Appeal by Defendants Alfred Brawer, Ralph Ignomirello and Wassil Kreshik from judgments of conviction for conspiracy and transportation of stolen United States Treasury Bills. The convictions were affirmed, subject to remand to the United States District Court for a hearing and further findings. 482 F.2d 117 (1973). Upon this Court's original opinion, the expanded record made by Judge Pollack and upon his findings and conclusions, the judgments of conviction are affirmed. Decided June 22, 1973. Remanded for reconsideration. Decided post remand May 3, 1974.
Moore, Hays and Feinberg, Circuit Judges.
Upon the appeal in this case, 482 F.2d 117 (2d Cir. 1973), both in brief and on argument, appellants Alfred Brawer, Ralph Ignomirello and Wassil Kreshik claimed for the first time that the Government had improperly suppressed exculpatory evidence which could have been used to impeach the key government witness, Maucelli. In response the government conceded that a post-trial examination of its files revealed that in April 1969 certain statements had been taken from three Canadians, Welsch, Bubic and Riel, allegedly involved in the attempt to sell the Treasury Bills, the subject of the prosecution, which statements had not been made available to the appellants. Accordingly, to make certain that non-disclosure of the April 1969 statements, admittedly in the government's possession, was neither a violation of appellants' rights, nor a violation of the prosecutor's obligations, under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), we remanded the case to the District Court to determine "after reading and considering such material as the government may have had in its files" "whether the government improperly denied appellants access to the material," or otherwise stated whether the material was of such an exculpatory nature that it "in any reasonable likelihood [would] have affected the judgment of the jury." Napue v. Illinois, 360 U.S. 264, 271, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959). Therefore, since "absent a finding of improper suppression of material evidence" we believed that the evidence justified affirmance of the convictions, we remanded to "await both a ruling by the district court on the Brady issue and the expanded record before making final disposition of this appeal."
Judge Pollack has now submitted his findings and opinion after a most thorough hearing at which the parties submitted not only documentary proofs -- in particular the April 1969 statements -- but also certain grand jury minutes and handwritten notes of Assistant United States Attorneys. In addition, he heard the testimony of appellant Kreshik.
Parenthetically, it may be said of Kreshik that this Court had originally written that "The record tends to support Kreshik's contention [namely, that he had no knowledge of, or involvement in, the events subsequent to his delivery of the Bills to Brawer] * * *" and that as to guilty knowledge it was "a close question as regards Kreshik." These views are substantially modified by Judge Pollack's findings, after hearing Kreshik's testimony in the post-trial hearing, that his testimony as to knowledge (or, better, lack thereof) of the Canadians and his connection with the stolen Bills was "plainly incredible." Kreshik did not testify at the trial. His post-trial hearing testimony evoked the following comments from Judge Pollack:
The demeanor evidence and the reasonable inferences to be drawn from his assertions and denials, in the light of all the facts and circumstances disclosed by the trial and hearing records, render his testimony wholly unworthy of belief on his oft repeated assertion in this Court and in the Court of Appeals that he lacked guilty knowledge of who was involved, what was going on and what he was doing to facilitate the criminal venture.
In addition to taking the evidence adduced at the hearings, the Court has read and considered such material as was contained in the government files, as well as certain other documents, to be discussed at length below, which purport to bear in some way upon the characterization and relevance vel non thereof.
Based on the foregoing, and for the reasons indicated hereafter, the Court finds and reports that the 1969 statements and data referred to by the Court of Appeals in no wise fit the description of "exculpatory evidence" as defined in Brady and its progeny.
Little useful purpose would be served in restating Judge Pollack's exhaustive (69 pages) findings and his well-grounded conclusions except as they relate to the April 1969 statements (the purpose of the remand). 367 F. Supp. 156 (S.D.N.Y. 1973).
On the trial, defendants Brawer and Ignomirello knew of the three Canadians and their participation in the attempted sale. Full opportunity to obtain their testimony, if it would have been beneficial, was available. Furthermore, Kreshik's guilt was not dependent upon the Canadians' testimony. "The Canadians would not have aided Kreshik because, as everyone agrees, Kreshik did not deal directly with them." 367 F. Supp. at 166 (Pollack Opinion, p. 30).
As to the 1969 statements themselves, since appellants' claim of inconsistency centers around the discount and rate thereof (65%-90%) at which the stolen Bills were allegedly offered, Judge Pollack found that:
The 1969 statements of the Canadians were not in ...