Petition — Hoff v. United States
Supreme Court brief1976
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~ Supreme Court, U. &
. FILED >.
| APR 23 1976
IN THE MICHAEL RODAK, JR., C 5
Supreme Court of the United States
October Term, 1975
No. @5-1541
CHARLES HOFF and CLIFFORD LAGEOLES,
Petitioners,
—against—
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
LEONARD B. BOUDIN
ERIC M. LIEBERMAN
RABINOWITZ, BOUDIN & STANDARD
Attorneys for Petitioners
30 East 42nd Street
New York, New York 10017
(212) OXford 7-8640
Printinghouse Press (Appeuls Section) 212-687-0384
Page
Opinions below------------------ l
Jurisdiction ------------------- 2
Questions Presented -~----------- 2
Statement of the Case----------- 3
Reasons for Granting the Writ -- 13
Conc lus ion------~--------------- 28
Appendix A---------------------- la
Appendix B---------------------- 24a
Appendix C---------------------- 27a
Appendix D--<--<<---<<<<<-------- 45a
CITATIONS
Cases:
Berry v. Georgia, 10 Ga. 5ll
(1851) ---------------------- 12,18,19
Brady v. Maryland, 373 U.S.82- 2,12,24
Communist Party v. Subversive
Activities Control Board,
351 U.S. 115---------------- 19
Daily v. United States, 282
F.2d 818 (9th Cir.1960) ----- 27
Giglio v. United States, 405
U.S. 150-------------------- 12, 25
Gordon v. United States, 178
F.2d 896 (6th Cir.1949) ----- 13
In re Winship, 397 U.S. 358-- 18
Kotteakos v. United States,
308 U.S. 750---------------- 25, 28
Larrison v. United States,
24 F.2d 82 (7th Cir. 1928)-- 11-15, tg
Mesarosh v. United States, ;
352 U.S. le-<--------------- 15-17
Cases Continued:
Paul v. United States, 79 F.2d
561 (3d Cir. 1935) -----------
Pevely Dairy Co. v. United
States, 178 F.2d 363 (8th
Cir. 1949) ------<-------+-----
United States v. Anderson, 509
F.2d 312 (D.C. Cir. 1974),
cert. denied 420 9 U.S. 99l--
United States v. Briola, 465
F.2d 1018 (10th Cir. 1972),
cert. denied, 409 U.S. 1108--
United States v. Deutsch,
475 F.2d 55 (5th Cir. 1973)--
United States v. Drummond,
481 F.2d 62 (2d Cir.1973) ----
United States v. Flynn, 130
F.Supp. 412 (S.D.N.Y. 1955) --
United States v. Hiss, 107 F.
Supp. 128 (S.D.N.Y. 1952),
aff'd 201 F.2d 372 (2d Cir.
1953), cert. denied, 345
U.S. 942------<---<-<--<------=-
United States v. Johnson, 142
F.2d 588 (7th Cir. 1944),
cert. dismissed, 323 U.S.
United States v. Johnson, 487
F.2d 1278 (4th Cir. 1973) ----
United States v. Meyers, 484
F.2d 113 (3d Cir. 1973) ------
United States v. Miller, 411
F.2d 825 (2d Cir. 1969) ------
United States v. Morgan, 118
F. Supp. 621 (S.D.N.Y. 1953)-
United States v. Peoni, 100
F.2d 401 (2d Cir.1938) -------
ii
Page
25
25
13
13
23-24
7-8
15
14,18
13,18
13
13
14, 20
25
27
ne RS OR —
Cases Continued:
United States v. Polisi, 416
F.2d 573 (2d Cir. 1969) -------
United States v. Seijo, 514
F.2d 1357 (2d Cir. 1975) ------
United States v. Smith, 433
F.2d 149 (5th Cir. 1970) ------
United States v. Sobell, 314
F.2d 314 (2d Cir. 1963) -------
United States v. Sperling,
506 F.2d 1323 (2d Cir.1974) ---
United States v. Spock, 416
F.2d 165 (lst Cir. 1969) ------
United States v. Stofsky,
527 F.2d 237 (2d Cir. 1975) ---
United States v. Strauss, 433
F.2d 986 (lst Cir. 1971),
cert. denied 404 U.S. 851l-----
Statutes:
18 U.8.C. 8 3] leqwwnnceeececesce
26 U.8.C. § 720] qnnnnnn nnn nwo ne
28 U.S.C. § 1254(1) ------------
29 U.8.C. § 186 (b) -~-------..--
Miscellaneous Authorities:
ABA Project on Standards for
Criminal Justice, Standards
Relating to the Prosecution
(Approved Draft 1971) ----------
8 Halsbury's Statute
(3d Ed. 1969) awn ort er nr nr nr nena ae ae ee ee
La Fave & Scott, Criminal Law
(1972 ) 22-222 nn nnn ee wwe
WnN WwW WwW
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1975
NO.
CHARLES HOFF and CLIFFORD LAGEOLES,
Petitioners,
-against-
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Charles Hoff and Clifford Lageoles
petition for a writ of certiorari to review
the judgment of the United States Court of
Appeals for the Second Circuit affirming the
judgments of the United States District Court
for the Southern District of New York.
OPINIONS BELOW
The opinion of the court of appeals is
reported sub. nom., United States v. Stofsky,
at 527 F.2d 237 (1975), and is reprinted here-
in as Appendix A (la - 23a). The district
alin
court wrote two opinions denying peti-
tioners' two motions for a new trial. The
district court opinions, as yet unreported,
are reprinted herein as Appendices C (27a-
44a) and D (45a —- 508).
SDIC
The court of appeals issued its opinim
on November 7, 1975. On February 26, 1976
it denied petitioners' application for re-
hearing and suggestion of rehearing en banc
(Appendix B herein, 24a - 26a). By order of
March 18, 1976, Mr. Justice Marshall extend-
ed the time for filing a petition for a writ
of certiorari to and including April 26,
1976. The jurisdiction of this court is in-
voked pursuant to 28 U.S.C. § 1254(1).
UESTIONS PRES
1. Whether the court of appeals erred
in refusing to decide the petitioners’
motions for a new trial based on newly dis-
covered evidence of concededly massive per-
jury by the only government witness to im-
plicate petitioners upon the standard of re-
view applied in that context by every other
federal court of appeals and by this Court?
2. Whether the government violated its
obligation under Brady v. Maryland, 373 U.S.
83, to investigate and disclose exculpatory
information within its possession and co.itrol.
3. Whether there was no evidence of
the single conspiracy charged in count 1 of
aie
the indictment, therefore requiring re-
versal and a new trial on all counts?
S F CA
The facts and background of the case
are set forth in the opinion of the court
' Of appeals. We emphasize here only tmse
points necessary to consideration and deci-
sion of the instant petition.
Petitioners Hoff and Lageoles were
officers and employees of the Furriers
Joint Council, a trade union of New York fur
workers. Each was convicted of accepting
payments of money from employers in viola-
tion of 29 U.S.C. § 186(b), and of conspir-
ing with co-defendants George Stofsky and Al
Gold in violation of 18 U.S.C. § 371 to
accept such payments. In addition, Hoff was
convicted of a single count of income tax
evasion, in violation of 26 U.S.C. § 7201,
for failing to report the receipt of such
payments.1_/
1 /The court of appeals’ opinion was in
error in stating that the petitioners were
found guilty on all counts upon which they
were charged (3a). Hoff and Lageoles were
acquitted of conspiracy with the purpose of
engaging in a pattern of racketeering activi-
ty, a charge upon which their co-defendants,
Stofsky and Gold, were convicted. In addi-
tion, several counts of accepting payments
and a single count of income tax evasion (as
atin
The government sought to prove that
the petitioners demanded and accepted such
payments from the specified employers in re-
turn for permission to violate provisions of
the collective bargaining agreement in force
between the union and the fur manufacturing
firms. In particular, it was alleged that
the petitioners were paid not to enforce the
“anti-contracting" clause of the agreement
by which the employers warranted not to
“contract” with non-union shops for the
manufacture of finished merchantable gar-
ments.
The government introduced no evidence
of a direct payment from an employer to
either Hoff or Lageoles. The only evidence
against either petitioner was the testimony
of a single person, Jack Glasser, a labor
adjuster employed by the fur manufacturers
association. Glasser testified that, at the
suggestion of certain employers, he arranged
with petitioners that contracting violations
would go unprosecuted by the union. In re-
turn, Glasser testified, he received sums of
1 / (Footnote 1 Continued)
to Hoff) were dismissed by the district court
before the case was sent to the jury.
aie
money £99 the manufacturers, parts of which
he kept and parts of which he distrib-
uted to one or more of the petitioners or
their co-defendants.
The petitioners denied receiving pay-
ments from Glasser. They claimed that to
the extent that Glasser received money from
the manufacturers, he kept it all.
The entire case against Hoff and
Lageoles thus turned on the jury's evalua-
tion of Glasser's credibility. This was
recognized by counsel for both the defense
and the prosecution, who emphasized the point
2_/ Glaseer claimed at trial that he re-
ceived only $5,000 for his role in the trans-
actions. Joint Appendix (Court of Appeals)
at 167a. References herein to J.A. are to
the Joint Appendix in the Court of Appeals;
references to S.J.A. are to the Supplemental
Joint Appendix filed in the court of appeals
based upon the second motion for a new trial.
These appendices, of course, can be made
available to the Court upon request; they
will, in any event, be transferred to the
Court if the instant petition is granted.
-6-
in their respective closing arguments (J.A.
at 627a), and by the court, which empha-
sized the point in its charge (J.A. at
67la).
Of considerable relevance to the con-
flicting prosecution and defense claims of
what Glasser did with the money he received
from the employers was the question of the
amount and sources of Glasser's wealth.
Late in the trial Glasser admitted upon
cross-examination that he had accum lated a
fortune of over $120,000 (J.A. at 16la),
despite his exceptionally low salary. Peti-
tioners argued that Glasser had accumulated
this small fortune by keeping all sums he
received from employers. Glasser testified
that his entire fortune derived from two in-
heritances his wife received from her parents
in the 1940s (J.A. at 163a). Recognizing
that this testimony was of "central" im-
portance to its case (J.A. at 178a), the
government called Mrs. Glasser as a witness
on the government's direct case to corrobo-
rate Glasser's "inheritance" testimony (J.A.
at 173a, et seq.). When the petitioners in-
troduced probate records showing that the
amount of the inheritances was no more than
$3,500, the prosecutor, in his summation,
argued - without any factual basis - that
this was just a legal technicality and that
the money probably passed through inter-
vivos and under-the-table transfers (J.A. at
628a). 2/
3 / The full "explanation" of the Assis-
tant United States Attorney was as follows:
"I don't want to pass without mention-
ing the documents which the defendants
put in about the inheritance with res-
pect to Mr. and Mrs. Glasser. They sub-
stantially undermine what Mr. Classer
said at trial to this extent, to the ex-
tent that they reflect what passed at the
time of death in that fashion. They say
nothing about what may have passed as a
result of gifts prior thereto, what
trusts may have been in existence. Noth-
ing about that. They say nothing about
what the [sic] moneys were received in
violation of the estate tax laws under
the table by Mr. and Mrs. Glasser, or
directly Mrs. Glasser. They say nothing
about that. They give you an incomplete
picture of documents prepared by a lawyer.
You can look on the face of them. They
are exhibits prepared by a lawyer, affi-
davits prepared by a lawyer if you ever
signed one prepared by a lawyer, you will
know what they look like. They give you
at the very best a marginal look of what
took place at that time."
This effort clearly was improper as it
amounted to unsworn testimony by the
prosecutor not subject to cross-examina-
tion. See United States v. Drummond,
Despite petitioners’ inability at the
time of trial to point to evidence proving
Glasser's general perjury, and specifically
his perjury on his “inheritance” story, the
jury obviously was considerably troubled as
to whether or not to believe Glasser and in-
formed the court that it was deadlocked on
all the Glasser substantive counts (J.A. at
684a, et seq.). It was only after the court
delivered an Allen charge that the jury re-
turned the guilty verdicts on those counts.
3 / (Footnote 3 continued)
481 F.2d 62 (2d Cir. 1973); ABA Project
on Standards for Criminal Justice, Standards
Relating to the Prosecution Function §§ 5.8,
5.9. (Approved Draft 1971), and authorities
cited therein. It undoubtedly carried undue
weight with the jury because of the prestige
associated with the prosecutor's office, the
natural assumption on the part of the jury
that the prosecutor had facts available to
him on which he based his assertion, and
the “legalistic” nature of the prosecutor's
claim. The jury, of course, had no compe-
tence or reason to challenge this “expert
testimony" by the government's lawyer -
“expert testimony" which it turned out was
totally untrue.
ea
Subsequent to the trial it became
clear that the Glassers had lied funda-
mentally and absolutely about the source of
their wealth (See court of appeals opinion,
8a). New evidence demonstrated that Glasser
had deposited considerable sums of money,
most of it in cash, in bank accounts during
the years immediately preceding and includ-
ing the period covered by the indictment.
Glasser continued to lie to the United States
Attorney as to the source of these funds;
even now it is questionable whether a credit-
able explanation has been given. In any
event, the government now admits that the
Glassers lied at trial about the source of
their wealth, that they lied several times
thereafter in discussing the matter with the
United States Attorney, that only a minuscle
portion of their wealth, if any, derived from
inheritances, and that Glasser accum lated
substantial sums of cash which he had re-
ceived from manufacturers in a safe deposit
box before finally depositing such sums in
his bank accounts (J.A. at 743a - 749a;
S.J.A. at A-40 - A-56).
Petitioners presented the n evidence
in two motions for a new trial. 4 They
4 / Not all the new evidence was available
at the time of the first motion for a new
trial. Substantial further evidence of the
Glassers' perjury concerning the source and
extent of their wealth was in the hands of
the United States Attorney, who chose not to
aie
argued that it provided substantial support
for the defense theory of the case, and
equally important, that it totally destroyed
Glasser's credibility as a witness.
4 / (Footnote 4 continued)
reveal it to the court or to the defendants
until some time after the denial of the first
new trial motion. When the United States
Attorney did reveal the new evidence, a
second motion for new trial was made,
5 / Petitioners argued that the fact that
Glasser had accumlated substantial hidden
sums of cash from manufacturers, which he
failed to report or account for to the
United States Attorney, supported their view
that he kept for himself the sums which he
claimed he had paid over to petitioners.
This too provided the motive for Glasser's
massive perjury: While the government's
grant of transactional immunity protected
him from criminal prosecution for his crimes,
Glasser remained subject to substantial
civil tax fraud penalties which well could
amount to his entire fortune. Thus, it was
entirely in Glasser's interest to attempt
to attribute as much as possible of the pay-
ments he received from employers as going to
the union defendants instead,
Finally, petitioners argued that given
the skepticism toward Glasser's testimony dis-
played by the first jury without the benefit
afifie
The district court agreed that
Glasser had committed perjury during the
trial and had continued to do so in the
post-trial proceedings (34a, 48a). It
nevertheless denied the motions for a new
trial without conducting the hearing re-
quested by petitioners, therefore depriving
itself and counsel of the opportunity to
examine and cross-examine Glasser following
the discovery of his massive perjury. The
court of appeals affirmed the denial of the
motions for a new trial.
The principal issue in the courts be-
low was whether the massive perjury on be-
half of the only government witness against
the petitioners required a new trial under
the prevailing federal rule requiring a new
trial if the newly discovered evidence of
perjury might have produced a different re-
sult at trial. Larrison v. United States,
24 F.2d 82, 87 (7th Cir. 1928) and cases
5 / (Footnote 5 continued)
of this new evidence or the knowledge of
Glasser's repeated and pervasive perjury, it
blinks reality to suggest that that jury, or
a new jury, would not be substantially
affected when confronted with such new evi-
dence.
oiZe
cited post at 13-14. ‘The courts
below instead held that the applicable test
was that the new evidence "would probably
produce a different verdict." Berry v.
Georgia, 10 Ga. 511, 527 (1851). Both the
district court and the court of appeals
acknowledged the question of the proper
standard to be crucial to their determina-
tion of the instant case. If the Larrison
standard were to be applied, both courts
found that a new trial would be required
(15a - l6a, 44a).
The courts below had a second related
issue before them, namely, did the government
violate its obligations to disclose exculpa-
tory or material evidence to the petitioners
under Brady v. Maryland, 373 U.S. 83 and
Giglio v. United States, 405 U.S. 150. They
resolved this issue against the petitioners,
who urged the existence of such a duty parti-
cularly where the sole witness against the
petitioners was a confessed criminal who had
been given transactional immunity and whose
testimony during and after the trial revealed
massive perjury to the government itself.
The court of appeals’ affirmance also
rejected the petitioners’ argument that a
single agreement among the four defendants
had not been established because there was
no evidence that the petitioners were aware
of the acts ascribed to the other two defen-
dants, Stofsky and Gold. The petitioners had
urged that this was a case of multiple con-
spiracy, if any, as attested by the fact that
alte
the petitioners were found guilty of a con-
spiracy to violate one statute and the two
co-defendants, two statutes. The prejudi-
cial effect of Glasser's testimony with
respect to the co-defendants was, of course,
obvious.
R G WRI
1. As the court of appeals acknowl-
edged (14a), its holding on the appropriate
standard for a new trial is in direct con-
flict with decisions of every other federal
circuit court of appeals which has addressed
the question. If petitioners had been tried
in virtually any other circuit, their motions
for a new trial would have been judged by the
Larrison standard.—/ See, e.9g., United
States v. Anderson, 509 F.2d 312, 327 n. 105
(D. C. Cir. 1974), cert. denied 420 U.S. 991;
United States v. Strauss, 443 F.2d 986, 989
{lst Cir. 1971), cert. denied 404 U.S. 851;
United States v. Meyers, 484 F.2d 113, 116
(3d Cir. 1973); United States v. Johnson,
487 F.2d 1278, 1279 (4th Cir. 1973); United
States v. Smith, 433 F.2d 149, 151 (5th Cir.
1970); Gordon v. United States, 178 F.2d
896, 900 (6th Cir. 1949); United States v.
Johnson, 142 F.2d 588 (7th Cir. 1944), cert.
dismissed, 323 U.S. 806; United States v.
Briola, 465 F.2d 1018, 1022 (10th Cir. 1972),
6 / We have seen that both lower courts con-
cede that, by the Larrison standard, peti-
tioners are entitled to a new trial.
@l4a
cert. denied, 409 U.S. 1108.
Indeed, the holding of the panel of
the court of appeals in this case conflicts
with prior decisions of the Second Circuit
Court of Appeals itself. See United States
v. Hiss, 107 F. Supp. 128, 136 (S.D.N.Y.
1952), aff'd 201 F.2d 372 (2d Cir. 1953),
cert, denied, 345 U.S. 942; United States v.
Miller, 411 F.2d 825, 830 (2d Cir. 1969);
United States v. Polisi, 416 F.2d 573, 577
(24 Cir. 1969). One of the clearest state-
ments of the Larrison rule came in the
Polisi case:
When the conviction is shown to
be based even in part upon per-
jured testimony, however, a court
will not stop to inquire as to
the precise effect of the perjury,
but will order a new trial if with-
out the perjury the jury might not
have convicted. 416 F.2d at 577.
Accordingly, the writ should be
granted to resolve the conflict created by
the holding of the court of appeals in this
case and to make uniform the administration
of criminal justice on this important issue
in the federal courts.
2. The court of appeals’ holding
conflicts with this Court's unanimous
approval of the Larrison standard where it
aie
is shown that a material government witness
committed perjury at trial. Mesarosh v.
United States, 352 U.S. l.
a ‘ ag Ay of appeals’ effort to dis-
nguish the Mesarosh case as " generis"
(16a) is, with all due cespect ei
and conclusory. While Mesarosh indeed was
in some ways an unusual case, it is well to
consider the core principles upon which all
parties and Justices agreed and from which
the case preceded. Analysis of these
principles reveals that, at the least, the
Larrigon rule must govern here.
In Mesarosh, evidence developed while
the case was pending on certiorari before
the Supreme Court that Mazzei, a government
witness at trial, had lied at several pro-
ceedings subsequent to the trial. The new
evidence did not show that Mazzei actually
had committed perjury at Mesarosh's trial,
nor did the government admit that he had.
Thus, the new evidence did not by itself
trigger that Larrison standard, which applies
only when it has been proven that perjury was
committed at trial. Accordingly, the govern-
ment, in revealing the new evidence to the
Supreme Court, moved for a remand to the
district court so that a hearing could be
or be determine whether Mazzei had com-
mitted perjury at trial. Cf., United States
v. Elynn, 130 F. Supp. 412 (S.D.N.Y. 1955).
If upon remand it was found that perjury had
been committed, the government agreed that,
-16-
with respect to two of the defendants, an
order of acquittal would have to be entered
and, with respect to the remaining defen-
dants, a new trial would be required if the
trial judge had any "doubt in his mind”
whether the perjured testimony had affected
the jury's verdict. 352 U.S. at 24, n. 11
(Harlan, J., dissenting). Thus, all parties
to Mesarosh agreed, at a minimum, that a
new trial would be required if it could be
shown that perjury in fact had been com-
mitted by a government witness at trial and
that such perjury might have affected the
jury's verdict. The dissenting Justices
similarly were in accord. 352 U.S. at 25
(Harlan, J.) ("We do not, of course, even
remotely imply that we give any tolerance
to the notion that a criminal conviction
found to be infected by tainted testimony
should be allowed to stand.”")
The Court rejected the government's
suggestion to remand and instead itself
ordered a new trial. It was this aspect
of the Mesarosh Court's decision that per-
haps was sui generis. The Court justified
its order, in the absence of hard evidence
that Mazzei had lied at trial, on its view
that he was a compulsive liar and perjurer
and that it would be fairly impossible to
determine for certain whether or not he had
lied at trial. 342 U.S. at 11 - 13. Rather
than remand for what it believed would be a
useless procedure, the Court, in effect, pre-
sumed that Mazzei had lied at trial. Once
~\ =
having made that finding, it ordered a new
trial because it deemed that the new evi-
dence might have affected the jury's verdict
with respect to each defendant. It was in
reaction to these presumptive findings of
fact that Justices Harlan, Frankfurter
and Burton dissented.
The instant case in no way requires
the Court to engage in the presumptions
found necessary by the majority in Mesarosh.
Here, unlike Mesarosh, there is no doubt of
massive perjury by a government witness at
the trial and at subsequent proceedings re-
lating to his testimony at trial. Here,
unlike Mesarosh,that government witness
(Glasser) is the only witness to implicate
Hoff and Lageoles in a criminal scheme. Thus,
this case falls within the common ground
held by all parties and all Justices in
Mesarosh: A new trial is required because
the new evidence might have produced a dif-
ferent result at the trial. ”,
_2/ That the Mesarosh Court approved the
application of the Larrison standard to
cases where it is shown that a material wit-
ness recanted or committed perjury is made
clear by its discussion of the matter, 352
U.S. at 12, and n. 6. There the Court,
while finding it unnecessary to discuss the
procedure to be followed in determining as
a matter of fact whether such a recantation
is genuine or whether perjury was committed,
noted the difference between the standard to
-~18-
3. As the court of appeals recog-
nized in the very first sentence of its
opinion, the question presented is of a re-
curring nature and is of great importance
to the administration of criminal justice
in the federal courts. Nothing is more
important to the legitimacy of the judicial
system and to public confidence in it than
that individuals will not suffer -- or
appear to suffer -- conviction and impr ison-
ment upon untrue allegations and false evi-
dence. Cf., In re Winship, 397 U.S. 358,
364. Where subsequent to trial it is shown
conclusively that a prosecution witness com-
mitted perjury at trial on matters that
might have affected the jury's verdict, it
is not enought to insist upon a new trial
only when the court is convinced that evi-
dence of the perjury probably would have re-
sulted in an acquittal. A defendant's right
7_/ (Footnote 7 continued)
be applied on ordinary new trial motions and
on motions where such a factual basis has
been established. The Court cited with
approval the Seventh Circuit's opinion in
United States v. Johnson, 142 F.2d 588 (1944),
cert. dismissed, 323 U.S. 806, and the deci-
sion of the Southern District of New York,
affirmed by this Court, in United States v.
Hiss, supra. Both Johnson and Hiss eluci-
dated the distinction between Berry and
Larrison new trial motions, and fully support
petitioners’ position herein.
-19-
to - fair trial at which the government
bears the burden of proof beyond a reason-
able doubt upon true and untainted evidence
can only be preserved by requiring a new
trial whenever it is possible that the per-
jured testimony, or the fact of the perjury
itself, affected or would have affected the
verdict. Otherwise the dignity and credi-
bility of the government and the judiciary
will be seriously undermined.
[F]astidious regard for the honor
of the administration of justice
requires the Court to make certain
that the doing of justice be made
so manifest that only irrational or
perverse claims of its disregard can
be asserted. Communist Party v.
Subversive Activities Control Board,
351 U.S. 115, 124.
The court of appeals rejected the
Larrison standard because it felt that it
would lead to speculative decisions. We do
not understand the court's preference for
the Berry standard on that basis. It cannot
be said that a determination whether or not
new evidence "probably" would produce a
different verdict at a new trial (Berry) is
more or less speculative than a determination
whether or not the presentation of such evi-
dence at the first trial might have produced
a different result (Larrison). As is unavoid-
ably true with innumerable types of judicial
decisions, both determinations are fraught
-20-
with uncertainties, as are, for example,
determinations whether or not to grant new
trials in cases where there has been "in-
advertent" government misconduct. Compare
United States v. Sperling, 506 F.2d, 1323,
1333 (2d Cir. 1974); United States v.
Miller, 411 F.2d 826, 833 (2d Cir. 1969);
United States v. Seijo, 514 F.2d 1357, 1364
and n. 9 (2d Cir. 1975). Indeed, the
standard developed by the court of appeals
in the latter group of cases is remarkably
similar to the Larrison test. 3 Yet the
speculative nature of the Miller-Sperling-
Seijo rule has not prevented the courts from
acting "forthrightly" (16a) in reviewing
such cases.
There also is no warrant to the court
cf appeals' fear that application of the
Larrison rule will result in wholesale re-
versals based upon even the most minor evi-
dence of perjury. Mere adherence to the
8 / In such cases, a new trial is required
if "there was 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 convic-
tion.” United States v. Sperling, supra,
506 F.2d at 1333.
ein
words of Larrison would be enough to pre-
vent such abuses; the court reviewing the
new evidence must find that its effect on
the original jury might have been sub-
stantial enough to avoid a conviction.
Application of the Larrison standard by the
other federal courts of appeals certainly
cannot be said to have led to the wholesale
overturning of convictions. There is no
reason to suspect that the situation would
be any different within the Second Circuit.
And the applicability of the Larrison
standard would provide a necessary safe-
guard against the "unsafe" 2./ adherence to
final judgments of conviction obtained upon
tainted evidence. This is especially true
in those cases such as this where the govern-
ment's case rests upon a single witness -
9/ The British standard for the granting
of motions for new trials based on newly-
discovered evidence is whether, in the cir-
cumstances of the case, it would be "unsafe"
tou allow the conviction to stand. Criminal
Appeal Act of 1968, c. 19, §§ 2(1) (a), 7,
23. See 8 Halsbury's Statutes of Engl
690, 693-694, 706-707 (3d Ed, 1969).
«22 =
whose perjury is conceded by the government.
4. The court of appeals further
erred in finding that the government vio-
lated no duty to investigate its own files
and to disclose exculpatory materials to the
defense.
The government chose to grant Glasser
transactional immunity in a case involving
alleged corrupt financial transactions be-
tween Glasser and the defendants. Yet the
government never ran an audit of Glasser's
finances or even examined Glasser's tax re-
turns. Examination of such returns would
have revealed, as it did late at trial when
the defendants finally were able to subpoena
them, the existence of the small fortune
Glasser had accumlated in major part from
payments from manufacturers.
The government was well aware of the
crucial importance of the issue of the source
of Glasser's wealth and of the obvious im-
pact that Glasser's tax returns might have
on that issue. This awareness is demon-
strated by the fact that the government was
ready to call Mrs. Glasser as a witness
solely on the question of the source of the
Glasser fortune immediately after Glasser's
testimony, and that the prosecuting attorney
justified such testimony on the grounds that
it related to a "central issue in the case"
=23-
(J.A. at 178a). But having recognized the
importance of the issue, the prosecutor
made no effort to investigate the truthful-
ness of Mrs. Glasser's corroborating testi-
mony before putting her on the stand. Such
an investigation, of course, would have re-
vealed the probate records which seemed to
‘belie the Glassers' account of the source of
their wealth. And the prosecutor still
failed to make proper investigations and dis-
closure prior to his improper effort in
summation to explain away the probate records
by in effect giving “expert” legal testi-
mony on the manner in which Mrs. Glasser
purportedly received her inheritance.
In this context, the lower courts'
efforts to compartmentalize the government
by distinguishing between the prosecution
ana the IRS misses the point. Petitioners
do not argue that the government must review
and disclose the tax returns of every wit-
ness it presents at every criminal trial;
only where the source and amount of a wit-
ness‘ financial assets are arguable relevant
and material is that duty definitively
triggered. This is especially true when, as
here, IRS agents were part of the prosecu-
tion team and the defendants were charged
and convicted of tax evasion. See, for
example, United States v. Deutsch, 475 F.2d
55 (5th Cir. 1973), where the defendants were
convicted of attempted bribery of postal em-
ployees by the testimony of a single witness
whom they allegedly tried to bribe. The
Court of Appeals held that the witness' Post-
-24-
al Department personnel file was Brady
material, rejecting the view of the dis-
trict court that the prosecutor had no
obligation to disclose the file because the
Post Office Department was not an arm of
the government:
“We find no reference in Brady
to an arm of the prosecution.
It was a Post Office employee
who had been sought to be bribed.
The government cannot compartmental-
ize the Department of Justice and
permit it to bring a charge affect-
ing a government employee in the
Post Office and use him as its
principal witness, but deny having
access to the Post Office files.
In fact it did not even deny access,
but only present possession with-
out even an attempt to remedy the
deficiency. . . .(T)here is no
suggestion in Brady that different
‘arms' of the government, parti-
cularly when so closely connected
as this one for the purpose of the
case, are severable entities. And,
of course, the Brady rule requires
the government to supply evidence
useful to the defendant simply for
impeachment purposes." 475 F.2d at
57 (emphasis added, footnotes and
citations omitted).
-25-
See also Giglio v. United States, supra,
405 U.S. at 154.
5. This case presents in a particu-
larly revealing light the problem posed by
Kotteakos v. United States, 308 U.S. 750,
769 that is, whether this was a case of
‘multiple conspiracies, assuming that any
violation of law was made out. Indeed, the
record below established 14 separate agree-
ments if it established any. The peti-
tioners were not linked to payments alleged-
ly made by an employer to other union offi-
Cials; the record failed to show any knowl-
edge on their part of such payments, much
less participation.
A single agreement among the four
defendants, Glasser, and the various manu-
facturers cannot be assumed unless the
government has eliminated each and every
hypothesis which might support independently
determined actions. See Pevely Dairy Co. v.
United States, 178 F.2d 363, 370 (8th Cir.
1949); Paul v. United States, 79 F.2d 561,
563 (3d Cir. 1935); United States v. Morgan,
118 F. Supp. 621, 633 (S.D.N.Y. 1953). In-
stead of eliminating such hypotheses, the
government, through Glasser, presented a
witness who attested to the individuality of
his approaches. It is absurd to assume, as
did the Court below, that because the four
defendants were union officials in a small
industry, engaged in constitutionally and
statutorily protected rights of association,
they conspired together to violate the crim-
aiGa
inal laws.
This is particularly true of peti-
tioners, against whom no employer appeared
as a direct witness, whom the jury at first
hesitated to find guilty of any substantive
charge, and whom the jury found to be out-
side the conapesty to violate the Crime
Control Act. 1o/
Indeed the jury's special findings on
the purposes of the conspiracy support the
conclusion that there could not be a single
conspiracy. One group of defendants was
found guilty of a conspiracy to violate two
statutes; another group (Hoff and Lageoles)
was found guilty of a conspiracy to violate
a single statute. That is the antithesis of
a single conspiracy, which involves an agree-
ment by all the conspirators to commit
crimes to which all subscribe even though
the responsibilities for commission of parti-
cular substantive crimes (the objectives of
the conspiracy) are assigned or undertaken
by the different conspirators. While indivi-
duals may join a conspiracy at different
10/ No substantive crime against Hoff and
Lageoles subsequent to passage of that
statute is charged in the indictment. Peti-
tioners co-defendants were found by the jury
to have conspired with the purpose of vio-
lating that statute.
-27]=<
times Ay/ the agreement must be one with
identical objectives. See United States v.
Peoni, 100 F.2d 401 (2d Cir. 1938); "1: Fave
& Scott, Criminal Law (1972), p. 464;
United States v. Spock, 416 F.2d 165, 179
(lst Cir. 1969); Daily v. United States,
282 F.2d 818 (9th Cir. 1960).
The prejudicial effect upon peti-
tioners in this case is quite obvious. Had
they been tried properly in separate trials
for conspiracy with Glasser to violate 29
U.S.C. § 186, and for the related substan-
tive crimes of bribery and tax evasion,
only Glasser would have testified at their
trial and they would not have been encum-
bered by the charges against Stofsky and
Gold. These latter charges were prejudicial
because: (1) the indictment charged much
more criminal behavior than was charged
against petitioners; (2) the crimes against
Stofsky and Gold were more serious and dif-
ferent: racketeering and corruption of jus-
tice; (3) the witnesses included employers
who arguably could buttress Glasser with
respect to his testimony against the other
defendants, Stofsky and Gold; 12/ (4) the
1l/ See United States v. Sobell, 314 F.2d
314, 329 (2d Cir. 1963).
12/ Of the ten government witnesses at trial,
only Glasser testified directly against peti-
tioners.
-28-
accumilation of evidence gave a picture of
corruption permeating the entire industry.
Clearly the prejudice here was as marked as
in Kotteakos v. United States, 308 U.S. 750,
769, and more injurious to petitioners be-
cause of the evidence admissible in a crim-
inal case against their co-defendants and
unrelated to their own case.
co IO
For the reasons stated, it is re-
spectfully submitted that the petition for
writ of certiorari should be granted.
LEONARD B. BOUDIN
ERIC M, LIEBERMAN
RABINOWITZ, BOUDIN & STANDARD
Attorneys for Petitioners
30 East 42nd Street
New York, New York 10017
APPENDIX A
UNITED STATES COURT OF APPEALS
For tHe Seconp Criecurtr
oe -
Nos. 4, 5, 6, 7—September Term, 1975.
(Argued September 22,1975 Decided November 7, 1975.)
Docket Nos. 74-1860, 74-1869,
75-1247, 75-1253
—+-o
Unirep States or AMERICA,
Appellee,
—against—
Grorce Strorsxy, Cuaries Horr,
Au Gop and Cuirrorp LaGEoLgs,
Defendants-A ppellants.
Before:
LumsBarp, MANsFIELD and TIMBERs,
Circuit Judges.
—--o>
Appeals from judgments of conviction entered in the
United States District Court for the Sout orn District of
New York after a jury trial, Lawrence W. Pierce, Judge,
finding (1) all defendants, officials of the Furriers Joint
Council, guilty of conspiracy to accept payment from em-
ployers and to conduct the Union’s affairs through a pat-
tern of racketeering, and of accepting such payments, 18
U.S.C. $371, 29 U.S.C. §186(b), (2) defendants Stofsky and
Guld guilty of engaging in a pattern of racketeering ac-
tivity, 18 U.S.C. §1961(1)(B), and of corruptly endeavor-
515
-la-
ing to influence a witness before a federa! grand jury, 18
U.S.C. §1503, and (3) defendants Stofsky, Hoff and Gold
guilty of attempting to evade federal income tax, 26 U.S.C.
§7201.
Affirmed.
o>
Evxan AsramowiTz, Esq., New York, N.Y.
(Michael R. Sonberg, Esq., Weiss Rosen-
thal Heller & Schwartzman, Paul K. Rooney,
Esq., Elliot L. Evans, Esq., Rooney & Evans,
New York, N.Y., of counsel), for Appellants
Stofsky and Gold.
Leonarp B. Bovptn, Esq., New York, N.Y.
(Rabinowitz, Boudin & Standard, Stephen
Barasch, Esq., New York, N.Y., of counsel),
for Appellants Hoff and Lageoles.
Joun C. Sazerta, Assistant United States At-
torney (Paul J. Curran, United States At-
torney for the Southern District of New
York, V. Thomas Fryman, Jr., Lawrence B.
Pedowitz, John D. Gordan, III, Assistant
United States Attorney, New York, N.Y.,
of counsel), for Appellee.
MansrieLp, Circuit Judge:
Once again in the wake of tlie discovery that a govern-
ment witness committed perjury at trial we are called upon
to strike a fair balance between the need for both integrity
and finality in criminal prosecutions. Because we conclude
that the perjury in issue is not of such significance as to
have unfairly tainted defendants’ convictions and find no
merit in appellants’ other points on appeal, we affirm.
On June 21, 1973, a federal grand jury handed down an
516
-2a-
indictment naming appellants, all of whom are officers and
employees of the Furriers Joint Council (the “Union”), a
trade union representing New York fur workers. The in-
dictment alleged a variety of offenses, the principal of
which was a conspiracy to demand and accept payments
from employers and to conduct the Union’s affairs through
a pattern of racketeering in violation of 18 U.S.C. 4371
(Count 1) and the acceptance of payments of money from
-certain employers in violation of 29 U.S.C. §186(b)* (Counts
2-22). In addition, Count 23 charged that defendants Stof-
sky and Gold, the Union’s Manager and Organizer, respec-
tively, had conducted the Union’s affairs through a pattern
of racketeering activities in violation of 18 U.S.C. §§1961
(1)(B) and (C) and 1962(c).* Count 24 charged Stofsky
and Gold with corruptly endeavoring to influence a grand
jury witness in violation of 18 U.S.C. §1503. In addition,
Stofsky, Hoff and Gold were charged, each in two counts
respectively, with attempting to evade federal income tax
in violation of 26 U.S.C. §7201 (Counts 25-27, 31-33). After
a two-week trial the jury on February 27, 1974, found each
defendant guilty on all counts*® in which he was charged.
1 29 U.S.C. §186(b) reads:
“It shall be unlawful for any person to request, demand, receive, or
accept, or agree to receive or accept, any payment, loan, or delivery
of any money or other thing of value prohibited by subsection (a)
of this section.”
2 18 U.8.C. §1961(1)(B) provides a long listing of examples of fed-
eral racketeering activity. 18 U.S.C. §1961(1)(C) specifically defines
“racketeering activity” as “any act which is indictable under title 29,
United States Code, section 186 (dealing with restrictions on payments
and loans to labor organizations) ... .”" And 18 U.S.C. §1962(c)
prohibits any person employed or associated with an enterprise affect-
ing interstate commerce ‘to conduct or participate, directly or indirectly,
in the conduct of such enterprise's affairs through a pattern of rack-
3 Judge Pierce sentenced Stofsky to 3 years’ imprisonment and fines
totaling $13,000; Hoff to 3 years’ imprisonment and fines totaling
517
According to the government’s theory, this seemingly
wide range of transgressions actually resulted from one
common enterprise: a series of arrangements entered into
through a middleman whereby certain fur manufacturers‘
paid bribes through the middleman to the defendants dur-
ing the period 1967-70 in return for permission to violate
certain provisions of the collective bargaining agreement
in force in the New York locale between their fur manu-
facturing firms and the Union. In particular, the Union
contract contained provisions forbidding “contracting” and
regulating “jobbing” practices whereby a union-shop manvu-
facturer distributed fur skins to outside non-union pro-
duction units for completion into merchantable garments.
Faced with rising labor costs under the Union contract,
some manufacturers sought to exploit the possibilities of
employing cheaper, outside labor through use of the non-
union contractors. The Union, on the other hand, main-
tained a surveillance system designed to detect any such
violations and was authorized bv the agreement to inspect
the records of each union-shop manufacturer for the pur-
pose of uncovering any such violations. A complaint by a
Union agent charging a violation of the anticontracting
provisions of the Union agreement could result in the im-
position of heavy fines on the manufacturer or loss of pro-
tection against picketing or strikes.
To establish certain counts of the indictment (e.g., Counts
6-14, 18-22) the government relied principally on the testi-
$11,000; Gold to 2 years’ imprisonment and fines totaling $10,000; and
Lageoles to 2 years’ imprisonment, execution suepended, and fines total-
ing $2,000.
4 The government separately indicted four fur manufacturers for mak-
ing such illegal payments in violation of 29 U.S.C. §186(a). Three
pleaded guilty and have been fined. The fourth manufacturer, Karl
Schwartzbaum, was also fined following a jury verdict of guilty. We
today affirm his conviction in a separate opinion.
518
~4a~
mony of one Jack Glasser,’ a labor adjustor employed by
the fur manufacturers association, Associated Fur Manu-
facturers, Inc. (the “Association”), which was substantially
corroborated by other evidence, including testimony by fur
manufacturers, a union business agent and two attorneys
who were brought into the picture by some of the defen-
dants to assist in furnishing advice to Glasser after he
had been discharged by the Association for misconduct and
‘had come under investigation by the federal government.
In support of other counts of the indictment (e.g., Counts
2-5, 16-17), the government offered the testimony of fur
manufacturers regarding payments made by them directly
to certain of the defendants for permission to engage in
contracting without Union harassment. Since the prin-
cipal issue raised on the appeal is the claim that Glasser’s
perjury tainted the convictions, it becomes important to
keep his testimony and its relation to the other proof in
perspective.
Because Glasser’s duties as a labor adjustor for the fur
manufacturers brought him in close contact with officials
of the Union, he was in a unique position to act as a
middleman in bribing Union officials to permit contracting.
He testified that on different occasions during the period
1967-1970 he accepted monies from different fur manufac-
turers (Sam Sherman, Harry Hessel, Breslin Baker, Karl
Schwartzbaum, Sol Cohen and Daniel Ginsberg) to arrange
Union protection for their illegal contracting, part of which
he kept and the balance of which he paid over to one or
more of tiie four defendants. Following the payments the
manufacturers who paid the monies received preferential
treatment from the Union in its enforcement of the anti-
contracting provisions of the collective bargaining agree-
5 The government granted Glasser transactional immunity for his part
in these activities.
519
-5a-
ment. On the rare occasions wlien a Union agent, apparently
unaware of the illegal arrangement, filed a complaint charg-
ing contracting in violation of the agreement, the complaint
was suppressed by the defendants or disposed of through
imposition of a token fine.
Glasser’s testimony was substantially corroborated by
the testimony of one fur manufacturer, Daniel Ginsberg,
to the effect that in 1969 he paid $1,000 to Glasser to secure
Union permission to use centractors and that the Union
agents thereafter discovered evidence of his contracting,
Glasser advised that he would take the matter up with
Hoff or Stofsky and “have it fixed,” following which he
heard nothing more about the matter. Harry Jaffee, a
Union business agent, testified to receiving from Glasser
6 to 10 cash payments, each of $50 or more, for ignoring
violations by two manufacturers (Schwartzbaum Furs and
Chateau Creations, Inc.) of the Union agreements’ anti-
contracting provisions.
The arrangement between certain fur manufacturers
and Glasser was terminated when the fur manufacturers
association fired Glasser in 1970 after discovering that
he had been used by these members as an instrument of
corruption. As further evidence of the defendants’ com-
plicity the government offered Glasser’s testimony that
upon being asked in 1972 by an investigator of the New
York Joint Strike Force, Detective Civitano, to submit
to interrogation, Glasser immediately communicated with
Hoff, who arranged for him to meet an attorney, Irving
Anolik, Esq., who in turn agreed to represent Glasser for
$2,000. Glasser also conferred with Stofsky, Hoff and
Gold at the Hotel New Yorker, where they counseled him
as to how he should handle himself during the interroga-
tion. Following the interrogation he met again with Stof-
sky, Hoff and Gold at the Hotel Hilton in New York City,
where he related to them his conversation with the Strike
520
-6a-
Force investigator. Glasser further testified that shortly
thereafter he was again called for interrogation and served
with a subpoena to appear before a federal grand jury.
He again met with Stofsky and Gold who, through the
Union’s General Counsel, obtained an attorney named
Arthur Hammer to represent him. According to Glasser,
Stofsky advised him “not to tell . . . anything, to take the
Fifth” and that he would facilitate Glasser’s receipt of
. his industry pension. Harold Cammer, called as a witness
by the government, confirmed that at Gold’s request he
had recommended Mr. Hammer as an attorney to repre-
sen‘ Glasser in the grand jury investigation.
Another fur manufacturer, William Stiel, testified to
making payments of money directly to Gold in 1968 and
1969 for permission to engage in contracting. Daniel
Grossman, a large scale fur manufacturer, testified to
making arrangements in 1970 and 1971 with Gold and
Stofsky for two payments per year of $6,000 each for
coutinuation of Grossman’s contracting activities, and to
his direct payment of these amounts to Gold. During the
period of the payoffs Grossman’s firm was not subjected
to any fines, picketing or strikes even though Gold in-
spected skins bearing Grossman’s seal in the shop of a
contractor, William Poulos, who also testified for the
government.
The defense put in by all defendants was essentially
the same—a denial that they had received any monies
from any fur manufacturers, either directly or through
intermediaries. Although the defendants did not seriously
dispute Glasser’s receipt of bribes from certain manufac-
turers, they contended that he never shared his bounty
with them but must instead have retained the payments
for himself. Lacking support for this theory other than
their own denials, the defense on the first day of trial
obtained by subpoena Glasser’s 1972 income tax return,
521
-7Ja-
which revealed the receipts of over $6,000 in interest pay-
ments from deposits of roughly $120,000 in several sav-
ings banks. Upon cross-cxamination as to the source of
the $120,000, Glasser testified falsely that most of the
money had been acquired by his wife through inheritance
some 20 years earlier. His wife, called by the government,
corroborated this false story. Although the defendants,
some six days before the end of the trial, obtained a tran-
script from one of the Glassers’ savings accounts (The
East New York Savings Bank) showing that the Glassers
had made a series of deposits amounting to $38,156 dur-
ing the years 1967-70, which cast doubt upon their testi-
mony as to the source of the funds, the defense did not
exploit this evidence. Instead it resorted to probate rec-
ords indicating that the estates of Mrs. Glasser’s parents
had yielded only a few thousand dollars. In this posture
the issue was argued to the jury.
After trial, the Glassers’ explanation regarding their
bank accounts began to unravel. Drawing upon data de-
rived from additional tax records that the government had
provided to defense counsel some seven days before the
completion of trial, the defense now discovered that during
the period 1967-70 the Glassers had deposited a total of
$61,659.05, of which approximately $57,000 was in cash.
Questioned by government prosecutors, the Glassers ac-
knowledged the falsity of their previous trial testimony
concerning the extent of their 1967-70 deposits, but Glasser
reaffirmed his testimony concerning defendants’ complicity
in the payoff scheme. Indeed, Glasser now maintained that
a substantial portion of the additional sums represented
what he had retained as his share of further, previously
undisclosed illegal payoffs from the manufactvrers after
paying part of these additional payments to the defen-
dants. Accordingly, on May 31, 1974, Judge Pierce denied
defendants’ motion for a new trial, pointing out:
522
-8a-
“It is far too wide a leap in reason to assert that just
because Glasser accumulated $57,000 in cash during
the critical time period that, a fortiori, a jury hearing
these facts could only conclude that he kept the whole
of the mere $11,000 he said he gave the defendants.”
Judge Pierce concluded that, in view of Glasser’s explana-
tion, which implicated the defendants even further in the
illegal scheme, it appeared unlikely that the newly-discov-
ered evidence would lead to a different verdict.
In the meantime, the government had commenced its
own investigation into the Glassers’ financial affairs. After
interviewing Glasser and inspecting additional records, the
prosecutors on September 12, 1974, informed defense coun-
sel of further discrepancies in Glasser’s previous explana-
tion of the source and size of his bank deposits, revealing
that Glasser had deposited additional amounts over a longer
period of time (1962-1973), and indicating that his deal-
ings with fur manufacturers may i «& been broader and
in larger amounts than he had previously testified. The
defendants again moved for a new trial. Again Judge
Pierce, on June 4, 1975, denied their motion. Defendants
appeal from their convictions and from the denial of their
motions for a new trial.
Discussion
At the threshold it must be recognized that in the in-
terest of according firality to a jury’s verdict, a motion
for a new trial based upon previously-undiscovered evi-
dence is ordinarily “not favored and should be granted
only with great caution.” United States v. Costello, 255
F.2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 937 (1958) ;
United States v. Sposato, 446 F.2d 779 (2d Cir. 1971). In-
deed, the standard of review governing most instances of
newly-discovered evidence, first enunciated in Berry v.
523
Georgia, 10 Ga. 511, 527 (1851), and steadfastly adhered
to for over a century, is that the new evidence will not
entitle the defendant to a new trial unless “it would prob-
ably produce a different verdict.” See United States v.
De Sapio, 456 F.2d 644, 647 (2d Cir.), cert. denied, 406
U.S. 933 (1972); United States v. Polisi, 416 F.2d 573, 577
(2d Cir. 1969); 8A Moore’s Federal Procedure §33.04(1).
In two categories of cases, however, courts have deviated
from this “probability” test and permitted new trials based
upon a less exacting demonstration of the new evidence’s
materiality to the defendant’s conviction. One line of cases
looks to the existence of prosecutorial culpability in sup-
pressing or failing to disclose the evidence in question; the
other turns upon a witness’s commission of perjury. As
might be anticipated, appellants strive vigorously to fit their
ease within both categories.
1. Governmental Culpability.
The intentional governmental suppression of evidence
useful to the defense at trial will mandate a virtual auto-
matic reversal of a criminal conviction. See, e.g., Moore v.
Illinois, 408 U.S. 786, 797-98 (1972); Gigito v. United
States, 405 U.S. 150, 154 (1972); Napue v. Illinois, 360
U.S. 264, 269 (1959); United States v. Sperling, 506 F.2d
1323, 1333 (2d Cir. 1974), cert. denied, 420 U.S. 962 (1975).
This clearly is not such a case, however, as all parties agree
that the government had no actual knowledge of the falsity
of Glasser’s trial testimony.
Appellants argue, however, that the prosecuting attor-
neys acted negligently in failing to probe more deeply into
Glasser’s financial affairs. The inadvertent but negligent
failure on the part of a prosecutor to furnish to the defense
evidence in the prosecutor’s control that is of an excul-
patory or impeaching nature would loosen the standard of
524
-10a-
review relative to newly-discovered evidence and require
a reversal if “there was a significant chance that this added
item . . . could have induced a reasonable doubt in the
minds of enough jurors to avoid a conviction.” United
States v. Seijo, 514 F.2d 1357, 1364 (2d Cir. 1975) ; United
States v. Kahn, 472 F.2d 272, 287 (2d Cir.), cert. dented,
411 U.S. 982 (1973); United States v. Miller, 411 F.2d at
825 (2d Cir. 1969). Furthermore, negligent suppression on
. the part of the government would run afoul of its inde-
pendent responsibilities arising under Brady v. Maryland,
373 U.S. 83 (1963), where the Supreme Court held that
“the suppression by the prosecution of evidence favorable
to the accused” violates due process “irrespective of the
good faith or bad faith of the prosecution.” Id. at 87.
The government’s attorney acknowledged at oral argu-
ment that the newly-discovered evidence of Glasser’s finan-
cial status might have proved useful to both sides at the
February trial, offering to each strengths that might have
been offset by countervailing weaknesses. But this hind-
sight appraisal does not dispose of the issue. Cf. United
States v. Keogh, 391 F.2d 138, 148 (2d Cir. 1968). We do
not employ the omniscience of a Monday morning quarter-
back as the standard for determining what investigation
should have been made by the government. Although a
diligent prosecutor, in the interest of protecting himself
against surprise on the part of his principal witness, might
well have andited Glasser’s finances before putting him on
the stand, there was no obligation to do so, since the gov-
ernment, in February 1974, did not have reason to believe
that Glasser, blessed with transactional immunity, would
have any incentive to engage in falsehoods concerning his
own monetary affairs.* Indeed, although the government
6 As noted supra, trial commenced on February 11, 1974. The defense
closed its case on February 26, and the jury announced its verdict on
525
-lla-
learned of the Glassers’ 1972 federal tax return at the be-
ginning of the trial, it did not have the facts with respect
to the contents of the Glassers’ savings bank deposits until
the trial had been concluded.’ Thus we cannot say that the
government, prior to or during trial, acted unreasonably
in failing to recognize the impeachment value of the Glas-
sers’ income tax records.*
February 27. The Glassers’ 1972 federal tax return was made available
to defense counsel as of the first day of trial and the government dis-
tributed the remaining applicable tax returns on February 20. Defense
counsel employed these returns in its cross-examination of Glasser on
that same day. In addition, a defense subpoena duces tecum served on
one of Glassers’ savings banks resulted in the production on February
21 of a transcript listing Glasser's deposits during the years 1967-70.
The defense did not offer this transcript into evidence during trial.
7 We are unpersuaded by appellants’ contention that knowledge of the
information in Glasser’s returns on file with the Internal Revenue Ser-
vice should under the circumstances of this case be imputed to the
United States Attorney as a Lasis for declaring that he was negligent
in failing to obtain and turn over these returns to the defense. Such
a rule, which would obligate the prosecutor to anticipate Glasser’s per-
jury with respect to the source of funds from which the income re-
ported in the tax returns was derived, would be not only extremely
burdensome but of doubtful utility. See United States v. Quinn, 445
F.2d 940, 944 (2d Cir.), cert. denied, 404 U.S. 850 (1971). Nothing in
the tax returns was inconsistent with Glasser’s receipt of the payoffs
and sharing of them with the defendants. The 1967-70 tax returns of
the Glassers’ which the government distributed to defense counsel on
Fe! ruary £0, see note 6 supra, merely declared additional interest pay-
ments from two different savings banks. Indeed defense counsel did
not subpoena records of these accounts until April 10.
8 Appellants additionally contend that a looser standard relative to
granting a new trial should be applied because the government was at
fau't in failing, while the first post-trial motion for a new trial was
sub judice, to disclose that following the motion it had uncovered addi-
tional Glasser tank records indicating that the explanations given by
Glasser regarding the source of his savings accounts were false. How-
ever, the government, having been misled by the earlier Glasser ver-
sions, obviously did not want to be accused of furnishing additional
misleading records. Accordingly it decided to defer disclosure until it
had obtained and confronted Glasser with the entire documentary pic-
ture, which it promptly assembled and, on September 3, 1974, notified
the defense. Under the circumstances, including the fact that the
526
-l2a-
The facts with respect to the defendant’s own diligence
in uncovering the newly-discovered evidence are materially
different. It must be remembered that
“a defendant seeking a new trial under any theory must
satisfy the court that the material asserted to be newly
discovered is in fact such and could not with due dili-
gence have been discovered before or at the latest, at
trial.” United States v. Costello, 255 F.2d 866, 879 (2d
Cir.), cert. denied, 357 U.S. 937 (1958). Accord, United
States v. Marquez, 490 F.2d 1383 (2d Cir. 1974), aff’g
on opinion below, 363 F. Supp. 802, 803 (S.D.N.Y.
1973), cert. denied, 419 ™).S. 826 (1974); United States
v. Edwards, 366 F.2d 853, 874 (2d Cir. 1966), cert.
denied, 386 U.S. 919 (1967).
Here the transcript of the Glassers’ account at the East
New York Savings Bank, which had been subpoenaed by
the defendants on February 13 and was available to them
some 12 days before the end of trial, was actually delivered
to them six days before the close of the defendant’s own
case. As Judge Pierce later noted this transcript “was
strong evidence that Glasser was not telling the truth” with
respect to Mrs. Glasser’s inheritance. By recalling the wit-
nesses to the stand, the defense could have used the tran-
script to recall and cross-examine the Glassers. If more
time was needed to obtain additional information from the
banks in question, the defense could at least have brought
this predicament to the trial judge’s attention and re-
quested a continuance in order to exploit further this
“strong evidence.”
completion of the trial had eliminated the emergency that would have
existed if trial had been pending, we cannot label this conduct as de-
liberate or negligent nondisclosure calling for application of a different
standard of review.
527
-lja-
The failure to obtain and exploit the impeaching data
until after the jury had rendered its verdict offers strong
support for the government’s contention that the defense
did not exercise due diligence in obtaining the newly-dis-
covered impeaching evidence in time for use at trial. How-
ever, the same charge does not lie against the government,
for it, unlike the defense, did not during the trial have the
East New York Savings Bank transcript in possession.
We cannot, therefore, conclude that the government acted
unreasonably in failing either to anticipate or prepare to
rebut Glasser’s perjury.
We conclude, then, that Glasser’s perjury is not the prod-
uct of governmental misconduct justifying epplication of
the looser standards of post-trial review governing such
cases.
2. Glasser’s Perjury.
We turn then to the issue of whether Glasser’s perjury
itself requires a new trial. While the Berry “probability”
standard discussed above generally governs challenges to
a previous trial based upon newly-discovered evidence, a
less stringent test has frequently been voiced in response
to revelations of perjury. Under that test, which appears
to have had its origin in Larrison v. United States, 24 F.2d
82, 87 (7th Cir. 1928), a new trial will be granted if, with-
out the false testimony, the jury “might have reached a
different conclusion.”
Most cireu*ts have expressed their allegiance to Larrt-
son.® See generally, 8A Moore’s Federal Practice $§33.04(1)
9 See, eg., United States v. Anderson, 509 F.2d 312, 327 n.105 (D.C.
Cir. 1974) (dicta), cert. denied, 420 U.S. 991 (1975); United States
v. Johnson, 487 F.2d 1278, 1279 (4th Cir. 1973) (government witness
recanted testimony); United States v. Meyers, 484 F.2d 113, 116 (34
Cir. 1973) (applying Larrison to perjury by material witness); United
States v. Briola, 465 F.2d 1018, 1022 (10th Cir. 1972), cert. denied, 409
528
-l4a-
& 33.06(1). In recent years, however, we have expressed
increasing discomfort with the Larrison test in cases that
do not involve prosecutorial misconduct, see, e.g., United
States v. Rosner, 516 F.2d 269, 279 (2d Cir. 1975); United
States v. Marquez, 363 F. Supp. 802, 806 (S.D.N.Y. 1973)
(Weinfeld, J.), aff’d on opinion below, 490 F.2d 1383 (2d
Cir.), cert. denied, 419 U.S. 826 (1974); United States v.
De Sapio, 435 F.2d 272, 286 n.14 (2d Cir. 1970), cert. denied,
_ 402 U.S. 999 (1971). This trend no doubt reflects our real-
ization that the test, if literally applied, should require
reversal in cases of perjury with respect to even minor
matters, especially in light of the standard jury instruction
that upon finding that a witness had deliberately proffered
false testimony in part, the jury may disregard his entire
testimony. Thus, once it is shown that a material witness
has intentionally lied with respect to any matter, it is diffi-
cult to deny that the jury, had it known of the lie, “might”
have acquitted. We recognize that those who have professed
adherence to the Larrison test do not appear to share our
concern over the problems arising from its speculative
nature. Indeed, notwithstanding the looseness of the test,
most courts have not hesitated to deny new trials in cases
where they have purported to apply it.” However, rather
U.S. 1108 (1973); United States v. Curran, 465 F.2d 260, 264 (7th
Cir. 1972) (dicta); United States v. Strauss, 443 F.2d 986, 989 (1st
Cir.), cert. denied, 404 U.S. 851 (1971); United States v. Smith, 433
F.2d 149, 151 (5th Cir. 1970).
10 The decisions cited in note 9 supra reveal that frequently the courts
circumvent the Larrison test by failing to recognize that the trial tes-
timony was perjurious or had been recanted, see, e.¢., United States
v. Johnson, supra, 487 F.2d at 1279; United States v. Struuss, supra,
443 F.2d at 990, or by simply concluding that the Larrison standard
remains unsatisfied. Thus, of the cases listed in note 9 in which the
courts expressed their adherence to Larrison, only one reversed a con-
vietion based upon subsequently-discovered evidence, see United States
Vv. Meyers, supra, and even in that case the court concluded that the
perjury was so serious that it would have called for a retrial under
either Berry or Larrison, 484 F.2d at 117.
529
-15a-
than adopt the Larrison test and violate it in application,
we believe, for the reasons indicated, that the time-honored
“probability” standard is the more appropriate one for
determining whether perjury calls for a new trial. In addi-
tion to its other virtues the rule enables a court to act
forthrightly in making its determination.
Defendants rely heavily upon Mesarosh v. United States,
352 U.S. 1 (1956), in urging upon us a more lenient stan-
dard of review in cases where a new trial is sought on
grounds of perjury. But this court has noted that Mesarosh
is a sui generis case, United States v. Zane, 507 F.2d 346,
348 (2d Cir. 1974), cert. denied, 421 U.S. 910 (1975), involv-
ing “that rare situation where a key witness . . . had been
conceded by the Government to have testified . . . in such
a bizarre fashion as to raise the inference that he was
either an inveterate perjurer or a disordered mind.” United
States v. Rosner, supra, 516 F.2d at 279-80. Moreover,
we are confident that such an incredible witness would not
have survived the scrutiny of any standard of post-trial
review, including a proper application of the “probability”
test endorsed by us.
Another problem that does not appear to have been the
subject of explicit reported judicial consideration, at least
in this cirenit, in whether, in considering a motion for a
new trial on grounds of perjury, the court should assume
that the jury would have had before it the newly-dis-
covered evidence not only for its probative value with re-
spect to the issues but also to demonstrate that the wit-
ness had perjured himself with respect to that evidence,
the latter being pertinent, of course, for its impeaching
value. Put another way, should we, in determining whether
truthful testimony by the witness would probably have
changed the jury’s verdict, also assume that the jury would
have known that he had lied under oath about the matter?
530
-16a-
Since the witness’s credibility could very well have been
a factor of central importance to the jury, indeed every
bit as important as the factual elements of the crime itself,
see Giglio v. United States, supra, 405 U.S. at 154; Napue
v. Illinois, supra, 360 U.S. at 269; United States v. Seijo,
supra, 514 F.2d at 1363-64, we would answer this question
in the affirmative. Upon discovery of previous trial per-
jury by a government witness, the court should decide
-whether the jury probably would have altered its verdict
if it had had the opportunity to appraise the impact of
the newly-discovered evidence not only upon the factual
elements of the government’s case but also upon the cred-
ibility of the government’s witness.
Applying the f@ggoing, we do not believe that the revela-
tion of Glasser’s perjury would have altered the jury’s ver-
dict. The new evidence of the Glassers’ bloated bank ac-
counts is not exculpatory in nature. Glasser’s receipt of
monies from at least six fur manufacturers was clearly
established. It is a non sequitur to suggest that the dis-
covery of Glasser’s receipt of larger sums of money from
some source establishes that he did not pass to defendants
a share of what he concededly received from the fur manu-
facturers. The key factual issue in dispute—whether
Glasser shared payments with the defendants—would not
have been affected one way or the other by this new evi-
dence. The newly-discovered bank records, furthermore,
are too general in nature to permit substantiation of the
defense’s theory by tracing funds from the manufacturers’
hands into Glasser’s exclusive coffers.‘' Moreover, since
11 At oral argument, it became clear that the dates of deposits and sums
of money included on the newly-discovered bank statements cannot with
any reasonable degree of precision be interrelated with the timing and
size of payoffs flowing from the manufacturers to Glasser. Thus, the
defense theory that Glasser retained all of the proceeds—obviously once
rejected by the jury—still cannot be adequately substantiated.
531
-l17a-
Glasser now claims that the defendants also received their
shares of these additional payoffs, it is doubtful whether
defense counsel, equipped with this new information, would
find it beneficial to open the door to this evidence of pos-
sible further union corruption. Witliout necessarily as-
suming the trustworthiness of Glasser’s post-trial explana-
tion, which incriminated the defendants even further than
did his trial testimony, the fact remains that, if the defense
explored this territory, it would face the serious risk that
a jury would be even less likely to discredit Glasser’s
testimony despite his earlier perjury. Although the revela-
tion of his perjury would have impeached his credibility,
this aspect of his testimony could be sensibly explained:
despite the grant of immunity protecting him from criminal
responsibility, he still was confronted with the risk that if
he disclosed the true source of his hidden wealth to the
government he would be subjected to civil income tax lia-
bility, which would deplete his resources as a retiree.
Thus the impeaching value of the disclosure was of doubt-
ful value to the defense as compared with the harm that
might result to the defendants by Glasser’s explanation.
In sum, balancing the potential damage to Glasser’s
credibility against the possibility that the new proof simply
would be construed as evidence of a more widespread
bribery scheme than previously recognized, we cannot say
that disclosure of Glasser’s perjury “probably” would have
produced a different verdict.
3. Miscellaneous
The melange of other contentions advanced by appellants
fails to disclose any with sufficient merit to warrant re-
versal. We limit ourselves to those arguments upon which
they appear to have placed their greatest reliance.
_ 532
-18a-
Appellants’ first contention—that the indictments against
them are invalid for the reason that they were handed
down by the grand jury more than 18 months after it was
originally impanelled—places the narrowest possible inter-
pretation upon our previous rulings in United States v.
Fein, 504 F.2d 1170 (2d Cir. 1974), and Waz v. Motley,
510 F.2d 318 (2d Cir. 1975). Appellants argue that the
grand jury was convened pursuant to Rule 6, F.R.Cr.P.,
‘and therefore could not have been extended pursuant to
the terms of the Organized Crime Control Act of 1970, 18
U.S.C. §3331, beyond the 18-month term to which a Rule 6
grand jury is limited. We disagree.
The record amply supports the conclusion that this grand
jury was impanelled pursuant to the Organized Crime Con-
trol Act of 1970, which permits an impanelled grand jury
to be extended up to 36 months, and that it was lawfully
extended beyond the date when the indictments were filed.
Although the order of the late Chief Judge Sidney Sugar-
man, which impanelled the grand jury, was facially am-
biguous in that it did not expressly state that the grand
jury was being impanelled pursuant to 18 U.S.C. 63331, it
did not refer to Rule 6 or contain the usual reference lim-
iting the life of a Rule 6 grand jury to 18 months. The
order was not obtained at the instance of the United States
Attorney, which would be the case if the grand jury were
convened pursuant to Rule 6, but upon the application of
the Special Attorney of the Department of Justice who
was then the Attorney-in-Charge of the New York Joint
Strike Force on Organized Crime and Racketeering. Fur-
thermore, when the grand jury, one month after Judge
Sugarman’s order, was convened, impanelled and sworn in
by United States District Judge Dudley B. Bonsal, pre-
siding for the district court, he expressly instructed the
jury that it had been impanelled under the Organized
533
-19a-
Crime Control Act of 1970 and notified the grand jury
that its term could be extended beyond 18 months for
periods of 6 months up to a maximum of 36 months. He
further informed the grand jury that it had additional
powers not normally conferred upon grand juries. There-
after the term of the grand jury was extended by orders
of the district court beyond the 18-month period pursuant
to 18 U.S.C. §3331(a). It is clear that Judge Sugarman’s
order, viewed in context, was intended to and was issued
pursuant to the terms of the Organized Crime Control Act
of 1970.
Defendants’ next contention—that the evidence showed
a number of separate conspiracies rather than the one
single conspiracy charged in the indictment—must like-
wise be rejected. The evidence established a continuous
course of conduct in which a number of fur manufacturers,
acting through Glasser as middleman, engaged in the cor-
ruption of the defendants as key members of the Union.
Each of the defendants appreciated that the illegal ar-
rangements and payoffs to which he was a party were part
of this ongoing scheme involving others. As responsible
officials of the Union, appellants shared interrelated duties
and worked closely together. Their participation over a
period of time in the corrupt scheme was evidenced by
numerous acts, including the joint approval by Stofsky and
Gold of Grossman’s violations of the Union agreement, the
involvement of Hoff in the same violations, the association
of each defendant with payoffs made by more than one fur
manufacturer, Gold’s statements to Grossman indicating
knowledge of payoffs by others, the joint determination of
Hoff and Lageoles not to prosecute certain contracting com-
12 Gold was shown to have received payoffs from six fur manufacturers,
Hoff from four, Lageolis from two and Stofsky from one. Stofsky also
authorized Grossman's violations and participated in the decision not
to prosecute Ginsberg’s firm.
534
-20a-
plaints or to conduct the examination of certain fur manu-
facturers’ books, and the efforts of Stofsky and Gold to
induce Glasser not to give any harmful evidence when he
came under federal investigation. Viewed in toto the evi-
dence was more than sufficient to establish one single con-
spiracy. See, e.g., United States v. Santana, 503 F.2d 710
(2d Cir.), cert. denied, 419 U.S. 1053 (1974); United States
v. Salazar, 485 F.2d 1272 (2d Cir. 1973), cert. denied, 415
‘U.S. 985 (1974) ; United States v. Edwards, supra, 366 F.2d
at 867 ; United States v. Agueci, 310 F.2d 817 (2d Cir. 1962),
cert. demied, 372 U.S. 959 (1963). Evidence regarding Glas-
ser’s payments to Jaffee, which were in furtherance of the
conspiracy, was properly admitted, United States v. Bynum,
485 F.2d 490, 498 (2d Cir. 1973), vacated and remanded on
other grounds, 417 U.S. 943 (1974), as was Glasser’s testi-
mony regarding fur manufacturers’ overtures to enter the
illegal payoff arrangements in exchange for permission to
violate the Union agreement’s contracting prohibition, see
United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969), cert.
denied sub nom. Lynch v. United States, 397 U.S. 1028
(1970); Umtted States v. Wiley, 519 F.2d 1348 (2d Cir.
1975).
Appellants next object to the prosecutor’s comments in
summation to the effect that, althongh the fur manufac-
turers from whom Glasser testified that he had received
payoffs had not been called by the government, they were
available for subpoena by the defendants to testify at trial.
Since the defense had opened the door in this regard by
suggesting in summation, notwithstanding efforts by the
prosecutor to obtain a directive that neither side be per-
mitted to comment on the subject, that an inference adverse
to the government might be drawn from the government’s
failure to introduce these witnesses, the prosecutor’s argu-
ment was not improper. See United Siaies v. Deutsch, 451
535
-2la-
F.2d 98, 116-17 (2d Cir. 1971), cert. denied, 404 U.S. 1019
(1972). Nor was the government obligated to grant immu-
nity to the fur manufacturers so that they could be called
to testify. See Morrison v. United States, 365 F.2d 521, 524
(D.C. Cir. 1966); United States v. Bautista, 509 F.2d 675,
677-78 (9th Cir. 1975).
The record discloses ample evidence of payoffs which,
viewed in the light most favorable to the government, sup-
port the convictions of Stofsky, Hoff and Gold for income
tax evasion in violation of 26 U.S.C. §7201. The failure
of the government to afford them an administrative con-
ference with the IRS before indictment did not nullify
the grand jury’s actions. The grand jury’s broad powers
to investigate and to indict on the basis of evidence which
disclosed reasonable grounds for belief that the defendants
violated 26 U.S.C. §7201, are not conditioned upon the
taxpayers being given an opportunity to explain their con-
duct to a government official any more than to the grand
jury itself. See United States v. Daly, 481 F.2d 28, 30-31
(8th Cir.), cert. denied, 414 U.S. 1064 (1973) ; United States
v. Goldstein, 342 F. Supp. 661 (E.D.N.Y. 1972). Further-
more, the IRS regulation providing for such administrative
conferences, 26 C.F.R. §601.107(b)(2), was not in effect at
the time of the filing of the indictment.
Similarly a sufficient evidentiary basis existed to support
the convictions of Stofsky and Gold for obstruction of jus-
tice in violation of 18 U.S.C. §1503. Their conduct went
beyond merely suggesting to Glasser that he had the right
to invoke the Fifth Amendment. The trial judge, further-
more, instructed the jury that such advice would be insuffi-
cient to provide the necessary corrupt intent. In addition,
the evidence established a concerted effort corruptly to per-
suade Glasser to remain silent in order to conceal the con-
spiracy and the payoffs. This proof was plainly sufficient.
536
-22a-
See United States v. Cioffi, 493 F.2d 1111, 1118-19 (2d Cir.),
cert. denied, 419 U.S. 917 (1974).
We have examined the other grounds urged by appellants
for reversal and find them meritless.
The convictions are affirmed.
-23a-
APPENDIX B
At a stated term of the United
States Court of Appeals, in and for the
Second Circuit, held at the United States
Court House, in the City of New York, on
the twenty-sixth day of February, one
thousand nine hundred and seventy-six.
ew eee ew oe wn oe ee eo oe = x
United States of America,
Plaintiff-Appellee,
74-1860
-V=—
George Stofsky, Charles Hoff,
Al Gold and Clifford Lageoles,
Defendants-Appellants.
ee x
A petition for rehearing containing a
suggestion that the action be reheard en
banc having been filed herein by counsel for
the appellants Charles Hoff and Clifford
Lageoles, and no active judge or judge who
was a member of the panel having requested
that a vote be taken on said suggestion,
Upon consideration thereof, it is
Ordered that said petition be and it
hereby is DENIED.
IRVING R. KAUFMAN, Chief Judge
-24a-
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
At a Stated ierm of the United States
Court of Appeals, in and for the Second
Circuit, held at the United States Court
House, in the City of New York, on the
' twenty-sixth day of February, one thousand
nine hundred and seventy-six.
Present: HON. J. EDWARD LUMBARD,
HON. WALTER R. MANSFIELD,
HON. WILLIAM H. TIMBERS,
Circuit Judges.
x
United States of America,
Plaintiff-Appellee,
ats 74-1860
George Stofsky, Charles Hoff,
Al Gold and Clifford Lageoles,
Defendants-Appellants.
x
A petition for a rehearing havin
g been
filed herein by counsel for the appellants,
Charles Hoff and Clifford Lageoles
-25a-
Upon consideration thereof, it is
Ordered that said petition be and
hereby is DENIED.
A. DANIEL FUSARO
Clerk
-26a-
APPENDIX C
Opinion of Lawrence W. Pierce, D.J. re: Motion
for New Trial, Dated June 12, 1974
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEw YorxK
73 Cr. 614
—— rt > ee
UNITED STATES OF AMPRICA
—V,—
GEORGE STOFSKY, et al.,
Defendants.
ST Sie
APPEARANCES:
WEIs8, ROSENTHAL, HELLER & SCHWARTZMAN
295 Madison Avenue
New York, New York 10017
By: ELKAN ABRAMOWITZ, Esq.
and
PAUL K. ROongEy, Esq.
521 Fifth Avenue
New York, New York 10017
Attorneys for Union Defendants
PAUL J. CURRAN, Esq.
United States Attorney
United States Courthouse
Foley Square
New York, New York 10007
By: JOHN SABBETTA
Assistant United States Attorney
Attorney for United States of America
LAWRENCE W. Pierce, D.J.
-27a-
Opinion of Lawrence W. Pierce, D.J. re: Motion for New
Trial, Dated June 12, 1974
MEMORANDUM OPINION
After a two and one-half week trial ending February
98, 1974, defendants Stofsky, Hoff, Gold and Lageoles,
officials of the Furriers’ Joint Council, a labor union,
were convicted by a jury of accepting payoffs from fur
manufacturers and of other federal crimes related to the
pay-off scheme. They have moved for a new trial pursu-
ant to Fed. R. Crim. P. 33, citing newly-discovered evi-
dence concerning the personal finances of one of the gov-
ernment’s chief witnesses, which directly controverts the
witness’ testimony at trial with respect to the source of
his small fortune. Defendants assert two theories in sup-
port of the motion: first, that the new evidence conciusively
establishes that the convictions were based on perjured
testimony, mandating a new trial; and, second, that the
government had a duty to discover the true state of the
witness’ finances and to disclose it, and that its failure to
do so requires a new trial. For the reason set forth below,
the motion is denied.
Background
The jury trial commenced on February 11, 1974. The
indictment charged that the defendants accepted a contin-
uing flow of pay-offs during 1967 through 1970 from cer-
tain fur manufacturers in return for permission to cir-
cumvent terms of the union contract prohibiting overtime
and subcontracting. The government presented three wit-
nesses who testified as to the pay-offs. Two were manu-
facturers who said they made payment directly to Stofsky
and Gold. The third was Jack Glasser, a former labor
udjuster for the trade association which represented the
manufacturers who were parties to the contract with the
union. Glasser’s testimony, given under the umbrella of
*a
-28a-
Opinion of Lawrence W. Pierce, D.J. re: Motion for New
Trial, Dated June 12, 1974
transactional immunity, was that he served as an inter-
mediary, negotiating the amount and frequency of the pay-
ments, collecting the money from the manufacturers in-
volved, and delivering the cash payments to various of the
four defendants, keeping a share for himself. He testified
that altogether the scheme involved a total of around
$16,000, of which he kept about $5,000. He also testified
that he never banked his share, but simply spent it as he
received it.
There was testimony at the trial with respect to the
fur garment industry in New York City which tended to
provide a circumstantial background in support of Glasser’s
story. The jury heard that the industry is relatively small
and contained geographically; that its labor requirements
are seasonal; that the union’s contract protects workers
by requiring extensive benefits from the manufacturers, and
by forbidding manufacturers to meet their excess labor
needs with overtime or subcontracts to non-union shops.
The defendants introduced some evidence to the contrary,
but the jury could have reasonably concluded that the
contract created a hardship for some manufacturers who
sought ways to circumvent it. From that premise the jury
could have reasonably inferred that if the manufacturers
would pay-off anyone for protection against union enforce-
ment, it would be union officials charged with enforcement.
Both in the trial at issue here, and in proceedings in-
volving a related indictment against manufacturers charged
with making the pay-offs, 73 Cr. 616, there was ample cor-
roboration of Glasser’s testimony that the manufacturers
did violate the contract and that they paid the money to
Glasser for that privilege with the assumption that it was
going to union officials. This critical assumption was
circumstantially supported by evidence that these particular
manufacturers suffered little union trouble during the
period when they were breaking the contract and making
-29a-
Opinion of Lawrence W. Pierce, DJ. re: Motion for New
Trial, Dated June 12, 1974
the pay-offs. But, aside from the circumstantial evidence
as to the nature of the industry and the payees’ lack of
union problems, Glasser’s testimony with respect to his
subsequent payments to these defendant union officials
was virtually uncorroborated. In fact, Glasser testified
that no payment was ever witnessed. He said he merely
carried the cash around until he encountered the designated
official to whom he would palm the payment, whispering
the name of the manufacturer involved.
Altogether, in the trial of the union officials, seventeen
substantive counts involving payments to these defen-
dants went to the jury. Six counts involved payments
varelated to Glasser and were supported by the testimony
of two manufacturers who made direct payments to two of
the four defendants. Ten counts rested entirely on Glasser’s
testimony. One count was partially supported by the testi-
mony of the manufacturer involved who said that he paid
Glasser, but did not have actual knowledge of Glasser’s
payment to the intended union official. Likewise, the three
manufacturers who pleaded guilty to Indictment 73 Cr.
616, disavowed any actual knowledge of Glasser’s subse-
quent transmission of their payment to union officials.
And therein lies the crux of both the theory of defense
adopted by the four union officials at trial and of their
motion for a new trial.
The defense attempted to develop at trial that although
Glasser might have taken the payments from the manu-
facturers, and even had led them to believe he was using
the cash to pay-off union officials on their behalf, he was
in fact pocketing al] of the money given to him by the
manufacturers. The theory held that Glasser’s scheme was
viable because the union had a small enforcement staff
incapable of catching more than a handful of contract
violations under any circumstances. Thus, the defendants
posited, Glasser “conned” the manufacturers into believing
-30a-
Gpinion of Lawrence W. Pierce, D.J. re: Motion for New
Trial, Dated June 12, 1974
that pay-offs were necessary to fend off the union, and
counted on the inability of the union to police the contract
to give his scheme the appearance of continuing credibility.
Glasser was motivated to lie about the payments to
union officials, defendants asserted, by his desire to avoid
federal prosecution and his bitterness over loss of his
pension benefits when he was terminated by the trade as-
sociation for whom he worked.
Apparently in pursuit of these lines of defense, just
prior to the opening of the trial, defendants subpoenaed
Glasser’s federal income ‘ax returns for the years 1967
through 1972. Glasser claimed all had been destroyed
except his 1972 return which he produced. It revealed
a large interest income, the bulk from the East New York
Savings Bank. During cross-examination on February
13, 1974, defense counsel, using the 1972 return, elicited
testimony from Glasser that his personal wealth totalled
some $120,000. On further questioning he said the money
was chiefly from his wife’s inheritance of many years ago.
On that same date, defendants subpoenaed the East New
York Savings Bank’s records of the Glassers’ account, and
moved orally for production of the remaining returns. The
Court requested an offer of proof.
On February 15, 1974, following a showing which
focused more on impeaching possibilities than on substan-
tive matters, this Court granted defendants’ demand for
production of the remaining original returns from the IRS
files. With the cooperation of the government and Glasser,
the order was expedited and the returns produced on Feb-
ruary 20, 1974. The East New York Savings Bank records
were produced at the latest on February 21, 1974, and re-
vealed that the Glassers had deposited $38,000 in savings
accounts there during the years 1967 through 1970, the
period of the pay-off scheme.
-3la-
~
2 =
en
Opinion of Lawrence W. Pierce, DJ. re: Motion for New
Trial, Dated June 12, 1974
Defendants commenced presentation of their case on
February 21, 1974. They rested on February 26, 1974, with-
out recalling Glasser, without a request for a continuance
and with little if any reference to Glasser’s bank accounts
or income tax returns. They did produce probate records
which suggested that Mrs. Glasser’s inheritance was not
anywhere near the size of the $120,000 nest-egg about which
Glasser had testified. On summation, defense counsel vig-
orously attacked Glasser’s credibility, using among other
items, the probate records and the revelations from the
1972 tax returns. He fully et forth the defense theory.
As noted above, after due deliberation the Jury convicted
on all counts submitted to it.
The New Lvidence
On April 22, 1974, having requested an adjournment
of sentence for post-trial preparation, defendants filed this
motion. It asserts that since March 7, 1974, when they
first received the actual deposit slips from the Kast New
York Savings Bank, the defendants have discovered that
during 1967 through 1970, the Glassers deposited some
$57,000 in a series of frequent cash transactions in three
separate New York banks: the previously noted $338,000
in the East New York Savings Bank; $12,500 in the Green-
wich Savings Bank; and $7,300 in the Emigrant Savings
“2 May 24, 1974, the government having requested an
adjournment of sentence in order to prepare a response,
filed extensive papers in opposition to the motion. The gov-
ernment’s affidavit states that the Assistant United States
Attorney responsible for the prosecution interviewed J ack
Glasser and his wife on May 3, 6, 13, and 14, 1974. During
the course of these interviews the Glassers revealed to the
government for the first time that they had received cash
-32a-
Opinion of Lawrence W. Pierce, D.J. re: Motion for New
Trial, Dated June 12, 1974
funds from a variety of sources during the period of time
in question. These sources included, according to Glasser,
his share of illegal payments to union officials far beyond
the scope of the scheme Glasser had previously described to
the government or to the jury.
Glasser stated that his share of these additional pay-
ments was around $7,000 for each of the years in question.
The rest of the $57,000 was explained by the sale of jewelry;
Christmas gifts from manufacturers; wholesale comnis-
sions; vacation gifts from manufacturers overtime commit-
tee payments; and miscellaneous commissions. Other errors
in trial testimony by both Glasser and his wife were attri
buted to failure to understand the questions put by counsel.
In addition to the affidavit just described, the govern-
ment has also filed an in camera submission consisting of
a government file memorandum on the discussions with
the Glassers. It differs, in the main, from the public
affidavit in its detail with respect to the additional illegal
pay-offs, setting forth names, dates and circumstances in-
volved in each, as related by Glasser. The government
has requested that such document be sealed and made a
part of the record in this case, asserting that disclosure at
this juncture would seriously comproimise future govern-
ment investigations. In the Court’s view this is a well-
founded request and the document has been sealed by
Order of the Court dated June 6, 1974. However, it is
appropriate at this time to disclose to defense counsel that
the sealed affidavit reveals that Glasser now says he origin-
ally told the government only of payments from manufac-
turers to union officials which he had reason to believe the
government already knew about; and that at the recent
interviews, he and his wife initially told the government
that the cash deposits could be explained, in total, by
jewelry sales. These additional facts as they bear on
Glasser’s credibility have been taken into account here.
-33a-
Opinion of Lawrence W. Pierce, D.J. re: Motion for New
Trial, Dated June 12, 1974
Thus, since trial, the following evidence has been de-
veloped :
1. Glasser made a series of cash deposits totalling more
than $57,000 during the period of the pay-off scheme. This
directly contradicts his tria] testimony that most of his
$120,000 fortune came from his wife’s inheritance some
years ago.
2. Glasser has explained the source of the $57,000, by
stating that at least $20,000 of its represents his share of
even more pay-offs during the critical period. This directly
contradicts his trial testimony that the scheme totalled
$16,000 and his share totalled $5,000, and that he never
banked any of it. But in the process it further implicates
the defendants in the scheme for which they have been
convicted.
The government does not contest the veracity of the
defendants’ documentary evidence, and concedes that
Glasser’s testimony about these matters was false in many
spects.
: ‘The Court concludes that a government witness has
engaged in an effort to conceal information, and has given
false, or deliberately misleading testimony with respect to
rce of his savin
1s Bat, new evidence ae that a witness has testified
falsely as to some matters, standing alone, is not enough
to mandate a new trial. Before this Court can proceed
to the merits, the defendants must show that “the material
asserted to be newly discovered is in fact such and could
not with due diligence have been discovered [by them]
before or, at the latest, at trial.” United States v. Costello,
255 F.2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 93%
(1958). Then, the ultimate result depends upon analysis
-34a-
Opinion of Lawrence W. Pierce, D.J. re: Motion for New
Trial, Dated June 12, 1974
of the new evidence and the false testimony, and the ma-
teriality of both. The standard of materiality required, in
turn, depends upon the degree to. which the government
can be said to have been involved in the suppression, if
- any, of the evidence or responsible for the false testimony.
Due Diligence of Defendants
In retrospect, it would appear that the key to the “new”
facts was in defense counsel’s hands from the moment
Glasser was cross-examined about his 1972 tax return
early in the trial, or at the latest when counsel finally viewed
the transcript of the East New York Savings Bank ac-
counts on February 21, 1974, and saw that $38,000 (almost
a third of what Glasser had earlier told him represented
the total Glasser fortune) had been deposited in frequent
transactions from 1967 through 1970. While at that time
counsel did not know that the deposits were cash, it was
still strong evidence that Glasser was not telling the truth
with respect to the inheritance. But, this Court is not
prepared to say that trial counsel in a complex, demanding
case is bound to turn every key at precisely the right mo-
ment in order to meet the requirements for a new trial mo-
‘ tion. Cf. United States v. Keogh, 391 F.2d 138, 147 (2d
Cir. 1968). Nor does this Court believe that counsel’s in-
advertence was deliberate trial strategy as the government
suggests. It is conceivable, of course, that counsel veered
away from further direct inquiry with respect to Glasser’s
wealth, fearful of eliciting before the jury the damaging ex-
planation which Glasser has now given. But, if that were
the case, the probate records which counsel did introduce
on the same issue presented somewhat the same risk.
In any event, the issue of due diligence is close enough,
and the matter of Glasser’s performance serious enough,
that a resolution on the merits appears to be appropriate
and necessary.
-35a-
Opinion of Lawrence W. Pierce, DJ. ve: Motion for New
Trial, Dated June 12, 1974
The Government's Duty
There are a multitude of standards current in the law
for testing the merits of a new trial motion. They range
from the very liberal, where a defendant need show only
that with the new evidence, or without the falsehoods, the
jury in the case already tried “might not have convicted” ;*
to the very strict, where the defendant must show that
with the new evidence, or without the falsehoods, a jury
on a retrial would “probably reach a different verdict.’”
In large part, the standard to be applied depends upon
whether the defendant can show that the government 1s
somehow responsible for false testimony, or that it negli-
gently failed to disclose evidence, or that it deliberately sup-
pressed evidence.’
The defendants here do not contend that the govern-
ment instigated Glasser’s false testimony, or that the gov-
ernment knew Glasser’s testimony to be false. They do
not argue that the government possessed the cash deposit
slips and deliberately, or negligently suppressed them. In-
stead, they assert that the government possessed Glasser’s
federal tax returns, and that under the circumstances the
prosecutor should have recognized their high value to the
defense and turned them over to the defendants pursuant
to the principles of Brady v. Maryland, 373 U.S. 83 (1963).
More generally, characterizing the state of Glasser’s
finances as a central issue in the case, defendants urge that
the government had an obligation to conduct a pre-trial .
investigation of Glasser’s veracity with respect to these
matters irrespective of what it possessed or did not pos
sess. For the latter proposition, the defendants invoke
Brady but cite only People v. Maynard (Sup. Ct. N.Y. Cty.),
N.Y.L.J., Vol. 171, No. 64, p. 18, col. 7, April 3, 1974.
That Glasser’s financial position and thus his underly-
ing records could be seen as relevant to this case is not a
wholly frivolous proposition. The state of a key witness’
finances was said to be something “the prosecutors properly
required ...to be investigated” in United States v. Keogh,
-36a-
Opinion of Lawrence W. Pierce, D.J. re: Motion for New
Trial, Dated June 12, 1974
supra, 391 F.2d at 142, in a case involving precisely the
same theory of defense as defendants have asserted here.
But neither this dictum in Keogh, or Brady, or any other
authoritative case cited by defendants requires such an
investigation. The requirement is that the prosecution
must disclose exculpatory information in its possession. It
is from possession, however buried, forgotten or overlooked,
that the prosecution’s obligation arises.
The defendants say that the “government” possessed
Glasser’s tax returns. They offer no support for that as-
sertion, aud it would appear that what they mean is that
the “government at large” possessed the returns on file
with the Internal Revenue Service. Given the strong
public policy with respect to secrecy of federal income tax
returns, this Court declines to hold that the tax returns
are in the constructive possession of the prosecutor merely
because they are on file with the IRS.
Furthermore, even if the government had possessed Glas-
ser’s tax returns, it is not at all certain that the value to
the defendants of these documents would have flagged the
prosecutor’s attention sufficiently to require him to turn
them over. Of course, it is easy now to point out that he
would have seen the size of Glasser’s interest income, and
surmised the size of Glasser’s small fortune. In hindsight,
mainly because Glasser lied about the source of the savings
on the stand, this information is perceived as of some
value to the defendants. But, its practical materiality is
still highly questionable and in this Court’s view it is not
of such a nature as to have mandated pretrial disclosure.
The Court is not persuaded by the government’s argument
that it would violate public policy to provide such in-
formation to the defendants, under any circumstances. If
the returns had been possessed, and if the portion with
respect to savings interest had alerted the prosecutor, the
returns themselves need not have been turned over in order
-37a-
Opinion of Lawrence W. Pierce, D.J. re: Motion for New
Trial, Dated June 12, 1974
to have provided the information. Further, it shouid be
noted that tax returns are not entirely sacrosanct, once a
proper showing has been made to a Court, as demonstrated
by this Court’s order to produce them during trial. In
that light, it is perhaps noteworthy that defendants’ trial
demand contained the first showing in this proceeding
of the importance of this issue to the defense. Their pro
forma discovery motion for Glasser’s “bank statements,
bank books, diaries, notes, memoranda, and other relevant
documents .. .” (Defs’ Motion for Discovery, [8 July 18,
1973) did not include tax returns, and was denied by the
Court as entirely unsupported.
; The Standard
Having found no prosecutorial misconduct, this Court is
of the view that the applicable test is the formulation set
forth in United States v. DeSapio, 485 F.2d 272, 286 (2d
Cir. 1970), cert. denied, 402 U.S. 999 (1971), and reiterated
in a line of cases, including United States v. DeSapio, 456
F.2d 644, 647 (2d Cir.), cert. denied, 406 U.S. 933 (1972):
Is the evidence of such a nature that it would “probably
produce a different verdict in the event of a retrial.”
But, the government has suggested a test more liberal
to the defendants, as set forth in United States v. Marquez,
363 F. Supp. 802, 806 (S.D.N.Y. 1973), aff'd without
opinion, 489 F.2d 753 (2d Cir. 1974), to wit: Would the
new evidence, or the lack of the perjured testimony “have
produced a different verdict [at the completed trial].” ‘
Inasmuch as the result is the same under either test, the
Court will apply both.
Discussion
The new evidence produced by the defendants demon-
strates that Glasser lied about the source of his savings,
-38a-
Opinion of Lawrence W. Pierce, D.J. re: Motion for New
Trial, Dated June 12, 1974
and it affirmatively shows that a portion of those savings
has been recently deposited in cash.
The defendants do not seriously argue that it is this
false testimony, or that it is the failure to state this “truth”
’ about the cash deposits, which convicted the defendants.
Standing alone, these matters are collateral to the elements
of the offenses charged aguinst these defendants. Insiead,
they seek to elevate the collateral to a level of materiality
by asserting that “the source of these cash deposits could
be explained only by concluding that Glasser perjured him-
self when he testified that he gave any of the monies to one
or more of the defendants.” Thus, they contend that the
new evidence establishes that Glaser lied about what is,
without doubt, the most material portion of his testimony.
The new evidence establishes no such proposition. It does
not ‘irectly address Glasser’x testimony with respect to
payments to the defendants, nor does it lead inevitably
to the conclusion that Glasser lied about the pay-offs to the
defendants. It is far too wide a leap in reason to assei:
that just because Glasser accumulated $57,000 in cash dur-
ing the critical time period that, a fortiori, a jury hearing
these facts could only conclude that he kept the whole of
the mere $11,000 he said he gave the defendants. On the
contrary, the figures alone are so incongruous as to lead to
no conclusion at all.
The defendants themselves, in other portions of their
papers, state the wholely sensible premise that this new
evidence “would indicate to a jury that there were much
larger payments and/or payments from many additional
sources.” Even without Glasser’s subsequent explanation,
these two inferences of other or larger payments, or both,
could have occurred to the jury, and would not have neces-
sarily or “probably” produced a different verdict. Applying
the stricter test of probable effect at a new trial, it is likely
as the matter has evolved to the present, complete with
-39a-
Opinion of Lawrence W. Pierce, D.J. re: Motion for New
Trial, Dated June 12, 1974
Glasser’s explanation inculpating the defendants, that no
defense counsel would actually attempt to use the evidence
of the cash deposits as substantive support for the de-
fendants’ theory. The risk inherent in exposing the jury
to Glasser’s damaging explanation would be great.
The defendants also suggest that this evidence can be
viewed av capable of destroying the credibility of Glasser
solely because it shows him to have lied about the source
of his funds. Under the strict test, it is still doubtful that
it would produce a different verdict on a retrial. Glasser
would not obligingly repeat his earlier false testimony just
to provide defense counsel with the opportunity to impeach
him with this new evidence. The government could not per-
mit it in any event. It is possible, of course, that counsel
could attempt to exploit this entire episode so as to seri-
ously damage Glasser’s credibility, but, again, it is difficult
to imagine how it might be done without raising the spectre
of a far wider, broader scheme involving these defendants.
Under all of the circumstances, the strongest argument
the defendants advance is the probable impeaching effect of
the new evidence, if it had been produced at precisely the
right moment at the trial just concluded. That “right”
moment could only have been after Glasser had testified
falsely on the subject. Then, the question is, would proof
that he had lied about his savings have dealt a blow to his
credibility so serious as to have probably led the jury to
totally discard his testimony with respect to payments to
the union officials?
Assessment of a jury’s view of credibility is speculative
at best. Lut several factors lead this Court to conclude
that this evidence would not have destroyed Glasser to the
extent that the verdict of the jury would have been dif-
ferent. As it was, the jury had evidence from the probate
records which established that the inheritance story was
not true. And although that evidence did not supply the
-40a-
Opinion of Lawrence W. Pierce, D.J. re: Motion for New
Trial, Dated June 12, 1974
jury with an explanation of where the money did come
from, it must have demonstrated that Glasser had not told
the truth about the source of the $120,000. There is no
doubt that evidence of the recent cash deposits would have
had a dramatic impact. Lut, in this Court’s view, it would
not have changed the quantum of the impeaching effect.
In addition, the jury had totally independent evidence
to support Glasser’s story which would have remained un-
sullied. Two manufacturers had testified as to direct pay-
ments made to some of these defendants. One mannfac-
turer had testified that he gave money to Glasser with the
understanding that it was going to union officials. A non-
defendant ex-union official had testified that he accepted
money from Glasser under similar circumstances. Also
the jury heard evidence of the small and tightly cireem-
scribed fur industry from which they might well have
reasoned that the story Glasser told made sense, however
untruthful he had been about the source of his fortune.
Further, the jury could have reasoned from the same in-
dustry evidence that the basic flaw in the defense theory
was that if Glasser knew the union lacked the manpower
to enforce the contract, then all of the manufacturers must
have also known. Put another way, it was reasonable for
the jury to conclude that the manufacturers would not
have continued to pay Glasser during a period of at least
three years, unless they knew that it was necessary to pay-
off union officials in order to circumvent the contract, and
they were convinced that he was, in fact, so doing with their
money.
Given all of these factors, this Court cannot conclude
that if the jury in the trial just completed had known
of this new evidence of cash deposits, or the fact that Glas-
ser lied about the source of his savings, it would probably
have reached a different verdict, an acquittal; or that this
-4la-
Opinion of Lawrence W. Pierce, DJ. re: Motion for New
Trial, Dated June 12, 1974
new evidence would probably produce an acquittal on re-
trial.
The, motion for a new trial is hereby denied. The de
fendants’ accompanying motion for a judgment of acquittal
pursuant to Fed.R.Crim.P. 29(c), is hereby denied.
So ORDERED.
Dated: New York, New York
June 12, 1974
LAWRENCE W. PIERCE
U.8.DA.
FOOTNOTES
1. This liberal test is a modification of the classic test
set forth in Larrison vy. United States, 24 F.2d 82, 87
(7th Cir. 1928), which involves a post-trial revela-
tion that a conviction was based on false testimony.
See United States v. Polisi, 416 F.2d 573, 577 (2d
Cir, 1969). This test has apparently been limited te
cases involving prosecutorial misconduct in this Cir-
cuit. United States vy. DeSapio, 435 F.2d 272, 286 n.
14 (2d Cir. 1970), cert. denied, 402 U.8. 999 (1971).
It is also a variation of the applicable test for negli-
gent nondisclosure of evidence which was in the gov-
ernment’s possession, as set forth in United States
v. Houle. 490 F.2d 167, 170 (2d Cir. 1973), which
requires an assessment of “... whether... there was
a significant chance that this added item, developed
by skilled counsel . . . could have induced a reason-
able doubt in the minds of enough jurors to avoid
a conviction.”
-42a-
Opinion of Lawrence W. Pierce, D.J. re: Motion for New
Trial, Dated June 12, 1974
2. The strict standard is reserved for motions which
can be viewed simply as based on newly discovered
evidence and free from prosecutorial misconduct.
See, e.g., United Statex vy. DeSapio, supra; United
States v. DeSapio, 456 F.2d 644, 647 (2d Cir.),
cert, denied, 406 U.S. 983 (1972).
Where the reliability of a given witness might well
be determinative of guilt or innocence, and where
the government had in its possession informaticvn
which demonstrated that the witness had not told
the truth on the stand, and did not turn it over to
defendant pursuant to Brady v. Maryland, 373 U.S.
83 (1963), the Supreme (‘ourt has said that “[a] new
trial is required if ‘the fulse testimony could... .
in any reasonable likelihood have affected the judg-
ment of the jury... .’” (ylio v. United States, 405
U.S. 150, 154 (1972), citing, Napue v. Illinois, 360
U.S. 264, 271 (1959). Or put another way, as it
has been by the Second Circuit in United States vy.
Mele. 462 F.2d 918, 924 (2d Cir. 1972), the standard
under Giglio is “whether the evidence is materia) and
could in any reasonable likelihood have led to a dif-
ferent result on retrial.”
. Actually, the government has suggested that “. . .
the defendant must establish that the testimony was
of such a character that it probably would have pro-
duced a different conclusion” (emphasis added).
Gov’n Memo in Opposition to Motion for a New Trial,
p. 14. Presumably, the gevernment means a “dif-
ferent conclusion” at the trial just completed.
Although the present state of law is not a model
of clarity, the government’s proposal strikes this
-43a-~-
Opinion of Luiwcrence W. Picrce, D.J. re: Motion for New
Trial, Dated June 12, 1974
Court as more liberal than required, for two reasons.
First, the oft-cited footnote in United States vy. De-
Sapio, 435 F.2d at 286 n. 14, seems to indicate that
unless there has been prosecutorial misconduct
shown, the analysis need not look to the probable
effect of the new evidence had it been available in the
past trial, but only to whether it would probably
affect the result at a new trial. This is important
in this case because Glasser’s present explanation
renders the new evidence worthless, as a practical
matter, at any retrial. The new evidence could have
been used with maximum impact only at the past
trial.
Second, the government has said that the new
evidence need lead only to a different “conclusion”
not a “different verdict.” Both DeSapio and Mar-
quez require only the latter. In a close case, the dif-
ference between “conclusion” or “result” and “ver-
dict” is critical. For instance, in this case it is ex-
tremely doubtful that the new evidence would preci-
pitate a “different verdict,” that is, an acquittal, in a
retrial or the trial just past. But, it is quite possible
that it might have swayed at least one juror in the
past trial, and thus resulted in a mistrial. That
would have been a “different conclusion” as this
Court interprets the word.
-44a-
APPENDIX D
UNITED STATES OF AMERICA, 3
avo :
GEORGE STOFSKY, et al., ; (73 &. 614
Defendants. =:
OO Oe ee on Oe we me wee eee ewe ee x
LAWRENCE W. PIERCE, D.J.
MEMORANDUM OPINION
Following jury verdicts of guilty on
- February 28, 1974 of various counts in an
indictment the defendants herein moved on
April 22, 1974 for a new trial based on new-
ly-discovered evidence concerning the per-
sonal finances of the government's chief wit-
ness, Jack Glasser. More precisely, it was
alleged that it had been discovered that
during the years 1967 through 1970 Glasser
and his wife had deposited over $57,000 in a
series of frequent cash transactions in
three separate New York banks. The defendants
argued that this evidence demonstrated that
Jack Glasser had committed perjury during the
trial. Moreover, this was said to bolster
the defense theory that while it appeared
that Glasser had indeed accepted payments
from various manufacturers no portion of
these payments had in fact been turned over
to the defendants. Rejecting the suggestion
-45a-
cutorial misconduct, this Court .
aie aes the new evidence--the key to which
was in defense counsel's hands during the
trial--was insufficient to support the con-
clusion that a new trial had to be granted.
Based on additional information, also
concerning the Glassers' finances, the de-
fendants have again moved for a new trial.
It appears that the Glassers' deposits in
various checking and savings accounts ex-
ceeded the amounts previously disclosed
during the first motion for a new trial. The
defendants also urge that a finding of prose-
cutorial misconduct be made since it appears
that at least portions of this additional
information were in the government 5 posses-
sion while the first new trial motion was
being considered and that, on these grounds,
a new trial be granted.
The Charge of Governmental Suppression
There is no question but that while
the first new trial motion was Sub Judice
vernment had in its possessio
pa Ba which arguably was pertinent to the
disposition of that motion. Indeed the
government has acknowledged that at least
some of these records had some "conceivable
. « Significance." Affidavit in Opposition,
94 at 3. Nevertheless, the government uni-
laterally decided not to make a “piecemeal
disclosure of any of this material. While
there has been no shewing that the course
adopted here was not taken in good faith--in
fact, the opposite appears to be the case--the
-46a-
Court thinks that such a course clearly was
highly inappropriate and that the failure to
disclose the records--no matter how in-
complete--constituted an error in judgment.
See United States v. Rosner, Slip Op.
Docket No. 74-2290 at 3269 (2d Cir. April
29, 1975). However, this Court does not
agree with the position pressed by the de-
fendants that the government's deliberate
' decision not to disclose the incomplete
records discovered after the end of the
trial ipso facto warrants the application of
a standard different from that used in rul-
ing on the first motion for a new trial. The
issue, rather, is whether there was an pre-
judice to the defendants. United States v.
Rosner,supra., As the lower Court stated in
Rosner: "Where post-trial suppression is
alleged . . . the court's proper inquiry is
into the effect of the disclosures on any
new trial motion that has been made." United
States v. Rosner, 72 Cr. 782, Slip Op. at 23
(S.D.N.Y. Aug. 15, 1974).
Here the defendants have totally
failed even to allege any prejudice. The
government sua sponte revealed all the in-
formation it had to the defendants and agreed
to have the appellate process stayed pending
the renewal of the new trial motion before
this Court. The defendants have now had an
opportunity to fully air all their conten-
tions based on all the evidence available.
In short, the Court finds that the govern-
ment's failure to disclose the mterial in
question, while regrettable, did not pre-
judice the defendants and accordingly this
-47a-
aspect of the motion is denied.
The New Evidence
As noted, the new evidence concerns
the Glassers' personal finances. Whereas
it appeared at the first new trial mot ion
that the Glassers had made cash deposits
from 1967-1970 amounting to nearly $58,000
now it appears that the deposits made,
whether in cash or checks, totalled--as the
government concedes--over $157,000 during
the periods from January l, 1962 through
December 31, 1973. It is clear that
Glasser's testimony at trial concerning the
source of his wealth, that is, that it was
derived in the main from an inheritance left
to his wife, was untruthful. As the Court
concluded in its first opinion Glasser “has —
engaged in an effort to conceal information,
and has given false, or deliberately mis lead-
ing testimony with respect to the source of
his savings." United States v. Stofsky, Slip
Op. at 11-12. The material submitted to this
Court on this new trial motion strongly re-
affirms this conclusion but adds nothing sub-
stantively different to what was presented in
the first motion for a new trial. In short,
it is more of the same. Whether Glasser had
secreted $58,000 or $157,000 dollars in his
checking and savings accounts as such wou ld
in this Court's view have little significance
at a new trial. Glasser's testimony concern-
ing the source of his savings was directly
impeached during the trial of these defendants
-48a-
and additional evidence on this point “would
not have changed the quantum of the impeach-
ing effect." Stofsky, supra at 22.
The Court is not unmindful of
the
defense theory that Glasser retained all the
payments from the manufacturers and the
further allegation that the amounts of the
_ deposits demonstrate this fact. However, as
the Court pointed out before in denying the
} eee motion for a new trial, the size of the
eposits do not at all necessarily establish
that Glasser kept all *he payments. A more
reasonable and more damaging explanation
would be that the extent of the scheme in-
volving the defendants was far more wide-
spread than previously known. Moreover, the
defense theory was fully presented during the
trial and apparently rejected by the jury.
The motion for a new trial is h
ereb
denied for the reasons stated herein and ro
this Court's Opinion dated June 12, 1974._2/
SO ORDERED,
Dated: New York, New York
June 4, 1975
LAWRENCE W. PIERCE
U.S.D.J.
-49a-
$ ¥ FAs ’ | as
Nos. 75-1541 and 75-1554
AO ee ee ee ty
In the Supreme Court of the Huited States
OctToper TERM, 1976
”
CHARLES Horr AND CLIFFORD LAGEOLES, PETITIONERS
;
v.
AUNiTED STATES OF AMERICA
GEORGE STOFSKY. AND AL GOLD, PETITIONERS
py es
UNITED STATES OF AMERICA
ON PETITIONS FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT -
BRIEF FOR THE UNITED STATES IN OPPOSITION
Rosert H, Bork,
Solicitor General,
RICHARD L. THORNBURGH,
Assistant Attorney General,
Jerome M. Fer,
HOWARD WBINTRAUB,
Attorneys,
Department of Justice,
Washington, D.C. 20530.
INDEX
Page
CI GU ceccccctventccciesencsnmenscccsedasiccnnsetcanbennnenmasents l
pS SaaS kaon eee a eee ee ae
SE IIE eccetictiibciscnrnrrcnnisnensssscenccennptcieceneminnasion 2
TAS BED Lt EO AS LY AEA SOR OT OPE RAS 2
FIER ceccancrcntacstcnssctncentinscianneteietinteineensisvintnoviaienneawees 8
EI Tena Re a oe LO eT Ee 17
CITATIONS
Cases:
Blumenthal v. United States, 332 U.S. 539 ........... 16
Brady v. Maryland, 373 U.S. 83 ..........ccccseeeeeees 13-14
Koolish v. United States, 340 F. 2d 513,
certiorari denied, 381 U.S. 951 .....................0008 16
Kotteakos v. United States,
SR I eA el alla etal atatatatiienaiialitamiatned 17
Kyle v. United States, 297 F. 2d 507,
certiorari denied, 377 U.S. 909 .0..................eeee 12
Larrison v. United States, 24 F. 2d 82 ........ 9, 12, 13
Mesarosh v. United States, 352 U.S. 1 .................. 13
Shotwell Mfg. Co. v. United States, 371 U.S.
| Ree ones Ee Me ET me ee 12
United States v. Agurs, No. 75-491, decided
FE Fis TIT ocsininncteietininaiaiadiaiatdiiniacndidniiiied i aiidaatans 14
United States v. Anderson, 509 F. 2d 312,
certiorari denied, 420 U.S. 9911 ..................ccecceeee 9
United States v. Cirillo, 499 F. 2d 872, certiorari
Se es ED cininnditiiccdbicciiisetriaieninatinnaeal 16
il
Page
Cases (continued):
United States v. Costello, 255 F. 2d 876,
certiorari denied, 357 U.S. 937 .......... cc. cc cece eee eee 9
United States v. DeSapio, 435 F. 2d 272,
certiorari denied, 402 U.S. 999 oo... 13
United States v. Deutsch, 475 F. 2d 55 .............0... 14
United States v. Marquez, 490 F. 2d 1383,
certiorari denied, 419 U.S. 826 ............00........eee 13
United States v. Myers, 484 F. 2d 113 ................... 9
United States v. Perez, 489 F. 2d 51, certiorari
Games, GET UWE, GE sccctececcateeeeeee 16
United States v. Rosner, 516 F. 2d 269, certi-
orari denied, No. 75-492, June 30, 1976 ............ 13
United States v. Schwartzbaum, 527 F. 2d 249,
certiorari denied, No. 75-819, March 1,
TITER csecsnnoscocdenmeniiinadaiibaiiasasiaieenseaananess ne 13
United States v. Strauss, 443 F. 2d 986,
certiorari denied, 404 U.S. 851 ........................... 9
United States v. Zane, 507 F. 2d 346, certiorari
si i Se 13
Statutes and rule:
aD Gites 2b cccedscsinnnssimteetnetmanaamaneaaa Sn 2
TO GBs DOU cicntcnsnscsntsvtcpiiiicieianiieiiieeee 2
BED WE, GEREP ocemiecccecsescsenisscsstansbiasieasianeesaeee 3
OD UO. FERED « cccisconsiinibnudicniichiiaanenieanaaaa 3
gt Sl EEN OR 3
BB UB. GREED nccnscoscsosdicosasccssovesssistinsonnqpiiiinamntii 3
iil
26 U.S.C. T7201 .....cesseeerercecscccccesseeeees
29 U.S.C. 186(D) .........:eeeeeeeeeesensernceneems —
Rule 33, Fed. R. Crim. P. ............
In the Supseme Court of the Hnited States
OCTOBER TERM, 1976
No. 75-1541
CHARLES HOFF AND CLIFFORD LAGEOLES, PETITIONERS
Vv.
UNITED STATES OF AMERICA
No. 75-1554
GEORGE STOFSKY AND AL GOLD, PETITIONERS
Vv.
UNITED STATES OF AMERICA
ON PETITIONS FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. la-
23a)' is reported at 527 F. 2d 237. The opinions of the
district court (Pet. App. 27a-50a), denying petitioners’
motion for a new trial, are unreported.
Pet. App.” refers to the appendix to the petition for a writ of
certiorari in No. 75-1541.
(1)
2
JURISDICTION
The judgment of the court of appeals was entered on
November 7, 1975, and a petition for rehearing and sug-
gestion of rehearing en banc was denied on February 26,
1976. On March 18, 1976, Mr. Justice Marshall ex-
tended the time for filing the petitions for a writ of
certiorari to and including April 26, 1976. The petition in
No. 75-1541 was filed on April 23, 1976, and the peti-
tion in No. 75-1554 was filed on April 26, 1976. The
jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
QUESTIONS PRESENTED
1. Whether the district court abused its discretion by
denying petitioners’ motion for a new trial based on
allegedly newly discovered evidence.
2. Whether the government deprived petitioners of a
fair trial by failing to produce copies of a witness’ federal
income tax return before trial, where there had been no
pretrial request for the document and petitioners received
the document during trial.
3. Whether the evidence that petitioners were mem-
bers of a single conspiracy was sufficient to support
their convictions.
STATEMENT
After a jury trial in the United States Draggict Court for
the Southern District of New York, petitioners (u-:icials
of a furriers union) were convicted of conspiracy to de-
mand and accept payments of money from union em-
ployers and to conduct the union’s affairs through a pat-
tern of racketeering activity, in violation of 18 U.S.C.
371, and on several counts of accepting payments of
money from specified union employers, in violation of
29 U.S.C. 186(b) and 18 U.S.C. 2. In addition, petitioners
Stofsky and Gold were convicted of conducting the affairs
mamma a i a i i a a ea
3
of the union through a pattern of racketeering activity,
in violation of 18 U.S.C. 1961(1)(B) and (C) and 1962(c),
and of corruptly endeavoring to influence a witness before
a federal grand jury, in violation of 18 U.S.C. 1503, and
petitioners Stofsky, Hoff, and Gold were convicted on sev-
eral counts of attempting to evade federal income taxes,
in violation of 26 U.S.C. 7201. Each petitioner was sen-
tenced to imprisonment and fine.? The court of appeals
affirmed (527 F. 2d 237; Pet. App. la-23a).
1. The evidence at trial is set forth in detail in the
opinion of the court of appeals (Pet. App. la-9a). In
brief, it showed that petitioners, who were officers and
employees of the Furriers Joint Council of New York, a
labor union representing fur workers in the New York
area, corrupted the conduct of that union’s affairs for
personal gain from 1967 to 1971. During that period of
time, petitioners received and conspired to receive cash
payoffs from certain fur manuiacturers in return for per-
mitting those manufacturers to violate provisions of the
collective bargaining agreement prohibiting subcontract-
ing to non-union shops and restricting overtime work.
To establish petitioners’ roles in this scheme, the gov-
ernment relied primarily on the testimony of Jack Glasser,
a labor adjustor employed by the fur manufacturers’
Petitioner Stofsky was sentenced to three years’ imprisonment and
a $13,000 fine; petitioner Hoff was sentenced to three years’
imprisonment and a $12,000 fine; petitioner Gold was sentenced to
two years’ imprisonment and a $10,000 fine; and petitioner Lageoles
was sentenced to two years’ imprisonment, with execution of sentence
suspended, placed on probation for two years, and fined $2,000
(App. 780a-790a). On July 12, 1976, the district court reduced peti-
tioner Gold's sentence to seven months’ imprisonment and a $10,000
fine, and he has now been released from custody. “App.” refers to the
joint appendix in the court of appeals, a copy of which is being lodged
with the Clerk of this Court.
4
association.’ Because Glasser’s duties brought him in
virtual daily contact with many union officials as well
as with fur manufacturers within his district (Tr. 91-92),
he was in a unique position to serve as the conduit between
those manufacturers who sought to bribe union of-
ficials for permission to violate the collective bargaining
agrement and those well-placed union officials who
could provide the assurance that such violations would
go unnoticed or be tolerated.
Glasser testified that he had periodically received pay-
offs from different fur manufacturers from 1967 to 1971,
retaining a share for himself and delivering the rest to
one or more of the petitioners (Tr. 113-129, 135-136,
142-164, 180-208, 332-340, 965-966). Following the pay-
ment of these bribes, the manufacturers received prefer-
ential treatment from the union in its enforcement of
contract provisions (Tr. 157, 183, 191, 201, 211, 511,
585-586, 708-709, 906-907, 917-919, 1249-1252, 1635-1640).
While union agents who were unaware of the illegal
scheme would occasionally file complaints charging vio-
lations of the labor agreement, the complaints either were
suppressed by the petitioners or disposed of through the
levying of token fines (Pet. App. 6a).
Glasser’s testimony about this payoff scheme was sub-
stantially corroborated by the testimony of three fur manu-
facturers who had made payoffs either directly to peti-
tioners or through intermediaries (Tr. 497-511, 568-585,
670-671, 685-692, 697-702, 709-717, 720-723, 904-911),
by a former union business agent who had accepted
payoffs in exchange for overlooking breaches of the
agreement’s provision against non-union sub-contracting
(Tr. 983-992), and by two attorneys who had been asked
by some of the petitioners to assist in furnishing legal
‘Glasser testified under a grant of transactional immunity.
5
advice to Glasser after the government’s investigation
into the payoffs had commenced (Tr. 221-226, 281-287,
552-560, 952, 958-960).
2. Petitioners did not seriously dispute that Glasser
had received payoffs from certain manufacturers. Rather,
they contended that any payments received by Glasser
were retained by him and were never shared with them.
On the first day of trial, petitioners obtained by subpoena
Glasser’s 1972 federal income tax return, which declared
$6,151 in interest payments from deposits of roughly
$120,000 in several savings banks. When cross-examined
as to the source of the $120,000, Glasser testified that
most of that money had been inherited by his wife and
had been deposited in savings accounts some 20 years
earlier (Tr. 415, 420-422, 970). Glasser further testified
that fiom 1967 to 1969 he had received approximately
$15,000 to $16,000 in illegal payoffs from the union manu-
facturers, some $5,000 of which he had retained (Tr.
423). These explanations were corroborated by the
testimony of Glasser’s wife (Tr. 468-475).
Five or six days before the close of their case (App.
701a, 769a), petitioners received a transcript of the
Glasser accounts at the East New York Savings Bank,
which showed that the Glassers had deposited more than
$38,000 in the savings account during the years 1967-
1970. Although this transcript would have impeached the
testimony of Glasser and his wife that an inheritance had
been the source of their savings and might have supported
petitioners’ allegation that Glasser had pocketed the entire
amount of any payoffs he had received from manufacturers,
petitioners chose not to offer it into evidence. Nor did
they use it in questioning Glasser about his tax returns or
request that Glasser be recalied for further cross-examina-
tion. Instead, petitioners introduced probate records of the
estates of Mrs. Glasser’s parents to establish that she had
6
only inherited approximately $2,800 upon the death of
her mother and father (Tr. 956, 967, 1767-1769). Peti-
tioners argued to the jury the clear contradiction between
the probate records and Glasser’s trial testimony (Tr.
1815-1816).
3. On April 22, 1974, several weeks after trial, peti-
tioners filed a motion for a new trial on the grounds of
newly discovered evidence. Petitioners claimed that
records of Glasser’s accounts in several banks showed
approximately $57,000 in cash deposits during 1967-1970
(including the $38,000 deposited in the East New York
Savings Bank) and that this evidence established that
Glasser had kept the entire amount of any monies re-
ceived from fur manufacturers during that period. Peti-
tioners alleged that Glasser therefore had perjured him-
self at trial when he testified that he had given part of
the payoffs to the petitioners, that most of the $120,000
in his savings accounts had come from his wife’s inherit-
ance, and that he had retained only $5,000 out of approxi-
mately $15,000 in bribes, which he had spent and not
banked (App. 703a).
In response to petitioners’ motion, the government sub-
mitted affidavits from officials of the banks in which
Glasser maintained savings accounts, stating that their
record of Glasser’s accounts would have been available to
petitioners on two to four days’ notice if petitioners had
served a trial subpoena for them (App. 752a-762a). In
addition, the government stated that it had reinterviewed
Glasser on severai occasions in May 1974 and thai
Glasser had reaffirmed the truthfulness of his trial testi-
mony that he had paid petitioners portions of the monies
extorted from various fur manufacturers. When ques-
tioned about the source of his savings deposits during
the years 1967-1970, however, Glasser informed the govern-
ment, for the first time, that he had received additional
7
illegal payoffs from manufacturers, other than those men-
tioned at trial, that he had kept a portion of these addi-
tional payoffs, and that he had passed on the remainder
of each payoff to one or more of the petitioners. Further-
more, Glasser and his wife admitted that their trial
testimony concerning Mrs. Glasser’s inheritance had been
false (App. 742a-749a).
’ On June 12, 1974, the district court denied petitioners’
motion for new trial. Although concluding that Glasser
“ha[d] engaged in an effort to conceal information,
and haf{d] given false or deliberately misleading testi-
mony with respect to the source of his savings” (Pet.
App. 34a), the court held that there had been no govern-
ment misconduct in the case (Pet. App. 38a) and that
it was unlikely that the jury would have reached a different
verdict if it had been aware of the new evidence (Pet.
App. 39a):
The new evidence * * * does not directly address
Glasser’s testimony with respect to payments to the
[petitioners], nor does it lead inevitably to the
conclusion that Glasser lied about the pay-offs to the
[petitioners]. It is far too wide a leap in reason to
assert that just because Glasser accumulated $57,000
in cash during the critical time period that, a fortiori,
a jury hearing these facts could only conclude that
he kept the whole of the mere $11,000 he said he
gave the [petitioners]. On the contrary, the figures
alone are so incongruous as tc lead to no conclusion
at all.
Furthermore, the trial court held that since Glasser’s
explanation of the source of the funds further implicated
petitioners in the payoff conspiracy, the “newly discov-
ered” bank records might not even be used at a second
trial (Pet. App. 40a, 44a). Finally, the court found that
there was substantial other evidence before the jury to
)
impeach Glasser’s inheritance story and that the new
evidence was therefore largely cumulative (Pet. App.
40a-4 la).
After the denial of petitioners’ motion for new trial,
the government renewed its investigation of the fur
manufacturing industry and of Glasser’s finances. The
investigation revealed discrepancies in Glasser’s post-
trial explanation of the source of his bank deposits and
also established that Glasser had received payoffs over
a longer period of time (1962-1973) than he had pre-
viously admitted (S. App. 52a, 67a-69a).4 By letter
dated September 3, 1974, the government informed peti-
tioners’ counsel of these inconsistencies and stated that
all of Glasser’s financial records obtained during the
investigation were available for their inspection.
Petitioners again moved for a new trial, asserting that
the new evidence cast further doubt on Glasser’s credi-
bility and that the government had deliberately suppressed
pertinent information received by it during the pendency
of the first new trial motion (S. App. 9-10, 14-17).
The district court denied petitioners’ motion, stating that
the additional evidence added “nothing substantively
different to what was presented in the first motion for
a new trial” and that it “would not have changed the
quantum of the impeaching effect” (Pet. App. 48a, 49a).
The court of appeals affirmed in a thorough opinion
on which we largely rely (Pet. App. la-23a).
ARGUMENT
1. Petitioners contend (Pet. No. 75-1541, pp. 13-22)
that the court of appeals erred in denying their motion for
a new trial based on the “newly discovered” evidence of
4S. App.” refers to the supplemental joint appendix in the court
of appeals, a copy of which is being lodged with the Clerk of
this Court.
— — ————————————
9
Glasser’s perjury. Specifically, petitioners allege that the
lower courts considered their motion under a standard that
differs from the test, first articulated in Larrison v.
United States, 24 F. 2d 82, 87 (C.A. 7), that has been
applied by other courts of appeals. These claims are
baseless. As the Second Circuit correctly noted (Pet.
App. I5Sa-18a and n. 10), any differences among the
circuits regarding the proper standard for judging a new
trial motion are formal rather than substantive, and under
neither test were petitioners entitled to relief.
a. It is fundamental that a defendant who seeks a new
trial under Rule 33, Fed. R. Crim. P., “must satisfy
the district court that the material asserted to be newly
discovered is in fact such and could not with due
diligence have been discovered before or, at the latest,
at the trial.” United States v. Costello, 255 F. 2d 876,
879 (C.A. 2), certiorari denied, 357 U.S. 937. See also
United States v. Anderson, 509 F. 2d 312, 327, n. 105
(C.A. D.C.), certiorari denied, 420 U.S. 991; United
States v. Meyers, 484 F. 2d 113, 116 (C.A. 3); United
States v. Strauss, 443 F. 2d 986, 989 (C.A. 1), certiorari
denied, 404 U.S. 851. Indeed, Larrison, on which peti-
tioners principally rely, also requires that “the party
seeking a new trial was taken by surprise when the false
testimony was given and was unable to meet it or did
not know of its falsity until after the trial” (24 F.
2d at 88).
Here, however, the transcript of Glasser’s East New
~ York Savings Bank account had been delivered to peti-
tioners six days before the close of trial. As noted above
(see p. 5, supra), this transcript—which showed large
deposits during the years 1967-1970—was strong evidence
that Glasser had lied about the source of his savings
and might have reinforced substantially petitioners’ argu-
ment that Glasser had retained the entire amount of any
payoffs he received. Nevertheless, petitioners made no
use of the transcript at trial.
10
Similarly, eight days before the trial concluded peti-
tioners received Glasser’s tax returns for the years
1967-1971, which indicated additiona! interest payments
from two other banks during the period covered by the
indictment, yet they made no attempt during trial to
obtain records of these accounts.’ Indeed, not until
April 10, 1974, more than one month after trial, did
petitioners subpoena the bank records that led to the
“newly discovered evidence” alleged in their motion.
In these circumstances, the district court correctly
concluded that “the key to the ‘new’ facts was in
defense counsel’s hands from the moment Glasser was
cross-examined about his 1972 tax return early in the
trial, or at the latest when counsel finally viewed the
transcript of the East New York Saving Bank accounts
on February 21, 1974, and saw that $38,000 (almost
a third of what Glasser had earlier told him represented
the total Glasser fortune) had been deposited in frequent
transactions from 1967 through 1970” (Pet. App. 35a).
As the court of appeals also noted (Pet. App. 13a-14a):
By recalling the witnesses to the stand, the defense
could have used the transcript to recall and cross-
examine the Glassers. If more time was needed
to obtain additional information from the banks in
question, the defense could at least have brought
this predicament to the trial judge’s attention and
requested a continuance in order to exploit further
this “strong evidence.”
The failure to obtain and exploit the impeaching
data until after the jury had rendered its verdict
offers strong support for the government’s contention
‘Officials of the banks subsequently stated that they could have
supplied the materials to petitioners within two to four business
days if they had been served with a trial subpoena. See p. 6,
supra.
that the defense did not exercise due diligence in
obtaining the newly-discovered impeaching evidence
in time for use at trial.
b. Even assuming petitioners exercised the required
diligence, their motion for new trial was properly
denied. It is important to re-emphasize that the precise
subject of Glasser’s false testimony was the source of
his substantial savings, not petitioners’ complicity in the
crimes alleged in the indictment. Although Glasser stated
at trial that his wealth was attributable to his wife’s
inheritance, his post-trial admission was that the money
represented his share of additional payoffs from fur
manufacturers—payoffs in which petitioners also shared.
At no time did Glasser ever recant his trial testimony
that petitioners conspired with him to extort and receive
bribes from union employers and that they did in fact
receive such bribes.
The record supports the conclusion of both lower courts
that this “newly discovered” evidence “would probably
[not] produce a different verdict” (Pet. App. 10a, 14a-16a,
4la-42a). First, as just noted, Glasser’s perjury was
collateral to the fundamental disputed issue at trial—
whether petitioners received the payoffs alleged in the
indictment. The court of appeals correctly observed (Pet.
App. 17a):
It is a non sequitur to suggest that the discovery
of Glasser’s receipt of larger sums of money from some
source establishes that he did not pass to [petitioners]
a share of what he concededly received from the
fur manufacturers. The key factual issue in dispute—
whether Glasser shared payments with the [peti-
titoners]—would not have been affected one way or
the other by this new evidence.
Unquestionably, the evidence of the previously undis-
closed payoffs would have severely shaken Glasser’s
12
testimony about his wife’s inheritance—testimony that had
been elicited only on cross-examination—but that story
already had been substantially discredited at trial by
petitioners’ introduction of the probate records per-
taining to Mrs. Glasser’s parents.
Moreover, while Glasser’s post-trial admissions of new
payoffs might have affected his general credibility,
petitioners could have introduced the new evidence for
its impeachment value only at a high cost to their
defense, since Glasser’s explanation implicated peti-
tioners even further in the payoff scheme. Indeed, both
the district court (Pet. App. 40a) and the court of
appeals (Pet. App. 18a) thought it doubtful that defense
counsel at a new trial “would find it beneficial to open
the door to this evidence of possible further union
corruption.”® Finally, as recounted in our statement of
facts and as expressly found by the courts below, there
was substantial independent evidence corroborating
Glasser’s account of the payoffs to petitioners. In view
of the favorable treatment received from the union by
those manufacturer> who made payments to Glasser,
the inference is inescapable that Glasser turned over
part of the bribes to the petitioners.
Reiing on Larrison v. United States, supra, 24 F. 2d
at 87, *titioners assert that the court of appeals should
have «tered a new trial if, without the perjury, “the
jury might have reached a different conclusion.” But,
“assuming * * * that ‘might’ means something more than
an outside chance,” Kyle v. United States, 297 F. 2d
507, 512 (C.A. 2), certiorari denied, 377 U.S. 909, we
*See also Shotwell Mfg. Co. v. United States, 371 U.S. 341,
357, where this Court refused to hold that “any subsequently
discovered inaccuracy in the testimony of an important trial
witness, which might have affected his credibility in the eyes of
the jury, would entitle a convicted defendant to a new trial.”
13
submit that a new trial would have been denied here
even if the Larrison rubric had been followed. In fact,
as the Second Circuit noted (Pet. App. 15a and n. 9),
any differences among the courts of appeals on this
issue may be largely semantic. In only one of the
decisions cited by petitioners as following Larrison
was a new trial granted because of newly discovered
evidence of perjury, and the circumstances of the perjury
in that case would have satisfied any defensible standard
under Rule 33.’ Under any formulation of the appropriate
test, therefore, petitioners’ motion for a new trial was
properly deried.*
2. Petitioners claim (Pet. No. 75-1541, pp. 22-25) that
the government violated its obligations under Brady v.
"This absence of conflict in result casts doubt on petitioners’
assertion of the importance of this question. Indeed, this Court
in past Terms has denied review of several Second Circuit decisions
raising or suggesting a conflict with Larrison. See, e.g., United
States v. Schwartzbaum, 527 F. 2d 249 (C.A. 2), certiorari denied,
No. 75-819, March 1, 1976; United States v. Rosner, 516 F. 2d
269 (C.A. 2), certiorari denied, No. 75-492, June 30, 1976; United
States v. Marquez, 490 F. 2d 1383 (C.A. 2), certiorari denied,
419 U.S. 826; United States v. DeSapio, 435 F. 2d 272 (CA.
2), certiorari denied, 402 U.S. 999.
*“Mesarosh v. United States, 352 U.S. 1, does not require a
different result. That case, whose facts are so unique that it has
been termed sui generis (United States v. Zane, S07 F. 2d 346,
348 (C.A. 2), certiorari denied, 421 U.S. 910) involved a key
witness in a Smith Act prosecution whose sworn accusations of
Communist affiliations against numerous people “raise{d] the infer-
ence that he was cithe. an inveterate perjurer or a disordered mind.”
United States v. Rosner, supra, 516 F. 2d at 279. By contrast,
Glasser’s challenged testimony raises no such inference and can be
explained, as the court of appeals stated (Pet. App. 18a), by his
desire merely to avoid tax liab’lity. Moreover, the perjury in
Mesarosh was crucial to the conviction; this Court expressly dis-
tinguished that situation from a motion for a new trial based.
on newly discovered evidence which bears on the credibility
of a prosecution witness but “which is ‘merely cumulative or
impeaching’ ” (352 U.S. at 9).
14
Maryland, 373 U.S. 83, by failing to investigate Glasser’s
tax returns before calling him as a witness, to realize the
“crucial importance” of those returns to the defense, and
to turn them over to petitioners before trial. Even assuming
that these returns, which were filed in I.R.S. archives prior
to trial, were in the government’s possession within the
meaning of Brady, petitioners’ contentions must fail
for a number of reasons. The rule announced in Brady
applies only to “information which had been known to
the prosecution but unknown to the defense.” United
States v. Agurs, No. 75-491, decided June 24, 1976,
slip op. 5. Not only did the government not investigate
Glasser’s tax returns prior to trial,'!° but petitioners
were as aware of the existence of those returns as
the prosecutors, yet they made no Brady request for them
(App. 795a, 802a). See United States v. Agurs, supra,
slip op. 9. Furthermore, and most significant, Glasser’s
1972 tax return was made available to petitioners on
the first day of trial, the remainder of the returns in
issue (for the years 1967-1971) were provided during
trial, and the returns were used by petitioners in their
cross-examination of Glasser (Pet. App. Ila-12a, n. 6).
In these circumstances, as petitioners’ failure to allege
United States v. Deutsch, 475 F. 2d £5 (C.A. 5), is inapposite.
Deutsch, which dealt with the attempted bribery of a post office
employee, held that the government could not defeat a specific
pretrial request for production of the personnel file of the bribed
postal worker by asserting that the file was in the possession of
the Postal Service rather than the prosecution.
The court of appeals correctly rejected petitioners’ contention
that the government acted in bad faith or was negligent in failing
to investigate Glasser’s finances more diligently before calling
him as a witness. “{T]he government, in February 1974,” noted the
court, “did not have reason to believe that Glasser, blessed with
transactional immunity, would have any incentive to engage in
falsehoods concerning his own monetary affairs” (Pet. App. Ila)
15
prejudice illustrates, petitioners’ claims of prosecutorial
misconduct are insubstantial.
3. Petitioners’ final assertion—that the evidence showed
multiple conspiracies rather than a single conspiracy (Pet.
No. 75-1541, pp. 25-28)— is also without merit. The test for
determining whether the evidence established a single con-
spiracy is “whether there is a common purpose underlying
the separate acts, whether the same objective is being
pursued in each instance, and whether there is concerted
action to achieve this end.” Koolish v. United States,
340 F. 2d 513, 524 (C.A. 8), certiorari denied, 381
U.S. 951. As the Court noted in Blumenthal v. United
States, 332 U.S. 539, 559, the crucial question is whether
the alleged conspirators had “knowledge of the plan’s
general scope, if not its exact limits, [and] sought a
common end.” See also United States v. Cirillo, 499
F. 2d 872, 887 (C.A. 2), certiorari denied, 419 U.S.
1056; United States v. Perez, 489 F. 2d 51, 61-62 (C.A.
5), certiorari denied, 417 U.S. 945.
_The court of appeals correctly concluded that, when
viewed in the light most favorable to the government, the
proof established beyond a reasonable doubt that peti-
tioners had entered into a single conspiracy with a
common objective—to accept illegal payoffs from fur
manufacturers in return for permitting those employers
to violate terms of the collective bargaining agreement
with the union (Pet. App. 20a-21a):
Each of the [petitioners] appreciated that the illegal
arrangements and payoffs to which he was a party
were part of this ongoing scheme involving others.
As responsible officials of the Union, [petitioners]
shared interrelated duties and worked closely together.
Their participation over a period of time in the corrupt
scheme was evidenced by numerous acts, including the
joint approval by Stofsky and Gold of Grossman's
16
[a fur manufacturer] violations of the Union agree-
ment, the involvement of Hoff in the same violations,
the association of each [petitioner] with payoffs made
by more than one fur manufacturer, Gold’s state-
ments to Grossman indicating knowledge of payoffs
by others, [and] the joint determination of Hoff
and Lageoles not to prosecute certain contracting
complaints or to conduct the examination of certain
fur manufacturers’ books * * * .
Furthermore, the existence of the single conspiracy was
evidenced by meetings in early 1972 at which petitioners
Stofsky, Gold and Hoff sought to persuade Glasser not
to reveal details of the payoff scheme to federal invest-
igators (Tr. 292-230, 263-289, 379-386).!'
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
ROBERT H. Bork,
Solicitor General.
RICHARD L. THORNBURGH,
Assistant Attorney General.
JEROME M. FEIT,
HOWARD WEINTRAUB,
Attorneys.
JuLy 1976.
''Kotteakos v. United States, 328 U.S. 750, upon which peti-
tioners principally rely, is distinguishable. In that case, which
involved 32 defendants, 19 of whom were brought to trial, the
government conceded that the evidence failed to prove the single
conspiracy alleged in the indictment and did not dispute that
eight or more different conspiracies had been proven. The trial
judge nevertheless refused to give a multiple conspiracy instruction.
DOJ-1976-07
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