Appeal from order, United States District Court for the District of Connecticut, Clarie, J.
Waterman, Friendly and Mulligan, Circuit Judges.
This is an appeal from the denial of motions pursuant to 28 U.S.C. § 2255 and Rule 33 of the Federal Rules of Criminal Procedure, in which the petitioner Robert Wayne Grant sought the vacation of his judgment of conviction and the grant of a new trial. For the reasons developed below, we believe that the motions should have been granted. Accordingly, we reverse the district court's denial of the motions and order that the judgment of conviction be vacated and a new trial be granted.
Petitioner-appellant Grant was one of five persons originally jointly indicted for the September 8, 1970 armed robbery of the East Hartford branch of the Glastonbury Bank and Trust Company. Subsequently this initial indictment was dismissed and, on December 14, 1970, only the petitioner was reindicted. In a one-count indictment he was charged with being an armed man who single-handedly had entered and robbed the bank. In the jury trial which followed Grant was found guilty and received a sentence of fifteen years in prison. The judgment of conviction was summarily affirmed upon appeal.
From our vantage point the Government's case against petitioner at trial does not appear to have been overwhelming. There were two principal offerings upon which the Government attempted to substantiate its theory that Grant was the lone gunman who had robbed the bank. First of all, it was shown that immediately after the robbery Grant and four associates, one of whom was an Anthony Greenhalgh, to whom we shall return shortly, were in possession of a large sum of money under circumstances which might be characterized as suspicious. Secondly, the Government offered the testimony of three bank employees who had been eyewitnesses to the commission of the crime. Of the three, however, only one, bank teller Karen Hull, was able to make a positive identification of Grant as the perpetrator.
Grant maintained at trial, as he continues to maintain now, that he was not the armed man who had robbed the bank. In support of this position, Grant's attorney emphasized the gross discrepancies between Grant's physical characteristics and those of the armed robber, as the latter's composite features were developed through the testimony of the eyewitnesses and the pictures taken by the bank camera while the robbery was in progress. The robber was a large man, standing six feet to six feet two inches in height, weighing over 200 pounds, and having a "muscular back." He held his pistol in his left hand throughout the course of the holdup and would therefore appear to be left-handed. Grant does not fit this description of the robber. Grant is somewhat shorter, much lighter in weight, and less muscular than the man who was described as the robber of the bank. Moreover, Grant is right-handed. Although Grant's attorney argued to the jury that Grant could not conceivably have been the man described by the witnesses, he did not go so far as to suggest who, if not Grant, the armed robber might have been.
Despite the Government's argument to the jury that Grant was the armed robber, this ultimate trial position did not apparently reflect the prosecution's initial theory of the case. Before trial the Assistant United States Attorney in charge of the case had offered Grant immunity from prosecution if he would cooperate with the Government by testifying that Anthony Greenhalgh, one of the four people with whom Grant had been arrested, was in fact the armed robber. The Government's apparent belief that it was Greenhalgh, and not Grant, who had committed the crime charged in the indictment rested on more than idle speculation, for in every obvious respect Greenhalgh matched the physical description of the robber. Grant refused the offer of immunity in exchange for implicating Greenhalgh, went to trial, and was convicted.
Startled by the jury's verdict, a distraught Grant immediately arranged to speak to agents of the Federal Bureau of Investigation. The agents filed a report of the ensuing interview and, according to the report, Grant, who did not sign a formal statement, gave a comprehensive explanation of the events surrounding the robbery of the bank. Significantly, Grant confirmed the suspicions of others that Greenhalgh, and not he, had been the lone armed man who had been inside the bank. In his statement, Grant admitted being with Greenhalgh immediately before the robbery and driving him away from the bank afterwards. Except for this isolated moment of candor, however, Grant has steadfastly refused to give accusatory testimony against Greenhalgh. Indeed, at the § 2255 hearing before Judge Clarie, Grant resisted the efforts of his present attorney, Federal Public Defender Santos, to persuade him to name Greenhalgh, although Santos there freely pursued the "Greenhalgh theory," and has continued to do so in his brief and oral argument before us. Presumably, then, Grant does not now object to his attorney's use of the "Greenhalgh theory" but instead prefers that that thesis be established by means other than by his own direct incriminating testimony.
On this appeal, Grant raises three grounds which he maintains require that his conviction be vacated and that he be granted a new trial. In brief, his first claim is that, after he requested it, the Government failed to provide him with exculpatory information which, under the doctrine of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), it was required to produce and to provide to him. His second "claim" is that Anthony Greenhalgh, and not he, was the armed bank robber. And he asserts as a final argument that his privately retained trial attorney was laboring under a pernicious conflict of interest which deprived him of his right to effective assistance of counsel. We have already related some of the reasons for believing that it could well have been Greenhalgh, rather than Grant, who was in the bank.*fn1 There are other indications which support this view.*fn2 Despite this, the defense that Greenhalgh could have been the perpetrator of the crime was not raised at Grant's trial. Of course the claim that his trial attorney had a conflict of interest is an attempt to explain why the defense did not rely upon the "Greenhalgh theory" at trial.*fn3 A decision favorable to Grant on this second point would require us first to decide in his favor on the third. However, the merit which we discover in Grant's first claim, his argument based upon the teaching in Brady v. Maryland, supra, obviates the need to reach the argument based upon the claim of the ineffective assistance of counsel.
We hold that the Government's failure upon pretrial request fully to disclose information which could have led trial counsel to uncover additional exculpatory evidence so pertinent that its presentation at trial might have induced a reasonable doubt of defendant's guilt in the minds of the jurors constituted a violation of the rule of Brady v. Maryland, supra. This governmental omission requires that we vacate the judgment of conviction and order that a new trial be granted.*fn4
The Brady claim, which more accurately involves two separate but related claims, concerns the possible connection of one John Patrick Walsh with the robbery of the East Hartford branch of the Glastonbury Park and Trust Company. One of the eyewitnesses to the crime, bank manager Harold Field, alerted the local East Hartford police that after the robber left the bank Field had observed a "dark blue car possibly a 1965 Chevrolet, last three numbers are 121, letters unknown," leaving the area. A local police officer was ordered "to look over '[the] area for a beat up Chevrolet car, dark blue color, letters of registration was not gotten but the numbers were 121 Connecticut as the person that held up the bank was seen driving out of the bank yard in this car. '" The FBI was also involved in the search for the supposed robber's car. FBI agents Stiles and Santacroce, together with Police Detective Flaherty, asked two local police officers whether they were familiar with a "Joseph Walsh." One of the local officers replied that he was, and this officer was then told that a blue 1965 Oldsmobile, possessing only one license plate, was parked in the wrong direction in front of a house on a nearby street. Proceeding to investigate, the officers discovered it. It was of 1965 vintage and its license number was HV-1214. The officer then rang the doorbell of the house. Although this investigation was being conducted in the middle of the day, the owner of the vehicle, John Patrick Walsh, was found at home there. When questioned by the officers he admitted that the automobile was his, but he became decidedly belligerent when the officers were presumptuous enough to ask him where he was employed and why he was not at work.
It is conceded by the Government that, although the investigation just described was carried out by the local officers, the FBI agents who were also assigned to investigate the bank robbery were aware of the information developed by the East Hartford police concerning Walsh. But, most significantly, Walsh's connection to the case did not cease with this preliminary investigation. The FBI subsequently displayed a picture of Walsh, who, by the way, had previously been in trouble with the law, to bank teller Barbara Harris. The photograph was presented in a "spread" which included pictures of Grant and nine other men. The bank teller selected Walsh, and not Grant, as the person most closely resembling the bank robber. Incidentally, it is reasonable to believe that the FBI must have known that Walsh's physique approximated the robber's for Walsh's height and weight had been marked on the back of the picture exhibited to the bank teller.
Eight months prior to trial the defense moved for the production of all evidence favorable to the accused. The Government's response to the request was a revelation that Miss Harris "was not able to pick a photograph of this defendant [Grant] from a spread of fourteen photographs, as the man who robbed the bank." What the Government deliberately, and inexplicably, did not disclose was that Miss Harris had selected Walsh's picture as the photo most resembling the robber. After Miss Harris testified at trial, the FBI file which revealed her selection of Walsh was, in compliance with the Jencks Act, turned over to defense counsel. This file, however, contained none of the other information regarding the significant coincidences uncovered in the investigation of Walsh. The Government asserts that this additional information ...