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DeMARCO v. U.S.

No. 90-5070.

928 F.2d 1074 (1991)

Joseph J. DeMARCO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

United States Court of Appeals, Eleventh Circuit.

April 17, 1991.

Attorney(s) appearing for the Case

John M. Weinberg, Miami, Fla., for petitioner-appellant.

Dexter W. Lehtinen, U.S. Atty., Linda Collins-Hertz, and Alice Ann Burns, Asst. U.S. Attys., Miami, Fla., Karen L. Atkinson, Asst. U.S. Atty., West Palm Beach, Fla., for respondent-appellee.

Before TJOFLAT, Chief Judge, EDMONDSON, Circuit Judge, and DYER, Senior Circuit Judge.

DYER, Senior Circuit Judge:

The issue in this appeal is whether the failure of the prosecutor to correct the perjured testimony of the government's essential witness, and her capitalizing on it in her closing argument, when defense counsel is also aware of the perjury and does not object to it, requires a new trial. The district court denied the defendant's motion under 28 U.S.C. § 2255. We disagree and vacate the judgment of conviction.

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