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United States Court of Appeals,

Fifth Circuit.

No. 94-20711.

Gary Gordon KOPYCINSKI, Petitioner-Appellant,

v.

Wayne SCOTT, Director, Texas Department of Criminal Justice,

Institutional Division, Respondent-Appellee.

Sept. 20, 1995.

Appeal from the United States District Court for the Southern

District of Texas.

Before WISDOM, DUHÉ and BARKSDALE, Circuit Judges.

DUHÉ, Circuit Judge:

Gary Gordon Kopycinski appeals the district court's denial of

his petition for writ of habeas corpus. Kopycinski contends that

the state suppressed impeachment evidence and failed to disclose

false testimony during his murder trial in violation of the Due

Process Clause, as construed by Brady v. Maryland, 373 U.S. 83, 87,

83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), and Napue v.

Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217

(1959). He asks us to reverse and grant the writ or,

alternatively, to remand for an evidentiary hearing. We affirm.

BACKGROUND

Kopycinski divorced his wife and became housemates with Tim

Rogers, the murder victim. On May 29, 1985, Kopycinski and Rogers

attended a baseball game with Robbin Homan and his wife. Homan

testified that Kopycinski, in the parking lot after the game, asked

him for flares so that Kopycinski and Rogers could set fire to
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Kopycinski's ex-wife's car. Later that night, a fire set

purposefully in the area of Kopycinski's ex-wife's garage destroyed

her townhouse.

On June 14, Kopycinski and Rogers were in a bar with Roger

Daniels, a friend of Rogers. Daniels testified that Rogers

appeared worried and scared and that Kopycinski appeared nervous

and angry. Kopycinski asked Daniels five or six times during the

evening what Rogers had told Daniels. Daniels then heard

Kopycinski threaten to kill Rogers if he did not keep his mouth

shut. Rogers disappeared two days later. Kopycinski telephoned

Rogers' mother on June 28 to tell her that her son was missing, and

she reported her son missing to the police on July 8.

The police interviewed Fred Balke, Kopycinski's first cousin.

Balke gave the police a written statement implicating Kopycinski in

Rogers' murder and took police to an isolated wooded area where

Rogers' skeletal remains lay. A medical examiner testified that,

in his expert opinion, the cause of death was either a gunshot

wound to the chest or a blow to the head. The police found one

live and one used .380 caliber bullet near the body, but no gun.

Kopycinski, who had been arrested for arson, was then also charged

with murder.

At trial, Sue Ellen Stapp, whose best friend was Kopycinski,

testified that she kept a .380 automatic between the mattresses on

her bed. Only Kopycinski, her boyfriend (now husband), and her

ex-roommate knew about Stapp's hiding place for the pistol. Before

Rogers disappeared, Stapp let Kopycinski into her house because he
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told her that he needed to retrieve his sunglasses. The next time

Stapp checked on the pistol, it was gone, and she has never

recovered it.

Bobby Atkins was kept in the same jail cell as Kopycinski.

Atkins testified that he contacted the police about a conversation

he had with Kopycinski. According to Atkins, Kopycinski said that

he killed Rogers because Rogers was trying to blackmail Kopycinski

and that he hid the gun where nobody would find it. On cross

examination, Atkins was impeached with an aggravated robbery

conviction, for which the State posted his appeal bond in exchange

for his testimony in this case. Atkins also admitted that he was

convicted of possession of a prohibited firearm after he was

released on bond.

The State's main witness, however, was Balke. Balke testified

that Kopycinski took him to the murder scene in July 1985 and

showed him the body. Kopycinski admitted to Balke shooting Rogers

to keep him quiet about the fire Kopycinski set to his ex-wife's

townhouse. Rogers had wanted money. Kopycinski disposed of the

gun and washed his hands in gasoline. On cross examination, Balke

was impeached with felony convictions for burglary and credit card

abuse. He denied any misdemeanor convictions for offenses

involving moral turpitude, such as theft or fraud. He also denied

having been offered anything by the police for his cooperation.

Before trial, the court required the State to disclose to the

defense any prior convictions of, and any compensation received by,

its witnesses. The State failed to disclose that Balke had
 

1Although Kopycinski argues to the contrary, Balke admitted

to his prior conviction for credit card abuse during cross

examination. See III Record at 173. 

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received a $1000 CrimeStoppers reward for giving information to the

police about the crime. Furthermore, the State failed to correct

Balke's allegedly false testimony when he testified that he had not

been offered any compensation for his cooperation. The State also

failed to disclose two prior convictions. Although Balke admitted

to convictions for burglary and credit card abuse,1 he also had a

prior felony conviction for theft. The State not only failed to

disclose that conviction but also allowed Balke to testify falsely

that he had no other convictions involving moral turpitude, which

includes theft. Finally, although Atkins admitted to his felony

convictions for aggravated robbery and possession of a prohibited

weapon, he also had a prior misdemeanor conviction for theft that

went undisclosed.

Kopycinski asserted these due process claims in a state habeas

petition filed in 1990. The Texas Court of Criminal Appeals denied

his petition without an evidentiary hearing. Kopycinski then filed

this habeas petition in federal court. On the recommendation of a

magistrate judge, the district court granted the State's motion for

summary judgment without holding an evidentiary hearing. The

district court denied a certificate of probable cause to appeal,

but we granted it.

DISCUSSION

We review a district court's grant of summary judgment de

novo. Weyant v. Acceptance Ins. Co., 917 F.2d 209, 212 (5th
 

2We require a federal evidentiary hearing on a

constitutional claim when the state court did not provide a

hearing; the petitioner's factual allegations, if proved, would

entitle him to relief; and the record reveals a genuine issue of

fact. Lincecum v. Collins, 958 F.2d 1271, 1278 (5th Cir.), cert.

denied, --- U.S. ----, 113 S.Ct. 417, 121 L.Ed.2d 340 (1992). In

this case, because we conclude that no material evidence was at

issue, we deny Kopycinski's request for an evidentiary hearing. 

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Cir.1990). We consider all the facts contained in the summary

judgment record and the inferences to be drawn therefrom in the

light most favorable to the non-moving party. Id.

The prosecution's suppression of evidence favorable to the

accused violates the Due Process Clause if the evidence is material

either to guilt or to punishment. Brady, 373 U.S. at 87, 83 S.Ct.

at 1196-97. Brady encompasses evidence that may be used to impeach

a witness's credibility. United States v. Bagley, 473 U.S. 667,

676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985). Likewise, the

prosecution's knowing failure to correct false testimony violates

the Due Process Clause if the false testimony reasonably could have

affected the judgment of the jury. Napue, 360 U.S. at 271, 79

S.Ct. at 1178.

In either case, the nondisclosed evidence must be material to

require a new trial. Giglio v. United States, 405 U.S. 150, 154,

92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). Therefore, we must

affirm the district court if we conclude that the nondisclosed

evidence is immaterial.2 Evidence is material if a reasonable

probability exists that, had the evidence been disclosed to the

defense, the proceeding's result would have been different.

Bagley, 473 U.S. at 682, 105 S.Ct. at 3383-84.
 

3Kopycinski also raises Atkins' undisclosed prior conviction

for misdemeanor theft. Atkins' value as a witness for the State,

however, was minimal; he was a prison inmate with two disclosed

felony convictions and a questionable motive for testifying. His

undisclosed conviction measured collectively with the other

undisclosed evidence does not meet the materiality benchmark. 

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The Supreme Court discussed the materiality standard recently

in Kyles v. Whitley, --- U.S. ----, 115 S.Ct. 1555, 131 L.Ed.2d 490

(1995). A "reasonable probability" of a different result is shown

when the nondisclosure puts the case in a different light so as to

undermine confidence in the jury verdict. Id. at ----, 115 S.Ct.

at 1566. The inquiry is not whether the outcome more likely than

not would have been different or whether the uninfected inculpatory

evidence is sufficient to convict. Id. We apply the materiality

inquiry to the suppressed evidence collectively, not item by item,

and if the evidence is material, we do not engage in further

harmless-error review. Id. at ----, 115 S.Ct. at 1566-67. Our

materiality inquiry, therefore, is whether the prosecutor's

disclosure of Balke's $1000 reward and the prior convictions and

the prosecutor's corrections of Balke's false testimony would have

placed the case in a different light so as to undermine confidence

in the jury verdict.

Kopycinski focuses his materiality argument on the importance

of Balke's testimony to the State's case and the lack of physical

evidence against him.3 Kopycinski suggests that Balke wanted the

reward money so that he could feed his addiction to heroin. When

the withheld evidence seriously undermines or impeaches a key

witness's testimony on an essential issue, we look to whether the
 

4In other words, we circumvent the question whether the

nondisclosed impeachment evidence in this case was cumulative and

thus immaterial. See Edmond v. Collins, 8 F.3d 290, 294 (5th

Cir.1993) (noting that nondisclosed impeachment evidence is

cumulative when the witness was impeached sufficiently at trial). 

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testimony was strongly corroborated by other evidence. United

States v. Weintraub, 871 F.2d 1257, 1262 (5th Cir.1989). The

parties acknowledge that Balke was the key witness in the State's

case, but they dispute the importance of the nondisclosed evidence.

Without deciding whether the nondisclosed evidence would have

seriously impeached Balke's testimony, we consider whether other

evidence exists to corroborate his testimony.4

The key evidence supporting Balke's testimony is his leading

the police to a remote wooded area where Rogers' skeletal remains

were located. This evidence, coupled with Balke's testimony,

limits the possibilities of what probably happened to two: either

Balke told the truth or he actually participated in the murder

himself. We have scoured this record, but we have not found any

suggestion, let alone a scintilla of evidence, that links Balke to

the murder. The only other possibility is that Balke told the

truth. Therefore, despite the prosecutor's nondisclosure of

impeachment evidence and failure to correct false testimony,

Balke's leading the police to the body essentially makes his

testimony unimpeachable.

Furthermore, the testimony of Stapp and Atkins combined with

the bullets recovered at the murder scene support Balke's testimony

about the actual shooting. Although the police did not find the
 

5Our decision in United States v. Auten, 632 F.2d 478 (5th

Cir.1980), is not to the contrary. We remanded that case for an

evidentiary hearing because we did not know the extent of the key

witness's criminal record nor the defendant's prejudice as a

result of nondisclosure. Id. at 483. This case is different

because the record is clear and other evidence strongly

corroborates Balke's testimony. 

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murder weapon, it appears to have been a .380 caliber gun in view

of the bullets found at the murder scene. Stapp stated that

Kopycinski was one of four people that had access to Stapp's .380

automatic, which has never been found. Atkins confirmed that

Kopycinski had shot Rogers and then disposed of the gun. This

evidence corroborates Balke's testimony that Kopycinski shot Rogers

with a gun and then disposed of it.

Finally, the testimony of Homan, Daniels, and Atkins

corroborates Balke's testimony about Kopycinski's motive for

murdering Rogers. Homan illustrated Kopycinski's intent to set

fire to his ex-wife's car the night of the fire. Daniels described

Kopycinski's threatening of Rogers to keep quiet that was made

almost contemporaneously with Rogers's disappearance. Atkins

confirmed that Kopycinski killed Rogers because he was blackmailing

Kopycinski. This evidence corroborates Balke's testimony that

Kopycinski murdered Rogers because of his knowledge of the fire and

his attempt at blackmail.

In view of the foregoing, we conclude that the nondisclosed

impeachment evidence and the uncorrected false testimony are not

material because they do not put the case in a different light so

as to undermine our confidence in the jury's guilty verdict.5

AFFIRMED.
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