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August 5, 1970

UNITED STATES of America, Plaintiff-Respondent,
James Vincent KEOGH, Defendant-Petitioner

Edward Weinfeld, District Judge.

The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, District Judge.

This is a second application for a writ of error coram nobis by James Vincent Keogh, who, together with Elliott Kahaner and Antonio Corallo, was convicted in June, 1962, after "a long trial with many witnesses and much documentary evidence," *fn1" of conspiracy to obstruct the due administration of justice in a corrupt endeavor to influence a criminal proceeding in the United States District Court, Eastern District of New York. On direct appeal, the conviction was affirmed. *fn2" Petitioner's first coram nobis application in June, 1967, after service of his sentence and expiration of his parole, charged that the prosecution in numerous instances had knowingly suppressed exculpatory evidence and used perjured testimony upon the trial. It was denied without a hearing, *fn3" and the Court of Appeals affirmed in every respect save one, as to which it ordered an evidentiary hearing. *fn4" Following a hearing upon that single allegation of suppression of exculpatory evidence, which related to four bank deposits by Dr. Erdman, the government's principal witness, this court dismissed the writ once more in its entirety. *fn5" The Court of Appeals affirmed in all respects as to the four items, without prejudice to the filing of a new petition as to two new matters which petitioner sought to raise on appeal, but which had not been included in the original remand for an evidentiary hearing. *fn6" Petitioner, seven months thereafter, presented this petition for a writ of error coram nobis with respect to the items noted by the Court of Appeals. Familiarity is assumed with respect to the prior proceedings.

 Petitioner alleges that the prosecution wrongfully withheld three FBI investigative reports -- one concerning the finances of Dr. Erdman and his wife, and two concerning the Ace Manufacturing Company -- which he contends contain exculpatory material, and that as a result he was denied his constitutionally guaranteed right to a fair trial. To put the matter in focus, it should be noted that the reports are not "exculpatory" in the sense that any material contained therein exonerates him of wrongdoing; rather, essentially the claim is that had the information contained in those reports been available to him at the time of trial, it would have substantially aided his denial that he had received any bribe moneys and corroborated his defense that Erdman himself retained or otherwise availed himself of those moneys.

 Upon the argument of this motion, petitioner's counsel took the position that no evidentiary hearing was necessary and urged that the judgment of conviction be voided solely upon the papers submitted in support of the application. The government was also of the view that no hearing was required, but, contrariwise, urged that the petition for the writ be dismissed for lack of evidential support. Accordingly, petitioner's claims will be decided upon the moving papers, the files, and the trial and hearing records of the case without regard to any new matter presented in the government's answering affidavits. *fn7" The moving papers now consist of affidavits by petitioner and by his present attorney, which set forth petitioner's contentions, attached exhibits and an affidavit by his trial attorney, which contains the only new evidential matter presented on this application. No affidavit by any other affiant has been offered to substantiate the charges which, the Court of Appeals observed, to be sustained, must meet "the criteria laid down in our last opinion, 391 F.2d at 146-148, and in United States v. Miller, 2 Cir., 411 F.2d 825, 830, 832 (1969)."

 I. The report of November 28, 1961.

 This report, which related to the finances of the Erdmans, was the subject of the evidentiary hearing on the remand of petitioner's prior application. The remand was limited to the single issue of four bank deposits in February, 1961, totalling $15,539.94, which the report stated could not be identified as to source. The petitioner contended that the report had been deliberately suppressed by the prosecution, and since the unexplained deposits equalled "the total amount of the bribe alleged to have been paid to Erdman in February 1961," this was exculpatory evidence that could have been used to establish that Erdman kept the bribe money. At that hearing, the Erdmans testified, as did the prosecuting attorneys, the FBI agent in charge of the investigation and others who corroborated the Erdmans' explanations. This court concluded that the evidence demonstrated that each of the four deposits derived from an innocent source; that had the report been available to petitioner before or during the trial, it would have been of no aid in furtherance of petitioner's defense, and finally, that the government attorneys were entirely without motivation in failing to turn over the report to the defense. *fn8"

 Petitioner's present claim centers about testimony developed during the course of that hearing. He urges that had he been aware of the evidence which the government advanced to establish the innocent source of the four deposits, he would have been able to offer a new line of defense and to raise a reasonable doubt of his guilt. It appeared that Mrs. Erdman had a checking account and a safe deposit box in the Meadow Brook National Bank in Woodmere, Long Island; that on February 16, 1961, she redeemed $7,754.18 worth of United States Savings Bonds which she had inherited from her father; that the proceeds were deposited at the bank and drawn upon to pay $7,500 to her mother on account of a loan; that, requiring immediate funds because of an unexpected opportunity to purchase a house, she obtained repayment from her mother of the $7,500 by check, one of the four deposits; that on June 28, 1961, Mrs. Erdman purchased $15,175 face amount United States Savings Bonds, *fn9" and on June 29 closed out her safe deposit box. Petitioner contends that the existence of the safe deposit box, which was testified to during inquiry with respect to the $7,500 check transaction, was "previously unrevealed," and asserts that the records at the hearing indicated that "the Erdmans had no money available to make that purchase [of bonds in June] other than bribe money." From this, petitioner argues that if such information had been available upon the trial, he could have urged a new line of defense: "[That] Erdman had given the bribe money to his wife to secrete in her safe deposit vault; that thereafter, in immediate need of money for the payment of current obligations, he had his wife, with whom he was having marital difficulties, redeem her United States Savings Bonds which she had inherited from her father twenty years before and put money into circulation through the indirect route of his mother-in-law, Mrs. Wexler; that when Moore gave a statement to the FBI revealing the alleged 'fix,' Erdman had his wife take the money out of the vault, close it, and then she used the money to replace the bonds she had previously sold by making the bond purchase of June 28." *fn10" There is not a single evidential fact to support this hypothetical projection.

 At the outset, a number of observations are in order. Although petitioner repeats his assertion made at the last hearing that "the Erdmans had no money available to make that purchase," the record is to the contrary. This court has previously found that Erdman's annual professional income alone was $150,000, and that he was a man of substance; *fn11" also, it appears that Mrs. Erdman was not without substance in her own right. Further, petitioner's claim of a "previously unrevealed safe deposit box" is incomplete. At the conclusion of the last hearing, petitioner contended that it was only as a result of that hearing with respect to the November 28 report that he "discovered" Mrs. Erdman had both a bank account and a safe deposit box at the Meadow Brook bank, which led to the information that she purchased government bonds in June 1961. His charge of the alleged discovery of the bank account was belied by the trial record. Petitioner's trial counsel, in cross-examining Dr. Erdman with respect to bank accounts, asked: "How about an account out in Long Island at the Meadow Brook National Bank?", in response to which Dr. Erdman testified that his wife had an account there and, interestingly enough, in the light of the current charge with respect to the safe deposit box, added: "* * * I think there was a carry-over from when we moved. We did not, you know, take it out." *fn12" No question was asked and no mention was made of a safe deposit box. Aware of Mrs. Erdman's account at the Meadow Brook National Bank and alert to the significance of safe deposit boxes, including those of a spouse, *fn13" it is incredible that diligent counsel, had he deemed this of any significance in aid of the defense, would not have pursued the inquiry as to safe deposit boxes in Mrs. Erdman's name. Inquiry at the bank or the issuance of a subpoena for all its records pertaining to Mrs. Erdman would have readily disclosed the existence of the box. Petitioner cannot complain that he was denied a fair trial by the nondisclosure of information which was "readily available to a diligent defender." *fn14"

 Finally, no claim is made, nor can one be made, that the government had knowledge of the safe deposit box or the bond purchases at the time of trial, which forecloses any contention that the government deliberately suppressed this information. The information came to light in connection with the extended inquiry concerning the bank deposits set forth in the November 28 report, and in fact bore only a tenuous connection with that inquiry. *fn15"

 As to the materiality of the allegedly withheld matter, its exculpatory value to the defense, the theory ultimately advanced here is no more than pure speculation, without the slightest basis or support in the record. The mere fact that a wife has a safe deposit box regularly maintained by her (opened in May, 1959), that her husband possessed bribe moneys in February, 1961, that four months later, on June 28, she purchased $15,175 face value government bonds, a not unusual purchase for her, and the next day closed the box (which was far removed from her then home), *fn16" would not, without more, permit the imaginative inference urged by petitioner that the bribe money was not paid to petitioner but was cached by Erdman in his wife's box and was later used to purchase the bonds to replace those she had earlier sold. It was not shown that at the time of the conspiratorial activities Mrs. Erdman was aware of her husband's role. Mrs. Erdman, an attorney, was not a witness at the trial; she testified at the coram nobis hearing that she did not know that her husband was under investigation in June, 1961; that she had no knowledge that Dr. Erdman handled any of Moore's money; that she never discussed anything about Moore with her husband and knew nothing about Moore until the trial, which started in May, 1962. This court found her an entirely credible witness; *fn17" her testimony was convincing; her version about redeeming the inherited bonds, attacked by the defense as a "fantastic" story, *fn18" was eventually corroborated by irrefutable documentary proof under a fortuitous circumstance. *fn19" It taxes credulity beyond the breaking point to accept, without any evidential support, the claim that a husband who, as petitioner asserts, "was having marital difficulties," entrusted his wife with $35,000 cash bribe money, persuaded her to redeem bonds inherited by her from her father, circulated the bond proceeds through his mother-in-law in a devious way to meet current living expenses, and when the corrupt scheme, of which Mrs. Erdman was unaware, was about to be revealed by a participant she did not even know, withdrew, upon her husband's direction, the cached bribe money to purchase government bonds to replace the previously redeemed bonds. Such an argument is not only conjectural, indeed, it defies common sense.

 It is true that the implausibility of a claim does not necessarily deter forensic endeavor, but it is also true, as so often stated, that jurors do not shed their common sense when they sit in judgment. The test of materiality is not whether petitioner's counsel might have presented still another argument, however fanciful, but whether, in a proceeding such as this, the alleged "undisclosed evidence would have permitted the defendant so to present his case that he would probably have raised a reasonable doubt as to his guilt in the mind of a conscientious juror. * * *" *fn20" Other theories advanced at the trial, some of which did have evidential support, planted no reasonable doubt in the mind of a single juror. The present variant, without a shred of evidential support, could have added no weight to the defense. In the light of the fact that defense counsel did argue that Erdman kept the bribe money, it would not even have served to alter trial tactics.

 The court is firmly convinced that no conscientious juror would have been swayed by petitioner's latest conjectural and highly improbable theory. In sum, the court concludes that the claimed undisclosed evidence would not have resulted in raising a reasonable doubt of petitioner's guilt in the mind of a single juror; so, too, it raises no doubt in this court's mind.

 II. The report of February 26, 1962.

 We next consider petitioner's claim with respect to the Ace Manufacturing Company report, which, as the Court of Appeals noted, is inconsistent with the claim centering about Mrs. Erdman's safe deposit box and bond purchases. ...

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