The opinion of the court was delivered by: LACEY
The defendants have moved for a new trial on Count II of the indictment, the count on which their conviction at trial was upheld by the Court of Appeals for the Third Circuit, 537 F.2d 40 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748 (1977). Additionally, they move for an evidentiary hearing to adduce support for said motion. For the reasons hereinafter set forth, the application for an evidentiary hearing and the motion for new trial are denied.
The movants preface their legal arguments with what is an unacceptable analysis of the evidence in the case. Their principal theme is that their convictions resulted from the unsupported testimony of the government witness, Arthur Sutton, of whose criminal propensities the jury, because of prosecutorial wrongdoing, was ignorant. Thus, the IFC defendants (Dansker, Haymes and Orenstein) jointly state (Brief in Support of Motion, 4-5):
. . . The Government's entire case . . . rested . . . squarely and exclusively on the live, in-court and uncorroborated testimony of Arthur Sutton. . . .
At another point, the same defendants argue (Id. at 6):
. . . Sutton was portrayed to the jury as a businessman of integrity and honesty. . . .
This distorts the record.
The proof against the defendants was overwhelming; and the evidence came from a variety of sources, not simply from an "uncorroborated" Sutton. Nor did the government depict Sutton to the jury as a "businessman of integrity and honesty." Not only was his total involvement in the illegal activity charged made sharply evident at trial, but over the objection of all defendants, the government was permitted to show that in the months preceding the time covered by the indictment, Sutton participated with the IFC defendants in embezzling corporate funds from IFC through the use of fraudulent means.
Given the defendants' grossly inaccurate characterization of the facts of the case, and the support they seek to derive from those facts, as thus represented, it is necessary that I review extensively the evidence as it related to the charges against the several defendants.
I. THE NATURE OF THE CHARGES
As tried, the indictment consisted of a substantive count to bribe Mayor Ross (Count II), a substantive count to bribe Nathan Serota (Count III), and a count charging a conspiracy to bribe Ross and Serota (Count I). The Court of Appeals reversed the judgments of conviction of all defendants under Count III and vacated the convictions under Count I. The case was remanded to this court with directions to enter judgments of acquittal for the defendants under Count III and for further proceedings as to Count I. The judgments of conviction on Count II were affirmed.
Underlying the arguments of movants here is a basic misconception: that because the "bribe" of Serota was held not to be a crime, the evidence related to the Serota transaction must, on this application, be ignored. To the contrary, it was a necessary first step to "take care" of Serota before Ross could be approached. 537 F.2d at 45. Thus, in sustaining the conviction on Count II, the Court of Appeals, per Chief Judge Seitz, stated:
Diaco, to make Ross more amenable to his bribe offer when he first approached Ross, said:
That fellow Serota is killing you -- publishing ads knocking this project. With Serota there is going to be no problems. Serota has been taken care of.
Tr. 648. Ross then asked:
Do you know what you are talking about?
Id. The path was now clear for the planned advance to Ross. In this light I shall now review the testimony.
II. SUTTON AS "PORTRAYED" TO THE JURY
The evidence as presented by the government made it starkly plain that if the defendants on trial were corrupt, venal and criminal, so was Sutton. Indeed, because the positions of Sutton and the IFC defendants were precisely the same, that is, men so desperate to avoid losing millions of dollars that they combined to bribe a public official, the government had no choice but to paint Sutton with the same brush of guilt, under its theory of the case.
As I have noted under I, supra, the bribery of Ross was practical only after Serota's opposition to the George Washington Plaza Project [GWPP] had been stilled. The government elicited from Sutton on direct examination his admissions that he was involved in not only raising but passing cash to both Serota and Ross, and in thereafter engaging with the IFC defendants in the fraudulent utilizing of GWPP "closings" to obtain reimbursement. He admitted that it was he who had first proposed the bribery scheme to the IFC defendants. He stated that his motive -- and theirs -- was to prevent financial ruin. He did not attempt to mitigate his guilt by claiming that he had been coerced, or threatened with physical injury, into committing the crime charged. He described his meetings with Valentine and how he, Sutton, had become involved in the corrupt scheme after Valentine told him that the project's success required two "problems" to be resolved, Serota and Ross. He admitted he had passed on the cash to Diaco for delivery to Serota. He related too how he had arranged for Ross to receive the first $100,000; and, of course, through Ross' testimony and tape recordings the government tendered evidence that Sutton was present with Diaco at two meetings with Ross, including the occasion when Ross received from Diaco $100,000 on account of the $500,000 Ross was to receive overall. While highly condensed, this brief description of but a small portion of the government's case suffices to show that on the government's case Sutton was portrayed to the jury as exactly what he was, a dishonest businessman utterly without integrity.
Moreover, in addition to the impeachment material brought out on Sutton's direct examination, the jury was given, through skilled and lengthy cross examination, a penetrating insight into Sutton's background. As the Court of Appeals observed:
Moreover, we do not believe that the balance struck by the district court unduly restricted the non-IFC defendants' right to conduct a meaningful cross-examination. The evidence before the jury was more than sufficient for it to conduct a "discriminating appraisal" of Sutton's credibility. See United States v. Mallah, 503 F.2d 971 (2d Cir. 1974). The jury was fully aware of his prior conviction, his expectations of leniency and his previous unlawful activities. In addition, his credibility was repeatedly and severely assailed from every conceivable angle over a cross-examination which covered more than 1,100 pages of a 2,600 page transcript. In this context, we find no error in the district court's decision to exclude a few questions as to the title of a tax statute which were, at best, of limited probative value in discrediting Sutton's testimony. To the extent that any defendant other than Valentine and Valentine Electric seeks to advance this argument we find it equally lacking in merit.
The cross examiners were, of course, most familiar with numerous intimate details of Sutton's background. At trial I noted the thoroughness of their investigation into Sutton's past.
Dansker's counsel, for example, elicited from Sutton that he had sold an automobile to a Mr. Wilner at the County Trust Company. Tr. 1847-48.
Orenstein's counsel asked Sutton about his relationships with one Robert Brown (Tr. 2132; 2294-95); had Sutton admit that he and a Mr. Comras were attempting to acquire a Rolls Royce automobile agency (Tr. 2170); brought out that Sutton's Rolls Royce was a model unlike Serota's (Tr. 2172); and knew that Tony Cutrupi's daughter worked for Sutton (Tr. 2183).
Counsel inquired whether Sutton had made certain statements to one Dennis Smith who, counsel knew, had done publicity work for Sutton in the past (Tr. 2463). They knew who Sutton's neighbors and social friends were (Tr. 2462); that Sutton had told someone he expected at most "a slap on the wrist" (Tr. 1698); that he owned or had owned 22 corporations (and the names of most of them) (Tr. 1713-16); that he was an experienced builder (Tr. 1719-21); and that he had relationships with Comras
(Tr. 1721-23; 2188) [and defendants raised in summation why Comras had not been called as a witness by the government (Tr. 3378-80) (Valentine's counsel); (Tr. 3652; 3655) (Haymes' counsel); (Tr. 3710) (Dansker's counsel)];
that Sutton was involved in various leases (Tr. 2188); and that "Tony C" was not Tony Cutrupi.
Thus, as they went into Sutton's past, they dredged up material that reflected meticulous preparation of the defense. This material, moreover, was used to advantage by the learned and skilled defense attorneys, whose background speaks for itself.
The cross-examination of Sutton on the substantive aspects of the case left him unshaken in his basic themes. On the other hand, the impeachment aspect of his cross was relentless. He admitted he had pleaded guilty to a one-count information but had not yet been sentenced 5-6 months later. Tr. 1696. He "hoped to win leniency" on sentencing by his testimony. Tr. 1698. He "hoped" the court would bear his testimony in mind when it imposed sentence. Tr. 1698-1701.
Two months after indictment he started to cooperate with the government and had met with them 7-8 times a month, at least in the early months. Tr. 1701-11. He decided to cooperate because he wanted to help himself. Tr. 1711.
He was taken through the Fed.R.Cr.P. 11 guilty plea proceedings and his admissions of guilt (Tr. 1791; 1938 et seq., -2527; 2539), and he admitted he was allowed to enter a plea to a one-count information when he had committed crimes for which he could go to jail for many years. He admitted he had committed the crime of conspiracy to commit the crime of bribery. Tr. 2527-30.
Sutton had testified before the Grand Jury. Defendants had his transcript and questioned him about discrepancies between his trial and grand jury testimony.
Also, defendants submitted, and I gave, jury charges on Sutton's credibility, including the so-called "accomplice" charge, and references to his expectation of leniency and his conviction of a crime.
The cross-examination by these experienced lawyers, when it was done, had not portrayed Sutton as a businessman of integrity and honesty. And if there still is doubt about the inaccuracy of defendants' present claim that it did, it is removed by a review of the summations given by their trial counsel as they commented about the testimony they had thereby developed. In the words of the Court of Appeals, 537 F.2d at 60, the jury had been given an opportunity for a "discriminating appraisal" of Sutton.
He had been shown to be a greedy opportunist who corrupted a political campaign and, by his own voice on tape, the jury heard him discuss bribery with Diaco and Ross. This was not a portrayal of innocence.
Significantly, not one counsel argued to the jury what is argued by counsel involved in this proceeding, that the government had misleadingly "portrayed" Sutton as "a businessman of honesty and integrity."
Indeed, if such an argument had been made, it would have been without basis and, if objected to, would have been stricken by me.
I find that at trial Sutton was portrayed to the jury as a crooked businessman who readily stooped to corruption, a man who lived beyond his means, who readily accepted the fact that Ross and Serota should be bribed, and who sat in on bribe discussions with Ross and Diaco. He was portrayed as a man who quickly agreed, in the pre-conspiracy payments, to make it possible for the controlling persons of IFC, Dansker, Haymes and Orenstein, to steal from their corporation through the fraudulent closings device. He was portrayed as a man who had cooperated with the government only after he knew he had been "caught," and as a man who hoped that his testimony against the defendants would draw as a sentence no more than a "slap on the wrist."
Indeed, all trial counsel took the foregoing aspects of Sutton, as revealed at trial, and used it in arguing that their clients were respectable businessmen as contrasted with Sutton.
III. THE CASE AGAINST DIACO AND VALENTINE.
A. The Serota Transaction
There seems to be little if any dispute about the fact that Serota was vocally and forcefully opposed to the GWPP and that Sutton and others set out to "buy" Serota's silence and withdrawal of his opposition. It is likewise not seriously disputed that the attempt to bribe Ross had to wait until Serota had been "taken care of." Moreover, that a nominee (Orenstein's brother-in-law) was named as the "buyer" of the Serota apartment in a contract which reflected anything but a routine sale is likewise not in contention, nor is so much of Sutton's testimony that $900,000 was to go to Serota for an apartment valued at $500,000; that Serota could live in the apartment rent-free until September 30, 1978; that he was given the option, exercisable at any time prior to three months before the expiration of the so-called "sublease," to repurchase the apartment for $300,000, representing quite obviously a $600,000 "payoff;" and that he, Serota, agreed to withdraw his opposition to the project. See 537 F.2d at 45. What is in dispute is Sutton's testimony naming the various defendants as participants in the Serota transaction, and that Serota got, in addition to the consideration stated in the contract, $200,000 in cash. Id.
I start with Diaco. Sutton's testimony links him to the Serota "pay-off." The jury had abundant corroboration of Sutton's statement. Thus Ross testified that on May 26, 1974, he met with Sutton and Diaco at the Forum Diner. He repeated what he had been told by Diaco one week before (Tr. 648), that Serota had now been "taken care of" and Sutton, in Diaco's presence, affirmed it. Tr. 854. It was at this latter meeting when Ross received $100,000 from Diaco as testified to by Ross and corroborated by recording. Tr. 854-63. If Diaco had nothing to do with Serota, how was he able to state to Ross on May 19, 1974 that Serota had been "taken care of"? It is of some significance too that, according to Ross, Diaco first proposed to him that he, Ross, could be paid off by buying some property from him, as, of course, had been done with Serota. Tr. 771-73.
Moreover, one cannot read the transcripts of the Ross-Diaco conversations without perceiving the overpowering inference that Diaco had an intimate knowledge of what was at stake in connection with the GWPP, and that in the sequence of things, Diaco knew it had been decided, by whoever had constructed the scheme, that Ross could be dealt with only after Serota's silence had been purchased.
This then is corroborative of Sutton's testimony that, following certain conversations he had had with Valentine, Diaco came by and took cash to the Serota closing to "take care of" Serota.
Obviously, the case against Valentine, in reference to the Serota transaction, is bolstered by the materials just covered relating to Diaco's involvement. Partners in at least one building project, Valdiac (an acronym for Val entine and Diaco), and principals in Valentine Electric Company, an electrical contractor, both had indicated a desire to get the electrical contract on the GWPP. Cf. Tr. 751-53.
Thus Valentine's claim, like Diaco's, that Sutton's testimony as to their alleged criminal involvement in the Serota transaction was uncorroborated must be rejected.
Sutton testified that Valentine had come to him on or about April 14, 1974 to tell him he had two problems, Serota and Ross, in the way of GWPP. Tr. 1354, 1366-67, 1380, 1396. Valentine did not deny having meetings with Sutton, thus confirming the numerous diary entries made by Sutton. He simply claimed they were unrelated to bribery of Ross or pay-offs to Serota. Yet, if, contrary to what the government contends, Valentine did not construct the first version of the Serota transaction, who did?
The first closing took place on May 10, 1974. As Orenstein's counsel brought out on his cross-examination of Sutton, the latter had not even met Serota until he was introduced to him on May 11, 1974 by Orenstein who had been at the May 10, 1974 closing. Tr. 2170. Sutton testified Orenstein had telephoned him from the closing to ask who Diaco was and why he was there. No one denied that Diaco was there.
Moreover, on April 14, 1974, the day, as Sutton testified, that Valentine first broached the subject of Serota and Ross, a toll call went from Valentine Electric Company to Serota. Tr. 1368-72; Tr. 1502-74.
No explanation of this was ever forthcoming at trial from either Valentine or Serota.
After the second closing on May 15 on the Serota transaction, Sutton testified, he telephoned Valentine to complain that Serota was not keeping his end of the bargain. Valentine, he testified, said, "We will get back to Mr. Serota and we will call you back." Tr. 1502. Ex. G-723 shows two telephone calls that day from Valentine Electric Company to Elota Realty. Ex. G-723a reflects that same evening there was a telephone call from Serota's home to Valentine Electric Company. Later, according to Sutton, Valentine called Sutton and told him matters were now taken care of and that Serota would issue a statement approving the project. That this is in substance what happened is clear; and any doubt at all about it is removed by Serota's grand jury testimony which was read into the record.
Again there was no explanation, even on summation, of why Valentine and Serota were conferring. Instead, while a violent attack was made upon Sutton's credibility, Valentine's counsel avoided any mention of his client doing (or not doing) business with Serota; and did not deny the government's claim that his client had been the architect of the Serota-Ross bribery scheme. Equally significant, in view of the government's claim that Diaco and Valentine were working together on the twin problems of Serota and Ross, Valentine's counsel offered no explanation of why Diaco, the vice president of Valentine Electric Company (which Valentine's counsel also represented), would be able to announce to Ross, as Ross said he had, that Serota had been "taken care of."
B. The Attempted Bribe of Ross
As to Diaco, it appeared that each time Valentine and Sutton had a conversation relating to bribing Ross, Diaco would shortly after be in contact with Ross. This significant sequence was never explained or even dealt with at trial by either Valentine or Diaco. The inference was clear: Valentine's dealings with Sutton were matched by Diaco's dealings with Ross.
The case against Diaco is strengthened when it is realized that the entire scheme involved, as a prelude to bribing Ross, the silencing of Serota. Here, as Ross testified, Diaco, when he first approached Ross, told him Serota had been "taken care of."
Now he, Diaco, was ready to deal with the second of the two "problems," namely, Ross.
To argue that Diaco's conviction depended on Sutton's uncorroborated testimony is absurd. Indeed, at trial his counsel, on summation, dealing with Diaco's meetings with Ross, obviously unable to refute the tape-recorded evidence of his client's guilt, conceded the payment of cash to Ross. His only argument was that Diaco was a "fish . . . my poor client . . . lured into that position by the Mayor." Tr. 3347.
Nor did counsel for Valentine and the company deny Diaco had attempted to bribe Ross, or that $100,000 in cash had been delivered to Ross by Diaco. Instead he berated Ross for allegedly using the matter, and his reporting of it to the United States Attorney, for political purposes. Tr. 3360.
Since it can hardly be denied that Diaco gave Ross $100,000 in cash, it is of interest to ask where the cash came from. Did Diaco expend his own funds, or his company's funds, or Sutton's (passed through Valentine)?
The only one to offer an explanation of this was Sutton. This leads to analysis of this phase of the case as it relates to Valentine. Thus, Sutton testified to a meeting with Valentine at Sutton's office on May 24, 1974. This followed a meeting Diaco and Ross had earlier that day when Diaco gave his true identity (theretofore he had used the name DiGiacomo) and gave Ross a business card showing Diaco to be a vice president of Valentine Electric Company. Tr. 204-05; 751-52.
Sutton testified that, at Valentine's direction, he gave Valentine $100,000 in cash for the first payment to Ross. Valentine, he added, agreed to help him raise another $200,000, but required that Sutton give him a check for $270,000 (the extra $70,000 was to arrange for conversion to cash);
and Valentine agreed to arrange a meeting with Ross at the Forum Diner in Paramus. Tr. 1576-82. Once again, such a statement by Valentine was followed shortly by Diaco calling Ross to arrange the meeting with him as Valentine called back Sutton to advise him it had been arranged. The meeting was held, with Diaco (not Valentine) again in attendance, and, as Ross testified, Diaco took from his car a folder with $100,000 cash and gave it to Ross. Tr. 830-47; 857-63. Valentine's counsel offered no explanation of how Diaco got the $100,000 to pay Ross. The jury was left to infer that, in view of the repeated pattern of activity, with Valentine dealing with Sutton and Diaco then taking over to deal with Ross, it had gone from Valentine (after he got it from Sutton) to Diaco.
Nor was Sutton's testimony about the $270,000 uncorroborated. Sutton, when he gave Valentine his check, knew he could not cover it. Thus, he made several telephone calls to Haymes in what was an unsuccessful attempt to raise funds through another closing. Tr. 1593. As a result, the check was dishonored when put through for deposit by Valentine. In corroboration of Sutton's testimony, the government put into evidence Valentine Electric Company's deposit slip for $270,000 along with the dishonored check.
Valentine's counsel, without a shred of evidence to support his summation argument, but mindful of the strong corroboration given Sutton's testimony by the "bounced" check, endeavored to relate the $270,000 to some other transaction between Sutton and Valentine. He floundered; there was no other transaction. Tr. 3384-85.
In summary, the case against Diaco was overwhelming. As to Valentine, it was only slightly less so. Counsel for Valentine (and his company) gave no explanation either for Diaco's conversations and meetings with Ross which invariably followed an appropriate discussion between Valentine and Sutton that such conversations and meetings should take place, or for the congruence between the parallel sequence of the two sets of conversations.
In addition to his failure to explain how Diaco came into possession of the $100,000 cash which he paid over to Ross, and why Diaco, the Valentine Electric Company's vice president, would participate in such a transaction, counsel did not deal with Ross' testimony that Diaco told Ross, to whom he gave a company business card, that he had gotten involved in the matter so that he could obtain the electrical work on the project (Tr. 3392-92), paralleling what Valentine told Sutton. As to both, therefore, it can be said that Sutton's testimony was not only corroborated; it was but a portion of what was a tightly proved case of criminality against them.
IV. THE CASE AGAINST THE IFC DEFENDANTS -- DANSKER, HAYMES AND ORENSTEIN
I have to a degree already touched upon the unqualified assertion of these defendants that their convictions rested upon the uncorroborated testimony of Sutton alone. 1059-1061, supra.16 I shall now examine this claim in detail in light of all the evidence.
In this review, it must be recalled that the evidence against these defendants related not only to the attempt to bribe Ross but also to the Serota transaction. The setting aside of their convictions on Counts I and III does not mean that, on this application, the role of these defendants in silencing Serota's opposition to their project is not to be considered. See I, supra, 1060-1061.
Accordingly, while I shall deal separately with the Serota and Ross transactions, for purposes of relating the evidence to each, it should be understood that I reject as false the basic premise underlying movants' analysis of the case, that is, that on this motion, only the evidence directly related to bribing Ross is to be considered.
Cutting across both the Serota transaction and the bribery of Ross is the Sutton testimony of his participating with the IFC defendants in their embezzlement of money from their company and their fraudulent use of the Sutton-IFC relationship to funnel money to Sutton, for "kick-backs" to them, concealed in the sums going to Sutton legitimately through periodic closings under his loan agreement with IFC.
I fail to grasp how the defendants can seriously label "uncorroborated" Sutton's testimony as to how he and the IFC defendants embezzled from IFC, first, cash they diverted to themselves, and later, cash to insure that Sutton could in turn pay off Serota and Ross.
The documentation was abundant, the accounting easy to comprehend. Periodic "closings" were held to forward IFC funds to Sutton as the GWPP moved along and land sites were acquired.
The accountants hired by the defendants had complete access to all of IFC's records which had been subpoenaed by the government. The defendants were unable to show one closing which represented totally payment for legitimate expenditures (and conversely, not for illegitimate ones to which Sutton had testified).
The defendants' inability to impeach or contradict Sutton's testimony on the diversion of IFC funds would have been of less significance if the amounts involved had been so small as to be easily concealed in the legitimate payments made. The fact is, however, that Ex. G-205, on which Sutton had listed various specific sums thus disbursed by him and which were in turn given to him by these defendants through the "closing" device, reflects almost $5,000,000 was involved. Given this analysis, it cannot be said that Sutton's testimony as to how IFC money was illegally transferred to him was uncorroborated.
Taking it one step further, Sutton's testimony as to whom, and for what, he disbursed the embezzled moneys at defendants' direction, ranged widely. He named specific persons and projects. Defendants' failure to dent seriously any aspect of this testimony is of great significance.
One transaction saw Sutton giving $50,000 cash to Orenstein for Haymes. Orenstein said that the defendants would get the cash back to Sutton, concealing it within the next GWPP closing. Tr. 1430. Sutton cashed a personal check, dated November 21, 1972 (Ex. G-119) to raise the $50,000. He also identified three other checks, totalling $75,000 (Tr. 1434), which were cashed, with the cash going to Orenstein. Ex. G-861R, 861P, 861S. The arrangement was the same: he got the cash back concealed in the next GWPP closing. Tr. 1434. No one, on cross of Sutton, was able to demonstrate this was not the case. No one contradicted what he said.
The summary sheet, Ex. G-205, also referred to $145,000 given by Sutton to Laurence Labriola, a contractor. Sutton testified that Labriola had worked on Dansker's New York estate; and that Haymes had told him to pay for this work, assuring him that the same system, repayment out of the next GWPP closing, would get back the $145,000 to him. Tr. 1435-43. Sutton identified each check. Ex. G-861M through O, 861Q, 851C and D. The time spanned was December 1972 through October 1973.
No one contradicted Sutton's testimony on this aspect either. Indeed, in spite of the lengthy and skillfully conducted cross-examination, no defendant's counsel ventured into the Labriola area. Moreover, it was never even rationalized on summation by any defense counsel. The same is true of Sutton's testimony on the East Orange Phalia properties, which Sutton testified he purchased from IFC at defendants' direction (Tr. 1443-46) for $1,650,000, using the same device, a GWPP closing to get the money back.
Thus, Sutton's credibility was exposed along a wide front. His testimony about cash payments to Orenstein and Haymes, the Labriola payments for Dansker at Haymes' direction, and the Phalia purchase, implicated substantial documentation and several persons. The same is true as to the payments to Serota and Ross. The documentation presented corroborated his testimony. Not one person came forward to deny his assertions; and no documentation from IFC, or elsewhere, was offered to contradict him. Indeed, as now appears, these defendants (two of whom are now represented by new counsel) now admit that Sutton told the truth about paying off Serota and obtaining reimbursement from IFC therefor through the closing device (under the same arrangement used, according to Sutton, to siphon IFC funds earlier to these defendants).
B. The Serota Transaction
The Serota transaction, like the Ross bribery, had its genesis in Valentine's statement to Sutton in April 1974 that the success of the GWPP depended upon the resolution of two "problems," Serota and Ross.
The IFC defendants at trial forcefully resisted the government's charge that they were involved in the pay-off to Serota to buy his silence. In their unrelenting attack upon Sutton's credibility, they expressly and impliedly contended that Sutton was lying in his testimony that, after his April 1974 conversations with Valentine, he had brought the subject matter of that conversation to their attention, and had received their approval of what Valentine proposed, bribing Serota and Ross. Orenstein's counsel, who had to deal with his client's obvious presence at the two Serota closings, argued to the jury that Orenstein was there only because he had been asked by Sutton to renegotiate Sutton's contract with Serota. Tr. 529; 3605-18. Dansker's counsel flatly told the jury on opening that IFC had refused to get involved. Tr. 514-20.
In all other respects, Dansker, Haymes and Orenstein, through their counsel, said and did nothing to indicate they were aware of, or involved in, the Serota transaction (except, as indicated, for Orenstein); and, of course, they never came close to conceding that Sutton had laid before them "taking care of" Serota and then purchasing Ross' cooperation.
Starkly missing at trial was defendants' concession they had utilized the GWPP closing device to reimburse Sutton for the money used to pay off Serota.
On this motion these defendants abandon their approach at trial and now state:
the case against the IFC defendants in connection with the Serota bribe was not based entirely on Sutton's testimony. Indeed, there was substantial documentary evidence establishing Serota's agreement to withdraw his public opposition to the construction of the project in exchange for money, and the IFC defendants never disputed their participation in that agreement. (They disputed only the government's claim that the Serota agreement was illegal -- a position ultimately vindicated by the Court of Appeals' reversal as to Count III).
Brief in Support of Motion at 5, n.4.
Given what is in effect a concession now that Sutton's trial testimony in connection with the Serota bribe was true -- and corroborated -- it is pertinent to inquire what it was that Sutton said about it. In doing so, some repetition of testimony earlier reviewed is necessary.
Valentine was introduced to Sutton by a Joe Comras. Tr. 1354, 1366-67. On April 24, 1974 Valentine told him that to obtain a variance, he had to resolve two "problems," Serota and Ross; and that they could be resolved by a payment of $900,000 to Serota for his apartment and $500,000 in cash to Ross and others. Tr. 1380. This was conveyed to Dansker and Orenstein almost immediately (Haymes was in Florida) and they laid out how it was to be done. Tr. 1383, 1388-92.
After the IFC approval, Sutton telephoned Valentine on April 25 to tell him he had authority to proceed but that (as Dansker had told him) the payments to Serota would have to be spread out. Tr. 1396. A telephone toll slip reflects this call. Ex. G-722. At subsequent meetings the Serota closing, set by Valentine for May 10, was discussed by Sutton with all the IFC defendants and with Valentine. Tr. 1400 et seq. Pursuant to Dansker's direction to Sutton to start raising the cash to go to Serota, accompanied by the reassurance he would be reimbursed through the usual means of GWPP closings, Sutton testified to his cashing checks,
gathering cash, and, at Valentine's direction, later turning it over to Diaco for delivery to Serota at the May 10 closing. Tr. 1474-77.
On May 8 Sutton met with the IFC defendants in New York, attending a birthday party that evening for Dansker. Dansker told him that IFC had to have the payments to Serota stretched out. Tr. 1464-65. Dansker directed that Orenstein handle the closing and renegotiate the terms of the contract. Id. ; Tr. 1875.
Diaco called Sutton from the closing to complain Orenstein was "screwing up;" Sutton spoke with Orenstein who took his call at the closing. Tr. 1479.
Immediately after the closing was called off, Sutton met in New York with the IFC defendants that evening to discuss the Serota transaction; and Orenstein, during this meeting, telephoned Serota and arranged to meet him the next day. Tr. 1480-83. A telephone toll record supports Sutton's testimony about this call from the IFC office to Serota. Ex. G-11A.
The next day, Saturday, May 11, Valentine and Diaco met with Sutton at the latter's office, Valentine being upset that the closing had not been accomplished. Tr. 1485. Sutton then went home and shortly a Rolls Royce came up. Serota was driving and Orenstein was next to him. Tr. 1486. Serota and Orenstein told Sutton they had revised the deal and it was all worked out. Tr. 1487. Serota said he would take care of the hearings. Tr. 1488. Sutton recalled a policeman had stopped by the Rolls Royce and found Serota had no license. Tr. 1489.
Later that day, at Orenstein's request, Sutton called Dansker to praise Orenstein. Telephone toll slips confirm this call, and a call to Haymes, also made at Orenstein's request. Tr. 1490-92; Exs. G-725B, G-22. Orenstein told Sutton there would be another GWPP closing arranged to get monies for Sutton for the Serota closing. Tr. 1493.
The following Monday, May 13, Orenstein told Sutton he was still working on the Serota closing and would get an IFC check to Sutton in advance. Tr. 1493. This was at a breakfast meeting Sutton had with Dansker, Haymes and Orenstein. Tr. 1494. Later that day, IFC delivered a check to Sutton for $150,000. Tr. 1494. See Ex. G-663, an IFC cancelled check for $150,000, payable to a Sutton company, dated May 13. Tr. 1495.
Orenstein and Serota had set the closing on Serota's apartment for May 15, 1974. Serota was to get at this time $250,000 in a certified check and $200,000 in cash (and the balance was stretched into the future). Tr. 1497. Sutton then testified how the rest of the money was raised and given to Diaco for delivery at the closing. Tr. 1497-1512. The closing this time went uneventfully. Obviously no one wanted to be named in the documents as purchaser; and Orenstein arranged for his brother-in-law to be named as agent for an undisclosed principal. 537 F.2d at 45.
Notwithstanding the Serota closing, Sutton had to complain to Valentine on May 16 that the opposition to the GWPP had not quieted. Valentine said: "We will get back to Mr. Serota and we will call you back." Tr. 1502. Telephone records show calls between Valentine and Serota that evening. Tr. 1502-03. Exs. G-723; G-23A. Valentine then told Sutton everything was taken care of. Tr. 1504.
On May 16, 1974, as Orenstein had promised, IFC had another GWPP closing with Sutton. Tr. 1505; Ex. G-717. The money Sutton got was $150,000 less than the closing papers stated, to make up the $150,000 delivered on May 13 to aid Sutton in raising the Serota funds. Tr. 1506. The amount paid on May 13, 1974 represented the first time IFC had ever given Sutton money except at a closing. Tr. 1507.
Concluding this review of the evidence as it related to (1) the genesis of the Serota (and Ross) transactions, Valentine's conversation with Sutton on April 14, 1974; (2) Sutton's informing the IFC defendants of Valentine's solution to their two "problems"; (3) IFC's acquiescence in the wrongdoing; (4) IFC's implementation of the scheme through Dansker's and Haymes' discussions with Sutton, Dansker's direction to Orenstein to renegotiate the original transaction, and Orenstein's carrying out this direction in his May 11 meeting with Serota; (5) the assistance rendered by the IFC defendants by forwarding funds to Sutton through the same misuse of a GWPP closing; and (6) the delivery of funds to Serota by Diaco on May 15 (after Diaco and Orenstein had first met on May 10), the following is clear:
a. The IFC defendants were deeply involved in purchasing Serota's silence and quieting his opposition to the GWPP.
b. They were familiar with the contract which, in effect (even without the cash payment), represented a $400,000 pay-off to Serota, conditioned upon Serota not opposing the GWPP and issuance of a building permit.
c. They continued to use the GWPP closing device to funnel funds to Sutton for illegitimate purposes.
The gravity and meaning of their concession, made now for the first time, that they were involved in the Serota transaction, are defined best by the foregoing analysis of the evidence. The effect of their concession is to put the stamp of truth on Sutton's testimony.
C. The Attempted Bribe of Ross
It is difficult to understand how the IFC defendants can now deny their involvement in the attempted bribe of Ross.
It is even more difficult to comprehend how it can now be contended, given their belated acknowledgment of Sutton's veracity, at least as to his testimony regarding their complicity in the Serota transaction, that the case against them is a close one. What persuasive argument is available to them, to explain how their willingness to act with Sutton to clear the path for the GWPP ended with Serota receiving over $1,000,000 for an apartment worth no more than $500,000? Notwithstanding this, however, I shall review the evidence to ascertain if it is true, as defendants contend, that Sutton's testimony linking them to the Ross bribery was uncorroborated.
As I have already observed, there is strong circumstantial evidence that implicates these defendants in the Ross bribery: it would have been folly to have paid off Serota, if that were all there was to the scheme. What was to be accomplished by simply silencing him? They had been given no assurance that Serota's vocal opposition was all that stood in the way of their receiving a variance. The evidence, in fact, is to the contrary. Ross was the other "problem." Logic itself supports the conclusion that the scheme to secure local approval for the GWPP consisted of paying off both Serota and Ross.
In addition to the circumstantial support thus rendered to Sutton's testimony, other evidence exists as well.
As Sutton stated, once the first problem, Serota, had been resolved, he and the others directed their attention to Ross. As discussed earlier, III, B, supra, 1066, his meetings and discussions with Valentine produced action in the form of Diaco's meetings with Ross.
Thus on May 16, 1974, after another conversation between Valentine and Sutton, and just prior to the presentation of final arguments on the GWPP before the Board of Adjustment, the Board Chairman, Mr. Mazur, got a telephone call from a "Joe Green" who said he wanted to meet him and discuss delaying the case a few weeks. Tr. 1102-03.
Diaco called on Ross the next day, May 19. He tried to get Ross to delay the Board of Adjustment vote on the project. Then he said to Ross:
With Serota there is going to be no problems. Serota has been taken care of. . . . I guarantee it.
Thus, just as Diaco had played a key role in paying off Serota, he moved into an important role in the attempt to bribe Ross.
Ross reported this contact to the United States Attorney and thereafter kept that office advised of the matter. Tr. 651-60.
Other than Sutton, only Diaco of the defendants met with Ross. Since the events to which Ross testified are not disputed, and Ross' credibility is not challenged, it is significant to note that his testimony, at certain critical points, corroborates Sutton, either directly or indirectly.
Sutton stated that on May 21 he had a conversation with Valentine. Tr. 1553. He told Valentine "our attorneys" fear they are going to be turned down by the Board at the May 22 meeting, the next night. He told Valentine to try to get the meeting continued. Tr. 1554. In the meantime, Sutton and the IFC defendants had conferred about the possibility of putting together "a plan of lesser magnitude" and had discussed the alternate plan with their attorney, Mr. Cummis. Tr. 1556. No one impeached or contradicted Sutton on this. Sutton told Valentine IFC wanted the May 22 meeting continued past the primary election. Valentine said he would try to contact Mayor Ross and would get back to Sutton. Tr. 1559. The significance of this, of course, is that not only Sutton but the IFC defendants were being sorely pressed by events. All of them were desperate at this point.
Valentine, it appears, delegated Diaco to get to Ross again. Sutton testified that Diaco called Sutton later that day (Tr. 1560) and said that he was going to set up a meeting with Ross, Orenstein, Sutton and himself. Tr. 1560. Later, according to Sutton, Diaco called to say Ross had an emergency in Fort Lee and had returned there from his New York office. Tr. 1560-61.
Sutton went to New York anyway and met with Orenstein, telling him nothing more could be done. Tr. 1561. After the meeting Sutton and Orenstein returned to their respective offices. Tr. 1562. Orenstein then telephoned Sutton to say Dansker was "terribly upset," that IFC would not "survive" a turndown, and that Orenstein was coming over the Sutton's office to meet with the Mayor. Tr. 1561-62. After Orenstein arrived, Sutton called one Tony Cutrupi to learn where Ross was; thereafter, Orenstein left Sutton's office to meet with Cutrupi. Tr. 1562-63. Later, according to Sutton, Orenstein returned to Sutton's office, accompanied by not only Cutrupi but Diaco (Tr. 1563), and made certain telephone calls which I shall shortly detail.
Ross' testimony corroborated Sutton. On May 22, Ross stated, he got a telephone call from Diaco, who wanted to see him. Diaco suggested lunch at "Club Cabalero" and Ross agreed to meet him at 2 p.m.; but later Diaco called again to say he would come to Ross' office. Tr. 663-64. Ross, however, was advised by the United States Attorney not to meet with Diaco and Ross told his switchboard operator to tell Diaco he had an emergency in Ft. Lee. Tr. 664.
At this point, after additional conversation, and reference by Ross to Cutrupi and the man with him, Diaco said:
Don't worry. He's a friend of mine. He works for Investors Funding. . . .
Ross, by pretext, got Diaco out of his office. Tr. 672. Shortly, Diaco returned; and by this time Ross had arranged to have two police officers in the adjacent conference room to eavesdrop. Tr. 674.
Diaco reiterated his offer to Ross and his plea to put off the Board decision. Ross declined, pointing out it was only two hours before the meeting. Tr. 675. Ross then terminated the conversation. Tr. 676-77.
The substantiation of Sutton's testimony by Ross' testimony is clear.
Thus on May 22(a) Sutton testified he spoke to Valentine and urged Ross be contacted to get that evening's meeting put off.
(b) Sutton testified Diaco called him to say he was arranging a luncheon meeting with Sutton, Ross, Orenstein and himself. Ross testified that Diaco did in fact try to set up a luncheon meeting.
(c) Ross said he avoided Diaco and left word for Diaco he had an emergency in Ft. Lee. Sutton testified Diaco called him and told him Ross had an emergency in Ft. Lee and there would be no luncheon meeting.
(d) Ross testified he encountered Diaco in the Ft. Lee Municipal Building and got a telephone call from Cutrupi during the meeting. Sutton testified that, after Orenstein came to his office, he called Cutrupi to locate Ross.
(e) Sutton testified Orenstein went to meet Cutrupi. Ross testified Cutrupi and Orenstein were in the building while he spoke to Diaco.
(f) Ross testified the meeting with Diaco terminated. Sutton testified that Diaco, Cutrupi and Orenstein returned together to his office, where Diaco told him that he had been talking to Ross when there had been a knock on the door and there were Orenstein and Cutrupi standing outside the door. Tr. 1563. Diaco told this to Sutton in the presence of Orenstein and Cutrupi.
What next occurred was highly significant on the question of the involvement of the IFC defendants in the Ross bribe, and further impairs the movants' claim that they were convicted solely by the uncorroborated testimony of Sutton.
Sutton, addressing himself further to events in his office after Diaco, Orenstein and Cutrupi returned there together following the aforesaid meeting between Ross and Diaco in Ross' office on May 22, testified that Diaco, after bringing Sutton up to date on what had occurred in Ross' office, said he was going to telephone Ross, and did so, calling Ross' home. Tr. 1565. Ross testified that he received a call at home from Diaco at about 7 p.m. Tr. 695. Sutton said that while Diaco was using one telephone in his office, Orenstein was on another, calling the IFC offices in New York City. Since this was of course a toll call it was reflected in Sutton's telephone toll charges (Ex. G-722A), which showed that on May 22, 1974 there was an 8-minute telephone call to the IFC offices, more precisely, to the extension listed for Haymes. Tr. 1573. Sutton testified Orenstein was using both Haymes' and Dansker's names as he spoke into the telephone and reported what Diaco was stating to Ross in their telephone conversation. Tr. 1566. Sutton heard Orenstein say, "We offered him $500,000." Tr. 1565-67. Sutton also heard Diaco offering Ross $500,000. Tr. 1566. When Diaco shook his head and said, "I'm sorry, he can't postpone the decision . . .", Orenstein, according to Sutton, "hollered . . . 'Offer him anything.'" Tr. 1567.
Next, Sutton testified that Diaco said he was going to call Ross again, and when he did so, Orenstein again called IFC, asking for Haymes (Tr. 1569), but mentioning Dansker's name as well. Tr. 1570. Sutton testified as to what Diaco said to Ross. Tr. 1570-71.
Ross not only testified that he got a second call from Diaco on the evening of May 22; he actually taped it. Tr. 698-704.
Since Orenstein's second call, like the first one, was a toll call, it was reflected on Sutton's telephone bill. Thus Ex. G-722A shows a telephone call from Sutton's office at 7:31 p.m. to Haymes' number at IFC. Tr. 1573.
Counsel for the IFC defendants generally argued at trial that Sutton was lying when he placed Orenstein together with Cutrupi and Diaco in his office, and when he testified that two telephone calls were placed by Diaco to Ross while Orenstein placed them to Dansker and Haymes, and related to them what Diaco was telling Ross. Yet they could not specifically deny Orenstein's presence; and the documentary evidence of his telephone calls to Dansker and Haymes, severely injured their chances of acquittal. These facts were corroborative of everything Sutton had said about their involvement. Diaco and Orenstein were brought together once again, significant in view of what Orenstein had learned about Diaco in connection with the Serota closings on May 10 and 15, 1974.
It was impossible for counsel to argue Orenstein was not in the Municipal Building or at Sutton's office on May 22, 1974. This is because he was in fact there and counsel knew it. Indeed, he had conceded this on opening. Tr. 534-38. Moreover, as was developed in a brief hearing out of the jury's presence, Orenstein had first gone before the Grand Jury on August 9, 1974. Even then he admitted he had gone to the office of Mayor Ross, but stated that after that he had gone home and did not meet with Diaco and Cutrupi.
For a reason that did not appear of record, Orenstein, after his first Grand Jury appearance, wrote a letter to the United States Attorney, requesting that he be permitted to return to the Grand Jury. He was allowed to do so, and this time he admitted he had gone back to Sutton's office with Cutrupi and Diaco and that he had heard the conversation between Diaco and Ross. Tr. 2220-22. At another point, still out of the jury's presence, Sutton, whom I had permitted Orenstein's counsel to voir dire (Tr. 2219), testified that Orenstein had been trying to find out from Sutton whether Cutrupi had told the Grand Jury that Orenstein had returned to Sutton's office after the encounter with Ross in the Municipal Building. Tr. 2239. See also Tr. 2270 (Orenstein's counsel concedes his client was the source of information which had led him to put a question to Sutton); and see Tr. 1908 and 1921 (the United States Attorney, out of the jury's presence, stated, and counsel did not deny, that Orenstein in his Grand Jury appearance had testified that he had spoken to Dansker and Haymes in New York on May 22 from Sutton's office).
Given the foregoing, trial counsel for Dansker and Haymes on summation never touched upon the fact of the telephone calls reflected from Sutton's office to IFC's offices in New York at times when, according to Ross, he was also receiving calls from Diaco. Dansker's counsel did disparage Sutton's ability to be able to hear, as he said he did, both the conversations Diaco was having with Ross and the conversations Orenstein was having with Dansker and Haymes; and see Haymes' counsel's reference at Tr. 3659. No one denied the meeting or the telephone calls to IFC by Orenstein. Neither, for that matter, did counsel argue that Orenstein had not related to Dansker and Haymes what Diaco was offering Ross.
An obvious question, the answer to which was circumstantial evidence corroborative of Sutton and damaging to Orenstein (and Dansker and Haymes), was why Orenstein believed Ross was the official to see in order to (a) get the Board of Adjustment hearing put off; and (b) to get the matter back on the agenda? Who told him this? The government of course claims Sutton did, in discussing with these defendants Valentine's early remedy for resolution of the two "problems." No other explanation was tendered by the defendants; and, when it is understood that Orenstein, from New York City, would have had no knowledge of Ft. Lee politics so far as the record is concerned, the logical inference, supportive of the government's case, is that Orenstein had learned of the very critical nature of Ross' position through Sutton. Cf. Tr. 533-35.
Notwithstanding his broad-scale attack upon Sutton's credibility, Orenstein's counsel used, in discussing Orenstein's "true role," (Tr. 3595), Sutton's testimony and treated it as true where it suited his theme. Thus he said Orenstein had gone to see Ross on May 22 carrying the "tools of his trade." Tr. 3594-95.
The only point at which he disagreed with Sutton seriously is when he came to Sutton's description of what Diaco had told him Orenstein had shouted at Ross -- "pay him a million dollars" (Tr. 3628); yet here Sutton was not stating what he had seen or heard but what Diaco had told him had happened. Of course, neither Diaco nor Orenstein testified to the contrary.
The next significant date is May 24, 1974. Sutton had a telephone conversation with Valentine. He told Valentine he had the additional $100,000 Valentine said would be needed and that a meeting with Ross was necessary to get the matter back on the agenda. Tr. 1576. That Sutton had $45,000 in his office was testified to earlier by him. He raised the additional $55,000 on May 24, and the checks were produced in support of this. Tr. 1577-78; G-810, 832A and B.
Sutton then testified that Valentine came to his office. Tr. 1579. Sutton told Valentine that he had only another $100,000; but Valentine told him that he could help Sutton raise additional cash. He told Sutton to write a company check for $200,000 and then said further that "it would cost him money, that he had to have additional money" to convert the check into cash. Tr. 1579. Valentine wanted an additional $70,000; therefore, Sutton wrote out a check to him for $270,000. Tr. 1580. The check was made payable to Valentine Electric Company, although at that time Sutton had no business transactions whatever with Valentine Electric. Tr. 1581. Valentine left with the check and the $100,000 in cash and said he would set up a meeting with the Mayor over the weekend. Tr. 1581-82. Sutton suggested that the meeting be set up at the Forum Diner in Paramus. The next day, Saturday, May 25, Valentine called to say a meeting had been set up at the Forum Diner for 11 a.m. on Sunday, May 26. Tr. 1582.
Ross testified that he had been contacted by telephone by Diaco on May 24. Tr. 731.
They had discussed having a second telephone conversation and they did late that Friday afternoon, to set up the May 26 meeting with Sutton. Tr. 807. This conversation was taped as well. Tr. 808-13.
On May 26 Sutton, Diaco and Ross met at the Forum Diner. Tr. 814. Again Ross was "wired." Tr. 816-57.
After the meeting concluded, Sutton left first. Then Diaco and Ross went out together and Diaco took from his car an attache case and gave Ross an envelope with $100,000 in cash in it. Tr. 860. Ross immediately left with the money and drove to F.B.I. headquarters where the money was counted. The envelope containing the cash and the cash were marked in evidence. Tr. 861-62; G-499.
After Sutton testified to what went on at the meeting (Tr. 1582-85), he stated he went back to his home at the conclusion of the meeting and called Haymes to tell him Ross would cooperate and that Diaco had just given Ross $100,000. Tr. 1585. Haymes told Sutton to call Dansker and Sutton did. Tr. 1585-86. As he placed the call on one telephone, Sutton himself got a call from Diaco on another. Tr. 1586. Diaco reported that he had given Ross the $100,000 and that Ross was happy. Tr. 1587. Sutton then called Dansker and gave him the news.
The government then introduced certain significant evidence, telephone records of Sutton's toll calls and of Dansker's calls from his home. Ex. G-725, Sutton's personal telephone records, show that on May 26, at 12:33 p.m., there was a four-minute telephone conversation from Sutton's home to Haymes in New York. Immediately after this call terminated at 12:37 p.m., G-726 (a record of toll calls from Haymes' home) shows at 12:38 p.m. there was a six-minute telephone conversation from Haymes to Dansker's home.
The records further show that Sutton called Dansker and spoke for one minute at 12:49 p.m. Then there was a two-minute conversation from Diaco's telephone to Sutton, ending at 12:51 p.m. Then Sutton immediately called Dansker again at 12:51 p.m. Tr. 1587-90.
This unusual sequence of telephone calls, on a Sunday, and related in time so closely to the tape-recorded meeting, was obviously hurtful to the defense. They of course offered no explanation for the calls.
On May 27, Sutton testified, he called Haymes to say that he had written a check for $270,000 to Valentine and did not have the funds to cover it and that they had to have a closing to get Sutton some money.
Haymes told him not to worry, that they would get money some place. Tr. 1593.
Haymes, even before a closing was set, responded on May 29 to Sutton's request for funding of money to go to Valentine and Diaco for delivery to Ross and for making good on the $270,000 bad check. Orenstein brought over two checks, drawn upon the account of an IFC subsidiary, Balco Properties, totalling $45,000; and Sutton and Orenstein falsified vouchers running from a Sutton company to Balco citing work allegedly done, to support the payment of the $45,000. Tr. 1601-04; G-668-669; G-668B and 669B; G-668C and 669C. No explanation of this transaction was ever entered by defense counsel.
Haymes and Dansker responded again the next day, May 30, with a check for $55,000 drawn on the account of another IFC subsidiary corporation, IFC Collateral Corporation. The documentation directly involves both Dansker and Haymes in the issuance of this check, which was charged to "overhead," and indicates the amount was to be reflected in the next closing. Tr. 1609-10. No explanation of this evidence was attempted by defense counsel at any time during trial, including summation.
On May 31 Sutton was subpoenaed to go before the grand jury. Tr. 1611.
The defendants charge the United States with suppressing alleged exculpatory materials within the meaning of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1973) and United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976). These alleged exculpatory materials relate to James Silver and Anthony Carminati. With the possible exception of Valentine, no defendant urges that the alleged Brady material points to their innocence. Instead, they urge that it casts doubt upon Sutton's credibility.
It is against this background that the Brady issues raised on this motion will now be considered.
Brady v. Maryland, supra, provides:
. . . the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.
The interest vindicated by this principle is that of affording a fair trial to the accused. United States v. Agurs, supra, 427 U.S. at 107, 96 S. Ct. 2392. The Brady rule covers evidence material to the credibility of government witnesses. Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972)).
Finding that the trial witness had lied, and that the government had not corrected the record,
the Court held a new trial was required. However, the Court stated:
[We] do not, however, automatically require a new trial whenever "a combing of the prosecutors' files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict . . . ." United States v. Keogh, 391 F.2d 138, 148 (CA2 1968). A finding of materiality of the evidence is required under Brady, supra, at 87, 83 S. Ct. at 1196, 10 L. Ed. 2d 215. A new trial is required if "the false testimony could . . . in any reasonable likelihood have affected the judgment of the jury . . . ." Napue, [ Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959)] supra, at 271, 79 S. Ct. 1173.
405 U.S. at 154, 92 S. Ct. at 766.
Agurs, unlike Giglio and here, involved alleged exculpatory evidence as in Brady, rather than evidence reflecting upon the credibility of a government witness, as defendants here charge.
Agurs involved the innocent nondisclosure by the government, in a murder case in the District of Columbia, of an unrequested criminal record of the decedent which indicated that he had pleaded guilty to assault and twice to charges of carrying a deadly weapon. The defense tendered was self-defense, and it was contended that the prior criminal record, concededly admissible, would have tended to show the decedent's aggressive character and would have been corroborative of the claim of self-defense. The court of appeals reversed the district court's denial of a motion for a new trial. The Supreme Court reversed, stating that the court of appeals had "incorrectly interpreted the constitutional requirement of due process." 427 U.S. at 102, 96 S. Ct. at 2397.
As difficult as Brady (and Agurs) may be to apply in the exculpatory evidence context, the difficulty is magnified when the undisclosed evidence relates to the credibility of a government witness. Unless dealing with the use of perjured testimony [ Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791 (1935)], or the suppression of a government promise not to prosecute (Giglio), or suppression of government conduct reflecting preferential treatment (McCrane II),
there are few guideposts; each case must be decided on its own peculiar facts. In applying Brady and Agurs (and McCrane II), particularly in the undisclosed impeachment situation, the analysis must search out what standard of materiality applies and, thus armed, apply it to the entire trial record, cf. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342, since it is not every nondisclosure or suppression of evidence related to a witness' credibility which violates Brady and Agurs.37 As the Court stated in Agurs :
But to reiterate a critical point, the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant's right to a fair trial.
427 U.S. at 108, 96 S. Ct. at 2399.
Nor is the test of materiality, whatever the standard under Agurs, in terms of what "might" affect a verdict, or has the possibility of affecting a verdict. As the Court in Agurs said:
For a jury's appraisal of a case "might" be affected by an improper or trivial consideration as well as by evidence giving rise to a legitimate doubt on the issue of guilt. If everything that might influence a jury must be disclosed, the only way a prosecutor could discharge his constitutional duty would be to allow complete discovery of his files as a matter of routine practice.
Whether or not procedural rules authorizing such broad discovery might be desirable, the Constitution surely does not demand that much. While expressing the opinion that representatives of the State may not "suppress substantial material evidence," former Chief Justice Traynor of the California Supreme Court has pointed out that "they are under no duty to report sua sponte to the defendant all that they learn about the case and about their witnesses." In re Imbler, 60 Cal.2d 554, 569 [35 Cal.Rptr. 293,] 387 P.2d 6, 14 (1963). And this Court recently noted that there is "no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case." Moore v. Illinois, 408 U.S. 786, 795, [92 S. Ct. 2562, 33 L. Ed. 2d 706].
427 U.S. at 108-09, 96 S. Ct. at 2400.
Agurs follows Brady in holding that the good faith or bad faith of a prosecutor has little if any significance in applying the appropriate materiality standard.
On the other hand, since we have rejected the suggestion that the prosecutor has a constitutional duty routinely to deliver his entire file to defense counsel, we cannot consistently treat every nondisclosure as though it were error. It necessarily follows that the judge should not order a new trial every time he is unable to characterize a nondisclosure as harmless under the customary harmless-error standard. Under that standard when error is present in the record, the reviewing judge must set aside the verdict and judgment unless his "conviction is sure that the error did not influence the jury, or had but very slight effect." Kotteakos v. United States, 328 U.S. 750, 764 [66 S. Ct. 1239, 90 L. Ed. 1557]. Unless every nondisclosure is regarded as automatic error, the constitutional standard of materiality must impose a higher burden on the defendant.
The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt.