                                                                                  F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                           UNITED STATES COURT OF APPEALS
                                                                                   JAN 20 1998
                                      TENTH CIRCUIT
                                                                               PATRICK FISHER
                                                                                         Clerk

 UNITED STATES OF AMERICA,
           Plaintiff - Appellee,                                No. 97-6219
 v.                                                       (D.C. No. CR-97-17-M)
 HAROLD EUGENE COMBS,                                           (W.D. Okla.)
           Defendant - Appellant.


                                   ORDER AND JUDGMENT*


Before ANDERSON, McKAY, and LUCERO, Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

       Defendant, Mr. Harold Eugene Combs, pled innocent to all charges in a twenty-

two-count indictment alleging conspiracy to possess with intent to distribute cocaine base,

possession with intent to distribute cocaine base, interstate transportation in aid of



       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
racketeering, using a communication facility to facilitate the commission of a felony,

money laundering, and causing another to engage in interstate transportation in aid of

racketeering. A jury found Defendant guilty on all counts, and he was sentenced to 360

months in prison and five years of supervised release.

       Defendant contends that he was denied a fair trial, and, therefore, he was deprived

of his due process rights because government witnesses gave perjured testimony. See

Napue v. Illinois, 360 U.S. 264, 269 (1959); United States v. Jones, 730 F.2d 593, 597

(10th Cir. 1984).

       A defendant seeking to vacate a conviction based on perjurious testimony must

prove that the testimony was indeed perjured and that the false testimony was material.

See United States v. Langston, 970 F.2d 692, 700 (10th Cir. 1992); Gay v. Graham, 269

F.2d 482, 486 (10th Cir. 1959); Owens v. Hunter, 169 F.2d 971, 972 (10th Cir. 1948);

accord United States v. Griley, 814 F.2d 967, 971 (4th Cir. 1987). The test for materiality

is whether it appears beyond a reasonable doubt that the error complained of did not

contribute to the actual verdict delivered by the jury. See Langston, 970 F.2d at 700.

       Defendant was the only person charged in the conspiracy to plead not guilty. At

his trial, several co-conspirators testified against Defendant. All of the witnesses gave

essentially consistent testimony regarding Defendant’s activities and position in the

conspiracy. Defendant’s claim of perjurious testimony arises from the fact that he

believes these people are relatively unsavory characters and, therefore, he contends,


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unreliable witnesses.

       The perjurious testimony Defendant details in his brief are statements by witnesses

denying the extent of their drug involvement. See Appellant’s Br. at 6-7. These

statements were contradicted by admissions wrung from the witnesses on cross-

examination. See R., Vol. II at 154, 175; Vol. III at 314-15. The other “perjury”

Defendant complains of is a statement by one co-conspirator which is contradicted by the

statement of a law enforcement officer. See Appellant’s Br. at 6.

       Defendant’s claim that perjured testimony deprived him of a fair trial is without

merit. Inconsistency between the testimony of two separate witnesses does not

necessarily constitute perjury. See, e.g., Tapia v. Tansy, 926 F.2d 1554, 1563 (10th Cir.

1991); United States v. Sherlock, 865 F.2d 1069, 1082 (9th Cir. 1989). The other

“perjured” statements Defendant details, see Appellant’s Br. at 6-7, are properly

characterized as contradictory statements reflecting on the witnesses’ credibility, as

opposed to Defendant’s guilt.1 See Tapia, 926 F.2d at 1563; Gay, 269 F.2d at 486.

Although the conflicting testimony affects the general credibility of the witnesses, it does

not itself affect a material fact concerning Defendant’s participation in the conspiracy.

See R., Vol. II at 154, 175 (witness contradicts her own statement about the last time she


       1
        A prosecutor’s knowing use of false evidence violates due process even when it
involves the issue of a witness’s credibility, as opposed to a material fact. See Langston,
970 F.2d at 700. However, in the case before us there is no evidence of prosecutorial
misconduct which would warrant a per se finding of the violation of due process. See
Gay, 269 F.2d at 486.

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used marijuana); R., Vol. III at 314-15 (witness testifies that he is not a drug dealer, but

then states that he sells marijuana). The jury could properly consider whether the

conflicting statements given by the witnesses rendered their testimony less credible. See

Jones, 730 F.2d at 598. Additionally, there was sufficient testimony from other witnesses

and physical evidence to support Defendant’s conviction. See, e.g., R., Vol. II at 97-102,

106, 109; Vol. III at 325-28. The evidence proffered by Defendant is insufficient for us

to conclude that the false statements, if any, meet the test for materiality.

       Therefore, we hold that Defendant was not deprived of his right to due process

under the doctrine espoused in Napue v. Illinois, and we AFFIRM his conviction.

       AFFIRMED.

                                                   Entered for the Court



                                                   Monroe G. McKay
                                                   Circuit Judge




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