# Petition — Strahl v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 440 U.S. 918

## Text

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.’’

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2366%3A1. Public record. Not legal advice.