Waterman and Friendly, Circuit Judges, and McLean, District Judge.*fn*
This proceeding begins where our last opinion in this case ends, United States v. Keogh, 417 F.2d 885, 888-890 (2 Cir. 1969).*fn1 Discovery incident to the hearing of the portion of Justice Keogh's first coram nobis petition, which concerned four bank deposits made by Dr. Erdman close in time to the alleged receipt of the bribe money by him, revealed the existence of an FBI report dated February 26, 1962. Another admittedly less significant FBI report dated January 24, 1962 had been made available to the petitioner in the course of his disbarment hearings. These reports related to a $50,000 investment in the Ace Manufacturing Company, a Glen Burnie, Md., concern, in late April, 1961, by Sanford Moore, whose indictment for bankruptcy fraud had triggered the alleged conspiracy to obstruct justice, Louis Forman, who was claimed to have furnished Moore with most of the bribe money earlier in 1961, and Dr. Erdman, who allegedly received the bribe money from Moore and paid it to Keogh and Kahaner. It had been developed at the trial that Moore and Forman had a two-thirds and Erdman a one-third share in this investment. The report revealed that the contribution of Moore and Forman was paid by a check in Forman's name for $33,332.66; that it was dated April 28, 1961, and was drawn on the Meadow Brook National Bank; that the account on which it was drawn was opened only on May 2, with a deposit of $100; that the check was received for payment on May 4; that the overdraft was met by a cash deposit of $33,350 on May 5; and that this deposit consisted of $19,700 in $100 bills, $9850 in $50 bills, $1800 in $20 bills, and $2000 in $10 bills. The claimed significance of this was that the bribe money allegedly paid by Moore to Erdman and transmitted to Keogh and Kahaner was made up of bills of rather similar denomination and that the deposit coincided in time with representations by Forman to Erdman that the latter should return the money to Moore "because he didn't deliver what he was supposed to." Hence, it was argued that "the evidence that Forman had $33,350 in small bills on May 5 would have materially strengthened Keogh's claim that Erdman had never given him any of the bribe money." 417 F.2d at 889. On the previous appeal from denial of the first coram nobis petition, we declined to consider this since it was not within the scope of the hearing we had directed and had "not been explored in depth"; rather we affirmed "without prejudice to Justice Keogh's filing a new petition" for coram nobis on this and certain other matters, 417 F.2d at 889.
The further proceedings took a course quite different from what we had envisioned. Although we had not directed an evidentiary hearing in so many words, our opinion rather clearly contemplated one. Instead of the simple petition which was all that would have been needed to obtain this, Keogh filed an elaborate one, dated December 24, 1969, which was supplemented by a long affidavit, in the nature of a legal argument, by the counsel who has represented him in these coram nobis proceedings. The Government's initial response, late in January 1970, was that these papers "raise in minute detail numerous issues of fact and law which in our opinion require extensive preliminary investigation and a full evidentiary hearing in order to provide the Court with sufficient facts to decide the questions." It was given until May 4 to file a response. The Government then sought and obtained an additional extension to June 1, representing that extensive factual inquiry not only into the record "but also into extrinsic matters which happened or allegedly happened eight or nine years ago" had "disclosed evidence substantially negating petitioner's claim of materiality."*fn2 Instead of submitting such evidence, it moved on the appointed day to dismiss the petition on the ground that Keogh had failed to support it "with affidavits of fact based on personal knowledge which, if they were true, would merit issuance of the Writ." This motion was accompanied by an affidavit in the nature of argument by an attorney in the Criminal Division of the Department of Justice which advanced no new facts, and two short affidavits of the prosecutors, Hundley and Lally. Hundley said that although he had no specific recollection of having seen the FBI report of February 26, 1962, during his trial preparation, he "probably had knowledge of the basic information contained in that report." He added, irrelevantly and almost certainly incorrectly, that "defense counsel has had access to this report since I voluntarily turned over all the material related to" the Keogh matter to Hon. Bruce Bromley, the referee in the long pending Keogh disbarment proceedings. See Keogh v. Richardson, 17 N.Y.2d 479, 266 N.Y.S.2d 984, 214 N.E.2d 163 (1965). Lally had "no specific recollection" of having seen the February 26, 1962, report. Both prosecutors averred that they "did not in any way conceal or attempt to conceal or suppress in any manner that report or any information to which defense counsel might have been entitled." Petitioner's counsel submitted a reply affidavit, in the nature of argument. Since the Government had suggested there was no proof that the reports had not in fact been turned over, petitioner also filed an affidavit of his trial counsel, Henry G. Singer. Mr. Singer stated his best recollection was that he had not seen them; to support this he alleged that every such report turned over to him during the trial had been marked for identification and that review of the clerk's minutes in which the trial exhibits were listed showed that the two reports were not among them. Excerpts from the disbarment testimony were also attached.
With the equivalent of some 200 pages of printed matter having been thus accumulated, the Government's motion to dismiss came on for argument. It was agreed that petitioner's counsel should be heard first. He began by saying
Your Honor, the writ in this case should issue and I would normally be beseeching your Honor for a hearing, but in view of the papers submitted by the Government it appears not only, perhaps, that I didn't need any answering papers, as was indicated to me, but certainly there is no necessity for a hearing because they raise no arguable or justiciable issue.
Since Government counsel were now in accord about the absence of need for an evidentiary hearing, Judge Weinfeld announced at the close of the argument that he would decide "upon the papers as submitted by counsel." There was no demur. In his opinion dismissing the petition he stated that the merits would "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" -- of which, indeed, there was precious little. Since we can add nothing to Part I of his decision, in which he rejected claims based on evidence of certain financial dealings of Mrs. Erdman which had come to light during the hearings on the first coram nobis petition, we shall limit this opinion to the more serious questions raised by Part II, relating to the FBI reports of February 26 and January 24, 1962.
Preliminarily, we must confess some regret that an evidentiary hearing was not held. While it is understandable that the Government might not have been able in 1970 to demonstrate that there was an innocent source for the $33,350 cash deposit of May 5, 1961, with the degree of certainty it had established two years earlier as regards Erdman's bank deposits of February 1961, see 417 F.2d at 887, and thereby have put the entire matter to rest, we would have been better satisfied with a record that contained oral testimony. Hundley, Lally, Singer, and other trial attorneys were surely available. So also were Moore, who has given evidence on this very matter in the disbarment proceedings, and Erdman. While Forman had refused to discuss the matter under advice of counsel, this does not mean that, if subpoenaed, he would necessarily have advanced a claim of privilege or could have sustained one.*fn3 However, we see no basis on which we could properly reverse the district judge and order still further proceedings in this case because of his not directing a hearing which was not sought either by petitioner's counsel, quite possibly for strategic reasons, or by the Government, unless we were convinced by examination of the record that the interests of justice so required. We are not.
The district court, 316 F. Supp. 921, rested its denial of the petition on two grounds: (1) that "it has not been adequately established that in fact these reports [of January 24 and February 26, 1962] were not turned over and available to the defense at or before the trial," and (2) that in any event the proof did not meet the standards for issuance of the writ laid down in United States v. Keogh, supra, 391 F.2d at 146-148.
In support of the first ground, the judge noted what he called the "guarded affidavit" of Mr. Singer, which said only it was his "best recollection" that he had never seen the report of February 26, 1962. In addition, the court cited examples of material turned over to the defense which had not been listed in the clerk's minutes or had not been marked for identification, and pointed to petitioner's failure to submit supporting affidavits by Mr. Singer's associates*fn4 or other trial attorneys.*fn5 Conceding some force in these points, we think them insufficient to support the conclusion. Singer's affidavit was enough to put on the Government the burden of coming forward with proof that the reports had been furnished. It came forward with nothing except Hundley's affidavit which, by urging, apparently in error, that the February 1962 report had been turned over to Referee Bromley, inferentially admitted that it had not been disclosed at an earlier date. We will therefore assume that the defense did not have the February 1962 report until this was unearthed by discovery in the first coram nobis proceeding or the January 1962 report until it was produced during the disbarment hearings.
In United States v. Keogh, supra, 391 F.2d at 146-148, we outlined three categories of cases relating to prosecutorial non-disclosure:
(1) "Where the prosecutor's suppression is 'deliberate,' by which we include not merely a considered decision to suppress, taken for the very purpose of obstructing, but also a failure to disclose evidence whose high value to the defense could not have escaped the prosecutor's attention";
(2) Where the prosecution fails to furnish evidence favorable to the accused upon request; and
(3) "Where the suppression was not deliberate in either of the senses we have included and no request was made, but where hindsight discloses that the defense could have ...