Smith v. United States, Civ. A. No. 450-72-A-M.

• Decision Date: 10 May 1974
• Docket Number: Civ. A. No. 450-72-A-M.
• Citation: 375 F. Supp. 1244
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Carl George SMITH, Jr. v. UNITED STATES of America.

375 F. Supp. 1244

Carl George SMITH, Jr. v. UNITED STATES of America.

Civ. A. No. 450-72-A-M.

United States District Court, E. D. Virginia, Alexandria Division.

May 10, 1974.

Carl George Smith, Jr., pro se.

David Hopkins, Asst. U. S. Atty., Alexandria, Va., for defendant.

MEMORANDUM

MERHIGE, District Judge.

Carl George Smith, a federal prisoner, brings this action seeking post conviction relief under 28 U.S.C. § 2255. Through the course of this action Smith has presented to the Court several alleged grounds for relief. Some of these claims were found repetitive of claims which Smith had previously brought before the Court in Civil Action No. 311-70-A-M (E.D.Va. Alexandria Division); others have been disposed of on the merits in this action. A more extensive history of Smith's various attempts at post-conviction relief in this action, his previous § 2255 action, and other collateral proceedings, is contained in Smith v. United States, 364 F.Supp. 1145 (E. D.Va.1973), and in the addendum to this memorandum.

In a memorandum and order filed on September 20, 1973, the Court disposed of Smith's final claim pending in this action — an alleged suppression of exculpatory evidence by the prosecution in Smith's criminal trial — granting summary judgment to the respondent on that claim and dismissing the action. That decision is reported in Smith v. United States, 364 F.Supp. 1145 (E.D.Va.1973).

On September 28, 1973, Smith filed a pleading styled "Motion for Reconsideration." That motion having been filed within ten (10) days of the order disposing of Smith's final claim, to which the motion itself was addressed, it will be treated as a motion, pursuant to Rule 59(e), F.R.Civ.P., to alter or amend the judgment entered on September 20, 1973. It is that motion to which the present memorandum is addressed.

The criminal proceeding to which this and Smith's various other attempts at post conviction relief have been addressed was his conviction, upon a jury verdict, on October 10, 1969, for armed bank robbery. See United States v. Smith, Cr. No. 71-69-A (E.D.Va.). The relevant facts surrounding the bank robbery and Smith's ultimate conviction for that crime are summarized as follows:

On March 21, 1969, at approximately 7:00 p.m., the United Virginia Bank of Reston, Virginia was robbed by a man garbed in clothing including gloves, a ski mask and goggles so that his face and body were completely covered. The robber was armed with what was identified as a short, blue revolver. He escaped on foot from the bank with in excess of $10,000, including a certain number of marked one-hundred dollar bills, characterized as bait money. It was for this robbery that Smith was ultimately convicted.

The government's case against Smith rested entirely on circumstantial evidence. The evidence was, however, both considerable and convincing. It tied Smith to virtually all aspects of the robbery.

It appears that at the time of the robbery Smith was on parole under the sponsorship of a couple named Lundgren. Mrs. Lundgren testified that Smith had had conversations with her regarding the techniques of bank robbery and had informed her that the best way to rob a bank was to cover the body completely, using a ski-mask, goggles and gloves, to go behind the counter of the bank in order to get to big bills, and to escape on foot so that there would be no car which could be traced. In short, Smith described the almost exact set of circumstances which surrounded the actual robbery. Mrs. Lundgren further testified that her son had owned a ski mask, similar to the one which had been worn by the robber, which had not been found since Smith had ceased living with her family.

Much of the evidence went to the manner in which Carl George Smith and his wife had spent large sums of money, often in hundred dollar bills, subsequent to the robbery. By far the most important evidence concerned a deposit of $3,400 in hundred dollar bills made by Mrs. Smith. Federal investigators secured the possession of these bills after they had passed through several hands and discovered that several of the bait bills taken from the bank were among them. In addition, evidence disclosed that Smith and his wife had, during a short period following the robbery, made bank deposits and large expenditures totalling over $10,000, closely approximating the amount stolen. While Smith and his wife tried to explain at least some of these payments and deposits, their explanations were impeached by the fact that some of the deposits were made in banks located in areas distant from the Smith's residence and by the fact that some of them were made in the form of money orders payable to Smith from Edward Haywood, a name later identified as Smith's alias.

Additional evidence was presented to show that Smith and his wife lived in a home which was located, by road, approximately two miles from the bank in question. By a direct, walking route it was only one mile away. Smith, who was in excellent physical shape and looked to be much younger than his actual age of forty-five, admitted to being a long distance runner. He stated that in prison he had run approximately five miles every day. This evidence tended to link Smith with the athletic bank robber who escaped on foot.

Finally, the government presented evidence to the effect that Smith and his wife had purchased a hand weapon on March 7, 1969. The gun was described as a short, blue revolver, which fit the description of the weapon carried by the robber.

With respect to his present motion, Smith asserts two grounds for requesting the Court to reconsider its order disposing of his suppression of evidence claim. First, he argues that the Court committed various errors of law in deciding the matter earlier. Second, he asserts there were additional items of allegedly suppressed evidence which have just come to his attention, and which had not been submitted to the Court for consideration in reference to its earlier decision.

With respect to the "additional items" of allegedly suppressed evidence, first raised after the Court's order of September 20th had been entered, the Court accepts as factual Smith's representation that the Fairfax County Police reports containing the information in question were not in Smith's possession prior to the earlier decision disposing of his suppression claim. Accordingly, the Court concludes that consideration of those additional items, at this late date, is justified.

I. The Governing Principles

First, with respect to Smith's various arguments as to the governing principles of law, the Court has reconsidered the matter and sets forth below what it considers to be the appropriate legal analysis.

There are three situations in which the suppression of evidence by the prosecution is an issue. First, there is the situation in which the government has deliberately withheld information which has been the subject of a request for disclosure by the defense. See, e. g. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Second, there is the situation in which the government has negligently failed to disclose information which has been the subject of a request for disclosure by the defense. See discussion in United States v. Keogh, 391 F.2d 138, 147 (2d Cir. 1968). Finally, there is the situation in which the government has failed to volunteer information which is found to have been of such vital significance to the defense that the government will be held to have had an affirmative duty to make a disclosure even in the absence of a request. See, e. g., Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967); Barbee v. Warden, 331 F.2d 842 (4th Cir. 1964).

A prerequisite to relief for the nondisclosure of required information is that the defense did not have independent knowledge of and access to the evidence in question at the time of trial. See Rosenberg v. United States, 360 U.S. 367, 371, 79 S.Ct. 1231, 3 L.Ed.2d 1304 (1958); Thomas v. United States, 343 F.2d 49, 54 (9th Cir. 1965). Beyond that, the undisclosed information must be either material evidence or at least useful to the defense in preparing its case. See, Giles v. Maryland, supra, at 74, and at 98 (Fortas, J. concurring). Some cases indicate that the level of materiality or usefulness may vary according to the situation involved. See United States v. Keogh, 391 F.2d 138, 147 (2d Cir. 1968); Kyle v. United States, 297 F.2d 507 (2d Cir. 1961). See also, Moore v. Illinois, 408 U.S. 786, 794-795, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1971), which suggests that whether or not the undisclosed evidence had been the subject of a defense request is a factor to be considered. But, cf., Brady v. State of Maryland, 373 U.S. 83, at 87 (1963) (suggesting that the prosecutor's good faith or bad faith in withholding the information should be irrelevant) and Giles v. Maryland, 386 U.S. 66, 73, 87 S. Ct. 793, 17 L.Ed.2d 737 (1967).

The suggestion in United States v. Keogh, supra, at 147, and Kyle v. United States, supra, at 513-515, is that the burden on the criminal defendant to demonstrate prejudice resulting from the non-disclosure of evidence in the government's possession should be less where it is found that the government has deliberately suppressed requested information.

However, the Court is not here faced with the problem of deciding whether a lesser showing of prejudice is sufficient to warrant relief in the case of a deliberate suppression of requested information. In this case there was no request for discovery of the reports in question. It is therefore sufficient for the Court to take into account the standard applied in Barbee v. Warden, 331 F.2d 842, 847 (4th Cir. 1964), which case also involved the failure to disclose potentially exculpatory evidence where no request had been made.

Essentially, the issue was posed in Barbee, supra, at 847, as being whether there was a reasonable possibility that the undisclosed...