# Petition — Hoff v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2290%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 429 U.S. 819 ## Text ~ 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2290%3A1. Public record. Not legal advice.