Petition — Rosner v. United States

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Supreme Court of the Hnited Mates 0 CLERK |

October Term, 1975

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EDMUND A. ROSNER,

Petitioner,

—_

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

ALAN R. DERSHOWITZ

Attorney for Petitioner

14 Concord Avenue

Cambridge, Massachusetts

Of Counsel:

NANCY ROSNER

JEANNE BAKER

TABLE OF CONTENTS

PAGE

K 2 1

DOI —— — — —¾⅜ 1

% . A e 2

Constitutional Provision and Statute Involved 2

r K 3

E . 6

1. The Period Before and During Trial ................ 7

The Period Between the Petitioner's Conviction

The Period During the Pendency of the Peti-

JI sees settsnsestcaneintninsiinicincccncstinnscnee

Reasons for granting the writ

11—

This Court should grant the writ in order to

determine whether a showing of “ultimate preju-

dice” is required as a condition of granting relief

where A) the United States Attorney’s Office de-

liberately withheld from the District Court, pend-

ing a motion for a new trial, critical information

of unquestioned relevance to that motion; and

IB) the United States Attorney’s Office deliberately

withheld from this Court, pending a petition for a

writ of certiorari, significant information which

could have affected the outcome of the petition ....

This Court should grant the writ in order to

determine whether the Second Circuit applied the

correct standard in ruling that where A) the

government’s principal witness has committed

massive and flagrant perjury about his own

criminal background and vulnerability; and B)

the responsible government attorneys negligently

suppressed evidence of that background before

trial and neglected to correct the perjury during

PAGE

the trial, a new trial may not be granted unless

the defendant has satisfied the burden of proving

that “the disclosure would have induced a reason-

able doubt ip the minds of enough jurors to pre-

. issnocscneccsttiencnsctixennesiegseiamnnsinanniosieice 33

. ——————— 43

Appendix A—Opinion of District Court eee eiii. 1a

Appendix B- Opinion of Court of Appeals . 28a

Appendix C— Decision of Court of Appeals for Rehear-

83 —— — 63a

TABLE OF CASES CITED

Anderson v. Neison, 390 U.S. 523 (1968) J 36

Brady v. Maryland, 373 U.S. 83 (1962) esse 6

Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct. 1245, 1246,

tr // 39

Chapman v. California, 386 U.S. 18 (1967)

Christman v. Hanrahan, 500 F.2d 65 (7th Cir. 1974) 27

Corso v. United States, 389 F. Supp. 659 (S. D. N. V.

1974), ad, — F.2d — (2d Cir. 1975) . . . 30

Davis v. Alaska, 415 U.S. 308 (1974) —L— ..... .. 38

Douglas v. Alabama, 380 U.S. 415, 419 (1965) oo... 39

Fahey v. Connecticut, 375 U.S. 85, 86-87 (1963) .......... 35

Fontaine v. California, 390 U.S. (1968) oo... 36

Fusari v. Steinberg, 95 S.Ct. 533, 540 (1975) oe. 5

Giglio v. United States, 405 U.S. 105 (1972) . 6

Harrington v. California, 395 U.S. 250 (1969) . 36

Mesarosh v. United States, 352 U.S. 1 (1956) oo. 21

Milton v. Wainwright, 407 U.S. 371 (1972) oe. 36

iii

PAGE

Mullaney v. Wilbur, 95 S.Ct. 1881, 1893 (1975) 42

Napue v. Illinois, 360 U.S. 264, 269 (1959) . . 36

Smith v. Lllinois, 390 U.S. 129, 131, 88 S. Ot. 748, 750,

I eee 39

Special Prosecutor of New York v. United States At-

torney For S.D.N.Y., 375 F. Supp. 797, 799, 806

0 — ̃ ͤ ò QQAA — 40

Whitely v. Warden, 401 U.S. 560 (19710 . 36

United States v. DeSapio, 435 F.2d 272, 288 (2d Cir.

— —. 28

United States v. Harris, 498 F.2d 1164 (3d Cir. 1974) 27

United States v. Marcello, 423 F.2d 993 (Sth Cir.), cert.

ee 41

United States v. Xion, 498 U.S. 683 (1974) oo. 30

United States v. Ott, 489 F.2d 872 (7th Cir. 1973) 26

United States v. Payseur, 501 F.2d 966 (9th Cir. 1974) 41

United States v. Polisi, 416 F.2d 573 (2d Cir. 1969) . 27

United States v. Riley, 363 F.2d 955 (2d Cir. 1966) .... 41

United States v. Rosner, 485 F.2d 1213 (2d Cir. 1973),

cert. denied, 417 U.S. 950 (1974) . . . . . 7

STATUTES AND OTHER AUTHORITIES CITED

1K w . 2

e . 2

United States Constitution, Fifth Amendment 2

..... 2

The Prosecution Function and the Defense Function,

Supp. March 1971 at p. 9, §$5.6(@) wo .. 27

— —¾ůnr

Supreme Court of the United States

October Term, 1975

EpMUND A. ROSNER,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Opinions Below

The opinion of the United States Court of Appeals for

the Second Circuit affirming an order of the District Court

denying petitioner Rosner’s motion for a new trial is re-

ported at 516 F.2d 269 and is set out in the Appendix, in-

fra, at pp. 28a-CZza- The opinion of the District Court

(Bauman, D.J.) denying Rosner’s motion for a new trial,

is unreported, and appears in the Appendix at la-27a.

The order of the Court of Appeals denying the petition

for rehearing or rehearing en banc appears in the Appen-

dix hereto.

Jurisdiction

The judgment of the Court of Appeals for the Second

Circuit was entered on April 29, 1975. A timely petition

for rehearing or rehearing en banc was denied on August

6, 1975.

An extension of time to file this petition for certiorari

was granted by Mr. Justice Rehnquist on August 28, 1975,

and the time for filing this petition extended from Septem-

ber 5, 1975 to September 29, 1975. This petition was time-

ly filed. This Court’s jurisdiction is invoked under 28

U.S.C. § 1254(1). j

Questions Presented

(1) Whether a showing of “ultimate prejudice” is re-

quired as a condition of granting relief where A) the Unit-

ed States Attorney’s Office deliberately withheld from the

District Court, pending a motion for a new trial, critical

information of unquestioned relevance to that motion; and

B) the United States Attorney's Office deliberately with-

held from this Court, pending a petition for a writ of

certiorari, significant information which could have af-

fected the outcome of the petition.

(2) Whether the Second Circuit applied the correct

standard in fuling that where A) the government's prine-

ipal witness has committed massive and flagrant perjury

about his own criminal background and vulnerability; and

B) the responsible government attorneys negligently sup-

pressed evidence of that background before trial and neg-

lected to correct the perjury during the trial, a new trial

may not be granted unless the defendant has satisfied the

burden of proving that “the disclosure would have induced

a reasonable doubt in the minds of enough jurors to pre-

vent a conviction.”

Constitutional Provision and Statute Involved

This case involves the due process clause of the Fifth

Amendment to the United States Constitution and the

Jencks Act, 71 Stat. 595, specifically, 18 U.S.C. § 3500.

Introductory Statement

This is a case uniquely suited for Supreme Court re-

view. It is the first case—to petitioner’s knowledge—in

which a substantiated claim has been presented that a

United States Attorney's Office deliberately withheld rel-

evant information from this very Court during the pend-

ency of a previous certiorari petition.*

The facts giving rise to this issue are not in dispute.

While the first petition for certiorari was pending, As-

sistant United States Attorney Elliot Sagor—the prosecutor

in charge of this case—made three critical discoveries:

1) that the government’s “principal” witness, under-

cover agent and police officer Robert Leuci, had commit-

ted “flagrant perjury” at trial, concerning the extent of

his own criminal history ;

2) that prior to trial Leuci had admitted to the As-

sistant United States Attorney with “primary responsibil-

ity” for the disclosure of 3500 material in this case, his

participation in a burglary and theft, and that this ad-

mission had been incorporated into a written memorandum

(called the “Goe” memo) which was, from then on, kept

in a government file;

3) that prior to trial, the other Assistant United States

Attorney who shared responsibility for disclosure of 3500

material, possessed a tape recording of Leuci and one of

his informants discussing “procedures whereby [the in-

formant] would obtain” heroin for his own use and for

sale.

*In June 1974, this Court denied certiorari without prejudice

to the District Court’s consideration of a then-pending new trial

motion.

Zura)

Sagor knew when he made these three discoveries that

in his trial testimony Leuci had denied any involvement

in the kinds of crimes mentioned in the Goe memo and the

Leuci-Lawrence tape; he also knew that despite repeated

requests by the defense for information about Leuci’s past,

neither of the Assistant United States Attorneys in charge

of the 3500 material had informed the defense about the

Goe memo or the tape and that neither of them had cor-

rected Leuci’s perjurious denials of crime at trial. More-

over, Sagor “realized right away that the Goe memoran-

dum, if true, and if in the government’s possession [pre-

trial] and known to the government at the time, was a

document which should have been turned over to defense

counsel at the time of trial.” (H. Tr. 593).*

Despite Luis keullzation, Sugur deliberately ueciined to

inturm the Solicitor Generals Uulce and this Court of the

geverumenuts pre-trial knowledge. Altuougu be did nouly

the Solicitor General that Leuci had committed perjury

at trial, he chose to conceal the fact thut the two Assistant

Cuited States Attorneys responsible for gathering and dis-

closing 3500 material knew before trial of the existence of

the Goe memo and Leuci-Lawrence tape. Indeed, the rec-

ord establishes that Sagor made certain handwitten chang-

es in a draft of the Solicitor General's brief opposing cer-

tiorari which plainly suggested that the Government had

no pre-trial knowledge of “Leuci’s additional criminal con-

duct...” (H. Tr. 812). Accordingly, when this Court de-

cided to deny certiorari without prejudice, it did so on in-

complete information; indeed it did so on information

which was directly contrary to facts then known to various

members of the United States Attorney's Office of the

Southern District of New York.

*“H Tr.” refers to the transcript of the hearing of the

instant new trial motion.

Petitioner first learned of Sagor’s deception after this

Court had denied certiorari. At the hearing on the instant

new trial motion, petitioner raised this issue as a separate

occurence of misconduct independently requiring a new

trial. An extensive factual record was made concerning

Sagor’s actions and state of mind during the pendency of

the original certiorari petition and he admitted virtually

all of the allegations on the witness stand. The Court of

Appeals concluded, however, that “Assuming [petitioner's

allegations] to be true” they do not require a new trial

since appellant’s counsel has... been unable to demon-

strate any ultimate prejudice to appellant by the govern-

ment's alleged misconduct” pending certiorari. Similar-

ly, the District Court had concluded that prejudice was

“beside the point,” since it assumed that the Supreme

Court, by its decision to deny certiorari without prejudice,

had “deferred consideration of all claims arising out of

this motion” until it has “another opportunity to pass on

Rosner’s contentions.”

This issue then—concerning the misbehavior of the

United States Attorney's Office before this very Court—

is one which the lower court recognized to be uniquely ap-

propriate for Supreme Court review. As Chief Justice

Burger observed in a related context: “This Court must

rely on counsel to present issues fully and fairly, and coun-

sel have a continuing duty to inform the Court of any de-

velopment which may conceivably affect the outcome.”

Fusari v. Steinberg, 95 S. Ct. 533, 540 (1975) ( Emphasis

added.). The United States Attorney's Office clearly vio-

lated that continuing duty in this case. Recently, the

Seventh Circuit in reversing a conviction because the goy-

ernment had suppressed an important fact pending appeal.

“long after the pressures of trial were past,” observed sim-

ilarly that “this court is entitled te expect candor from at-

torney’s representing the United States.” (United States v.

Ott, 489 F.2d S72, S74 (7th Cir. 1973). In this case. too,

the failure of the government to fulfill its duty to apprise

this Court of critical developments which “may conceivably

affect [the] outcome” certainly requires the attention of this

Court.

Nor was the government's lack of candor before this

Court its only misconduct in this case. As the Court of Ap-

peals found, each phase of the case has been marked by some

species of governmental misconduct: pre-trial, the govern-

ment withheld Brady material; during trial, the government

withheld 3500 material and failed to correct its chief wit-

nesses’ “flagrant” and massive perjury (17a),* post-trial,

the government “erred seriously in failing to notify the

defense” and District Court of a witness who had come for-

ward with critical information (57a). Indeed, the only

reason the Court of Appeals declined to order a new trial

was its conclusion that petitioner had failed to satisfy his

burden of establishing that he was sufficiently prejudiced

by any of the government's acts of suppression, in that he

has been “unable to demonstrate” that revelation of the sup-

pressed material “would” have resulted in a different ver-

dict. This standard is plainly at variance with that articu-

lated by this Court in Brady and Giglio,** and, indeed,

takes the harmless error rule and the requirement of preju-

dice well beyond the bounds of reason, thus necessitating

review by this Court.

Statement of Facts

The basic facts giving rise to this petition fall neatly into

three periods:

(1) before and during Rosner’s trial: (2) between Ros-

ners conviction and first appeal; and (3) during the pen-

dency of Rosner’s petition for certiorari on direct appeal.

Numbers designated “a” in parentheses refer to pages of

the appendix, infra.

** Brady V. Maryland, 373 U.S. 83 (1962); Giglio v. United

States, 405 U.S. 105 (1972).

1. The Period Before and During Trial

On December 5, 1972, Edmund Rosner was convicted of

conspiracy, obstruction of justice and three counts of brib-

ery. The conviction was affirmed (United States v. Rosner,

485 F.2d 1213 (2d Cir. 1972)) and this Court denied cer-

tiorari on June 10, 1974 (Rosner v. United States, 417 U.S.

950), specifically without prejudice to consideration of the

then-pending new trial motion which is the subject of the

instant petition.

At trial, the chief government witness, police detective

and federal undercover agent Robert Leuci, directly contra-

dicted Rosner’s testimony that Leuci had entrapped him.

The trial court held that:

The government's case was based principally on the

testimony of Leuci, and on the tape recordings which

he made of several conversations between himself and

the defendants. The other government witnesses’

testimony was clearly ancillary and introduced for

corroboration of Leuci... .

All sides were aware, prior to and during the trial,

that Leuci’s credibility was a matter of no small sig-

nificance [and accordingly] the defense made a con-

certed effort, beginning with its pretrial motions, to

locate information damaging to Leuci” (3a).

At a pre-trial hearing on Rosner’s discovery motions, As-

sistant U. S. Attorney Elliot Sagor frankly acknowledged

his awareness of this strategy:

Rosner's] interest really is, and there is nothing

wrong with it... to dig up dirt to impeach Detec-

tive Leuci’s credibility (August 23, 1972 Hearing, Tr.’

22; see also H. Tr. 26).

Sagor vigorously opposed the discovery of government

files on Leuci, and the defense motion was denied. Shortly

before trial, however—in apparent recognition of an obliga-

tion to disclose some material regarding Leuci’s criminal

past—Assistant U. S. Attorneys Robert Morvillo and Nich-

vlas Scopetta in the presence of other government agents in-

formed defense counsel that Leuci had previously made

admissions to certain government agents regarding some

“past criminal conduct on his part.” These admissions of

“past criminal conduct” were—in light of what we now

know—trivial: they involved three or four incidents in 1966

and 1967 in which Leuci had acted as an intermediary be-

tween persons under investigation by the Narcotics Divi-

sion of the New York City Police Department and police—

men who sought to “shake them down.”

Rosner’s attorneys, not believing that Leuci’s criminal

past had been limited to these few misdeeds, pressed the

government for further information regarding Leuci’s past

crimes. But efforts at pre-trial discovery were unavailing;

the pre-trial confrontation with Leuci, in the presence of

govevrnment attorneys produced blanket denials that Leuci

had been involved in any other illegal transactions, and

Morvillo reiterated this denial in writing; at the trial, the

government vigorously opposed the defense subpoenas of

Leuci’s records including those in the possession of the

United States Attorney’s Office—and the subpoenas were

quashed.*

It is now clear that the defense dissatisfaction with the

government's non-disclosure both pre-and during trial was

well warranted. As a result of the evidence developed in

the course of the hearing on petitioner’s instant new trial

motion, the District Court found that the government pos-

sessed—pre-trial—the following three categories of knowl-

edge and information regarding Leuci's criminal past:

—

* According to Leuci’s admissions during the instant proceed-

ing, it is also now established that many of the allegations

against Leuci contained in the subpoenaed files were, in fact,

true.

1) The judge found that on July 13, 1972—just one week

before Rosner’s pre-trial discovery motions were filed—

Leuci was interviewed in the offices of the United

States Attorney by two agents of the Drug Enforce-

inent Administration (DEA), Robert Goe and Joseph

Gately. He admitted to them that in 1964 or 1965

he had participated in a warrantless search for drugs

alone with three other government agents. No nar-

cotics were found, but the four men did steal $200

from the premises which they divided among them-

selves equally. This was dutifully memorialized in

what has come to be known as the “Goe memoran-

dum” (8a).

This crime was of a totally different character than the

few incidents Leuci admitted at the Rosner trial: it in—

volved burglary, grand larceny, and, unlike Leuci’s admitted

crimes, the victim gained nothing. However, “the Goe

memorandum, which the government concedes to have been

3500 material, was not turned over to the defense prior

to trial” (8a).

2) The judge further found that

Leuci had made a similar admission in early 1971

to another DEA agent, Andrew Tartaglino, at the

apartment of Edward M. Shaw, then an Assistant

United States Attorney. Shaw learned of the inei-

dent shortly thereafter. Jd.

Indeed, the government conceded that Shaw was aware of

the incident as early as Spring 1971 (H. Tr. 458). More-

over, Shaw testified that he discussed this crime with Spe-

cial Assistant United States Attorney Scopetta (H. Tr.

459).

The judge recognized Shaw’s and Scopetta's intimate re-

lation to the trial:

Shaw and Scopetta were deeply involved in the prep-

aration of the Rosner case. The two men were given

primary responsibility for gathering and disclosing

to the defense all “3500 material.“ Shaw also pre-

sented the case to the grand jury and, although by

the time of trial he had left the United States Attor-

ney’s oflice to become head of the Southern District's

Strike Force, he was the government’s first witness

and by his own admission followed the trial closely.

Id. at 10.

However, neither Shaw nor Scopetta disclosed their per-

sonal knowledge of the “Goe” information to the defense.

3) The judge also found that evidence of still another

category of crime committed by Leuci—illegal narcotics

transactions—was within the government’s possession long

before the trial. The evidence was developed as follows:

In March [1971] Scopetta [then an attorney with the

Knapp Commission] ordered Leuci to investigate the

involvement of Richard Lawrence, previously identi-

fied as an informant of Leuci’s, in a homicide in the

Bronx. As a result Leuci tape recorded a conversa-

tion with Lawrence. The conversation yielded no

information about the homicide; it did suggest, how-

ever, that both Leuci and Lawrence had participated

in illegal seizures of narcotics following arrests, and

that Lawrence had retained some of the narcotics

(“packages”) to help meet a continued need for

money (5a-6a).

The trial court recognized “that during the course of [the

taped conversation] Leuci demonstrates a familiarity with

procedures whereby Lawrence would obtain ‘packages’ of

heroin resulting from arrests.” Id. The Tape thus not only

contains admissions of crime by Leuci, but is also itself

direct evidence that Leuci conspired with Lawrence to ob-

tain drugs illegally. The judge found that Leuci told

Scopetta of this conversation and Scopetta subsequently lis-

tened to the tape, which he took with him when he joined,

the staff of the United States Attorney” in mid-1971 (7a).

Despite Scopetta’s deep involvement in the preparation of

the Rosner case and his “primary responsibility for gather-

ing and disclosing to the defense all ‘3500 material’ ” (11a),

„. . the tape was... not disclosed to the defense prior to

the trial, and only came to light during the final days of

the instant hearing, when Leuci made an inadvertent refer-

ence to it“ (7a).

At the trial, the government revealed nothing which

could have lead to the defense discovery of any of these

three categories of information and knowledge. Moreover,

in “an effort to minimize the impact of . . . information

which would be “damaging to Leuci”’], the government

prosecutors elicited from Leuci at the very outset of his

trial testimony admissions of prior criminal conduct” (4a).

But those admissions were limited to the very same three

or four misdeeds of which defense counsel had been in-

formed in advance (T. Tr. 163-164a).* Leuci was por-

trayed as a man who had protected suspects from shake-

dowus by other—-corrupt—policemen, as “sort of a breath

of fresh air [whom the suspects] could count on. . . to sit

at a mediation of that sort of thing and give them a fair

shake” (T. Tr. 363). The total sum of money which Leuci

admitted receiving for his role as intermediary was approx-

imately $5-6,000.

Although Rosner’s attorneys attempted to elicit from

Leuci further admissions of crimes, particularly narcotics

crimes, they were totally unsuccessful. Leuci emphatically

denied such involvement and insisted that the “last time” he

had committed any illegal act was mid-1967 (T. Tr. 353, 380,

384). As the judge noted “Leuci maintained under persis-

*“T Tr.” refers to the transcript of the trial.

tent cross-examination that these [several sales—of informa-

tion episodes] were the only criminal acts in which he had

ever participated” (4a).

Leuci was thus depicted to the jury as a basically fair

and honest cop who exercised a restraining influence on cor-

rupt cops; his frank admissions of some past misconduct

cast an aura of truth over all of his testimony. In his sum-

mation to the jury, Assistant U. S. Attorney Morvillo high-

lighted this portrait and reminded the jury that:

Not once, not once did Detective Leuci get caught in

any lie, because he didn’t lie. Rosner's defense at-

torney |—you have all seen him—is an expert. He is

one of the best there is. Yet he couldn’t shake Detec-

tive Leuci with regard to his testimony. There was

no inconsistency in Detective Leuci’s testimony (T.

Tr. 1333).

An episode during the jury’s deliberations highlights the

fact that the jury was particularly concerned with evaluat-

ing Leuci’s character and his own corrupt past. After de-

liberating for 10 hours, the jury sent a note to the judge

reporting that during the trial one of the jurors had over-

heard a conversation in which Leuci had been described as

a corrupt cop for... nine to eleven years”; and that the

entire jury had discussed this piece of information (Tr.

1467). Assistant U. S. Attorney Morvillo’s response to the

jury’s note belies any current claim that the government’s

case was not built squarely on Leuci’s credibility. Mor-

villo requested that the jury be cautioned “in a very strong

way” to ignore the subway conversation (Tr. 1468), arguing

that “the information (about Leuci's corrupt past) is de-

rogatory of the Government's case and inconsistent with the

detective’s testimony” (Tr. 1468) (Emphasis added). The

trial court’s strong instruction to ignore this information

about Leuci was quickly followed by the return of the jury’s

verdict, thus suggesting that questions about Leuci’s cor-

rupt past and credibility were a critical log jam to the jury’s

unanimity.

It has now been established that Leuci was indeed “a

corrupt cop” for many years and that he did lie at trial—

and he lied massively: “The crimes to which [Leuci] has

now confessed are numerous and go far beyond his admis-

sions at the Rosner trial” (4a). In contrast to the picture

presented to the jury, Leuci was a major criminal figure

who, over a period of many years had engaged in daily

criminal activity.*

The trial court found that:

a) “On approximately fifteen occasions, Leuci shared

with fellow police officers money seized in narcotics raids,“

(4a) receiving as much as $154,800, perhaps as much as

$234,800.

b) “Over a period of perhaps three years, [Leuci] dis-

tributed small quantities of heroin [amounts ranging from

two to ten “bags” at a time] to informants,” (4a) some

of whom were in the business of selling drugs. [In ex-

change for letting (several informants) continue to sell nar-

cotics,” Leuci “occasionally” took heroin from them (4a).

c) Leuci “also took money ... from informants in ex-

change for letting them continue to sell narcotics” (4a).

The toial amount of money involved in these pay-offs over

a five year period ranged from $43,200 to $144,000.

d) Leuci sold investigative information and advice to

members of organized crime for which he received as much

as $15,000 over a few vears.

* Based on his own admissions, Leuci committed hundreds

upon hundreds of crimes. involving perhaps $200,000 in illegally

obtained money, and exposing him-—theoretically—to the risk of

hundreds of years of imprisonment.

e) Leuci “participated in illegal electronic surveillance”

(4a).

f) Leuci “accepted sums of money from lawyers and on

one occasion, participated in the paying of a bribe to an

Assistant District Attorney” (5a).

g) Leuci admitted to over eleven separate incidents of

(making) payments of money to his superior officers in

the Police Department” (5a).

h) “And finally, it is almost supererogatory to add that

[Leuci] committed perjury at the Rosner trial, at a trial

in the New York state courts, and in numerous interviews

with government prosecutors and defense lawyers” (5a).

Although it is impossible to total Leuci’s admitted crimes

and lies, the record of this petition reveals a full time felon

and inveterate liar. Certainly, the truth as we now know

it is very different from the prosecution's closing argument

to the jury:

„. . . not once, not once did Detective Leuci get

caught in any lie, because he didn’t lie... .”

2. The Period Between the Petitioner’s Conviction

and the First Appeal

Shortly after his conviction on December 5, 1972, Rosner

located several witnesses who claimed personal knowledge

that Leuci had engaged in narcotics dealings. On January

12, 1973, Rosner filed a motion for a new trial based on his

newly-discovered evidence. At the hearing, held on Janu-

ary 26, 1973, the trial judge found the new witnesses—all

long-time heroin addicts—to be non credible, and denied the

motion on that ground.

At the very time that Rosner was preparing this first

new trial motion, a series of events was occurring in the

United States Attorney's Office of which the defense and

the Court were ignorant—and remained ignorant for over

one full vear. On December 21, 1972, Richard Lawrence,

u k a “the Baron,” a registered government informer, dis-

closed to the New York City Special Narcotics Prosecutor's

Office that, for a period dating back to 1968, he had had

extensive illegal narcotics dealings with Robert Leuci. On

January 2, 1973, this information was communicated to the

United States Attorney's Office and Assistant U. S. Attor-

ney Robert Morvillo—the chief prosecutor at the Rosner

trial—was assigned to “coordinate an investigation to de-

termine the accuracy of these allegations” [affidavit of Rob-

ert Morvillo submitted in opposition to motion for new

trial]. Morvillo in turn assigned Charles Sherman, an in-

vestigator with the Drug Enforcement Administration, the

task of conducting “a complete investigation.”

A four-part “investigation” ensued :

1) Sherman attempted to locate a person described by

Lawrence as a corroborating witness (H. Tr. 277, 312, 317).

Morvillo and Sherman both testified that those efforts failed

because Lawrence was unable to give sufficient information

to locate this witness, identified only as “John” (See H. Tr.

392-395). After Rosner’s counsel obtained Sherman’s in-

vestigative notes, however, Sherman admitted that Lawrence

had in fact provided various leads to locate “John” which

Sherman had never followed up and Lawrence had named

another witness who could have been easily located through

the Brooklyn District Attorney's office but who was totally

ignored by Sherman.

2) Morvillo confronted Leuci with Lawrence's allegations.

Leuci denied the charges and referred Morvillo to the tape

recording of the Leuci-Lawrence conversation of March

1971,* claiming that the tape “exonerated” him. On the

*Scopetta had of course been in possession of this tape

recording since March, 1971.

basis of that claim, and without listening to the recording,

nor reading a transscript of it, Morvillo accepted Leuci’s

self-serving and wholly inaccurate description of the taped

conversation.

3) Motor vehicle documents were obtained in an effort

to investigate Lawrence’s claim that he had given Leuci

three automobiles in exchange for drugs. But although the

documents corroborate that a number of automobile trans-

fers occurred, that aspect of the “investigation” was

promptly terminated upon Leuci's flat undocumented denial

of the allegation (See H. Tr. 485).

4) On January 17, 1973, Lawrence, accompanied by

Sherman, was flown from New York City to Falls Church,

Virginia, for a series of lie detector tests, administered by

True Securities Industries, Inc. That firm was chosen by

DEA on “a brochure about the new opening” (H. Tr. 424),

and it folded within a few months after Lawrence’s experi-

ence there (H. Tr. 525). On January 18, 1973, True in-

formed Morvillo that Lawrence had failed the polygraph

tests... At the hearing on the instant motion, however,

Rosner introduced expert testimony which indicated that

Lawrence’s polygraph test was “at worst inconclusive and

could be no means have been adjudged a failure” (22a).

Relying on the “results” of this four-part investigation,

Morvillo “decided to abandon any further investigation into

Lawrence’s allegations (22)a. The trial court found that

the prosecutors could not help but recognize the

similarity between Lawrence's charges and those

contained in the affidavits submitted in support of

Kosner’s motion; they should thus have realized that

the information supplied by Lawrence might have

been of some assistance to Rosner in substantiating

the contentions advanced in the motion (23a).

However, as the judge noted, “at no time during the pen-

dency of this motion did the government inform Rosner

of Lawrence's allegations” (22a). The Court of Appeals

concluded that

[The United States Attorney's office erred seriously

in failing to notify the defense about the Lawrence

situation. Appellant is right that the prosecutor

should not have made a unilateral determination of

the credibility of Lawrence when what Lawrence was

alleging fitted into the very pattern of conduct sug-

gested by the appellant's motion (57a).

3. The Period During the Pendency of the Petition

for Certiorari

In January, 1974, Rosner filed a petition for certiorari

on direct appeal in which he alleged “that Leuci had been

involved in extensive narcotics violations and shakedowns

since 1967.” Shortly after filing, petitioner was able to

develop new evidence of Leuci’s past criminality through a

newly discovered witness—the same Richard Lawrence who

had, a year previously, given information to the United

States Attorney's Office. Based on an extensive affidavit

from Lawrence detailing his personal knowledge of Leuci's

narcotics dealings, Rosner filed a motion for a new trial

on March 20, 1974. A series of events then occurred which

establish beyond doubt that the government deliberately

failed to inform this Court that it had possessed evidence

and knowledge of Leuci’s concealed criminal past prior to

the Rosner trial. Those events are as follows:

“On or about April 8, 1974, during the course of pre-

paring the government's opposition to the new trial motion,

Elliot Sagor—the Assistant U.S. Attorney principally

responsible for the new trial proceedings—“came into pos-

session of the Goe memorandum” (H. Tr. at 589). Accord-

ing to his own testimony, Sagor “realized right away that

the Goe memorandum, if true, and if in government pos-

session and known to the government at the time, was a

document which should have been turned over to defense

counsel at the time of trial” II. Tr. at 593, (24a)). Ex-

tremely agitated, he immediately confronted Leuci and

asked “what blank idiot knew about this and where has

it been?” Leuci testified that Sagor was “up to the third

story by that time,” and when Leuci incidentally acknowl-

edged that the Goe episode had actually “happened,” Sagor

“continued going up” (H. Tr. at 97, 98). But despite his

new discovery, on April 9, 1974, Sagor filed a memorandum

and affidavits opposing the new trial motion which de-

liberately omitted any reference to the Goe memorandum.

Sagor testified to two reasons for his decision not to “men-

tion” the Goe information: “one, because it was not called

for at that time... by the Lawrence allegations,” and

“two, my investigation was incomplete as to the validity

of the Goce memorandum on that date” (II. Tr. at 593).

Neither of these “reasons” are persuasive however: the

claim underlying the new trial motion was not limited to

“Lawrence's allegations,” but rather was that Leuci had

committed crimes far in excess of those he had admitted

to at Rosner's trial; and Sagor’s need to investigate the

“validity” of the memorandum—which contained not an

allegation against Leuci, but rather an admission by him—

cannot explain why Sagor did not “mention” the Goc memo-

randum after his investigation was completed several days

later, nor why he waited more than three months, until

after the Supreme Court had denied certiorari, before he

mentioned the evidence either to defense counsel or to the

appropriate court.

Sometime in April 1975, during the course of his deal-

ings with Lenci, Sagor also learned about the Leuci-Law-

rence tape which was made in 1971, and which was known

to Nicholas Scopetta, since that time. A transcript of the

tape was made and read by Sagor; but, like the Goe memo-

randum, this pre-trial evidence was not mentioned to the

defense, to the District Court, to the Solicitor General's

office or to this Court pending certiorari.

Moreover, the record establishes that the government's

fuilure to disclose its new discoveries did not result from

ignorance of the legal signiticance of its pre-trial knowl-

edge. Sometime in early April, U.S. Attorney Paul Curran

met with Assistant U.S. Attorney John Gordon—the liason

between the U.S. Attorney’s and the Solicitor General's

office in connection with the pending Rosner certiorari

petition—and asked him “what the legal effect would be

of false testimony by a government witness on collateral

matters in a criminal trial...” In response, Gordon “asked

[Curran] whether we were aware of the falsity of the

testimony at the trial. (H. Tr. at 728), and advised

Curran that “the government’s knowledge” was “a critical

factor” in determining whether a new trial would have to

be granted (II. Tr. at 732). After that conversation, in

mid-April, Gordon read the Goe memorandum himself and

discussed it with Sagor, who acknowledged that it consti-

tuted “3500 material which had not been turned over to

Mr. Rosner at the time of trial...” (II. Tr. at 751). Gor-

don noted that “it was very unfortunate—that we had not

turned this thing over, and it was one in a succession of

important cases where there had been a failure to turn over

3500 material” (II. Tr. at 752). Sagor admitted at the

hearing that he discussed the Goe memorandum with at

least six of the Assistant U.S. Attorneys in his office, as

well as with his chief, U-S. Attorney Curran.

The last dramatic event in April, 1974 involved

Leuci’s own recantation of his testimony at the Rosner

trial. On April 17-18, 1974, Leuci began to admit to the

U.S. Attonrey’s Office that he had committed hundreds

upon hundreds of serious crimes in addition to the few

misdeeds he had revealed to the Rosner jury. But despite

the obvious and critical importance of this new develop-

ment, the United States Attorney’s Office did nothing be-

tween April 17 and April 30 to alert the Solicitor General's

Office. Nor, according to government testimony, did the

U.S. Attorney's Office have any intention of informing the

Solicitor General-—until approximately April 23, when it

realized, after reading the ‘elicitor General's brief in op-

position to Rosner’s certiorari petition, that the Solicitor

General was preparing to make certain affirmative repre-

sentations to this Court which were inconsistent with

Leuci’s new admissions (H. Tr. 745-746).* On April 30,

after waiting another week, Assistant U.S. Attorney John

Gordon called Deputy Solicitor General Andrew Frey and

informed him of Leuci’s recantation. Although it is con-

ceded that Gordon knew about the Goe memorandum, he

omitted mention of this document and informed Frey that

On April 23, 1974, the US., Attorney’s Office did alert the

District Court to the new development; but it did so in a manner

designed to prevent the full truth from emerging: it sent a secret

ex parte letter to the trial Judge stating, inter alia, the following:

“This is to inform you that for the first time last week,

Mr. Leuci told the government of certain criminal acts

committed by him when he was a member of the Narcotics

Division.. about which Mr. Leuci did not testify at the

trial of Edmund Rosner. I stress that none of this activity

was or could have been known to the government then”

(H. Tr. at 661-62). (Emphasis added)

It is now undisputed that the italicized portion of that letter was

untrue: 15 days prior to sending the letter Sagor had read the

Goe memorandum which establishes that various government offi-

cials knew of the Goe episode before trial and that the principal

prosecutors “could have . . known“ about it by the exercise of

minimal diligence. Moreover, the record establishes that one of

the two chief prosecutors for purposes of 3500 material, Edward

Shaw, did in fact know about the episode, and the other, Nicholas

Scopetta, knew about the Leuci-Lawrence taped conspiratorial

conversation long before trial, and had been informed about the

Goe crime by Shaw. The U.S. Attorney’s Office asked that the

letter to the trial court be sealed and be made part of the record.

The trial judge did so, without even notifying defense counsel that

he had rece ed an ex parte communication from the government.

“the crimes that we discovered that Leuci had lied about

had not been known to us at the time of Leuci's false

testimony” (H. Tr. at 738).

Moreover, pursuant to a decision made at a meeting

between U.S. Attorney Curran and Gordon, the Solicitor

General's office was further informed that it was the posi-

tion of the United States Attorney’s Office that neither the

Supreme Court nor defense counsel should be told about

the Leuci admissions until the investigation was completed

and the material presented to the Grand Jury H Tr. at

763, 767, 769). At the time of that decision, the Rosner

case was scheduled in the Supreme Court for an imminent

conference and decision and the Leuci investigation could

not have been completed in time.

On May 1, 1975, however, the U.S. Attorney's strategy

of silence was thwarted. The New York Special Prosecutor

filed a lawsuit which publicly disclosed Leuci’s admivs-

sions.* In light of the lawsuit, Gordon called Assistant

Solicitor General Frey and announced that the U.S, At-

torney’s Office no longer had any objection to informing

the Supreme Court of Leuci’s perjury. But he failed to

tell Frey about the United States Attorneys Office’s pre

trial knowledge of several of Leuci’s unadmitted crimes.

On May 5, 1974, during argument on the Special Prose-

cutor’s suit, Rosner’s counsel made an emergency applica-

tion to the District Court, seeking disclosure of Leuci's

admissions. He informed the court and the United States

Attorney's Office that, as certiorari was pending, he in-

tended to petition the Supreme Court to order a new trial,

relying on the precedent of Mesarosh v. United States, 352

*A New York Times article about that lawsuit brought

Leuci’s admissions to the attention of Rosner and his lawyers for

the first time on May 2, 1974; Rosner did not learn until much

later, however, about the Goe memorandum and the Leuci-Law-

rence tape.

U.S. 1 (1956).** For that reason, he argued, full dis-

closure of the new evidence was necessary in order fully

to inform the Supreme Court of the new developments in

the case. The application for discovery was nonetheless

denied.

Then, on May 7 1974, the Solicitor General requested

a postponement of the conference on the Rosner case and

indicated that he would be filing a supplemental brief.

Several days later, the Solicitor General sent a telex draft

of his proposed memorandum to Gordon and Sagor for

suggestions. Both Assistants made corrections which were

sent to the Solicitor General’s Office the next day. Sagor

admitted adding the following underlined words to the

draft brief (H. Tr. at 812):

“It should be made only after hearing such new evi-

dence as is available, including evidence bearing on

petitioner's allegation that the government ‘knew

about Leuci’s additional criminal conduct’ which the

U.S. Attorney denies and which is potentially critical

to the disposition of the new trial motion. (Em-

phasis added under Sagor's addition)

This written addition—stating that the “U.S. Attorney

denies” that the government “knew about Leuci’s additional

criminal conduct“ -was patently false; at the time Sagor

made this charge he knew about the Goe memorandum and

the Leuci-Lawrence tape and he knew that government

agents and attorneys had been aware of some of Leuci’s

undisclosed criminality prior to the Rosner trial.

The supplemental memorandum finally filed by the Soli—

citor General contained a slightly amended version of

Sugor's revised sentence:

** In Mesarosh, the Supreme Court itself ordered a new trial

after the government had informed it, while certiorari was pend-

ing, of newly discovered evidence impeaching the credibility of a

government witness.

“It (the determination whether a new trial should

be granted by the trial judge) should be made only

ufter hearing such new evidence as is available, in-

cluding evidence bearing on petitioner’s allegations,

which the U.S. Attorney denies, and which is poten-

tially critical to the disposition of the new trial mo-

tion, that there was knowledge on the part of or

wrongdoing by the prosecutors in connection with

false testimony by Leuci” (at 10) (Emphasis

added ) -*

On May 28-29, 1974—while the petition for certiorari

was still pending—Rosner filed a formal motion in the

lower courts seeking disclosure of Leuci’s admissions in

order to bring this information to the attention of this

Court. Both Sagor and Gordon were physically present

during the proceedings and both were fully aware of Ros-

ner’s intention to seek an order for a new trial directly

from the Supreme Court; but at no time did they reveal,

either to defense counsel or to the Courts, that the gov-

ernment had possessed pre-trial knowledge of the Goe epi-

sode and of the incriminating tape of March, 1971.

On June 10, 1974, the Supreme Court denied Rosner’s

petition for a writ of certiorari, without prejudice to the

new trial motion. Weeks later, in late June, on the eve

of the hearing on the new trial motion, the government

finally revealed to Rosner’s covnsel the existence of the

Goe memorandum. And it was not until the very close of

that hearing, on July 15-16, 1975, when Leuci made an

“inadvertent” reference to it, that Rosner’s counsel learned

of the long-possessed Leuci-Lawrence tape.

*At the time this statement was made to the Supreme

Court, it appears that no one in the Solicitor Generai’s Office was

aware that the Goe memorandum and the Leuci-Lawrence tape

had been in government files and known to government attorneys

before the Rosner trial.

Reasons for granting the writ

This Court should grant the writ in order to de-

termine whether a showing of ultimate prejudice”

is required as a condition of granting relief where

A) the United States Attorney's Office deliberately

withheld from the District Court, pending a motion

for a new trial, critical information of unquestioned

relevance to that motion; and B) the United States

Attorney’s Office deliberately withheld from this

Court, pending a petition for a writ of certiorari,

significant information which could have affected the

outcome of the petition.

There is no question, in this case, that the United States

Attorney’s Office committed serious and deliberate acts of

misconduct at two critical post-trial stages: the Court of

Appeals explicitly found that “the United States Attor-

ney’s Office erred seriously in failing to notify the defense

about the Lawrence situation” (57a); it also assumed—

us the uncontradicted record required it to do—that the

United States Attorney’s Office “should have specifically

told the Supreme Court of the Goe memorandum and the

circumstances surrounding it as evidence of the govern-

ment's knowledge of it during trial...” (58a). The only

question before this Court is the purely legal one, whether

there is to be any effective remedy for deliberate post-trial

misconduct by government attorneys. The lower courts

held that it will not impose any sanction on the yovern-

ment for the post-trial deliberate misconduct of its attor-

neys, unless the defendant can demonstrate that he was

ultimately prejudiced by the misconduct. The inevitable

consequence of this formulation, however, is that there can

never be any remedy for post-trial suppressions, regardless

of how deliberate or serious they may be. For once any

post-trial suppression is discovered, the defendant will

always be free to present the newly revealed evidence to a

court and therefore cannot—as a matter of definition —

suffer “ultimate” prejudice. (And, of course, if the post-

trial suppression is not discovered, then there will never

be an opportunity to provide a remedy for the govern-

ment's misconduct.) The implications of this formulation

are disastrous: government attorneys will have nothing

to lose and everything to gain from deliberate suppression

of all evidence favorable to the defense which the govern-

ment discovers after trial. For if the defense ultimately

discovers the evidence, the government will be in precisely

the same position as if it had immediately and voluntarily

disciosed the new evidence to the defense. But if the

evidence is not discovered, then the government will have

successfully suppressed evidence damaging to its case. This

paradox is best illustrated by the very facts of this case.

Consider a calculating U.S. attorney deciding whether

to disclose A) Richard Lawrence during the pendency

of the new trial motion and/or B) the Goe memorandum

during the pendency of a certiorari petition. Aware of

the approach adopted by the lower courts in the case, he

would reason as follows: if he discloses the damaging in-

formation now, it will be considered by the courts and may

endanger the conviction; if he deliberately suppresses it

and is eventually caught, the only consequence that he will

suffer is that the information will be considered by the

courts just as if he had voluntarily disclosed it. Uf, on the

other hand, he is not ceught, the courts will never learn

about it. Recognizing that he has everything to gain and

nothing to lose, the only logical action for a calculating

U.S. Attorney to take, therefore, is to suppress the evi-

dence. Clearly, in order to deter calculated post-trial sup-

pression of evidence, the courts must impose some cost or

penalty on such decisions when they are discovered.

The Seventh Circuit recently confronted a case of post-

trial suppression and deemed reversal to be the “required”

penalty for the government's transgressions, despite the

conceded fact that the defendant had not been specifically

prejudiced by the suppression. United States v. Ott, 189

J. 2d S72 (7th Cir. 1973). There is thus a direct conflict

among the circuits as to whether a new trial is the appro-

priate remedy for deliberate post-trial suppression, Ott

was convicted on three counts of knowingly possessing

checks stolen from the mail. Moshis, a government in—

former, testified that he and a man named T. W. Allen

had bought checks from mailmen and sold them to the

defendant. At trial the attempts by Ott's counsel to es-

tablish that Allen was an informer too were met by denials

by the prosecutor. Upon questioning during oral argument

before the Court of Appeals, however, government counsel

conceded that T. W. Allen was the same person identified

as “a reliable informant,” in another case previously heard

on appeal.

Although the Court assumed that the government trial

attorney had not been aware that his representation at trial

was false, the Court had harsh words for the government's

handling of its error subsequent to trial:

“(This court is entitled to expect candor from at-

torneys representing the United States. Even

though appellate counsel for the government knew

that trial counsel had misled the trial judge in con-

nection With a ruling challenged on appeal, no dis

closure of that fact was made to the appellant or

to this court prior to oral argument. Only efter

questions from the bench, which were prompted by

fumiliarity with the record in the Carmichael case,

did government counsel make the disclosure. At that

time the acknowledgement was both forthright and

unequivocal. Nevertheless, if silence would have

served to perpetuate continued judicial reliance upon

the prosecutor's false statement, it is evident that

the attorney for the severeign would have been

content.” Ott, at 874.“

The Court found a “combination of factors which, to-

gether, compelled reversal of Ott's conviction. Off, supra,

at S76. The same factors wre evident here. First, the Ott

Court noted it was a member of the United States Attor-

ney's Office who had made the misrepresentation, Here

members of that same office engaged in the deliberate

suppression of Richard Lawrence, information concerning

the Goe episode and the Leuci-Lawrence tape.

Second, the Ott Court noted that the trial prosecutor

had made an “unequivocal” statement that T. W. Allen

was not an informer. Here, the U.S. Attorney's office vigor-

ously insisted that its “thorough” investigation had

“proven” that Lawrence’s allegations about Leuci’s drug

dealing were entirely false and it falsely represented to

this Court that the government had had no pre-trial knowl-

edge of Leuci’s additional crimes. Further, in Ott, “even

though Allen's true status was collateral to the issue pre-

sented to the judge, both parties sought to influence the

* The Court cited the American Bar Association’s Final Draft

of the Proposed Code of Responsibility at 107, stating “Fraud-

ulent, deceptive, or otherwise illegal conduct by a participant in a

proceeding before a tribunal . . . is inconsistent with fair ad-

ministration of justice, and it should never be participated in or

condoned by lawyers.” The Oft Court observed that the “princi-

ple urderlying such a rule is broad enough to encompass not only

deceptive acts, but also deceptive omissions” (footnote omitted).

Ott, supra, at 874. See also the American Bar Association’s

Project on Standards for Criminal Justice, which gives explicit

recognition to the prosecution’s “continuing” obligation to notify

the defense of information suggesting that trial testimony—in-

cluding credibility evidence—may have been false. The Prosecu-

tion Function and the Defense Function, Supp, March 1971, at

p. 9, §5.6(a) and Commentary. And see United States v. Polisi,

416 F.2d 573 (2d Cir. 1969); cf. United States v. Harris, 498

F.2d 1164 (3d Cir. 1974); Christman v. Hanrahan, 500 F.2d 65

(7th Cir. 1974).

court in the exercise of its discretion by appealing to dif-

ferent versions of that status.“ Id. Obviously, Leuci's

status“ was significantly less collateral than was Allen's in

Ott's trial. Indeed, at the first new trial motion—during

which the Lawrence allegations were suppressed—the only

issue was Leuci's credibility and alleged criminality.

The final—-and to the Court perhaps “most troublesome”

—aspect of the government's lack of professionalism in Off

Was its failure to apprise the Court of Appeals (or the ap-

pellant) of the true facts “long after the pressures of the

trial were past.“ Again, there is a clear parallel in the

case at Bar. The two critical decisions—tirst to withhold

information about Richard Lawrence from the District

Court and second to withhold information about the Goe

memorandum and Leuci-Lawrence tape from this Court

were deliberate and sustained over a long period of time.

Nor were they made under conditions of stress, during the

hectic moments of a trial. As the Second Circuit observed

in excusing the prosecution from inadvertently neglecting

to disclose certain information when it had been confronted

suddenly with a surprise defense witness and forced to

prepare rebuttal testimony overnight:

“Prosecutors under such stress cannot properly be

held to standards quite as exacting as those that

may be appropriate when they have had days or

even weeks to consider whether a disclosure should

be made.” United States v. DeSapio, 435 F.2d 272,

288 (2nd Cir. 1970).

Here of course the U.S. Attorney's Office had “days—even

weeks,” to consider whether or not to reveal Richard

Lawrence and whether or not to inform this Court of its

pre-trial knowledge of Leuci’s past. But on both counts,

it chose to remain silent.

This Court has long recognized that without complete

candor and honesty from counsel who practice before it,

decision-making processes may become corrupted. In Mesa-

rosh v. United States, 352 U.S. 1 (1956), this Court thus

approved the decision of the Solicitor General to inform the

Court of evidence discovered while certiorari was pending,

which tended to suggest that a particular government wit-

nes might have testified falsely at trial. The Solicitor Gen-

eral had felt “compelled” by his “duties as officer of the

court and as public prosecutor” to notify the Court of the

new information, and the Court frankly commended the

action of the Solicitor General... in promptly bringing the

matter to our attention when it came to the attention of

his oflice . . 352 U.S. at 8, 9. More recently, in Fusari

v. Steinberg, 95 8. Ct. 533, 540 (1975), speaking in a re-

lated context, Chief Justice Burger emphasized the impor-

tance of candor on the part of counsel: “This Court must

rely on counsel to present issues fully and fairly, and coun-

sel have a continuing duty to inform the Court of any devel-

opment which may conceivably feet an outcome” (Empha—

sis added).

The actions of the government attorneys in this case fly

directly in the face of these teachings. They did not merely

fail to fulfill their “duty to inform the Court of any devel-

opment which may conceivably affect an outcome;” they

made a series of premeditated and strategic decisions to

violate that duty and intentionally to withhold undeniably

relevant information from the courts. Th leed, the miscon-

duct of the U. S. Attorney's Office in this case is far worse

than the distasteful situation in Off, for which the Court

found reversal to be the “required penalty.”

The lower courts here denied a new trial because they

could “see no prejudice to Rosner“ from the government's

misconduct, first because the District Court eventually con-

sidered the suppressed information and second because the

Supreme Court “may well have another opportunity to pass

on Rosner’s contentions.” This narrowly focused inquiry

misses the broad implications of failing to provide a remedy

for the government's post-trial suppression of information.

If the lower court's rule is permitted to stand, the prosecu-

tion will never suffer a meaningful sanction. It will be

encouraged to continue to withhold information which it

deems “trivial,” and will have no incentive to exercise care

in its designation of information as insignificant.* Here,

the information suppressed by the government eventually

became known. Disclosure may never be made in future

cases, however, if the government is not effectively deterred

by a reversal here.**

„Cf., United States v. Nixon, 498 U.S. 683 (1974).

** Appellant strongly suspects that there is yet more relevant

information which is still in the possession of the government in

this case. Yet under the lower court’s theory, there will be no

effective remedy if it turns out that the government is still

withholding evidence favorable to Rosner.

Subsequent to the decision of the District Court denying the

new trial motion herein, counsel for petitioner learned of yet

another serious crime committed by Robert Leuci and known to

Assistant United States Atorneys Scopetta, Shaw, Sagor and

Morvillo, prior to Rosner’s trial and neither revealed at trial nor

at the hearing on the current new trial motion. At the hearing

on the current new trial motion, Leuci testified that his last

crime was committed in 1970 and denied that he committed any

crimes after commencing work for the government as an under-

cover agent (H. Tr. 197-98). The opinion in Corso v. United

States, 389 F. Supp. 659 (S.D.N.Y. 1974 aff'd, — F.2d — (2d

Cir. 1975), discloses that Leuci participated in the installation

and maintenance of an illegal warrantless wiretap in the Fall

of 1971 after he began working for the government as an under-

cover agent and that Scopetta and Shaw were aware of this by

the time of Corso’s trial in February 1972, many months before

Rosner’s indictment and trial.

In the Corso hearing, Leuci admitted that he probably told

Elliot Sagor, one of the trial prosecutors and the chief prosecutor

| Footnote continued on following page]

Accordingly, the only appropriate remedy for the gov-

ernment’s misconduct in this case must be to order a new

representing the government at the hearing on the instant new

trial motion, before the Rosner case, of his participation in this

serious crime which he failed to note in his testimony at Rosner’s

trial, (C. Tr. 107-08, C. Tr. refers to the transcript of the hear-

ing on the new trial motion in Corso v. United States, 74 Civ.

720). Shaw testified at the Corso hearing that he was told in

no uncertain terms that a crime had been committed; indeed he

contemplated a prosecution of those who had illegally tapped the

wire (C. Tr. 123). Shaw also testified that he was sure Whitney

North Seymour Jr., the United States Attorney, knew of the

illegal tap and that Robert Morvillo, the chief prosecutor at

Rosner’s trial, and the head of the criminal division in the

United States Attorney’s Office, knew something about it (C. Tr.

135). Scopetta testified that after learning of the illegal war-

rantless tap he thought he was going to end up with a case of

illegal wiretapping against the detectives involved, including

Leuci (C. Tr. 151). Scopetta also testified that Leuci prepared a

memorandum of the illegal act C. Tr. 168). Leuci corroborated

this and testified that Scopetta had told me to make a memo out

and detail the whole thing as soon as possible (C. Tr. 90),

and that he prepared the memorandum a month after Corso’s

arrest C. Tr. 99) well before Rosner’s indictment and trial. The

first draft of the memo was taken by Scopetta in long hand

(C. Tr. 99). Former Detective Nicholas Lamattina corroborated

Leuci’s testimony that Sagor knew about the illegal warrantless

wiretap (C. Tr. 272).

These facts establish that Sagor and Morvillo, the trial

prosecutors and Scopetta and Shaw, the prosecutors who were

given primary responsibility for gathering and disclosing to

the defense all 3500 material, had actual pre-trial knowledge

of Leuci’s participation in yet another serious crime which was

not revelaed at either the trial or the instant new trial hearing

and that a memorandum of this crime, prepared by Leuci, was

in the actual possession of the United States Attorney’s Office

before Rosner’s trial and that the government failed to turn this

memorandum over to the defense either at the trial or at the

instant new trial hearing. These facts only came to the de-

fense’s attention after the denial of the new trial motion. Al-

though they are dehors the record of the hearing on that motion,

we feel obligated to bring them to this court’s attention. See,

Fusari v. Steinberg, supra.

trial. That is the remedy which Rosner was seeking from

the District Court and from the Supreme Court, when the

government chose to suppress information supportive of

Rosner’s case. The penalty which most appropriately fits

that governmental misconduct will be to order that relief

now. Indeed, without an effective sanction against failure to

disclose such evidence after trial, government attorneys

may be encouraged to conceal new evidence and there will

be no deterrent to deliberate government decisions to sup-

press the truth.

This Court has never explicitly considered whether an

elfective sanction should be imposed against the government

for deliberate post-trial suppression of relevant information.

The instant case presents an ideal record on which to de-

cide that issue: the facts are not in dispute and the lower

courts held clearly that absent a showing of “ultimate preju-

dice” no sanction will be imposed against the government.

Moreover, it is a case which directly implicates the integrity

of this very Court’s decision-making process. See, Fusari

v. Steinberg, 95 S. Ct. 533, 540 (1975).

This Court should grant the writ in order to de-

termine whether the Second Circuit applied the cor-

rect standard in ruling that where A) the govern-

ment’s principal witness has committed massive and

flagrant perjury about his own criminal background

and vulnerability; and B) the responsible govern-

ment attorneys negligently suppressed evidence of

that background before trial and neglected to cor-

rect the perjury during the trial, a new trial may not

be granted unless the defendant has satisfied the

burden of proving that “the disclosure would have

induced a reasonable doubt in the minds of enough

jurors to prevent a conviction.”

Again, there is no factual dispute over this issue. The

courts below both found that Robert Leuci committed mas-

sive and flagrant perjury, and that (as the government itself

coneeded) the Goe memorandum was 3500 material that

should have been turned over to the defense, but instead

was negligently suppressed. The lower courts also decided

the case on the assumption that the Lenci-Lawrence tape

—which contained evidence of Leuci’s involvement in nar-

coties crimes which he denied on the witness stand—should

have been disclosed as well. But the courts ruled that these

errors taken separately or cumulatively, were “harmless,”

since the defendant had failed to show “ultimate prejudice.”

The lower courts’ requirement that the defendant must

show ultimate prejudice in a case involving massive perjury

by the government’s principal witness flies in the face of the

leading precedent of this Court. In Mesarosh v. United

States, 352 U.S. 1 (1956), this Court ordered a new trial

based on post-trial collateral information which raised the

possibility that a certain government witness perjured him-

self at the petitioner's trial. The Court found that the

credibility of witness Mazzei, who was one of seven govern-

ment witnesses at trial, had been “wholly discredited” by

the fact that he had testified in a bizarre and non-credible

fashion in several proceedings that followed the petitioner’s

trial. Although the government did not concede that Maz-

zei had committed perjury at the trial in question, the Court

concluded that in light of the conceded post-trial erosion

of the witness’s credibility, the “conviction is tainted, and

there can be no other just result than to accord petitioners

a new trial.”

The instant case presents u far stronger case for reversal

than did Mesarosh. Here, as in Mesarosh, the witness had

worked for years as an undercover agent for the government

and he testified at trial in his capacity as government em-

ployee and agent. But here, the witness was not merely

“a paid informer” (352 US. at 11); he was a police officer

working as a full-time federal agent on an undercover as-

signment for the United States Attorney’s office, and as the

Court of Appeals found, “part of the ‘prosecution’ ” in this

case (52a). And here too, as in Mesarosh, “it is the gov-

ernment which now questions the credibility of its own

witness. .. (352 U.S. supra at 11). But here the govern-

ment does more than merely question; it has conceded that

Leuci deliberately committed perjury at Rosner’s trial as

well as in other related contexts which preceded the trial,

und that his credibility is thus shattered. Moreover, here,

unlike in Mesarosh, Leuci was not merely one of seven gov-

ernment witnesses; he was the only significant witness and

without him there would have been no case.* And finally

In marked contrast to the position the government is now

forced to take with regard to the importance of Leuci’s live

testimony, at the trial the government repeatedly emphasized to

the jury that a guilty verdict would rest squarely on Leuci’s

credibility and on the absence of a motive to testify falsely

against Rosner (see, e.g., T. Tr. pp. 1299, 1332-1333). Indeed

the prosecutor acknowledged that information which suggested

that Leuci lied about his own past would be “derogatory of the

government’s case” (T. Tr. p. 1469). Moreover, the indictment

against Rosner was based entirely on Leuci’s testimony before

the grand jury.

here, unlike in Mesurosh, the petitioner had “made a con-

certed effort, beginning with his pre-trial motions, to locate”

the very kind of information “damaging to Leuci” which the

Government had in its possession (3a).

In Mesarosh, the Court did not require the defendant to

demonstrate “ultimate prejudice”; indeed, it required no

showing of prejudice whatsoever, and even rejected the gov-

ernment’s request that the case be remanded for an eviden-

tiary hearing. The Court focused instead on the integrity

of the judicial process and concluded that to sustain a con-

viction in the face of the witness’s history of perjury would

be to pollute “the waters of justice.” Here the pollution

would be even greater, since the lower courts found not

only “flagrant” perjury at the trial itself but also govern-

ment suppression, both negligent and deliberate. Clearly,

had Leuci’s perjury been evaluated under the Mesarosh

standard, Rosner could not have been denied a new trial.

Even if prejudice may properly be considered in a case

where the government’s critical witness is wholly discred-

ited, the burden and standard for considering prejudice

must be the one articulated by this Court in Chapman v.

California, 386 USS. 18 (1967). In Chapman, the Court,

quoting Fahey v. Connecticut, 375 U.S. 85, 86-87 (1963),

stated :

“The question is whether there is a reasonable possi-

bility that the evidence complained of might have cou-

tributed to the conviction” Chapman, supra, at 25

(emphasis added).

Furthermore, Chapman held that the burden was on the

government to prove beyond a reasonable doubt that its con-

stitutional error“ did not contribute to the conviction.**

*That suppression of favorable evidence is constitutional

error is clear from the Court’s statement in Brady V. Maryland,

| Footnote continued on following page

The Court of Appeals here applied a standard completely

ut Variance with the one applied in Chapman.***

It held that:

“The question presented, then, is whether there is a

significant chance that skilled counsel could have de-

veloped the evidence of Leuci's criminality contained

in the Leuci-Lawrence tape and the Goe Memorandum

to impeach his credibility to the extent that a juror

would be led to reasonable doubt about Rosner’s

guilty. We emphasize that the standard demands

more than the possibility of a different result upon

retrial.... An Appellate Court must weigh whether

or not there is in reality a ‘significant chance’ that

the disclosure would have induced a reasonable doubt

in the minds of enough jurors to prevent a convic-

tion” (38) (Emphasis added).

There can be no doubt that there is an irreconcilable gon—

flict between the Chapman standard and that applied by the

373 U.S. 83, 87 (1963): “We now hold that 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 porsecution.” Nor is the constitutional import any

less when the nondisclosure is of “evidence affecting credibility”

of a government witness. Giglio v. United States, 405 U.S. 150,

154 (1971) citing Napue v. Illinois, 360 U.S. 264, 269 (1959).

** The Court stated:

“Certainly error, constitutional error , casts on

someone other than the person prejudiced by it a burden to

show that it was harmless... . [Wie hold. . . [therefore]

that before a federal constitutional error can be held harm-

less, the court must be able to declare a belief that it was

harmless beyond a reasonable doubt.” Jd. at 24.

*** The Chapman standard has been repeatedly reaffirmed by

this Court. See, e.g., Fontaine v. California, 390 U.S. (1968);

Anderson V. Nelson, 390 U.S. 523 (1968); Harrington v. Cali-

fornia, 395 U.S. 250 (1969); Whitely v. Warden, 401 U.S. 560

(1971); and Milton v. Wainwright, 407 U.S. 371 (1972).

Court of Appeals in the instant case. Chapmen, held that

the standard for reversal requires no more than that “there

is a reasonable possibility that the evidence complained of

might have contributed to the conviction” 386 U.S. at 23.

(Emphasis added). Here the court specifically rejected that

standard: “We emphasize that the standard demands more

than the possibility of a different result upon retrial... .“

(38a). (Emphasis added). Moreover, the lower court ex-

pressly placed the burden of demonstrating prejudice on the

defendant: “he [appellant’s counsel] has been unable to

demonstrate any ultimate prejudice to appellant by the gov-

ernment’s alleged misconduct” (61a). (Emphasis added).

This too is in irreconcilable conflict with the Chapman

standard which requires that a new trial be ordered unless

“the State has demonstrated, beyond a reasonable doubt”

that the error was harmless. 386 U.S. at 26.

The only difference between Chapman and the instant

case is that in Chapman the constitutional error was the

introduction into evidence of material that should have been

ercluded, whereas here the constitutional error was the fail-

ure to introduce material which should have been presented

to the jury. But plainly, this difference cannot justify a

distinction between the constitutional standards to be ap-

plied in determining whether the error was harmless. In-

deed, in Giglio v. United States, 405 U.S. 150 (1971), this

Court reaffirmed the Chapman standard precisely in the con-

text of a failure to present certain impeachment evidence to

the jury. In that case, as here, evidence contained in gov-

ernment files, relevant to the credibility of the government’s

key witness and inconsistent with his trial testimony, was

withheld from the jury. The Court “granted certiorari to

determine whether the evidence not disclosed was such as

to require a new trial under the due process criteria of

Napue v. Jillinois, 360 U.S. 264 (1959), and Brady v. Mary-

land, 373 U.S. 83 (1963).” Giglio supra at 151.

In answering that question, the court declined to con-

sider “whether the nondisclosure was a result of negligence

or design.“ Id. at 154. Nor did it pause to analyze the case

under the criteria used by the Second Circuit; it did not ask

“whether there is a significant chance that skilled counsel

could have developed the [concealed] evidence. . . to the ex-

tent that a juror would be led to reasonable doubt about

[the defendant’s] guilt” (38a). (Emphasis added). On the

contrary, the Giglio Court applied a standard for less bur-

densome to the defense: rather than demanding “more than

the possibility of a different result upon retrial” (Rosner

supra, Emphasis added), it held that “a new trial is re-

quired if ‘the false testimony could ... in any reasonable

likelihood have affected the judgment of the jury... Napue

supra at 271.” Id. at 154. (Emphasis added). In effect, the

Giglio standard does no more than restate Chapman: once

the constitutional error is established—-that is, once it is

shown that the government failed to disclose evidence which

could have unmasked false testimony (regardless of

“whether the non-disclosure was a result of negligence or

design“) — reversal is required unless the government dem-

onstrates beyond a reasonable doubt that the false testi-

mony could not have affected the judgment of the jury.

Applying this standard, the Court in Giglio ordered a new

trial, noting that the concealed evidence would have been

“relevant to {the witness’s} credibility” and that therefore

“the jury was entitled to know of it.” /d 154-155. (Emphasis

added).

Lest there be any doubt that the burden on the govern-

ment is at least as high when evidence affecting the cred-

ibility of a key government witness is withheld from the

jury as when evidence is improperly presented to the jury,

Davis v. Alaska, 415 U.S. 308 (1974) lays that doubt to

rest- In Daris, the Court reversed a conviction because

the defendant had been prevented from revealing to the

jury certain evidence contained in the juvenile record of

the chief prosecution witness which, according to the de-

fense theory, would tend to impeach the credibility and

motivation of the witness. The Court emphasized the im-

portance of leaving determinations of credibility and the

impact of impeachment evidence to the jury:

defense counsel should have been permitted to

expose to the jury the facts from which jurors, as

the sole triers of fact and credibility, could appro-

priately draw inferences relating to the reliability

of the witness. /d at 318.

Accordingly, as in Giglio, the Court refused to second-

guess the jury and make a finding as to whether the with-

held evidence would have produced a different result:

We cannot speculate as to whether the jury, as sole

judge of the credibility of a witness, would have ac-

cepted this line of reasoning [i.e. that the witness

had an ulterior motive stemming from his delin-

quent record] had counsel been permitted to fully

present it. But we do conclude that the jurors were

entitled to have the benefit of the defense theory

before them so that they could make an informed

judgment as to the weight to place on Green's [the

witness’s| testimony which provided “a crucial link

in the proof... of petitioner’s act.” quoting Doung-

las Vv. Alabama, 380 U.S. 415, 419 (1965). Jd. at

317.

Moreover, it noted that depriving the jury of evidence

relevant to a key government witness's credibility,

“would be constitutional error of the first magnitude

and no amount of showing of want of prejudice would

cure it.” Brookhart v. Janis, 384 U.S. 1, 3. 86 S.Ct.

1243, 1246. 16 L.Ed. 2d 314. Smith v. [linois, 390

.S. 129, 131, 88 S.Ct. 748, 750, 19 L. Ed. 2d 956

619687. Jd. at 318.

There can be no doubt that under the standard applied

by this Court in Chapman and Giglio, Rosner would not

have been required to sustain the burden of proving that a

juror positively “would be led to reasonable doubt about

Rosner’s guilt” in order to persuade the court that he was

entitled to have the concealed evidence presented to the

jury. Indeed the obligation established by the Court of

Appeals in this case, requiring the defendant to demon-

strate that there is “more than the possibility of a dif-

ferent result upon retrial” is wholly inconsistent with the

interdiction that appellate courts refrain from “speculat

ling] as to whether the jury“ would have accepted a de-

fense theory and discredited a government witness.

Had the standard articulated by this Court been ap-

plied here, it is beyond dispute—nor do we understand

the government to allege—that Rosner could not have

been denied a new trial. The lower court rested its con-

clusion that petitioner had failed to demonstrate prejudice

on its assumption that the jury in rejecting Rosner’s en-

trapment defense, bad relied on tape recorded conversations

between Leuci and Rosner, and not on the credibility of

Leuci’s live testimony concerning certain critical un—

recorded conversations “Leuci was not the lynchpin of the

vovernment’s case; the tapes were’* (43a). Indeed, the

district court assumed that Leuci’s credibility would have

been undercut by the disclosure of his perjury and past

criminal career, but concluded nonetheless that the jury

would have reached the same result without Leuci's live

testimony (14a). Various objective factors in the case

establish, however, that there is at the very least a “rea-

sonable likelihood” that some of the jurors would have

been influenced by the destruction of Leuci's credibility

und that disclosure to the jury of the truth about Leuci

“could , have affected the judgment of the jury.” These

factors include the following:

In another context, however, this District Court described

Leuci as “the government’s principal witness at trial.” Special

Prosecutor of New York v. United States Attorney For S. D. N. V.,

375 F. Supp. 797, 799, 806 (S.D.N.Y. 1974).

1. It is a matter of record that in its presentation

of the case to both the grand and petit juries, the govern-

ment relied centrally on Leuci's live testimony. Indeed,

the tape recordings were not even played before the grand

jury. Moreover in summation to the jury, the prosecutor

pitted Leuci’s version of the unrecorded meetings against

Rosner’s and highlighted the portrait of Leuci as an

honest, trustworthy cop. He emphasized:

Not once, not once did Detective Leuci get caught

in any lie, because he didnt lie. Mr. Krieger—you

have all seen him—is an expert. He is one of the

best there is. Yet he couldn't shake Detective Leuci

with regard to his testimony. There was no incon-

sistency in Detective Leuci’s testimony (Tr. 1533).

The trial court consistent with the prosecutor's argument

instructed the jury that:

„ There are substantial differences in the testi-

mony. Indeed, the versions of the Government and

defense witnesses are in such sharp divergence on

key points, that it may be suggested that this ir-

reconcilable conflict is not due to forgetfulness or

lack of recollection. Both versions cannot be true.”

(Tr. 1419). (Emphasis added)

2. It is also a matter of record that the trial court,

without objection from the government, submitted the en-

trapment defense to the jury. The law is clear that this

defense should be submitted only upon a judicial determin-

ation that there is sufficient evidence from which the jury

could have acquitted the defendant. United States v. Riley,

363 F.2d 955 (2d Cir. 1966); United States v. Marcello, 425

. 2d 993 (Sth Cir.), cert. denied, 398 U.S. 959 (1970);

United States v. Payseur, 501 F.2d 966 (9th Cir. 1974).

It is thus the law of the case that this jury could, on the

basis of the conflict between Rosner’s and Leuci's testi-

mony, have acquitted Rosner on the ground of entrapment,

3. It is also a matter of record that after six hours of

deliberation the jury requested the conflicting Leuci and

Rosner versions of the critical unrecorded meetings and

ufter four more hours reported that one juror had overheard

Leuci descibed as “a corrupt cop... for 9 to IL years.”

The prosecutor, arguing that such information “is deroga-

tory of the government’s case and inconsistent with the

Detective’s testimony,” sought and received a strong direc-

tion from the trial court to ignore this information (Tr.

1468 ).*

4. It is further a matter of record that in its argu-

ment to the Court of Appeals and to this Court on the

direct appeal, the government relied on the credibility of

Leuci’s live testimony concerning the critical unrecorded

meetings. See Government's Brief on Appeal at pp. 21-24

and Government's Opposition to the previous petition for

certiorari at pp. 4-7, and especially at 10-11 n. 10, where

the Government makes a special effort to explain the jury's

acquittals on the first two counts of the indictment which

involve unrecorded conversations.

It is thus objectively clear from the record that the

jury could well have reached a different verdict had the

government's sole substantive witness been presented in

his true light—as an inveterate perjuror and completely

corrupted abuseor of the people's trust. The lower court's

speculative conclusion that the verdict would have been

*In his recent concurring opinion in Mullaney v. Wilbur, 95

S.Ct. 1881 1893 (1975), Mr. Justice Rehnquist suggested that

expressed juror concern with obtaining further instructions on a

particular issue may be inconsistent with a finding of harmless

error in relation to that issue. He noted that the state court’s

“reason for not treating the possibility that the error was harm-

less may have been because, as this Court’s opinion points out,

ante, p. 1884, the jury came back in the midst of its deliberations

and requested further instructions on the doctrine of implied

malice aforethought and the definition of “heat of passion.”

the sume can only be (ested if a new trial is granted and

if the new jury is presented with the true picture, as we

now know it, of the government's critical witness.

CONCLUSION

This is a case ideally suited to Supreme Court review,

since there are no significant dispute of facts and since the

only issues are ones of remedy. As to the pre-trial sup-

pression and trial perjury, the lower court expressly ap

plied a burden and standard in direct conflict with this

court’s decisions in Giglio and Chapman as to deliberate

suppression pending a new trial motion, there is a direct

conflict between the Second Circuit's requirement of preju-

dice (which can never, by definition, be met in a post-trial!

suppression case) and the Seventh Circuit’s prophallactic

approach in United States v. Ott, 489 F. 2d 872 (1975). A»

to the deliberate withholding of relevant information before

this court, this is a cause of first impression uniquely suited

to consideration by this court.

lor the foregoing reasons petitioner respectfully requests

that the petition for a writ of certiorari be granted.

Respectfully submitted,

ALAN R. DprsHow1tz

Attorney for Petitioner

Of Counsel:

NANCY RoeNeER

JEANNE BAKER

APPENDIX A

Opinion of District Court

72 Cr. 782

UNITED STATES DISTRICT COURT

SOUTHERN Disrricr oF New York

— EE

UNITED STATES OF AMERICA,

—ayarnst—

hoMUND A. ROSNER,

Sn > —ññ ʒ́ —ę„—̊

BAUMAN, D. J.

For the third time Edmund Rosner has moved for a

new trial based on newly discovered evidence. He was

convicted before me on December 5, 1972, of conspiracy,

obstruction of justice, and of three counts of bribery.’

his conviction was affirmed by our Court of Appeals,

{nited States Vv. Rosner, 485 F.2d 1213 (2d Cir. 1973),

und the Supreme Court has recently denied certiorari —

Us. — (June 10. 1974) without prejudice to this court's

consideration of the instant motion.

When originally tiled, defendant's motion relied princi-

pally on the allegations of one Richard Lawrence, a regis-

tered government informant, that Robert Lenci had com-

mitted perjury at the Rosner trial by failing to disclose

One count alleging removal of government documents was

dismissed prior to trial, United States v. Rosner, 352 F. Supp.

915 (S.D.N.Y. 1972), and the jury acquitted Rosner on two counts

of bribery.

Appendis A—Opinion of District Court

extensive criminal activity. bor those whose memory of

Life magazine has already dimmed it will be recalled that

Leuci was and is a detective in the New York City police

department who, at the time of the events described in the

indictment, was posing as a corrupt policeman in further-

ance of various investigations then being conducted by the

United States Attorney's Office. Approximately one month

after this motion was filed, on April 17, 1974, Leuci first

revealed to members of the United States Attorney's Offices

for the Southern and Eastern Districts of New York that

his past criminal activities had been far more extensive

than he had previously acknowledged, and that he had

indeed committed perjury at the Rosner trial in this re-

spect.” Because the motion was made during the pendency

of defendant’s petition for certiorari, the holding of a

hearing was deferred until after the Supreme Court had

disposed of the petition. & hearing then commenced on

July 1, 1974 and, after a week's interruption, concluded on

July 16. What follows constitutes my findings of fact and

conclusions of law.

A thorough exposition of the evidence developed at the

trial can be found in the opinion of the Court of Appeals

at pp. 1215-1219, and I shall set forth here no more than is

necessary to give context to the discussion that follows.

During October, 1971, Rosner was under indictment in this

district along with Nicholas DeStefano in 70 Cr. 1030.“

Leuci, acting in an undercover capacity, approached De-

Stefano and Nicholas Lamattina and offered, through a

supposed contact in the United States Attorney's Office, to

As shall appear more fully below, the usage is ironic.

For other consequences of Leuci’s revelations, see Special

Prosecutor of the State of New York v. United States Attorney,

375 F. Supp. 797 (S.D.N.Y. 1974).

The indictment was ultimately dismissed. See United States

v. DiStefano, 464 F.2d 845 (2d Cir. 1972).

Appendie A—Opinion of District Court

provide information about that case as well as others then

pending in this district. Rosner was later brought into

the negotiations and ultimately participated in the pay-

ment of several thousand dollars to Leuci in exchange for

grand jury minutes and statements of prospective govern-

ment witnesses ("3500 material’) in 70 Cr. 1030. There

were five separate payments, over a period of three weeks,

each of which formed the basis of a bribery lharge. Rosner

was acquitted of two of these charges, describing payments

which took place on October 4 and October 8, and con-

victed of three others, which involved payments occurring

on October 12, 13, and 19. He was also convicted of con-

spiracy and obstruction of justice. The essence of Rosner's

defense was entrapment, a theory which the jury apparently

rejected at least with regard to five of the seven counts.

See 485 F.2d at 1220-1223.

Although both DeStefano and Lamattina had pieaded

euilty prior to the commencement of the trial,’ neither was

called as a witness. The government's case was based prin-

cipally on the testimony of Leuci, and on the tape record-

ings which he made of several conversations between him-

self and the defendants. The other government witnesses

were Assistant United States Attorneys and surveillance

agents, Whose testimony was clearly ancillary and intro—

duced for corroboration of Leuci. All sides were aware,

prior to and during the trial, that Leuci’s credibility was

u matter of no small significance. The defense therefore

made a concerted effort, beginning with its pretrial motions,

to locate information damaging to Leuci.® In an effort to

* DeStefano’s plea was entered after the jury was selected

but prior to the presentation of evidence.

For example, on July 21, 1972 the defense filed motions for

discovery in which they sought disclosure of all matters con-

tained in New York City Police Department files concerning

complaints of misconduct, investigations, or disciplinary proceed-

ings against Leuci.

OOOO eS EOE

Appendix A—Opinion of District Court

minimize the impact of such information, the government

prosecutors elicited from Leuci at the very outset of his

trial testimony admissions of prior criminal conduct. He

testified to four such acts: om four occasions between 1966

and 1968, he had acted as an intermediary between detec-

tives in the Narcotics Division and those under investiga-

tion by that division. Actually, he arranged to sell the

information gathered by other detectives to those being

investigated, and in the four incidents he described he had

accumulated approximately 86,000. Leuci maintained un-

der persistent cross-examination by Rosner’s trial counsel

that these were the only criminal acts in which he had ever

participated.

On April 17, 1974, as I have already noted, Leuci made

what he now claims is a full disclosure of his prior wrong-

doing. The crimes to which he has now confessed are

numerous and go far beyond his admissions at the Rosner

trial. A brief enumeration follows, if only to establish a

proper order of magnitude. On approximately fifteen ocea-

sions, Leuci shared with fellow police officers money seized

in narcotics raids. Over a period of perhaps three years,

he distributed small quantities of heroin to informants

He also took money, and occasionally, heroin, from inform-

ants in exchange for letting them continue to sell nar-

coties. He sold information that had been gleaned from

police investigations and acted as an intermediary for other

policemen who wished to make similar sales.” He partici-

pated in illegal electronic surveillance on several occasions.

He accepted sums of money from lawyers and, on one

He has now confessed to acting in this intermediary role

on occasions other than those about which he testified at the

Rosner trial. :

Appendix A—Opinion of District Court

occasion, participated in the paying of a bribe to an Assis-

tant District Attorney. He made payments of money to

his superior officers in the Volice Department. And

finally, it is almost supererogatory to add that he com-

mitted perjury at the Rosuer trial, at a trial in the New

York state courts, and in numerous interviews with govern-

ment prosecutors and defense lawyers.*

Rosner’s new trial motion, however, is not premised

merely on Leuci’s perjury. He points to various incidents

which, he cliams, demonstrate either that government prose-

custors were aware of Leuci’s perjury regarding his past

crimes or that they withheld evidence of such crimes from

the defense prior to and after the trial. I shall recount

each of these very briefly.

The first act of alleged suppression took place in 1971,

before Leuci began working with the United States Attor-

ney's Office here. Leuci had been with the Knapp Commis-

sion, where he developed a rapport with one of the Com-

mission's lawyers, Nicholas Scoppetta.’ In March of that

year Scoppetta ordered Leuci to investigate the involve-

ment of Richard Lawrence, previously identified as an in-

formant of Leuci'’s, in a homicide in the Bronx. As a result

Leuci tape recorded a conversation with Lawrence. The

conversation vielded no information about the homicide; it

did suggest, however, that both Leuci and Lawrence had

participated in illegal seizures of narcotics following

J have avoided estimating the financial gains derived from

any of these activities, for Leuci’s recollection was poor in this

respect, but there can be little doubt that he realized at the very

least tens of thousands of dollars.

»Scoppetta went from the Knapp Commission to the United

States Attorney's Office in mid 1971 and, it appears, took Leuci

with him.

Appendix A—Opinion of District Court

arrests, and that Lawrence had retained some of the nar-

(“packages”) to help meet a continued need for

cotics

money.

The conversation, whose most significant passage

is set out in the margin“ is neither as unequivocally incul-

Leuei:

Lawrence:

Leuci:

Lawrence:

Leuci:

Lawrence:

Leuci:

Lawrence:

Leuci:

Lawrence:

Leuci:

Lawrence:

Leuci:

Lawrence:

Leuci:

Lawrence:

You know, the story with you is always the

same story. Now, let me explain something.

The easiest way for you to get a package is

to make a case, right?

Make a case?

Yeah. Am I right or wrong?

No, no, no. How the hell am I gonna...

here the hell is that gonna work?

Oh, come on. What are you talkin’ about?

What do you mean so so.. what do

you... what do you mean? How the hell is

.. . how is that gonna work?

If you make a case.

Yeah.

And there's a seizure.

Yeah.

You got a piece of the package, right?

No. Not necessarily. How ... how do you

figure that?

Have we ever made a case where you didn’t

get a piece of the package?

Have we ever made a case that I didn’t get

a piece of the package? Oh, man, I don’t

know what the hell you talkin’ about. Have

we ever made a case that I didn’t get a piece

of the pack. ..? Hell, we've made a whole lot

of cases that I didn’t get a piece of the pack-

age. I don’t know what the hell you talkin”

about. Shit! That... that . . that. . if

that was the case, I’d ’ve been straight now.

But. . . have we made a case and I get a

piece of the package

No. I’m not talkin’... you know.

I'd be sittin’ on the top of the world.

[Footnote continued on following page}

LYe¹αjσe A—Opinion of District Court

patory as Rosner claims nor as exculpatory as the govern-

ment argues. There is no question, however, but that

during the course of it Leuci demonstrates a familiarity

with procedures whereby Lawrence would obtain “pack-

ages” of heroin resulting from arrests. Leuci told Scop-

petta of this conversation and Scoppetta subsequently

listened to the tape, which he took with him when he

joined the staff of the United States Attorney. The tape

was, however, not disclosed to the defense prior to the

trial, and only came to light during the final days of the

instant hearing, when Leuci made an inadvertent reference

to it.

Rosner alleges one other instance of governmental sup-

pression. On July 13, 1972 Leuci was interviewed in the

oftices of the United States Attorney by two agents of the

Leuci: Yeah, right. But we really never made, you

know, like when we were fallin’ over fuckin’

packages.

Lawrence: Right.

Leuci: You know, I agree with you there.

Lawrence: Right.

Leuci: But, I... I would think that the easiest way

to go up and you know, you make it under-

stood before you make the case. Look, I’m

gonna make this case. We're gonna do some-

thing. Whoever you’ve workin’ with. With

whoever you’ve workin’ with. So it takes

you four days to make . . whatever bullshit

case ... like you to get a guy with a eighth

half, whatever.

Leuci: It is. (1 secs/unintell.) and you get your

hands on something .. three owners, four

owners, and you’re home free. Right.

Lawrence: No man. You can’t do things like that.

Leuci: Don’t you tell me you can’t do things like that.

Lawrence: You can’t do things like that.

Leuci: Well. I don’t know.”

Appendix A—Opinion of District Court

Drug Enforcement Administration (DEA), Robert Goe and

Joseph Gately. He admitted to them that in 1964 or

1965 ne had participated in a warrantless search for drugs

alorg with three other government agents. No narcotics

were found, but the four men did steal $200 from the

premises which they divided among themselves equally.

This was dutifully memorialized in what has come to be

known as the “Goe memorandum”. Leuci had made a

similar admission in early 1971 to another DEA agent,

Andrew Tartaylino, at the apartment of Edward M. Shaw,

then an Assistant United States Attorney. Shaw learned

of the incident shortly thereafter. The Goe memorandum,

which the government concedes to have been “3500 mate-

rial“, was not turned over to the defense prior to trial.

None of the government prosecutors who participated in

the Rosner trial was aware of it until April 9, 1974, when

Elliot Sagor, one of the prosecutors, Jearned of it.

Rosner presents four separate arguments concerning

alleged governmental misconduct prior and during the

trial. (Two other arguments, claiming post trial suppres-

sion, will be considered in later sections of this opinion. )

First, he argues that Leuci’s perjury, in and of itself, wes

so extensive, and presented such a distorted picture of the

man to the jury, that a new trial is required. Second, he

argues that Leuci’s status us a government agent and as

an integral part of the prosecution require that his own

awareness of his perjury be attributable to the govern—

ment, and that the case be viewed as if there were govern-

mntal knowledge of the perjury. Third, he argues that

governmental knowledge of perjury is further established

by Shaw’s awareness of the Goe memorandum and Scop-

petta’s familiarity with the Leuci-Lawrence taped conver-

sation. The fourth argument is in effeet a restatement of

Government's Post-Hearing Memorandum of Law, p. 25.

Appendix A—Opinion of District Court

the third: it is contended that Shaw and Scoppetta sup-

pressed evidence of Leuci’s crime in the Goe and Lawrence

incidents, and therefore materially impeded the preparation

of the defense.

Before considering each of these arguments in turn, it

will be useful to review the various standards that have

been applied in evaluating motions for a new trial based

on newly discovered evidence. The general standard is now

u familiar one: “the evidence must have been discoverd

aftr trial, must be material to the factual issues at the

trial and not merely cumulative and impeaching, and of

such a character that it would probably produce a different

verdict in the event of a retrial.” United States v. Kahn,

472 F.2d 272 (2d Cir. 1973); United States v. DeSapio,

456 F.2d 644 (2d Cir. 1972); United States v. Polisi, 416

F.2d 573 (2d Cir. 1969).

Where the evidence newly discovered demonstrates per—

jury by a prosecution witness, the standard is, in some

respects, altered. A distinction, however, must be drawn

between perjury known to the government and perjury of

which the government was unaware. If the government

was unaware of the perjury, the applicable standard is the

traditional one just enunciated. Although United States v.

Polisi, supra, suggests a more liberal standard, I think

Judge Weinfeld is surely correct in concluding that a re—

laxation of the traditional newly discovered evidence test

is justified only where government knowledge of the per-

jury can be established. (nited States vy. Marquez, 363 F.

Supp. 802 (S. D. N. V. 1975). alfd on opinion below, 490

F.2d 1383 (2d Cir, 1974). Where such knowledge is estab-

lished, the test is relaxed in two respects. First, the newly

discovered evidence need not be material to guilt or inno-

ence alone: it may pertain solely to the credibility of w

witness. VVV v. ., 360 Us. 264 (1959); Giglio v.

lnited States, 405 Us. 150 (1972). Second, the defen-

10a

Appendic A—Opinion of District Court

dant need establish only that the newly discovered evidence

might have produced a different verdict. United States v.

Marquez, supra; Giglio Vv. United States, supra; Kyle v.

United States, 297 F.2d SOT (2d Cir. 1961); Larrison x.

United States, 24 F.2d 82 (7th Cir, 1928).

Yet a different set of standards is applicable when it is

determined that the newly discovered evidence was sup-

pressed by the prosecution. Those standards were first

articulated by Judge Friendly in (nited States v. Keogh,

391 F.2d 138 (2d Cir. 1968), and reaffirmed in l nited States

v. Kahn, supra. In such a case of intentional suppression,

a new trial is warranted if the evidence is merely material

or favorable to the defense. The same standard applies

even in the absence of intentional suppression, “if it ap—

pears that the high value of the undisclosed evidence could

not have escaped the prosecutor’s attention.“ The Aahn

court notes that materiality is defined “by the effect of its

suppression upon preparation for trial, rather than its

predicted effect on the jury's verdict.”’° The defendant

has a heavier burden where the evidence was inadver-

tently suppressed, and where its value is not so readily

apparent. Under such circumstances, the defendant need

not show the probability of a different verdict upon retrial,

but must demonstrate that there is “a significant chance

that this added item, developed be skilled counsel

could have induced a reasonable doubt in the minds of

enough jurors to avoid a conviction.” United States v.

Miller, 411 F.2d 825 (2d Cir. 1969); United States v.

Mayersohn, 452 F.2d 521 2 Cir. 1971): United States v.

Kahn. supra.

This standard of materiality thus contrasts with that appli-

cable in cases of governmental knowledge of perjury, where the

focus of the court’s inquiry is the effect on the jury, not on defense

preparation.

—

11a

yt, A—Opinion of District Court

II.

shall first consider detendant's allegations of govern-

mental suppression of the evidence in the Goe memorandum

and of the Leuci-Lawrence tape. I should note prelim-

inarily that the defendant is surely correct in arguing

that the acts in question are attributable to the government.

The fact that neither Scoppetta nor Shaw directly partici-

pated in the Rosner trial is immaterial; it is now settled

law that the misdeeds of one member of a prosecutor's

office are attributable to the prosecution as a_ whole.

Giglio v. United States, supra; Nantobello v. New York,

404 U.S. 257 (1971); United States ex rel. Rice v. Vincent,

491 F.2d 1326 (2d Cir, 1974). But my finding need not

be based on this abstract proposition alone, for IJ must

also conclude that both Shaw and Scoppetta were deeply

involved in the preparation of the Rosner case. The two

men were given primary responsibility for gathering and

disclosing to the defense all “3500 material’. Shaw also

presented the case to the grand jury and, although by the

time of trial he had left the United States Attorney’s Office

to become head of the Southern District's Strike Force, he

was the government's first witness and by his own admis-

sion followed the trial closely.

A. Using the K % test, I shall attempt to evaluate the

vovernment’s actions with regard to the Goe memorandum

and the Leuci-Lawrence tape separately. Taking the Goe

memorandum tirst, I find that Shaw's actions fall far short

of the first of the Aahn categories: there was certainly no

deliberate and carefully considered decision to suppress the

information, and | do not understand even the defendant

so to contend. The next inquiry, then, is whether the

evidence was of such “high value” that it “could not have

escaped the prosecutor's attention“. Quite the opposite

12a

Appendix A—Opinion of District Court

appears to me to be the case. It describes, in essence, the

participation by Leuci in an illegal entry and a 880 theft,

crimes which pale in significance as against those to which

he testified at trial. It will be recalled that Leuci ad-

mitted participation in shakedowns of narcotics suspects

which earned him thousands of dollars. The government

prosecutors thus knew, long before the Rosner trial, that

Leuci’s record was marred by serious criminal activities.

The $50 incident described in the Goe memorandum was

thus not likely to stand out in anyone's mind as an egregi-

ous example of wrongdoing that undermined firmly held

assumptions about Leuci’s probity. Had this incident

been the only blot in an otherwise immaculate record, then

I could well find that its value was such that it could not

have escaped a diligent prosecutor's attention.

The defendant, however, argues that the Goe memoran-

dum has a far greater significance than I have suggested.

The crime described therein, he argues, was wholly dif-

ferent from those to which Leuci confessed at the trial. As

he puts it, “The four incidents in which Leuci was an inter-

mediary in information sales were at % vietimless crimes

in which "er i's participation was beneficial to all parties.

In sharp contrast, the Goe crime involved a victim whose

home was burglarized and who lost S200 to the thieves in

government uniforms, gaining nothing in return.” (Em-

phasis in original). The argument is staggeringly dis-

ingenuous.’* My task here, however, is not to weigh the

18 Defendant’s Memorandum of Law, pp. 20-21.

The argument takes the notion of “victimless crimes”, a

term developed by criminologists to define a class of activities,

such as homosexuality or the distribution of pornography, defined

as criminal largely because of prevailing moral standards, and

extends it to any crime in which, presumably, there is no com-

plaining witness. By this logic, tax evasion, perjury, bribery

or obstruction of justice are all victimless crimes and, one sup-

poses, less offensive to the sensibilities of juries than assault and

battery.

13a

Appendis A—Opinion of District Court

stigma attaching to various classes of felonies but to deter-

mine whether the incident described in the Goe memoran-

dum was of such significance that it should have attracted

the attention of any conscientious prosecutor. Seen against

the background of those other crimes to which Leuci has

confessed, it had no real significance and was, as I stated

at the hearing, de minimis.

Having found the suppresion to be inadvertent, and

having found the evidence to be of no conspicuous value, I

thus reach the third element of the Aahn test: was there a

“significant chance that this added item, developed by

skilled counsel... could have induced a reasonable doubt

in the minds of enough jurors to avoid a conviction.”? 1

think not, and my reasons for so concluding go directly to

the basic weakness of each of Rosner’s proffered arguments.

The unstated premise of this motion, in all its facets, is

that if the Rosner jury had known of Leuci’s other criminal

activities, whether the Goe incident, the Lawrence conver-

sation, or even the entire panoply of his crimes, his credi-

bility would have been so severely undermined that a

different verdict would have been inevitable. I cannot

share this view of the evidence or of the jury's perspicacity.

The trial was not a simple matching of Leuci’s credibility

against Rosner’s; had it been, the arguments the defendant

now advances would have infinitely greater persuasive

force. The government's case was based on Leuci's testi-

mony, as corroborated by several tape recordings of con-

versations in which Leuci and Rosner, among others, par-

ticipated. Leuci was not the Iynehpin of the government’s

cuse; the tapes were. Nothing demonstrates this more

forcefully than the verdict itself. The two acts of bribery

of which Rosner was acquitted took place on days when

Leuci wore no transmitting device; the three acts of bribery

of which he was convicted took place while conversations

14a

Appendis A—Opinion of District Court

were recorded. Although jury verdicts are rarely unam-

biguous, the inference is inescapable that the jury attached

great weight to the existence of tape recordings. The

verdict also makes clear that Leuci’s credibility did not

simply carry the day for the prosecution, as the defendant

would now have us believe.

Further corroboration of Leuci’s account, furthermore,

was provided by the testimony of the defendant himself.

In the course of establishing his entrapment defense Rosner

admitted virtually all of the elements of the various crimes

charged. He admitted evincing interest in the grand jury

minutes and “3500 material”, and he admitted making pay-

ments for them. I therefore find that no matter how much

Leuci's credibility could have been undermined, whether

by a single additional incident or the full range of his

crimes, the jury’s verdict could not possibly have been

affected. It follows that the incident described in the Goe

memorandum, no matter how eloquently presented to the

Rosner jury, could not have, in the words of the Kan

test “induced a reasonable doubt in the minds of enough

jurors to avoid a conviction.”

B. Turning to the Leuci-Lawrence tape, | again find no

evidence of deliberate, considered suppression, Scoppetta

stated, in testimony ! iind wholly credible, that when he

heard the tape his principle concern was the homicide that

he had asked Leuci to investigate. Because the conversa-

tion was quite uninformative on that point, he paid it

little attention thereafter. Although the tape remained in

a locked cabinet in the United States Attorney's Office,

there is nothing before me that suggests that the tape was

withheld prior to trial because of its references to narcotics

transactions involving Leuci.

— Ons ee ee

—ͤ—Ü—— — ———U ti —

15a

Appendix A—Opinion of District Court

The question of whether the tape had such value as to

arrest the attention of a conscientious prosecutor is slightly

closer. It would be close indeed if the conversation it

contains establishes Leuci’s criminality as authoritatively

as Rosner argues. It is, however, a peculiar and ambiguous

document. The passage set out at footnote 10, supra, can

be read in various ways. Leuci’s question to Lawrence,

“Have we ever made a case where you didn't get a piece of

the package?” suggests that he participated in narcotics

arrests in which Lawrence was permitted to keep a portion

of the drugs. Lawrence's incredulous response to this

question, “Hell, we've made a whole lot of cases that I

didn’t get a piece of the package”, is open to two inter-

pretations. It may suggest, as the government urges, that

Lawrence never took drugs while Leuci was making an

arrest. It may also suggest that on many occasions Law

rence obtained no drugs, but on others he did. We now

know from Leuci’s testimony at the instant hearing that on

two occasions he permitted Lawrence to take drugs in the

course of an arrest. But even a diligent prosecutor re—

viewing the conversation could reasonably conclude that

the conversation shows no more than a streetwise police-

man's familiarity with the manner in which narcotics in-

formants obtain drugs. The tape, in short, does not shriek

of Leuci’s criminality, and its dubious value could readily

have escaped a prosecutor's attention.

Because of the conversation’s ambiguity, I would also

not be warranted in concluding that it could have induced

a reasonable doubt sufficient to avoid conviction, no matter

how skillfully exploited by Rosner’s lawyers. Standing

alone, its probative force is minimal. Even if, as defendant

argues, the pretrial disclosure of the tape would have led

to Lawrence, and thence to the two incidents Leuci has

now admitted, the effeet on the jury would have been insig-

nificant. As the Judge who presided over the trial and

léa

Appendix A--Opinion of District Court

carefully observed its course and conduct, | do not believe

that a diminution in Leuci’s credibility would have been

fatal to the government's case. Lo am therefore compelled

to reject that branch of defendant’s motion based on alleged

suppression of evidence by the prosecution.

III.

Closely related to the discussion in the preceding sec-

tion is defendant’s contention that a new trial is mandated

by the prosecution's knowledge of Leuci’s perjury. The

essence of this argument is that while Leuci was denying all

criminal acts save the four to which he testified, Shaw was

aware of the incident described in the Goe memorandum

and Scoppetta of the implications of the Leuci-Lawrence

tape. As I indicated at the outset of the preceding section,

Shaw and Scoppetta’s knowledge must be attributed to the

prosecution. Giglio v. United States, supra; Santobello x.

New York, supra.

On this branch of the motion, it is well to remember

that the prosecution can be held responsible for knowledge

only of the Goe memorandum and the Lawrence tape.

With regard to the latter, I shall simply assume arquendo

that an awareness of this conversation bespeaks a know!l-

edge of Leuci’s narcotics dealings with Lawrence; in actu-

ality, a prosecutor fully aware of this conversation could

reasonably have seen no inconsistency between it and

Leuci’s trial testimony. The question then comes down to

this: is the government’s awareness of Leuci’s failure to

acknowledge these few criminal acts sufficient to warrant

a new trial? I think not. The applicable standard has

already been set forth: might this e idence, newly revealed,

have led to a different verdict? We have been cautioned

by the Supreme Court in Giglio that a new trial is not

17a

Appendis A—Opinion of District Court

required whenever “a combing of the prosecutor’s files

after the trial has disclosed evidence possibly usely to the

defense but not likely to have changed the verdict.” See

United States v. Keogh, supra. “A new trial is required

if ‘the false testimony could . .. in any reasonable likeli-

hood have affected the judgment of the jury.” (Citing

Napue Vv. Illinois, supra.) As I have already stated in con-

sidering Rosner's suppression argument, there is not the

slightest likelihood that the jury, having been apprised of

the Goe incident and the transactions with Lawrence,

would have reached a different verdict. This branch of the

motion is denied as well.

IV.

I turn now to that aspect of Rosner's argument that

focuses not on the knowledge of the prosecutors, but on

Leuci’s own awareness of his perjury. The United States

Atorney’s Office, as I have noted, can only be charged with

the awareness of those incidents which are the subject of

the Goe memorandum and the Lawrence tape; Leuci, of

course, Was the only one who knew exactly how flagrant

his perjury was.

There is no need to dwell at length on defendant’s

urgument that the “massive” nature of Leuci’s perjury, in

and of itself, requires a new trial. It reflects a misunder-

standing of the applicable law governing new trial motions.

| have previously noted my agreement with Judge Wein-

feld’s conclusion in United States v. Marquez, supra, that

the more relaxed standard governing new trial motions

alleging perjury applies only where governmental knowl-

edge of the perjury can be established. 363 F. Supp. at

805-6. Ilence the appropriate test to be applied is that

which governs new trial motions in general, and the second

18a

Appendia A—Opinion of District Court

element of that test is that the evidence be material to

the factual issues at the trial and not merely cumulative

and impeaching. United States vy. Kahn, supra. The

evidence newly discovered here, regardless of its extent,

only serves to impeach Leuci’s credibility. It does not

address the question of defendant’s guilt or innocence.

It cannot therefore furnish a basis for a new trial motion.

I see no justification here for departing from the rule that

a witness’s perjury regarding collateral matters cannot, by

itself, warrant a new trial.”

B. The defendant, however, proffers an alternative

theory based on Leuci’s perjury. He invokes a line of

authority commencing with Pyle v. Aansas, 317 U.S. 213

(1942), that holds the government answerable for per-

jurious testimony given or induced by police officers even

without the knowledge of government prosecutors. As

Judge Sobeloff stated in Barbee Y. Warden, 331 F.2d 842

(4th Cir. 1964), “[t]he police are also part of the prosecu-

tion, and the taint on the trial is no less if they, rather

than the State’s Attorney were guilty of the nondisclosure.”

In support of a contrary view Rosner cites United States

v. Gordon, 246 F. Supp. 522 (D.D.C. 1965). It was there dis-

covered that the government’s complaining witness had been con-

victed of larceny after denying so at the trial. In considering

a new trial motion the district court acknowledged the ordinary

rule that newly discovered evidence affecting a witness’s credibility

will not warrant a new trial. The court felt compelled to depart

from the rule, however, and granted the motion. The case is

readily distinguishable: the court noted that the new impeaching

evidence was of a “very serious nature under the circumstances

of this case, there being no corroboration and no eye witnesses.”

Here, of course, Leuci’s testimony was thoroughly corroborated

by the tape recordings as well as Rosner’s own testimony at trial;

the verdict thus cannot be said to have hinged on his credibility,

as the court concluded it did in Gordon.

19a ,

Appendia A—Opinion of District Court

See also, Curran v. State of Delaware, 259 F.2d 707 (3d

Cir. 1958), cert. denied, 358 U.S. 948 (1959); Smith v.

State of Florida, 410 2d 1349 (5th Cir. 1969); /mbler

V. Craven, 293 F. Supp. 795 (C.D. Cal. 1969). Rosner

therefore argues that Leuci was such an integral part of

the prosecution team that the whole of his perjury must

be chargeable to the government. The government can thus

be deemed to have wilfully and knowingly suppressed not

merely a few random incidents but the entirety of his

criminal past. Under the more lenient standard for new

trial motions based on government knowledge of perjury,

he argues, a new trial is required.

1 do not for a moment quarrel! with the principle

announced in Pyle, Barbee, and the other cases cited, but

I do not consider it to be fully applicable here. Leuci was

of course a part of the prosecution team in that although

a New York City policeman, he was working full time

under the supervision of the United States Attorney’s

Office. But he wes not a “part of the prosecution” in

quite the same sense that the officers in, for example, Pyle,

Curran, or Barbee were. The policemen in those cases

actively engaged in investigating and preparing the cases

in question for trial; their functions were ancillary to, and

supportive of, the prosecutors. Leuci’s role here differs

significantly. His status as a policeman was incidental;

he functioned not as a policeman but as an undercover

agent whose utility to the prosecution was enhanced because

his pose as a corrupt policeman made the role he had to

play more credible. He did not, obviously, participate in

the investigation of this case or in its preparation for trial

except insofar as he was a witness to the events in ques-

tion. I point out these differences only to stress that the

perjury or falsification in which the police engaged in

Curran, Barbec, ete. was committed in the course of per-

20a

Appendix A—Opinion of District Court

forming prosecutorial functions. In Curran policeman

destroyed statements given them by defendants which, if

offered in evidence, would have substantiated one of their

defenses. In Barbee the police suppressed ballistics reports

which tended to show that defendant’s weapon was not

used to commit the crime of which he was charged. In

so doing these policemen abused their prosecutorial func—

tion. Leuci’s perjury, on the other hand, was not com-

mitted in the course of his functioning as a prosecutor;

he lied about his criminal past just as any other witness

similarly situated might have.

There is another point of distinction between the instant

situation and the cases on which Rosner relies. In the

latter, the perjury or suppression committed by police

officers concerned issues relating to the ultimate question

of guilt or innocence. Leuci’s perjury, as I have now

repeatedly noted, went only to the issue of his own credi-

bility. There is no sound policy reason, I submit, to extend

the principle of these cases to acts of perjury committed

by policemen which affect only their own credibility. To

hold the government answerable for the suppression of

evidence by its subordinates serves a salutary deterrent

function; it requires all those who participate in a prose-

cution to sift through the evidence with greater care and

to supervise the work of their subordinates with greater

vigilance. It is difficult to see what deterrent function is

served by holding the government answerable for perjury

yon such collateral matters: no degree of supervision by

a prosecutor is likely to protect a policeman from lying

about his criminal activities, but close supervision is likely

to prevent the falsification or suppression of other evi-

dence. I therefore decline to attribute Leuci’s knowledge

of his perjury to the government here, or to extend the

Pyle principle in the fashion defendant now urges.

21a

Appendix A—Opinion of District Court

There is an alternative basis for my ruling. Even if

Leuci’s perjury is fully attributable to the government, and

even if the proper test for analyzing its effect was whether

the jury might have reached a different result, I would

be compelled to deny this branch of the motion. I adhere

to my conclusion, set forth in Part II of this opinion, that

Leuci’s credibility was not the crux of the government’s

case. The jury had before it the very best evidence of

Rosner’s criminality—the record of his own voice and

words and their intonation made in the midst of his

criminal activities. Thus, even had the jury been fully

apprised of Leuci’s criminal background and his credi-

bility diminished accordingly, I see no reasonable likeli-

hood of a different jury verdict. For the tape recordings

spoke far more decisively of Rosner’s guilt than Leuci did.

V. e

The foregoing discussion disposes of defendant’s various

claims of pretrial suppression and perjury. I now turn

to his charges of post-trial suppression. The first of these

alleged acts of suppression took place in January, 1973,

za month after the trial had concluded. In late December,

1972, Lawrence went to the office of Frank Rogers, the

Special Assistant District Attorney in charge of narcotics

prosecutions in New York City and informed him that he

had often been given narcotics by Leuci. Rogers com-

municated this information to the United States Attorney’s

Office. Robert Morvillo, then hea dof the Criminal Divi-

sion and the government’s chief trial lawyer in the Rosner

case commenced an investigation of those charges on or

about January 2, 1973. The investigation was entrusted

to Charles Sherman, an agent with the Drug Enforcement

Administration. Sherman and a subordinate interviewed

22a

Appendix A—Opinion of District Court

Lawrence and were told of the many narcotics transactions

in which he claimed to have participated with Leuci.

Lawrence mentioned various individuals who were also

party to these transactions: one named John. another

named Robert, another named “Saint”. Lawrence did not

know the full names, addresses, or telephone numbers of

any of these individuals, and DEA agents were unable

to locate any of them in the ensuing weeks with the infor-

mation he did provide. Lawrence was also given a lie

detector test which, according to the concern which ad-

ministered it, he failed. Morvillo was told of the results

of the test on January 18, 1973 and decided to abandon

any further investigation into Lawrence’s allegations dur-

ing the week of January 21.

While this investigation was underway, Rosner filed

his first new trial motion, which was based on the affidavits

of several narcotics addicts alleging that Leuci had sold

them drugs. The motion was filed on January 12 and a

hearing was held on January 26, after which I denied the

motion from the bench. At no time during the pendency

of this motion did the government inform Rosner of Law-

rence’s allegations.

Rosner now argues that the government was obligated

to disclose Lawrence’s allegations to him. He contends

further that the government’s supposed investigation of the

charges was inadequate, and that had greater pains been

taken Lawrence’s allegations could have been substantiated.

He also introduced several experts who testified that Law-

rence’s polygraph test was at worst inconclusive and could

by no means have been adjudged a failure. All of these

derelictions, he argues, are sufficiently serious as to justify

a new trial.

23a

Appendig A—Opinion of District Court

In considering this contention I do not find it neces-

sary to pass on the adequacy of the government’s investi-

gation of Lawrence’s allegations. I shall note, however,

that an experienced prosecutor is entitled to view with

some skepticism the information provided by a long time

narcotics informant. On the other hand, the prosecutors

could not help but recognize the similarity between Law-

rences’ charges and those contained in the affidavits sub-

mitted in support of Rosner’s motion; they should thus

have realized that the information supplied by Lawrence

might have been of some assistance to Rosner in sub-

stantiating the contentions advanced in the motion.

But even so, I fail to see how it could avail Rosner.

The simple fact is that he was in no way prejudiced. All

that resulted was the denial of a new trial motion; Rosner

has now had another opportunity to move for a new trial,

and to include in such motion all of the charges of what

the government failed to apprise him in January, 1973.“

The absence of prejudice can best be demonstrated by com-

paring a motion based on post-trial suppression to one

based on pre-trial suppression. In the latter circumstance,

the court inquires into the effect of such suppressed evi-

dence on the jury’s verdict. If the court deems the effect

sufficiently substantial, a new trial is ordered. Where

post-trial suppression is alleged however, the court’s proper

inquiry is into the effect of the disclosures on any new

trial motion that has been made. Thus the most Rosner

would be entitled to on this branch of the motion is a

finding that my decision on his first new trial motion might

have been affected by the new evidence, and my affording

16 It should be noted also that Rosner has remained free on

bail pending appeal since the jury’s verdict in December, 1972.

24a

Appendix A—Opinion of District Court

him another opportunity to move for a new trial. In the

hearing on his most recent motion, he has been given that

opportunity. (I have of course dealt elsewhere in this

opinion with the Leuci-Lawrence drug transactions, and

have found them insufticient to warrant the granting of

a new trial.

I should note in concluding this branch of my dis-

cussion that the defendant's failure to call Lawrence to

testify scarcely bespeaks unbounded confidence in the

quality of his testimony. It also tends to undermine the

defense contention that Lawrence’s information was of

such singular value that the government prosecutors should

have investigated it more thoroughly. Finding no preju-

dice to the defendant in any suppression of such informa-

tion, I am constrained to deny this aspect of his motion.

VI.

Rosner's other claim of post-trial suppression concerns

the Goe memorandum, whe contents have already been

discussed. As I have noted “ pears that Shaw was the

during the Rosner trial. On os about April 8. 1974, the

memorandum came to the attention of Elliot Sagor, an

Assistant United States Attorney who has been involved

with the Rosner case from its very inception. At this

time, of course, Rosner’s petition for certiorari was pending

in the Supreme Court and the instant new trial motion had

been filed in this court. Upon reading the document Sagor

renlized “that the Goe memorandum, if true, and if in

government possession and known to the government at

the time, was a document which should have been turned

over to defense counsel] at the time of trial.“ “ Shortly

Hearing transcript, p. 593.

25a

Appendia \1—Opinion of District Court

thereafter, on April 17. 1974, Leuci admitted to govern-

ment prosecutors the full range of his past criminal acti-

vities. There then commenced consultations among various

members of the United States Attorney's Office regarding

when and whether the Supreme Court should be apprised

of these revelations.

On April 30, 1974 John LD. Gordon III, the Assistant

United States Attorney in charge of appeals, called Andrew

rey of the Solicitor General's office and informed him of

the nature of Leuci's perjury at the Rosner trial. The

Solicitor General then wrote to the Clerk of the Supreme

Court requesting that consideration of the Rosner certiorari

petition be postponed until a supplemental brief could be

filed. Members of the United States Attorney's Office

reviewed a draft of the briei before the Solicitor General

submitted it in mid-May. The brief stated that “recent

developments suggest that the principal government wit—

ness committed perjury at the trial of this case as to

collateral matter raised by the defense in an effort to im-

peach his credibility’, but did not review in detail Leuci's

recent admissions of criminal conduct.

The essence of Rosner’s argument on this point is that

the United States Attorney's Office withheld from the

Solicitor General and thereby from the Supreme Court any

mention of the Goe memorandum. This suppression, he

contends, was considered and deliberate, and now warrants

the granting of the relief sought from the Supreme Court:

a new trial.

Again, however, I see no prejudice to Rosner from the

government's omission. The incident described in the Goe

memorandum was trivial in comparison to the other crimes

to which Leuci confessed. His overall confession was

brought to the attention of the Supreme Court, and I there-

26a

Appendix A—Opinion of District Court

fore fail to see how the addition of a single minor item

to the list of Leuci's sins could have produced a different

result in that Court. Whether I am right or wrong in

this conclusion is beside the point, for the Court may well

have another opportunity to pass on Rosner’s contentions.

And therein lies the weakness of his argument. The Su-

preme Court denied the petition for certiorari without pre-

judice to this court’s consideration of the instant motion.

By implication, then, the Court deferred consideration of

all claims arising from this motion. Rosner has since had

the fullest opportunity to explore in this court the signi-

ficance of the Goe memorandum, and he will have equal

opportunity to present it on appeal. I therefore find no

prejudice to him in the government's decision to withhold

the Goe memorandum, and this branch of his motion is

also denied.“

In argument presented to this court Rosner has repeatedly

stressed the parallels between the instant situation and that facing

the Supreme Court in Mesarosh v. United States, 352 U.S. 1

(1956). As I understand it, he argues that if he had been able

to present the incident describea in the Goe memorandum to the

Court, it would have sua sponte ordered a new trial as it did

in Mesarosh. This argument cannot withstand serious scrutiny.

In Mesarosh, a Smith Act prosecution, the Solicitor General

stated to the Court his belief that the principal government wit-

ness had committed perjury in other proceedings. In these pro-

ceedings he had made extensive accusations of Communist activity

similar to those he had made against the defendant in Mesarosh.

The Solicitor General maintained that the witness’s trial testimony

was truthful, but moved to remand the case for a hearing into

the extent of his perjury. The Court instead ordered a new trial.

Rosner suggests that the Court might have followed a similar

procedure here. This argument overlooks the Court’s concession

that newly discovered evidence that merely impeaches the credibility

of a government witness is not an adequate basis for a new

trial motion. 352 U.S. at 9. Underlying the Court’s opinion in

Mesarosh is the assumption that the witness, having falsely ac-

cused others, may well have falsely accused the defendant. Hence

the witness’s perjury was material to the ultimate question of

guilt or innocence. It is not in the instant action.

27a

Appendia 1—Opinion of District Court

CONCLUSION

or the reasons stated above, Rosner’s motion for a

new trial is denied in all respects.” It is proper to add

in concluding a word regarding the nature of the argu-

ments presented here. The spectacular quality of Leuci’s

revelations of criminal conduct has at times obscured its

minimal relevance to the issues before me. None of Leuci’s

perjury has the slightest bearing on the question of Rosner's

guilt or innocence of the charges contained in the instant

indietment. Elis perjury, nevertheless, would be a matter

of serious concern if his credibility had been crucial to the

jury’s determinations. As | have now noted several times,

it was not. The tape recordings and, indeed, the admissions

contained in Rosner’s direct testimony at trial were the

conclusive evidence upon which his conviction was based.

Leuci’s crimes, reprehensible as they are, cannot alter that

fact. The motion is denied.

IT IS SO ORDERED.

Dated: August 15, 1974

1.8. D. J.

On August 6, 1974 Rosner’s counsel informed this court, by

letter, of his intention to “interview those jurors who are willing

to be questioned as to whether the recent Leuci disclosures would

have affected their decision”. In response thereto, the government

sought an order enjoining a post-trial inquiry of the jury and

Rosner agreed that no interviews would be conducted pending

this court’s determination as to the propriety thereof. In view of

my final disposition of the new trial motion I now consider the

issue to be moot and accordingly, decline to rule on the govern-

ment’s request.

Rosner has, in no way, been prejudiced by his inability to

interview the discharged jurors. While a new trial motion clearly

turns on the effect of newly discovered evidence on the jury’s

decision, “the question is to be determined . . on its probable

effect on a hypothetical average jury”. United States v. Crosby,

294 F.2d 928 (2d Cir. 1961) |Emphasis added].

If in fact Rosner is proposing a hearing at which his trial

jurors would testify as to what they “would” or “might” have

done two years earlier had they known about Leuci’s activities

he proposes a procedure that can have no useful result. It is,

it seems to me, another imaginative effort to frustrate the purpose

of all trials—to find the truth.

28a

APPENDIX B

Opinion of Court of Appeals

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

Appellee,

—v.—

EDMUND ROSNER,

Appellant.

a —

No. 523, Docket 74-2290.

United States Court of Appeals,

Second Circuit.

Argued Dec. 18, 1974.

Decided April 29, 1975.

Appeal from an order of the District Court for the

Southern District of New York, Arnold Bauman, J., deny-

ing defendant’s motion for a new trial. The Court of

Appeals, Gurfein, Circuit Judge, affirmed the district

court’s finding that the government’s failure to supply the

defendant with two items of evidence useful for impeach-

ing a government witness was inadvertent and its holding

that the inadvertent suppression did not warrant granting

defendant a new trial. The court also held that the wit-

ness’ perjury concerning his own past misconduct of a

cumulative impeaching nature was neither attributable to

the government nor so crucial to the issues in the case as

to require a retrial.

Affirmed.

29a

Appendix B—Opinion of Court of Appeals

1. Criminal Law—940

If government deliberately suppresses evidence or

ignores evidence of such high value that it could not have

escaped its attention, a new trial is warranted if evidence

is merely material or favorable to the defense.

2. Criminal Law—45(1)

When government's failure to disclose evidence favor-

able to defense is inadvertent, a new trial is required only

if there is a significant chance that this added item, de-

veloped by skilled counsel as it would have been, could

have induced a reasonable doubt in minds of enough jurors

to avoid a conviction.

3. Criminal Lawv— 95604)

In proceeding on motion for new trial, evidence sus-

tained finding that government's failure to supply defen-

dant with two items of evidence, which could have been

useful for impeaching a government witness, was not de-

liberate.

4. Criminal Law—956 (04)

In proceeding on motion for new trial, evidence, includ-

ing finding that tapes, and not government witness, were

linchpin of government's case, indicated that additional

evidence, inadvertently suppressed by government, which

tended further to impeach credibility of government wit-

ness, would not have so altered a juror’s perception of

government witness’s credibility as to induce a reasonable

doubt of defendant’s guilt on basis that he had been en-

trapped. Fed. Rules Crim. Proc. rule 33, 18 U.S. C. A.

30a

Appendix B—Opinion of Court of Appeals

5. Criminal Law—942(1)

Perjury by a government witness, unknown to the

prosecution, does not ordinarily compel the application of

standards for a new trial required in cases of government

misconduct.

6. Criminal Law—942(1)

Fact that undercover agent, without knowledge of

prosecution, committed perjury on a purely collateral matter

affecting his own credibility did not entitle defendant to

a new trial. Fed. Rules Crim. Proc. rule 33, 18 U.S. C. A.

7. Criminal Law—938(1)

Suppression by police of evidence may be enough to

warrant a new trial, even though prosecutor lacks knowl-

edge about suppression of evidence.

S. Criminal Law— 942 (1)

Circumstance that undercover witness was an investi-

gative informant rather than an investigator with authority

to arrest in that status or to direct investigations, that

government could not have known witness’ secret past, that

matters about which witness lied did not concern any

consideration promised him and that perjury involved solely

witness’ own misconduct in other situations required con-

clusion, on motion for new trial, that witness’ perjury

should not be attributed to prosecution and was required

to be measured by standards applicable to government

witnesses generally.

9. Criminal Law—700, 941(1)

Prosecution erred when it failed to notify defendant

after trial about evidence relating to credibility of govern-

ment witness, where such evidence fitted into very pattern

3la

Appendix B—Opinion of Court of Appeals

of conduct suggested by defendant’s motion for new trial,

but prosecutor’s failure to disclose was not prejudicial,

since such evidence was cumulative and was ultimately

developed at a subsequent new trial hearing.

10. Criminal Law—1165(1)

Failure of government to specifically tell United States

Supreme Court, hearing case on certiorari, about memo-

randum concerning past misconduct of government witness

as evidence of government's knowledge of such memoran-

dum during trial was not prejudicial, where Supreme Court,

in its denial of certiorari, specifically preserved new trial

motion for hearing on basis of solicitor general's disclosure.

Alan Dershowitz, Cambridge, Mass. (Nancy Rosner,

New York City, Jeanne Baker, Boston, Mass., of counsel;

Mare Dorfman and Ann Greenblatt, law students, on the

brief), for appellant.

Elliot G. Sagor, Asst. II. S. Atty., New York City (Paul

J. Curran, C. S. Atty. for S. . N. V., Jeffrey I. Glekel

and John D. Gordan, III, Asst. U. S. Attys., of counsel),.

for appellee.

Before FRIENDLY, TIMBERS and GURFEIN, Circuit Judges.

GURFEIN, Circuit Judge:

Robert Leuci, a corrupt New York City police officer,

acted in an undercover capacity for the United States

Attorney for the Southern District of New York. In that

capacity he obtained evidence and testified against Edmund

Rosner, a lawyer, who was convicted of bribery, obstruction

of justice and conspiracy on December 5, 1972. After the

conviction had been affirmed by this court, United States

32a

Appendix B—Opinion of Court of Appeals

v. Rosner, 485 F.2d 1213 (2 Cir. 1973), and while a peti-

tion for certiorari was pending, appellant Rosner filed a

motion for a new trial on March 19, 1974 on the ground

of newly discovered evidence to the effect that Leuci had

lied at the trial concerning the extent of his own past

criminal misconduct. F.R.Cr.P. 33. At the trial, Leuci

had admitted his complicity in corrupt dealings on four

separate occasions with criminal defendants or subjects of

investigation, but had denied any other such involvement.

He had testified frankly that he did not expect to be prose-

cuted.

The thrust of the new trial motion was that Leuci had

furnished narcotics to informants and others, acts which

he had denied at trial. During the pendency of the motion

on April 17, 1974 Leuci admitted to the United States

Attorney’s office that he had committed many acts of crimi-

nal misconduct in addition to those he had revealed at

trial, among them furnishing narcotics on two occasions

to an informant, Richard Lawrence.

On June 10, 1974, after being informed by the Solicitor

General that Leuci had perjured himself in concealing addi-

tional criminal activities, the Supreme Court denied cer-

tiorari without prejudice to consideration by the District

Court of the motion for a new trial. Rosner v. United

States, 417 U.S. 950, 94 8. Ct. 3080, 41 L.Ed.2d 672 (1974).

Judge Arnold Bauman held a hearing, thereafter, in July

1974, and, in an opinion dated August 15, 1974, denied

the motion for a new trial.’ This appeal followed. The

On August 16, 1974, Judge Wyatt, to whom sentencing had

been transferred, resentenced appellant to concurrent terms of

three years on each count.

33a

Appendix B—Opinion of Court of Appeals

primary issue posed is whether evidence solely of an im-

peaching nature that an important government witness had

in fact committed crimes which at trial he denied commit-

ting requires us to order a new trial.

A. second, related issue is also presented. Rosner con-

tends that the government prosecutors were aware of two

specific pieces of evidence tending to implicate Leuci in

criminal activity, evidence which they did not turn over to

the defense before trial and which, if turned over to the

defense, would have been useful) for impeaching Leuci's

credibility. Tle also contends that the prosecution with-

held this evidence and additional impeachment evidence

Which came to light after trial, during the pendency of

appellant’s new trial motion.

To understand the issues presented by this appeal, it is

necessary to advert brietly to the facts proved at trial.

In October 1971 Rosner was under indictment along

with Nicholas DeStefano in a case charging subornation

of perjury. Leuci, acting in an undercover capacity, ap-

proached DeStefano and Nicholas Lamattina and offered

to provide through a supposed contact in the United

States Attorney's office information about cases pending

in the District. The matter of the Rosner indictment came

up first during a meeting of Leuci, DeStefano and Dominick

Marcone, another target of investigation, on September

30th.

Rosner eventually came into the negotiations and par-

ticipated in the payment of several thousand dollars to

Leuci in exchange for the statements of prospective wit-

nesses and grand jury minutes in his case. There were

five alleged separate payments over a period of three weeks,

34a

Appendix B—Opinion of Court of Appeals

each of which formed the basis of a bribery charge. Rosner

was acquitted on two of these charges relating to payments

occurring on October 4th and October 8th and was con-

victed of three others which involved payments occurring

on October 12, 13 and 19. He was also convicted of con-

spiracy and obstruction of justice. Leuci testified for the

government. It is agreed that he met Rosner five times.

Recordings were made of the meetings on October 13th,

15th and 19th on a tape recorder concealed on the person

of Leuci. The earlier meetings of October 4th and 8th

were not tape recorded.

Rosner took the stand at his trial, and admitted that

he had made the payments alleged on three occasions and

that he had received the witnesses’ statements and the

grand jury minutes, as alleged, but he contended that he

had been entrapped. DeStefano and Lamattina pleaded

guilty just before the trial began, but neither was called

as a witness by either side. There is no doubt that Leuci

perjured himself on the extent of his own past misconduct

during his years on the police force.

Although appellant does not claim that the government

actually knew before trial the extent of Leuci's criminal

activities, he does contend that there were two specific

items of evidence in the possession of the government that

should have been disclosed to the defense. One was the

so-called Leuci-Lawrence tape and the other the so-called

Goe Memorandum.

The Leuci-Lawrence tape came about as follows. Leuci

had been with the Knapp Commission where he worked

35a

Appendix B—Opinion of Court of Appeals

with Nicholas Scoppetta (later an Assistant United States

Attorney), who was at that time one of the Commission’s

lawyers. In March of 1971, Scoppetta ordered Leuci to

investigate the involvement of Richard Lawrence, previously

identified as an informant of Leuci's, in a homicide in the

Bronx. On March 29, 1971, during this investigation,

Leuci tape-recorded a coyversation with Lawrence, which

yielded no information about the homicide, but can be read

as suggesting that both Leuci and Lawrence had illegally

seized narcotics following arrests and that Lawrence had

been permitted to retain some of the narcotics. Scoppetta

had listened to this tape in connection with the homicide

investigation and had taken it with him when he transferred

to the office of the United States Attorney. The tape was

not disclosed to the defense prior to the trial and only

came to light during the final days of the new trial hearing

when Leuci made an inadvertent reference to it.

The District Court found that the Leuci-Lawrence con-

versation was “neither as unequivocally inculpatory as

Rosner claims, nor as exculpatory as the government ar-

gues.“ He found unequivocaliy, however, that during the

course of the conversation “Leuci demonstrates a familiarity

with procedures whereby Lawrence could obtain ‘packages’

of heroin resulting from arrests.”

The second instance of governmental suppression alleged

by Rosner involves the so-called Goe Memorandum. On

July 13, 1972 Leuci was interviewed in the office of the

United States Attorney by two agents of the Drug Enforce-

ment Administration (DEA), Robert Goe and Joseph

Gately. He admitted to them that in 1964 or 1965 he and

three other government agents had conducted a warrant-

less search for drugs, during which they had come upon

and divided equally $200 in cash. This incident was

36a

Appendix B—Opinion of Court of Appeals

recorded in what came to be termed the “Goe Memoran-

dum.” In early 1971, Leuci had made a separate admis-

sion concerning the same event to another DEA agent.

Assistant United States Attorney Shaw had learned about

the incident shortly thereafter. None of the government

prosecutors who participated in the trial was aware of

iu until April 9, 1974.

[1,2] In order to accommodate conflicting policy con-

siderations, the standards governing a motion for a new

trial based on evidence available to the government before

trial vary according to the government’s conduct relative

to the information. If the government deliberately sup-

presses evidence or ignores evidence of such high value

that it could not have escaped its attention, “a new trial

is w°rranted if the evidence is merely material or favorable

to the defense.” United States v. Kahn, 472 F.2d 272,

287 (2 Cir. 1973), cert. denied, 411 U.S. 982, 93 S.Ct.

2270, 36 L.Ed.2d 958 (1973). However, when the govern-

ment’s failure to disclose is inadvertent, a new trial is

required only if there is “a significant chance that this

added item, developed by skilled counsel as it would have

been could have induced a reasonable doubt in the minds

of enough jurors to avoid a conviction.” /d.; United States

v. Miller, 411 F.2d 825, 832 (2 Cir. 1969); see United

States v. Keogh, 391 F.2d 138, 147-48 (2 Cir. 1968).

[3] The trial judge, after considering evidence on

this point presented at hearing on Rosner’s new trial

motion, found the government had not deliberately sup-

pressed either the Goe Memorandum or the Leuci-Law-

rence tape. He also found that neicher piece of evidence

was of such high value that it could not have escaped the

prosecutor’s attention. He poinied out, with respect to

37a

Appendix B—Opinion of Court of Appeals

the Goe Memorandum, that Leuci had admitted on the

stand that on four occasions between 1966 and 1968, he

had sold information to targets of narcotics investigations,

for which activities he had received approximately $6000

in payoffs. In comparison to such activity, Leuci’s par-

ticipation in an illegal entry and a $50 theft was “de

minimis.” The trial judge also concluded that the Leuci-

Lawrence tape was ambiguous enough so that its “dubious

value could readily have escaped a prsecutor’s attention.”

These are findings of fact by the judge who had pre-

sided at the trial and who had an opportunity to assess

the credibility of the witnesses at the hearing. In the

circumstances, our review is governed by the principle

enunciated in United States v. Johnson, 327 U.S. 106,

111, 66 S.Ct. 464, 90 L.Ed. 562 (1946):

„. . Hit is not the province of this Court or the

circuit court of appeals to review orders granting

or denying motions for a new trial when such

review is sought on the alleged ground that the

trial court made erroneous findings of fact. [citing

cases}. While the appellate court might intervene

when the findings of fact are wholly unsupported

by evidence [citing cases] it should never do so

where it does not clearly appear that the findings

the not supported by evidence.”

See also United States v. Pfingst, 490 F.2d 262, at 273 n.

11, (2 Cir.), cert. denied, 417 U.S. 919, 94 S.Ct. 2625, 41

L.Ed.2d 224 (1974).

We have reviewed the testimony at the hearing and

must conclude that the trial court’s findings are supported

by evidence and are not clearly erroneous. Our further

review therefore proceeds under the standard enunciated

above to govern situations of inadvertent nondisclosure.

38a

Appendix B—Opinion of Court of Appeals

II.

The question presented, then, is whether there is a sig-

nificant chance that skilled counsel could have developed

the evidence of Leuci’s criminality contained in the Leuci-

Lawrence tape and the Goe Memorandum to impeach his

credibility to the extent that a juror would be led to reason-

able doubt about Rosner’s guilt. We emphasize that the

standard demands more than the possibility of a different

result upon retrial. Any piece of new evidence might, in

theory, alter the course and outcome of a trial, but a case

is not automatically remanded whenever such new eyi-

dence emerges. An appellate court must weigh whether or

not there is in reality a “significant chance” that the dis-

closure would have induced a reasonable doubt in the

minds of enough jurors to prevent a conviction. United

States v. Pfingst, supra, 490 F.2d 262 at 277; United

States v. Kahn, supra, 472 F.2d at 287-89; United States v.

Mayersohn, 452 F.2d 521, 526-27 (2 Cir. 1971); United

States v. Bonanno, 430 F.2d 1060, 1063-64 (2 Cir.), cert.

denied, 400 U.S. 964, 91 8. Ct. 366, 27 L. Ed. 2d 384 (1970);

United States v. Miller, supra.

We are not dealing here with government nondisclosure

of direct, exculpatory evidence. Cf. Grant v. Alldredge,

498 F. 2d 376, 381 (2 Cir. 1974). Nor are we dealing with

perjury and government suppression of information that

vitally concerns the motivation of the witness, such as

evidence about consideration promised him by the prosecu-

tor for his testimony. Cf. Giglio v. United States, 405

U.S. 150, 92 S.Ct. 763. 31 L. Ed.2d 104 (1972); Napue vy.

Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217

(1959); United States v. Sperling, 506 F.2d 1323, 1333.34

(2 Cir, 1974): see United States v. Butler, Slip No. 74-2201

(9 Cir, December 18, 1974). In this case there is no

39a

Appendix B—Opinion of Court of Appeals

question of a concealed promise of immunity: Leuci told

the jury that he did not expect to go to jail for his crimes.“

Nor, finally, are we dealing with a case as unusual as

United States v. Miller, supra, where the government had

inadvertently failed to disclose the fact that the gevern—

ment’s primary witness, upon whose identification of the

defendant the case depended, had been hypnotized during

his earlier interrogation.

The sole issue before us is whether additional evidence

tending further to impeach the credibility of a witness

whose character had already been shown to be questionable,

admissible only in the court’s discretion, might have in-

duced a juror who had no reasonable doubt of Rosner’s

guilt, to have such doubt. The District Judge, who had

* Appellant argues that a potential witness who is also a

potential defendant has a “special motive to lie or fabricate a

case” so that he will continue to be of use to the prosecution.

The perjury of such a person, Rosner contends, should not be

considered merely impeaching but rather ag bearing directly on

the guilt of the defendant against whom the witness testifies.

He cites United States v. Kinnard, 150 U.S.App.D.C. 386, 465 F.2d

566. 57374 (1972), as primary support. The issues in Kinnard

revolved around the circumstance that the informer-witness was

a narcotics addict and subject to special instructions to the jury

and to extrinsic proof of his addiction. Leuci was not a narcotics

addict.

We agree, of course, that a witness who has committed a

crime known to a prosecutor has a motive to cooperate with the

prosecution. It is this fact which makes perjury concerning

bargains made between witness and prosecution so vital. E.g.,

Giglio v. United States, supra. But once the witness has admitted ’

his vulnerability to prosecution which could result in substantial

imprisonment and his awareness that he would not be prosecuted,

the jury has before it the elements of the defense claim that the

witness is committing perjury to save his own skin.

40a

Appendix B—Opinion of Court of Appeals

heard the testimony and received other evidence at trial,

applying the correct standard, concluded that the addi-

tional impeachment information contained in the Leuei—

Lawrence tape and the Goe Memorandum would not have

“induced a reasonable doubt in the minds of enough jurors

to avoid a conviction.”

As we have seen, Leuci’s admitted perjury related to his

own misconduct, independent of the circumstances of this

case, and not to any element of the substantive offenses

with which Rosner was charged. Moreover, the prosecu-

tion’s case rested on far more evidence than simply Leuci’s

testimony.” The Rosner case was unusual in that the de-

fendant admitted his technical guilt of the elements of the

offenses charged. Cf. United States y. Bonanno, supra,

°’ Appellant argues that the government on the appeal from

the conviction relied strongly on the testimony of Leuci, and that

this court, in its own opinion, also laid stress on the jury’s ap-

parent finding that Leuci was a credible witness. To consider

the argument properly, it is necessary to review the contentions

on the first appeal. On that appeal, Rosner, having been convicted

by a jury after the issue of entrapment had been submitted to it,

was forced to argue for an extreme position that the evidence

showed entrapment as a matter of law and that the case should

not have been submitted to the jury at all. The recital of facts

by this court on the appeal from the conviction must be read

in the light of that contention. 485 F.2d 1213. There was ample

evidence from Leuci that rebutted the claim that entrapment had

been proved as a matter of law, and, accordingly, we took note

of it. We did note, however, that Rosner’s own credibility would,

in any event, still have to be weighed by a jury and could not

support dismissal as a matter of law. See United States v. Rosner,

supra, 485 F.2d at 1222.

In sum, our references to Leuci’s testimony were not to sustain

the jury verdict, which was not at issue, but in rejection of

Rosner’s claim that he should have had a directed verdict of

acquittal.

4la |

Appendix B—Opinion of Court of Appeals

430 F.2d at 1061. The appellant took the stand at the

trial and con

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