Friendly, Hays and Anderson, Circuit Judges.
Mrs. Vera Rubin was shot and killed by a thief's bullet in an exchange of fire between robbers and police during an abortive holdup of Rao's Bar and Grill in New York City on September 6, 1941. This crime was still unsolved at the time John Gramando was arrested on June 15, 1945, in connection with an unrelated killing of one Anthony Spagna on October 17, 1944. When Gramando was arrested, officers found a gun in his wife's handbag and she was subsequently charged with unlawful possession of the weapon.
After Gramando had been questioned about the Spagna case and while he was still in custody, he asked to speak to a representative of the New York County District Attorney's office. At a conference on June 20, Gramando told a prosecutor that the gun found in his wife's bag was not hers but had been hidden there by him. He then volunteered to give information about a second, unsolved homicide if the assistant district attorney would help to obtain Mrs. Gramando's release from prosecution on the weapon charge. When Assistant District Attorney Dermody promised he would do everything he could to assist Gramando's wife, Gramando told about the Rubin killing. He implicated himself, the appellant Romeo, and four other men. On June 27, 1945, Gramando was indicted in the Spagna case for first degree murder; and that same day the grand jury dismissed the weapon charge against his wife.
Five days later, on August 2, Gramando testified under a waiver of immunity about the Rubin murder before the grand jury which indicted Gramando, Romeo, Samuel Cafisco and one other for first degree murder. Romeo's case was severed and tried first, commencing on April 16, 1946. Gramando and Cafisco testified for the People; and, in addition, the two off-duty police officers, whose presence had precipitated the gunfight in the Bar, identified Romeo. Gramando stated that Romeo helped plan the robbery and was an armed participant.
On cross-examination, in order to impeach Gramando's credibility, defense counsel asked about any promises made by the prosecution to Gramando about leniency or dismissal of charges in the cases involving Gramando's own two indictments for murder, his wife's weapon charge, and the charge against his brother-in-law for furnishing a gun, as inducements to Gramando to testify against Romeo. Gramando denied that his giving of testimony had been conditioned upon any such promises, except that he reiterated the fact that he had asked for and obtained the release of his wife on the weapon charge.*fn1
The issue now before us arose out of a donnybrook growing out of the effort of defense counsel to implant firmly in the minds of the jury the belief that the prosecution had promised, in return for Gramando's testimony against Romeo, (1) to withdraw any prosecution of Mrs. Gramando on the weapon charge; (2) to take no proceedings against Gramando for the killing of Spagna; (3) to take no proceedings against him for the killing of Vera Rubin; and (4) to make no charges against Gramando's brother-in-law for supplying a gun. In pursuit of this, defense counsel so worded his cross-examination of Gramando that the witness for the most part had to answer the leading questions in the affirmative.*fn2 For example, he asked, "You are not being tried for killing Vera Rubin, is that correct?" Answer: "That's right." This was literally correct, because Gramando was not then on trial for anything; but the full truth included the fact that he had been charged with that murder and was awaiting trial. There was not a scrap of evidence to show that the People did not intend to go forward with the prosecution, and this was in fact done. Gramando later pleaded guilty to first degree manslaughter in both the Spagna and Rubin cases and was sentenced to ten to twenty years in prison.
At this juncture the prosecutor, Assistant District Attorney Monaghan, sought to stop defense counsel from attempting to give the jury a false picture. He tried three times to clarify the evidence, but he was interrupted twice by defense counsel and finally by the judge, who told the jury to disregard the comments by counsel.*fn3 What clarification the prosecutor had in mind to make is unknown except for the comments he contributed in summation in response to defense counsel's argument that the prosecution promised Gramando to dismiss all the charges against him and his family in return for Gramando's promise to testify against Romeo.*fn4 But it is certain that there is nothing whatever to show that Gramando did not truthfully and correctly reply to questions asked him on the witness stand. Nor is there anything to indicate that the prosecutor suppressed, deliberately or otherwise, any promise relative to Gramando's involvement in the Spagna and Rubin cases, or any promise about the charge against his brother-in-law, as consideration to Gramando either for his disclosures about an unsolved homicide or for his giving testimony against Romeo.
The only issue on this appeal concerns a claimed suppression of a promise made by the prosecution to Gramando not to continue the charge against Gramando's wife in return for Gramando's agreement to tell about an unsolved homicide. The appellant's argument centers upon his contention that Gramando answered falsely when he replied, "No, I wasn't made any promises" to defense counsel's question, "You weren't made any promise by the District Attorney for your testifying here, were you?" But Gramando did testify before the jury that he had offered to tell about the unsolved Rubin homicide if the Assistant District Attorney would help to obtain the dismissal of the weapon charge against Mrs. Gramando. It was clearly before the jury that an agreement had been made, and the jury also knew that the charge against Mrs. Gramando had been dropped and that Gramando had told the District Attorney's office about the Rubin case. There was no evidence then, nor apparently has anything appeared since, to show that at the time the bargain was made Gramando agreed to testify against Romeo, though at the trial he did testify against him.
Appellant's complaint ultimately reduces itself to a claim that the mutual promises of the bargain appear in a somewhat imprecise state and that a duty rested upon the prosecution to clarify them. But the record makes it entirely clear that Gramando's answer, that he received no promises for testifying against Romeo, was not a contradiction of his testimony that he was afforded help in getting the charges against his wife dismissed in return for telling about the Rubin case. Defense counsel had ample opportunity to cross-examine on the details of the bargain regarding the dismissal of the charge against Gramando's wife and whether they expressly or implicitly included a promise on Gramando's part to testify against Romeo, but he didn't bother to do so. It is quite apparent that he was much less interested in clarification than he was in obfuscation, in the hope that he could make the jury think that the prosecution bargained away all charges against Gramando, his wife and his brother-in-law in return for Gramando's promise to testify against Romeo. His summation*fn5 reveals this, though evidence to support his statements is lacking.
The jury found Romeo guilty of first degree murder, and on its recommendation he was sentenced to life imprisonment. In a new trial motion based on a claim of newly discovered evidence, Romeo first raised his contention that Gramando committed perjury by denying that promises of leniency had been made and that the prosecutor made statements in summation which "buttressed" the perjury. This motion was denied, and both the conviction and the denial of the new trial motion were affirmed by the Appellate Division.*fn6 Leave to appeal to the New York Court of Appeals was denied June 14, 1948.
On September 30, 1960, Romeo sought a writ of error coram nobis to vacate the conviction, again alleging that the prosecutor deliberately suppressed the fact that Gramando lied about the absence of promises of leniency. A hearing was held, at which Assistant District Attorney Dermody confirmed an offer to help Gramando's wife, but denied any promises of leniency toward the witness himself. Gramando testified at this hearing that he had received other promises as well; but the judge did not credit these statements, and denied the writ.*fn7 The Appellate Division reversed by a majority of 3-2 and ordered a new trial.*fn8 The Court of Appeals then unanimously reversed the Appellate Division, stating in its per curiam opinion*fn9 that a reading of the record made clear that any defect in the prosecutor's conduct "could not have affected the jury's appraisal of Gramando's credibility." The Supreme Court denied certiorari.*fn10
When the appellant raised the argument once again in his application for a federal habeas corpus writ, the court below rejected it in much the same language as that used by New York's Court of Appeals: "The statements complained of when read in the context in which they were made, fail to satisfactorily establish a perjury on the part of the witness on the trial."
In this appeal, Romeo argues that the prosecutor's failure to make explicit disclosure at the trial of a promise of assistance for Gramando's wife violated his right to due process of the law. He relies upon such cases as Miller v. Pate, 386 U.S. 1, 87 S. Ct. 785, 17 L. Ed. 2d 690 (1967), Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959), and United States ex rel. Meers v. Wilkins, 326 F.2d 135 (2 Cir. 1964), which concern suppression of highly material evidence by the prosecution as the result of a calculated decision to obstruct justice or an intentional concealment of evidence obviously of great value to the defendant. The appellant also relies upon such cases as Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and its progeny, which decide "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution"; and United States v. Keogh, 391 F.2d 138, 146-147 (2 Cir. 1968), in which Judge Friendly discussed the above mentioned kinds of cases and also noted a third kindred sort in which there has ...