Appeal by the United States from an order of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, dismissing indictment because of government's refusal to disclose identities of informants. Reversed and remanded with directions.
Kaufman, Chief Judge, Smith and Timbers, Circuit Judges.
This appeal marks our third encounter with the prosecution of Fred Fernandez. On February 25, 1971, Fernandez was indicted for his alleged participation in the Christmas Eve, 1970 holdup of the First Federal Savings and Loan Association on Kissena Boulevard in Queens. Since that time the government has made four unsuccessful attempts to convict him, and now it asks us to give it another chance. The first trial resulted in a hung jury; in the second and third trials, judgments of conviction were obtained, both of which were reversed on appeals to this court.*fn1 The fourth attempt never reached trial. The United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, dismissed the indictment because of the government's refusal to disclose the names of two "informants" who had from bank photographs identified a person other than Fernandez as one of the bank robbers. The government's appeal from this order is now before us.*fn2 We reverse and remand with directions.
The very question presented by this appeal was before us in Fernandez II. We saw the issue as one of "'balancing the public interest in protecting the flow of information against the individual's right to prepare his defense.' Roviaro v. United States, 353 U.S. 53, 62, 1 L. Ed. 2d 639, 77 S. Ct. 623 (1957)." On the "public interest" side of the scale was the government's assertion that the informants would be placed in serious danger were their identities disclosed.*fn3 On the "right to prepare a defense" side was the fact that Fernandez was able to question FBI agent Sweeney, and thereby accomplish substantially the same thing that questioning the informants themselves could have accomplished. We held that this balance tipped decidedly toward nondisclosure, and specifically noted that this ruling was to apply at the anticipated fourth trial. 480 F.2d at 738-39.
That trial did not occur. The district court, upon learning certain facts not before this court on the prior appeals, ruled that disclosure was necessary, and dismissed the indictment when the government refused to comply. The new evidence consisted of the identities of the informants*fn4 and an admission by the government that the informants had agreed to talk only upon receiving assurances that they would not be called upon to testify. The district court stated that the individuals were "public officials" and "not the normal type informants," found the claim of danger to be "absolutely incredible" and "farfetched," and concluded that the reason for the government's refusal to disclose was not the possibility of danger, but the "private agreement" with the informants. In addition, the court found that the identities of the informants constituted Brady*fn5 material because the informants would be "two reputable witnesses" whose exculpatory testimony might well "be very persuasive with the jury." Indeed, the court went so far as to say, "If I were defense counsel I couldn't try the case without having this material." Thus, on the basis of new evidence, the district court held the government's assertion of danger to be groundless, and it found that there would be benefit to the defense from having the informants testify personally, as opposed to having an FBI agent testify about their misidentification.
The issue presented to us, therefore, is whether a district court, on remand after appeal, may change the law of the case as established by this court on the basis of new evidence. We are constrained to hold that it may not unless, of course, authorized to do so by the terms of the remand. The rule has been stated as follows:
Where a case has been decided by an appellate court and remanded, the court to which it is remanded must proceed in accordance with the mandate and such law of the case as was established by the appellate court.
1B J. Moore, Federal Practice, para. 0.404 at 571 (2d ed. 1974)(footnotes omitted). In Munro v. Post, 102 F.2d 686, 688 (2d Cir. 1939), this court characterized the doctrine of law of the case as imposing a "duty" on a district court to follow a ruling made by this court at an earlier stage of a case. The Supreme Court has likewise indicated that compliance with an appellate court's prior rulings in a case is a matter of a trial court's duty, not its discretion. In re Sanford Fork & Tool Co., 160 U.S. 247, 255, 40 L. Ed. 414, 16 S. Ct. 291 (1895); Ex parte Sibbald v. United States, 37 U.S. (12 Pet.) 488, 492, 9 L. Ed. 1167 (1838). And in Banco Nacional de Cuba v. Farr, 383 F.2d 166, 177 (2d Cir. 1967), cert. denied, 390 U.S. 956, 19 L. Ed. 2d 1151, 88 S. Ct. 1038 (1968), we noted that the law of the case (as embodied in the Supreme Court mandate rule) "prevents the lower court from considering newly discovered evidence." We must therefore reverse the order of the district court and remand for further proceedings.
That does not finally dispose of the issues, however. An issue decided on a prior appeal is not foreclosed with all the finality of res judicata when the case comes back to this court. Although the district court may not change our mind for us, we may ourselves do so.
The federal doctrine of law of the case merely expresses the practice of federal courts generally to refuse to reopen what has been decided, not a limit to their power. The doctrine embodies a salutary rule of practice that when a federal appellate court has established a rule of law for the case at bar it will not, on a successive appeal, depart therefrom in deciding the same issues, except for cogent reasons. In brief, the doctrine does not rigidly bind the appellate court, but is ...