and that there was other evidence of Clements’s guilt does not adequately engage the inquiry Napue requires….And even if it may be the case, as the State argues, that the jury did not convict Clements of aggravated kidnapping just because it heard Boeker’s testimony, that is not our inquiry. The standard for prejudice under Napue does not require a finding that the conviction was ‘just because,’ or even primarily because, of the false testimony.”
He continued:
“Further, the proposition that other evidence was sufficient to establish Boeker’s guilt on aggravated kidnapping does not carry the day under Napue….[M]ateriality ‘is not a sufficiency of the evidence test’ under which a court sets aside the tainted evidence and assesses the sufficiency of what is left…. Rather, for a Napue claim, the inquiry is focused on the potential impact of the false testimony. The false testimony is material if there is any reasonable likelihood that it could have affected the jury….For the reasons discussed, Clements has established such a reasonable likelihood here.”
Kennelly added:
“Although the jury deadlocked on the solicitation charge, at least six jurors found Boeker credible and believed his testimony—the only source of evidence supporting that charge—beyond a reasonable doubt. This strongly indicates that his testimony played a role in at least those jurors’ assessment of the aggravated kidnapping charges.”
Bumatay’s View
Bumatay said Clement’s Napue claim “easily fails on…materiality.” He agreed with the majority’s statement of the standard for materiality as being one which asks if the petitioner has shown a reasonable likelihood that the false evidence could have affected the judgment of the jury but disagreed with the majority’s application of the standard, saying:
“[S]etting aside whether Boeker’s somewhat subjective statements are false, there’s no reasonable likelihood that Boeker’s testimony could have affected the jury’s verdict for two reasons. First, given the overwhelming evidence presented at trial, Boeker’s misstatements could not have impacted the jury’s aggravated kidnapping verdicts. Second, most of the information contradicting Boeker’s testimony already came out at trial. So pointing out Boeker’s lies largely would have been cumulative.”
He pointed out that the only issue raised by the defense relates to the asportation element of the kidnapping charge but said the testimony of the two victims was “devastating, overwhelming, and proof beyond a reasonable doubt of Clements’s guilt on the aggravated kidnapping charges, especially the asportation element.” Bumatay reasoned:
“[E]ven though everyone—the State, Clements, the jury—knew Clements committed the kidnapping, the majority pretends that identity was at play so it may deem Boeker’s testimony material. But when Clements’s own counsel says that Clements did these things, how could Boeker’s testimony have affected the jury’s decisionmaking?...Rather than acknowledging Clements’s concessions, the majority simply lowers the materiality standard so it’s nearly indistinguishable from the standard of relevance.”
The jurist declared:
“No doubt this case is thorny because an unreliable informant testified at trial. But Boeker’s testimony was limited and not material to the verdict here. However much we squint, Boeker’s checkered testimony cannot overcome the overwhelming evidence of Clements’s guilt at trial. And we cannot punish one county’s use of a questionable informant program through this habeas petition. I thus would have affirmed the district court across the board.”
Harmless Error Standard
Bumatay also took issue with the fact that Ninth Circuit precedent exempts Napue claims from a harmless error standard. He wrote:
“We are one of only two circuits that refuse to analyze Napue violations under…harmless-error standard on habeas review….All other circuit courts to reach this issue go the other way and hold that…harmless-error doctrine still applies for Napue-based claims.”
Saying that “there’s good reason to think that we are wrong on this,” he said:
“Our court has definitively said Napue violations do not require ‘per se rule of reversal’ and are ‘not structural.’….Indeed, the admission of perjured or misleading testimony does not infect the entire trial process. As a trial error, Napue violations should be subject to harmless-error analysis on habeas review.”
Bumatay pointed out that “I follow our precedent” but called for a re-examination of the rule by the appropriate body as “it’s now clear we are on the wrong side of this lopsided split.”
Kidnapping for Robbery
On Jan. 27, 2009, Clements pulled a gun on Alison Lopez inside her home and gave her the choice of either helping him rob the Bank of the West for which she worked or being killed, along with her unborn child. While at the bank, Clements forced Lopez to lure Cindy Chin, Lopez’s friend and co-worker, into the car to wait with him while Lopez entered the bank and demanded employees fill a duffel bag with money.
After driving off with both women, he eventually released them.
Clements challenged his conviction after a jailhouse informant scandal became public in 2016, accusing Orange County sheriff’s deputies and prosecutors of using jailhouse informants in a way that ran afoul of the Constitution. In October 2022, the U.S. Department of Justice’s civil rights division published a 63-page report confirming constitutional violations.
The case is Clements v. Madden, 22-55333.
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