decided: April 29, 1975; As Amended May 9, 1975.
Appeal from an order of the District Court for the Southern District of New York, Arnold Bauman, Judge, denying defendant's motion for a new trial. The Court of Appeals, Murray I. Gurfein, Judge, affirmed the district court's finding that the government's failure to supply the defendant with two items of evidence useful for impeaching a government witness was inadvertent and its holding that the inadvertent suppression did not warrant granting defendant a new trial. The court also held that the witness' perjury concerning his own past misconduct of a cumulative impeaching nature was neither attributable to the government nor so crucial to the issues in the case as to require a retrial.
Friendly, Timbers and Gurfein, Circuit Judges.
Robert Leuci, a corrupt New York City police officer, acted in an undercover capacity for the United States Attorney for the Southern District of New York. In that capacity he obtained evidence and testified against Edmund Rosner, a lawyer, who was convicted of bribery, obstruction of justice and conspiracy on December 5, 1972. After the conviction had been affirmed by this court, United States v. Rosner, 485 F.2d 1213 (2 Cir. 1973), and while a petition for certiorari was pending, appellant Rosner filed a motion for a new trial on March 19, 1974 on the ground of newly discovered evidence to the effect that Leuci had lied at the trial concerning the extent of his own past criminal misconduct. F.R.Cr.P. 33. At the trial, Leuci had admitted his complicity in corrupt dealings on four separate occasions with criminal defendants or subjects of investigation, but had denied any other such involvement. He had testified frankly that he did not expect to be prosecuted.
The thrust of the new trial motion was that Leuci had furnished narcotics to informants and others, acts which he had denied at trial. During the pendency of the motion on April 17, 1974 Leuci admitted to the United States Attorney's office that he had committed many acts of criminal misconduct in addition to those he had revealed at trial, among them furnishing narcotics on two occasions to an informant, Richard Lawrence.
On June 10, 1974, after being informed by the Solicitor General that Leuci had perjured himself in concealing additional criminal activities, the Supreme Court denied certiorari without prejudice to consideration by the District Court of the motion for a new trial. Rosner v. United States, 417 U.S. 950, 41 L. Ed. 2d 672, 94 S. Ct. 3080 (1974). Judge Arnold Bauman held a hearing, thereafter, in July 1974, and, in an opinion dated August 15, 1974, denied the motion for a new trial.*fn1 This appeal followed. The primary issue posed is whether evidence solely of an impeaching nature that an important government witness had in fact committed crimes which at trial he denied committing requires us to order a new trial.
A second, related issue is also presented. Rosner contends that the government prosecutors were aware of two specific pieces of evidence tending to implicate Leuci in criminal activity, evidence which they did not turn over to the defense before trial and which, if turned over to the defense, would have been useful for impeaching Leuci's credibility. He also contends that the prosecution withheld this evidence and additional impeachment evidence which came to light after trial, during the pendency of appellant's new trial motion.
To understand the issues presented by this appeal, it is necessary to advert briefly to the facts proved at trial.
In October 1971 Rosner was under indictment along with Nicholas De Stefano in a case charging subornation of perjury. Leuci, acting in an undercover capacity, approached De Stefano and Nicholas Lamattina and offered to provide through a supposed contact in the United States Attorney's office information about cases pending in the District. The matter of the Rosner indictment came up first during a meeting of Leuci, De Stefano and Dominick Marcone, another target of investigation, on September 30th.
Rosner eventually came into the negotiations and participated in the payment of several thousand dollars to Leuci in exchange for the statements of prospective witnesses and grand jury minutes in his case. There were five alleged separate payments over a period of three weeks, each of which formed the basis of a bribery charge. Rosner was acquitted on two of these charges relating to payments occurring on October 4th and October 8th and was convicted of three others which involved payments occurring on October 12, 13 and 19. He was also convicted of conspiracy and obstruction of justice. Leuci testified for the government. It is agreed that he met Rosner five times. Recordings were made of the meetings on October 13th, 15th and 19th on a tape recorder concealed on the person of Leuci. The earlier meetings of October 4th and 8th were not tape recorded.
Rosner took the stand at his trial, and admitted that he had made the payments alleged on three occasions and that he had received the witnesses' statements and the grand jury minutes, as alleged, but he contended that he had been entrapped. De Stefano and Lamattina pleaded guilty just before the trial began, but neither was called as a witness by either side. There is no doubt that Leuci perjured himself on the extent of his own past misconduct during his years on the police force.
Although appellant does not claim that the government actually knew before trial the extent of Leuci's criminal activities, he does contend that there were two specific items of evidence in the possession of the Government that should have been disclosed to the defense. One was the so-called Leuci-Lawrence tape and the other the so-called Goe Memorandum.
The Leuci-Lawrence tape came about as follows. Leuci had been with the Knapp Commission where he worked with Nicholas Scoppetta (later an Assistant United States Attorney), who was at that time one of the Commission's lawyers. In March of 1971, Scoppetta ordered Leuci to investigate the involvement of Richard Lawrence, previously identified as an informant of Leuci's, in a homicide in the Bronx. On March 29, 1971, during this investigation, Leuci tape-recorded a conversation with Lawrence, which yielded no information about the homicide, but can be read as suggesting that both Leuci and Lawrence had illegally seized narcotics following arrests and that Lawrence had been permitted to retain some of the narcotics. Scoppetta had listened to this tape in connection with the homicide investigation and had taken it with him when he transferred to the office of the United States Attorney. The tape was not disclosed to the defense prior to the trial and only came to light during the final days of the new trial hearing when Leuci made an inadvertent reference to it.
The District Court found that the Leuci-Lawrence conversation was "neither as unequivocally inculpatory as Rosner claims, nor as exculpatory as the Government argues." He found unequivocally, however, that during the course of the conversation "Leuci demonstrates a familiarity with procedures whereby Lawrence could obtain 'packages' of heroin resulting from arrests."
The second instance of Governmental suppression alleged by Rosner involves the so-called Goe Memorandum. On July 13, 1972 Leuci was interviewed in the office of the United States Attorney by two agents of the Drug Enforcement Administration (DEA), Robert Goe and Joseph Gately. He admitted to them that in 1964 or 1965 he and three other Government agents had conducted a warrantless search for drugs, during which they had come upon and divided equally $200 in cash. This incident was recorded in what came to be termed the "Goe Memorandum." In early 1971, Leuci had made a separate admission concerning the same event to another DEA agent. Assistant United States Attorney Shaw had learned about the incident shortly thereafter. None of the Government prosecutors who participated in the trial were aware of it until April 9, 1974.
In order to accommodate conflicting policy considerations, the standards governing a motion for a new trial based on evidence available to the Government before trial vary according to the Government's conduct relevant to the information. If the Government deliberately suppresses evidence or ignores evidence of such high value that it could not have escaped its attention, "a new trial is warranted if the evidence is merely material or favorable to the defense." United States v. Kahn, 472 F.2d 272, 287 (2 Cir. 1973), cert. denied, 411 U.S. 982, 36 L. Ed. 2d 958, 93 S. Ct. 2270 (1973). However, when the Government's failure to disclose is inadvertent, a new trial is required only if there is "a significant chance that this added item, developed by skilled counsel as it would have been, could have induced a reasonable doubt in the minds of enough jurors to avoid a conviction." Id.; United States v. Miller, 411 F.2d 825, 832 (2 Cir. 1969); see United States v. Keogh, 391 F.2d 138, 147-48 (2 Cir. 1968).
The trial judge, after considering evidence on this point presented at a hearing on Rosner's new trial motion, found the Government had not deliberately suppressed either the Goe Memorandum or the Leuci-Lawrence tape. He also found that neither piece of evidence was of such high value that it could not have escaped the prosecutor's attention. He pointed out, with respect to the Goe Memorandum, that Leuci had admitted on the stand that on four occasions between 1966 and 1968, he had sold information to targets of narcotics investigations, for which activities he had received approximately $6000 in payoffs. In comparison to such activity, Leuci's participation in an illegal entry and a $50 theft was " de minimis." The trial judge also concluded that the Leuci-Lawrence tape was ambiguous enough so that its "dubious value could readily have escaped a prosecutor's attention."
These are findings of fact by the judge who had presided at the trial and who had an opportunity to assess the credibility of the witnesses at the hearing. In the circumstances, our review is governed by the principle enunciated in United States v. Johnson, 327 U.S. 106, 111, 66 S. Ct. 464, 90 L. Ed. 562 (1946):
". . . it is not the province of this Court or the circuit court of appeals to review orders granting or denying motions for a new trial when such review is sought on the alleged ground that the trial court made erroneous findings of fact. [citing cases]. While the appellate court might intervene when the findings of fact are wholly unsupported by evidence [citing cases] it should never do so where it does not clearly appear that the findings are not supported by evidence."
We have reviewed the testimony at the hearing and must conclude that the trial court's findings are supported by evidence and are not clearly erroneous. Our further review therefore proceeds under the standard enunciated above to govern situations of inadvertent nondisclosure.
The question presented, then, is whether there is a significant chance that skilled counsel could have developed the evidence of Leuci's criminality contained in the Leuci-Lawrence tape and the Goe Memorandum to impeach his credibility to the extent that a juror would be led to reasonable doubt about Rosner's guilt. We emphasize that the standard demands more than the possibility of a different result upon retrial. Any piece of new evidence might, in theory, alter the course and outcome of a trial, but a case is not automatically remanded whenever such new evidence emerges. An appellate court must weigh whether or not there is in reality a "significant chance" that the disclosure would have induced a reasonable doubt in the minds of enough jurors to prevent a conviction. United States v. Pfingst, supra, 490 F.2d 262 at 277; United States v. Kahn, supra, 472 F.2d at 287-89; United States v. Mayersohn, 452 F.2d 521, 526-27 (2 Cir. 1971); United States v. Bonanno, 430 F.2d 1060, 1063-64 (2 Cir.), cert. denied, 400 U.S. 964, 27 L. Ed. 2d 384, 91 S. Ct. 366 (1970); United States v. Miller, supra.
We are not dealing here with Government nondisclosure of direct, exculpatory evidence. Cf. Grant v. Alldredge, 498 F.2d 376, 381 (2 Cir. 1974). Nor are we dealing with perjury and Government suppression of information that vitally concerns the motivation of the witness, such as evidence about consideration promised him by the prosecutor for his testimony. Cf. Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972); Napue v. Illinois, 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959); United States v. Sperling, 506 F.2d 1323, 1333-34 (2 Cir. 1974); see United States v. Butler, Slip No. 74-2201 (9 Cir. December 18, 1974). In this case there is no question of a concealed promise of immunity: Leuci told the jury that he did not expect to go to jail for his crimes.*fn2
Nor, finally, are we dealing with a case as unusual as United States v. Miller, supra, where the Government had inadvertently failed to disclose the fact that the Government's primary witness, upon whose identification of the defendant the case depended, had been hypnotized during his earlier interrogation.
The sole issue before us is whether additional evidence tending further to impeach the credibility of a witness whose character had already been shown to be questionable, admissible only in the court's discretion, might have induced a juror who had no reasonable doubt of Rosner's guilt, to have such doubt. The District Judge, who had heard the testimony and received other evidence at trial, applying the correct standard, concluded that the additional impeachment information contained in the Leuci-Lawrence tape and the Goe Memorandum would not have "induced a reasonable doubt in the minds of enough jurors to avoid a conviction."
As we have seen, Leuci's admitted perjury related to his own misconduct, independent of the circumstances of this case, and not to any element of the substantive offenses with which Rosner was charged. Moreover, the prosecution's case rested on far more evidence than simply Leuci's testimony.*fn3 The Rosner case was unusual in that the defendant admitted his technical guilt of the elements of the offenses charged. Cf. United States v. Bonanno, supra, 430 F.2d at 1061, 1064. The appellant took the stand at the trial and confessed to having paid bribes to a person purportedly employed by the United States Attorney in return for obtaining documents to which he was not entitled, namely, statements of witnesses and grand jury testimony. His sole defense was that he had been entrapped by the Government and the sole support for that defense was his own testimony.
In brief, Rosner contended that the Government had sent Leuci out to frighten him with stories that he was being investigated for the murder of Hernandez, a witness in his perjury case, and that he was soon to be remanded to custody. In addition, he claimed that Leuci told him through De Stefano that he was being investigated for fixing a case brought against one Martinez; a grand jury was at the time considering evidence on that "fix" against a bail bondsman named Marcone. These revelations, appellant testified, made him sick and overpowered his judgment so that he succumbed to Leuci's offer to provide him with documents from the United States Attorney's office.
Rosner asserts that the overcoming of his better judgment occurred at the first two meetings between him and Leuci on October 4 and 8. These two meetings, which were also attended by De Stefano and Lamattina, were not tape recorded by Leuci. In basing his entrapment defense solely on the events of these meetings, Rosner put his own credibility on the line for the jury to weigh. He did not call De Stefano or Lamattina as witnesses in his support, perhaps on the assumption that they might not give favorable testimony in the light of their own involvement. He based his defense on his own account of the two meetings.
Rosner's present contention is, in effect, that further evidence tending to impeach Leuci's credibility would have induced a juror to give more credit to Rosner's own testimony in support of his entrapment defense.
It is true that portions of Leuci's testimony contradicted Rosner's account of these two meetings in ways that tended to undermine the entrapment claim and to suggest Rosner's predisposition to commit the offenses charged. For example, Rosner testified that Leuci told him on October 4 that the United States Attorney was investigating Rosner for the disappearance and possible murder of Hernandez. Earlier, Leuci had testified on cross-examination that he might have discussed the witness' disappearance with Rosner on October 4, but did not testify that he told Rosner that the Government believed Rosner might have had the man killed.
Leuci also testified that on October 4, Rosner had asked him specifically for 3500 material; Rosner denied asking for anything except whatever information Leuci happened to hear discussed around the United States Attorney's office. Finally, Rosner and Leuci differed as to whether Rosner had bribed Leuci at this first meeting.
With regard to October 8, the major difference between the two men concerns the conversation leading up to Rosner's decision to pay money to Leuci for the information he had supplied. Leuci testified in effect that the only questions were how much and when he would be paid; Rosner testified that he had been browbeaten into paying by De Stefano, Lamattina and Leuci. Leuci testified that Rosner asked him for more information on grand jury witnesses; Rosner denies it. Leuci testified that Rosner took with him a copy of the draft indictment against Marcone; Rosner denies taking it.
These conflicts are not insignificant, but it is easy in considering them to overlook the total context of the trial. When Leuci testified, Rosner was not confronted by a witness of assumed moral rectitude whose collapse from virtue might destroy the foundation of the prosecution case. Cf. United States v. Gordon, 246 F. Supp. 522, 525 (D.D.C. 1965) aff'd after remand and new trial, 127 U.S. App. D.C. 343, 383 F.2d 936, 938 n. 2 (D.C. Cir. 1967), cert. denied, 390 U.S. 1029, 88 S. Ct. 1421, 20 L. Ed. 2d 287 (1968). Leuci was a confessedly corrupt policeman, a middleman in bribes and shakedowns, who frankly revealed that he did not expect to be prosecuted for his misdeeds.
Moreover, the jury seems to have viewed Leuci's testimony with skepticism. On the two bribery counts arising from the earlier meetings, where Leuci's word was the only evidence for conviction, the jury acquitted Rosner. While one cannot extrapolate from jury verdicts with mathematical certainty, it is nevertheless significant that Rosner was convicted on counts that were supported by tape recordings and acquitted on ...