Appeal from the judgment of the District Court for the Southern District of New York (John F. Keenan, Judge) convicting defendant after a jury trial, of eleven counts of an indictment charging participation in a scheme involving the interstate transportation and sale of stolen securities, in violation of 18 U.S.C. §§ 2, 371, 1343, 2314 (1982).
Jon O. Newman, Circuit Judge.
JON O. NEWMAN, Circuit Judge
James Chitty appeals from a judgment of conviction entered in the District Court for the Southern District of New York (John F. Keenan, Judge) following a ten-day jury trial. Chitty was convicted on eleven counts of a twelve-count indictment charging participation in a scheme involving the interstate transportation and sale of approximately $475,000 in stolen securities. 18 U.S.C. §§ 2, 371, 1343, 2314 (1982). Of the numerous issues raised on appeal, only the challenge to the sentence has merit. We therefore affirm the conviction, but vacate the sentence imposed and remand for resentencing.
Since the sufficiency of the evidence is not disputed, the facts need not be detailed. It suffices to note that Chitty and three accomplices, Frederick Moir, Benjamin Thelin, and Joseph Brovich, were all involved in a scheme to profit from the use of $475,000 in bearer bonds that had been stolen. The group used the bonds for various purposes. On one occasion the bonds were pledged to a New Jersey bank as collateral for an $80,000 loan, the proceeds of which were shared with Chitty. On another occasion the bonds were taken to New Rochelle, New York, where they were to be sold for $190,000 to a person purporting to represent an interested purchaser; the proceeds of the sale were to be used to pay off the New Jersey loan. The "agent" of the purchaser was an F.B.I. undercover agent. The evidence disclosed that Chitty and his accomplices prepared forged documents in their efforts to make use of the stolen bonds and moved the bonds across state lines and made interstate telephone calls in furtherance of the scheme. Moir, Thelin, and Brovich pled guilty to various charges in connection with the scheme. Chitty alone stood trial. Upon conviction on 11 counts, he was sentenced to a total of 21 years.
The challenges to the conviction do not require extended discussion. The first is a claim that two counts of the indictment charging interstate transportation of stolen securities in violation of 18 U.S.C. § 2314 are multiplicitous. Chitty does not dispute the fact that the bonds were transported from New York to New Jersey on April 5, 1983, as alleged in Count 2, and from New Jersey to New York on June 17, 1983, as alleged in Count 3. Rather, he contends that because the same bonds were transported in both trips, there was but one "transportation" for purposes of section 2314. See United States v. Johnpoll, 739 F.2d 702, 714-15 (2d Cir.) (transportation of securities and, eight days later, of proceeds of same securities was one "transportation"), cert. denied, 469 U.S. 1075, 105 S. Ct. 571, 83 L. Ed. 2d 511 (1984).
We are not persuaded. "Each interstate or foreign transportation of stolen securities constitutes a separate violation of § 2314, even if the various acts of transportation are part of a single scheme." Id. at 714. And where, as here, each crossing of a state line had its own illegal purpose, had its own intended victim, was made to carry out a separate transaction, and was separated by time and intervening events, each crossing of state lines constituted a "transportation" within the meaning of 18 U.S.C. § 2314, even though the same securities were involved in the two transportations. See United States v. Dilts, 501 F.2d 531, 534-35 (7th Cir. 1974) (per curiam); United States v. Brodbeck, 430 F. Supp. 1056, 1060 (E.D. Wis. 1977); cf. United States v. Wilson, 431 F.2d 1118 (8th Cir. 1970) (Mann Act), cert. denied, 400 U.S. 1022, 27 L. Ed. 2d 633, 91 S. Ct. 585 (1971); Nelms v. United States, 291 F.2d 390, 394 (4th Cir. 1961) (same). The transportation to New Jersey was accomplished to procure a bank loan; the transportation to New York was intended to victimize a purchaser. The second transportation was not a "continuation" of the first, cf. United States v. Johnpoll, supra, 739 F.2d at 715, but a separate offense.
Appellant next contends that the prosecutor failed to disclose evidence needed to challenge the testimony of Phillip Smith, one of three principal witnesses against Chitty. Because he was the only one of the thre who was not also a co-defendant, Chitty claims that Smith's testimony was especially important in proving Chitty's involvement in the illegal scheme. Defense counsel was able to impeach Smith's testimony by contrasting his testimony at trial with his initial statement to the authorities, which indicated that Chitty was not significantly involved. Not disclosed to defense counsel, however, was the fact that Smith had been notified that he was the target of an investigation by the United States Attorney's office. Prior to trial defense counsel had made a broad request of the prosecutor of exculpatory material, pursuant to Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). After trial the prosecutor trying the case first learned that others in his office were investigating Smith. Two days later the prosecutor notified defense counsel of the fact of Smith's target status.
Brady v. Maryland, supra, imposes an affirmative duty on the prosecutor to produce requested evidence that is favorable to the accused. The Brady rule applies equally to impeachment and exculpatory evidence.
The taint . . . is not erased because [the withheld information] affects only his credibility as a witness. "The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence. . . ."
United States v. Seijo, 514 F.2d 1357, 1364 (2d Cir. 1975) (quoting Napue v. Illinois, 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959)). The information that Smith had been told that he was under investigation was disclosable pursuant to Brady, see Giglio v. United States, 405 U.S. 150, 154-55, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972); it provided a motive to testify favorably to the Government, and the fact was known to the prosecutor's office, id. at 154; cf. United States v. Sperling, 506 F.2d 1323, 1332-33 (2d Cir. 1974), (Jencks Act) cert. denied, 420 U.S. 962, 43 L. Ed. 2d 439, 95 S. Ct. 1351 (1975).
Since Chitty had made only a "general request" for impeaching material,*fn1 non-disclosure of Smith's target status does not warrant a new trial unless "the undisclosed evidence, viewed in the context of the entire record, creates a reasonable doubt that otherwise would not exist." 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). See United States v. Agurs, 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976). No such doubt is created regarding Chitty's guilt because Smith's testimony was not essential to the outcome. The critical evidence against Chitty was the testimony of his accomplices, numerous documents, and his fingerprint on one of the forged documents. Though Smith's testimony implicated Chitty, it was equivocal since he could testify only that certain steps in aid of the scheme were taken either by Chitty or by one of the accomplices. The nondisclosure of impeachment material regarding a principal witness has typically resulted in a new trial where the witness supplied the critical evidence against the defendant. See Giglio v. United States, supra, 405 U.S. at 151; United States v. Seijo, supra, 514 F.2d at 1360; United States v. Badalamente, 507 F.2d 12, 16 (2d Cir. 1974), cert. denied, 421 U.S. 911, 95 S. Ct. 1565, 43 L. Ed. 2d 776 (1975); United States v. Sperling, supra, 506 F.2d at 1331. The prosecutor's failure fully to comply with the requirements of Brady does not require a new trial in this case.
Chitty next contends that the failure of the prosecutor and the District Court to grant use immunity to a defense witness denied Chitty's constitutional right to compulsory process. After being told by the prosecutor that she had made false statements to the FBI and that she was a target for prosecution, the witness invoked her Fifth Amendment privilege to remain silent. The District Court refused to direct the ...