Petition for Writ of Certiorari — Winfield v. United States

85-1601 | FTCED

MAR, 28 1986

JOSEPH F. SPANIOL, JR.

CLERK

CASE NO. A

in the

Supreme Court

of the

Wnited States

OCTOBER TERM, 1985

NIGEL WINFIELD,

Petitioner,

vS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR ISSUANCE OF

WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Law Offices of

MILTON E. GRUSMARK, P. A.

12550 Biscayne Boulevard

Suite 804

North Miami, Florida 33181

Tel: (305) 895-0803

QUESTION PRESENTED FOR REVIEW

I.

IS A RIGHT TO A FAIR TRIAL THWARTED

WHEN A PROSECUTING ATTORNEY FAILS

TO DISCLOSE TO THE TRIAL COURT OR

COUNSEL FOR DEFENDANTS THAT HE

LEARNED THROUGH THE UNITED STATES

MARSHALLS SERVICE THAT:

A) HIS MOST IMPORTANT WITNESS IS

COMMITTING PERJURY AND HAS

BEEN CITED ON ALLEGATIONS OF

CRIMINAL FRAUD.

B) THE RELIABILITY OF THAT WITNESS

MAY WELL BE DETERMINATIVE OF

GUILT OR INNOCENCE OF THE

DEFENDANT.

AND WHEN:

THE SUPPRESSION OF THE INFORMATION

CONCERNING THE WITNESS WOULD

UNDERMINE CONFIDENCE IN THE OUT-

COME OF THE TRIAL.

LIST OF THE PARTIES TO THE PROCEEDING

Nigel Winfield

Gabriel Robert Caggiano

Raymond W. Baszner

J. Laurence Wolfson (deceased)

a

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ae

LIST OF THE PARTIES TO THE PROCEEDING il

TABLE OF CONTENTS ill

TABLE OF AUTHORITIES iV

OPINIONS BELOW 2

JURISDICTIONAL STATEMENT 2

CONSTITUTIONAL PROVISION 3

STATUTORY PROVISION 3

STATEMENT OF THE CASE AND FACTS 6

THE MOTIONS FOR NEW TRIAL 11

REASONS FOR GRANTING THE WRIT 14

CONCLUSION 23

APPENDIX 24

«t=

TABLE OF AUTHORITIES

Page

Giglio v. United States,

405 U.S. 150, 154, 92 S.Ct. 763, 766 (1972) .. 18

United States v. Bagley,

WOR Re SITS TO a coe ns 15, 17, 18

OTHER AUTHORITIES CITED:

The United States Supreme Court Rules,

5 ass a okie > ate eee ea ee ee ke 2

The United States Code,

py ee ek | ne Ore eae 2

ee ee as he ra a eee 3

(cg ey: re ee 4

See ae CE Ee ha ke oes a eee Se 4

Te: Be Ce vie a eee es wR Re a

United States Constitution,

SR ee eek Va ata eek 3

le ee

CASE NO.

in the

Supreme Court

of the

United States

OCTOBER TERM, 1985

NIGEL WINFIELD,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR ISSUANCE OF

WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Law Offices of

MILTON E. GRUSMARK, P. A.

12550 Biscayne Boulevard

Suite 804

North Miami, Florida 33181

Tel: (305) 895-0803

OPINIONS BELOW

The opinion of the Sixth Circuit, reproduced and

attached hereto as Appendix “A”, is unreported. The

judgment and sentence of the United States District

Court, Western District of Tennessee, was entered on

September 8, 1982.

JURISDICTIONAL STATEMENT

The judgment and the opinion of the Sixth Circuit

was entered on December 2, 1985. A petition for

rehearing and a petition for rehearing en banc were

timely filed and an order denying the petition for

rehearing and rehearing en banc was filed january 28,

1986. A copy of that order is attached as Appendix “B”.

Petitioner invokes the jurisdiction of this Court under

Title 28, Section 1254(1) and Supreme Court Rule 17.1

(c).

Rule 17.1(c):

“(c) When a state court or a federal court of

appeals, has decided an important question of

federal law which has not been, but should be,

settled by this Court, or has decided a federal

question in a way in conflict with applicable

decisions of this Court.”

CONSTITUTIONAL PROVISION

The Fifth Amendment to the United States

Constitution:

“No person shail be held to answer for a

capital or otherwise infamous crime, unless on

a presentment or indictment of a Grand Jury,

except in cases arising in the !and or naval

forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any

person be subject for the offense to be twice put

in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty,

Or property, without due process of law; nor

shall private property be taken for public use,

without just compensation.”

STATUTORY PROVISION

Title 18, United States Code, Section 2:

“(a) Whoever commits an offense against the

United States or aids, abets, counsels,

commands, induces or procures its commission,

is punishable as a principal.

(b) Whoever willfully causes an act to be done

which if directly performed by him or another

would be an offense against the United States,

is punishable as a principal.”

Title 18, United States Code, Section 371:

“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 mst 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 punishment for such

conspiracy shall not exceed the maximum

punishment provided for such misdemeanor.”

Title 18, United States Code, Section 1343:

“Whoever, having devised or intending to devise any

scheme or artifice to defraud, or for obtaining money or

property by means of false or fraudulent pretenses,

representations, or promises, transmits or causes to be

transmitted by means of wire, radio, or television

communication in interstate or foreign commerce, any

writings, signs, signals, pictures, or sounds for the

purpose of executing such scheme or artifice, shall be

fined not more than $1,000. or imprisoned not more than

five years, or both.”

Title 18, United States Code, Section 2314:

“Whoever transports in interstate or foreign

commerce any goods, wares, merchandise,

securities or money, of the value of $5,000. or

more, knowing the same to have been stolen,

converted or taken by fraud; or...”

STATEMENT OF THE CASE AND FACT

Petitioner (together with Raymond Baszner, Robert

Caggiano, and J. Laurence Wolfson) was charged on

November 17, 1978 with four counts of wire fraud,

aiding and abetting in wire fraud, conspiracy to commit

wire fraud, and transportation of stolen property in

interstate property. He was found not guilty on June 15,

1982 of five of the counts, but was found guilty as to

count five; Title 18, Section 2314.

Appeals followed.

On December 7, 1983 motions for new trial were

filed by Petitioner and the other defendants, basically

charging misconduct in not revealing perjury, which was

committed by the chief prosecutorial witness, Fred Pro.

On May 18, 1984, the motions for new trial were

denied.

The appeal of the convictions and the denial of

motion for new trial were consolidated. The Sixth

Circuit affirmed both the conviction and the denial of the

motion for new trial.

This Petition is addressed to the opinion of the

United States Court of Appeals for the Sixth Circuit.

~* ee Hh *

Nigel Winfield is an aircraft broker.

He had sold pianes to and for Elvis Presley. Presley

owned an airplane known as a Lockheed Jetstar which he

had bought for personal uses.

At the time of the events involved in this case, a

great deal of money was owed on the plane to the

American National Bank of Morristown, New Jersey.

Foreclosure was imminent.

Vernon Presley, Elvis’ father, was handling all the

business affairs concerning the plane and negotiations

for proposing financing.

Vernon Presley devised a plan to save the plane, and

turn it into a source of income. The plane was to be sold

to a leasing company called W.W.P., and operated by

one, Hans Achtman. The purchase price was to be Nine

Hundred Fifty Thousand Dollars ($950,000.00). The

money was to be secured by Achtman_ through

refinancing with the Chemical Bank of New York, with

the plane to be used as collateral.

In order to make the plane worth the loan value, it

was intended that the plane would be “upgraded” to

permit commercial use after paying off the loan in New

Jersey. The remaining funds, Three Hundred Thirty

Eight Thousand Dollars ($338,000.00) would be used in

doing the necessary upgrading work.

Presley leased the plane from W. W. P. for a period

of seven years, and then in turn subleased to Air Cargo

for a period of ten years. Air Cargo was a company

owned and operated by a Fred Pro.

The sublease agreement to Air Cargo (Pro) was for

One Thousand Dollars ($1,000.00) a month more than

the lease from W. W. P. At the end of the seven year

lease, the plane was to revert to Presley for One Dollar

($1.00), and the bank would have been paid off.

Under the agreement, Air Cargo was to be

responsible for doing the upgrading of the plane. World

Aircraft Exchange, Inc. was to be responsible for the

supervision of the upgrading. A corporation known as

Trans World Industries was to do part of the upgrading.

That corporation was controlled by J. Laurence Wolfson.

Neither Winfield nor Commercial Air Transport

(Winfield’s corporation) was to be paid anything.

Winfield, as the broker for the plane, would only receive

money after the plane had started producing profits

through the arrangement. The agreement was executed.

An addendum to the lease was executed on June 235,

1976.

It provided that W.W.P. would release funds in a

specified order.

First, the bank in Morristown, New Jersey would be

paid off; then Air Cargo Express would be paid money

for upgrading and World Aircraft Exchange would be

paid for supervising the upgrading.

It also provided that no fees or commissions would

be paid by W.W.P. to Nigel Winfield or Commercial Air

Transport Sales.

On July 13, 1976, in accordance with the

agreements, invoices were presented for payment.

Winfield was not present.

Presley approved payment of the amounts requested

on the invoices.

A check for Three Hundred Thirty Eight Thousand

Dollars ($338,000.00) was taken from W.W.P. to Vernon

Presley. Six Hundred Thousand Dollars ($600,000.00)

was paid to the bank in Morristown, New Jersey.

Presley then directed his banker to make out the

checks in payment of the invoices he had been given.

Checks were then drawn to Air Cargo Express, Trans

World Industries, and World Aircraft Exchange.

No invoices were presented by Winfield or

Commercial Air Transport.

No check was drawn or paid to either Winfield or

Commercial Air Transport.

At the time the checks were drawn, Fred Pro gave

the check payable to Trans World Industries to Winfield

in Wolfson’s absence.

No testimony was introduced indicating what was

done with that check. The checks all cleared. No

payment was ever made to Nigel Winfield or his

corporation. A check for Forty Thousand Dollars

($40,000.00) was paid by Trans World Industries to one,

Ena Winfield.

No evidence was ever introduced identifying Ena

Winfield or explaining what that check to Ena Winfield

was for.

Since the jury found Winfield not guilty of all

conspiracy or mail fraud charges, the evidence related

10

above is the only evidence pertinent to the Count on

which Winfield was found guilty and sentenced.

Fred Pro testified that the defendants had agreed not

to do the upgrading. No other witness testified to such

an agreement.

THE MOTIONS FOR NEW TRIAL

On June 1, 1982, the prosecutor, Joe Dycus, knew

that a temporary restraining order had been entered

against Fred Pro by the Securities and Exchange

Commission. Pro was served with that order during a

noon break, and while he was testifying as a Government

witness.

The order of the Securities Exchange Commission

disclosed that Pro was charged with fraud, deception,

looting of the assets of companies in Texas, and

diverting a One Million Dollar ($1,000,000.00) check

belonging to a corporation known as Jet Industries, Inc.,

to his own constructive possession. That information

was shown by an Affidavit attached to the S.E.C.’S

temporary restraining order.

It was also revealed that prior to that, in 1981, Pro

had then been operating under the name of DeVeau

while free from custody under the Witness Protection

Program, had looted the assets of a company known as

11

Electric Car Company and transferred those assets from

California to Texas.

Serious concern about Pro/DeVeau and possible

renewed criminal activity arose in 1981. Members of the

F.B.I. and the U.S. Probation Department were involved

from that time on.

A week before he testified in this case, Pro/DeVeau

was deposed in San Antonio. At that time, his activities

(leading to criminal conviction) were revealed. Present

were the F.B.I., U.S. Probation, a member of the UV. S.

Department of Energy, and others. It was also known

that Pro would be testifying in Memphis.

On May 31, 1982, the U. S. District Court in Texas

issued the temporary restraining order against Pro, which

both Pro and Dycus were aware of while Pro was on the

stand in this case.

At the trial, Pro was relied on by the Government as

the major witness.

At the trial Pro lied and said that he had not

committed criminal acts since his release from custody.

On October 5, 1982, Pro was adjudicated guilty of

criminal and civil contempt before the U. S. District

12

Court in San Antonio and sentenced to serve one

hundred seventy-nine (179) days.

He was indicted, tried, found guilty, and sentenced

to serve twenty (20) years.

That conviction was for crimes committed after his

plea, but before his testimony in this case.

The Assistant United States Attorney trying the case

never informed counsel for the defendants or the Court

of the information he had received during the time Pro

was testifying.

13

REASONS FOR GRANTING THE WRIT

IS A RIGHT TO A FAIR TRIAL THWARTED

WHEN A PROSECUTING ATTORNEY FAILS

TO DISCLOSE TO THE TRIAL COURT OR

COUNSEL FOR DEFENDANTS THAT HE

LEARNED THROUGH THE UNITED STATES

MARSHALLS SERVICE THAT:

A) HIS MOST IMPORTANT WITNESS IS

COMMITTING PERJURY AND HAS

BEEN CITED ON ALLEGATIONS OF

CRIMINAL FRAUD.

B) THE RELIABILITY OF THAT WITNESS

MAY WELL BE DETERMINATIVE OF

GUILT OR INNOCENCE OF THE

DEFENDANT.

AND WHEN:

THE SUPPRESSION OF THE INFORMATION

CONCERNING THE WITNESS WOULD

UNDERMINE CONFIDENCE IN-~ THE

OUTCOME OF THE TRIAL.

14

The Court of Appeals for the Sixth Circuit in its

opinion made short shrift of the misconduct contention.

“With respect to the assertion that the

government wrongfully withheld information

concerning Fredrick Pro’s more_ recent

fraudulent activity, contrary to the principles set

forth in Brady v. Maryland, 373 U.S. 83 (1963)

we acknowledge that the issue is not without

difficulty. Nevertheless, we are constrained to

agree with the trial judge that there is no

reasonable probability that had the information

in question been disclosed to defense counsel,

the result of the proceedings would have been

different. See, United States v. Bagley, 53

U.S.L.U. 5084 (U.S. July 2, 1985) especially

given the extensive defense cross—examination

going to the impeachment of Pro during the

course of the trial.”

The charge of interstate transportation of

fraudulently taken checks, knowing they had been

secured, through fraud was the only charge on which

Petitioner was convicted. He was acquitted of five other

counts. The only witness who testified as to knowledge

of fraud was Fred Pro. He was the only witness who

said that Petitioner had no intention of performing the

work for which the check was received. Without his

15

testimony on that count, no relevant evidence would have

been presented.

The cross-examination of Pro was extensive. It was

directed at showing that he alone was the culprit. It was

directed at showing that he was still engaged in

fraudulent activities, doing the same thing he had done

in the instant case.

He insisted that though he had done wrong in the

past, he had reformed, was honest, and had committed

no crimes since imprisonment. He insisted he was

telling the truth that day.

MR. PRO: “I committed a crime and I’m sorry

I done it, I wouldn’t want to do it again. I don’t

ever want to commit a crime again.”

(November 17 - p. 1850-51).

MR. COLLINS ON CROSS: “Mr. Pro, to the

best of your present recollection have you been

truthful and candid to this court and jury on the

question put to you by counsel in this case. . .”

MR. PRO: “Yes.” (Vol. 21, p. 23-49)

MR. GRUSMARK: “. . .The difference in this

situation is that perjury is now _ being

committed. We are not concerned with past

16

acts. He has sworn here today to be telling the

truth. If the government knows now, if it knows

now that what he has said from the stand is not

the truth, it has an obligation to speak up, not

to permit perjury to be told to this jury, .. .”

(Vol. 19, p. 2097)

The Circuit Court completely overlooked the

meaning of United States v. Bagley, 105 S.Ct. 3375

(1985). Here, the Assistant U.S. Attorney trying the

case, had actual physical possession of a rule to show

cause issued by the Securities and Exchange

Commission clearly showing Pro’s involvement in the

same type of criminal activities for which he had been

convicted.

The Assistant U.S. Attorney was given that subpoena

on the day that Pro began testifying.

He had actual knowledge then that perjury was being

committed by Pro.

He did not inform the attorneys for the defendants.

He did not even inform the Court in camera.

17

* * * * KX *

This petition is based solely on United States v.

Bagley, supra. In the opinion of the Court, in Part I, note

4, p. 3378 it is stated:

“The Assistant United States Attorney who

prosecuted respondent stated in_ stipulated

testimony that he had not known that the

contracts existed and that he would have

furnished them to respondent had he known of

them.” See App. to Pet. for Cert. 13a.

Here the Assistant U. S. Attorney did know, but did

not furnish the information to Petitioner or even to the

Court.

Since Pro was the only witness to the necessary

element of knowledge in the transportation charge, his

truthfulness was crucial.

As this Court stated in Bagley:

“Impeachment evidence, however, as well as

exculpatory evidence, falls within the Brady

rule. See Giglio v. United States, 405 U.S. 150,

154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972).

Such evidence is ‘evidence favorable to an

accused,’ Brady, 373 U.S., at 87, 83 S.Ct., at

18

1196, so that, if disclosed and used effectively,

it may make the difference between conviction

and acquittal. Cf. Napue v. Illinois, 360 U.S.

264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217

(1959) (‘The jury’s estimate of the truthfulness

and reliability of a given witness may well be

determinative of guilt or innocence, and it is

upon such subtle factors as the possible interest

of the witness in testifying falsely that a

defendant’s life or liberty may depend’).

Information concerning that reliability could not

have been more specifically requested.

Here the prosecutor remained silent although he held

in his physical possession the precise information

requested disclosing Pro’s perjury.

It is difficult to see how suppression of Pro’s perjury

could have been more material.

Part Ill of Bagley, supra, note 8, at p. 3382 contains

the following statements concerning the knowing use of

perjured testimony:

“. . .In Mooney v. Holohan, 294 U.S. 103, 55

S.Ct. 340, 79 L.Ed 791 (1935), the Court

established the rule that the knowing use by a

state prosecutor of perjured testimony to obtain

19

a conviction ard the deliberate suppression of

evidence that would have impeached and

refuted the testimony constitutes a denial of due

process. The Court reasoned that ‘a deliberate

deception of court and jury by the presentation

of testimony known to be perjured’ is inconsis-

tent with the ‘rudimentary demands of justice.’

Id., at 112, 55 S.Ct., at 341. The Court

reaffirmed this principle in broader terms in

Pyle v. Kansas, 317 U.S. 213, 63, S.Ct. 177, 87

L.Ed. 214 (1942), where it held that allegations

that the prosecutor had deliberately suppressed

evidence favorable to the accused and had

knowingly used perjured testimony were

sufficient to charge a due process violation.

The Court again reaffirmed this principle in

Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3

L.Ed.2d 1217 (1959). In Napue, the principal

witness for the prosecution falsely testified that

he had been promised no consideration for his

testimony. The Court held that the knowing use

of faise testimony to obtain a _ conviction

violates due process regardless of whether the

prosecutor solicited the false testimony or

merely allowed it to go uncorrected when it

appeared. The Court explained that the

principle that a State may not knowingly use

false testimony to obtain a conviction--even

20

false testimony that goes only to the credibility

of the witness--is ‘implicit in any concept of

ordered liberty.’ Id., at 269, 79 S.Ct., at 1177.

Finally, the Court held that it was not bound by

the state court’s determination that the false

testimony ‘could not in any _ reasonable

likelihood have affected the judgment of the

jury.’ Id., at 271, 79 S.Ct., at 1178. The Court

conducted its own independent examination of

the record and concluded that the false

testimony ‘may have had an effect on the

utcome of the trial.’ Id., at 272, 79 S.Ct., at

1178. Accordingly, the Court reversed the

judgment of conviction.

In Bagley, supra, this Court repeated a statement

made ir Giglio v. United States, 405 U.S. 150, 154, 92

S.Ct. 763, 766 (1972):

“When the ‘reliability of a given witness may

well be determinative of guilt or innocence,’

nondisclosure of evidence affecting credibility

falls within the general rule of [Brady].”

The realities of the criminal trial court make it

inevitable that the prosecutor must frequently accept the

fact that it uses unsavory characters as its witnesses.

21

It is usually argued that “we cannot find

co-conspirators in the churches or the synagogues. But,

it is argued “this man has changed, he is today telling

the truth.”

The argument is probably valid most of the time.

However, what if today he is not telling the truth.

This petition presents the Court with a case where

the witness not only had not reformed, but was not

telling the truth, and the prosecutor knew it.

22

CONCLUSION

It is respectfully requested that this Court issue its

Writ of Certiorari so that the case may be briefed and

the record may be reviewed.

Respectfully submitted,

Law Offices of

MILTON E. GRUSMARK, P. A.

Attorney for Petitioner

12550 Biscayne Boulevard

Suite 804

North Miami, Florida 33181

Tel: (305) 895-0803

By: Poe 4...

Milton E. Grusmark

INDEX TO APPENDIX

Page

Opinion of the Sixth Circuit Court of

RI 5 0 CaO ae ee App. “A”

Order of Denial of Rehearing.... . App. “‘B”

24

Appendix

APPENDIX A

[RECEIVED FEBRUARY 26, 1986]

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NOS. 82-5573

82-5587

82-5598

84-5488

84-5906

UNITED STATES OF AMERICA,

Plaintiff/Appellee,

versus

NIGEL WINFIELD,

GABRIEL ROBERT CAGGIANO,

RAYMOND W. BASZNER,

Defendants/Appellants.

Appeals from the United States District Court

For The Western District of Tennessee

(December 2, 1985)

Before: ENGEL and MILBURN, Circuit Judges and

CELEBREZZE, Senior Circuit Judge

App. A-1

PER CURIAM:

Raymond W. Baszner, Gabriel Robert Caggiano, and

Nigel Winfield appeal their jury convictions in the United

States District Court for the Western District of Kentucky

for interstate transportation of property and money taken

by fraud and aiding and abetting the crime. The defen-

dants also appeal from the district court’s order denying

their motions for a new trial on the basis of newly dis-

covered evidence.

In October, 1977, Baszner, Caggiano and four other

co-defendants were charged in a seventeen-count indict-

ment with mail and wire fraud, interstate transportation

of fraudulently obtained property and money, and con-

spiracy. At an August, 1978 trial on these charges, the

jury convicted one defendant but failed to reach a verdict

on any count against Caggiano and on eight of the counts

against Baszner. The jury acquitted Baszner on one

count of mail fraud and two counts of wire fraud. The

court declared a mistrial concerning the counts of the

indictment on which the jury had been unable to reach a

verdict.

On November 17, 1978, a superseding indictment

was returned against Baszner, Caggiano, a third original

co-defendant named J. Laurence Wolfson, and a new

defendant, Nigel Winfield.

The new indictment charged these defendants with

essentially the same counts, and did not contain any mail

App. A-2

fraud charges or any of the charges on which Baszner

had been acquitted. After several lengthy delays, the

defendants went to trial in May, 1982. The jury acquit-

ted each of the defendants on Counts 1, 2, 3, 4, and 7.

However, it found Winfield and Wolfson guilty on Count

5 and Baszner and Caggiano guilty on Count 6. Those

counts charged interstate transportation of property and

money taken by fraud and aiding and abetting the crime.

The defendants appealed these convictions.

While the appeals were pending, the defendants dis-

covered evidence that Frederick Pro, a key government

witness against them, had perjured himself at the trial.

They moved the district court for a new trial based on

this newly discovered evidence. A panel of our court

granted a motion holding the appeals of their convictions

in abeyance, pending resolution of the motions for new

trial by the district court. On May 18, 1984, the district

court entered an order denying the motions for new trial.

Arguments concerning the denial of these motions have

been consolidated with the appeals from the convictions.

On appeal the parties raise numerous issues. Win-

field argues (1) that there is insufficient evidence to

show that he knew that any checks had been taken by

fraud, (2) that he was prejudiced by the improper admis-

sion in evidence of a check from Trans World Industries

to Ena Winfield, and (3) that the finding of not guilty on

the conspiracy charge shows that the jury considered im-

proper hearsay testimony in reaching the verdict of guilty

on the substantive charge. Caggiano argues (1) that he

App. A-3

was denied his right to a speedy trial, (2) that the trial

court improperly excluded hearsay testimony concerning

what Vernon Presley would have testified had he been

alive at the time of the second trial, and (3) that he was

denied due process when the trial court failed to give the

jury an Allen charge or modified Allen charge. Baszner

contends (1) that he is entitled to a new trial because the

government violated the Jencks Act, (2) that it was preju-

dicial error to allow the prosecution to present the vide-

otaped deposition of Vernon Presley, and (3) that the

district court erred in holding that the government was

not collaterally estopped from prosecuting the supersed-

ing indictment. All three defendants argue that the trial

court erred in denying their motions for new trial based

upon newly discovered evidence. The government con-

tends that the court of appeals has no jurisdiction over

the appeals of Winfield and Baszner from the denial of

their motions for new trial because these defendants did

not file timely notices of appeal.

Of the several issues presented by the defendants,

the most serious are the claim by Caggiano that he was

denied his constitutional right to a speedy trial and the

claim of all the defendants that their right to a fair trial

was fatally impaired by the government’s failure to no-

tify defense counsel of Frederick Pro’s alleged fraudulent

misconduct between the time of the first and the second

trials.

With respect to the speedy trial issue, we note that

this case was commenced before the effective date of the

App. A-4

sanctions provision of the Speedy Trial Act. 18 U.S.C.

Section 3163 (1982). Therefore, we measure the circum-

stances here against the constitutional standards estab-

lished by the United States Supreme Court in Barker v.

Wingo, 407 U.S. 514 (1972). We conclude that under the

four-part balancing test of Barker, Caggiano’s Sixth

Amendment right to a speedy trial was not denied.

With respect to the assertion that the government

wrongfully withheld information concerning Frederick

Pro’s more recent fraudulent activity, contrary to the

principles set forth in Brady v. Maryland, 373 U.S. 83

(1963), we acknowledge that the issue is not without dif-

ficulty. Nevertheless, we are consirained to agree with

the trial judge that there is no reasonable probability that

had the information in question been disclosed to de-

fense counsel, the result of the proceedings would have

been different, see United States v. Bagley, 53 U.S.L.W.

5084 (U.S. July 2, 1985), especially given the extensive

defense cross-examination going to the impeachment of

Pro during the course of trial.

We find no merit to the other claims raised by the

defendants.

Accordingly, the judgment of the district court is

AFFIRMED.

App. A-5

APPENDIX B

[FILED JANUARY 28, 1986]

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NOS. 82-5573

82-5587

82-5598

84-5488

84-5906

UNITED STATES OF AMERICA,

Plaintiff/Appellee,

versus

NIGEL WINFIELD,

GABRIEL ROBERT CAGGIANO,

RAYMOND W. BASZNER,

Defendants/Appellants.

Appeals from the United States District Court

For The Western District of Tennessee

ON PETITION FOR REHEARING EN BANC

Before: ENGEL and MILBURN, Circuit Judges and

CELEBREZZE, Senior Circuit Judge

App. B-1

eee

PER CURIAM:

The Court having received a petition for rehearing

en banc, and the petition having been circulated not only

to the original panel members but also to all other active

judges of this Court, and no judge of this Court having

requested a vote on the suggestion for rehearing en banc,

the petition for rehearing has been referred to the

Original hearing panel.

The panel has further reviewed the petition for re-

hearing and concludes that the issues raised in the peti-

tion were fuliy considered and upon the original submis-

sion and decision of the case. Accordingly, the petition

is denied.

ENTERED BY ORDER OF THE COURT

JOHN P. HEHMAN, CLERK

App. B-2