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.
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 ...