Opposition Brief — Schledwitz v. United States

—

OCTOBER TERM, 1995

KARL A. SCHLEDWITZ, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WALTER DELLINGER

Acting Solicitor General

JOHN C, KEENEY

Acting Assistant Attorney

General

LISA SIMOTAS

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether the government’s failure to disclose an

FBI report of an interview with an unindicted co-

conspirator entitled petitioner to a new trial under

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

(I)

TABLE OF CONTENTS

Page

A ES ESEE ACAI ARES Ce LES tose l

i Na belaabtedas l

RETIRE AIS acer aD avdiedowielaes 2

MINING © Gisidictovecvecabeciins péunevenedduntidsonteentioodcesecs lomnicetendeteds 4)

tee pe CO NEES DIOR NAC ATED 19

TABLE OF AUTHORITIES

Cases:

Banks v. Reynolds, 54 F.3d 1508 (10th Cir.

EES TSN TR Lites Of A AP ER 12, 13, 14

Barnes v. Thompson, 58 F.3d 971 (4th Cir. 1995) a 1]

Brady vy. Maryland, 373 U.S. 83 (1963) ............. 2,10

Giles v. Maryland, 386 U.S. 66 (1967) .......... po Se i]

Hatch v. Oklahoma, 58 F.3d 1447 (10th Cir. 1995),

cert. denied, 116 S. Ct. 1881 (1996) ............ ea 14

Kyles v. Whitley, 115 S. Ct. 1555 (1995) .............. 7, 10, 14

United States v. Agurs, 427 U.S. 97 (1976) ........ 10-11 14

United States vy. Bagley, 473 U.S. 667 (1985) . 7, 8, 10, 12

United States v. Me ros, 866 F.2d 1304 (11th Cir.).

cert. denied, 493 U.S. 932 (1989) ..... pobivinbnicntenidisibinniwabiis 1]

United States v. O'Dell, 805 F.2d 637 (6th Cir.

1986), cert. denied, 484 U.S. 859 (1987) ................... 6

United States v. Todd, 920 F.2d 399 (6th Cir.

OE ESET Sen Oe One ee 1]

Statutes and rule:

I Ra 2

I i 2

I a ae 2,4

(IIT)

Jn the Supreme Court of the United States

OCTOBER TERM, 1995

No. 95-2034

KARL A. SCHLEDWITZ, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

12a) is unpublished, but the judgment is noted at 72

F.3d 130 (Table). An opinion dissenting from the de-

nial of rehearing en banc (Pet. App. 37a-42a) is re-

ported at 86 F.3d 73. The opinions of the district

court (Pet. App. 29a-33a, 34a-35a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

December 4, 1995. A petition for rehearing was

denied on March 18, 1996. Pet. App. 36a. The petition

for a writ of certiorari was filed on June 17, 1996 (a

Monday). The jurisdiction of this Court is invoked

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

(1)

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of Tennessee, peti-

tioner was convicted on three counts of mail fraud, in

violation of 18 U.S.C. 1341 and 1342. He was sen-

tenced to six months’ confinement in a halfway house.

The court of appeals affirmed. Pet. App. 13a-20a.

Petitioner subsequently moved for a new trial pursu-

ant to Federal Rule of Criminal Procedure 33, argu-

ing that the government had failed to disclose a report

of an FBI interview in violation of Brady v. Mary-

land, 373 U.S. 83 (1963). The district court denied

petitioner’s motion for a new trial, Pet. App. 29a-33a,

and denied his motion for reconsideration, id. at 34a-

35a. The court of appeals affirmed. /d. at la-12a.

1. The charges of which petitioner was convicted

stemmed from loans made to him by various banks

owned or controlled by Jacob (Jake) F. Butcher and

his brother, C.H. Butcher, Jr. Counts One through

Three of the indictment alleged that petitioner

received more than $1 million in loans between 1979

and 1982, although his income during that period was

insufficient to justify the loan amounts.’ The pro-

ceeds of the loans were largely used for the personal

benefit of the Butchers, and petitioner therefore was

a mere “nominee” on the loans. Petitioner was not

| Petitioner was convicted on Counts One through Three |

of the indictment, all of which charged a scheme to defraud

banks controlled by the Butchers. C.A. App. 14-21. Counts

Four through Eight alleged a scheme on petitioner’s part to

defraud the successors in interest to the failed Butcher banks.

Id. at 21-25. The district court dismissed Counts Four through

Eight at trial, on the ground that there was no evidence that

petitioner could have repaid any more money than he did to

the successors in interest. Pet. App. 2a.

|

3

personally responsible for repaying the loans, but

instead used further loans from Butcher-controlled

institutions to cover the interest payments. In

return for being a “player” in the Butcher organiza-

tion, petitioner, a lawyer, was entitled to keep some of

the loan proceeds and received legal work from the

Butchers. Pet. App. 13a-14a; C.A. App. 14-16. In to-

tal, petitioner borrowed more than $1.5 million be-

tween 1979 and 1982, in which years petitioner had

annual income of $34,313, $28,385, $31,994, and $52,163,

respectively. Pet. App. 14a & n.1.

In proving Count One of the indictment,’ the gov-

ernment established that in 1979, petitioner “bor-

rowed” approximately $450,000 from banks controlled

by Jake Butcher. Petitioner’s income in 1979 was

$34,313; in the preceding year, his income was $13,293.

Pet. App. 3a, 14a n.1. The proceeds of those loans

were used to purchase stock in United American

Bank (UAB) of Knoxville—a bank controlled by Jake

Butcher. Jesse Barr, a close associate and self-de-

scribed “alter ego” of Jake Butcher’s (C.A. App. 431),

testified that Jake had asked petitioner to buy the

UAB stock because Butcher wanted to maintain the

price of the stock by creating a market for it. Barr

also testified that he had “handled” petitioner’s stock

loan at Butcher’s request. Jd. at 449-450, 452. Barr

testified, however, that nothing about the stock trans-

action was illegal and that he did not believe peti-

“ Only Count One is discussed in detail, because the excul-

patory statements that peiitioner contends were not disclosed

concern only the fraudulent transaction alleged in that count.

d

tioner had ever committed any crimes. /d. at 481, 491.

Neither of the Butcher brothers testified at trial.’

2. On August 17, 1994, after his conviction had

been affirmed on appeal (Pet. App. 13a-20a), petitioner

moved for a new trial pursuant to Federal Rule of

Criminal Procedure 33. Petitioner asserted that the

government had improperly failed to disclose informa-

tion concerning exculpatory statements made by Jake

Butcher during an interview with agents of the

Federal Bureau of Investigation (FBI). Pet. App. 4a-

5a. The government maintained that it had disclosed

the FBI report of the Jake Butcher interview in

petitioner’s 1990 prosecution in the Western District

of Tennessee. Jd. at 5a. Petitioner’s attorneys from

the earlier trial provided affidavits denying any

knowledge of such an interview. /d. at 5a, 3la. For

purposes of petitioner’s motion for 4 new trial, the

district court assumed that the interview report

(known as an “FBI 302” or “302”) had never been dis-

closed to petitioner. [bid.

The government then produced an FBI 302 report

memorializing an interview conducted with Jake

% The fraudulent scheme charged in Counts Two and

Three of the indictment concerned transactions with banks

controlled by C.H. Butcher, Jr. The government alleged and

proved that petitioner had received a series of loans from C.H.

Butcher’s banks, and that petitioner had used part of the

proceeds of those loans to pay off C.H. Butcher’s gambling debt

at the Aladdin Hotel and Casino in Las Vegas. C.A. App. 17-18;

Horne 7/13/92 Tr. 23-26; Horne 7/15/92 Tr. 1-8; Gov’t Exh. 25-

28, 60. In addition, the government proved that as part of the

overall scheme to defraud, petitioner had “borrowed” $55,810

from UAB of Knoxville, the proceeds of which were used by

C.H. Butcher to purchase insurance. C.A. App. 16; Horne

7/13/92 Tr. 17-22; Gov’t Exh. 18, 56-59.

5

Butcher at the Federal Prison Camp in Atlanta,

Georgia on October 29, 1985. With respect to the

UAB stock transaction, Butcher stated that he had

approached petitioner, who was his friend, about the

purchase of UAB stock because Butcher wanted

people to buy the stock in order to maintain a market

for it. C.A. App. 288-289, 291. Butcher could not

remember whether he had arranged the financing for

petitioner’s purchase of the stock, although he had

done so for other individuals. He denied that peti-

tioner was holding the stock in trust for him or that

petitioner was obligated to give Butcher the proxy

vote on the stock. Jd. at 289, 291. Butcher also stated

that he had never told petitioner that interest pay-

ments on the stock loan would be made by or through

Butcher. Jd. at 291. Butcher denied having directed

other people to petitioner’s legal practice, but he

stated that petitioner had represented Butcher in

some corporate matters. Jd. at 291, 292.

The FBI 302 also revealed that Special Agent J.

Alan Horne of the Internal Revenue Service had been

present at the interview of Jake Butcher. C.A. App.

288. Horne, who had since left government service,

testified as an expert witness for the government at

petitioner’s trial. Pet. App. 6a.

In moving for a new trial, petitioner submitted affi-

davits froza his trial counsel explaining how the FBI

302 report could have been used to bolster his defense.

See C.A. App. 283-285, 347-348. Trial counsel asserted

that Horne “could have been cross-examined * * *

concerning the facts of Mr. Butcher’s statement to

him and it would have been brought out that Mr.

Butcher did not consider [petitioner] to have been a

nominee.” Jd. at 285. Counsel also stated that the

report could have been used to “impeach{] the per-

ag a ee eee en

6

ceived objectivity of [Horne], the Government’s sole

expert witness.” Jd. at 348. Finally, counsel sug-

gested that Jake Butcher’s attorney, who was present

at the interview, might have been called as a defense

witness if the 302 report had been disclosed to the

defense. Jbid. The affidavits did not suggest that

Butcher himself would have been called as a witness if

counsel had been made aware of the report.

3. The district court denied petitioner’s motion for

anew trial. Pet. App. 29a-33a. The court applied the

standard articulated in United States v. O’Dell, 805

F.2d 637, 640 (6th Cir. 1986), cert. denied, 484 U.S. 859

(1987), which requires the movant to establish: (1)

that the new evidence was discovered after trial; (2)

that the evidence could not have been discovered

earlier with due diligence; (3) that the evidence is

material and not merely cumulative or impeaching;

and (4) that the evidence would likely produce an

acquittal. Pet. App. 30a. The court explained that

while Mr. Butcher’s statements are favorable to

[petitioner] in that they suggest that there was

nothing wrong with the loan, this testimony can

hardly come as a surprise to [petitioner]. Mr.

Butcher was well known to be friendly and

available as a witness and both Jake and C.H.

Butcher were known to have testified that there

was nothing illegal about [petitioner]’s role in

their banking maneuvers.

Id. at 32a. The court also noted that “(bjoth the

Butcher brothers were known to be friendly and

available as witnesses for [petitioner],” and that,

“even if they had been called, their testimony would

have been merely cumulative to that of Jesse Barr.”

Id. at 33a. The district court subsequently denied

7

petitioner’s motion for reconsideration. Jd. at 34a-

35a.

4. The court of appeals affirmed. Pet. App. la-12a.

The court first held that the district court had applied

an incorrect legal standard in ruling on petitioner’s

motion for a new trial. When such a motion is based

on evidence specifically requested by the defendant

and not disclosed by the government, the court of

appeals explained, the question is whether “there is a

reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding

would have been different.” Jd. at 8a, quoting O’Dell,

805 F.2d at 641 (quoting United States v. Bagley, 473

U.S. 667, 682 (1985) (epinion of Blackmun, J.); id. at

685 (White, J., concurring)). Citing Kyles v. Whitley,

115 S. Ct. 1555 (1995), the court of appeals further

explained that Bagley’s materiality standard does not

require the defendant to show by a preponderance of

the evidence that disclosure of the suppressed evi-

dence would likely have resulted in an acquittal, or

that the untainted evidence would have been insuffi-

cient to sustain a conviction. Pet. App. 9a. Finally,

the court noted that the materiality of the undis-

closed evidence must be evaluated cumulatively. bid.

The court of appeals concluded, however, that the

undisclosed FBI 302 report was not material. The

court explained:

It can hardly be argued by [petitioner] that the

statements made by Butcher meet the Bagley ma-

teriality test since [petitioner] had to be aware of

Butcher’s opinion contained in the FBI 302 report.

The district court found that “Mr. Butcher was

well known to be friendly and available as a wit-

ness [and] known to have testified that there was

nothing illegal about [petitioner’s] role in [his]

banking maneuvers.” Indeed, [petitioner’s] coun-

sel interviewed Butcher prior to the trial.

Clearly, [petitioner’s] counsel could have called

Jake Butcher to the stand at the trial to elicit his

favorable statements, but they chose not to do so.

Since [petitioner] should have been aware of

Butcher’s opinions, the failure to provide [peti-

tioner| with the FBI 302 report is not a denial of a

fair trial with regard to Butcher’s substantive

comments. See United States v. Todd, 920 F.2d

399, 405 (6th Cir. 1[9]90) (holding that there is no

Brady violation when the defendant “was aware of

the essential facts that would enable him to take

advantage of the exculpatory evidence”).

Pet. App. 10a-11a (citation omitted).

The court of appeals then addressed petitioner’s

contention that the 302 report could have been used to

impeach Horne’s credibility as an expert witness by

demonstrating Horne’s prior involvement in the

investigation of petitioner. Pet. App. lla. The court

acknowledged that “[w]ithout the FBI 302 report,

[petitioner] had no way of knowing of the existence of

the 1985 interview with Butcher and Horne’s role in

it.” Ibid. The court concluded, however, that “[t]he

absence of this ‘impeaching evidence’ from the trial

does not ‘undermine[] confidence in the outcome of the

trial’ and does not ‘deprive[] the defendant of a fair

trial.’” Jbid. (quoting Bagley, 473 U.S. at 677). The

court therefore affirmed the district court’s decision

“since, under the correct standard, there is no rea-

sonable probability that the outcome of the trial would

have been different.” Pet. App. 11a.

5. The court of appeals denied rehearing and re-

hearing en bane. Pet. App. 36a. Chief Judge Merritt,

joined by Judge Martin, filed an opinion dissenting

from the denial of rehearing en banc. Jd. at 37a-42a.

The dissenting judges explained:

Although it is true that [petitioner] knew that

Butcher could possibly be helpful as a witness if

called, [petitioner’s] counsel were evidently afraid

that without a prior written statement with which

to examine Butcher, Butcher would probably cave

in to government pressure and testify falsely

against their client or give equivocal testimony.

* * * In the absence of a prior statement, coun-

sel would be defenseless if Butcher turned against

[petitioner] or gave equivocal testimony.

Id. at 38a. If the 302 report had been available, the

dissenting judges surmised, “the defense might have

called Butcher and put [petitioner] on the stand

rather than follow the unsuccessful strategy adopted

in the absence of knowledge of the statement.” /d. at

39a. The dissenting judges also asserted that “evi-

dence of Horne’s presence at the 1985 Butcher inter-

view, a fact unknown to [petitioner] at trial, could

have been used by [petitioner] to debunk the false

appearance created for the jury that Horne was a

disinterested expert hired by the government to

review [petitioner’s] financial records.” Jd. at 40a.

ARGUMENT

Petitioner contends (Pet. 9-13) that review by this

Court is warranted to resolve a conflict among the

circuits concerning the scope of the government’s

disclosure obligations under Brady. As we explain

below, no circuit conflict exists. Even if a conflict did

RE Oo ee

10

exist, moreover, the instant case would be an inappro-

priate vehicle for resolving it. Petitioner claims that

the court of appeals’ resolution of this case rested on

a determination that petitioner’s trial counsel should,

in the exercise of due diligence, have acquired addi-

tional information relevant to his client’s defense. In

fact, however, the court of appeals also appears to

have concluded that in light of the information that

petitioner’s trial counsel actually possessed, disclo-

sure of the 302 report would not have created a

reasonable probability of a different result. We be-

lieve that the court of appeals’ holding in that respect

is correct. In any event, the correctness of that hold-

ing turns on the application of an established legal

standard to a unique set of facts. This case therefore

presents no question warranting this Court’s review.

1. in Brady v. Maryland, 373 U.S. 83, 87 (1963),

this Court held that “the suppression by the prosecu-

tion of evidence favorable to an accused upon request

violates due process where the evidence is material

either to guilt or to punishment.” The Court has

subsequently explained that “favorable evidence is

material, and constitutional error results from its

suppression by the government, ‘if there is a

reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding

would have been different.’” Kyles v. Whitley, 115 S.

Ct. 1555, 1565 (1995) (quoting United States v. Bagley,

473 U.S. 667, 682 (1985) (opinion of Blackmun, J.)).

This Court’s decisions make clear that no Brady

violation occurs when the government fails to dis-

close exculpatory evidence that the defense in fact

possesses. See United States v. Agurs, 427 U.S. 97,

103 (1976) (Brady governs situations involving “the

discovery, after trial, of information which had been

_—. Mamwnm Bey

11

known to the prosecution but unknown to the de-

fense”); Giles v. Maryland, 386 U.S. 66, 96 (White, J.,

concurring) (1967) (“[AJny allegation of suppression

boils down to an assessment of what the State knows

at trial in comparison to the knowledge held by the

defense.”). That principle follows from the Court’s

definition of “materiality”: if the defense actually

possesses information withheld by the prosecution,

there can be no reasonable probability that its disclo-

sure by the government would alter the outcome of

the trial. 3

2. As petitioner correctly notes (see Pet. 10-11),

some courts of appeals have also held that the govern-

ment’s non-disclosure of exculpatory evidence does

not violate Brady when the defendant does not

actually possess the evidence in question but could

discover it in the exercise of due diligence. See, e.g.,

United States v. Meros, 866 F.2d 1304, 1308 (11th Cir.)

(“To establish a Brady violation a defendant must

prove * * * that the defendant does not possess the

evidence nor could he obtain it himself with any

reasonable diligence.”), cert. denied, 493 U.S. 932

(1989); Barnes v. Thompson, 58 F.3d 971, 975 n.4 (4th

Cir. 1995) (“Brady requires that the government dis-

close only evidence that is not available to the defense

from other sources, either directly or through dili-

gent investigation.”). The Sixth Circuit has stated

that the nondisclosure of possibly exculpatory mate-

rial does not violate Brady when the “defendant was

aware of the essential facts that would enable him to

take advantage of the exculpatory evidence.” United

States v. Todd, 920 F.2d 399, 405 (1990). Those deci-

sions can be understood to flow from this Court’s

admonition that the purpose of the Brady rule “is not

to displace the adversary system as the primary

12

means by which truth is uncovered, but to ensure that

a miscarriage of justice does not occur.” Bagley, 473

US. at 675.

3. Petitioner contends (Pet. 12-13) that the deci-

sions cited above are in conflict with the Tenth Cir-

cuit’s .decision in Banks v. Reynolds, 54 F.3d 1508

(1995). That contention is incorrect.

In Banks, the prosecution failed to inform the

defense that two other suspects had previously been

arrested for the crime of which the defendant was

later convicted. The court of appeals stated that “[iJn

order to establish a Brady violation, a habeas peti-

tioner must show that: (1) the prosecution suppressed

evidence; (2) the evidence was favorable to the

accused; and (3) the evidence was material to the

defense.” 54 F.3d at 1516. The court rejected the

prosecution’s contention that it was not required to

disclose the information regarding the prior arrests.

The court offered the following analysis:

Whether the defense knows or should know

about evidence in the possession of the prosecu-

tion certainly will bear on whether there has been

a Brady violation. Obviously, if the defense al-

ready has a particular piece of evidence, the

prosecution’s disclosure of that evidence would, in

many cases, be cumulative and the withheld evi-

dence would not be material.

However, the prosecution’s obligation to turn

over the evidence in the first instance stands inde-

pendent of the defendant’s knowledge. Simply

stated, if the prosecution possesses evidence that,

in the context of a particular case is obviously

exculpatory, then it has an obligation to disclose

it to defense counsel whether a general request is

13

made or whether no request is made. In this case,

the fact that defense counsel “knew or should have

known” about the [pertinent] information, there-

fore, is irrelevant to whether the prosecution had

an obligation to disclose the information. The

only relevant inquiry is whether the information

was “exculpatory.”

Id. at 1517 (citations, brackets, and internal quotation

marks omitted). After determining that “the prose-

cution breached its obligation to disclose exculpatory

evidence to the defense,” id. at 1518, the court pro-

ceeded to “consider whether the withheld evidence

was material,” ibid., and concluded, after lengthy

analysis, that it was, see id. at 1518-1522.

The Tenth Circuit in Banks expressly acknowl-

edged that the information the defense “knows or

should know” is relevant to the question whether the

withheld evidence is “material,” and thus to the

ultimate determination whether a Brady violation

has occurred. The Tenth Circuit’s approach differs

from that adopted by other courts of appeals only

insofar as the Banks court suggested that the gov-

ernment’s obligation to disclose particular evidence

can be determined without reference to the material-

ity of that evidence—i.e., that the prosecution is

4 The Banks court also stated, however, that it

“accept(ed] the [district] court’s finding that [defense counsel}

neither knew nor should have known about the withheld

evidence.” 54 F.3d at 1518. The court’s statement that the

prosecution’s disclosure obligation is unaffected by what the

defense knows or should know was therefore dictum. See ibid.

(“Even were we to adopt the State’s position, that the prosecu-

tion has no duty to disclose information which the defense

knows or should know about, we would stil] conclude that, in

this case, the prosecution breached its duty under Brady.”).

14

obligated to disclose even non-material exculpatory

information. That aspect of the Tenth Circuit’s

analysis appears contrary to this Court’s precedents.

See Agurs, 427 U.S. at 108 (“[T]he prosecutor will not

have violated his constitutional duty of disclosure

unless his omission is of sufficient significance to

result in the denial of the defendant’s right to a fair

trial.”); Kyles, 115 S. Ct. at 1568 (Court’s Brady

jurisprudence “does not tax the prosecutor with error

for any failure to disclose, absent a further showing of

materiality”). The crucial point, however, is that that

aspect of the Tenth Circuit’s approach will have no

practical effect on the ultimate resolution of a defen-

dant’s Brady claim. The Tenth Circuit recognized

that a Brady violation occurs only where the sup-

pressed evidence is “material,” 54 F.3d at 1516, and

that “[w]hether the defense knows or should know

about evidence in the possession of the prosecution

certainly will bear on whether there has been a

Brady violation,” id. at 1517. Petitioner’s claim of a

circuit conflict is therefore without foundation.’

5 Petitioner’s reliance (Pet. 12-13) on Hatch v. Oklahoma,

58 F.3d 1447, 1470 n.17 (10th Cir. 1995), cert. denied, 116 S. Ct.

1881 (1996), is similarly misplaced. Relying on Banks, the

court in Hatch declined to consider the state of the defense’s

knowledge in determining whether the prosecution had sup-

pressed evidence. 58 F.3d at 1469-1470 & n.17. Because it con-

cluded that “petitioner ha[d] not alleged any facts showing that

the prosecution suppressed evidence,” id. at 1469-1470, the

court had no occasion to consider the question of materiality.

Nothing in Hatch casts doubt on the Banks court’s conclusion

that the range of information the defense knows or should

know is relevant to the question whether any suppressed

evidence is material.

eee

15

4. Even if a circuit conflict did exist, this case

would be an inappropriate vehicle for its resolution.

Contrary to petitioner’s contention (Pet. 8), the court

of appeals’ decision in the instant case does not rest

solely on a determination that petitioner’s trial

counsel-failed to exercise due diligence in acquiring

evidence about Jake Butcher’s exculpatory state-

ments. Rather, the court also indicated that peti-

tioner was in fact aware of Butcher’s view that

petitioner’s banking activities were not illegal. The

relevant paragraph of the court of appeals’ opinion is

as follows:

It can hardly be argued by [petitioner] that the

statements made by Butcher meet the Bagley

materiality test since [petitioner] had to be aware

of Butcher’s opinion contained in the FBI 302

report. The district court found that “Mr. .

Butcher was well known to be friendly and avail-

able as a witness [and] known to have testified

that there was nothing illegal about [petitioner’s]

role in [his] banking maneuvers.” Indeed, [peti-

tioner’s] counsel interviewed Butcher prior to the

trial. Clearly, [petitioner’s] counsel could have

called Jake Butcher to the stand at the trial to

elicit his favorable statements, but they chose not

to do so. Since [petitioner] should have been

aware of Butcher’s opinions, the failure to provide

[petitioner] with the FBI 302 report is not a denial

of a fair trial with regard to Butcher’s substantive

comments. See United States v. Todd, 920 F.2d

399, 405 (6th Cir. 1[9]90) (holding that there is no

Brady violation when the defendant “was aware of

the essential facts that would enable him to take

advantage of the exculpatory evidence”).

16

Pet. App. 10a-11la (citation omitted).

Petitioner offers the following critique of the

court’s analysis:

The court of appeals never considered the

exculpatory nature of the FBI 302—which,

without more, should have sufficed to warrant its

disclosure. The court likewise never analyzed the

importance of that document—which, without

more, should have satisfied the materiality stan-

dard under Brady. Instead, the court focused

solely on petitioner’s diligence in finding the evi-

dence on his own.

Pet. 14. That assessment will not withstand scru-

tiny. The court of appeals did not suggest that peti-

tioner should have obtained the FBI 302 on his own,

through the exercise of due diligence. The court

noted that petitioner had “requested all reports from

any interviews with Jake Butcher and relied on the

prosecutor’s representation that all reports had been

produced.” Pet. App. lla. And, rather than ignoring

the “exculpatory nature” and “importance” of the 302

report (Pet. 14), the court took those points for

granted, but found that the report was immaterial in

light of what petitioner already knew about Butcher’s

opinions. Thus, the court quoted the district court’s

finding that “Mr. Butcher was well known to be

friendly and available as a witness [and] known to

have testified that there was nothing illegal about

petitioner’s role in their banking maneuvers.” Pet.

App. 10a. The court of appeals also stated that the

report was immaterial because petitioner “had to be

aware of Butcher’s opinion contained in the FBI 302

report.” Jbid. The court concluded that “[peti-

tioner’s] counsel could have called Jack Butcher to

1 emma nnemet e

17

the stand at the trial to elicit his favorable state-

ments, but they chose not to do so.” Ibid. Only after

making those statements did the court also state that

because “petitioner should have been aware of

Butcher’s opinion,” the failure to disclose the report

was not a denial of a fair trial. Jd. at 10a-lla. Thus,

the court’s analysis, taken as a whole, does not rest

on a simple conclusion that petitioner failed to exer-

cise due diligence in learning of Butcher’s opinion.

The legal issue that petitioner raises is therefore not

squarely presented by this case.

Petitioner also faults (Pet. 15) the court of appeals

for failing to consider the exculpatory value of the

FBI 302 report itself—‘“separate and apart from” its

recitation of Butcher’s opinion. That factbound claim

raises no legal issue of importance. In any event, the

court of appeals did not make such an error. Peti-

tioner argues (Pet. 15) that “[alrmed with the prior

written statement, the defense could have called Jake

Butcher—an otherwise recalcitrant witness—secure

in the knowledge that the prior statement would

afford a refreshed recollection, rehabilitation, or

impeachment.” Petitioner, however, never made that

argument to the trial court or the appellate panel.

See Pet. C.A. Reply Br. 24-25 (describing ways in

which 302 report could have been used without sug-

gesting that Butcher would have been called as a

witness); C.A. App. 283-285, 347-348 (affidavits submit-

ted to the district court). Petitioner’s only argument

about the potential use of the report itself was that

it might have been valuable in impeaching Agent

Horne—an argument the court of appeals addressed

and rejected. See Pet. App. 9a-lla (describing and

18

rejecting petitioner’s arguments). Because peti-

tioner never suggested that counsel would have called

Butcher to testify if the 302 report had been available,

he cannot make that argument for the first time in

this Court.

6 Petitioner renews that argument here, stating that with

the 302 report he could “have ‘debunk{ed] the false appearance

created for the jury that Horne was a disinterested expert

hired by the government to review [petitioner’s] financial

records.’” Pet. 15-16 (quoting Pet. App. 40a). The court of

appeals acknowledged that the 302 report might have been

used in that manner. Pet. App. lla. The court concluded,

however, that “this type of impeachment does not satisfy the

Bagley materiality standard” because “there is 10 reasonable

probability that the outcome of the trial would have been

different.” Jbid. Petitioner disagrees with that conclusion, but

he cannot quarrel with the legal standard applied by the court

of appeals. Petitioner also contends in this Court that “through

a skillful use of the Butcher memo during the cross-

examination of Agent Horne, the defense could have called

attention to the government’s failure to call Jake butcher as a

witness.” Pet. 16. The affidavits submitted to the district

court by petitioner’s trial counsel did not suggest that the 302

report would have been used in that manner. See C.A. App.

283-285, 347-348. In any event, the defense did not need the 302

report to make that point. In fact, defense counsel argued

pointedly in closing statements that the jury had net heard

from Jake Butcher. See 7/16/92 Closing Tr. 46, 57.

—

19

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WALTER DELLINGER

Acting Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney

General

LISA SIMOTAS

Attorney

SEPTEMBER 1996