Earl Bowe and; (3) that another group of bank robbers in New Jersey had used a "modus operandi," virtually identical to that used in the New York robberies for which Bohanan was convicted.
To meet his burden on this petition, Bohanan must demonstrate that had the aforesaid evidence been disclosed to the defense, and been available at his trial, there is a reasonable probability that the result would have been different; see United States v. Bagley, 473 U.S. 667, 678, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985); i.e., that there is such likelihood that the result would have been different as to undermine confidence in the result reached. Moreover, as the Supreme Court noted in United States v. Agurs, 427 U.S. 97, 110, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976), the good or bad faith of the prosecutor in failing to disclose the alleged evidence is not either dispositive or relevant in deciding whether the nature of the evidence not disclosed, taken in the context of all of the trial evidence, is such as to, as in objective matter, undermine confidence in the result reached.
Petitioner has failed to meet that burden. Davenport, as a co-conspirator and accomplice witness for the Government, testified in detail at trial as to Bohanan's involvement in the planning, Trial Transcript ("Tr.") 323-331, 362-67, 379-383, 523-25, 529-532, and execution, Tr. 368-79, 383-90, 532-36, of the bank robberies for which Bohanan was convicted. Moreover, much of Davenport's testimony was corroborated by Cumming, a long-time acquaintance of Bohanan, who testified that Bohanan admitted to him that he had robbed the four banks set forth in the indictment, Tr. 969-84, and who identified Bohanan as one of the robbers in the bank surveillance photos taken in the MHT robbery, Tr. 985-86.
Since Bohanan's convictions were based almost entirely upon the testimony of Davenport and Cumming, it was their credibility that was the crucial issue at trial as the trial record reflects. Thus, they were cross-examined extensively and their credibility, or lack thereof, was the principal focus of the defendant's arguments on summation. See Tr. 1186-1196.
None of the alleged newly discovered information would or could have any substantial impact on the credibility of these witnesses. The fact that there may have been other suspects, one of whom obtained some of the proceeds of the robbery, would have in no way detracted from the probative face of their testimony or added significantly to the evidence already available to impeach them.
The so called "modus operandi" proof stands in no better posture. Were this a case where the identity of the bank robbers was established by the fact that they had used an identical modus operandi with respect to other robberies with which the defendants were shown to have been connected, there might be some colorable support for a claim that the fact that others had used an identical modus operandi might have caused the jury to reject an inference of identity based upon that identical modus operandi. However, where as here, the identity of Bohanan as a participant in the robberies was based upon the testimony of an accomplice and his admissions to a long time friend, the fact that others might have used an identical modus operandi is essentially irrelevant because modus operandi was not the basis for establishing Bohanan's participation in the bank robberies alleged.
Nor do claims of deliberate concealment and prosecutive misconduct enhance the validity of Bohanan's claims. Indeed, the good faith or bad faith of the prosecutor is not a factor in determining whether a new trial should be ordered based upon newly discovered evidence. United States v. Agurs, supra, 427 U.S. 97, 110 (1976). It follows that the cases relied upon by petitioner with respect to prosecutorial misconduct are legally and factually inapposite. Those cases did not involve an alleged Brady non-disclosure, where the good or bad faith of the prosecutor is neither dispositive nor relevant. See e.g. United States v. Valentine, 820 F.2d 565, 571 (2d Cir. 1987); United States v. Crouch, 566 F.2d 1311 (5th Cir. 1978). Moreover, petitioner's reliance on United States v. Morell, 524 F.2d 550 (2d Cir. 1975) is misplaced because the Supreme Court abandoned the Morell standard in United States v. Agurs, supra, 427 U.S. at 119 (Marshall, J., dissenting).
Since a review of the motion papers, files and records of the case conclusively show that Bohanan is not entitled to relief, his petition is dismissed without a hearing.
It is SO ORDERED.
Dated: New York, New York
May 19, 1993