Appeal from judgment of the United States District Court for the Western District of New York, Harold P. Burke, Judge, denying appellant's petition for a writ of habeas corpus. Reversed and remanded.
Before Kaufman, Chief Judge, and Newman and Kearse, Circuit Judges.
Thomas E. Taylor appeals from a judgment of the United States District Court for the Western District of New York, Harold P. Burke, J., denying his petition for a writ of habeas corpus. In 1976 appellant was found guilty of assault in the third degree, N.Y. Penal Law § 120.00(1) (McKinney 1975), by a jury in the Justice Court of the Town of Penfield. After trial appellant moved to set aside the verdict, principally on the ground that several prosecution witnesses had perjured themselves and that the prosecutor had knowingly acquiesced in their perjury. The motion was denied from the bench after a hearing, and appellant was sentenced to ten months in the Monroe County Jail. The judgment of conviction was affirmed in a written decision by the County Court, Monroe County, and the New York State Court of Appeals denied leave to appeal.
Appellant then filed his petition in the district court, raising the same claims he had presented in the state court proceedings. On a review of the state court record, and without holding a hearing, Judge Burke concluded that appellant's claims had no factual basis and denied the petition. Taylor appeals from this denial.*fn1
Since the district court findings were based solely on a review of the state court record, we are not bound by the "clearly erroneous" standard of review under Rule 52(a), Fed.R.Civ.P., but may make our own independent factual determination. Smith v. Regan, 583 F.2d 72, 76 (2d Cir. 1978); United States ex rel. Lasky v. LaVallee, 472 F.2d 960, 963 (2d Cir. 1973). On our review of the record we conclude that the prosecutor knowingly acquiesced in perjured testimony, and that revelation of the perjury at trial could well have resulted in a different verdict. Accordingly, we reverse.
The assault charge was lodged against Taylor as a result of an altercation at a bar in Penfield, New York. The factual issues on appeal are whether there was perjured testimony at the trial and, if there was, whether the prosecutor knowingly acquiesced in its use.
At trial, both sides agreed that there was a fight between Taylor and John Gavender at the Overlook Bar on the evening of September 9, 1976, but they disagreed as to its cause and the circumstances leading up to it. Taylor sought to prove that he had acted in self-defense and in the defense of others. His theory, set out in a letter sent to the district attorney's office before trial,*fn2 was that Gavender and his wife and Anne and Carl Luther had come to the bar to find people to invite to a "swinging" group sex party, and that the fight arose as a result of their obnoxious advances toward other patrons in the bar. The Gavenders and the Luthers contended that Taylor had started the fight suddenly and with no provocation.
The defense witnesses, including Taylor, Debbie Murray and Joseph Swystun, testified to the following particulars: The Gavenders and the Luthers, and Taylor, Murray and Swystun were all in the barroom. In the course of conversation Gavender and his wife made several sexually suggestive remarks to Taylor, concerning Mrs. Gavender. At some point Anne Luther asked Murray whether she wanted to have a sex party with the Luthers, whether she had ever had sex with a woman, and whether she would like to. The two wives were loudly using foul language, and when they persisted, Taylor ordered Mrs. Gavender a glass of dishwater. Mr. Gavender told Taylor not to do it again, but no blows were exchanged. Gavender subsequently grabbed Murray's buttocks while walking past her at the bar, and Swystun told him to keep his party in his corner and to keep his hands off Murray. Gavender swore at Swystun and "came at" him. Taylor got between the two, seeking to prevent a fight, and told them to take it easy. Gavender shoved Taylor out of his way, and Taylor then grabbed Gavender, pushed him against the wall and held him there, letting him go when Gavender said that he was all right. As Taylor turned away, Gavender punched him on the side of the head. Taylor turned and hit Gavender with the back of his hand, knocking him against the wall. Taylor then picked Gavender up, offered to shake his hand, and upon being refused, left the bar. Taylor testified that throughout the incident he sought to avoid trouble and to play the role of the "peacemaker." He attributed the seriousness of Gavender's injuries to exposed nails in the wall against which he had pushed Gavender, which none of the participants had noticed in the dim light of the bar.
The Gavenders and Luthers, testifying for the prosecution, presented a quite different version of the incident. According to them, Taylor started the fight without provocation and for no apparent reason. It was Taylor who had made the suggestive remarks to Gavender and his wife concerning Mrs. Gavender, but nothing came of them. Later Mr. Gavender stepped away from the bar, and Taylor was conversing with the two wives. Taylor suddenly became very abusive, calling Mrs. Gavender various names. Although Mrs. Gavender had used no vulgar language, Taylor accused her of having a dirty mouth and ordered a glass of dishwater for her. Mr. Gavender returned to the bar and Taylor told him that Mrs. Gavender had a dirty mouth. Gavender replied that he did not want to fight but wished that Taylor would not talk that way about his wife. Taylor then proceeded to beat up Gavender, punching him numerous times and banging Gavender's head on an air conditioner. The prosecution witnesses denied any offensive or obnoxious statements or conduct on their part.
On cross-examination, defense counsel asked the Luthers and John Gavender several questions concerning their sexual practices and experience. Most important for purposes of this appeal are two questions put to Carl Luther, and his answer to one of them:
Q. Have you ever asked to be able to use the back room of the Overlook Motel for swinging parties? (Objection as to relevancy sustained.)
Q. (H)ave you and Mr. Gavender or your wives had sexual relations with anyone in the ...