Petition — Silverman v. United States

| Supreme Court. U) S.

FILED

i

OCT 12 1977

+a RODAK, JR., CLERK

IN THE

Supreme Court of the United States

October Term 1977

% 97-546

MILTON SILVERMAN,

Petitioner,

v.

UNITED STATES OF AMERICA.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

Lioyp A. HALE

Counsel for Petitioner

109 Orchard Terrace

Piermont, New York 10968

October 11, 1977

TABLE OF CONTENTS

PAGE

Rn en re Pee 1

ND Haile or ue Ce ae a ee ects ceiebe 1

PO TUT TTT TE TTTT ETL T LTTE Te 2

Constitutional and Statutory Provisions Involved .. 2

rr ie re ve cee eh ees bane ke 3

Reasons for Granting the Writ ................... 10

1. The decision below approves the denial of access

to evidence of knowing prosecutorial use of per-

jured testimony contrary to the standards of

due process, the decisions of this Court and fol-

lowed By other Civewlts ......ccccccvcscccces 10

2. The decision below failed to observe the due

process standards requiring a grant of, or hear-

ing on, a 28 U.S.C. Section 2255 application

established by the decisions of this Court and

ee rc, dcccnacas deus sevens 14

"bi coal uo os aus chewed eke oes 1443 bee bne 17

Table of Cases

Alderman vy. United States, 394 U.S. 165 (1969) .... 13

Anderson v. United States, 443 F.2d 1226°(10th Cir.

ET dik ds Val aieedsbAUea Gelue cet hecssauats 15

Barry v. United States, 528 F.2d 1094 (7th Cir. 1976) 12

Brady v. Maryland, 373 U.S. at 87 ..........0. 0045. 11

Brown v. United States, 462 F.2d 681 (Sth Cir. 1972) 15

Crispo v. United States, 443 F.2d 13 (9th Cir. 1971) 15

Fontaine v. United States, 411 U.S. 213 (1973) ...... 15

Giglio v. United States, 405 U.S. 150 (1972) ........ 10, 15

(ireen v. United States, 446 F.2d 650 (6th Cir. 1971) 15

Halliday v. United States, 380 F.2d 270 (1st Cir. can

SET edie Chea G8 bos Che VERE Me d 606s baaeeeees 15, 16

Harris v. Nelson, 394 U.S. 286 (1969) .............. 12, 14

Machibroda v, United States, 368 U.S. 487 (1962) ... 15,

Mooney v. Holohan, 294 U.S. 103 (1935) ............ 10

Moorhead vy. United States, 456 F.2d 992 (3rd Cir.

SD chned Catia es edhe cab cleaves cebViddcrese 15

Napue v. Illinois, 360 U.S. 264 (1959) ............. 11

Otero v. Rivera, 494 F.2d 900 (1st Cir. 1974) ....... 15

Pyle v. Kansas, 317 U.S. 213 (1942) ............... 11

Raines v. United States, 423 F.2d 526 (4th Cir. 1970) 12, 14

Sanders v. United States, 373 U.S. 1 (1963) ........ 14

Shelton v. United States, 497 F.2d 156 (Sth Cir. 1974) 12, 13

Smith v. Yeager, 393 U.S. 122 (1968) ............. 15

NSpeiser v. Randall, 357 U.S. 513 (1958) ............ 12

Sullivan vy. Dickson, 283 F.2d 725 (9th Cir. 1960) ... 12

Townsend v. Sain, 372 U.S. 293 (1963) ............ 15

United States v. Agurs, 427 U.S. 97 (1976) ......... 11

United States v. Haywood, 464 F.2d 756 (D.C. Cir.

SD Dacedke as 5 is co. cukpaskbweds ounws beceeeevis 15

United States v. Johnson, 288 F.2d 40 (5th Cir. 1961) 15

United States v. Kessler, 364 F.Supp. 66 (S8.D.O.

SUED ceded ucdavkssacermihc henner svaeeadeess 15

United States v. Reynolds, 345 U.S. 1 (1953) ........ 10

United States v. Silverman, 430 F.2d 106 (2d Cir.

1970), cert. den. 402 U.S. 953, reh. den. 403 U.S.

924 (1971) ; 469 F.2d 1404 (2d Cir. 1972), cert. den.

411 U.S. 982 (1973) ; 556 F.2d 655 (2d Cir. 1977)

1, 3n., 9, 16

Wagner v. United States, 418 F.2d 618 (9th Cir. 1969) 12

Wingo v. Wedding, 418 U.S. 461 (1974) ............ 13

—

IN THE

Supreme Court of the United States

October Term 1977

No.

fa’

Vw

Mitton SILVERMAN,

Petitioner,

Vv.

Unirep States or AMEnRiIca.

sy

Ww

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

The petitioner, Milton Silverman, prays that a writ of

certiorari issue to review the judgment of the United States

Court of Appeals for the Second Circuit entered on May 31,

1977, in this proceeding.

Opinions Below

The opinion of the Court of Appeals, reprinted in the

Appendix hereto, is reported at 556 F.2d 655. The two

opinions of the District Court for the Southern District of

New York, dated May 15, and July 16, 1976, also reprinted

in the Appendix hereto, were not officially reported.

Jurisdiction

The judgment of the Court of Appeals was entered on

May 31, 1977. A timely petition for rehearing and hearing

en banc was denied on July 14, 1977. A motion for recon-

sideration of the petition for rehearing, based on germane

documents subsequently released by respondent (annexed

hereto and discussed hereinafter) was denied on August

30, 1977. The jurisdiction of this Court is invoked under

28 U.S.C. Seetion 1254(1).

Questions Presented

1. Whether, in a proceeding under 28 U.S.C. Section

2255, respondent may withhold documents in its possession

showing knowing prosecutorial use of perjured testimony

at the original trial?

2. Whether a petition brought under 28 U.S.C. Section

2255 should be granted, or at least a hearing held, where

the petition, detailed supporting affidavits, and other docu-

ments, show the original trial was tainted by knowing

prosecutorial use of perjury and suppression of ex-

culpatory evidence and respondent does not traverse that

showing?

3. Whether, in a 28 U.S.C. Section 2255 proceeding,

the Distriet Court may use documents submitted in camera

by respondent under “a bond of confidentiality’’ in deny-

ing the petition without revealing those documents to the

petitioner or holding a hearing?

Constitutional and Statutory Provisions Involved

United States Constitution, Amendment V:

‘*No person shall... be deprived of life, liberty,

or property, without due process of law .. .’’

28 U.S.C. See. 2255:

**.... Unless the motion and the files and records

of the case conclusively show that the prisoner is

entitled to no relief, the court shall cause notice

thereof to be served upon the United States attorney,

grant a prompt hearing thereon, determine the is-

sues and make findings of fact and conclusions of

law with respect thereto. ...’’

Statement of the Case

Petitioner, Milton Silverman, instituted a proceeding

under 28 U.S.C. Section 2255 to vacate his conviction under

indictment 68 Cr. 762(SDNY) on eight counts charging him

with violations of 18 U.S.C. Section 664, 29 U.S.C. Sections

439(b) and (c) and Section 501(c). (5,6),* alleging, inter

alia, the embezzlement of funds of Local 810, international

Brotherhood of Teamsters, of which he was then president,

in the form of loans and Christmas gratuities, and the

falsification of union forms and records to conceal the em-

bezzlement (5,6). After his conviction was affirmed,** peti-

tioner served his sentence of eight months, paid his $8,000

fine, but continued to be prohibited from employment by

a union or union welfare or pension plan—his life-long

occupation, suffered obloquy in the community (6) and

burned with the sense of an injustice done him.

Of particular pertinence to the present proceeding is

the conviction under count 18 which charged him with fal-

sification (alteration) of the Local 810 Executive Board

minutes, amounting, on the basis of the proof at the trial,

* References in the form, e.g. “(5,6)” are to the joint appendix

on appeal. The issues raised in the present proceeding were not

previously available to petitioner on the direct appeal from his con-

viction 430 F.2d 106 (2d Cir. 1970), cert. den. 402 U.S. 953, reh.

den. 403 U.S. 924 (1971) or on his appeal from denial of a new

ro, gg F.2d 1404 (2d Cir. 1972), cert. den. 411 U.S. 982 (1973),

(6,24).

** See previous footnote.

to changing the December, 1965, minutes to reflect author-

ization of a loan and reimbursement of Christmas gratuti-

ties to him (8). That charge and the conviction thereon is

directly related to all the charges on which petitioner was

convicted as a result of count 18’s allegation of a general

falsification of union records (despite the singular instance

in the proof) and the trial court’s instruction to the jury

that the evidence concerning the falsification of union

records should be considered in connection with all the

evidence in the case (i.e., evidence of consciousness of

guilt) (8).

The perjured testimony knowingly used by the prosecu-

tion under count 18 was that of the final witness in the case,

Jacob Friedland, who testified for the prosecution on re-

buttal. During the investigation of Local 810 which led to

petitioner’s indictment, the Local was served with a sub-

poena duces tecum to produce its records before a grand

jury in the Southern District of New York (7-8). Fried-

land, an attorney, was retained by Local 810 to examine

those records (Ibid.) and after doing so, prepared a confi-

dential report which stated that the December, 1965, Execu-

tive Board minutes did not reflect authorization of payments

to Silverman of a loan and reimbursement of Christmas

gratuities, which were in fact made (42). However, the

Executive Board minutes as produced before the grand

jury and the trial jury did reflect authorization of these

payments to petitioner (9). See 430 F.2¢c at 121. Fried-

land, who resisted testifying at the trial on the attorney-

client privilege, which was overruled, and the privilege

against self-incrimination, finally testified under a grant of

immunity as the final witness at the trial, on the prosecu-

tion’s rebuttal case. (8, 11-13). He testified that he had

no recollection of the original state of the December, 1965,

Exeeutive Board minutes nor of any change in them, that he

had ‘‘no recollection of the minute books or how they were

written’’, but only by comparing his confidential report

with the minutes in the form they were as trial exhibits

could he say that there appeared to have been a change

to authorize the loan and reimbursement payments to Sil-

verman (8-9; 556 F.2d at 657).

What the prosecutor did not disclose at the trial or

thereafter was that he had secured authorization from the

Department of Justice for the grant of immunity to Fried-

land based on his memorandum of March 11, 1969, in which

he stated that the crime from which Mr. Friedland was to

be immunized was ‘‘obstruction of justice on the part of

Mr. Friedland in the tampering with the books in question.”’

(See Appendix, infra). Petitioner had learned of the ex-

istence of this memorandum, but not of its contents or pur-

port through an application under the Freedom of Informa-

tion Act (5 U.S.C. Sections 552 et seq) before the petition

was filed but his application for production of the memo-

randum was denied by the Department of Justice as was

expedition of the appeal from that denial (110-11, 135).

This memorandum was also sought by motion (18), by sub-

poena (138A), all of which respondent ignored and the Dis-

trict Court declined to grant or enforce (132, 151-3, 157-8).

In fact the memorandum was not produced for petitioner

until after the petition for rehearing was denied in the

Court of Appeals, whereupon petitioner ‘moved to reopen

the petition for reargument—and the appeal—(See Appen-

dix, infra) on the grounds that the withholding of that

memorandum was a further denial of due process to peti-

tioner and a fraud upon the Court of Appeals. (Thid.) The

motion was denied without opinion. (Thbid.)

Two witnesses who could have given the lie to Fried-

land’s testimony were suppressed by the prosecutor’s

repeated subpoenaing of them before grand juries and

other inquisitorial bodies, threatening them with prosecu-

tion, offering them immunity and then withholding it

(28, 46). As a result it was not until shortly before the

petition was filed that petitioner learned that these wit-

nesses Sophie Oschak, Recording Secretary of the Execu-

tive Board, and Max G. Sanchez, Vice-President of Local

810 (25, 44) had themselves actually participated in the

change of the Executive Board minutes at the direction of

Friedland (26-7, 44-6). As a result of the suppression of

these witnesses, petitioner did not learn until about the

same time of a third witness, Herman Brickman, who was

crucial inasmuch as his representation for independence

and integrity as an impartial arbitrator and his lack of

association with either Silverman or the union would have

insulated him from the attack on his credibility that the

prosecutor made on union-oriented witnesses, was also

present at the change of the minutes and explained the

wholly innocent manner in which the minutes were changed.*

(48-50). The affidavits of these three witnesses were annexed

to the petition and were in no way contravened by respon-

dent.

The assistant United States attorney who prosecuted

petitioner did submit an affidavit ‘‘in opposition’’ to the

petition, the only opposing ‘factual’ showing (90-2). That

-

~I

affidavit in no way traversed the sworn statements of

Oschak, Sanchez and Brickman but merely states that the

assistant did not know what Friedland would say before

he testified (91), but as the affidavit also admits that Fried-

land’s testimony as given may have been false (92) surely

an insufficient statement in view of the prosecutor’s duty

to correct false testimony once it is given. At the time the

assistant made his affidavit he was evidently unaware that

petitioner knew of the existence (but not the contents) of

his memorandum to the Department of Justice concerning

Friedland’s proposed testimony. After petitioner served

a subpoena for the memorandum and moved its production,

the assistant made no further statements.

In the first opinion denying petitioner relief, the Dis-

trict Court held that the prosecutor had no advance know!l-

edge of Friedland’s testimony and that petitioner failed to

show that the prosecutor knew that testimony was perjured

(122-3). However, the prosecutor’s own memorandum

which the trial court refused to order produced for peti-

ticner’s use, plainly shows that the prosecutor knew what

that testimony would be (contrary to his later affidavit)

heeause he plotted it in just the manner it was given and

plainly knew that it was false since he sought immunity

because of Friedland’s involvement in the change of the

minutes :

**3/11/69

From Andy Maloney SDNY 212-264-6427

1. Jacob Friedland, Esq. (an attorney) in U.S. v.

Milton Silverman

591 Summit Avenue

Jersey City, New Jersey

2. unknown

rT }

none (FBI case no. 159-2561)

none known

no

Trial of U.S. v. Milton Silverman, President Lo-

cal 810 Teamsters, business manager IBEW,

administrator of relative union funds embezzle-

ment 29 U.S.C. 501(¢c) converting union funds.

Document in posession of judge which is a docu-

ment prepared by Friedland at or about time

certain exhibits in evidence in trial were sub-

poenaed—Mr. Friedland could testify that the

crucial pages of the union books are not now in

same condition as they were before they were

produced before the grand jury and therefore

would be crucial to proving that the appearance

in the union books as presently indicated is not

in fact x exhibits. (converted funds of union to

own use)

obstruction of justice on the part of Mr. Fried-

land in the tampering with books in question

Both the trial judge and myself believe that one

of the crucial questions in the case is whether or

not the minute books were tampered with. Mr.

Friedland could testify that they are not now in

the same condition as before the production to the

Grand Jury. The judge is in possession of an

attorney-client privilege document which should

preclude Friedland from giving a false answer.

Milton Silverman is a notorious union racketeer

who the Department has been investigating for

some 10 years without success .. . this is the

closest we have ever come!

—_a2 “Sew

10. will testify

NEEDED BY THURSDAY MORNING ....

March 13, 1969.

[ Material excised by government ]|”’

After the petition was denied, petitioner filed a motion

under Rule 60(b) F.R.C.P., claiming surprise and unfair-

ness because the subpoena for the memorandum and other

evidentiary material was outstanding, as was the applica-

tion under the Freedom of Information Act, and respondent

had refused to honor its commitment to petitioner’s counsel

to allow inspection of such material in its files, (133-38.A,

149-53, 181-2). While the Rule 60(b) motion was sub-

judice, respondent submitted the above quoted memoran-

dum to the District Judge, in camera, under a ‘‘bond of

confidentiality’’ (176). Despite petitioner’s vigorous pro-

test to this procedure (173-5), the District Judge relied

upon that memorandum, without disclosing it to petitioner,

in reaffirming his denial of the petition, held that all the

memorandum indicated was a mere surmise (the basis for

which has not been disclosed) of the prosecutor that Fried-

land was involved in the alteration of the Union books

(160-1).

The Court of Appeals held that the District Court’s

ruling on the Rule 60(b) motion was not appealable 556

F.2d at 656-7. Nonetheless, the Court of Appeals accepted

the characterization of the memorandum in the District

Court’s opinion on that motion: ‘‘No doubt, the prosecutor

had his suspicions.’’ 556 F.2d at 658. The Court of Ap-

peals, however, did not have the memorandum before it

because the District Judge had not forwarded it, under seal

or otherwise as part of the record on appeal. (See Para-

graph 5 of Motion for Reconsideration, infra).

No hearing was ever held.

10

Petitioner contended and vigorously contends that he

was denied due process below as well as at his original trial

and that the rulings below violate the standards for the

conduct of proceedings under 28 U.S.C. Section 2255 and

are contrary to the rulings of this Honorable Court and

those of other Circuits.

Reasons for Granting the Writ

1. The decision below approves the denial of access to

evidence of knowing prosecutorial use of perjured

testimony contrary to the standards of due process,

the decisions of this Court and followed by other

Circuits.

The Second Circuit has here approved a denial to peti-

tioner of a prosecutor’s memorandum showing knowing

prosecutorial intention to use perjured testimony, fol-

lowed the District Court’s erroneous characterization, on

that court’s in camera inspection, of the nature of the

memorandum, did not itself inspect the memorandum before

rendering its opinion and held the District Court’s ruling

unreviewable. That procedure and those rulings were a

direct denial of due process and contrary to the decisions

of this Court and the other Circuits.

This Court stated in United States v. Reynolds, 345 U.S.

1, 12 (1953), ‘‘since the Government which prosecutes an

accused also has the duty to see that justice is done, it is

unconscionable to allow it to undertake prosecution and

then invoke its governmental privilege to deprive the ac-

cused of anything which might be material to his defense.’’

In Giglio v. United States, 405 U.S. 150, 153 (1972), this

Court held, ‘‘As long ago as Mooney v. Holohan, 294 U.S.

103, 112 (1935), this Court made clear that deliberate de-

ception of a court and jurors by the presentation of known

11

false evidence is incompatible with ‘rudimentary demands

of justice.’ This was reaffirmed in Pyle v. Kansas, 317 U.S.

213 (1942). In Napue vy. Illinois, 360 U.S. 264 (1959) we

said, ‘[t]he same result obtains when the Staie, although

not soliciting false evidence, allows it to go uncorrected

when it appears.’ Id. at 269. Thereafter Brady v. Mary-

land, 373 U.S. at 87, held that suppression of material evi-

dence justifies a new trial irrespective of the good faith

or bad faith of the prosecution.’’ 405 U.S. at 153.

Again in United States v. Agurs, 427 U.S. 97, 104 (1976),

this Court held that in cases involving a knowing prosecu-

torial use of perjury, a strict standard of materiality is

required, ‘‘not just because they involve prosecutorial mis-

conduct, but more importantly because they involve a cor-

ruption of the truth seeking function of the trial process.’

427 U.S. at 104. Where exculpatory evidence is discovered

in the files of the prosecutor, even though, unlike here, the

failure to disclose it at trial was merely negligent or an

act of misjudgment, ‘‘the defendant should not have to

satisfy the severe burden of demonstrating the newly dis-

covered evidence probably would have resulted in an aec-

quittal.’’ 427 U.S. at 105.

Here the evidence not disclosed to petitioner showed not

only that Friedland’s testimony was perjurious, but that

the prosecutor had planned it to be that and so deceptive

(Friedland’s denial of recollection of the state of the min-

utes) as to prevent effective cross examination. Possibly

that was why the prosecutor failed at trial to disclose it

or the facts on which the memorandum stated Friedland’s

involvement in the alternation of the minutes was base-l.

That the prosecutor actually knew of the memorandum

which he had prepared himself only a few days prior to

Friedland’s testimony cannot be doubted. When petitioner

sought that memorandum under the Freedom of Informa-

12

tion Act, it was denied him on the basis that it was a privi-

leged internal communication. In his affidavit in opposition

to the petition below, the very same prosecutor denied that —

he knew what Friedland would say before he testified* (92).

Yet the memorandum which that prosecutor had prepared

prior to Friedland’s testimony shows the prosecutor him-

self outlined the testimony which Friedland gave.**

Under ‘‘rudimentary standards of justice’’, petitioner

was entitled to have the memorandum (and the underlying

facts) for use at his trial. He was entitiled to them in sup-

port of his petition below. He did not get it. Reversal

should follow, it is respectfully submitted. Giglio, supra;

Agqurs, supra.

In habeus corpus proceedings, the District Court has the

obligation to fashion any necessary procedure to require the

production of essential evidence. Harris v. Nelson, 394 U.S.

286, 299-300 (1969). The courts of other Circuits have fol-

lowed this rule, e.g., Shelton v. United States, 497 F.2d 156,

159% (5th Cir. 1974); Barry v. United States, 528 F.2d 1094,

1101 (7th Cir. 1976) ; Sullivan yv. Dickson, 283 F.2d 725, 727

(9th Cir. 1960) ; Wagner v. United States, 418 F.2d 618, 621

(9th Cir. 1969). See Raines v. United States, 423 F.2d 526,

529-30 (4th Cir. 1970). As this Court held in Speiser vy.

Randall, 357 U.S. 513, 520 (1958), ‘‘the procedures by which

* This, of course, was no answer to the petition for under Napue,

supra, the prosecutor is under a duty to correct false testimony once

it is given. The prosecutor’s duty to make excul evidence avail-

able to the accused is well known. See ABA, Standards Relating to

the Prosecution Function, Sec. 3.11(a).

** The memorandum also discloses that the prosecutor regarded

Friedland’s testimony as crucial to his case and reveals the animus

against petitioner which motivated his urgent desire to provide that

testimony. The prosecutor writes (inaccurately): “Milton Silverman

is a notorious union racketeer who the Department has been in-

vestigating for some 10 years without success . . . this is the closest

we have ever come!”

13

the facts of a case are developed assume an importance fully

as great as the substantive rule of law to be applied.’’ The

decisions below were a clear departure from these rulings.

In Alderman vy. United States, 394 U.S. 165, 182 (1969),

this Court held that in camera examination of evidentiary

material as was done below was insufficient, indeed would be

a denial of due process if such examination alone were usec

by the District Court to rule on an application. As Shelton

v. United States, supra, makes clear, in a Section 2255 pro-

ceeding even a confidential report must be made available

for the use of the petitioner, not just the Court, where it is

material to his application. In dealing with petitioner's pro-

test against the in camera submission of the prosecutor's

memorandum on the Friedland testimony and immunity,

the District Court ruled, ‘‘Since the purpose in subpoenaing

these memoranda was to have the Court consider them,

petitioner has attained his goal.’’ (160) Petitioner’s goal

was to have the memorandum disclosed so that the evidence

therein and the natural further inquiry to which it would

have led could be properly presented at the required hear-

ing, not merely considered privately by the District Court

without even being made a part of the record. Cf.: Wingo

v. Wedding, 418 U.S. 461, 473-4 (1974). Certainly Alder-

man stands for the principle that whether in camera or open

court examination is allowed, the material shall he available

for review on appeal. |

What happened at petitioner’s trial was also a per-

version of the immunity statute itself. Immunity when

granted does not extend to perjury committed in the im-

munized testimony. 18 U.S.C. See. 6002. Here immunity

was sought and granted for the purpose of procuring per-

jured testimony.

At a time when our government is pledged to clear its

justice agencies of wrongdoing and concealment of such

14

wrongdoing, a decision such as the one below which com-

pletely frustrates a petitioner at trial, under Section 2255

or on appeal creates a morbid precedent.

2. The decision below failed to observe the due process

standards requiring a grant of, or hearing on, a 28

U.S.C. Section 2255 application established by the

decisions of this Court and those of other Circuits.

It was plainly improper for the decision below to affirm

the District Judge’s (who was also the trial judge) denial

of the petition based on his interpretation of the trial evi-

dence, The petition alleged facts dchors the reeord and in

such instances at least a hearing is required. Sanders v.

United States, 373 U.S. 1, 19-20 (1963); Harris v. Nelson,

loc, cit, supra,

The petition and supporting affidavits and documents

set forth detailed facts and allegations of knowing use of

perjured testimony and other factors rendering petitioner’s

conviction constitutionally infirm which also required a

hearing. Sanders, loc, cit., supra.

Rule 5(a) of the Rules Governing Section 2255 Proceed-

ings requires that respondent’s ‘‘answer shall respond to

the allegations of the motion.’’ See Raines v. United States,

423 F.2d 526, 529 (4th Cir. 1970). As has been seen, re-

spondent’s answer below woefully failed in this, the only

affidavit in opposition, that of the prosecutor, did not deny

perjury had been committed, did not deny that he knew of

it, did not deny that he had suppressed evidence and wit-

nesses and did not deny that he had willfuly failed to make

investigation which would have revealed charges were base-

less." Under such circumstances, the petition might well

* In connection with the alleged Chlystun payment of $1,000 to

petitioner (15-21, 115, 150). ABA Standards Relating to the

Prosecution Function, Section 3.11(c).

15

have been granted for although given ample opportunity to

do so, respondent made no further factual showing. See

Otero v. Rivera, 494 F.2d 900, 902 (1st Cir. 1974); United

States v. Kessler, 364 F.Supp. 66, 70-71 (S.D.0. 1973);

United States v. Johnson, 288 F.2d 40, 45 (Sth Cir. 1961).

Cf. Giglio v. United States, 405 U.S. at 154.

At the very latest a hearing should have been ordered

when respondent submitted in camera the prosecutor’s

memorandum which showed (as we have subsequently

learned) that it contradicted the statement in his own affi-

davit that he had not known what Friedland’s testimony

would be.

The very wording of the statute required a hearing in

this case. 28 U.S.C. Sec. 2255, Paragraph 3. Machibroda

v. United States, 368 U.S. 487, 493-6 (1962).

The decisions of this Court, Machibroda v. United States,

supra; Fontaine vy. United States, 411 U.S. 213, 214-15

(1973); Smith v. Yeager, 393 U.S. 122, 125 (1968); Town-

send v. Sain, 372 U.S. 293, 310, 312 (1963); and those of

other circuits, United States v. Haywood, 464 F.2d 756,

762-3 (D.C. Cir. 1972); Halliday v. United States, 380 F.2d

270, 272 (1st Cir. 1967); Moorhead v. United States, 456

F.2d 992, 995-6 (3rd Cir. 1972); Brown v. United States,

462 F.2d 681, 684 (5th Cir. 1972); Green v. United States,

446 F.2d 650, 651 (6th Cir. 1971); Crispo v. United States,

443 F.2d 13, 14 (9th Cir. 1971) ; Anderson v. United States,

443 F.2d 1226, 1227-8 (10th Cir. 1971), are all contrary to

the rulings below.

The constitutional and statutory necessity of a hearing

in cases such as this one (unless the petition is granted on

respondent’s failure to make a sufficient response) is

graphically illustrated by key rulings made against peti-

tioner without any basis in the trial record: that petitioner

knew at the trial of the facts concerning Friedland’s causing

the alteration of the Executive Board minutes (124, 556

F.2d at 658) although Oschak, Sanchez and Brickman deny

that (27-29), 46-7, 49-50), that all that the prosecutor knew

of Friedland’s role was a surmise or a suspicion (161; 556

F.2d at 658), although the prosecutor’s memorandum itself

contradicts this and was certainly sufficient to require

further inquiry at a hearing.

The Court below emphasized the length of time between

petitioner’s original conviction and the appearance of the

case below. 556 F.2d at 657. No recognition was given

to an important causitive factor—respondent’s failure to

disclose to petitioner its memorandum on the Friedland

testimony, at trial, under the Freedom of Information

Act, on the filing of the petition, on appeal—not until after

the petition for rehearing below had been denied.

Petitioner requested that the case be transferred and

remanded for a hearing before a different judge (137-8;

Appellee’s main brief below, Point IIT), in view of the

procedure followed below. In the light of this case it is

respectfully suggested that this Court consider adopting

the rule of Halliday v. United States, supra, that a Section

2255 hearing be held before a judge other than the trial

judge. See Advisory Committee Note to Rule 4 of the

Rules Governing Section 2255 Proceedings.

To allow the decision below to stand is to allow a

nullification of the statutory and constitutional right of

petitioner and the many others similarly situated to vindi-

cate their well-founded and well-detailed allegations of

denial of due process by the failure to hold a hearing in the

District Court and the treatment of such failure in the

Cireuit Court as a mere exercise of discretion.

17

CONCLUSION

For these various reasons, this Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

Luoyp A. Hae

Counsel for Petitioner

109 Orchard Terrace

Piermont, New York 10968

October 11, 1977