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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 01-30538
__________________________

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus

ALFONZO MASON and LINDA FAYE HAWKINS SMITH,
Defendants-Appellants.
___________________________________________________
Appeals from the United States District Court
For the Western District of Louisiana
___________________________________________________
June 10, 2002
Before DUHÉ, DeMOSS, and CLEMENT, Circuit Judges.
CLEMENT, Circuit Judge:
Alfonzo Mason and Linda Faye Hawkins Smith appeal their
convictions for conspiring to distribute crack cocaine. For the
following reasons, we vacate the appellants' convictions and
sentences and remand for a new trial.
I.
In the spring of 1999, the Madison Parish Sheriff's Office
received a tip from a confidential informant that appellants
Alfonzo Mason ("Mason") and Linda Faye Hawkins Smith ("Smith") were
selling crack cocaine in Tallulah, Louisiana. Based on this
information the sheriff began an investigation that allegedly

involved several undercover purchases and drug seizures from Mason
and Smith. The sheriff's office reported its findings to the
United States Attorney for the Western District of Louisiana, and
in September 2000, Mason and Smith were charged by a federal
indictment with conspiring to distribute crack cocaine,
distributing crack cocaine, and possessing crack cocaine with the
intent to distribute. After a jury trial both Mason and Smith were
convicted on the conspiracy count and several individual
distribution and possession counts. Mason was sentenced to 30
years in prison, and Smith received more than 15 years
incarceration.
The government's primary witness at trial was James Dawson
("Dawson"), who emerged as a suspect during the sheriff's
investigation when he was arrested with 3.9 grams of crack cocaine
after leaving Mason's motel room. Shortly after his arrest Dawson
began to cooperate with the government. He informed the government
that Mason and Smith had been dealing crack from Smith's home; that
Mason had transported a large amount of crack from Las Vegas,
Nevada to Tallulah; and that Melvin Cooper, now deceased, had
helped Mason set up his distribution operation in Tallulah.
Finally, Dawson admitted that he had purchased crack from Mason on
the night of his arrest. After conveying this information Dawson
entered into a plea agreement with the government and agreed to
testify against Mason and Smith at trial. Mason and Smith now ask
us to vacate their convictions and sentences because Dawson falsely
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testified that he did not enter into a plea agreement with the
government and the government failed to correct Dawson's
misrepresentation.
II.
The Due Process Clause of the Fourteenth Amendment forbids the
government from knowingly using, or failing to correct, false
testimony. See Giglio v. United States, 405 U.S. 150, 153 (1972);
Napue v. Illinois, 360 U.S. 264, 271 (1959). To prove a due
process violation, the appellants must establish that (1) Dawson
testified falsely; (2) the government knew the testimony was false;
and (3) the testimony was material. See Giglio, 405 U.S. at 153-
54; Knox v. Johnson, 224 F.3d 470, 477 (5th Cir. 2000).
Under direct examination by the government, Dawson stated that
he had not entered into a plea agreement:
Q.
And as a result of being arrested did you, have you
entered into an agreement with the government?
A.
No, sir.
This testimony was false and the government knew it. Dawson did in
fact enter a plea bargain, and the same assistant United States
Attorney who prosecuted Mason and Smith signed the agreement.
Since Mason and Smith have easily established the first two
elements of their due process claim, we must turn to the question
of whether Dawson's false testimony was material.
The government contends that Dawson's false statement was
immaterial because, viewing his testimony in its entirety, the
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essence of his plea agreement was revealed to the jury. On direct
examination, Dawson testified:
Q.
And as a result of being arrested did you, have you
entered into an agreement with the government?
A.
No, sir.
Q.
You have not entered a plea of guilty?
A.
I have entered a plea of guilty.
Q.
And what do you expect from, and you agreed to come
here and testify, is that correct?
A.
Yes, sir.
Q.
And what did you agree to testify to?
A.
Just the truth.
Q.
And what do you expect for this?
A.
Nothing but just telling the truth. I might get
leniency or something.
Q.
And what did, did anybody tell you anything about
leniency that you might get?
A.
Nobody made me no specific promises. Everybody I
asked, they couldn't promise me nothing.
The subject resurfaced on redirect:
Q.
Mr. Dawson, you were told at all cost to tell the
truth here today, were you not?
A.
Yes, sir.
Q.
And you were also told that no one could make any
promises to you about what your sentence would be?
A.
No promises.
Q.
Because only the judge could determine that?
A.
Yes, sir.
Q.
And you were told that any cooperation you give
would be made known to the district attorney or the
prosecutor, weren't you?
A.
Yes, sir.
In light of this testimony, the government submits that the
jury knew that Dawson agreed to testify to "[j]ust the truth," that
he knew he "might get leniency or something," and that "any
cooperation [he] g[a]ve would be made known to the district
attorney or the prosecutor." However, the appellants point out
that the signed plea agreement also grants Dawson use immunity for
4

his testimony; provides that the "United States will advise the
Court of any assistance provided by the Defendant"; and states that
the "United States may, but shall not be required to, make a motion
requesting the Court to depart from the sentencing range called for
by the guidelines in the event he provides `substantial
assistance.'" Contrary to the government's position, we do not find
that Dawson's statements at trial conveyed all this information to
the jury.
Even if Dawson did not fully describe the contents of his plea
agreement, the government argues that because the agreement was
available to the defense before trial, the appellants "cannot now
claim that the government should have revealed the entire plea
agreement to the jury but rather it was incumbent upon defense
counsel to cross-examine the witness about his plea agreement."
However, although the government claims that all of its files were
available to defense counsel before trial, and there is no
explanation why defense counsel did not avail himself of the
opportunity to examine the files, there is no evidence that defense
counsel actually saw the plea agreement. Furthermore, defense
counsel's failure to avail himself of the policy making the plea
agreement available does not relieve the government of its
affirmative responsibility to correct false testimony.
Finally, the government asserts that the district court's
instructions to the jury cured any error caused by Dawson's
misleading statement. Specifically, the government points to the
5

caution in Fifth Circuit Pattern Instruction 1.08 that jurors
should ask themselves whether a witness had a personal interest in
the outcome of the case or a relationship with either the
government or the defense. However, since the jury did not know
that an executed plea agreement existed, we cannot say that it
fully appreciated the relationship between the government and
Dawson. Accordingly, the error caused by Dawson's false statement
was not remedied by the jury charge.
As a result of Dawson's material misrepresentation, the
defense may have been prevented from effectively cross-examining
the government's most important informant, and the jury was unable
to properly evaluate Dawson's testimony. By failing to correct the
misrepresentation, we find that the government violated Mason and
Smith's rights to due process under the Fourteenth Amendment.
III.
Because the government violated the appellants' due process
rights, we vacate Mason and Smith's convictions and sentences and
remand for a new trial.
VACATED AND REMANDED.
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