UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: January 24, 1984.
SAMUEL D. WRIGHT, PETITIONER-APPELLANT,
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE
Appeal by Samuel D. Wright from orders of the District Court for the Eastern District of New York, Edward R. Neaher, Judge, dismissing his petition for post-conviction relief pursuant to 28 U.S.C. § 2255 and Fed. R. Crim. P. 33, on the ground, among others, that he was deprived of the right to a disinterested prosecutor, 559 F. Supp. 1139, and denying reconsideration of the said order. See United States v. Wright, 588 F.2d 31 (2 Cir. 1978), cert. denied, 440 U.S. 917 (1979).
Feinberg, Chief Judge, Friendly and Pratt, Circuit Judges.
FRIENDLY, Circuit Judge:
More than five years ago we affirmed the conviction of appellant Samuel D. Wright, onetime chairman of New York City Community School Board 23 and later a New York City councilman, in the District Court for the Eastern District of New York, 559 F. Supp. 1139, for having solicited and received "under color of official right" a payment of $5,000 from Behavioral Research Laboratories, Inc. (BRL), a seller of educational systems and materials, in violation of the Hobbs Act, 18 U.S.C. § 1951, and conspiring to defraud the United States of federal funds granted to the school district in violation of 18 U.S.C. § 371, United States v. Wright, 588 F.2d 31 (1978) cert. denied, 440 U.S. 917, 99 S. Ct. 1236, 59 L. Ed. 2d 467 (1979). Wright was sentenced to three months incarceration, nine months probation and a $5,000 fine.
In April, 1980, after having served his prison sentence, Wright, on the last day of his probation term, filed a motion for relief under 28 U.S.C. § 2255 and Fed. R. Crim. P. 33.*fn1 Pursuant to an informal discovery agreement between Wright's counsel and the office of the United States Attorney and various state and federal Freedom of Information Act requests, Wright obtained a quantity of additional materials which he appended to his motion papers. The Government also filed voluminous opposition papers and affidavits. The district court's opinion states, 559 F. Supp. at 1142, that "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", and that "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," id. The court denied the request and dismissed the petition. Wright appeals from the order and a later order denying reconsideration.
The district court considered that Wright's claims fell into three distinct categories. These were (1) a claim that the Government suppressed various documents and materials in violation of its constitutional obligations of disclosure under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), (2) a claim that some members of the jury may have been prejudiced against him as a black, and (3) a claim of prosecutorial conflict of interest. With respect to the first two categories, we find nothing that can usefully be added to Judge Neaher's thorough discussion of the facts and the law. We shall therefore limit this opinion to Wright's third point.*fn2
Before trial Wright had moved for dismissal of the indictment against him on the ground of a prosecutorial conflict of interest. The motion was supported by an affidavit of Gustave H. Newman, Wright's then attorney. The affidavit alleged that the indictment stemmed from a grand jury presentation begun in late 1976 by Assistant United States Attorney Thomas Puccio into Wright's financial affairs and political activities. It alleged that there had been two previous grand jury investigations of Wright, one under the direction of former Assistant United States Attorney James Druker and another under the direction of Puccio, and that no indictments had been filed; that in 1976 Wright waged a bitterly fought primary campaign against Representative Shirley Chisholm which polarized Brooklyn's black community; that supporters of Representative Chisholm and opponents of Wright actively sought to induce the Brooklyn district attorney or the United States Attorney, David Trager, to launch a prosecution of Wright; and that the latter effort bore fruit for improper reasons. "The impropriety in question" was said to be founded "upon the activist role Mrs. Thomas Puccio, an attorney who we believe is employed in the community by a local federally funded poverty law office, has played as a public activist opposed to the leadership and role occupied by Samuel D. Wright." Jt. App. at 722. The affidavit claimed that
as a publicly acknowledged opponent of Wright and his programs, her in-put with a senior member of the United States Attorney's staff, both actually and in appearance, pitted the might and resources of the federal government against Wright for reasons of political and idealogical [sic] differences rather than due to an objective analysis of Wright's conduct.
Id. The motion requested " in camera judicial review of the prosecution's internal files, in conformity with the holding in United States v. Berrios, 501 F.2d 1207 (2d Cir. 1974), to insure that prosecutor Puccio and the United States Attorney's Office prosecuted because they believed, in good faith, that federal law was violated, and not by reason of extrinsic and improper in-put." Jt. App. at 723.
Mr. Trager submitted an opposing affidavit (the 1977 affidavit). This characterized the "chronology of the investigation of Mr. Wright, about which his attorney has no personal knowledge" as "simply the product of somebody's imagination." Id. at 631. It said there was no investigation of Mr. Wright in 1973; that Mr. Druker did not join the staff of the United States Attorney's office until the latter part of 1974; that at that time, after becoming United States Attorney, Mr. Trager had created an Official Corruption Unit and appointed Druker to head it; and that, due to the pendency of other investigations, it was not until some time in 1975 that evidence with respect to the charges made in the indictment was presented. The affidavit went on in a manner set forth in the margin.*fn3
On March 28, 1978, the district court denied the motion to dismiss the indictment, rejecting the argument with respect to prosecutorial conflict of interest "on the basis of the representations made by the United States Attorney, and in light of the report by the Attorney General and the Counsel on Professional Responsibility."
This court affirmed, saying:
The district court properly rejected Wright's claim that the prosecution against him was biased because the wife of the Assistant United States Attorney who presented this case to the grand jury was allegedly a political opponent of Wright. The Justice Department's Counsel on Professional Responsibility reviewed the investigation and concluded that there had been no misconduct. We agree that no showing of bias of the prosecutor was made here. The American Bar Association Standards Relating to the Prosecution Function, § 1.2, provides that "A conflict of interest may arise when, for example, . . . a business partner or associate or a relative has any interest in a criminal case, either as a complaining witness, a party or as counsel." We find no impropriety or appearance of impropriety.
588 F.2d at 39.
It now develops that the issue was not so simple as this court believed in 1978. The new material submitted in support of Wright's § 2255 petition went beyond what was then before us in three important respects:
(1) The anti-Wright activities of Mrs. Puccio, the former Carol Ziegler, were not merely those of "a political opponent" of Wright. Early in 1974 Puccio reported to the FBI that Ms. Ziegler, then an attorney in the Brownsville office of the Brooklyn Legal Services Corporation, submitted a report to him, prepared under the auspices of the Community Action for Legal Services Incorporated, a project which was federally funded by the Office of Economic Opportunity, alleging a misapplication of Title I funds by Wright and School Board 23.*fn4 He said that a grand jury had been impaneled and that he would be willing to prosecute under 18 U.S.C. §§ 1001 and 371 if the allegations were proved. On March 15, 1974, when interviewed by the FBI, Ms. Ziegler said she had written many informal letters to various local, state and federal agencies, and that she and her office would be willing to contact any potential witnesses or aid the FBI in any manner during the investigation of Local School Board 23. She was interviewed again on April 1, 1974. Most of this interview concerned a meeting of Local School Board 23 on March 28, 1974, to elect a successor to Wright, who had been obliged to resign as chairman because of his election to the New York City Council. She said the meeting had become unruly; that three members started to leave the meeting; and that when she went to the platform in an effort to prevent this, another member grabbed her by the neck to force her to leave. She then described another violent episode to which she was merely a spectator. The FBI discussed this with Puccio, who had another meeting on April 4 with Ziegler, FBI agents and members of parent organizations. Puccio advised that he would have grand jury subpoenas issued and that any further incidents might therefore constitute obstructions of justice.
On July 24, 1975, Ms. Ziegler and Arnold Rothbaum of the Williamsburg Neighborhood Legal Services sent a letter to the Voting Rights Section of the Civil Rights Division of the Department of Justice complaining of irregularities in the community school board election on May 6, 1975. An FBI report dated August 21, 1975, records that Puccio had advised that while his office had not initiated an investigation of the election, he "was aware of the Department's interest in this election and furthermore was also cognizant of the complainants since the complainants had also contacted his office." Jt. App. at 699. On December 18, Ziegler and Rothbaum wrote a seven page letter to the New York City Board of Education detailing alleged acts of misconduct by School Board 23 going back to 1971.
(2) The material before the district court in 1977 and this court on appeal did not characterized the position of Assistant United States Attorney Druker with complete accuracy. An FBI memorandum entitled "Samuel Wright et al. -- Fraud against the Government" records that on April 20, 1976, Druker advised "he would decline prosecution in this matter" and "that the facts developed in this matter lack prosecutive merit in Federal Court." Jt. App. at 405. On June 7 Druker submitted a long memorandum to United States Attorney Trager on the subject of "School District 23 Allegations." Addressing himself to the $5,000 payment by BRL to Wright, he said:
While District 23 appears to have disregarded City Bidding Regulations in the aforesaid purchases, there appears to be no conduct violative of federal law. However, the evidence is quite clear that, as part of an intensive effort to secure District 23's business, Samuel D. Wright was given $5000 by BRL officials for a specious speaking engagement. It is the writer's belief that the evidence of same should be referred to the Kings County District Attorney for consideration in light of New York State's Penal Law which, inter alia, makes it a misdemeanor for a public official to accept gratuities under such circumstances.
Jt. App. at 943. It was after this that the United States Attorney reassigned the matter to Puccio, who had recently married Ms. Ziegler. Puccio, on August 17, 1976, impaneled a new grand jury which ultimately returned the instant indictment on April 1, 1977.
(3) The investigation by the Counsel on Professional Responsibility of the Department of Justice, on which the district court and this court placed such reliance, was perfunctory and the exonerating letter from the Attorney General was Trager's own draft except that the letter was shortened by omitting paragraphs which referred to Wright's reluctance with the U.S. Attorney's investigation of his alleged receipt of an illegal bribe and Wright's seeking intervention on his behalf of a member of the White House staff. All that occurred was a meeting on March 16, 1977, in Brooklyn between Michael Shaheen, Jr., counsel for the Office of Professional Responsibility, and Steven Blackhurst, its assistant counsel, on the one hand, and Trager, his deputy, Korman, Puccio, and Puccio's assistant, Rocco, on the other. According to a memorandum by Blackhurst, Trager said that he had insisted that Puccio handle the Wright investigation and had done so with full knowledge of Mrs. Puccio's prior activities against Wright. Puccio added that "his wife's activities in opposition to Wright were minimal and that she had not had anything to do with school board politics for some time (at least one year)." Trager was asked "to draft a proposed response to Wright's letter for the DAG's signature." Jt. App. at 339. In forwarding the draft Trager reaffirmed that the decision to have Puccio "assigned to review the investigation that had previously been undertaken into the subject of the present inquiry was solely my own"; that "in choosing Mr. Puccio to make this review, I was well aware of his wife's prior association, in the capacity of an anti-poverty lawyer, with some of Mr. Wright's political opponents", id. at 944; that Puccio did not initiate the investigation or the review and that Trager did not consult with him in making the decision; that, anticipating the charges now being made, Puccio was reluctant to undertake the case and that it took some urging on Trager's part to convince him; that despite this concern, Trager chose Puccio because of his belief that in a case of this significance "I had to go 'with my best '" and that of all his assistants Puccio had the most experience in "conducting complicated investigations of this kind." Id. at 945. The letter, drafted by Trager and signed by Attorney General Bell, said that "[a] complete review of [the grand jury's] investigation was undertaken by the Counsel on Professional Responsibility", which had concluded "that the investigation has been conducted in a thorough and professional manner, under the direct supervision of the United States Attorney." Id. at 340.
The district court held that the new evidence presented by Wright "provides no reason for this Court to question either the statements of Mr. Trager, or the findings of the Justice Department." 559 F. Supp. at 1152. The court seemed to regard as dispositive that there was still no evidence that Mrs. Puccio "was 'a complaining witness' within the meaning of the ABA standards cited by the Court of Appeals" since none of the documents indicates that she was the source of the interest of the United States Attorney's office in the BRL payments, and thus no "evidence . . . support[s] even an inference of bias under the ABA standards." Id. at 1152-53.
We agree with appellant that the district court took too limited a view of the issue raised by him. The ABA Standards cited the relative or a complaining witness only as one example of a prosecutorial conflict of interest. Evidently the ABA considered the examples to be confusing since the current version, ABA Standards for Criminal Justice § 3-1.2 (2d ed. 1980), says simply that "[a] prosecutor should avoid the appearance or reality of a conflict of interest with respect to official duties."*fn5 We find it hard to deny that the decision, after one grand jury investigation of the BRL transaction had terminated without the prosecutor's seeking an indictment, to assign Wright's case for further investigation to a prosecutor whose wife was not merely a political opponent of Wright's but a lawyer who had on two occasions brought complaints to federal authorities that could have resulted in criminal charges against him, who had actively petitioned various federal, state and local agencies to investigate Wright's alleged misdeeds, who had allegedly been assaulted by Wright's minions, and who almost certainly harbored personal animosity against Wright, created an appearance of impropriety.*fn6 Indeed, Puccio himself seems to have thought that it would. While we have no basis to question Trager's statements that he decided to make the assignment and that Puccio resisted, this is irrelevant to the appearance of impropriety. The United States Attorney did not sufficiently consider this when he decided to "go with [his] best." Puccio may have been the "best" for other cases but certainly not for this one. It would have been far better to have a slightly less effective prosecutor -- if, in fact, such a choice had to be made -- not married to a woman who had twice notified federal authorities of activities of Wright's in connection with School Board 23, other than those here at issue, that could have resulted in his indictment.
Whether Wright's conviction should have been reversed and the indictment dismissed or at least there should have been a remand for an evidentiary hearing, if the facts now established by him had been before us on his direct appeal, is a question of some difficulty, but one that we need not decide. Appellate dismissal of an indictment for prosecutorial misconduct, after a conviction following a fair trial to an unbiased jury, is strong medicine. Wright does not allege prosecutorial misconduct approaching the "flagrant and unconscionable" incidents which recently led us to dismiss an indictment after a conviction in United States v. Hogan, 712 F.2d 757, 762 (2 Cir. 1983). If the claim were to be regarded as one of selective or discriminatory prosecution, Wright's case would clearly fail to meet the first prong of the test laid down in United States v. Berrios, 501 F.2d 1207, 1211 (2 Cir. 1974), and probably the second as well, see United States v. Ross, 719 F.2d 615 (2 Cir. 1983). However, the claim in fact was of something different, namely, that Wright was deprived of his entitlement to a "disinterested" prosecutor.*fn7 The concept is not altogether easy to define. Of course, a prosecutor need not be disinterested on the issue whether a prospective defendant has committed the crime with which he is charged. If honestly convinced of the defendant's guilt, the prosecutor is free, indeed obliged, to be deeply interested in urging that view by any fair means. See In re Perlin, 589 F.2d 260, 264 (7 Cir. 1978). True disinterest on the issue of such a defendant's guilt is the domain of the judge and the jury -- not the prosecutor. It is a bit easier to say what a disinterested prosecutor is not than what he is. He is not disinterested if he has, or is under the influence of others who have, an axe to grind against the defendant, as distinguished from the appropriate interest that members of society have in bringing a defendant to justice with respect to the crime with which he is charged. Moreover, as the New York Court of Appeals has recently said in dismissing an indictment where a part-time district attorney had been corporate counsel to and a stockholder of a corporation which the defendant was charged with defrauding, "the practical impossibility of establishing that the conflict has worked to defendant's disadvantage dictates the adoption of standards under which a reasonable potential for prejudice will suffice." People v. Zimmer, 51 N.Y.2d 390, 395, 414 N.E.2d 705, 707, 434 N.Y.S.2d 206, 208 (1980). See also People v. Superior Court of Contra Costa County, 19 Cal.3d 255, 561 P.2d 1164, 137 Cal. Rptr. 476 (1977) (disqualifying district attorney from prosecuting charge of murder when victim's mother was in his employ and was embroiled in custody litigation with victim's ex-wife who was one of defendants).*fn8
Even if we were to assume arguendo that we would have directed dismissal of the indictment in the exercise of our supervisory power, see United States v. Hogan, supra, 712 F.2d at 761, 762 n.2, if the facts now adduced by Wright had been before us on the direct appeal, it does not follow that they afford ground for relief under 28 U.S.C. § 2255. As said in United States v. Addonizio, 442 U.S. 178, 184-85, 99 S. Ct. 2235, 60 L. Ed. 2d 805 (1979) (footnotes omitted):
It has, of course, long been settled law that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment. The reasons for narrowly limiting the grounds for collateral attacks on final judgments are well-known and basic to our adversary system of justice. The question in this case is whether an error has occurred that is sufficiently fundamental to come within those narrow limits.
The Court went on to say that "unless the claim alleges a lack of jurisdiction or constitutional error, the scope of collateral attack has remained far more limited", id. at 185, and referred to the statement in Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962), that non-jurisdictional and non-constitutional claims are cognizable under § 2255 only if they reveal "a fundamental defect which inherently results in a complete miscarriage of justice," or "an omission inconsistent with the rudimentary demands of fair procedure," see United States v. Addonizio, supra, 442 U.S. at 185.
Wright's claims do not begin to measure up to the Hill standard for non-constitutional and non-jurisdictional error. Wright was found guilty beyond a reasonable doubt on ample evidence after a fair trial before an unbiased jury. There is no reason to question that the grand jury had sufficient evidence to support the lesser requirement of probable cause to believe that Wright had committed the crimes charged.*fn9 Wright's claim is rather that if Trager had accepted Druker's recommendation or even if, not accepting it, he had designated an assistant to pursue the investigation who did not have the special adverse interest attributed to Puccio, Wright would not or might not have been indicted for a crime which, as the jury's verdict demonstrates, he had in fact committed. Painful as this necessarily is to Wright, it would be going beyond all bounds to call the result "a complete miscarriage of justice" or "inconsistent with the rudimentary demands of fair procedure." Compare Grimes v. United States, 607 F.2d 6, 11 (2 Cir. 1979) with Azzone v. United States, 341 F.2d 417, 418-19 (8 Cir.), cert. denied, 381 U.S. 943, 85 S. Ct. 1782, 14 L. Ed. 2d 706 (1965).
We thus reach the question whether the existence of what we will assume to have been a special interest of Puccio's in securing Wright's indictment constituted a violation of due process, and thus a constitutional error, in the absence of evidence of specific misbehavior on Puccio's part. Here Wright understandably places great reliance on Ganger v. Peyton, 379 F.2d 709 (4 Cir. 1967), which, under 28 U.S.C. § 2254, set aside a state conviction as a violation of due process because the prosecutor was serving two masters. Ganger was prosecuted and convicted for an assault on his wife. The prosecutor, a part-time state prosecutor, as in People v. Zimmer, supra, 51 N.Y.2d 390, 414 N.E.2d 705, 434 N.Y.S.2d 206, discussed above, was representing the wife in a pending divorce action based on the same assault. Ganger testified that the prosecutor offered to drop the assault charge if Ganger would make a favorable property settlement in the divorce action, and the district judge so found. The Fourth Circuit held that the prosecutor's representation of Mrs. Ganger in the divorce proceeding "suggests the strong possibility that the prosecuting attorney may have abdicated to the prosecuting witness (Ganger's wife) in the criminal case the exercise of his responsibility and discretion in making charge decisions," 379 F.2d at 713, and that this violated due process.
Whether or not we would agree that the manifest impropriety of the prosecutor's conduct in Ganger constituted a violation of due process, there are several distinctions between that case and Wright's. Here the decision to pursue the investigation was made by Trager, not by Puccio, and the indictment was signed by him; in order for Wright's case to be comparable with Ganger's in this respect, we would have to draw an inference that Puccio was the real instigator of the decision to proceed before a new grand jury although Wright does not even allege this and all the evidence is to the contrary.*fn10 Second, even if we interpret the facts most adversely to Wright's prosecutors, they were not utilizing the criminal process to advance their own pecuniary interests, such as the prosecutor's interest in Ganger "that the size of his fee would be determined by what could be exacted from defendant" in the divorce case, id. at 713. It is argued that just as the prosecutor in Ganger was "attempting at once to serve two masters, the people of the Commonwealth and the wife of Ganger", id. at 714, Puccio was attempting to serve both the United States and his own wife. However, Mrs. Puccio's interest, unlike Mrs. Ganger's, was not a pecuniary interest in utilizing the criminal process to further her position in civil litigation but a public one in the condemnation of a man whom she thought, whether for good reasons or for bad, to have violated the public trust. Compare Azzone v. United States, supra, 341 F.2d at 418-19. In short, this case, with the facts taken at their worst against the Government, does not present the spectacle of a prosecutor's using the "awful instruments of the criminal law", McNabb v. United States, 318 U.S. 332, 343, 63 S. Ct. 608, 87 L. Ed. 819 (1943) (Frankfurter, J.), for purpose of private gain and, although we consider the choice of Puccio as prosecutor to have been ill advised, we do not regard it as having deprived Wright of due process of law. At the very most, and the allegations scarcely go this far, it deprived him of the chance that, with another prosecutor, he might have undeservedly escaped indictment and consequent conviction for crimes of which he was properly found to be guilty.