UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

DAVID W. SVETE, RON GIRARDOT, DEFENDANTS-APPELLANTS

COOGLER, District Judge: After a six week jury trial, David W.

Svete and Ron Girardot were convicted of conspiracy, mail fraud, money laundering, and interstate transportation of money obtained by fraud, all charges being related to their dealings with viaticáis.

They now appeal their convictions and present five issues for review.

Perhaps the most significant issue is whether the current Eleventh Circuit pattern jury instruction for mail fraud, which omits the requirement of ordinary prudence by investors, is proper. The defendants also challenge the sufficiency of the evidence presented by the government and Svete alleges violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) based on inconsistencies between the trial and sentencing testimony of a government witness.

Finally, Svete raises two sentencing issues.

Because the jury instruction seriously impaired the defendants’ ability to conduct their defense on the substantive counts of mail fraud, we reverse as to those counts.

We affirm as to all other issues raised by the defendants. I.

Background A.

Procedural History Svete and Girardot were charged in a superseding indictment with conspiracy to violate the laws of the United States in violation of 18 U.S.C. § 371 (Count One); conspiracy to launder money in violation of 18 U.S.C. § 1956(h) (Count Two); mail fraud in violation of 18 U.S.C. § 1341 (Counts Three through Seven); and substantive violations of interstate transportation of money obtained by fraud in violation of 18 U.S.C. § 2314 (Counts Eight through Ten).

The jury convicted Svete and Girardot of all counts.

Thereafter, the district court sentenced Girardot to a term of imprisonment of 60 months as to Count One and 63 months as to Counts Two through Ten, to run concurrently with one another. In addition, Girardot was ordered to pay a special monetary assessment of $1,000, restitution in the amount of $100,722,605.34, and to serve a³ year period of supervised release.

Svete was sentenced to a term of imprisonment of 60 months as to Count One and 200 months as to Counts Two through Ten, to run concurrently with one another. Svete was also ordered to pay a special monetary assessment of $1,000, restitution in the amount of $100,722,605.34, a $21,000,000 forfeiture, and to serve a³ year period of supervised release. B.

Facts 1.

Introduction Viaticáis are legitimate insurance products in all states, allowing patients (“via-tors”) to sell the right to receive benefits under their life insurance policies for tax-free cash.

The sale of viaticáis is usually made to a provider company through a broker. The provider company, in turn, typically through a sales agent, finds independent purchasers to invest in the policies.

Each purchaser (also referred to as “investor”) buys the right to become a beneficiary of the viator’s life insurance policy.

Thereby, purchasers receive a high return on their investment if the via-tor dies within the time projected by the viatical settlement provider. However, investors risk a reduction of their return or a complete loss if the viator does not die within the time projected because the investor must continue to pay the premiums on the policy as they accrue or the policy will lapse.

Svete became involved with viaticáis in 1997 when he incorporated LifeTime Capital, Inc. (“LCI”) in Nevada as a provider company.

He later incorporated Alexander Chase, d/b/a WSI, for the same purpose, as well as multiple additional businesses offering financial, office, marketing, and viatical services.

According to trial testimony, Svete’s control of these corporations was secreted, thus misleading investors and providing an avenue to launder money taken by fraud.

Svete’s right hand man was Ron Girardot.

Girardot first became employed with Alexander Chase, Svete’s financial advisory company, in 1997 as an operations engineer responsible for processes and procedures.

In April 1998, Girardot became the temporary President of LCI.

From LCI, Girardot moved to another of Svete’s companies, Sovereign Enterprises, as Vice President of Operations.

Finally, in November 1999, Girardot moved to Svete’s Blue Crest, an investment servicing company, as President.

As alleged by the government, Girardot’s role was to aid in defrauding investors and to launder the money taken by fraud.

During the course of trial, the government presented evidence that defendants defrauded viatical investors by intentionally misrepresenting: (1) life expectancies of viators; (2) the status of the life insurance contracts; and (3) the risks associated with the purchase of certain viatical contracts.

During the time Svete’s companies were buying viaticáis and selling investments, not less than $101,811,873.88 was invested by at least³,125 investors.

Of that group, at least¹,351 were investors over the age of 65. 2.

Evidence of Fraudulent Misrepresentations Thirty-five witnesses testified during the course of the trial that their investment failed to mature when anticipated.

Those investors had been told or provided marketing materials stating that their investment policies concerned terminally ill patients as determined by independent medical specialists who had access to the viators’ complete medical records and doctors.

This was inaccurate on many levels.

Medical doctors were retained to review patient files and estimate life expectancies.

However, complete medical records were not provided to those doctors.

Instead, they only reviewed medical and laboratory summaries, and did not consult with the attending physicians.

Some medical files were submitted for life expectancy review multiple times in an effort to shop for the life expectancy that matched the funded amount.

Other times, viator information was never even presented to independent medical doctors for mortality reports.

In those instances, Charme Austin, a medical underwriter for Svete, was instructed to create opinions on life expectancy herself and to forge the signatures of independent physicians on those mortality reports.

At all times during this process, sales agents were prohibited from obtaining the actual medical information establishing life expectancies.

Additional evidence of fraud perpetuated on investors came in the form of testimony regarding altered contracts.

Initial viatical settlement contracts reflected that the terminally ill status of the viator was determined by a physician’s medical opinion.

Nanette Zima, who served as President and CEO of LCI for about one year, testified that she was instructed by Svete to, along with Ron Girardot, alter pre-existing investor agreements to remove the terms “terminally ill” and “by a physician” without the knowledge or consent of investors.

Finally, investors were told that an independent investment servicing company maintained a premium reserve account for the purpose of underwriting the policies.

In fact, the company was created and controlled by Svete and lacked sufficient funds to pay premiums on purchased policies as they came due for one year past the life expectancy established by a particular policy, as most of the investors’ contracts required.

II.

Discussion Of the five issues presented for appeal, only two, the jury instruction issue and the sufficiency of the evidence issue, are attributed to both defendants.

Only Svete asserts potential Brady and Giglio violations, and there exists no good cause to attribute those arguments to Girardot.

See n. 6, su/pra.

It is under this framework that we begin substantive review of the issues presented. A.

Sufficiency of the Evidence We address the sufficiency of the evidence at the outset, as a finding of insufficient evidence would obviate any need to consider the alleged trial errors.

Smith, 459 F. 3d 1276, 1286 (11th Cir.2006); Bobo, 419 F. 3d 1264, 1268 (11th Cir.2005) (noting the Court’s prudential rule “that requires the court to review sufficiency of the evidence claims raised by defendants, even if resolution on alternative grounds would otherwise dispose of the case”).

We review the record for sufficiency of the evidence de novo in the light most favorable to the government.

Brown, 40 F. 3d 1218, 1221 (11th Cir.1994) (citing Harris, 20 F. 3d 445, 452 (11th Cir.1994), and Camargo-Vergara, 26 F. 3d 1075, 1078 (11th Cir.1994)).

For there to be sufficient evidence from which a reasonable jury could find guilt, [i]t is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided that a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt. A jury is free to choose among the constructions of the evidence.

Brown, 40 F. 3d at 1221 (citing Harris, 20 F. 3d at 452).

That is, where testimony may lead to one or more conclusions, it is for the jury to decide the outcome.

See Harris, 20 F. 3d at 452.

If, on the other hand, the record reveals a lack of substantial evidence from which a fact-finder could find guilt beyond a reasonable doubt, we must reverse the defendant’s conviction.

See id.

Both Girardot and Svete contend that the evidence presented by the government was insufficient to support their convictions.

Each defendant, however, makes separate arguments regarding the sufficiency of the evidence.

The Court first addresses the argument made by Girardot. 1.

Girardot Girardot argues that the government failed to provide substantial evidence of his knowing participation in any scheme to defraud.

Indeed, knowing participation is relevant to each of the charges.

To sustain the conspiracy counts (Counts One and Two), the government must prove that Girardot knew of the essential nature of the charged conspiracy and that he voluntarily joined the conspiracy.

High, 117 F. 3d 464, 468 (11th Cir.1997); Miller, 22 F. 3d 1075, 1080 (11th Cir.1994).

Similarly, to sustain the conviction for mail fraud (Counts Three through Seven), the government must prove the existence of a scheme to defraud that involved use of the mails for the purpose of executing the scheme, and the defendant’s specific intent to commit fraud.

Bethea, 672 F. 2d 407, 410 (11th Cir.1982) (citations omitted).

Proof of actual reliance by the victim and proof of damages are not required.

Yeager, 331 F. 3d 1216, 1221 (11th Cir.2003) (citing Brown, 79 F. 3d 1550, 1557 n. 12 (11th Cir.1996), and Pelletier v. Zweifel, 921 F. 2d 1465, 1498 (11th Cir.1991)).

Finally, to sustain the remaining convictions for interstate transportation of money obtained by fraud (Counts Eight, Nine, and Ten), the Court must conclude that a reasonable fact-finder could determine that the defendants knew that certain property of a value in excess of $5,000 had been obtained by fraud and that the defendants caused that fraudulently obtained property to be transported in interstate commerce.

Ross, 131 F. 3d 970, 986 (11th Cir.1997). a.

Evidence Specific to the Charged Offenses Girardot contends that the evidence presented by the government of his knowing participation in the scheme to defraud was flawed and insufficient to establish his guilt.

Specifically, he argues that the only evidence presented by the government to establish his knowing participation was: (1) Charme Austin’s testimony that Girardot was falsifying life expectancies at Medical Underwriting, Inc.; (2) Nanette Zima’s testimony that Girardot participated in the alteration of existing contracts with investors by changing pages in them; and (3) LCI accountant Cindy Kienenger’s testimony that Girardot can be tied to two improper transfers of money, one in 1998 and the other in 2000.

Essentially, Girardot’s argument is that these witnesses, who testified to the best of their recollections, should not have been relied upon by the jury to establish guilt because other constructions of their testimony exonerating Girardot were possible.

Girardot’s argument is not only flawed under the clear holding in Brown, 40 F. 3d at 1221, which permits the jury to choose among constructions of the evidence, but also fails because the evidence of Girardot’s knowing participation in the scheme to defraud encompassed much more than the three areas outlined by Girardot.

Trial testimony revealed that Girardot was Svete’s “right hand man,” someone who “knew everything” there was to know about LCI.

Girardot was the “go-between” for marketing materials created by Svete’s Dove Creative, Inc. These materials inaccurately stated that Svete’s companies were independent and operated by medical professionals who, where applicable, contacted up to ten doctors for mortality reports.

Girardot was also responsible for selecting files for MUI’s audit, choosing only those that did not disclose the existence of fraudulently obtained policies.

Later, when several of the fraudulently obtained policies were cancelled, Girardot authorized a letter to investors which misrepresented that the policies had matured and encouraged investors to roll their money over into a new account.

The sum of this evidence was clearly sufficient to sustain Girardot’s convictions. b.

Girardot’s Testimony Perhaps the most substantive evidence of Girardot’s guilt is his own testimony.

It is axiomatic that a defendant in a criminal case may choose whether to testify in his or her own defense.

However, the decision of a criminal defendant to testify presents a substantial risk of not only bolstering the government’s case, but also providing substantive evidence of his or her own guilt: [A] statement by a defendant, if disbelieved by the jury, may be considered as substantive evidence of the defendant’s guilt.

By “substantive evidence” we mean evidence “adduced for the purpose of proving a fact in issue, as opposed to evidence given for the purpose of discrediting a witness (i.e. showing that he is unworthy of belief), or of corroborating his testimony.” ... [W]hen a defendant chooses to testify, he runs the risk that if disbelieved the jury might conclude the opposite of his testimony is true ....

Brown, 53 F. 3d 312, 314 (11th Cir.1995) (internal citations and quotations omitted).

Girardot testified under oath that he acted in good faith at all times.

He also generally denied that he participated in or was aware of any wrongdoing by Svete.

The jury, however, who actually heard Girardot’s testimony and witnessed his demeanor on the stand, was entitled to disbelieve Giradot’s testimony.

See id.

Not only was the jury entitled to disbelieve Girardot, it was entitled to believe the exact opposite of what Girardot said.

See id.; see also Atkins v. Singletary, 965 F. 2d 952, 961 n. 7 (11th Cir.1992); Sharif, 893 F. 2d 1212, 1214 (11th Cir.1990). “At least where some corroborative evidence of guilt exists for the charged offense ... and the defendant takes the stand in his own defense, the defendant’s testimony, denying guilt, may establish, by itself, elements of the offense.”

Brown, 53 F. 3d at 314-15.

This rule especially applies “where the elements to be proved for a conviction include highly subjective elements: for example, the defendant’s intent or knowledge .... ” Id. at 315 (citations omitted).

In this case, we have both.

As thoroughly discussed above, the government presented more than some corroborative evidence of guilt of the charged offenses.

In fact, the evidence presented was in and of itself sufficient to support the convictions.

Moreover, the highly subjective element of Girardot’s knowledge is the evidence challenged by Girardot.

That the jury disbelieved or believed the opposite of Girardot’s testimony is the only conclusion that can be reached by this Court.

See id. at 314.

This Court finds that the evidence was sufficient to support Girardot’s conviction. 2.

Svete As to the sufficiency of the evidence, Svete appeals only the substantive mail fraud convictions and his convictions for interstate transportation of money obtained by fraud.

Svete contends that a properly instructed jury could not have found beyond a reasonable doubt that a reasonably prudent investor would have relied on the charged misrepresentations.

More specifically, Svete argues that because the investors signed contracts, which articulated the risks of the investment, it was unreasonable for any prudent investor to rely upon contrary statements made by the sales agents or the promotional literature.

Because “[a] ‘scheme to defraud’ ... has not been proved where a reasonable juror would have to conclude that the representation is about something which the customer should, and could, easily confirm — if they wished to do so — from readily available external sources,” Brown, 79 F. 3d at 1559, Svete contends that the government’s evidence was insufficient to establish the substantive mail fraud counts and the counts for interstate transportation of money obtained by fraud.

Svete’s argument fails for two reasons.

First, Svete’s scheme was so sophisticated and complex that even the most intelligent investor would have been defeated in his quest for the truth.

There was no information readily accessible in the public domain that the victims could immediately obtain to confirm or disprove the representations of the sales agents.

Gray, 367 F. 3d 1263, 1270 (11th Cir.2004).

An illusion of independence and reliability was present with no way to ascertain that the viators were not terminally ill.

Even if an investor actually visited the offices of MUI or LCI, they could not have learned the truth.

Second, and more importantly, Svete’s argument fails under the reasoning of Brown, 53 F. 3d 312.

Like Girardot, Svete chose to testify in his own defense.

The jury, who heard Svete’s testimony and witnessed his demeanor, was entitled to disbelieve Svete’s testimony and was entitled to believe the opposite of Svete’s testimony.

Brown, 53 F. 3d at 314.

Because of the combination of Svete’s testimony and the other corroborative evidence supporting Svete’s convictions, see id., the evidence was sufficient to support Svete’s convictions. B.

The Jury Instructions Defendants contend that the district court abused its discretion when it gave the pattern mail fraud charge to the jury instead of using language consistent with Brown, 79 F. 3d 1550, 1557 (11th Cir.1996).

We review a question of the propriety of the jury instruction for abuse of discretion.

Cornillie, 92 F. 3d 1108, 1109 (11th Cir. 1996) (citing Morris, 20 F. 3d 1111, 1114 (11th Cir.1994)).

Reversible error occurs only when the requested instruction: (1) was correct; (2) was not substantially covered by the charge actually given; and (3) dealt with some point in the trial so important that the failure to give the requested instruction seriously impaired the defendants’ ability to conduct their defense.

Chastain, 198 F. 3d 1338, 1350 (11th Cir.1999), cert, denied sub nom.; see also Carrasco, 381 F. 3d 1237, 1242 (11th Cir.2004) (internal citations omitted).

In this Circuit, mail fraud requires the government to prove that the defendant intended to create a scheme “reasonably calculated to deceive persons of ordinary prudence and comprehension.”

See Brown, 79 F. 3d at 1557 (citing Pelletier, 921 F. 2d at 1498-99).

This burden is not reflected in the current Eleventh Circuit pattern jury instruction for mail fraud.

Pattern Instruction 50.1 merely states that a “scheme to defraud” is “any plan or course of action intended to deceive or cheat someone out of money or property by means of false or fraudulent pretenses, representations, or promises.”

Pattern Jury Instructions (Criminal Cases), No. 50.1 (11th Cir. Jud.

Council 2003 rev.) (Mail Fraud).

Because the definition does not include the reasonable person standard as articulated in Brown, Pattern Instruction 50.1 is deficient. A more accurate definition of “scheme to defraud,” tracking the language set out in Pelletier and Brown, would read: “The term ‘scheme to defraud’ includes any plan or course of action intended to deceive or cheat a person of ordinary prudence and comprehension out of money or property by means of false or fraudulent pretenses, representations, or promises.”

The inaccuracy of the definition of “scheme to defraud” in the jury instruction seriously impaired defendants’ ability to conduct their defense on the substantive counts of mail fraud.

Defendants did not have the opportunity to argue in connection with charged law that the contracts, signed by the investors, made it unreasonable for any prudent investor to have relied upon contrary statements by sales agents or LCI’s promotional literature.

Defendants did not have the opportunity to argue in connection with charged law that investors should have sought independent advice on investing in viaticáis.

Such arguments are clearly contemplated by controlling law in this Circuit.

Therefore, the district court abused its discretion when it did not include the Brown, 79 F. 3d at 1557, language in the jury instruction.

Svete and Girardot are entitled to a new trial on the substantive counts of mail fraud.

The incomplete jury charge did not however affect Defendants’ ability to conduct their defense as to the conspiracy counts and the counts for interstate transportation of money obtained by fraud.

This Court has previously held that the elements of mail fraud need not be explained to the jury in a money laundering conspiracy case under 18 U.S.C. § 1956(h) because the government does not have to prove that a defendant committed mail fraud to obtain a conviction on conspiring to launder money.

Martinelli, 454 F. 3d 1300, 1311 (11th Cir. 2006) (“The pattern mail fraud instruction, which details the affirmative actions a defendant must undertake to violate the mail fraud statute, simply does not apply in a money laundering conspiracy case, where the defendant need only have knowledge that the funds were derived from mail fraud.”).

The same logic applies to charges under 18 U.S.C. § 2314 where the defendant need only have knowledge that the property was derived from fraud.

See 18 U.S.C. § 2314; see also Turner, 871 F. 2d 1574, 1578 (11th Cir. 1989) (upholding a jury charge on knowledge which stated: “the proof need not show who may have stolen the property involved, only that the Defendant knew it had been stolen or taken by fraud at the time it was transported”).

The government does not have to prove that a defendant committed mail fraud to obtain a conviction on interstate transportation of money obtained by fraud.

See Johnson v. United States, 207 F. 2d 314, 319 (5th Cir. 1953) (“The gravamen of the offense prohibited by 18 U.S.C. § 2314 is the transportation in interstate or foreign commerce of goods with knowledge that they have been secured by the unlawful means referred to in the statute.

It is immaterial whether the accused is guilty of any offense in connection with the primary wrongful taking of the goods, nor is it significant how the accused acquired possession of the goods, except that this may be shown in order to prove his knowledge of their character as being stolen, converted or taken by fraud.”).

Therefore, the district court did not abuse its discretion when it declined to instruct the jury on the requirement of an ordinarily prudent investor as to the counts of conspiracy to launder money and interstate transportation of money obtained by fraud.

Svete and Girardot are not entitled to a new trial as to those convictions. C.

The Motion for New Trial Prior to sentencing, Svete moved the district court for a new trial based upon what he contends were Brady and Giglio violations.

Svete points to inconsistencies between the trial and sentencing testimony of government witness Charme Austin.

Svete insists that the district court was in error to deny the motion.

To resolve this issue, we must delve into the circumstances surrounding Charme Austin and her testimony.

Austin worked as a medical underwriter for Svete’s companies and thus had knowledge of the scheme to defraud viatical investors.

She explained that some life expectancies were created without doctor consultation and others were modified to fit particular portfolios.

She referred to these processes as “falsifying life expectancies.”

Austin also testified that the scheme was dependent upon secreting Svete’s involvement with LCI and MUI.

Austin quoted Svete as saying that “when investors were looking on, that it would maybe to them seem not correct or not appropriate that he was overseeing both the underwriting company and the viatical company.”

Additionally, the scheme was furthered, according to Austin’s testimony, by the use of inaccurate marketing materials that overstated the qualifications of LCI and MUI.

Austin’s involvement with defendants led to her being scrutinized by the government for her own participation in the fraud.

She was ultimately charged with conspiracy, pled guilty on August 30, 2004, testified on January 18 and 19, 2005, and was sentenced on May 6, 2005.

One week after Austin’s sentencing, the government filed a notice disclosing certain inconsistencies between her testimony at the trial and her testimony at her own sentencing.

Specifically, there were three areas of concern.

First, at her sentencing, Austin admitted that she had been incarcerated for ten months at military stockades in Germany and Colorado, following her court-martial for theft of property.

During her trial testimony, however, Austin stated, in response to cross examination by Svete, that she had never been imprisoned.

Second, Austin admitted at sentencing that an adjudication against her had been withheld on September 19, 2004, in a grand theft charge in Broward County, Florida.

That matter pertained to the use of a credit card to pay for storage charges.

The government did not disclose this fact to the defense prior to the trial, and, accordingly, no line of questioning brought out the fact of the withheld adjudication.

Finally, Austin revealed at sentencing that she had been in weekly counseling with a psychologist for three months in 1980 due to “concerns over the ‘unreliability’ of statements made by Austin and her behavior at home and school.”

Again, the government did not disclose this fact to the defense prior to the trial, and no line of questioning brought out the fact of the counseling.

The only argument for a new trial that has any potential merit is based on the government’s failure to disclose Austin’s confinement in the military stockades prior to trial.

Had Austin’s military stockade record been disclosed at the time of trial, Svete argues, the defense would have had powerful impeachment evidence and solid proof that Austin, a significant witness for the government, had lied during her trial testimony.

We review the district court’s denial of the motion for a new trial for abuse of discretion.

Kersey, 130 F. 3d 1463, 1465 (11th Cir. 1997); see also Woodruff, 296 F. 3d 1041, 1043 n. 1 (11th Cir.2002). 1.

Standards Governing Brady and Giglio Violations To establish a Brady violation, Svete must show: (1) that the government possessed evidence favorable to the defendant; (2) that the defendant did not possess the evidence nor could he have obtained it himself with any reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been revealed to the defense, there is a reasonable probability that the outcome of the proceedings would have been different.

Perez, 473 F. 3d 1147, 1150 (11th Cir.2006); see also Woodruff, 296 F. 3d at 1043 n. 1.

Failure to meet any one of these elements will defeat a motion for a new trial.

Starrett, 55 F. 3d 1525, 1554 (11th Cir.1995). “Giglio error is a species of Brady error that occurs when the undisclosed evidence demonstrates that the prosecution’s case included perjured testimony and that the prosecution knew, or should have known, of the perjury.”

Ventura v. Attorney Gen., Fla., 419 F. 3d 1269, 1276 (11th Cir.2005) (internal quotations and citations omitted). “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.”

Giglio, 405 U.S. at 154, 92 S.Ct. 763; see also Jennings v. McDonough, 490 F. 3d 1230, 1236 (11th Cir.2007).

Further, the materiality standard under Giglio is less stringent than under a garden variety Brady claim; under Giglio, a failure to disclose evidence is material if “there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.”

See Grossman v. McDonough, 466 F. 3d 1325, 1342 n. 14 (11th Cir.2006) (quoting Ventura 419 F. 3d at 1278).

Therefore, if a defendant fails to articulate a Giglio violation, a Brady violation cannot exist.

See Williams v. Griswald, 743 F. 2d 1533, 1542 n. 22 (11th Cir. 1984) (“[A]s a result, it is not necessary in this case to address the possible Brady violations because a Giglio criterion will suffice for our purposes.”); see also Brown v. Head, 272 F. 3d 1308, 1317 (11th Cir. 2001) (“The materiality prong is easier to establish with Giglio claims than with Brady claims.”). 2.

The Government’s Duty What then was the government required to do?

First, the government was required to disclose any material evidence that it possessed that was favorable to the defendant that (1) the defendant did not possess and (2) could not have been obtained by the Defendant himself with reasonable diligence.

The government further had the duty to step forward and disclose “[i]f false testimony surfacefd] during [the] trial and the government [had] knowledge of it .... ” Brown v. Wainwright, 785 F. 2d 1457, 1464 (11th Cir. 1986) (emphasis added). “That the prosecutor ... chose not to run an FBI or NCIG check on the witness, does not change ‘known’ information into ‘unknown’ information within the context of the disclosure requirements.”

Auten, 632 F. 2d 478, 481 (5th Cir.1980).

Austin disclosed to the government that while she was in the military, she had been subjected to a disciplinary proceeding stemming from an allegation of theft for which she received a “less than honorable discharge.”

What she failed to tell the government, and the government failed to discover prior to her testimony, was that she had also served time in the military stockades as a result of the charge.

Although the government revealed the information it had to the defense prior to her testimony, it did not reveal Austin’s confinement in the military stockades and did not “step forward” and disclose the apparent inconsistency in her testimony when she denied imprisonment.