844 F.2d 1275 (6th Cir. 1988), 87-3896, United States v. Presser

Docket Nº87-3896.
Citation844 F.2d 1275
Party NameUNITED STATES of America, Plaintiff-Appellant, v. Jackie PRESSER; Harold Friedman; and Anthony Hughes, Defendants-Appellees.
Case DateApril 25, 1988
CourtUnited States Courts of Appeals, Court of Appeals for the Sixth Circuit

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844 F.2d 1275 (6th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellant,

v.

Jackie PRESSER; Harold Friedman; and Anthony Hughes,

Defendants-Appellees.

No. 87-3896.

United States Court of Appeals, Sixth Circuit

April 25, 1988

Argued Feb. 2, 1988.

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Frank J. Marine (argued), U.S. Dept. of Justice, Washington, D.C., for U.S.

John Climaco (argued), Paul S. Lefkowitz, Roger M. Synenberg, Cleveland, Ohio, for Presser.

Michael L. Climaco, Cleveland, Ohio, for Hughes.

Paul Cambria (argued), Lipsitz, Green, Fahringer, Roll, Buffalo, N.Y., for Friedman.

Before MARTIN, GUY and BOGGS, Circuit Judges.

BOGGS, Circuit Judge.

The United States appeals a pre-trial order of the district court entered in its prosecution of Jackie Presser, Harold Friedman and Anthony Hughes. The district court ordered the government to disclose "any and all impeachment evidence in the possession of the prosecution which tends to negate guilt...." The government argues that the district court lacked authority to issue the discovery order because it compels the disclosure of material exempted from pre-trial discovery by the Jencks Act, 18 U.S.C. Sec. 3500, as well as material whose disclosure is not required under either Rule 16 of the Federal Rules of Criminal Procedure or Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny. We agree with the government's contentions and, accordingly, vacate the order of the district court.

I

On May 16, 1986, a federal grand jury handed up an indictment charging that Presser, Friedman and Hughes abused their positions as local union officers by conspiring to employ and by employing "ghost" employees at Local 507 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Local 19 of the Bakery, Confectionary and Tobacco Workers International Union, AFL-CIO. The indictment charges that Presser, as the Secretary-Treasurer of Local 507, Friedman as President of Local 507 and of Local 19, and Hughes as the Recording Secretary for Local 507, caused union funds to be paid to supposed union employees Jack Nardi, Allen Friedman, George Argie, and Hughes, as a business agent for Local 19, for services

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which the defendants knew none of the recipients of the funds had rendered.

The indictment charges that the defendants' actions violated provisions of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Secs. 1962(c) & (d), and of the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. Secs. 439(b) & 501(c). The indictment also charges that Presser violated the Employee Retirement Income Security Act (ERISA), 29 U.S.C. Sec. 1027, by making false statements and concealing facts about the "ghost" employees on documents required to be maintained under ERISA.

The defendants have notified the government and the district court that they intend to defend against the charges, at least in part, on the ground that their actions were authorized by the government. The defendants claim that during the period of time charged in the indictment, Presser and Hughes were "cooperating citizens" for the Federal Bureau of Investigation (FBI) and that the FBI authorized their activities. The government has provided the defendants with sworn statements from the three FBI agents who supposedly acted as contact agents for the defendants. 1 Although the statements may tend to support the defendants' claim that they were directed to employ the "ghost" employees by the FBI, the government maintains that the defendants' conduct was not in fact authorized and, consequently, that their defense is false.

On September 10, 1986, Presser and Hughes filed a motion for discovery of "all information to which they are entitled under Rule 16(a) of the Federal Rules of Criminal Procedure and ... pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) ... which may be favorable to the defendants or material to their guilt or punishment or which could lead to such favorable information or information material to their guilt or punishment." 2 Accompanying this broad discovery request were 211 specific requests for material related to the defendants' authorization defense.

On October 10, 1986, the government responded to the discovery motion. It agreed to provide before trial discovery of materials required to be disclosed by Rule 16 of the Federal Rules of Criminal Procedure and Brady v. Maryland but opposed the discovery of impeaching material about government witnesses because such material is exempt from pre-trial disclosure by the Jencks Act. The government also submitted materials to the district court in camera to determine their discoverability under the Brady doctrine.

In December 1986, Presser and Hughes filed a three-volume supplemental memorandum in support of their September 1986 discovery request for exculpatory material and impeachment evidence.

The government responded to this memorandum in January 1987, claiming that it already had provided the defendants with all exculpatory information it was required to disclose before trial concerning the authorization defense. The government stated that all impeachment evidence in its possession concerning a government witness's credibility, would be disclosed during trial in accordance with the Jencks Act.

In March 1987, the district court ordered the government to provide the defendants with immediate discovery of "all documents, memoranda, notes or interview reports ... tangible objects and other information, including, but not limited to, videotapes, other recordings or any summaries or transcripts whether or not they are work

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product which contains exculpatory material" and "all documents, memoranda, statements, affidavits, and depositions, if any, which have been provided by the government to members of the news media...."

On April 30, 1987, the defendants filed another Supplemental Memorandum for Disclosure of Impeachment Material, contending that "impeachment material need not be exculpatory in order to invoke the Brady duty to disclose." Accordingly, the defendants requested "complete copies of any and all impeachment material relating to prospective witnesses in this case and, in particular, to government agents McCann, Foran and Friedrick."

The government responded to the April 1987 Supplemental Memorandum in May, reasserting its contention that impeachment materials for government witnesses need not be produced until trial under the Jencks Act. The government further responded that the Brady doctrine never requires the government to provide discovery of evidence unfavorable to the defendants, such as government evidence which could impeach defense witnesses.

On August 21, 1987, the district court granted the defendants' motion for disclosure of impeachment material stating: 3

Defendants specifically request that impeachment material, separate and apart from exculpatory material which this Court has previously ordered to be disclosed, is discoverable and request the production of such material. The governments' response to the above-mentioned motion first directs the Courts attention to a point which the parties do agree. The United States concedes that it must disclose to the defendants impeaching materials within its possession relating to witnesses called by the government to testify against the defendants. However, the government raises two issues upon which the parties disagree. The issues are as follows: 1) must impeaching material be produced before trial or may they be produced at trial in time for the defendants to make use of them, and 2) must the government provide to the defendants impeaching materials unfavorable to the defense which the government may use to cross examine witnesses called to testify on behalf of the defendants.

The Supreme Court has defined impeachment material as 'evidence favorable to an accused ... so that, if disclosed and use effectively, it may make the difference between conviction and acquittal.' United States v. Bagley, 473 U.S. , 105 S.Ct. 3375, 3380 [87 L.Ed.2d 481] (1985). Impeachment evidence need not be exculpatory in the traditional sense of tending to negate guilt. Rather, such material deals with the credibility of witnesses.

In Giglio v. United States, 405 U.S. 150, 154 [92 S.Ct. 763, 766, 31 L.Ed.2d 104] (1972), the Supreme Court held that:

When the 'reliability of a given witness may well be determinative of guilt or innocence,' nondisclosure of evidence affecting credibility falls within this general rule.

The general rule articulated in Giglio, is the Brady rule. See: Brady v. Maryland, 373 U.S. 206 [83 S.Ct. 1194, 10 L.Ed.2d 215] (1963).

In, addressing the issue of the timing of disclosure, this Court finds that any and all impeachment material in the possession of the prosecution is to be turned over to the defense forthwith. Specifically, regarding the impeachment testimony relating to government agents McLann, Foran, Friedrick and any other present or former agents this Court believes that these witnesses credibility will be material to the establishment of defendants authorization defense. Accordingly, defenses' motion for disclosure of impeachment material is Hereby Granted.

On September 4, 1987, the government filed a motion asking the court to reconsider its August 21, 1987, discovery order. In the motion the government stated that in the interests of narrowing the issues, it would comply with the discovery order by providing immediate discovery of any impeachment materials in its possession not

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protected by the Jencks Act relating to government witnesses Allen Friedman, Jack Nardi and George Argie. 4 The government refused, however, to disclose Jencks Act materials related to those witnesses'...

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