The opinion of the court was delivered by: NEAHER
Pursuant to 28 U.S.C. § 2255 and Rule 33, F.R.Crim.P., petitioner Samuel Wright seeks to vacate his 1978 convictions for conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and for extortion "under color of official right," in violation of 18 U.S.C. § 1951. In a separate motion filed pro se, petitioner requests discovery into or an evidentiary hearing on the merits of his § 2255 motion.
For the reasons discussed below, both motions are denied in their entirety.
Petitioner's convictions for extortion and conspiracy resulted from his request for, and acceptance of, a $5,000 payment from Behavioral Research Laboratories, Inc. (BRL), a supplier of educational materials, during his tenure as chairman of New York City Community School Board 23. The jury concluded that petitioner extorted the $5,000 from BRL by insinuating that BRL's chances of renewing its several hundred thousand dollar, federally-funded contract with District 23 might rest on this payment. The jury also found that an agreement to defraud the United States was reached between BRL and petitioner whereby petitioner implicitly agreed to use his power and influence on the school board to effectuate the BRL renewal proposal.
Petitioner was sentenced to three months incarceration, nine months probation and a $5,000 fine, all stayed pending appeal. On appeal, the Second Circuit affirmed the judgment of the jury, and the Supreme Court denied certiorari. United States v. Wright, 588 F.2d 31 (2d Cir. 1978), cert. denied, 440 U.S. 917, 59 L. Ed. 2d 467, 99 S. Ct. 1236 (1979).
In April of 1980, on the last day of his probationary term, petitioner filed the first version of this motion.
Pursuant to an informal discovery agreement between petitioner's counsel and the United States Attorney's office, see letters of Victor J. Rocco, Esq., dated June 19, 1982 and December 8, 1982, and various state and federal Freedom of Information Act requests, see Wright v. IRS, 81 CV 1616; Wright v. Department of Justice, 81 CV 1617, petitioner uncovered a plethora of materials which he has since appended to his original moving papers. In response, the government has also filed voluminous opposition papers and affidavits. In December of 1982, petitioner's pro se request for further discovery was filed, along with what appears to be the final version of petitioner's substantive claims. Since petitioner now appears to have satisfied himself that he has filed sufficient documentary evidence of his claims, his request for a hearing on the merits of his § 2255 motion can now be addressed.
Petitioner's motion papers delineate seven distinct claims and raise numerous others inferentially. Analytically, however, these claims fall into three distinct categories, and will be discussed accordingly.
Petitioner's motion for post-conviction relief rests almost entirely on the various documents and materials he has discovered since trial. Most of this information, he contends, was suppressed by the government in violation of its constitutional disclosure obligations under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). As both parties recognize, the preliminary issue raised by this claim is whether any of this newly-discovered evidence is exculpatory in the Brady sense.
In Brady the Court held that, irrespective of the rules governing criminal discovery, the due process clause of the Fifth and Fourteenth Amendments requires the prosecution to disclose information specifically requested by the defendant which might be "material" to his defense. Id. at 87. The Brady rule was subsequently expanded by the Court in United States v. Agurs, 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976), to include a prosecutorial obligation to divulge obviously exculpatory evidence regardless of the request. In expanding the rule, however, the Court was quick to reject "the suggestion that the prosecutor has a constitutional duty routinely to deliver his entire file to defense counsel," and, hence in cases where no request or only a general request for exculpatory information has been made, "the constitutional standard of materiality must impose a higher burden on the defendant." Id. at 113.
To achieve that result, the Court formulated a two-tier test for analyzing the problem of non-disclosure. In cases where the information was withheld despite defendant's specific disclosure demands, the standard of materiality is more lenient: the defendant will be entitled to a new trial if there is any reasonable likelihood that the disclosure of the information could have affected the judgment of the jury. Id. at 103, 104-06; United States v. Provenzano, 615 F.2d 37, 47 (2d Cir.), cert. denied, 446 U.S. 953, 64 L. Ed. 2d 810, 100 S. Ct. 2921 (1980); Ostrer v. United States, 577 F.2d 782, 786 (2d Cir. 1978), cert. denied, 439 U.S. 1115, 59 L. Ed. 2d 73, 99 S. Ct. 1018 (1979). In cases where the defendant has made no request for the undisclosed information or only a general request the standard is strict: the defendant's conviction will be set aside "only if the undisclosed evidence, viewed in the context of the entire record, creates a reasonable doubt as to his guilt." United States v. Agurs, 427 U.S. at 112-13; United States v. Provenzano, 615 F.2d at 47; Ostrer v. United States, 577 F.2d at 768.
Applying these standards to petitioner's Brady claims, it is apparent that the nondisclosure of the evidence cited by petitioner did not deny him a fair trial.
Petitioner's principal Brady claim concerns the undisclosed tape recording of the August 9, 1973 school board meeting at which the BRL contract proposal was debated and approved. PX D.
In reviewing the importance of the tape to his defense, he argues that the Court should apply the more lenient standard of materiality, because, prior to trial, he expressly requested "any alleged consensual recording of [his] conversations." PX O, #15. The government, on the other hand, contends that this demand must be construed as a general request under Agurs in that it failed to specify the source of the recordings or refer to the actual date of the meeting.
The government's contention, however, ignores its obligation under Rule 16(a)(1)(A) to "permit the defendant to inspect and copy or photograph: any relevant written or recorded statements made by the defendant . . . within the possession of the government." Contrary to the government's assertions in this case, this rule does not require the defendant to designate the source of the recordings, Fed. R. Crim. P. Rule 16 advisory committee note, nor is it limited to conversations recorded by the government. United States v. Caldwell, 178 U.S. App. D.C. 20, 543 F.2d 1333, 1352-53 (D.C. Cir. 1975), cert. denied, 423 U.S. 1087, 47 L. Ed. 2d 97, 96 S. Ct. 877 (1976); United States v. Crisona, 416 F.2d 107, 113-15 (2d Cir. 1969), cert. denied, 397 U.S. 961, 25 L. Ed. 2d 253, 90 S. Ct. 993 (1970); United States v. Sherwood, 527 F. Supp. 1001, 1003 (W.D.N.Y. 1981). While this does not mean that every statement made by a defendant will be relevant to his defense, e.g., United States v. Gleason, 616 F.2d 2, 25 (2d Cir. 1979), cert. denied, 444 U.S. 1082, 62 L. Ed. 2d 767, 100 S. Ct. 1037 (1980), the safest course for the prosecution is to "seek a ruling from the court on whether a particular [item] is discoverable." United States v. Johnson, 525 F.2d 999, 1005 (2d Cir. 1975). Having failed to disclose the tape either to the Court or to defense counsel as required by Rule 16, the government cannot now claim that the request was too general to give rise to the minimum disclosure requirements discussed in Agurs. See United States v. McElroy, 697 F.2d 459, slip op. at 944-45 (2d Cir. 1982) (failure to comply with Rule 16(a) (1) (A) may constitute independent grounds for reversal); United States v. Padrone, 406 F.2d 560, 561 (2d Cir. 1969) (same).
Nevertheless, even applying the more lenient Agurs standard of "materiality," it is apparent that nothing on the tape mandates a new trial. To begin with, the school board vote on the BRL proposal was not an element of either of the crimes with which petitioner was charged. On the Hobbs Act count, the jury was instructed that they could convict even if they believed petitioner's claim that he had not voted on the BRL proposal. TT 2110. It was not even necessary for the government to show that petitioner affected the actual vote or even that he promised BRL that he would do so. TT 2112. As the Second Circuit noted in affirming petitioner's conviction under the Hobbs Act, "evidence of such a quid pro quo . . . is not an essential element of the crime [of extortion]." United States v. Wright, 588 F.2d at 35 n.2.
On the conspiracy charge, the government had to show beyond a reasonable doubt that an agreement to affect the disbursal of federal funds was made between BRL and petitioner and that one of the overt acts charged in the indictment was committed by petitioner or a coconspirator. TT 2109-12. Clearly, the actual adoption of the BRL program in August 1973 was unnecessary to support the jury's conclusion that an illicit agreement had been reached in February of 1973. See United States v. Wright, 588 F.2d at 34. Indeed, neither the vote, nor the August 9, 1973 school board meeting was even charged as an overt act in the indictment.
Petitioner apparently recognizes that the vote was an issue collateral to the question of his guilt, because he premises his Brady challenge not on the exculpatory nature of the tape, but rather on its "usefulness" to his defense. His argument essentially rests on the tape being used to corroborate his own testimony that he did not vote on the BRL contract. TT 1582. Since the tape is blank during the entire BRL debate and vote, see discussion infra, this contention rests entirely on inferences drawn from an extremely strained interpretation of the tape and that interpretation's impact on testimony adduced at trial.
At trial, Dorothy DeVouse, a government witness, testified that petitioner and four other members of the Board voted for the BRL program while the other four Board members voted against it. TT 932. Petitioner argues that the tape rebuts this version of the vote, by indirectly corroborating Zedia Harrington's testimony that she voted for the BRL program rather than against it as stated by DeVouse. TT 1218. In support of this contention, he points to several statements on the tape, purportedly made by Harrington, which indicate her general "support of petitioner and Board policies," apparently believing that these generalities indicate how Harrington voted on the BRL proposal. The statements ascribed to Harrington, however, even if they actually refer to petitioner, are so vague as to border on irrelevancy, and clearly do not constitute a viable means of corroborating Harrington's version of her vote.
Moreover, even if the tape corroborated Harrington's testimony, it is difficult to see how her testimony corroborated petitioner's position that he abstained on the BRL vote: Harrington testified that she couldn't remember how petitioner voted. TT 1218. Apparently petitioner's argument is that if Harrington's testimony concerning her vote were corroborated, then the jury would also have credited her testimony that she "thought" six Board members approved the BRL program, hence supporting petitioner's position that he did not vote because he only voted to break a tie vote of 4-4. The transcript of the recording submitted by petitioner, however, contains two 6-3 votes and one 6-2-1 vote on subsequent Board resolutions. The recording thus flatly contradicts the trial testimony of defense witnesses Richardson, TT 1302-03, Luberti, TT 1429, and Vega, TT 1468, all of whom ...