# Petition — Rosner v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1122%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 427 U.S. 657 ## Text / Supreme Court, U. & ——b Lt D sep 29 19 Supreme Court of the Hnited Mates 0 CLERK | October Term, 1975 ee vee e¢ ee 6 8 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 2 The Period Between the Petitioner's Conviction LL 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 14 17 24 11 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. 2 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. 3 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) 4 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. 5 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, 6 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). 7 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 8 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. 9 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: 10 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- 11 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. 12 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- 13 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. 14 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 15 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. 16 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). 17 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 18 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 19 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- 20 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. 21 “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. 22 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. 23 “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. 24 Reasons for granting the writ l 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 25 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” 26 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 27 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). 28 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- 30 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] 31 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. 32 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). 33 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- 34 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 36 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). 37 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. 38 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 39 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. 40 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). 41 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, 42 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.” 43 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. 2a 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). 3a 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 4a 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. I. 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. : 5a 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. 6a 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- 10 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} 7a 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.” 8a 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. 9a 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 wa [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1122%3A1. Public record. Not legal advice.