Gibbons, Circuit Judge, Markey,*fn* Chief Judge of Court of Customs and Patent Appeals and Weis, Circuit Judge.
Opinion ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
The government petitioned for certiorari from our decision in United States v. McCrane, 527 F.2d 906 (3d Cir. 1975), and on June 30, 1976, the Court granted certiorari, vacated our judgment, and remanded the case for further consideration in the light of United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342, 44 U.S.L.W. 5013 (1976). We requested and received the parties' views of that opinion's effect on the case sub judice. After careful analysis of Agurs, we conclude that it does not require alteration of our original decision.
The Supreme Court's opinion discussed the prosecutor's obligation to disclose evidence in its possession that would be material to the defense. The standard of materiality varies in three described situations where:
1. The prosecution used perjured testimony;
2. The defense requested specific evidence;
3. The defense made no request, or only a general one, for exculpatory material.
In the first situation, typified by such cases as Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972); Napue v. Illinois, 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959); and Mooney v. Holohan, 294 U.S. 103, 79 L. Ed. 791, 55 S. Ct. 340 (1935), the convictions must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. This strict standard is applicable because the truth-seeking function of the trial has been compromised and prosecutorial misconduct was present.
In the second category, the Court analyzed Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), where the defense had made a pretrial request for specific exculpatory evidence, and stated:
"If a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge. When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable." 427 U.S. at 106, 96 S. Ct. 2399, 49 L. Ed. 2d 342, 44 U.S.L.W. at 5016
Finally, if no request is made, or if it is couched in such broad terms as "all Brady material" or for "anything exculpatory," the Court prescribed a third standard. In this context, to establish a constitutional violation, the defendant need not carry the severe burden of demonstrating his probable acquittal. As the Court phrased it:
"The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. . . . If the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. . . . If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt." 427 U.S. at 112, 96 S. Ct. at 2401, 49 L. Ed. 2d 342, 44 U.S.L.W. at 5017-5018
Agurs ' applicability to the case at bar is subject to some doubt since we are concerned only with impeaching evidence. As the Supreme Court noted, Agurs "involve[d] no misconduct, and . . . there [was] no reason to question the veracity of any of the prosecution witnesses. . . ." 427 U.S. at 104, 96 S. Ct. at 2398, 49 L. Ed. 2d 342, 44 U.S.L.W. at 5015. It may be questioned, therefore, whether there has been any change in the Giglio standard when only impeaching evidence is under scrutiny. See United States v. Sutton, 542 F.2d 1239 (4th Cir. 1976); Brach v. United States, 542 F.2d 4 (2d Cir. 1976). Nevertheless, since the case has been remanded, we re-examine the record under the Agurs test and assume its applicability.
The evidence is set forth in our original opinion at 527 F.2d 906 (3d Cir. 1975). We need only touch on some pertinent matters now. The indictment charged the defendant with conspiracy and with ten counts alleging that he aided and assisted various companies in making improper income tax deductions. The defendant allegedly advised certain donors to a political campaign that he would have false invoices for advertising services sent to them so they could deduct the disguised contributions as business expenses. The trial judge, at the conclusion of the government case, dismissed the ...