Petition for Writ of Certiorari — Herzog v. United States

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9% 678 oct 151997

No.

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

DONALD HERZOG,

Petitioner,

Vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

JUDD BURSTEIN

Counsel of Record

BURSTEIN & FASS LLP

99 Park Avenue

New York, New York 10016

(212) 681-0606

Attorneys for Petitioner

ON THE PETITION: Donald Herzog

JUDD BURSTEIN

MARC FERNICH

Questions Presented

g Does the test for Brady materiality used by the Second

Circuit in this case — whether undisclosed impeachment

evidence “would have affected the verdict” — conflict with this

Court’s recent decision in Kyles v. Whitley, 514 U.S. 419

(1995), and the great weight of authority from around the

Circuits?

- Does the Second Circuit’s application of Fed. R. Evid.

806 in this case conflict with its own precedent and that of other

Circuits?

ll

List of Parties

Petitioner was one of 14 defendants charged in a 60

count indictment. The others were John Zagari, Pasquale

Maselli, Frank Salerno, Frank Trapani, Angelo DiPalo, Peter

Del Cioppo, George Merusi, James Rogan, Raymond Ryder,

David Zanoli, Morton Wagner, Alfred Christiansen and Charles

Shay. Of these 14 defendants, 11 went to trial, two — Zagari

and Ryder — pled guilty to substantially reduced charges, and

one — Maselli — died prior to trial. Of the 11 defendants who

went to trial, fully eight were completely acquitted of all charges

against them. Three — petitioner, Shay and Christiansen —

were partially convicted. Christiansen subsequently died, and

his appeal was withdrawn.

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Table of Contents

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ns sy eek y ek has hones avd sae e's oe 2

eis a yyy hed a ve a ow A om 0s 08 6 09 2

CONSTITUTIONAL AND STATUTORY PROVISIONS. 2

SiAtemoms OF THE CASE .... 1... ccc ccc c eee ens 3

A. a). RR a aa 3

B. ft PPT er reer errr Teer rere 4

e Be FE, OBI ooo voce ce cs cc seecsees 7

REASONS FOR GRANTING THE PETITION ........ 13

J THE SECOND CIRCUIT’S CONCEPTION OF

BRADY MATERIALITY CONFLICTS WITH

KYLES, AS INTERPRETED ACROSS THE

EEE AS a de ne a 13

1V

I]. THE SECOND CIRCUIT’S APPLICATION OF

RULE 806 IN THIS CASE CONFLICTS WITH

ITS OWN PRECEDENT AND THAT OF

LF Eade RADE» 6 6k heaves cee detewesanas Oo

Sb eR eS er ere Per eee re 30

TABLE OF AUTHORITIES

Cases:

Banks v. Reynolds, 54 F.3d 1508 (10th Cir. 1995)....

Brady v. Maryland, 373 U.S. 83 (1963) ......:.+0+

East v. Scott, 55 F.3d 996 (Sth Cir. 1995) ............

Guerra v. Johnson, 90 F.3d 1075 (Sth Cir. 1996)

Kyles v. Whitley, 514 U.S. 419 (1995) ...ccssssseessesseeeee

United States v. Badalmente, 507 F.2d 12 (2d Cir.

1974), cert. denied, 421 U.S. 911 (1975)...........4.

United States v. Bagley, 473 U.S. 667 (1985) ...........

United States v. Brumel-Alvarez, 991 F.2d 1452

CRU Cie. BGG ED csisinctasicesscuvenciveinsatsiemacmeiatteattesancess

United States v. Burton, 937 F.2d 324 (7th Cir.

United States v. Graham, 858 F.2d 986 (Sth Cir.

1988), cert. denied, 489 U.S. 1020 (1989)............

United States v. Hanna, 55 F.3d 1456 (9th Cir.

United States v. LeRoy, 687 F.2d 610 (2d Cir.

1982), cert. denied, 459 U.S. 1174 (1983)............

Page(s)

19, 22

passim

16

21

passim

15

22

20

12, 23, 30

14, 16, 17

1]

vi

Page(s)

United States v. Moody, 903 F.2d 321 (Sth Cir.

FFD ns ociinswsnssnensustiipsitpedialsiaiaisulaseneanenmmioimamaiides 11, 23

United States v. O'Conner, 64 F.3d 355 (8th Cir.

BPW Penechrsensstsunerenaquuneéinipsniiiiaiindiadsmuaosamaaa asides 21

United States v. Payne, 63 F.3d 1200 (2d Cir.

1995), cert. denied, 116 S. Ct. 1056 (1996)........... 14, 15

United States v. Rosario, 111 F.3d 293 (2d Cir.),

petition for cert. filed (U.S. Sept. 2, 1997) (No.

FTAA} osethvvcsesvsssasiessiensunniisideinnaidabbiliaiaiaasaisaee 23

United States v. Smith, 77 F.3d 511 (D.C. Cir.),

reh’g denied, 85 F.3d 646 (D.C. Cir. 1996).......... 18

United States v. Steinberg, 99 F.3d 1486 (9th Cir.

FPP hiiistssisvissenpincenaevinseentiatenmaaaleaadiaeanmin 20

United States v. Trzaska, 111 F.3d 1019 (2d Cir.

OOF 7 hevsicecesnssanevessctipncinaneneeteapeaaiocaaaies 24, 27, 28, 29

United States v. Velasco, 953 F.2d 1467 (7th Cir.

I IEP ivknscostcrcsvensposatrensnretenmamectipaiaaeaaenaone 25

United States v. Wali, 860 F.2d 588 (3d Cir. 1988)... 12, 23

United States v. Wong, 78 F.3d (2d Cir. 1996).......... 15, 16

United States v. Wuagneux, 683 F.2d 1343 (11th

Cir. 1982), cert. denied, 464 U.S. 814 (1983)....... 25

United States v. Zackson, 6 F.3d 911 (2d Cir.

BFS Dicnevivsnovvetnsaisencinnmsanainengansnttchilide Mailman aadcaes 22

United States v. Zagari, 111 F.3d 307 (2d Cir.

FOF T Feensaerssccsnseesevsnvenasinceasnamiseastiiemeddaamimiaapaal ies passim

Statutes and Rules:

1B U.S.C. § USAIN cocccescocsscoonessonssiessnisovensiiloscesootvetsmees is

ey OS roi te cell

Z Oe ee ee

vii

Page(s)

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ES UB, & BGS bevisscsssscsvcvnessnvavscssvesosssonsescesessessncennes l

FB. © FOB iiesvesssssscrnsessnesenspnoespseiveronasnassvacexeqver l

BG UBL, © FBG B ccceseccesescsstuscsnnscscnisvecensnannvennsncsenssnvnss l

26 U.S.C. § TZOGZ) nevevesessscorsecsnscersscevesescsvevsevavessoeeees 2

BE ULB. © BEI) cevcnsecsscieossotanstessicensonnesescossscenesense 2

ae Ba Ew sicnnniksarcncevescovinensantnnssenstesonnntenicnsnse 7

Ped. R. Evid SO1(G)Z)......ccercccssscccrccssssesosscsccscsesvssesees passim

Fed. BR. Evid. GOB(S).ncccscorescserscosssssessevsencecsvosenes 25, 26, 28, 29

Ped, TR, BEGAE, BGG cnccnvcnsccseceseesescsccessevssvncsssenessesssoneneses passim

Other Authorities:

M. Graham, Federal Practice and Procedure

III icisicvsedccsuchachainicaseradansepscsieskenneciamiantainiacsiksotioe 12

,

:

No.:

In The

Supreme Court Of The United States

October Term, 1997

DONALD HERZOG,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner Donald Herzog respectfully prays that a writ

of certiorari issue to review a judgment of the United States

Court of Appeals for the Second Circuit, affirming his

conviction for one count of violating the RICO statute (18

U.S.C. § 1962(c)); one count of RICO conspiracy (18 U.S.C. §

1962(d)), four counts of wire fraud (18 U.S.C. § 1343); six

counts of money laundering (18 U.S.C. §§ 1956 (a)(1)(A)(1),

(A)(ii) and (B)(i)); one count of violating the Travel Act (18

U.S.C. § 1952); three counts of mail fraud (18 U.S.C. § 1341);

2

one count of tax conspiracy (18 U.S.C. § 1341); and one count

of tax fraud (26 U.S.C. § 7206(2)).' ine

Opinion Below

The Court of Appeals’ opinion, United States v. Zagari,

111 F.3d 307 (2d Cir. 1997), appears at la.

Jurisdiction

This Court has jurisdiction under 28 U.S.C. § 1254(1).

The Second Circuit denied Herzog’s petition for rehearing on

July 17, 1997. (59a) This petition timely follows.

Constitutional and Statutory Provisions

The constitutional and statutory provisions relevant to

this petition appear at 61a-63a. They are as follows:

FED. R. CRIM. P. 33

FED. R. EVID. 801(d)(2), 806

U.S. CONST. AMENDS. V, VI.

' Finding various errors in Herzog’s 151 month sentence,

the Second Circuit vacated it and remanded for resentencing,

which has been stayed pending the disposition of this petition.

5

Numbers followed by “a” refer to pages of the Appendix

to this petition. Numbers preceded by "A:" refer to pages of the

Joint Appendix in the Court of Appeals. Numbers preceded by

“T:” refer to pages of the trial transcript not included in the Joint

Appendix. -

6 2 tal O MS A GO Ns GI LE EER St RR ARE

BEA ARIAT: 1 i

3

Jurisdiction in the District Court

The United States District Court for the Southern

District of New York (Brieant, D.J.) had jurisdiction under

Titles 18 and 26, United States Code.

Statement of the Case

A. INTRODUCTION

As the Second Circuit aptly noted, this is a case that

involves the intersection between criminal law and the

“strictures of environmental law.” (3a) Herzog was convicted

of running organized crime-backed landfills at Matamoras,

Pennsylvania and Rochester, New York. The government’s

theory was that he and his alleged cohorts defrauded the relevant

state licensing authorities — in particular, the Pennsylvania

Department of Environmental Resources (“PADER”) — into

believing they were dumping “clean fill’’ or “processed

construction and demolition (“C&D”)” debris,* when in fact

they were illegally accepting untreated C&D° without the

necessary permits. The defendants countered that, having

engaged in months of litigation and negotiation with PADER

> According to the indictment, PADER regulations

defined “clean fill” as “‘[uJncontaminated, nonwater-soluble,

non-decomposable inert solid materials.’” (A: 127)

* According to the trial proof, “processed C&D” is C&D

stripped of its contaminants — e.g., wood, metal, plaster, etc.

> According to the indictment, C&D consists of “‘solid

waste resulting from the construction or demolition of buildings

and other structures, including but not limited to, wood, plaster,

metals, asphaltic substances, bricks, block and unsegregated

concrete.’” (A: 127) (Quoting PADER Regulation § 271.1)

4

concerning its jurisdiction to regulate the dumping of C&D

debris, they had a genuine, good faith belief in the legality of

their conduct. Thus, the critical issue at trial was whether or not

the defendants acted with fraudulent intent? The case was a

close one, as eight of the 11 defendants who went to trial were

completely acquitted, and Herzog himself was acquitted of fully

37 of the 55 counts in which he was named

B. THEBRADY" ISSUE

1. THE PIVOTAL ROLE OF JERRY DOTEY

As the Court of Appeals itself recognized, Jerry Dotey

was “‘an important [g]overnment witness.” (16a) The landfills’

purported “engineer,” he was the only witness who was directly

involved in Herzog’s alleged operation, and the only one with

first-hand knowledge of his supposed scienter.

2. THE NEWLY DISCOVERED EVIDENCE

After trial, the defense uncovered what the Second

Circuit called “alarming” (23a) new evidence — never disclosed

by the prosecution — that Dotey was not only insane, but

harbored bizarre neo-Nazi leanings. As recounted by the Court

of Appeals:

[S]ubsequent to trial, [defendants] unearthed

evidence that Dotey had been clinically

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

’ Among other credibility problems, cross-examination

revealed Dotey to be a fraud as an engineer, as he had duped

Herzog into believing that he had a valid engineering license.

(T: 556, 562, 715-17, 741-43, 871-72, 6387)

ative dalennau eeemnane

5

diagnosed as a “pathological liar” with “serious

psychological problems” and “a multiple

personality disorder.” Specifically, Dotey

apparently suffered from delusions that he had a

second German identity, and believed that he

had been born in Nazi Germany to a Gestapo

“spymaster,” “smuggled into the United States,”

and “switched at birth with an American baby.”

. He professed to have been kidnapped,

brainwashed, and tortured by “the Group,” a

; neo-Nazi cabal seeking to take over the world

and create a “Fourth Reich” through, among

other methods, genocide, mind control, genetic

engineering, and state-sponsored slavery.*

ue OD 16 a EOP ALP DAR TOE. NETO, oR

Neel oP alta

In his various conversations with federal

officials and psychologists, Dotey claimed that

he was tortured by Dr. Joseph Mengele in the

presence of former CIA director Richard Helms.

Mengele, Dotey said, also kidnapped American

children and brought them to “an evil lair in

Florida” for “unspeakable purpose{s].” In

addition, Dotey stated that he had been told by

Mengele that Mengele had trained Lee Harvey

Oswald.

§ In light of Herzog’s Judaism, proof of Dotey’s Nazi

propensities would have made for powerful cross-examination

on the issues of bias and motive. (A: 864-65, 891, 973) In this

regard, one specific assertion by Dotey stands out as especially

troubling: his belief that the Group “‘routinely (virtually daily)

implicates many, many innocent people all over this country in

crimes they have not committed.’” (23a) (emphasis supplied)

6

Dotey maintained that the Group, which

he said espoused a Hitlerian philosophy of

Aryan nationalism and totalitarian control over

all aspects of human behavior, was planning the

mass extermination of American Jews in

Nazi-style death camps. He held them

responsible for other horrific activities, ranging

from Watergate to forcing Dotey to watch the

rape of his wife and the beating of his pregnant

sister. He also asserted that the Group's

constituents included at least one former U.S.

President, top federal officials, and numerous

Supreme Court Justices and other federal judges.

Throughout the years, Dotey has been

investigated by federal agents for assorted

conduct. For example, Dotey claimed to have

murdered witnesses to the assassination of

President Kennedy. He sparked an FBI

investigation after stealing money from the

Atlantic Richfield Company (“ARCO”), his

former employer, then staging his own

kidnapping, alleging that black, Puerto Rican

and Cuban terrorists “beat him up, took [the]

money and held him prisoner on a boat off the

coast of South Carolina,” and forging a ransom

note to President Carter demanding the release

of Cuban prisoners. He later asserted that

ARCO agents, dressed in SS regalia, had

tortured, drugged and hypnotized him,

programming him to massacre President Reagan

and everyone else at the 1985 inauguration via

germ warfare.

Dotey, his lawyer and his psychologist

memorialized all these comments in complaints,

a

7

letters and videotapes to agencies including the

Justice Department and the Secret Service.

ARCO also forwarded Dotey's personnel file to

the FBi. The Secret Service personally

interviewed Dotey, his lawyer and his

psychologist in connection with the Reagan

assassination plot. The record also indicates that

the Secret Service knew of a Dotey-related plot

to kill President Bush in 1991, two years after

investigation of the Matamoras site case began.

(20a-21a)

. THE NEW TRIAL MOTION AND THE

RULINGS BELOW

Based upon this shocking new evidence, Herzog moved

for a new trial, pursuant to Fed. R. Evid. 33, on the governing

authority of, inter alia, Kyles v. Whitley, 514 U.S. 419 (1995),

and its progeny. Without even mentioning Kyles, the Second

Circuit affirmed the denial of the motion, reasoning —

erroneously — that “Brady was not violated because” the

evidence (1) “was not material,” and (ii) had not been suppressed

by the government in that Herzog “had actual knowledge of []

witnesses with information about Dotey.” (23a)

C. THERULE 806 ISSUE

l. BACKGROUND

Notably, the jury acquitted Herzog on all charges arising

prior to September 1989. Rather, its finding of liability turned

upon the narrow period September through October 1989. In

particular, the difference between conviction and acquittal was

a series of crucial meetings allegedly held on September 13 and

8

15, 1989 — the sole direct proof of Herzog’s supposed intent to

defraud.

2. THE INCULPATORY EVIDENCE

According to Dotey alone, landfill attorney Randolph

Borden hatched a plan at these alleged meetings to dump raw

C&D at Matamoras, while concealing it from PADER.

Specifically, Dotey claimed that Borden made the following out-

of-court statements in Herzog’s presence:

e Defendants should dump new,

unprocessed C&D over material already

at the site, while falsely telling PADER

that such old material was being

removed.

* “[T]hey [Borden and defendants] were

going to open the landfill [to C&D]

whether they got permission or not,” and

PADER's “proposal[s] for a_ site

assessment and closure w{ere] far too

expensive, [t]he[y] didn't want to put

that kind of money in the landfill and

spend that money for doing those

needless things....” (T: 619) (emphasis

supplied)

* The September 15 meeting was “a big

secret meeting.” (T: 622)

* A PADER edict that there should be “no

new dumping” at the site was a “joke.”

(T: 624)

————oEEE

9

Facetiously, “Mr. Herzog should get a

couple of the guys out there with shovels

and buckets and start removing [any]

contaminated waste|, as requested by

PADER].” (/d.)

* In defiance of PADER's instructions,

defendants should bring in trucks full of

new, unprocessed C&D.

e The dumping should occur as fast as

possible because fines and penalties

were sure to accrue. (T: 622-25, 4866-

67, 4883-85)

This testimony provided damning evidence of Herzog’s

knowledge and intent during the pivotal period September

through October 1989, prior to which the jury found his conduc‘

to be entirely legal and devoid of scienter. Clearly, then,

Borden’s alleged out-of-court statements, as related by Dotey,

were essential to the prosecution’s case.

2. THE AVAILABLE IMPEACHMENT

EVIDENCE

On the other hand, there was devastating impeachment

evidence available which would have shown that, far from

scheming to defraud PADER at the September)13 and 15

meetings, Borden and Herzog conducted themselves in good

faith and without fraudulent intent. Thus, in a 1993 effort to

avoid indictment, Borden submitted a sworn affidavit to the

government that seriously undermined, if not flatly contradicted,

the substance of his out-of-court declarations. In relevant part,

the affidavit stated:

10

"[PADER’s] July 10, 1989 [stop work]

Order was no longer in effect as of

September 15, 1989, having expired by

its terms ten days after issuance. The

Shay group had every legal right, as of

September 15, 1989, to resume activity

without violating the July 10, 1989

Order .... Since the July 10, 1989 Order

had expired, it would have been

incorrect for me as an attorney to advise

the Shay group [at the September 15

meeting] that the Order somehow barred

activity at the site."

At the meeting, Borden insisted that

“steps should be taken ... which would

enable me to present a defensible

position in court.”

“T]he[se] steps ... include[d] the removal

of the [alleged] lead contaminated fill,”

and replacing it with “only

‘processed’ C&D, which ... PADER

officials earlier had found tentatively

acceptable on an interim basis, and as to

which, I felt, it could more persuasively

be argued in court that it did not fall

within PADER's authority.” Moreover,

Borden recommended that this “new fill

[be] tested before dumping, to assure

that it was not contaminated with

excessive lead.”

In sum, Borden maintained that, “Tals

counsel, it was simply my objective to be

in a position to show in court that the

Se

“ate

11

Shay group was proceeding in good faith

to remove unacceptable fill .... I did not

in any respect agree to, accept or

acquiesce in any plan to deceive

PADER, and there was nothing which

transpired, at the meeting or otherwise

up to that point, which alerted me that

the others did not intend to comply with

the agreed-upon steps, which would

allow us to present the most defensible

legal position in court. In fact, I recall

saying at the meeting in substance that

the Shay group would have to carefully

comply with the steps I outlined above,

as litigation was likely to be initiated

quickly.”

(Ar 262-65) (bold emphases in original, italicized emphases

supplied)

The affidavit was thus fundamental to Herzog's defense

because it “directly involved the credibility of [Borden's

damaging] out-of-court statements” at the September 13 and 15

meetings. United States v. Friedman, 854 F.2d 535, 570 (2d

Cir. 1988), cert. denied, 490 U.S. 1004 (1989). As such, it

would have negated the prejudicial inference that defendants

“possessed the requisite mens rea [i.e., the necessary scienter]

to commit the specific-intent crimes charged.” United States v.

Moody, 903 F.2d 321, 329 (Sth Cir. 1990).

12

3. THE RULE 806 APPLICATIONS AND THE

DECISIONS BELOW

On cross-examination, Herzog offered the affidavit,

pursuant to Fed. R. Evid. 806,’ to impeach Dotey’s attributions

to Borden, which had been admitted, under Rule 801(d)(2)(E),

as coconspirator statements. (A: 212-13) In response, the Trial

Court mistakenly’ precluded impeachment of Borden through

cross-examination of Dotey, but tentatively indicated that this

impeachment evidence would be permitted later. (A: 213-14)

At the close of the government’s case, Herzog renewed

his Rule 806 motion, but the Trial Court reversed its preliminary

view and excluded the affidavit. (A: 227 et seg.; 48a-50a) On

appeal, the Second Circuit upheld this ruling, wrongly

concluding thai Rule 806 was inapplicable because (i) Borden’s

statements had been “properly admitted, not for the truth of the

matter asserted,” but simply for “the fact that they were said in

the presence of the defendants;” i.e., “to show defendants’

9

Rule 806 provides:

When a hearsay statement, or a statement

defined in Rule 801(d)(2), (C), (D), or (E), has

been admitted in evidence, the credibility of the

declarant may be attacked ... by any evidence

which would be admissible for those purposes if

declarant had testified as a witness.

10 See M. Graham, Federal Practice and Procedure:

Evidence § 6811 at 217 n. 2 (Interim Ed.) (Pocket Part 1996)

(citing United States v. Burton, 937 F.2d 324, 328 (7th Cir.

1991); United States v. Wali, 860 F.2d 588 (3d Cir. 1988)).

13

scienter,” and (11) any failure to give a limiting instruction was

harmless error. (17a-19a) ~

REASONS FOR GRANTING THE PETITION

I, THE SECOND CIRCUIT’S CONCEPTION OF

BRADY MATERIALITY CONFLICTS WITH

KYLES, AS INTERPRETED ACROSS THE

CIRCUITS

In holding the undisclosed “Dotey evidence” immaterial,

the Second Circuit opined that it “would [not] have affected the

verdict” because “the jury did not rely entirely” or “solely” upon

Dotey’s testimony. (23a, 25a) Rather, in the Court’s view, that

testimony had been “corroborated” by “independent evidence,”

and “otherwise [Jimpeached.” (/d.) Respectfully, this flawed

analysis begs for closer review by this Court.

First, as a factual matter, we respectfully dispute the

Second Circuit’s characterization of Dotey’s testimony as

independently “corroborated.” To the contrary, as demonstrated

above and in our appellate briefs, that testimony was the only

direct proof on the linchpin issue of Herzog’s fraudulent intent

— particularly with respect to the integral, “big secret” meetings

of September 13 and 15, 1989. Accordingly, notwithstanding

the Court’s contrary view, there can be no doubt that Dotey’s

testimony was instrumental to Herzog’s conviction.

Second, and more fundamentally, the Second Circuit

applied an erroneous legal definition of Brady materiality. In

essence, the Court’s analysis focused upon whether disclosure

would have changed the trial’s result —- basically a test of the

sufficiency of the evidence apart from Dotey’s testimony.

However, such an approach directly clashes with Kyles, as

construed by other Courts of Appeals. Remarkably, the Second

Circuit’s opinion failed even to acknowledge Kyles, this Court’s

14

most recent and definitive pronouncement on the concept of

Brady materiality. To resolve this tension, and to clarify the

scope and meaning of Brady materiality in the wake of Kyles,

the Court should grant this petition.

In Kyles, the Court squarely rejected the position taken

by the Second Circuit here, stressing that Brady materiality "is

not a sufficiency of the evidence test," and that "none of the

Brady cases has ever suggested” otherwise. 514 U.S. at 434-35

and n.8 (emphasis supplied). Rather, the appropriate inquiry is

whether, absent the undisclosed evidence, the defendant

“received a fair trial;” i.e., “a trial resulting in a verdict worthy

of confidence.” /d. at 434 (emphasis supplied).

Thus, as the Second Circuit itself correctly observed in

another case:

undisclosed evidence will be deemed material ...

if it “could reasonably be taken to put the whole

case in such a different light as to undermine

confidence in the verdict.” Kyles v. Whitley, ---

US. at ----, 115 S.Ct. at 1566. This standard

does not mean that a defendant is required to

show that the undisclosed evidence would have

rendered the evidence as a whole insufficient to

support a conviction, see id. (test of Brady

materiality “is not a sufficiency of evidence

test”), or that if timely disclosure had been

made, acquittal would have been certain.

United States v. Payne, 63 F.3d 1200, 1209 (2d Cir. 1995)

(emphasis supplied), cert. denied, 116 S.Ct. 1056 (1996); see

United States v. Cuffie, 80 F.3d 514, 518 (D.C. Cir. 1996)

("Although the remaining evidence standing alone would have

been sufficient to convict, the Brady materiality inquiry is not an

assessment of the sufficiency of the evidence .... Rather, the court

15

has emphasized that the amount of additional evidence

indicating guilt is not dispositive of our inquiry”) (emphasis

supplied) (citations and internal quotes omitted).

Hence, contrary to the Court of Appeals’ impression

here, the relevant question is not whether the verdict rested

“solely” or “entirely” on Dotev’s testimony. (23a, 25a) That is

not, and has never been, the test of Brady materiality. Indeed,

a “solely” or “entirely” standard would make it all but

impossible for any defendant ever to prevail upon a Brady

claim. To state this proposition is to reject it.

Rather, the central question is whether, absent

disclosure, Herzog “received a fair trial, understood as a trial

resulting in a verdict worthy of confidence.” Kyles, 514 U.S. at

434 (emphasis supplied). In other words, under Kyles and

related cases, the issue of Brady materiality is driven by

concerns about a trial’s fundamental fairness, not concerns

about its outcome or the sufficiency of the evidence.

Here, the prosecution paraded an insane but “important”

witness before the jury, and unabashedly vouched for his

credibility, in the face of “alarming” evidence ihat would have

rendered him totally unworthy of belief. (16a, 23a-25a and

n.15) We ask whether there could be a better example of a

fundamentally unfair trial or a fundamentally unreliable verdict?

The question answers itself.

Put another way, to establish materiality for Brady

purposes, Herzog only had to show that the ““‘/ikely impact [of

disclosure] on [Dotey's] credibility would have undermined a

critical element of the prosecution's case.’” United States v.

Wong, 78 F.3d 73, 79 (2d Cir. 1996) (emphasis supplied)

(Quoting Payne, 63 F.3d at 1210); see, e.g., United States v.

Badalmente, 507 F.2d 12, 17-18 (2d Cir. 1974) (Brady violated

where disclosure of “hysterical letters” would have had

16

“powerful adverse effect”on witness’ credibility, which was

"crucial to the determination of [defendant's] guilt or

innocence"), cert. denied, 421 U.S. 911 (1975); East v. Scott, 55

F.3d 996, 1003 (Sth Cir. 1995).

This test is easily met here, as proof of Dotey’s insanity

and Nazism would have crippled his testimony on the “critical

element” of Herzog’s scienter. Wong, 78 F.3d at 79. In

concluding otherwise, the Second Circuit departed from the

foregoing principles and employed an insupportable standard of

Brady materiality — the very sufficiency of the evidence test

repudiated by Kyles and its progeny.

Third, and similarly, the Court’s insistence that the

undisclosed evidence was “cumulative” — i.e., that “the jury

had [other] information with which to evaluate Dotey’s

credibility” — also defies logic and law. (24a) As an intuitive

matter, proof of a witness’ insanity and Nazism is sui generis —

qualitatively different, and on another order of magnitude, from

a run-of-the-mill cross-examination concerning his dishonesty

and prior bad acts. (See 24a) Indeed, such devastating evidence

very well could have led the jury to reject Dotey’s testimony

altogether. Once again, the Second Circuit’s contrary ruling is

at odds with the overwhelming weight of post-Kyles cases from

other Circuits.

For example, the D.C. Circuit’s decision in United States

v. Cuffie is directly on point. Consider the following parallels:

A. Just as Dotey was a “key prosecution witness”

here (4a), the testimony of prosecution witness Moore was an

“important part of the government’s case against Cuffie.” 80

F.3d at 518.

17

B. Just as the other evidence of Herzog’s scienter

was wholly circumstantial, the other evidence against Cuffie

was entirely “circumstantial.” Jd.

C. Just as Dotey alone directly testified to Herzog’s

fraudulent intent, “[Moore] established the only direct

connection between Cuffie and ... drugs.” Jd (emphasis

supplied).

Faced with these functionally identical facts, the Court

swiftly overturned Cuffie’s conviction, emphasizing

the potential impact that the undisclosed

evidence might have had on the fairness of the

proceedings rather than on the overall strength

of the government's case .... Evidence is

material if the undisclosed information could

have substantially affected the efforts of defense

counsel to impeach the witness, thereby calling

into question the ultimate fairness of the verdict.

* *

For these reasons we are unconvinced

that the jury verdict is worthy of confidence in

light of the undisclosed impeachment evidence.

A cross-examination of Moore that revealed

evidence casting serious doubts upon Moore’s

truthfulness as a witness [] could have changed

the nature of Cuffie’s trial.

Id. at 517-19 (emphasis supplied) (citations and internal quotes

omitted).

Tellingly, the Cuffie Court rejected the “cumulative

impeachment” rationale espoused by the Second Circuit here:

18

The government contends that Moore was

thoroughly impeached at trial, such that the

undisclosed evidence would have furnished only

cumulative impeachment. Yet the fact that other

impeachment evidence was available to defense

counsel does not render additional impeachment

evidence immaterial.... [W]e must look not to

the ways defense counsel was able to impeach

[the witness], but to the ways in which the

witness’ testimony was allowed to stand

unchallenged.

Id. at 517-18 (emphasis supplied) (citations and internal quotes

omitted); see United States v. Hanna, 55 F.3d 1456 (9th Cir.

1995) (ordering hearing on claim that government withheld

impeachment evidence concerning primary witness even though

discrepancies were fully aired at trial).

Also reminiscent of this case is United States v. Smith,

77 F.3d 511 (D.C. Cir. 1996), reh’g denied, 85 F.3d 646 (D.C.

Cir. 1996). Like Dotey here, “Mr. M.” was “a principal

prosecution witness.” 77 F.3d at 517. And as in this case, the

government also “failed to disclose” at least two pieces of

“impeachment evidence” with respect to Mr. M: the facts that

(i) his cooperation agreement included the dismissal of two

pending felony cases, and (ii) he had a history of psychiatric

problems. Id. at 512.

Despite the fact that “defense counsel was able to

impeach the witness on other grounds,” the Court reversed the

defendant’s conviction on a fundamental fairness theory:

Had defense counsel been armed with full

disclosure regarding Mr. M's plea agreement, the

witness could have been subjected to devastating

cross-examination regarding his credibility.

19

Given the likely impact of — such

cross-e€xamination, it can hardly be doubted that

the undisclosed information was sufficiently

material to meet the threshold laid out in Kyles.

We also find that the District Court erred by

failing to examine Mr. M's medical records in

order to determine whether his psychiatric

history constituted a relevant subject for

impeachment.

2K

Armed with full disclosure, defense counsel

could have pursued devastating

cross-examination, challenging Mr. M's

assertion that he was testifying only to “get a

fresh start” and suggesting that the witness might

have deliberately concealed the other favors

from the Government that were not in the

written plea agreement. The potential impact of

such a cross-examination is sufficient to

undermine confidence in the jury's verdict ....

* *

The prosecutor's obligation to disclose

material information to the defense is a

fundamental component of the guarantee that

criminal defendants receive fair trials. Thus, we

do not lightly excuse Brady violations. Because

the Government's nondisclosures in this case

significantly impaired defense counsel's ability

to impeach the credibility of a_ principal

prosecution witness, we reverse and remand for

a new trial.

Id. at 512-13, 516-17 (emphasis supplied); see Banks v.

Reynolds, 54 F.3d 1508, 1516 (10th Cir. 1995) (reversing

20

conviction for suppressed psychiatric evidence and noting that

“the primary consideration under Brady is fairness”).

There is also United States v. Steinberg, 99 F.3d 1486

(9th Cir. 1996). As in this case, the government withheld

various items of exculpatory evidence regarding its “key

witness,”’Schulz. /d. at 1489. In particular, the suppressed

evidence indicated that Schulz (i) had been involved in

counterfeiting, and (ii) owed the defendant money. /d.

Addressing this evidence in tandem pursuant to Kyles, the Court

agreed with the defendant that it “revealed Schulz to be

untrustworthy ... in a trial where Schulz's testimony was

critical.” Jd. at 1491. Even though Schulz's credibility had been

thoroughly “explored at trial,” the Court reversed the

defendant’s conviction:

[T]he jurors may have been less likely to believe

Schulz's testimony had they known about the

withheld evidence. The withheld evidence

showed that Schulz was engaged in ongoing

criminal activities during the time that he was

acting as a Government informant in the present

case. The withheld evidence also showed that

Schulz owed defendant some money, giving him

a motive to lie to get Steinberg locked up.

***

Informant Schulz was the government's

key witness in the trial. Thus, his credibility as

a witness was an important issue in the case.

Evidence that he was engaged in ongoing

criminal activity and owed the defendant money

was relevant to his credibility, and the defendant

was entitled to have the jury know about it. See

United States v. Brumel-Alvarez, 991 F.2d 1452,

1463 (9th Cir. 1992).

aie ta

21

Id. at 1491-92 (emphasis supplied); see Guerra v. Johnson, 90

F.3d 1075 (Sth Cir. 1996).

Plainly, then, the Second Circuit’s holding here — that

Dotey’s testimony was subject to alternative forms of

impeachment — cannot be harmonized with the rule of the

above cases: that “undisclosed impeachment evidence can be

immaterial because of its cumulative nature only if the witness

was already impeached at trial by the same kind of evidence.”

Cuffie, 80 F.3d at 518 (footnote omitted) (emphasis supplied);

see United States v. O'Conner, 64 F.3d 355, 359 (8" Cir. 1995),

cert. denied, 116 S.Ct. 1581 (1996).

* *

By speculating that the undisclosed Dotey evidence

“would [not] have affected the verdict” in this case (25a), the

Second Circuit has, in the final analysis, invaded the province

of the fact-finder here. From the perspective of a cold appellate

record, it has, in effect, stepped into the jury box and assumed

the role of a thirteenth juror. In the best of circumstances,

predicting a jury’s reaction to a given piece of evidence is a

notoriously risky, if not impossible, proposition — one fraught

with guesswork. Indeed, we suspect that this very recognition

was what drove the Kyles decision in the first place. This being

so, the Second Circuit’s opinion here represents the edge of a

slippery slope indeed — one that will erode Brady into

irrelevance unless this Court intervenes.

In the end, then, this case presents the Court with an

opportunity to delimit the contours of Brady materiality, and

clear up the Circuit Courts’ evident confusion on this issue once

and for all. We therefore respectfully ask: What did the Court

really mean when it decided Kyles? Did it really intend, as

22

many Circuits agree, to replace Bagley’s'' outcome-oriented

definition of materiality with a test of fundamental fairness? Or

does the Bagley definition — “a reasonable probability that, had

the evidence been disclosed to the defense, the result of the

proceeding would have been different,” 473 U.S. at 682 —

survive Kyles? The lower courts must confront these questions

with unfortunate frequency, and they would benefit from this

Court’s guidance on the issue.'”

'! United States v. Bagley, 473 U.S. 667 (1985).

'2 In addition, the Second Circuit opined that the

undisclosed evidence had not been suppressed because

“{ajJppellants had actual knowledge of witnesses with

information about Dotey.” (23a) However, the issue here is not

whether Herzog knew about such witnesses, but whether the

government disclosed Dotey’s psychiatric history? For absent

such disclosure, Herzog would have had no reason to suspect

Dotey’s mental problems, and thus no reason to ask the

witnesses about them.

In other words, merely disclosing the identity of relevant

witnesses, without the information necessary to take advantage

of them, is tantamount to no disclosure at all. See, e.g., United

States v. Zackson, 6 F.3d 911, 918 (2d Cir. 1993) (Brady is

violated where government conceals “the essential facts”

necessary “to take advantage” of otherwise available

information) (quoting United States v. LeRoy, 687 F.2d 610, 618

(2d Cir. 1982), cert. denied, 459 U.S. 1174 (1983)). Viewed in

this light, Herzog’s mere knowledge of the witness’ existence is

simply irrelevant here. See Banks, 54 F.3d at 1517 (“[T]he

prosecution’s obligation to turn over [] evidence in the first

instance stands independent of the defendant’s knowledge’).

(footnote omitted).

23

Il. THE SECOND CIRCUIT’S APPLICATION OF

RULE 806 IN THIS CASE CONFLICTS WITH

ITS OWN PRECEDENT AND THAT OF

OTHER CIRCUITS

Fed. R. Evid. 806 “allows one to impeach the credibility

of a non-testifying hearsay declarant” — or a person whose out-

of-court statements have been admitted into evidence under

Rule 801(d)(2) — “by any evidence that would be admissible

had the declarant testified.” Burton, 937 F.2d at 328. This

includes “prior or subsequent inconsistent statements.” United

States v. Graham, 858 F.2d 986, 990 (5" Cir. 1988), cert.

denied, 489 U.S. 1020 (1989); see, e.g., United States v.

Rosario, 111 F.3d 293, 295-96 (2d Cir. 1997) (confirming that

“Rule 806 permits impeach[ment of] ... co-conspirator’s

statements admitted into evidence under Rule 801(d)(2)(E)”),

petition for cert. filed (U.S. Sept. 2, 1997) (No. 97-5845); Wali,

860 F.2d at 591-92; Moody, 903 F.2d at 327.

Here, the Court of Appeals deemed Rule 806

inapplicable and upheld the exclusion of Borden’s affidavit on

two principal grounds. First, the Court concluded that Bordén’s

incriminating, out-of-court statements had been “properly

admitted, not for the truth of the matter asserted,” but merely

“for the fact that they were said in” defendants’ presence; i.e.,

“simply to show defendants’ scienter.” (17a-19a) That is, the

Court held that Borden’s statements were “correctly admitted ...

as non-hearsay rather than as co-conspirator statements,” and

therefore did not implicate Rule 806. (18a) Second, while

expressing “concern[{]” about the Trial Court’s “failure to grant

a limiting instruction as to” the statements’ purpose, the Court

dismissed this refusal as, at most, “harmless error.” (18a-19a)

Once again, these determinations cry out for deeper analysis by

this Court.

24

First, the Second Circuit’s opinion rests upon a faulty

premise: that Borden’s statements actually were admitted “as

non-hearsay rather than as co-conspirator statements.” (18a) In

fact, this was merely a revisionist justification offered by the

Trial Court long after the fact. When the Trial Court admitted

the statements, it promised Herzog a subsequent opportunity to

impeach them with Borden’s affidavit. Indeed, the Second

Circuit itself expressly acknowledged as much. (17a) Hence,

contrary to the Court of Appeals’ complaint, Herzog had no

reason to object to the statements “at the time the[y] ... came

into evidence,” to “request a limiting instruction at the ~me,”"

or to otherwise elicit the specific rationale for the statements’

admission. (18a)

Rather, it was only later — when the Trial Court barred

the impeachment that it had promised — that the purpose of the

statements first became an issue. Then and only then did the

government and the Trial Court begin to espouse retrospective

justifications for the statements’ offer and receipt. Compare

United States v. Trzaska, 111 F.3d 1019, 1025-26 (2d Cir.

1997). Hence, to assert that the statements were admitted “as

non-hearsay rather than as co-conspirator statements” (18a) is to

imbue the record with an artificial sense of clarity that it simply

does not possess.

'S As detailed in our appeal briefs, and notwithstanding the

Second Circuit’s characterization, the limiting instruction

ultimately requested by defendants cannot fairly be called

“inappropriate.” (18a) Rather, the requested instruction — that

Borden’s statements were only admissible on the issue of intent

— tracked the prosecutor’s own position. Equally unfair is the

Court’s charge that Herzog wrongly “rel[ied] upon” the limiting

instruction sought by codefendant Christiansen. (See 19a) In

fact, the District Court had imposed a “one objection for all 11

defendants rule” to cope with trial management problems.

25

In fact, any fair reading of the record makes it

abundantly clear that the statements were offered and received

as (a) vicarious admissions under Rule 801(d)(2), and/or (b)

statements of intent under Rule 803(3). Under either or both of

these scenarios, Rule 806 plainly entitled Herzog to impeach the

statements with Borden’s affidavit. See United States v.

Velasco, 953 F.2d 1467, 1473 n.5 (7th Cir. 1992) (Rule 806

applies by its terms to agents’ admissions within Rule

801(d)(2)(D), and applies sub silentio to adoptive admissions

within Rule 801(d)(2)(B)); United States v. Wuagneux, 683 F.2d

1343, 1357-58 (11th Cir.1982) (statements admitted as hearsay

"exceptions" — e.g., declarations of intent under Rule 803(3) —

are also subject to Rule 806 impeachment), cert. denied, 464

U.S. 814 (1983).

Thus, the government argued strenuously in summation

that Borden's statements strongly implied guilty knowledge and

intent on Herzog’s part. (See, e.g., T: 5732-33, 6391-92) Yet,

this inference would only make sense if Herzog had manifested

some belief in the statements’ truth; i.e., if they were vicariously

attributable to him as coconspirator admissions, adoptive

admissions (see Fed. R. Evid. 801(d)(2)(B)) and/or admissions

by Borden in his representative capacity as Herzog's

agent/attorney (see Fed. R. Evid. 801(d)(2)(D)). As noted

above, all of the foregoing are well within the scope of Rule 806

impeachment.

Indeed, Borden's statements were, on their face,

quintessential coconspirator admissions; i.e., direct declarations

of the alleged conspiracy's existence, objects and means. To this

end, we note that both the prosecutor and the indictment

explicitly and repeatedly referred to Borden as a coconspirator.

(T: 5656-57, 6503) Thus, if Borden’s statements were not those

of a coconspirator, we ask a series of questions:

26

l. Why, in rejecting Herzog’s claim that the

statements were protected by the attorney-client privilege, did

the Court retort that they were “at least arguably in furtherance

of an attempted fraud’? (T: 648) (emphasis supplied)

2. Why did the government, in the middle of the

trial, expressly characterize Borden as a “co-conspirator”? (T:

696) (emphasis supplied)

3. Why did the Court subsequently admit that the

Borden declarations had been received as “co-conspirator's

statement[s]”? (T: 5656) (emphasis supplied)

4, Why, in opposing Herzog’s prospective limiting

instruction that the “statements can’t be used as coconspirator

statements,” did the government vigorously protest “/t/hat's

incorrect[; t]/hat’s an incorrect statement of the record’? (T:

5660) (emphasis supplied)

5. Why, in resisting Herzog’s request to immunize

Borden, did the government emphatically insist that he was still

under investigation as a coconspirator? (T: 5097)

Put simply, the Court of Appeals failed to grapple with

these questions, which admit of only one credible answer:

Borden’s statements clearly were coconspirator statements, and

Herzog clearly was entitled to impeach them under Rule 806.

Alternatively, the inference of scienter pressed in the

prosecutor's summation shows that the statements served as

declarations of Borden's knowledge and intent (see Fed. R.

Evid. 803(3)) and, as such, circumstantial proof of Herzog's

knowledge and intent. Indeed, the prosecutor himself expressly

conceded as much. (T: 5658) Hence, however else the

statements might have been received — as coconspirator,

adoptive, or agent's admissions, declarations of intent or some

27

hybrid thereof — they were not offered, and certainly were not

used, for the mere “fact that they were said.” (18a)

Second, in rejecting these contentions, the Second

Circuit jettisoned its own methodology as set out in United

States v. Trzaska, decided just two weeks after this appeal. In

Trzaska, the Court stated as follows:

Trzaska argues that he did not offer his

statement to his son to prove the truth of the

matter asserted, that therefore the statement was

not hearsay, and that therefore the government

could not impeach him. See Fed. R. Evid. 806.

Unlike most situations in which a court decides

whether a statement is hearsay, here, the

government did not object to Trzaska’s

statement, and it was only later, when the

government asserted that the statement was

hearsay and sought to impeach Trzaska, that a

question arose as to the purpose for which the

statement was offered. This raises the issue —

how should a court determine the purpose for

which a statement was offered in this situation?

The rule could be that the statement was offered

for all purposes to which it was relevant — if

this were the rule, Trzaska could be impeached

because the statement was clearly relevant to

proving the truth of the matter asserted. On the

other hand, the rule could be that the statement

was offered only for the purpose for which the

proponent intended at the time it was offered —

if this were the rule, Trzaska could not be

impeached, as our review of the record indicates

that Trzaska probably intended that his statement

not come in for the truth of the matter asserted,

but rather as a verbal act to show that he

28

disclaimed an interest in the guns and thereby

gave them to his son.

111 F.3d at 1026 (emphasis supplied).

Trzaska is squarely on point, and should have controlled

here. As the above passage shows, 7rzaska suggests two

approaches for determining the basis upon which statements

have been admitted for Rule 806 purposes. Under either one,

Rule 806 impeachment plainly was appropriate here.

The first 7rzaska approach is that statements be deemed

offered “for all purposes to which [they are] relevant.” /d.

(emphasis supplied) This test is readily satisfied here, as

Borden’s statements were clearly relevant as vicarious

admissions and/or declarations of intent — even if they also

might have been relevant as “non-hearsay,” received for the fact

that they were made in defendants’ presence. (18a)

The second 7rzaska approach is that statements be

deemed “offered only for the purpose” intended by the

proponent. 7rzaska, 111 F.3d at 1026 (emphasis supplied).

This test is also satisfied here:

® As in 7rzaska, a fair “review of the

record indicates that [the government]

probably” offered Borden’s statements as

coconspirator admissions pursuant to

Rule 801(d)(2)(E). Jd.; see supra 24a-

27a.

» Moreover, the prosecutor himself later

professed to have offered the statements

as declarations of intent under Rule 803.

Se ae ET a

29

As previously explained, Rule 806 permits impeachment in

either or both of these circumstances.

Yet, despite the cases’ uncanny resemblance — in both,

the purpose of the statements did not become an issue until long

after their admission — the Court here failed to follow, or even

consider, either of the 7rzaska approaches. Rather, it simply

accepted the Trial Court’s ex post justifications at face value.

Clearly, then, the two cases cannot be reconciled. This being so,

a grant of certiorari is warranted on stare decisis grounds alone.

Third, the claim that the statements were “properly

admitted” for the fact that they were made in defendants’

presence — i.e., “to show defendants’ scienter” — actually

makes our point here. (19a) (emphasis supplied) Plainly, the

mere fact that the statements were made in defendants’ presence

does not necessarily mean that defendants agreed with them.

Rather, as noted earlier, Borden's statements could only show

defendants’ scienter if defendants manifested a belief in their

truth; that is, if the statements could somehow be imputed to

defendants themselves. And, to reiterate, this could only occur

if the statements were offered as (a) adoptive, agent’s or

coconspirator admissions under Rule 801(d)(2), and/or (b)

statements of Borden’s intent, and thus circumstantial evidence

of defendants’ intent, under Rule 803(3). Were it otherwise, the

mere fact that the statements were made in defendants’ presence

would have no bearing on the critical issue of defendants’

scienter, and thus no relevance to this case. Hence, on the

Second Circuit’s own rationale, there can be no doubt that Rule

806 impeachment should have been allowed here.

Fourth, and finally, the Second Circuit’s opinion not

only misses our point about the absence of a limiting instruction,

but runs afoul of the Seventh Circuit’s decision in United States

v. Burton. Put simply, the question here is not merely whether

“the failure to give [such] an instruction was error,” or even

30

“harmless error.” (19a) Rather, as Burton held, the more

fundamental point is that, without an instruction, statements

allegedly offered for non-hearsay purposes must be construed as

hearsay and/or coconspirator statements, subject to Rule 806

impeachment. 937 F.2d at 331 and n.4. This conflict alone is

reason enough for the Court to hear this case.'*

CONCLUSION

This petition should be granted.

Respectfully submitted,

BURSTEIN & FASS LLP

99 Park Avenue

New York, New York 10016

(212) 681-0606

On the Petition:

Judd Burstein*

Marc Fernich

*Counsel of Record

'* In addition, the Second Circuit opined that “[d]efendants

... could have presented conflicting testimony as to what was

discussed at those [September 13 and 15] meetings to refute

Dotey’s recollection.” (19a). Respectfully, this suggestion

impermissibly shifts the burden of proof.