The opinion of the court was delivered by: Haight, Senior District Judge.
Strickland estimates that during his undercover work, he
furnished the Intelligence Division with about 500 typewritten
reports, concerning the RNA, Shakur, Rison, and other
individuals. He further estimates "200 or more mentioned Mutulu
Shakur's name and 200 or more mentioned Tyron Rison's name."
CS1, ¶ 9. With respect to these reports, and the question of
Rison and the rifle, Strickland says in CS1, ¶ 10:
Expanding on that subject in CS2, ¶ 4, Strickland reasons that
the request from "someone at the Intelligence Division" for his
notes about Shakur was made after the Nyack/Nanuet incident,
"and the trial of Dr. Shakur was going to occur."
Shakur and Buck petition to vacate their convictions and for
a new trial on constitutional grounds and pursuant to Rule 33,
Fed. R.Crim.P. They contend that the substance of Strickland's
declarations entitle them to habeas relief for two reasons.
A. Yes, sir.
A. No, sir.
MS. MARTIN: Objection.
THE COURT: Sustained as to form. It's argument.
Petitioners claim that if Strickland's declarations about
Rison's theft of the rifle had been disclosed, defense counsel
could have attacked Rison's credibility more effectively, a
significant circumstance given the centrality of Rison's
testimony to the government's case.
3. The Government's Responses to the Brady Claims
The government makes three principal responses to
petitioners' Brady claims.
First, the government contends that because it had no
knowledge, actual or imputed, of Strickland's status as an NYPD
undercover agent, or of the existence or substance of his
reports to the NYPD, the government did not "suppress" that
information or otherwise fail to disclose it to the defense, so
that no Brady violation arises.
Second, the government contends that even if the defense had
known all about Strickland and his declarations at the time of
trial, the rules of evidence would have precluded defense
counsel from making any use of that information.
J. Weinstein, M. Berger & J. McLauglin, 2 Weinstein's Federal
Evidence § 405.05 at 405-41-42 (2d ed. 1997).
This distinction is illustrated by cases such as United
States v. Wilson, 586 F. Supp. 1011 (S.D.N.Y. 1983) (Weinfeld,
J.), aff'd 750 F.2d 7 (2d Cir. 1984). The defendant was
indicted of plotting to assassinate witnesses, prosecutors, and
others involved in several federal prosecutions. Prior to
trial, the government sought a ruling limiting proof that
defendant wished to make with respect to certain covert
activities of the United States in which he claimed to have
participated during the years in which his alleged felonies
took place. Such proof, defendant argued, warranted his belief
that federal authorities would not sentence and imprison him, a
belief which negated his alleged motive for tampering with
witnesses. Defendant also contended that "the evidence would
have showed the existence of certain character traits and
personal relationships that would have tended to disprove the
charges being made against him." 750 F.2d at 9.
Judge Weinfeld held that the defendant would be free at trial
"to testify to the fact that his employment with various
agencies in the United States intelligence community and to the
fact that he was involved in covert operations." 586 F. Supp. at
1017. But defendant would not be allowed to describe the
details of those matters or to offer evidence of specific acts
on his part, since the rules of evidence "do not permit
evidence of specific acts to be admitted to prove character
traits as part of an affirmative defense." Id. at 1016. Judge
Weinfeld cited as support for that proposition United States v.
Davis, 546 F.2d 583, 592-93 & n. 22 (5th Cir.) (defendant
accused of willfully escaping from prison not permitted to
introduce "prison records showing . . . a favorable work record
. . . and progress toward rehabilitation" as evidence "to
negate the likelihood of willful escape"), cert. denied,
431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977).
In addition, Judge Weinfeld reasoned that detailed proof of
such specific instances of conduct would
bring before the jury matters utterly irrelevant
to the basic charge in this case and serve to
divert the jury's attention from those basic
issues. Assuming arguendo that evidence of covert
activities, here and abroad, has some minimal
probative value in this case, such proof should be
excluded on the ground that it would unduly delay
586 F. Supp. at 1016.
The Second Circuit affirmed, stating at 750 F.2d at 9:
It is a proper exercise of a district court's
discretion to exclude evidence that is
prejudicial, confusing, or misleading, and to
exclude evidence of specific acts intended to
demonstrate character traits not at issue.
For the latter proposition, the Second Circuit in
Wilson cited United States v. Benedetto, 571 F.2d 1246, 1239-50
& n. 5 (2d Cir. 1978). Benedetto was a prosecution of a
government meat inspector who illegally received money in
connection with his official duties. The district court
permitted four so-called "character witnesses" to testify that
defendant had not taken bribes at their respective plants,
evidence of specific acts that "was ostensibly designed to
prove that Benedetto was a person of good character, unlikely
to have taken the alleged bribes." 571 F.2d at 1249. In its
opinion affirming the conviction, the Second Circuit criticized
both the district court for admitting that evidence and the
government's response to it:
Thus, the Government says that it would have been
"unfair" to bar it from rebutting this testimony
with extrinsic evidence of specific bad acts.
However, character evidence has long been
admissible only in the form of reputation and not
in the form of a recitation of good or bad acts.
Furthermore, while a character witness may be
asked on cross-examination about "specific
instances of conduct," such acts may not be proved
by extrinsic evidence of the sort offered here.
That the defense improperly attempted to establish
defendant's good character by reference to specific
good acts did not justify the prosecution's use of
testimony concerning bad acts either in its direct
case or in rebuttal.
Id. at 1249-1250. (citations and footnotes
More recently, the Second Circuit decided United States v.
Doyle, 130 F.3d 523 (2d Cir. 1997). The defendant was
prosecuted for the illegal exportation of fuel pumps to Libya,
in violation of federal trade restrictions. Following his
conviction, defendant challenged on appeal the refusal of the
district court to permit him to subpoena U.S. Army intelligence
agents from whom Doyle worked during the period of the alleged
conspiracy, and by excluding trial testimony relating to
specific actions against Libya which Doyle allegedly took in
cooperation with Army intelligence to promote the United States
security policy toward Libya. In the words of the court of
appeals, the district court held at a preliminary hearing
that Doyle would be able to testify as to the
facts of his life history and employment including
any relationship with the U.S. intelligence
agencies, but found that testimonial and
documentary evidence of specific acts taken by
Doyle in cooperation with army intelligence were
either not relevant to or inadmissible at this
130 F.3d at 541.
Doyle argued on appeal that proof of those specific acts was
"admissible under Fed.R.Evid. 405(b) to go to a direct element
of the crime charged — knowledge or intent — because those
acts indicate that he would not knowingly act contrary to
American policy toward Libya." The Second Circuit, affirming
the conviction, held that "evidence of specific acts is not
admissible under Fed. R.Evid. 405(b) when character is not an
element of the crimes charged." Id. at 542. After citing its
prior opinion in Wilson and the passage from Weinstein's
Treatise on Evidence that I have quoted infra, the Second
Circuit concluded in Doyle:
Doyle's argument that character was an element of
these charges because "he was charged . . . with
intending to violate a national security policy of
the United States[,]" distorts Rule 405 beyond
recognition. As the trial court recognized, if
specific good deeds could be introduced to
disprove knowledge or intention, which are
elements of most crimes, the exception of Rule
405(b) would swallow the general rule of 405(a)
that proof of specific acts is not allowed.
The government also cites United States v. Beverly,
913 F.2d 337 (7th Cir. 1990). The defendant was convicted with others of
participating in a narcotics operation which involved, among
other places, the sale of cocaine at Somons Lounge, a property
owned by defendant. The district court refused to permit a
defense witness, one Dr. Layne, to testify that he had never
seen defendant buy or sell cocaine outside of Somons Lounge.
The Seventh Circuit affirmed that ruling, noting that the
proposed testimony "would have revealed nothing about Mr.
Beverly's activities at Somons," and that while defendant
"undoubtedly could have called any number of additional
witnesses to testify that they never had purchased cocaine from
him," such proof "of an assertion by a negative is
inadmissible." 913 F.2d at 353 (footnote omitted). The court of
appeals also dealt with defendant's claim that Layne's
testimony was admissible as character evidence, stating on that
Beverly's character was not an essential element
in this case; character evidence may not be proved
by specific instances of conduct, such as Mr.
Beverly sought to introduce through Dr. Layne,
unless character of a person is "an essential
element of a charge, claim or defense." Fed.
913 F.2d 337 at n. 23.
In support of the admissibility of the substance of the
Strickland declarations, petitioners rely upon United States v.
Sheffield, 992 F.2d 1164 (11th Cir. 1993), in which defendant
was convicted of embezzling United States Air Force property by
ordering his subordinates at an air force base to use
government time and materials to manufacture fishing equipment
for his personal use. The district court excluded defendant's
proffered evidence "pertaining to the custom of using base
facilities to produce authorized retirement gifts for
high-ranking employees." 992 F.2d at 1169. The district court
concluded that the evidence was irrelevant because "the base
practice of making authorized retirement gifts had no bearing
on whether Mr.
Sheffield ordered fishing lures made for his own benefit."
Id. at 1170. The Eleventh Circuit disagreed and reversed the
conviction, reasoning that "[e]vidence of the gift-making
custom was relevant to Mr. Sheffield's state of mind when he
ordered the production of fishing lure molds," and because it
had "a tendency to make more probable Mr. Sheffield's claim
that his request for fishing lure molds was part of a
legitimate base project" (citing Fed.R.Evid. 401). As the
Eleventh Circuit noted:
Without this evidence of the gift-making custom,
production of fishing lure molds on a U.S. Air
Force base must have seemed to the jury like the
oddball project of a renegade fisherman.
Sheffield is of no assistance to the petitioners at bar. The
evidence of the gift-making custom was improperly excluded, the
Eleventh Circuit held, because it deprived defendant of support
for his contention that he had no illegal intent when he
ordered production of the molds in question. In the case at
bar, petitioners were accused of murder, robbery, and other
acts of violence, which no practice or custom (even if one was
suggested) could justify.
Given these authorities, it is plain enough that if Shakur
and Buck had been fully aware of Strickland's declarations and
impressions at the time of trial, and had sought to prove them
by calling Strickland as a witness, I would have excluded the
evidence. Strickland was not in a position to offer anything
more probative than circumstantial evidence of character, which
under the rules of evidence and controlling appellate authority
was not admissible. Shakur's character did not form an
essential element of the government's charges against him; nor
may Shakur's character be regarded as an essential element of
his defense, without permitting Rule 405(b) to swallow up Rule
405(a) in the manner prohibited by the Second Circuit in
Doyle. Shakur could have testified generally as to his beliefs
and conduct, as the trial courts in Wilson and Doyle indicated
those defendants could do; but Shakur elected not to take the
In addition, Strickland's descriptions of Shakur's conduct at
specific events not referred to in the indictment would have
the potential of confusing the jury and distracting its
attention from the basic issues in the case. The evidence would
accordingly fail to pass muster under Rule 403, Fed.R.Evid.
Accordingly, petitioners' Brady claims fail on this ground as
well, since undisclosed evidence cannot form a basis for
post-trial relief if that evidence could not have been admitted
at the trial in any event.
The second Brady contention arising out of the Strickland
declarations relates to Rison's comments about the M-16 rifle,
which Strickland interpreted as an acknowledgment by Rison that
he stole the rifle from the Army base at Fort Bragg.
The admissibility at trial of Strickland's evidence on that
point is also problematic. It is clear from the trial
transcript, quoted supra, that Shakur's counsel knew from other
sources — apparently including the Reverend Mr. Chavis — that
Rison might have stolen the M-16. Counsel confronted Rison with
that subject during cross-examination. While the government did
not object at the time, counsel's inquiry about this specific
instance of Rison's conduct, theft of a rifle, implicates Rule
608(b), Fed.R.Evid., which limits such inquiries on
cross-examination to conduct "if probative of truthfulness or
untruthfulness." The 1972 Advisory Committee Notes observe that
"the possibilities of abuse are substantial" when counsel
cross-examines a witness about "[p]articular instances of
conduct, though not the subject of criminal conviction," and
stress that "[c]onsequently safeguards are erected in the form
of specific requirements that the instances inquired into be
probative of truthfulness or its opposite and not remote in
time." It is generally held that crimes of theft are not
probative of truthfulness. See J. Weinstein, M. Berger, J.
McLauglin, 4 Weinstein's Federal Evidence. ¶ 608.12[b] at
608.34-34.5 (2d ed. 1997) ("Some behavior, though illegal or
immoral, may not be relevant to truthfulness. For example,
robbery . . . doe[es] not directly relate to truthfulness . .
But even if Rison's suggested theft of a rifle should be
regarded as probative of his
truthfulness as a trial witness and sufficiently close in time
to the events he described, that would do no more than entitle
Shakur's counsel to inquire into the subject on
cross-examination, which counsel did. Strickland's declarations
on the subject, if offered by the defense at trial, would be
viewed as an effort to prove Rison's prior conduct by
"extrinsic evidence," an exercise that Rule 608(b) explicitly
Even if (contrary to my conclusions) the prosecution team had
knowledge, actual or imputed, of the substance of the
Strickland declarations, and (also contrary to my conclusions)
Strickland's testimony would have been admissible at trial
under the rules of evidence, petitioners are not entitled to
habeas relief unless the evidence that the government failed to
disclose was material in the sense defined by Kyles v. Whitley,
514 U.S. at 433, 115 S.Ct. 1555. Evidence is "material" in the
Brady context "if there was a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different." Id. (citation omitted).
On this aspect of the case, these petitions fail utterly.
Strickland's declarations do not pretend to address directly
whether or not petitioners committed the acts charged against
them. That is not surprising, since Strickland has no knowledge
of those matters. Rison, according to his trial testimony, had
a great deal of knowledge, and one can only infer from the
verdict that the jurors credited that testimony, which was
sufficient in law to convict both petitioners, even without
independent corroboration. In point of fact, the government
offered significant corroborating evidence. I need not recount
it in detail. Petitioners argue that the corroborating evidence
lacked substance. Defense counsel made that argument at trial.
The argument was not persuasive then and comes too late now.
Given the government's trial evidence, it is impossible to
conclude that if the jury had heard Strickland's testimony that
at other times and in other places he did not observe Shakur
commit criminal acts — which is all it really comes down to —
it is reasonably probable that the jury would have acquitted
Shakur and Buck.
There remains the issue of Rison's credibility in the jurors'
eyes, as it might have been affected by Strickland's account of
the M-16 rifle remarks. I acknowledge the centrality of Rison's
importance to the government's case; no one could reasonably
deny it. Petitioners' argument on this aspect of the case comes
down to the proposition that Rison lied on cross-examination
when he denied stealing the M-16. For the purposes of this
argument, I will assume that this testimony was false.*fn8 The
significance of this assumed lie suffers in comparison with
Rison's testimony, corroborated by FBI agents, that after he
decided to cooperate with the government, Rison led agents to
a remote location in Georgia where he had hidden the weapon,
which Rison testified he had used during the June 2, 1981 Bronx
armored car robbery and murder. Rison's knowledge of the hiding
place of the rifle after using it to commit one of the charged
offenses is infinitely more probative of the issues at trial
than the manner in which Rison acquired the rifle before
commission of the crime.
To be sure, Rison's assumed falsehood on the latter point
would have reflected unfavorably on his credibility; but trial
judges routinely instruct jurors that if they conclude that a
witness has testified falsely upon a particular point, they may
reject the testimony of that witness entirely, or accept such
parts of it as they find credible or corroborated by other
evidence in the record. Rison's knowledge of where the M-16 was
hidden is in itself striking corroboration of his account, and
there is much else of a corroborative nature in the record.
It is also pertinent to note that while Rison's assumed
falsehood about how he obtained the rifle could, conceptually
at least, impeach all his trial testimony, it would at the very
most have been cumulative, in a case where the defense had a
great deal of material with which to impeach Rison — including
a number of murders — and did so at
considerable length. The Second Circuit has made it plain that
even where the government fails to disclose evidence which
clearly falls within Brady, a conviction will not be overturned
if the non-disclosed evidence would have done no more than
furnish an additional and cumulative ground for impeaching the
witness. In those circumstances the court of appeals regards
the non-disclosed evidence as not material, since even without
it the jury "had a fair opportunity to evaluate the witness's
credibility." See United States v. Gambino, 59 F.3d 353, 366
(2d Cir. 1995), cert. denied, 517 U.S. 1187, 116 S.Ct. 1671,
134 L.Ed.2d 776 (1996); United States v. Locascio, 6 F.3d 924,
949 (2d Cir. 1993), cert. denied, 511 U.S. 1070, 114 S.Ct.
1645, 128 L.Ed.2d 365 (1994).
In the circumstances of this case, I am unable to conclude
that if the jury believed Rison lied when he denied stealing
the M-16 rifle, it is reasonably probable that it would have
acquitted Shakur and Buck on these charges.
Accordingly, petitioners' contentions, based upon the
Strickland declarations, that the government violated its
Brady obligations of disclosure fail. They fail because (1) the
prosecution team had no knowledge, actual or imputed, of
Strickland or his undercover reports, and so, not possessing
that information, cannot be faulted for not disclosing it; (2)
the substance of Strickland's declarations, even if known to
the defense, would not have been admissible at trial; and (3)
the substance of the Strickland declarations was not material
for purposes of Brady analysis. Any one of these factors would
be fatal to these petitions; all three are present.*fn9
Petitioners also contend that they are entitled to a new
trial under Rule 33, Fed. R. Crim.P., because Rison's alleged
perjury with respect to the M-16 rifle constitutes newly
discovered evidence of sufficient significance to invalidate
The first obstacle that petitioners encounter is that perjury
of a government witness cannot form the basis of a new trial
under Rule 33 if the perjurious nature of the testimony in
question was known to the defense at the time of trial or
discoverable by due diligence. See Harris v. United States,
9 F. Supp.2d 246, 253-57 (S.D.N.Y. 1998) (collecting Supreme Court
and Second Circuit cases). In the case at bar, Rison's possible
perjury with respect to his acquisition of the M-16 rifle arose
out of circumstances known to Shakur's defense team at the time
of trial. That is apparent from the thrust of counsel's
cross-examination. Armed with ammunition supplied by Rev.
Chavis or whatever other source, counsel put it to Rison
directly that he had stolen the rifle, and had acknowledged the
theft to others. Rison denied counsel's assertions. While
Strickland's interpretation of what Rison said to him was
consistent with counsel's accusation, the accusation itself was
not founded upon evidence newly discovered after trial.
At least that is so, unless Strickland's status as a police
officer endows his testimony with so enhanced a resonance that
it becomes "newly discovered" within Rule 33. If one takes that
view of the case, it falls within the general principles
articulated by the Second Circuit in United States v. Torres,
128 F.3d 38, 48-49 (2d Cir. 1997):
When a motion for a new trial rests on newly
discovered evidence, the defendants must show: (1)
that, with due diligence they could not have
discovered the evidence
during trial, (2) that the evidence is material,
and (3) that the evidence is noncumulative.
Where the newly discovered evidence is the
existence of allegedly perjured testimony, the
defendant must first demonstrate that perjury was
in fact committed. And if the prosecution was
unaware of the perjury, the defendant must also
show that the jury probably would have acquitted
in the absence of the false testimony. If instead
the prosecution knew or should have known about
the perjury, then the conviction will be set aside
if there is any reasonable likelihood that the
false testimony could have affected the judgment
of the jury. Thus, whether the introduction of
perjured testimony requires a new trial depends on
the materiality of the perjury to the jury's
verdict and the extent to which the prosecution
was unaware of the perjury (internal quotation
marks and citations omitted).
Applying these principles to the case at bar, petitioners
must first demonstrate that Rison in fact committed perjury
when on cross-examination he denied stealing the rifle. Do the
Strickland declarations, if one accepts their assertions as
true, demonstrate that perjury? In his first declaration,
Strickland says that Rison demonstrated the rifle and "told me
he had got it off the base at Fort Bragg"; the first
declaration does not ascribe to Rison the word "steal."
Strickland's second declaration expands on that subject. He
acknowledges that Rison "may not have used the word `steal,'"
but "from the way that Mr. Rison spoke I understood him to say
that it was he who took he rifle off the base at Fort Bragg and
that he had actually stolen it." Specifically, Strickland
reasoned that because Rison "did not say he had gotten [the
rifle] from anyone else who had taken it from the base at Fort
Bragg," and did not describe "anyone else involved in his
getting the rifle I understood that what he was saying was that
he had actually stolen the rifle which was at Fort Bragg."
Perhaps; but perhaps not. Strickland's declarations fall well
short of portraying Rison as a self-confessed rifle thief.
Strickland may simply have placed the wrong interpretation on
what Rison told him. The government contends that he did,*fn10
and offers in support of that contention the affidavit of FBI
agent Daniel B. Caylor. Caylor says that during 1986 and 1987,
he participated with others in several debriefings of Rison.
Affidavit, ¶ 5. At one of those sessions "Rison was asked about
how he came into possession of the M-16 rifle which he had used
during the commission of the Bronx Brinks robbery charged in
both Shakur's and Buck's indictments." Id. Caylor recounts the
substance of Rison's response at ¶¶ 6-8:
6. As best I can recall, Rison indicated to us
that sometime in the 1970's (prior to the first
predicate act of racketeering charged in Shakur's
indictment), he was in Wilmington, North Carolina.
While he was there, Rison said either that he met
with one individual or two to three individuals
who showed him a crate containing several M-16
rifles. The individual(s) who showed Rison the
rifles indicated to him that they had been stolen
from a military base. Rison purchased one of the
rifles from this (these) individual(s). Rison said
either that he gave the individual(s) cash or
another weapon in exchange.
7. At no time did Tyrone Rison or anyone else ever
tell me that Rison himself had stolen the M-16
rifle in question.
8. Fort Bragg, a United States military
installation, is located in Fayettville, North
Carolina, which is between one and two hours by
car from Wilmington, North Carolina
On this record, it is doubtful that petitioners have made the
threshold showing "that perjury was in fact committed."
Torres, 128 F.3d at 48. But I need not pursue the question
further, because it is apparent in any event that petitioners
are not entitled to habeas relief on this ground.
Torres goes on to instruct that "if the prosecution was
unaware of the perjury, the
defendant must also show that the jury probably would have
acquitted in the absence of the false testimony." 128 F.3d at
48. For the reasons set forth in the closely related
Brady consideration of the prosecution's knowledge of
Strickland and his declarations, neither actual nor imputed
knowledge may be ascribed to the government. And, as in the
Brady context, I cannot conclude that "the jury probably would
have acquitted" in the absence of Rison's denial that he stole
the rifle (assumed to be perjurious for the purpose of this
If, contrary to my conclusion, the government "knew or should
have known about the perjury," the conviction would be set
aside only "if there is any reasonable likelihood that the
false testimony could have affected the judgment of the jury."
Torres, 128 F.3d at 49. In the totality of the circumstances of
this case, I do not think that petitioners have made even that
less demanding showing.
Petitioners make other arguments in support of habeas relief.
I have considered them all, and also find those not discussed
in this Opinion to be without merit.*fn11
I hold that the petitions must be dismissed, and that neither
discovery nor an evidentiary hearing are necessary or
The Clerk of the Court is directed to dismiss the petitions
It is SO ORDERED.