Waterman, Friendly and Hays, Circuit Judges.
In United States v. Kahaner, 317 F.2d 459 (2 Cir.), cert. denied, 375 U.S. 835, 836, 84 S. Ct. 62, 11 L. Ed. 2d 65 (1963), we affirmed the conviction of James Vincent Keogh, a Justice of the Supreme Court of New York for Kings County, and two co-defendants, Elliot Kahaner, former Chief Assistant United States Attorney for the Eastern District of New York, and Antonio Corallo, for a conspiracy to influence, obstruct or impede justice in violation of 18 U.S.C. § 1503. Justice Keogh served eight months of his 2-year sentence and was placed on probation for the remainder. The New York Court of Appeals ruled in a proceeding for his disbarment that he should "be privileged to relitigate the issue of his guilt by introducing, if he can, evidence which was unavailable to him upon the trial in the Federal court, including proof of recantations or perjury by witnesses who had testified against him," Keogh v. Richardson, 17 N.Y.2d 479, 266 N.Y.S.2d 984, 214 N.E.2d 163 (1965); the hearing on this is pending. In May 1967 he brought before the District Court for the Southern District of New York a petition for a writ of error coram nobis, supported by numerous affidavits and exhibits, alleging that the prosecution had knowingly suppressed exculpatory evidence and used perjured testimony; the Government answered and also submitted affidavits. Judge Weinfeld, who had presided over the trial, ruled that consideration of the moving papers, weighed against the trial record and files, sufficed to show the petition's lack of merit without need for relying on the answering affidavits or holding an evidentiary hearing. The appeal is from the court's order of dismissal, 271 F. Supp. 1002 (1967).
Although the Government has naturally preferred to answer the charges of prosecutorial misconduct, it has properly called our attention to a procedural point which, if sound, would preclude us from considering the merits. The notice of appeal was filed twenty-seven days after entry of the order of dismissal -- well within the 60 days allowed by F.R.Civ.P. 73(a), which would govern if the district court had denied a petition for habeas corpus or under 28 U.S.C. § 2255, but more than the 10 days limited by F.R.Cr.P. 37(a) (2). The Government suggests the Criminal Rule is applicable in light of a footnote to the opinion in United States v. Morgan, 346 U.S. 502, 505, 506 n. 4, 74 S. Ct. 247, 98 L. Ed. 248 (1954), sustaining the continued vitality of the writ of error coram nobis, where Mr. Justice Reed said that a petition for such a writ "is a step in the criminal case and not, like habeas corpus where relief is sought in a separate case and record, the beginning of a separate civil proceeding."
We disagree. The problem to which the footnote was addressed was that F.R.Civ.P. 60(b) had abolished writs of error coram nobis in favor of the motion procedure there provided. The answer was that the abolition effected by Rule 60 (b) cannot fairly be extended beyond the "suits of a civil nature" to which alone, under the general provision of Rule 1, the Rules of Civil Procedure apply. We do not read the quoted statement as intending more than that. Indeed the footnote ends by characterizing a motion for coram nobis as "of the same general character as one under 28 U.S.C. § 2255," which, as indicated above, is under the civil rules as regards time for appeal. See Heflin v. United States, 358 U.S. 415, 418 n. 7, 79 S. Ct. 451, 3 L. Ed. 2d 407 (1959). Compare Wells v. United States, 318 U.S. 257, 260, 63 S. Ct. 582, 87 L. Ed. 746 (1943). The policy considerations supporting prescription of a very short time for appeal in a criminal case are notably absent in coram nobis.
Turning to the merits we find, for the most part, no occasion to add to Judge Weinfeld's characteristically thorough opinion. In some instances witnesses have simply changed details of testimony they gave before the grand jury or at trial.*fn1 In another instance, Erdman's chauffeur, Maggio, who testified before the grand jury that he had made deliveries to Keogh in 1959, including medicines, a new automobile, and $1000 in cash, but was not called at the trial, now claims his testimony as to the cash delivery was made at Erdman's suggestion and he had told the prosecutors it was untrue. But he did not aver he had told the prosecutors he had lied at Erdman's suggestion, the only point that would have been useful to defense counsel, if, indeed, one can possibly assume the defense would have wished to open up the history of prior financial dealings between Erdman and Keogh, see 317 F.2d at 470-471. An affidavit of a resigned member of the New York bar, himself convicted of subornation of perjury, asserting that Erdman had told him the case was "full of perjury" and that the prosecutors had told him to "forget" facts helpful to the defense, was properly dismissed as hearsay. The claim of prejudice by the prosecutors' suppression of grand jury testimony of Erdman as to participation with Keogh and Kahaner in an effort with respect to the sentence of Joseph Abrams for income tax evasion somewhat similar to that allegedly performed on Moore's behalf, when the prosecutors knew that Abrams would deny this, is, in Judge Weinfeld's apt phrase, utterly extravagant," 271 F. Supp. at 1008. It is simply incredible that any competent defense counsel would have brought out testimony from Erdman to show such a pattern of criminal conduct in order to have an opportunity to rebut him with Abrams, four times convicted of federal felonies, see 271 F. Supp. at 1007 n. 15, assuming that would have been permissible, when, as the district court stated, "the undisputed fact that petitioner did receive from Erdman a gift of a car in 1959, and other circumstances which could be deemed corroborative, would permit a fact finder to conclude that Erdman's account of an Abrams fix was not the product of imagination," 271 F. Supp. at 1008 and n. 24.
We reach a similar conclusion with regard to the Government's non-disclosure of the grand jury testimony of Moore's close associate, Harry Kay. Kay, who could not be located at the time of the trial, had testified before the grand jury that he had been with Moore on March 29, when the final payments, totalling $20,000, were made to Keogh and Kahaner. He said that the money had been stored in the bank safe deposit box of Moore's brother-in-law, Kerner, and that on the morning of March 29 he drove Moore to the bank to get it. They then proceeded to Erdman's office in midtown Manhattan and, shortly afterwards, he drove both Erdman and Moore to Brooklyn. Keogh contends it was impossible to cover that much territory and still arrive in Brooklyn about 10:00 A.M., as both Erdman and Moore had testified at trial. Judge Weinfeld reasoned, 271 F. Supp. at 1017, that since both Erdman and Moore denied that Kay had been with them at all on March 29, and were cross-examined thoroughly as to this, Kay's grand jury testimony that he had been would have added nothing. It is argued against this that though Kay's presence was denied, his version of the events -- especially that concerning the detour to the bank -- was not developed.*fn2 But again it is inconceivable that defense counsel would have chosen to add the grand jury testimony of a third witness supporting Moore's and Erdman's on the basic fact of payment simply in order to bring out an inconsistency, or even incredibility, in details of the third witness' version.
There is no need to mention several other matters that have even less force than those we have recounted. Indeed it was doubtless the very number of wholly unmeritorious claims that distracted the judge's attention from the one item where, as we see it, Keogh's allegations cross the rather low threshold entitling him to an evidentiary hearing on his petition, to wit, the prosecutors' failure to disclose an FBI report as to certain of Erdman's financial transactions that was in their hands.
A few circumstances concerning the indictment and the trial must be recounted to place this matter in proper setting. If Moore paid $35,000 in February and March, 1961, the money must have landed somewhere. Accordingly, as the affidavit of one of the prosecutors attests, he requested the FBI "to conduct financial investigations of Keogh, Erdman and Kahaner to see if any of the bribe money could be traced." Concededly none was ever traced to Keogh, who allegedly received $5000 around March 7, 1961, and $17,500 on March 29, or to Kahaner, who allegedly received $5000 in late February, $5000 around March 7, and $2500 on March 29. The defense naturally made much of this at the trial. However, Moore was positive he had paid the money and there was other evidence to support this. Accordingly the theory of the defense*fn3 was, as stated in our previous opinion, 317 F.2d at 476, "that Erdman intended from the outset to pocket the money, did exactly that, and then, when his iniquity was discovered, decided to implicate Kahaner, Keogh and Corallo in an effort to gain favor with the Government, with Moore joining in the endeavor for the same reason."*fn4 Determination of this was crucial -- the judge instructed the jury that "if you should find that no cash payment was made to Keogh or Kahaner * * * there would be no basis for a finding of corrupt endeavor." 317 F.2d at 475. The state of Erdman's finances thus had an importance almost equal to Keogh's and Kahaner's, and the prosecutors properly required this to be investigated.
The FBI report of its investigation was rendered November 28, 1961, some ten days before the indictment. It recited that Erdman's bank deposits of $243,590.58 from January through August 1961 had been ...