Petition — Strahl v. United States

hh ee

MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OctosEer Term, 1978

No. @8-) 185

ARTHUR STRAHL,

PETITIONER,

Vv.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

JosEPH J. BaLLiro

Mark G. Miuiortis

One Center Plaza

Boston, Massachusetts 02108

(617) 227-5822

Attorneys for Petitioner

asses

Blanchard Press, Inc., Boston, Mass. — Law Printers

Bupreme Court, U. &

FILED

dAN 17 1979

TABLE OF CONTENTS

Page

Opinion Below.................. ope yes pirate Naas

Ek ge 2

Questions Presented for Review Are 2

Statutes Involved ..... Lh Fy: 2

Statement of the Case... ie 3

Reasons for Granting the Writ,

A. The Opinion of the Court of Appeals for the

First Cireuit Is Contrary to the Intent and Lan-

guage of 18 U.S.C. §3500. | | 5

B. The Opinion of the Court of Appeals Failed To

Reflect the Intent of 18 U.S.C. §3500, Fed. Rules

Cr. Proc., Rule 16, 18 U.S.C., and the Cases of

United States v. Agurs and Brady v. Maryland. 9

Conclusion __. 2 14

Appendix A: Opinion of the United States Court of

Appeals for the First Circuit. 15

Appendix B: United States Code, Title 18, Sections

371, 471, 472, 1708 and 3500. | 25

TABLE or AUTHORITIES

Cases

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). 2, 9

Campbell v. United States, 365 U.S. 85, 81 S.Ct. 421

(1961) (Campbell 1) | 6, 8

Campbell v. United States, 373 U.S. 487, 83 S.Ct. 1356,

(1963) (Campbell IT) | 6

Giglio v. United States, 405 U.S. 150, 99 S.Ct. 763 (1972) 11

Goldberg v. United States, 424 U.S. 94, 96 S.Ct. 1338

ee

Mooney v. Holohan, 294 U.S. 103, 55 Ss. Ct, 340 (1935) 1]

il

Table of Contents

Page

United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392 (1976)

2,9

United States v. Butler, 567 F.2d 885 (9th Cir. 1978) 18

United States v. Harris, 542 F.2d 1283 (7th Cir. 1976) 9

United States v. Hodges, 556 F.2d 366 (5th Cir. 1977) 9

United States v. Johnson, 521 F.2d 1318 (9th Cir. 1975) 8

United States v. Judon, 567 F.2d 1289 (5th Cir. 1978) 8

United States v. Lamma, 349 F.2d 338 (2d Cir. 1965) 8

United States v. Larson, 555 F.2d 673 (8th Cir. 1977) Wy)

United States v. McCrane, 547 F.2d 204 (1976) 11

United States v. Pollack, 5384 F.2d 964 (D.C. Cir. 1976) 12

United States v. Waldon, 578 F.2d 966 (3d Cir. 1978) 8

United States v. Wood, 550 F.2d 435 (9th Cir. 1976) 9

Statutory Provisions

United States Code, Title 18,

6371 2,3

$471 haus 23

$472 2,3

$1708 2,3

$3500 2, 3, 4, 5, 6, 9

In the

Supreme Court of the United States

Ocroser Term, 1978

No.

ARTHUR STRAHL,

PETITIONER,

Vv.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Petitioner Arthur Strahl respectfully prays that a writ

of certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the First Circuit

entered on December 26, 1978.

Opinion Below

The opinion of the Court of Appeals for the First Cir-

cuit has not yet been published in the official reports.

A copy of the opinion is attached hereto as Appendix A.

(App. 15-24)

Jurisdiction

The judgment sought to be reviewed was entered by the

United States Court of Appeals for the First Cireuit on

December 26, 1978. No petition for rehearing was filed

because of the limitation of such petitions to new matters

under Local Rule 15 of the First Cireuit.

Jurisdiction is conferred upon this Court by 28 U.S.C.

$1254(1) to review the judgment of the Court of Appeals

by writ of certiorari.

Questions Presented for Review

1. Whether or not the Government failed to comply

with the relevant provisions of 18 U.S.C. $3500, requiring

the United States upon motion of the defendant to produce

any statement of the witness in the possession of the United

States which relates to the subject matter as to which the

witness has testified on direct examination.

2. Whether or not the Government has failed to comply

with the relevant provisions of 18 U.S.C. §3500 and Fed.

Rules Cr. Proe. rule 16, 18 U.S.C., as well as the case law

in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392 (1976)

and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963),

requiring the United States to provide to the defendant

exculpatory evidence, evidence useful for impeachment pur-

poses, and information revealing perjury by a government

witness.

Statutes Involved

18 U.S.C. §$1708, 371, 471, 472, 3500. The text of these

sections is attached hereto as Appendix B (App. 25-28)

3

Statement of the Case

The petitioner was charged and convicted with others

with possession of a $5,000 United States Treasury note

stolen from the United States mails, of counterfeiting and

conspiring to counterfeit $5,000 Treasury notes, and of

possessing, concealing, and attempting to pass the counter-

feited notes, 18 U.S.C. §§371, 471, 472, 1708. He was sen-

tenced after a jury trial to four years imprisonment on the

conspiracy count, with sentences of the same duration on

the other charges to run concurrently.

The convictions arose in the context of a four-count,

superseding indictment returned on April 20, 1977. The

Government’s case rested primarily upon the testimony of

one Markella, an attorney of petitioner Strahl’s, as well as

(Curran and Lombardo, who were participants in the al-

leged counterfeiting scheme.

The petitioner filed appropriate discovery motions be-

fore trial and moved during trial for the production of

certain statements made by the witness Lombardo in the

possession of the Government, pursuant to 18 U.S.C.

§3500(b). Petitioner moved for a mistrial and for dismissal

during the trial because discoverable grand jury statements

of Curran which could have been used to impeach Lom-

bardo were not delivered to counsel in a timely fashion.

Petitioner moved at trial to strike the testimony of Curran

as incredible and unworthy of consideration. Objections

were made during trial to the testimony of Markella on

the basis of attorney-client privilege, and to the introduc-

tion of evidence that similar counterfeit Treasury notes

had been seized in other parts of the country on the basis

of relevance and prejudice. These motions and objections

were ruled on adversely by the trial judge and such rulings

were the basis for petitioner’s appeal to the United States

Court of Appeals for the First Cireuit.

4

Petitioner’s motior for the production of a statement by

Lombardo arose when it was revealed during cross-exami-

nation that the witness had made more than one statement

to the Assistant United States Attorney. Defense counsel

was only in possession of one such statement. At the side-

bar the Assistant United States Attorney represented to

the Court that the second statement was not within the

scope of 18 U.S.C. §3500 and need not be produced. The

Court ruled without any further consideration than the

Government’s assertions that there need not be another

statement produced. Defense counsel renewed his motion

after further cross-examination of Lombardo revealed that

the witness had told his story to the Assistant United States

Attorney, and that he had gone over it with him, The

motion was denied without an in camera examination of

the statement, a voir dire, or any further inquiry of the

witness.

During his testimony Lombardo portrayed himself as

not having been involved in criminal activity before this

incident. Grand jury testimony of Curran, however, re-

ferred to previous criminal involvement by Lombardo as

a cameraman in illegal activities. The transcripts of this

grand jury testimony were not given to defense counsel

until after Lombardo had already testified. Defense coun-

sel all objected to the tardy delivery of the grand jury

testimony and moved for mistrial. Petitioner moved for

dismissal as well. The Trial Court denied all motions.

Counsel for petitioner suggested that immediate action be

taken in the alternative to minimize the harm, but the Court

did not respond other than to point out that Lombardo

could net be recalled by the defense,

/

5

Reasons for Granting the Writ

A. True Opinion or THE Court or APPEALS FOR THE First

Crecurr Is ContTRARY TO THE INTENT AND LANGUAGE OF

18 U.S.C, §3500.

The manner in which the trial court denied the ‘peti-

tioner’s request for a ‘‘statement’’, 18 U.S.C. §3500(e),

made by Government witness Lombardo to the Assistant

United States Attorney was clearly in error, and the Court

of Appeals for the First Circuit failed to correct this error

by not remanding the issue to the District Court for hear-

ing and a possible retrial.

In the opinion below, the Court of Appeals stated that

if the determination of the District Court had been based

solely on the Government attorney’s assurances at the

bench that his interview notes were not a statement under

18 U.S.C. §3500(e), then it would have been compelled to

remand for a more thorough hearing. Nevertheless, the

Court of Appeals found that defense counsel’s cross-

examination of the witness Lombardo elicited just ‘‘ barely

enough’’ information to form a basis for the judge’s de-

cision. The standard that had to be met for the interview

notes to be raised as a ‘‘statement’’ is found in 18 U.S.C.

§3500:

‘*(e) The term ‘statement,’ as used in subsections (b),

(c), and (d) of this section in relation to any witness

called by the United States, means—

‘*(1) a written statement made by said witness and

signed or otherwise adopted or approved by him;

‘¢(2) a stenographic, mechanical, electrical, or

other recording, or a transcription thereof, which is

~a substantially verbatim recital of an oral statement

made by said witness and recorded contemporaneously

with the making of such oral statement.’’

6

By stonping at a mere rebuke to the District Court, and

by referring to other ‘‘strong evidence of guilt’’, the ‘‘fact

that the defense had another ‘statement’ of Lombardo’s

with which to impeach the witness,’’ and ‘‘the extensive

impeachment of Lombardo on cross-examination’’ in order

to reinforce its opinion, the Court of Appeals fell short of

its duty and acknowledged consideration of factors that

had no bearing on the point in issue.

Goldberg v. United States, 424 U.S. 94, 96 S.Ct. 1338

(1976), Campbell vy. United States, 365 U.S. $5, 81 S.Ct. 421

(1961) (Campbell 1), and Campbell v. United States, 373

US. 487, 83 S.Ct. 1356 (1963) (Campbell IT) established

guidelines and procedures for determining a ‘‘statement’’

under 18 U.S.C, §3500(e). These cases state that there is

a ‘‘duty in the trial judge affirmatively to administer the

statute in such a way as can best secure relevant and

available evidence.’’ Campbell I, 365 U.S. at 95, 81 S.Ct.

at 427. This Court has recognized ‘‘that a Government

objection to production may require that the trial court

inspect documents or hold a hearing to gather extrinsic

evidence bearing on the extent to which the documents are

statements producible under §3500.’’ Goldberg, 424 U.S.

at 108, 96 S.Ct. at 1357.

After the bench conference in which the Government

attorney gave assurances which the Court of Appeals has

already determined were insufficient to establish that the

subject document was not a ‘‘statement’’ under 18 U.S.C.

§3500(e), the following discourse between petitioner’s

counsel and the witness Lombardo took place:

‘‘Q. (by Mr. Balliro) This second occasion that we are

talking about, Mr. Lombardo, took place in this

building, in the United States Attorney’s office, is

that correct?

A. Correct.

Q. And was it at a time when you were interviewed by

7

Mr. Hammond, the prosecutor in this case?

In what manner?

What you were telling him, did he go over it with

you?

He just told me to give my story.

And did he just write it down verbatim as you

gave it?

He asked me questions,

He asked you questions about what you told him,

isn’t that correct?

A. I would assume that.

Q. And did he go over with you everything that you

told him to make sure that what you were telling

him was satisfying him that it was correct?

A. I can’t answer that.

(). Did he go over it with you, Mr. Lombardo?

A. Yes, he went over it with me.

Mr. Balliro: I would resume my request.

The Court: I deny it.

The Court of Appeals decided that the information

gathered by this examination was sufficient basis for the

trial judge’s ruling so as not to compel remanding the

ease for further hearing. It is to be noted that the trial

judge never even examined the document in question in

camera before he denied its production! Such an exami-

nation appears on the face of the cases (cited above and

below) to be a rudimentary procedure in evaluating the

present question.

A. Yes.

Q. And how long did that interview take?

A. Maybe an hour and maybe a little longer.

Q. And during the course of it, were notes made?

A. Yes.

Q. And did Mr. Hammond go over your story with

you?

A.

().

or ©

8

In a Third Circuit opinion, United States v. Waldon, 578

F.2d 966 (3d Cir. 1978), it was held that ‘‘the district court

erred by not at least inspecting the materials.’’ /d. at 970.

The opinion cited United States v. Johnson, 521 F.2d 1318

(9th Cir. 1975) for the proposition that it was error to fail

to inspect the notes. A Fifth Cireuit opinion, United States

v. Judon, 567 F.2d 1289 (Sth Cir. 1978) offers a comprehen-

sive view of this problem. Citing Campbell I, supra, the

Court found that a mere inspection of the document at

issue was not enough in the case where there was anything

before the trial judge to suggest that the witness had ever

adopted or approved any notes the government investi-

gator might have written down. The Second Cireuit’s hold-

ing in United States v. Lamma, 349 F.2d 338 (2d Cir. 1965),

cited in Judon, supra at 1292, stated that only if there is

something in the witness’ testimony or in the document

containing the written statement that suggests that there

may have been an adoption or approval by the witness does

the trial judge have a duty to conduct a voir dire to deter-

mine whether or not there was such adoption or approval.

Such language imposes a ‘‘duty’’ to conduct a voir dire

under circumstances that are easily met by the facts in the

present case. As stated in Campbell I and cited in Judon

at 1292, there are certain questions that need be asked

where there arises a viable issue as to production. Such

inquiry may be undertaken by the trial judge if necessary,

and it should include whether the interviewer was writing

down what the witness told him, and whether the witness

read the notes over to see if they were right or otherwise

adopted or approved them. If, in the present case, the

trial judge considered the cross-examination to be sufficient

inquiry as to these two issues, then the responses to such

inquiry, the petitioner must suggest, were enough to at

least require further inquiry.

A further reason for granting the writ lies in the appar-

9

ent discrepancies between the circuits in their application

of the rules in 18 U.S.C. §3500(b), (e). The Seventh Cir-

cuit in United Staies v. Harris, 542 F.2d 1283 (7th Cir.

1976), the Fifth Cireuit in United States v. Hodges, 556

F.2d 366 (5th Cir. 1977), the Ninth Cireuit in United States

v. Wood, 550 F.2d 435 (9th Cir. 1976), and the Eighth Cir-

cuit in United States v. Larson, 555 F.2d 673 (8th Cir.

1977) have taken various views as to the proper appli-

cation of the standards in 18 U.S.C. §3500(e). To lesser

extents, the above four circuits approach what may now be

considered the rule in the First Circuit, although the First

Cirenit appears to have gone further away from the path

charted by Campbell I and 1] and Goldberg. A determina-

tion by this Court as to the proper procedures to be under-

taken by the trial court in determining whether or not

material is a ‘‘statement’’? under 18 U.S.C. §3500(e) is

necessary. A clarification by this Court as to the amount

of approval or type of adoption that is required on the

part of the witness toward the written statement is also

an appropriate purpose for granting this Writ.

B. Tue Opinion or tue Court or Appeats Faitep To

Reriect tHe Intent or 18 U.S.C. §3500, Fev, Ruves

Cr. Proc., Rute 16, 18 U.S.C., ano THE Cases or United

States v. Agurs and Brady v. Maryland.

The Government’s failure to supply the defendant with

exculpatory material contained in the grand jury testi-

mony of the witness Curran in a timely fashion was a

serious breach of prosecutorial responsibility established

in the cases of United States v. Agurs, 427 U.S. 97, 96 S.Ct.

2392 (1976) and Brady v. Maryland, 373 U.S. 83, 83 S.Ct.

1194 (1963) and by statute in 18 U.S.C. §3500 and Rule 16

of the Federal Rules of Criminal Procedure. Information

that could have been used to substantially impeach the

10

credibility of a key Government witness, Lombardo, was

withheld until the impact and value of its use was severely

diminished.

Contained in the above authorities are the concepts that

the defense is entitled to information in the possession of

the prosecution which is of an exculpatory nature, and that

the defense is entitled to information which can be of value

in impeaching prosecution witnesses, These concepts are

founded upon the principles of fair trial and justice through

the equalization of resources and the better opportunity to

reach the truth.

The Government's failure to acknowledge at an appro-

priate point that the witness. Lombardo’s statements that

he had only an occasional social association with the alleged

co-conspirators were controverted by Curran’s grand jury

testimony depicting Lombardo as the cameraman in at

least one previous criminal scheme, was prejudicial and

reversible error, The grand jury testimony of Curran was

highly indicative of Lombardo’s previous criminal involve-

ment and contradicts Lombardo’s testimony which projects

himself as a reluctant, innocent dupe:

‘*Question: (Juror) Who was the cameraman on the

two others? Was it Lombardo?

‘Question: (Mr. Hammond) Let’s take that one at a

time. Do you know who was the camera-

man on the check? The personal checks

that you did for Strahl in December?

‘‘Answer: (Curran) I’m pretty sure it was Lom-

bardo,

‘*Question: What makes you think it was Lombardo?

‘‘Answer: Ido. That’s all. .

‘*Question: Well, did someone tell you that or is that

just an impression you gathered?

11

‘‘Answer: That’s my best memory, that it is Lom-

bardo.

‘*Question: But my question is, did someone tell you

this or did you just get that impression,

or do you know or do you not remember

how you learned it!

‘‘Answer: T[really don’t remember how I learned it.’’

The crucial point at which this information could have

heen utilized was during Lombardo’s examination, The

delay irreparably harmed the defense’s ability to further

impeach a key Government witness, On the basis of Lom-

hardo’s potential perjury, the exenlpatory potential of such

information, and the extreme impeachment capacity of

such information, the Government’s action in following the

letter of 18 U.S.C, $3500 and waiting until just before Cur-

ran’s testifying was inexcusable,

That the prosecution was aware of Curran’s testimony

is obvious. That the prosecutor would permit the direct and

cross-examination of Lombardo to go forward without

concern over the contradiction in Lombardo’s past criminal

activity is suspicious and unforgivable. Agurs held that

a conviction obtained by the knowing use of perjured testi-

mony is fundanientally unfair (see Mooney vy. Iolohan,

294 U.S. 108, 55 S.Ct. 840), and must be set aside if there

is any reasonable likelihood that the false testimony could

have affected the judgment of the jury (see Giglio v. Uni-

ted States, 405 U.S, 150, 92 S.Ct. 768),

There is a major responsibility on the part of the prose-

cution to insure a fair trial, The prosecution must produce

any evidence which creates a reasonable doubt as to guilt.

Agurs, supra, 96 S.Ct. 2401-2, In United States v. McCrane,

547 F.2d 204 (1976) an issue extremely similar to this was

addressed by the Third Circuit. There the facts involved

12

a request for impeaching matter. Found to be error was

the failure to produce letters written by the United States

Attorney on behalf of the chief prosecution witness, These

letters could have been indicative of preferential treatment

and could have opened up avenues of inquiry into the re-

lationship between the witness and the United States

Attorney’s Office. Because of their impeachment poten-

tial, the Government’s failure to produce the letters in the

(discovery process was grounds for a new trial. The failure

to produce the grand jury testimony of Curran at an appro-

priate time so as to fully utilize its impact must be con-

sidered error under the same standard,

In United States v. Pollack; 584 F.2d 964, 973 (D.C. Cir.

1976), the Court stated that:

‘Disclosure by the government must be made at such

a time as to allow the defense to use the favorable

material effectively in the preparation and presenta-

tion of its case, even if satisfaction of this criterion

requires pre-trial disclosure. See, e.g., United States

v, Elmore, 423 F.2d 775, 779 (4th Cir. 1970); United

States v, Deutsch, 373 F.Supp. 289, 290-91 (S.D. N.Y.

1974). The trial judge must be given a wide measure

of discretion to ensure satisfaction of this standard.

While some courts have held that Brady affords no

pre-trial discovery rights to defendants, see United

States v. Moore, 439 F.2d 1107 (6th Cir. 1971); Uni-

ted States v. Manhattan Brush Co., 38 F.R.D. 4 (S.D.

N.Y. 1965), we believe that application of a strict rule

in this area would inevitably produce some situations

in which late disclosure would emasculate the effects

of Brady or other situations in which premature dis-

closure would unnecessarily encourage those dangers

that militate against extensive discovery in criminal

13

eases, e.g., potential for manufacture of defense evi-

dence or bribing of witnesses. Courts can do little

more in determining the proper timing for disclosure

than balance in each case the potential dangers of

early discovery against the need that Brady purports

to serve of avoiding wrongful convictions.’’

In United States v, Butler, 567 F.2d 885 (9th Cir. 1978),

the Ninth Circuit reiterated the point that:

‘(T]he government is obliged to disclose pertinent

material evidence favorable to the defense, and this

applies not only to matters of substance, but to mat-

ters relating to the credibility of government wit-

nesses, Giglio v. United States, 405 U.S. 150, 92 S.Ct.

763 (1972).

By not allowing defense counsel access to Curran’s

statement until after Lombardo had testified, the oppor-

tunity for effective employment of impeachment techni-

ques, so important to a defendant’s ability to acquit him-

self, was irretrievably lost. To place the burden upon pe-

titioner for the prosecution’s failure to recognize or to

deliver exculpatory materials at the appropriate time is an

unfair hardship. This Court ought to grant this Writ in

order to solidify the principles of fairness and openness in

the determination of criminal guilt.

14

Conclusion

lor the foregoing reasons, the petition tor writ of certi-

orari should be granted.

Respectfully submitted,

JosepH J, BAaLLio

Mark G, Miioris

One Center Plaza

Boston, Massachusetts 02108

(617) 227-5822

Attorneys for Petitioner

10

APPENDIX A

United States Court of Appeals

For the First Circuit

No. 77-1424

UNITED STATES OF AMERICA,

APPELLEE,

v.

ARTHUR J. STRAHL,

DEFENDANT, APPELLANT,

No. 77-1425

UNITED STATES OF AMERICA,

APPELLEE,

v.

JOSEPH V. PUZZANGARA,

DEFENDANT, APPELLANT.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Frank H. Freepman, U.S. District Judge)

Before Corrin, Chief Judge,

Kunzia,* Judge, U.S. Court of Claims,

DumBauLp,** Senior District Judge.

Joseph J. Balliro, with whom Mark G. Miliotis, was on brief, for

appellant, Arthur Strahl.

Harvey Brower, appearing for appellant, Joseph Puzzangara.

Kevin J. O’Dea, Assistant United States Attorney, with whom

Edward F. Harrington, United States Attorney, was on brief, for

appellee.

* Sitting by designation.

** Of the Western District of Pennsylvania, sitting by designation,

16

December 26, 1978

Corrin, Chief Judge. Appellant Strahl appeals from his

conviction of possession of a $5,000 United States Treasury

note stolen from the United States mails, of counterfeiting

and conspiring to counterfeit approximately $700,000 worth

of $5,000 Treasury notes, and of possessing, concealing, and

attempting to pass the counterfeited notes, 18 U.S.C. §§ 371,

471, 472, 1708. He was sentenced, after a jury trial, to four

years imprisonment on the conspiracy charges to run con-

currently, Appellant Puzzangara, a co-defendant of Strahl

at trial, was found guilty of possession of the stolen note

and the conspiracy charge and sentenced to five years im-

prisonment and a consecutive five year suspended sentence

with probation. Both appeal from the judgments of convic-

tion, challenging the admissibility of certain evidence at

trial and the government’s failure to produce several

‘*statements’’, allegedly in violation of the Jencks Act,

IS U.S.C. § 3500,

1. The attorney-client privilege

At trial the government called as a witness one Markella,

an attorney of Strahl over a number of years. Over de-

fense attorneys’ repeated objections, Markella was al-

lowed to identify Strahl as the man who had given him,

in partial payments for legal fees or debts owed, the

stolen Treasury note in question.’ Appellant argues that

although the identity of the client and payment of fees

generally are not within the attorney-client privilege (which

protects confidential communications), United States v.

Hodge and Zweig, 548 F.2d 1347, 1353 (9th Cir. 1977);

In re Grand Jury Proceedings, 517 F.2d 666, 670-71 & n. 2

(Sth Cir. 1975), the facts of this case remove it from the

general rule, |

' This issue concerns only Strahl’s appeal sinee there was no evi-

dence of any attorney-client relationship between Markella and

Puzzangara.

17

Beginning with the often cited case of Baird v, Koerner,

279 F.2d 623 (9th Cir. 1960), courts have recognized an

exception to this general rule when ‘‘the identification

of a client may amount to the prejudicial disclosure of a

confidential communication, as where the substance of

a disclosure has already been revealed but not its source.’’

Colton vy, United States, 306 F.2d 633, 637 (2d Cir. 1962).

See In re Grand Jury Proceedings, supra, 517 F.2d at 671-

72; NLRB vy. Harvey, 349 F.2d 900, 905 (4th Cir. 1965). In

Baird an IRS summons sought disclosure of the identity

of the clients on whose behalf the attorney had made an

anonymous tax payment, 279 F.2d at 625. The court held

that the attorney need not disclose the identity of his

clients, citing the particular facts of the case, Zd. at 631.

We find the Baird case distinguishable from this one. In

Baird, ‘‘disclosure of [the identity] of the client would

[have] implicate[d] that client in the very criminal activity

for which legal advice was sought.’’ United States v.

Hodge and Zweig, supra, 548 F.2d at 1353. There is no

indication, either in the briefs or the record, that appel-

lant Strahl went to Markella for legal advice concerning

his counterfeiting activities and disclosed confidential in-

formation to him. The testimony at trial indicates that the

stolen Treasury note was passed to Markella as payment

for past legal fees which had accumulated or to satisfy

an unrelated debt.

We ean find no furtherance of the policies behind the

attorney-client privilege, see United States v. Fisher, 425

U.S. 391, 403 (1976); United States v. Osborn, 561 F.2d

1334, 1339 (9th Cir. 1977), that would result from shielding

the payment of an attorney with stolen goods — a fraud-

ulent act as well as a convenient means of unloading highly

incriminating evidence, possession of which was itself a

crime, 18 U.S.C. § 1708, Accordingly we hold that the at-

torney-client privilege was not violated when Markella

18

testified that Strahl was the person who passed the stolen

note to him.

2. The relevance of seized counterfeited notes

Appellants contend that the trial court erred in admitting

into evidence testimony by a Secret Service agent and

records showing that approximately 140 counterfeit $5,000

United States Treasury notes had been seized in Florida

and Maryland, that they had been produced from the gen-

uine note that had been passed from Strahl to Markella,

and that betore the seizure of these same notes, no other

counterfeit $5,000 notes had come to the attention of the

Secret Service. At trial and on appeal, appellants con-

tested the relevance of the seized counterfeit notes, Fed.

R. Evid. 401, 402, 405.

Wide discretion as to the relevancy of evidence is vested

in the trial judge, both as to its probative value and its

prejudicial impact. United States v. DeVincent, 546 F.2d

452, 457 (1st Cir. 1976); United States v. Cowden, 545 F.2d

257, 268 (1st Cir, 1976), and we cannot say that that dis-

ervetion was in any way abused here. It is clear without

further elaboration that the existence of these counterfeited

notes and testimony linking them to appellants constituted

‘evidence having any tendency to make the existence of

any fact that is of consequence to the determination of the

action more probable ... than it would be without the

evidence.’’ Fed, R. Evid. 401.

3. Competency of government witness

Appellant Strahl also argues that the testimony of wit-

ness Curran, a key participant in the counterfeiting scheme

who testified for the government, should have been struck

as incredible and not worthy of jury consideration. Spee-

ifically, he claims that the witness’s memory ebbed and

faded, his demeanor was argumentative, and that he drank

19

heavily at the time of critical events about which he

testified.

The distriet judge enjoys considerable discretion in

determining the competency of witnesses. See Fed R. Evid.

104(a) ; United States v. Gerry, 515 F.2d 130, 137 (2d Cir.),

cert, denied, 423 U.S. 832 (1975); United States v. Crosby,

462 F.2d 1201 (D.C. Cir, 1972). Moreover, we believe

that the appellants’ objections were suitably treated as

questions concerning the credibility of the witness rather

than his competency. The jury was made aware of Cur-

ran’s drinking problems, his prior criminal history, his

involvement in the counterfeiting scheme and the govern-

ment favors he received for his cooperation. His credibility

as a witness was for the jury to determine, as the district

court properly ruled. See United States v. Curtis, 520 F.2d

1300, 13804 (1st Cir. 1975).

4. Delay in providing testimony received by grand jury

At trial, appellants moved for a mistrial or dismissal for

the government’s alleged failure to timely produce excul-

patory material. We find that the district court properly

denied these motions.

The testimony in question was that of government wit-

ness Curran before the grand jury, in particular a state-

ment by Curran that he believed, although he did not ‘‘re-

member how he learned’’, that government witness lom-

bardo was the cameraman on counterfeit checks that Cur-

ran had done for appellant Strahl on a previous occasion.

The government furnished the defense with this informa-

tion after Curran testified. Appellants contend that it

should have been furnished at an earlier point in the trial,

after Lombardo testified and claim both that this delay

deprived them of due process, see United States v. Agurs,

427 U.S. 97 (1976), and that it violated the timetable of the

Jencks Act, 18 U.S.C. § 3500.

20

In United States v. Agurs, supra, the Supreme Court

held that the prosecutor’s cbligation to disclose evidence

in his possession that would be material to the defense

arises in three contexts — when the prosecution has used

perjured testimony, when the defense has made a specific

request for evidence, and when the defense has made

either a general request or no request for exculpatory evi-

dence. 427 U.S, at 103. Because a general request was made

by appellants, only the third context is relevant here, in

Which the standard for materiality is a stringent one: ‘‘if

the omitted evidence creates a reasonable doubt that did

not otherwise exist, constitutional error has been com-

mitted.... .

We note first that Curran’s grand jury testimony was

useful, if at all,? only for impeaching Lombardo. We are

not faced with a situation, as in Agurs, in which the with-

held evidence may have been exculpatory, and the circuit

courts have expressed uncertainty about applying Agurs

to purely impeaching evidence. See United States v. Me-

Crane, d47 F.2d 204, 205-06 (3d Cir. 1976); Garrison v.

Maggio, 540 F.2d 1271, 1273-74 (Sth Cir, 1976), cert. denied,

481 U.S, 940 (1977) ; United States v. Lasky, 548 F.2d 835,

839 0.3 (9th Cir, 1977). We need not reach that question

here, however, because it is clear that the grand jury testi-

iiony of Curran falls considerably short of the standard

of materiality demanded by Agurs, even if it is applicable.

This is not a case in which the evidence of guilt was ten-

ious, and Lombardo’s participation in this counterfeiting

scheme was known to the jury. We cannot say that im-

peachment of Lombardo with his hearsay and rather vague

grand jury testimony concerning his past activities would

ee

? Lombardo’s testimony was that he had met Curran only socially,

‘‘probably’’, but never in connection with any counterfeiting activ-

ity. The contradiction between this and Curran’s belief that Lom-

bardo had been involved as a cameraman does not impress us as

formidable impeachment material.

*

21

have raised a reasonable doubt in the jury’s mind. See

United States v. Oliver, 570 F.2d 397, 401-02 (1st Cir. 1978).

Moreover, Curran’s testimony was turned over to the

defense at trial, albeit after Lombardo had already been

cross-examined, As the district judge pointed out to the

defense at trial, any possible prejudice easily could have

been cured by cross-examining Curran or by recalling after

Curran testified, see United States v. Kaplan, 554 F.2d

577, 580 (3d Cir, 1977), and failure to pursue either route

belies the defense claim concerning the exculpatory im-

portance of the testimony. We find that there was no due

process Violation occasioned by the delay.

We are unpersuaded as well by the appellant’s Jencks

Act argument, 18 U.S.C. § 3500. Section 3500(a) of the

Act provides that ‘‘In any criminal prosecution . . . no

statement or report in the possession of the United States

which was made by a government witness... to an agent

of the Government shall be subject to subpoena, discovery,

or inspection until said witness has testified on direct

examination in the trial of the case.’’ (Emphasis added.)

The statement in question was that of Curran, and the

government produced it at trial, after his testimony, in a

timely fashion. The fact that Curran mentioned Lombardo

does not mean that the Act’s requirements were triggered

by Lombardo’s testimony.

5. Denial of defense request for witness’ ‘‘statement”’

Appellants’ most serious grievance, we believe, is the

manner in which the court below denied their request for a

‘‘statement’’, 18 U.S.C. § 3500(e), made by government

witness Lombardo to the Assistant United States Attorney.

This request also was made pursuant to the Jencks Act,

18 U.S.C. § 3500.

The district court, after a defense motion to produce

the material, held a bench conference during which the

government attorney assured the judge that the personal

22

notes he had made when interviewing Lombardo in prep-

aration for his grand jury testimony were not a ‘‘state-

ment’’ within the meaning of the Jencks Act.? The motion

was denied, renewed again when additional information

about the interview was elicited from Lombardo during

cross-examination, and denied once again.

We are not without guidance in determining the meaning

of the term ‘‘statement’’ or the procedures by which that

determination is to be made by the trial court. In Gold-

berg v. United States, 425 U.S. 94, 98 (1976), the Supreme

Court held that if a writing prepared by a government

lawyer has been signed or otherwise adopted or approved

hy the government witness, it is producible under the

Jencks Act, It ‘tis not rendered nonproducible because a

Government lawyer interviews the witness and writes the

‘statement.’ ’’ Id. In a footnote, the Goldberg Court ex-

plained that every witness interview will involve conversa-

tions between the lawyer and witness, but the § 8599(e) (1)

requirement that the witness has ‘signed or otherwise

adopted or approved’’ what the lawyer has written ‘‘clearly

is not met when the lawyer does not read back or the

Witness does not read, what the lawyer has written.’’ Id.

at 110n, 19.

The task of the district court, then, was to decide whether

Lombardo had signed or, in some other way, adopted or

approved the interview notes made by the government

attorney, This determination is of course one of fact and

718 U.S.C. § 3500 reads in relevant part :

‘*(e) The term ‘statement,’ as used in... this section in relation

to any witness ealled by the United States, means —

(1) a written statement made by said witness and signed or

otherwise adopted or approved by him; or

_ (2) a stenographic, mechanical, electrical or other record-

ing, or a transeription thereof, which is a substantially ver-

batim recital of an oral statement made by said witness to

an agent of the Government and recorded contemporaneously

with the making of such oral statement.’’

23

will not be disturbed on appeal unless it was ‘‘clearly er-

roneous’’. See Campbell v. United States, 373 U.S. 487,

493 (1963) (Campbell Il); United States v. Carrillo, 561

F.2d 1125, 1128-29 (5th Cir, 1977), But we are troubled

by the procedures used by the court in reaching its conclu-

sion, In Campbell v. United States, 365 U.S. 85, 95 (1961)

(Campbell 1), the Court noted that an inquiry into the

existence of a Jencks Act ‘‘statement’’? was not an adver-

sary proceeding, but read the Act as imposing a duty

on the trial judge to ‘‘secure relevant and available evi-

dence necessary’’ to resolve the conflicting interests at

stake. Finding the inquiry in that case defective, the Court

remanded for further proceedings. When the case reached

the Court again in Campbell II, supra, it adopted this

court’s holding that in a Jencks Act inquiry into the exist-

ence of a ‘‘statement’’, the trial judge must consider not

only the testimony of the interviewing attorney but the

witness as well, 373 U.S. at 494. See Campbell v. United

States, 296 F.2d 527, 534 (1st Cir. 1961), vacated and re-

manded, 373 U.S. 487 (1963).*

The district court’s first denial of the defense motion to

produce Lombardo’s ‘‘statement’’ was based solely on the

government attorney’s assurances at the bench.’ Had the

issue been dropped there, we would be compelled to re-

mand for a more thorough hearing. We believe, however,

ee

The Supreme Court reversed that part of our decision finding

that the report in question was not a Jencks Act ‘‘statement’’

and held that the question was one of fact, not to be disturbed on

appeal unless ‘‘clearly erroneous’’, Campbell v. United States,

873 U.S. 487, 491-93 (1963) (Campbell IT).

8The government attorney’s opinion at the bench that his

notes were privileged work product and thus not producible under

the Jencks Act was clearly without merit in light of Goldberg v.

United States, 425 U.S. 94, 108 (1976), in which the Court specif-

ically rejected a blanket work product exception to the Act. The

district court's conclusion that the interview notes were not a

‘«Statement’’ satisfies us that the defense motion was not denied

because of the work product doctrine.

24

that the cross-examination of Lombardo by the defense

elicited enough — although harely enough — information

to form a basis for the judge’s decision, when the motion

was again denied, that Lombardo had not adopted or

approved the interview notes, Nevertheless, it must be

emphasized that the inquiry was only minimally adequate.

The court played no role in eliciting Lombardo’s testimony

and made no attempt to clarify the witness’s rather vague

responses, The interests protected by the Jencks Act would

be better served by a more active participation by the court

than occurred here.

Based on the government attorney’s assurances that he

merely had made interview notes and that there had been

no signature, adoption or approval by the witness, coupled

with Lombardo’s testimony that the attorney only ‘went

over it with me’’, we cannot say that the court’s decision

that the interview notes were not a Jencks Act ‘‘state-

ment’* was clearly erroneous. We have concluded, there-

fore, that the case should not be remanded. Our conclusion

is reinforeed by the strong evidence of guilt in this case

gathered from sources other than Lombardo, the fact that

the defense had another ‘‘statement’’ of Lombardo’s with

Which to impeach that witness, and the extensive impeach-

ment of Lombardo on cross-examination,

Accordingly, the judgments below are affirmed.

or

aw

APPENDIX B

Statutes Involved

18 U.S.C, 371. Consptracy To Comair OFrrense or 10

Derravp Unirep States

If two or more persons conspire either to commit any

offense against the United States, or to defraud the United

States, or any agency thereof in any manner or for any

purpose, and one or more of such persons do any act to

effect the object of the conspiracy, each shall be fined not

more than $10,000 or imprisoned not more than five years,

or both.

If, however, the offense, the commission of which is the

object of the conspiracy, is a misdemeanor only, the punish-

ment for such conspiracy shall not exceed the maximum

punishment provided for such misdemeanor.

18 U.S.C. 471. Opticartons or Securities or Unrrep Staves

Whoever with intent to defraud, falsely makes, for, +s,

counterfeits, or alters any obligation or other security of

the United States shall be fined not more than $9,000 or

imprisoned not more than fifteen years, or both:

18 U.S.C. 472. Urrrerinc Counrerrerr OBLIGATIONS OR

SECURITIES

Whoever, with intent to defraud, passes, utters, pub-

lishes, or sells, or attempts to pass, utter, publish, or sell,

or with like intent brings into the United States or keeps

in possession or conceals any falsely made, forged, counter-

feited, or altered obligation or other security of the United

States, shall be fined not more than $5,000 or imprisoned

not more than fifteen years, or both,

26

18 U.S.C. 1708. Terr or Receipt or Stoten Maw Martrer

GENERALLY

Whoever, steals, takes, or abstracts, or by fraud or de-

ception obtains, or attempts so to obtain, from or out of

any mail, post office, or station thereof, letter box, mail

receptacle, or any mail route or other authorized depository

for mail matter, or from a letter or mail carrier, any letter,

postal card, package, bag, or mail, or abstracts or removes

from any such letter, package, bag, or mail, any article or

thing contained therein, or secretes, embezzles, or destroys

any such letter, postal card, package, bag, or mail, or any

article or thing contained therein; or

Whoever steals, takes, or abstracts, or by fraud or de-

ception obtains any letter, postal ecard, package, bag, or

mail, or any article or thing contained therein which has

been left for collection upon or adjacent to a collection

hox or other authorized depository of mail matter; or

Whoever buys, receives, or conceals, or unlawfully has in

his possession, any letter, postal eard, package, bag, or

mail, or any article or thing contained therein, which has

heen so stolen, taken, embezzled, or abstracted, as herein

described, knowing the same to have been stolen, taken,

embezzled, or abstracted—

Shall be fined not more than $2,000 or imprisoned not

more than five vears, or both.

18 U.S.C, $3500.

‘‘(a) In any criminal prosecution brought by the

United States, no statement or report in the posses-

sion of the United States which was made by a Gov-

ernment witness or prospective Government witness

(other than the defendant) shall be the subject of

subpoena, discovery, or inspection until said witness

has testified on direct examination in the trial of the

CASC,

‘*(b) After a witness called by the United States has

testified on direct examination, the court shall, on

motion of the defendant, order the United States to

produce any statement (as hereinafter defined) of the

witness inthe possession of the United States which

relates to the subject matter as to which the witness

has testified. If the entire contents of any such state-

ment relate to the subject matter of the testimony of

the witness, the court shall order it to be delivered

directly to the defendant for his examination and use.

‘‘(e) If the United States claims that any statement

ordered to be produced under this section contains

matter which does not relate to the subject matter of

the testimony of the witness, the court shall order the

United States to deliver such statement for the in-

spection of the court in camera, Upon such delivery

the court shall excise the portions of such statement

which do not relate to the subject matter of the testi-

mony of the witness. With such material excised,

the court shall then direct delivery of such statement

to the defendant for his use. If, pursuant to such

procedure, any portion of such statement is withheld

from the defendant and the defendant objects to such

withholding, and the trial is continued to an adjudi-

cation of the guilt of the defendant, the entire text of

such statement shall be preserved by the United States

and, in the event the defendant appeals, shall be made

available to the appellate court for the purpose of de-

termining the correctness of the ruling of the trial

judge. Whenever any statement is delivered to a

defendant pursuant to this section, the court in its

diseretion, upon application of said defendant, may

recess proceedings in the trial for such time as it may

determine to be reasonably required for the exami-

28

nation of such statement by said defendant and his

preparation for its use in the trial.

‘*(d) If the United States elects not to comply with an

order of the court under subsection (b) or (c) hereof

to deliver to the defendant any such statement, or

such portion thereof as the court may direct, the court

shall strike from the record the testimony of the wit-

ness, and the trial shall proceed unless the court in its

discretion shall determine that the interests of justice

require that a mistrial be declared.

‘*(e) The term ‘statement,’ as used in subsections (b),

(c), and (d) of this section in relation to any witness

called by the United States, means—

‘*(1) a written statement made by said witness

and signed or otherwise adopted or ap-

proved by him;

‘*(2) a stenographic, mechanical, electrical, or

other recording, or a transcription thereof,

which is a substantially verbatim recital of

an oral statement made by said witness

and recorded contemporaneously with the

making of such oral statement; or

‘*(3) a statement, however taken or recorded, or

a transcription thereof, if any, made by

said witness to a grand jury.’’