REVISED FEBRUARY 15, 2008

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-70013

ROBERT TASSIN, JR.

Petitioner-Appellee 

v.

BURL CAIN, WARDEN

Respondent-Appellant

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:05-CV-00143

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

A jury convicted Robert Tassin of capital murder in a Louisiana state

court. His wife Georgina, believing that she might receive a ten-year sentence

in exchange for her testimony, testified that Robert had planned to commit

armed robbery. Robert denied that there was any plan. The State suppressed

evidence of Georgina’s sentencing agreement, arguing in close that there was “no

deal” and that Georgina had no reason to lie. Robert challenged his conviction

on numerous grounds, including an argument that the State misled the jury in

violation of the Fourteenth Amendment. The state court found that there had

been no promise of a lenient sentence and no Fourteenth Amendment violation.

United States Court of Appeals

Fifth Circuit

F I L E D

February 14, 2008

Charles R. Fulbruge III

Clerk
No. 07-70013

1 Tassin v. Cain, 482 F. Supp. 2d 764, 775 (E.D. La. 2007). 

2

Robert filed a habeas claim in federal district court; that court held that the

state court’s decision was contrary to federal law and vacated his conviction,

ordering that the writ issue unless Louisiana retried Tassin within 180 days.1

Louisiana appeals. 

I 

Wayne Stagner and Eddie Martin worked on a Mississippitugboat. When

they completed a shift one night, they met a young woman named Shirley,

Sheila, or Shelia Mills atthe Shady Lady Lounge inLouisiana. Martin, Stagner,

and Sheila had several rounds of drinks and then drove away from the bar in an

attempt to find cocaine to buy. Martin drove, Stagner rode in the passenger’s

seat, and Sheila sat between them. After stopping at another bar, where they

found no cocaine, Mills suggested that they stop at the home of Georgina and

Robert Tassin. The men agreed, and Sheila went inside. Georgina later testified

that while Martin and Stagner were waiting in the car, the Tassins and Mills

hatched a plan to rob Martin and Stagner. The Tassins also informed Sheila

that they did not have cocaine but they had Dilaudid, and that they would

provide Sheila with the drug if she could get enough money from Martin and

Stagner to pay for Dilaudid for the group. Mills emerged to ask Martin for

money in exchange for sex. She re-entered the Tassins’ home, where she paid

the Tassins and they all injected Dilaudid. Mills re-emerged from the home, this

time with the Tassins. 

The five individuals drove elsewhere, allegedly to look for more drugs.

They stopped at another home, where the State argued that the Tassins

borrowed a gun and Robert said that he obtained needles. While driving back

to the Tassins’ home, Sheila asked Martin to stop the car under a bridge because

she was going to be sick. She exited the car. Robert claims that at this point,
No. 07-70013

2 Robert’s attorney asked for “[t]he existence and substance, and the manner of

execution of fulfillment, o[f] any promises, agreements, understandings, or arrangements,

either oral or written, between the Government and any prosecution witness or informant or

cooperating defendant or his or her attorneys or to their representatives, wherein the

government has agreed: . . . c. To recommend leniency in sentencing for any crime or crimes

for which he or she is convicted; d. To recommend a particular sentence . . . . To make any

other recommendations or benefit or to give any other consideration to him or her.”

3

“Q: Okay. And did you speak to [the District Attorneys] prior to your pleading guilty?

Did you speak to the District Attorneys prior to pleading guilty?” “A: Yes, I did.” “Q: Alright.

And – and you’re still in prison right now is that correct?” “A: Yes.” “Q: And you’re awaiting a

pre-sentence investigation?” “A: Yes.” “Q: Let me ask you this: Has there been any promises

[sic] made to you by the District Attorney’s office?” “A: No.” “Q: Okay. Has there been any

promises made by anyone concerning your testimony today?” “A: No.” “Q: What’s the – do you

know the possible sentence for armed robbery?” “A: Five to ninety-nine years.” “Q: And there’s

been no problem [sic] as far as what sentence you’ll get, right? Is that correct?” “A: That’s

correct.” “Q: Okay, so you have the possibility of receiving ninety-nine years, right?” “A: Yes,

I do.” “Q: And – before you pled guilty, you said, ‘I’ll take that chance, I’ll take a chance

whether I got ninety-nine years wouldn’t bother me.’” “A: Yes I did.” “Q: Alright . . . Do you feel

that what you testified to today will have any bearing on what sentence you get?” “A: I don’t

3

Stagner pointed a gun at him, demanded drugs and money, and wrestled with

him. During the tussle, Robert got possession of Stagner’s gun and shot the gun

in self defense, wounding Stagner and killing Martin. Stagner, on the other

hand, claimed at trial that Robert shot from the back seat in a surprise attack

on Stagner and Martin. 

The state court severed Georgina’s, Robert’s, and Mills’s cases. Georgina

was indicted for first degree murder but pled guilty to armed robbery and

received a ten-year sentence. Stagner and Robert also testified at Robert’s trial,

but Mills did not. 

Before trial, Robert asked the State to disclose any information it had on

potential deals for a lenient sentence in exchange for Georgina’s testimony

against her husband.2 The State responded that it had no information on any

deal. Georgina testified that she faced the possibility of a five- to ninety-nineyear sentence for armed robbery. When asked before the jury if her testimony

would affect her sentence, she responded that she did not know if it would, and

that no promises relating to her testimony had been made.3 The prosecution
No. 07-70013

know. . . .” “Q: All right, at the time of pleading guilty, wasn’t there an agreement between you

and the District Attorney’s office that if you would testify against your husband they would

reduce the charge to armed robbery so you would – and you would plead guilty? Isn’t that

true?” “A: No.” “Q: There’s been no promise like that? Okay. You remember the Boy – a

Boykinization Form, huh? Do you know what that was?” “A: That was a plea bargain.” “Q:

Okay. A plea bargain. All right. Now as part of your plea bargain, you’re telling this Court

and this jury that there was not a promise from the District Attorney’s office to reduce the

charges to armed robbery for you to testify against your husband?” [Pause while witness

reviews her Waiver of Constitutional Rights form.] “Q: Ms. Tassin, have you had an

opportunity to look over the Waiver of Constitutional Rights Form?” “A: Yes.” “Q: Okay. My

question to you was, was there a promise from the District Attorney’s office that they would

reduce the charge to the armed robbery, if you would agree to testify against your husband?”

“A: Yes.” “Q: It’s in there, isn’t it?” “A: Yes. . . .” “Q [on re-direct]: Ms. Tassin, you’re aware that

you could receive five to ninety-nine years in connection with your plea to armed robbery, is

that right?” “A: Right.” “Q: Are you aware that it’s the Judge that sentences you to that term,

not the District Attorney?” “A: I’m aware of that.” “Q: Are you aware that I have no power to

give you five to ninety-nine years?” “A: I’m aware of that.”

4 The prosecution stated,“[D]oes she have any reason to lie to anybody? She faces up

to ninety-nine years in jail for armed robbery. Mr. DeLaup questioned her, were any deals

made with you, Georgina, about how much time you’re going to do in jail? She said, none. Mr.

DeLaup asked her, how long can you spend in jail? She said, up to ninety-nine years. She

knows where she’s going to be. She understood that only the Judge can sentence her, and only

the Judge can decide how much time she’s going to get in jail. So she had no reason to lie to

anybody on the stand here today, during the course of the trial.” 

5 Affidavit of Robert Pastor (Feb. 7, 1992) (“[D]iscussions were conducted in the

chambers of Judge Karno’s courtroom, at which time the judge stated that he would normally

sentence a first offender pleading guilty to an armed robbery at which a homicide occurred to

20 to 30 years, but that if Mrs. Tassin waived her marital privilege and testified he would

sentence her to 15 years; the judge said at this meeting that if Mrs. Tassin’s testimony was

consistent with her police statements and he approved it, he might drop down to a 10 year

sentence . . . there was at least one representative of the district attorney’s office present

during this meeting with Judge Karno . . . and [Pastor] communicated the plea offer to

[Georgina] as follows: she would plead guilty to armed robbery, waiver her marital privilege

and testify for the state in a manner consistent with her police statement, and she would

probably be sentenced to ten years . . . .”). In other testimony, Pastor stated that the judge told

4

then suggested to the jury that Georgina had no reason to lie, since she faced up

to a ninety-nine year sentence.4 According to an affidavit of Georgina’s attorney,

however, the judge presiding over her case had indicated that he would sentence

her to twenty to thirty years, or as low as fifteen years, if she waived the marital

privilege and possibly ten years if her testimony was consistent with her police

statement.5 Georgina also testified in post-conviction proceedings that when
No. 07-70013

him that he normally sentenced first offenders to fifteen to twenty years. 

6

“Q: At trial, at your husband’s trial, you were asked, ‘Is there a deal between you and

the State for your testimony against your husband?’ And you answered, ‘No.’ Correct?” “A:

Correct.” “Q: But, in fact, you had been told that you would likely get a sentence of 10 years,

isn’t that correct?” “A: That I was looking at 10 years, yes.” “Q: ‘Looking at’ means to you

likely, good chance?” “A: Yes.”. . . “Q: When you said, ‘the judge told me I’m looking at 10 years

and I might get six,’ that’s what you had been told by your attorney, correct?’” “A: Right.” . .

. “Q: You remember the questions we looked at [in the trial transcript] about the ninety-nine

years? There were two of them?” “A: Yes.” “Q: When you answered those questions, in your

mind it was still your understanding that you were going to get 10 years, you were looking at

10 years; is that correct?” “A: Right, it was.”

7 The letter from Shorty to Robert, referring to Georgina’s letter, is dated June 5, 1987.

The jury convicted Robert on May 8, 1987. 

8 Georgina wrote, “[A]s far as my case is concerned, I really don’t know what is going

on except that I have to be at my husbands [sic] trial . . . to tell the court what happened.

Then I go for sentencing . . . I am looking at 10 years and the judge said that I would have to

do 6 years out of that. And depending upon my PSI check and my cooperation in the trial it

could go a lot easier then [sic] that.”

9 State v. Tassin, 536 So.2d 402 (La. 1988). 

5

she had testified at trial, she believed that she would receive a ten-year

sentence.6 At trial, Robert and his attorney were unaware that Georgina had a

favorable sentencing bargain, more favorable than a plea of armed robbery with

the potential for ninety-nine years in prison. They learned of the deal only when

an inmate forwarded Robert a letter following Robert’s conviction and

sentencing. Georgina had been writing letters to a male “pen pal” inmate named

C.J. Jenkins or “Shorty,” who sent Robert one of Georgina’s letters7to reassure

him that Georgina’s letters to Jenkins were friendly and not amorous. The letter

referenced the possibility of a sentencing deal.8

A jury found Robert guilty of first degree murder in May 1987, and the

court sentenced him to death. The Louisiana Supreme Court affirmed Robert’s

conviction on direct appeal9 and rejected Robert’s later application for a rehearing. Robert filed his first application for post conviction relief in August

1990. The state court rejected that petition in August 1994, rejecting Tassin’s
No. 07-70013

10 State ex rel. Tassin v. Whitely, 664 So.2d 419 (La. 1995). 

11 The evidence showed that the judge overseeing his trial was involved in a business

with the elected District Attorney prosecuting Tassin’s case. 

12 See supra notes 5 and 7. 

6

claim that the State’s suppression of the agreement between Georgina and the

trial court violated the Fourteenth Amendment, as well as his other claims. 

Following rejection of his application for writ of certiorari and review to

the Louisiana Supreme Court,10 Robert brought his first federal habeas petition

arguing, inter alia, that the lower court’s determination that no covered-up deal

existed was an unreasonable application of federal law. While these claims were

pending, Robert discovered new evidence,11 and the State permitted Robert to

bring a second State Application for Post Conviction Relief (the “successor

petition”) based on this evidence, which he filed in January 1997. The federal

court dismissed his habeas claim without prejudice, and the state court

considered the successor petition. The state court rejected the second petition

for relief in November 1997. In January 2001, the state court rejected Robert’s

motion to reconsider its denial of the successor petition. That court did,

however, permit additional scientific testing to determine whether Stagner

initiated the violence on the night of the murder. In December 2003, the state

court considered the results of the scientific testing and denied Robert’s claims

in his amended successor petition. Then the federal district court again

addressed Robert’s habeas claims.

Robert had presented evidence to the state court that Georgina expected

to receive only ten years, not ninety-nine, in prison – including the letter that

she wrote to a friend before the original trial, as well as post-conviction

testimony of Georgina and her lawyer indicating that Georgina’s attorney had

discussed a deal with the court and had communicated this to Georgina.12 The
No. 07-70013

13 Tassin v. Cain, 482 F. Supp. 2d 764, 773, 775 (E.D. La. 2007). 

14 405 U.S. 150 (1972).

15 360 U.S. 264 (1959). 

16 373 U.S. 83 (1963). 

17 482 F.Supp. 2d at 771. 

7

state court concluded that Robert had failed to prove that such an arrangement

existed and therefore denied Robert’s habeas claim, stating, 

Tassin alleges that his wife, Georgina Tassin (Georgina) was

promised a lenient sentence by the trial judge in return for her

testimony against petitioner. Tassin further alleges that this

arrangement was unknown to him. At the evidentiary hearing on

this claim, the trial judge, Georgina, and Georgina’s attorney all

denied that such an arrangement was made. Robert Tassin

presented no convincing evidence to contradictthe testimony of these

individuals. Accordingly, relief based on this claim is denied. 

The district court granted relief on this issue,finding thatthe state habeas

court had erroneously required Robert to show that the court had “promised”

Georgina a lenient sentence and that this promise was unknown to Robert.13

The district court held that the state court’s ruling was “contrary to federal law

because it applied a more stringent standard than the one established by

Supreme Court precedent.” Specifically, the district court found that the state

court’s determination was contrary to Giglio v. United States,14 Napue v.

Illinois,15 and Brady v. Maryland16 because the suppressed bargain need not

have been a firm “promise” in order to mislead the jury with respect to

Georgina’s credibility, and because the State failed to disclose the bargain. The

court found that the State was “Constitutionally required” to “reveal its deal

with the witness to the jury”17 and had failed to do so. The State appealed,

arguing that the district court’s holding was erroneous, urging that there was

no “promise” and that Georgina’s testimony was not misleading. Alternatively,
No. 07-70013

18 Williams v. Cain, 125 F.3d 269, 274 (5th Cir. 1997) (holding that AEDPA applies to

cases where the habeas petitioner files a federal application for habeas corpus on or after April

24, 1996, AEDPA’s effective date). Tassin originally filed a federal habeas claim on April 23,

1996, before AEDPA was effective. The district court dismissed that claim without prejudice

when Tassin discovered that the judge at his original trial had been in business with the

district attorney prosecuting Tassin. Tassin exhausted his bias claim in state court, which the

court rejected, and he then filed his second federal habeas petition.

19 Coble v. Quarterman, 496 F.3d 430, 435 (5th Cir. 2007).

20 28 U.S.C. § 2254(d).

21 Coble, 496 F.3d at 435 (quoting Williams v. Taylor, 529 U.S. 362, 406 (2000)). 

8

the State argues, even if Georgina’s testimony was misleading, her testimony

was not material. We address each argument in turn.

II

Robert Tassin filed his federal habeas petition on January 18, 2005, so

AEDPA applies.18 Under AEDPA, “The state court’s factual findings are

presumed to be correct, and the habeas petitioner has the burden of rebutting

that presumption by clear and convincing evidence.”19 In reviewing a state trial

court decision, a district court may grant a habeas writ only if the court’s

decision was contrary to or an unreasonable application of federal law or “was

based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.”20

A state court decision is contrary to clearly established Supreme

Court precedent if: (1) “the state court applies a rule that

contradicts the governing law set forth in [the Supreme Court’s]

cases,” or (2) “the state court confronts a set of facts that are

materially indistinguishable from a decision of [the Supreme] Court

and nevertheless arrives at a result different from [Supreme Court]

precedent.”21

The federal district court presumed that the state court’s findings of fact

were correct but concluded thatthe state court’s decision, holding thatthere was

no due process violation under the Fourteenth Amendment, was contrary to
No. 07-70013

22 405 U.S. at 153.

23 Id. at 152. 

24 Id. 

9

clearly established federal law. The federal court correctly found that the state

had erroneously concluded that there was no duty of disclosure absent a firm

promise of leniency from the judge or prosecutor. We agree. It also concluded

that there was an understanding sufficient to trigger Giglio and Brady, albeit

not a “firm promise,” that Georgina had expected to gain beneficial treatment in

sentencing, provided she testified attrial consistently with her prior statements

inculpating Robert. The court did not err in that conclusion. Finally, the

federal court concluded that nondisclosure ofthe understandings violated Brady.

We turn first to Giglio and then to Brady. 

In Giglio, the petitioner discovered after his conviction that the

Government had told a testifying witness that the witness “would definitely be

prosecuted if he did not testify, and that if he did testify he would be obliged to

rely on the ‘good judgment and conscience of the Government’ as to whether he

would be prosecuted.”22 Yet the testifying witness did not disclose this at trial.

The witness testified as follows:

Q. Were you ever arrested in this case or charged with anything in

connection with these money orders that you testified to?

A. Not at that particular time.

Q. To this date, have you been charged with any crime?

A. Not that I know of, unless they are still going to prosecute.23

The Government later argued to the jury that the testifying witness

“received no promises that he would not be indicted.”24 The Court in Giglio

found a Fourteenth Amendment violation and granted the petitioner a new trial,
No. 07-70013

25 Id. at 153. 

26 360 U.S. at 265.

27 Id. at 267 n.2. (emphasis added). The witness testified as follows: “‘Q. Did anybody

give you a reward or promise you a reward for testifying?’ ‘A. There ain’t nobody promised me

anything. . . . [on redirect]’ ‘Q. [by the Assistant State’s Attorney] Have I promised you that I

would recommend any reduction of sentence to anybody?’ ‘A. You did not.’” 

28 The witness testified as follows: “‘Q. [on cross-examination] And didn’t you tell him

[one of Napue’s attorneys] that you wouldn’t testify in this case unless you got some

consideration for it?’ ‘A. . . . Yes, I did; I told him that. . . .’ ‘Q. What are you sentenced for?’ ‘A.

One Hundred and Ninety-Nine Years.’ ‘Q. You hope to have that reduced, don’t you?’ ‘A. Well,

if anybody would help me or do anything for me, why certainly I would.’ ‘Q. Weren’t you

expecting that when you came here today?’ ‘A. There haven’t no one told me anything, no more

than the lawyer. The lawyer come in and talked to me a while ago and said he was going to

do what he could.’ ‘Q. Which lawyer was that?’ ‘A. I don’t know; it was a Public Defender. I

don’t see him in here.’ ‘Q. You mean he was from the Public Defender’s office?’ ‘A. I imagine

that is where he was from, I don’t know.’ ‘Q. And he was the one who told you that?’ ‘A. Yes,

he told me he was trying to get something did for me.’ ‘Q. . . . And he told you he was going to

do something for you?’ ‘A. He said he was going to try to.’” Id. at 268 n.3. 

10

finding, “The heart of the matter is that one Assistant United States Attorney

– the first one who dealt with [the testifying witness] – now states that he

promised [the witness]that he would not be prosecuted if he cooperated with the

Government.”25

In Napue, the Court reversed a petitioner’s conviction where an attorney

had “promised” the key testifying witness consideration in exchange for his

testimony, and the witness lied about this promise before the jury.26 The

witness, when the Assistant State’s Attorney asked, “Did anybody give you a

reward or promise you a reward for testifying?” replied, “There ain’t nobody

promised me anything.”27 The witness testified that he was sentenced to “One

Hundred and Ninety-Nine Years” and that he hoped to have that sentence

reduced. Even though the witness also testified that one attorney “talked to

[him] a while ago and said he was going to do what he could” to reduce the

sentence,28 the Court found that this testimony did not sufficiently apprise the

jury as to the witness’s deal with the Assistant State’s Attorney. Although the
No. 07-70013

29 Id. at 270.

30 Id. 

31 Giglio, 405 U.S. at 154-55 (emphasis added). 

11

Court referred to the covered-up deal as a “promise,” the Court focused on the

extent to which the testimony misled the jury, not whether the promise was

indeed a promise, and emphasized that the witness “believed” that he “might”

receive a promise prior to trial.29 The Court found,

Had the jury been apprised of the true facts . . . it might well have

concluded that [the key witness] had fabricated testimony in order

to curry the favor of the very representative of the State who was

prosecuting the case in which [the witness] was testifying, for [the

witness] might have believed that such a representative was in a

position to implement (as he ultimately attempted to do) any

promise of consideration.30

Giglio and Napue set a clear precedent, establishing that where a key

witness has received consideration or potential favors in exchange for testimony

and lies about those favors, the trial is not fair. Although Giglio and Napue use

the term “promise” in referring to covered-up deals, they establish that the crux

of a Fourteenth Amendment violation is deception. A promise is unnecessary.

Where, as here, the witness’s credibility “was . . . an important issue in the case

. . . evidence of any understanding or agreement as to a future prosecution would

be relevant to his credibility and the jury was entitled to know of it.”31 As the

Court held in U.S. v. Bagley, a case that informed the district court’s decision,

Defense counsel asked the prosecutor to disclose any inducements

that had been made to witnesses, and the prosecutor failed to

disclose that the possibility of a reward had been held out to [the

witnesses] if the information they supplied led to “the

accomplishment of the objective sought to be obtained . . . to the

satisfaction of [the Government].” This possibility of a reward gave

[the witnesses] a direct, personal stake in respondent’s conviction.

The fact that the stake was not guaranteed through a promise or
No. 07-70013

32 473 U.S. 667, 683 (1985) (opinion of Blackmun, J., joined by O’Connor, J.) (emphasis

added).

33 405 U.S. at 153 (quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935)). 

34 Id. (quoting Napue, 360 U.S. at 269). 

35 405 U.S. at 154. 

36 One of Pastor’s affidavits indicated that the judge typically gave fifteen to twenty

years for defendants similar to Georgina’s; Pastor at another point testified that the number

was twenty to thirty years. 

12

binding contract, but was expressly contingent on the Government’s

satisfaction with the end result, served only to strengthen any

incentive to testify falsely in order to secure a conviction.32

The Supreme Court emphasized in Giglio that “this Court made clear

that deliberate deception of a court and jurors by the presentation of known false

evidence is incompatible with ‘rudimentary demands of justice’”33 and that “‘the

same result obtains when the State, although not soliciting false evidence, allows

it to go uncorrected when it appears.’”34 Tassin presented evidence of an

“understanding or agreement”35 between Georgina Tassin and the State,

evidence that showed more than a mere “hope or expectation” of a lenient

sentence, and that the State failed to correct Georgina’s testimony that no

agreement existed. The district court pointed to multiple pieces of supporting

evidence; we highlight a few. 

Georgina’s attorney testified after trialthat he believed, prior to trial,that

Georgina would get a ten-year sentence if she testified consistently with her

prior statements inculpating Robert and he relayed this belief to her, although

emphasizing that nothing was guaranteed. Her attorney recalled meetings with

the judge where the possibility of a ten-year sentence was discussed. According

to the attorney’s affidavit, the judge stated that he typically gave defendants in

Georgina’s position a fifteen- to thirty-year sentence36 but that he might shorten
No. 07-70013

37 The district court held that the “State Court Applied a Standard Contrary to Brady,”

finding, “the State’s understanding with Georgina Tassin, while perhaps not a firm promise,

nevertheless clearly falls within the scope of the Brady rule. The State was constitutionally

required to reveal its deal with the witness to the jury.” 482 F.Supp. 2d at 771. 

13

that sentence to ten years if she testified consistently. Georgina relayed her

belief in this deal in her pre-trial letter to her friend Shorty, stating, “I am

looking at 10 years and the judge said that I would have to do 6 years out of

that.” Yet at trial, Georgina testified that she might receive ninety-nine years

in prison and that she didn’t know whether her testimony would “have any

bearing” on her sentence. Most importantly, the district attorney capitalized on

this misrepresentation in his closing argument, stating, “She faces up to

ninety-nine years in jail for armed robbery. . . . So she has no reason to lie to

anybody. . . . You call five to ninety-nine years a deal?” The State not only

allowed deceptive testimony to go uncorrected; it also capitalized on its key

witness’s testimony to argue that there were no pending agreements affecting

her credibility. 

In light of the Supreme Court’s holdings in Giglio, Napue, and Bagley, the

district court did not err in concluding that the trial court’s decision, in holding

that a Fourteenth Amendment violation required Tassin to show that the state

had made a “promise” to his wife in exchange for her testimony and covered up

this promise, was contrary to clearly established federal law. 

III 

The State argues that even if Georgina’s testimony was misleading, any

Fourteenth Amendment violation resulting from the State’s failure to disclose

the understanding between Georgina and the State was not material. As a

result, it urges, the district court erred in finding that the trial court’s holding

was contrary to Brady v. Maryland, as well as to Napue and Giglio.

37
No. 07-70013

38 Giglio, 405 U.S. at 153-54 (citations omitted) (quoting Brady, 373 U.S. at 87; Napue,

360 U.S. at 269). 

39 Id. at 154 (quoting United States v. Keogh, 391 F.2d 138, 148 (2d Cir. 1968)). 

40 Id. (quoting Napue, 360 U.S. at 271). 

14

The district court, in holding that the state trial court’s decision was

contrary to federal law, found that the State’s failure to reveal Georgina’s

sentencing deal was material because there was “a reasonable probability that,

had the evidence been disclosed, the result of the proceeding would have been

different.” Georgina’s deal need not have been a “firm promise” to trigger Brady,

it held. This holding was not erroneous. 

Under Brady, 

suppression of material evidence justifies a new trial “irrespective

of the good faith or bad faith of the prosecution.” When the

“reliability of a given witness may well be determinative of guilt or

innocence,” nondisclosure of evidence affecting credibility falls

within this general rule.38

It is true that “[w]e do not . . . automatically require a new trial whenever

‘a combing of the prosecutors’ files after the trial has disclosed evidence possibly

useful to the defense but not likely to have changed the verdict. . . .’ A finding

of materiality of the evidence is required under Brady.”39 When the question of

materiality arises, “a new trial is required if ‘the false testimony could . . . in any

reasonable likelihood have affected the judgment of the jury . . . .’”40

The State argues that Georgina’s testimony that the Tassins planned to

commit a felony – armed robbery – was notthe only testimony supporting Robert

Tassin’s death penalty conviction: Stagner’s and the forensic examiner’s

testimony support the jury’s finding on two other aggravating factors – knowing

creation of “a risk of death or great bodily harm” and committing an offense “in

a heinous, atrocious or cruel manner.” The fact that other evidence could have
No. 07-70013

41 514 U.S. 419, 434-35 (1995). 

15

supported two aggravating factors underlying Robert’s capital conviction fails

to address the question of the gravity ofthe false testimony at issue and how the

State’s failure to reveal the existence of a sentencing deal underlying that false

testimony affected the jury’s conclusions. As the Supreme Court held in Kyles

v. Whitley, 

A defendant need not demonstrate that after discounting the

inculpatory evidence in light of the undisclosed evidence, there

would not have been enough left to convict. . . . One does not show

a Brady violation by demonstrating that some of the inculpatory

evidence should have been excluded, but by showing that the

favorable evidence could reasonably be taken to put the whole case

in such a different light as to undermine confidence in the verdict.41

The State’s theory of the case was that when Sheila Mills went into the

Tassins’ home to ask about drugs while Stagner and Martin waited in the car,

Mills and the Tassins planned an armed robbery of Stagner and Martin. The

jury found Tassin guilty of first-degree murder “committed in the course of an

armed robbery”; Georgina’s testimony was crucial to this finding. Because Mills

did not testify and Robert insisted that he did not plan any robbery, Georgina

was the key witness – and the only witness – behind the State’s felony murder

case. Her credibility was material; if the jury had known of Georgina’s

sentencing deal, there is a reasonable likelihood that they may have chosen to

believe Robert’s story over his wife’s. There is also a reasonable likelihood that

the State’s remaining theories of the case, based on the other aggravating

factors, would have been too weak to stand independently. 

The State claims that even absent Georgina’s testimony, the outcome of

the trial would have been the same, since Stagner’s and the forensic examiner’s

testimony showed the heinous nature of the crime and knowing creation of risk,

the two other aggravating factors found by the jury. The jury had reason to
No. 07-70013

42 482 F.Supp. 2d at 774 (quoting Napue, 360 U.S. at 269). 

43 The State also argues, under Fry v. Pliler, 127 S. Ct. 2321 (2007), and Brecht v.

Abrahamson, 507 U.S. 619 (1993), that we should reverse or remand to the district court to

determine whether the introduction of Georgina’s testimony was prejudicial or constituted

harmless error under Brecht’s deferential standard. Because the district court held that the

Brady error was material, and we affirm this holding, we need not apply harmless error

analysis. See Kyles, 514 U.S. at 435.

16

disbelieve Stagner; he originally told the police that hitchhikers had shot

Stagner and Martin. And evidence presented by a non-eyewitness forensic

examiner may not, by itself, have convinced the jury of the existence of the

aggravating factors. Regardless of the strength of the evidence presented by

Stagner and the examiner, the central issue in the Brady analysis is how the

evidence of Georgina’s favorable sentencing deal would have affected the case as

a whole. As the district court found, quoting Napue, 

The jury’s estimate of the truthfulness and reliability of a given

witness may well be determinative of guilt or innocence, and it is

upon such subtle factors as the possible interest of the witness in

testifying falsely that a defendant’s life or liberty may depend.42

The jury was not informed of a beneficial sentencing agreement that

hinged directly on Georgina’s testimony, and Georgina was centralto the State’s

case. The State not only failed to correct Georgina’s misleading testimony with

respect to that deal but capitalized on that testimony, arguing to the jury that

Georgina had no reason to lie.43 This is a Fourteenth Amendment violation

under the clear precedent of Giglio, Napue, and Brady, as the district court held.

AFFIRMED.