The opinion of the court was delivered by: BRIEANT
On April 18, 1975, the jury returned guilty verdicts on each of three counts against the defendant William Sangemino, a Major in the United States Army Reserve. The three counts charged the defendant with conspiracy to defraud the United States, in violation of 18 U.S.C. § 371; with having accepted a bribe as a public official of the United States, in violation of 18 U.S.C. § 201(c); and with having made a material false statement before the grand jury, in violation of 18 U.S.C. § 1623. At the times relevant here, defendant was on active duty status, assigned to the New York City Headquarters of the Selective Service System, in the capacity of "assistant chief of the field division" and later as Manpower and Training Division Chief. (Trial transcript ["Tr."] pp. 813-14). His duties, as described by him and his superior, included responding to inquiries from Selective Service registrants, the general public and public officials, lecturing to organizations and school groups, and handling relations with dignitaries concerned with Selective Service operations in New York City.
On June 30, 1975, defendant, represented by new counsel, moved for an order, pursuant to Rule 33, F.R.Crim.P., granting him a new trial. Defendant, by his new counsel, contends that a new trial should be granted "in the interest of Justice" because the defendant was deprived of the effective assistance of counsel in that his trial counsel failed to represent him competently. Defendant also contends that he is entitled to a new trial because the Assistant United States Attorney failed to disclose exculpatory material, in violation of the rule of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
We turn first to defendant's claim of ineffective assistance of counsel. A determination of the effectiveness of defense counsel's representation cannot be made in the abstract. The measure of counsel's effectiveness must be evaluated in the context of the case as it unfolded before the jury. United States v. Katz, 425 F.2d 928 (2d Cir. 1970). There are many criminal cases in which even the most persuasive advocate or the most adept practitioner cannot prevail. Against the strength of the prosecutor's case, even the most able defense counsel may be unable to dispel the image of the smoking gun, or silence the ringing testimonial accusation of a victim, which becomes set in the minds of the jurors. The appropriate way to begin our inquiry, therefore, is by examining the strength of the prosecution's case. United States ex rel. Marcelin v. Mancusi, 462 F.2d 36 (2d Cir. 1972), cert. denied, 410 U.S. 917, 93 S. Ct. 977, 35 L. Ed. 2d 279 (1973).
A significant portion of the Government's case was introduced through the testimony of an unindicted co-conspirator, Nathan Lemler. Lemler testified that he had been retained by young men or their parents in 401 cases to provide assistance in obtaining Selective Service deferments, or compassionate discharges or reassignments from the armed forces. As to 400 of these, he says he succeeded.
Lemler first met Major Sangemino in 1968 in Sangemino's office when, in connection with a college and graduate school placement service Lemler operated, he made an innocuous inquiry of defendant at Selective Service headquarters in Manhattan. Sangemino answered the inquiry in a manner considered helpful by Lemler. Lemler testified that he then said to Sangemino that he would like to make a contribution to Sangemino's favorite charity, and placed three $100.00 bills in a two-tiered mail basket on Sangemino's desk. It was Lemler's testimony that Sangemino escorted him to the elevator, with his arm around Lemler's shoulder, and said that if Lemler ever had a Selective Service or military problem, he was certain that he could handle it. The Government presented its case against Major Sangemino by focusing on five of Lemler's cases.
Lemler testified in detail about the charades he orchestrated to obtain a compassionate reassignment to stateside duty for Major Gerald Weiss, and a compassionate discharge from the Army for David Zweibel. In both instances, Lemler testified that, with the advice of Major Sangemino, a close member of the soldier's family staged a fraudulent suicide attempt and was, thereafter, temporarily confined at South Oaks Mental Hospital on Long Island, New York under the care of Dr. Teitelbaum, a psychiatrist named as a co-conspirator. Both scenarios achieved their desired results of relieving the soldiers of the possibility of assignment to duty in Vietnam. Lemler testified that he paid Sangemino $1,000.00 or $1,200.00 for his helpful advisory role in the Weiss case, and $800.00 for his part in the Zweibel case.
Lemler testified that a similar scenario had been staged for the benefit of Lieutenant Joseph Petro. It was arranged with Dr. Teitelbaum to invent a history of emotional disorders for the Lieutenant's mother; thereafter, she was admitted to South Oaks as a patient of that psychiatrist. Lemler failed in this attempt to obtain a discharge or reassignment for Petro. Lemler testified that he paid Sangemino $1,000.00 in connection with this attempt. Lemler testified that, when he was requested by Petro's parents to make a second attempt, he consulted with Sangemino who arranged for a conference between Lemler and Lieutenant Petro, and a Colonel Nicholson at the Pentagon. Sangemino provided Lemler with his business card with a note of introduction written on the back. Lemler testified that Sangemino requested an additional payment because the handling of this case "was an expensive situation upstairs." (Tr. p. 365).Colonel Nicholson revealed that a compassionate reassignment would not be forthcoming because Lieutenant Petro, a patriot, unbeknownst to Lemler, Sangemino or Petro's parents, had requested overseas assignment. Lemler testified that the Petro case was his lone failure, out of the 401 draft and military cases for which he had been retained.
Lemler also testified that he had been retained by Mrs. Leonora Resnick to place her son Edward in medical school and/or to obtain a draft deferment for him.
Lemler testified that he had placed Edward Resnick in medical school in Barcelona, Spain but that Resnick remained there only one week. Resnick was called for a pre-induction physical examination for which he failed to appear. When Resnick was called a second time, Lemler telephoned Sangemino who told Lemler to come to his office. At a meeting in Sangemino's office, Sangemino gave Lemler his personal business card, with a note written on its reverse side and initialed by defendant, for Resnick to present at the Armed Forces Entrance Examination ["AFEE"] Station to which he was to report for his physical. The note (Government's Exhibit 4) reads:
Please call me about Resnick
Edward Resnick failed his pre-induction physical. According to Lemler's testimony, he paid Sangemino $1,500.00 in connection with Edward Resnick's case.
Lemler testified about his involvement in the case of Richard Falcoff. After consulting with Sangemino, Lemler had Falcoff visit a Dr. Wesolowski to arrange for there to be found some physical defect that would entitle Falcoff to a medical deferment. Lemler testified that, at first, they had discussed seeking a medical deferment because of a polynodal cyst, but later it was decided that the grounds would be epilepsy. Falcoff had previously been examined at an AFEE Station in Louisville, Kentucky and had been disqualified with the recommendation that he be recalled in one month. Falcoff was not recalled because it was subsequently determined that his draft lottery number would not be reached during that calendar year. Although Lemler did not testify further regarding the services he or Sangemino provided in the Falcoff case, Lemler stated that he made two payments to Sangemino in connection with this case totalling $1,500.00.
The Government introduced a tape of a conversation between Lemler and Sangemino recorded on March 20, 1974. The recorded discussion concerns possible explanations to the grand jury of notations in Lemler's records indicating payments to Lemler, and by Lemler to Sangemino. A portion of the transcript of this conversation is set forth below, but the cold words of this transcript cannot convey the desperate quality of this conversation. It must be heard to be understood.
A fundamental consideration in the presentation of this case was what credibility could be attached to the testimony of Nathan Lemler. Both the Assistant United States Attorney and defense counsel inquired about Lemler's prior convictions, his not infrequent false representations, and his interest in securing the favor of the federal authorities to gain their assistance in avoiding having to serve a lengthy sentence for his state court convictions.
Substantial portions of Lemler's testimony were corroborated by other Government evidence. In addition to the independent evidentiary value of such corroborating testimony and documents, this evidence clearly bolstered the suspect credibility of Lemler as a witness. For example, the Government introduced the business card given to Lemler for use by Edward Resnick at his draft physical. The Government also introduced a record of telephone messages from Lemler's office (Government Exhibits 3, 3A), which tended to corroborate Lemler's testimony regarding Sangemino's activities, and his part in the Resnick case and other cases.
The quintessence of all three charges against Major Sangemino was the payment of a bribe. On this fundamental point, Lemler's testimony was supported by the testimony of other witnesses. Charles Mofschowitz, a retired cab driver who had been employed by Lemler as a chauffeur, testified that he had driven Lemler to 26 Federal Plaza, the building in which Sangemino had his office, on six or seven occasions. Mofschowitz also testified that, on two occasions, he delivered envelopes to Sangemino at his office and, on one such occasion, he knew that the envelope contained $300.00.
Harriet Tollin, Lemler's daughter, testified that she had accompanied her father to 26 Federal Plaza on several occasions. Mrs. Tollin recalled that her father remarked on one occasion that "he had to go to the crapper because that was the only place they could have privacy." (Tr. pp. 513-14). Ruth Mear, an employee of Lemler, testified that she accompanied Lemler to Sangemino's office on one occasion but remained outside in a waiting area while Lemler and Sangemino met privately in Sangemino's office. She testified also that, on another occasion, she delivered an envelope to Sangemino on Lemler's instructions but did not know what the envelope contained. Lieutenant Petro testified that he too delivered a sealed envelope from Lemler to Sangemino.
Among the telephone messages from Major Sangemino to Lemler is an entry for June 15, 1971: "Thanks for tickets." Sangemino testified that Lemler had given him airplane tickets and vouchers which could be used on a vacation but that each time he had refused to accept them. Sangemino testified that this entry in the message book was inaccurate in that his actual response had been to express his appreciation to Lemler for the tickets, but that he could not accept them.
The jurors perceived readily the importance of the credibility issue and the independent value of the corroborating evidence. Ten minutes after the jury retired to begin its deliberations, the Court received a request to hear the taped conversation again. One hour later, the jury requested the exhibits relating to Lemler's telephone messages; the testimony of Mofschowitz; and Sangemino's own testimony regarding Lemler's gift of tickets for a vacation in Puerto Rico.
In sum, the Government's case against Major Sangemino was very strong, if the triers of fact viewed Lemler as a credible witness, or considered that they had received substantial evidence to corroborate his relevant testimony.
Challenging the Government's case against Sangemino, defendant's then trial counsel (hereinafter "Counsel") cross-examined Lemler for nearly two and a half days. Counsel reviewed Lemler's prior convictions, prior instances in which he had made false statements, his interest in obtaining assistance to shorten his incarceration on ...