UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: November 6, 1974.
UNITED STATES OF AMERICA, APPELLANT,
FRED FERNANDEZ, APPELLEE
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.
SMITH, Circuit Judge:
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 addressed to its good sense, and the court will depart from its prior legal pronouncements when the circumstances of the case warrant.
1B J. Moore, Federal Practice, supra, para. 0.404 at 573-74 (footnotes omitted).
This has long been the Supreme Court's view on the subject,*fn6 and it finds ample support in our cases as well. Johnson v. Cadillac Motor Car Co., 261 F. 878 (2d Cir. 1919).*fn7 Johnson's interpretation of the law of the case doctrine was reaffirmed in Perrone v. Pennsylvania R.R., 143 F.2d 168, 169 (2d Cir. 1944). See also, Petition of Kinsman Transit Co., 388 F.2d 821, 825 n. 9 (2d Cir. 1968).*fn8
Fernandez II itself intimated that an appellate court can revise its ruling made in a prior appeal on the basis of new evidence. In Fernandez I, we held that a photographic identification was conducted under unnecessarily suggestive circumstances, but indicated that it appeared quite clear that the witnesses who made those identifications would be able to make in-court identifications free of taint. In Fernandez II, on the basis of evidence that had not been available on the prior appeal, we noted that the latter proposition was "considerably closer" than we had previously thought. 480 F.2d at 736.*fn9
To be sure, the discretion of a court to review its earlier decisions is one which should be exercised sparingly, so as not to undermine the salutary policy of finality of adjudication that is the basis of the law of the case rule. See, Johnson, supra, at 886 ("injustice" and "unsound" principle of law led to departure from rule); Hammond-Knowlton v. United States, 121 F.2d 192, 205 (2d Cir.), cert. denied, 314 U.S. 694, 62 S. Ct. 410, 86 L. Ed. 2d 555 (1941) ("seriously incorrect" earlier rule). Cf., Petition of United States Steel Corporation, 479 F.2d 489, 494 (6th Cir. 1973). But the district court's emphatic finding that the danger to the informants was, to say the least, overstated, coupled with the fact that the sealed exhibit which formed the basis for the district court's decision was not before us in Fernandez II, prompts us to reconsider our earlier holding. Upon examination of the sealed exhibit,*fn10 we are in agreement with the district court that the government's claim of danger is doubtful. The district court's description of the individuals as "public officials" and "not the normal type informants" is quite accurate, and we suppose that skilled defense counsel could use their status in the community in order to lend weight to their desired testimony identifying the robber as one other than Fernandez in terms of credibility -- more so, certainly, than if they were the somewhat sleazy individuals generally thought of as "the normal type informants."*fn11 This extra weight might be all the more helpful at this stage of the proceedings since another eyewitness to the robbery who said that the participant alleged to be Fernandez was 5feet6inch tall (Fernandez is 6feet) died after the second trial.*fn12
There is before us no convincing showing of substantial danger, and since these individuals do not provide a continuing source of information to the government, there is little occasion in this case to consider a Roviaro balance. Their testimony would be exculpatory, and since the defense may be able to make something of it in view of their apparent credibility, their identities should be disclosed as Brady material. United States ex rel. Meers v. Wilkins, 326 F.2d 135 (2d Cir. 1964). To the extent that Fernandez II is to the contrary, it should not be treated as controlling on remand; rather the trial court should again direct the government to disclose the informants' identities. If the government persists in its refusal, the indictment should be dismissed.
Reversed and remanded, with directions.
Reversed and remanded, with directions.