The court subsequently sentenced Mr. Bonsu to a term of imprisonment of 168 months. Mr. Bonsu and Ms. Boateng appealed their convictions and sentences to the Fourth Circuit, which affirmed the district court on all grounds. United States v. Bonsu, 291 F. App'x 505 (4th Cir. 2008). Mr. Bonsu has now moved for relief under § 2255, alleging he was denied effective assistance of counsel.
As we have previously held, the obstruction enhancement is warranted when a defendant lies in a suppression hearing regarding whether police administered a Miranda warning. United States v. Bonsu, 291 F. App'x 505, 515 (4th Cir. 2008) (per curiam). Here, the district court concluded that Blue "willfully lied about a material matter" in his affidavit when he swore that the ATF agents placed him in custody without reading him his Miranda rights and failed to obtain his permission to search his car.
While, "it remains for the [district] court, in the exercise of its judgment and discretion, to ensure that unconstitutional evidence otherwise admissible under applicable evidentiary rules is excluded from trial," United States v. Fulks, 454 F.3d 410, 438 (4th Cir. 2006) (alteration in original) (quotation omitted), "[t]he jury is the finder of fact in a trial and properly judges all credibility issues. Permitting them to weigh testimony of questionable veracity does not violate a defendant's due process rights," United States v. Bonsu, 291 F. App'x 505, 510 n.2 (4th Cir. 2008). Defendant's remedy for inconsistent testimony by government witnesses, even testimony by a witness the government has contested the truthfulness of, is cross examination and impeachment of that witness, not outright exclusion of that witness's testimony.
The Fourth Circuit has indicated that dismissal of an indictment due to prosecutorial misconduct that has prejudiced a defendant is seldom an appropriate remedy. United States v. Bonsu, 291 F. App'x 505, 510-11 (4th Cir. 2008) (citing United States v. Derrick, 163 F.3d 799, 807 (4th Cir. 1998)). The court may not dismiss an indictment "for prosecutorial misconduct absent a showing that the misconduct prejudiced the defendant," Derrick, 163 F.3d at 807, and "even when a court finds such prejudice, dismissal of the indictment does not necessarily follow as a remedy," United States v. Dyess, 478 F.3d 224, 236 (4th Cir. 2007).
However, "[c]ontradictory testimony from witnesses, inconsistencies within a witness's testimony, and conflicts between reports, written statements, and the trial testimony of prosecution witnesses do not, standing alone, establish perjury." Fairfax v. Scott, 39 F.3d 319, at *1 (5th Cir. 1994) (citations omitted); see also Bank of Nova Scotia v. United States, 487 U.S. 250, 261 (1988) ("Although the Government may have had doubts about the accuracy of certain aspects of [evidence], this is quite different from having knowledge of falsity."); United States v. Bonsu, 291 F. App'x 505, 511 (4th Cir. 2008) (concluding the appellants could not establish that the challenged testimony was perjured where appellants "knew of the [witnesses'] inconsistent statements and chose to use them extensively at trial for impeachment purposes," stating, "As the trier of fact, the jury weighed the competing evidence and found the government's witnesses and evidence to be more credible."); United States v. Griley, 814 F.2d 967, 971 (4th Cir. 1987) ("Mere inconsistencies in testimony by government witnesses do not establish the government's knowing use of false testimony." (citation omitted));
Moreover, as the Magistrate Judge establishes with extensive citations to controlling and persuasive legal authority, the introduction of testimony containing inconsistencies does not equal the subornation of perjury. (ECF No. 32 at 25.); see, e.g., United States v. Bonsu, 291 F. App'x 505, 511 (4th Cir. 2008) (concluding appellants could not establish that the challenged testimony was perjured where appellants "knew of the [witnesses'] inconsistent statements and chose to use them extensively at trial for impeachment purposes," and stating, "[a]s the trier of fact, the jury weighed the competing evidence and found the government's witnesses and evidence to be more credible"); United States v. Griley, 814 F.2d 967, 971 (4th Cir. 1987) ("Mere inconsistencies in testimony by government witnesses do not establish the government's knowing use of false testimony (citation omitted)). In response to the point that his Ground Four claim is procedurally barred, Petitioner objects by arguing that a reviewing court may grant relief for plain error even if the error was not raised and preserved at trial or sentencing, pursuant to Federal Rule of Criminal Procedure 52(b) and the Supreme Court's holding in United States v. Olano, 507 U.S. 725, 731 (1993).
Such conflicting evidence raises the question of McConnell's credibility, a determination that is uniquely within the province of the jury as finder of fact. See United States v. Bonsu, 291 F. App'x 505, 510 (4th Cir. 2008) (unpublished) ("The jury is the finder of fact in a trial and properly judges all credibility issues.") It certainly is not clear beyond a reasonable doubt that the court's evidentiary rulings and jury instructions — now erroneous in light of the Supreme Court decision — did not influence the jury's guilty verdict. Neder, 527 U.S. at 15.
The court subsequently sentenced Ms. Boateng to a term of imprisonment of 135 months. Ms. Boateng and Mr. Bonsu appealed their convictions and sentences to the Fourth Circuit, which affirmed the district court on all grounds. United States v. Bonsu, 291 F. App'x 505 (4th Cir. 2008). Ms. Boateng has now moved for relief under § 2255, alleging she was denied effective assistance of counsel.