U.S. v. Butler

• Citation: 567 F.2d 885
• Decision Date: 17 January 1978
• Docket Number: No. 76-3275,76-3275
• Parties: UNITED STATES of America, Appellee, v. Robert BUTLER, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 885

567 F.2d 885

UNITED STATES of America, Appellee, v. Robert BUTLER, Appellant.

No. 76-3275.

United States Court of Appeals, Ninth Circuit.

Jan. 17, 1978.

As Amended March 15, 1978.

Rehearing and Rehearing En Banc Denied April 7, 1978.

Barry Tarlow, Los Angeles, Cal., for appellant.

Robert L. Brosio, U. S. Atty., Los Angeles, Cal., for appellee.

Appeal from the United States District Court for the Central District of California.

Before ELY and GOODWIN, Circuit Judges, and SOLOMON, ^* District Judge.

PER CURIAM:

On December 18, 1974, another panel of this court reversed a denial of this same defendant's motion for a new trial.

The government thereafter represented to this court, on a petition for rehearing, that an unresolved conflict in the evidence supporting the underlying motion had been discovered and that this conflict required an evidentiary hearing. The court withdrew its opinion and remanded the cause for the evidentiary hearing. That hearing was concluded in due course, and the district court made findings and conclusions. Once again the district court denied the motion for a new trial. That denial is challenged in this appeal.

Because the facts of the case and the correct statement of the applicable law appear in the December 18, 1974, opinion, we adopt it as our own and incorporate it herein as originally filed ^**:

WRIGHT, Circuit Judge:

These appellants are again before us, this time appealing from an order denying their motions for a new trial under Rule 33, Rules of Criminal Procedure. Their earlier convictions had been affirmed on appeal. United States v. Butler, 472 F.2d 1 (9th Cir.), cert. den. 414 U.S. 864, (94 S.Ct. 37, 38 L.Ed.2d 84), reh. den. 414 U.S. 1033, (94 S.Ct. 463, 38 L.Ed.2d 325) (1973).

The thrust of appellants' contentions is that, after their earlier appeal, they learned of government promises to its key witness, John Durden, that pending charges against him would be dismissed if he testified favorably to the prosecution and against the Butlers. The district court conducted a hearing on the new trial motion, concluded that the new discovered evidence would not have altered the jury's verdict, and denied the motion. We reverse.

In our earlier opinion, we noted that:

The principal witness for the government was John Durden who had been caught by federal narcotics agents and apparently decided to cooperate by assisting the agents in their efforts to secure evidence against his fellow conspirators in hopes of receiving lenient treatment for himself. During the course of the trial, Durden's credibility was frequently and vigorously attacked. One of the principal lines of assault comprised asking Durden whether in fact the pending indictment against him was going to be dismissed in consideration of his testimony against the defendant. To this question, he answered 'no.'

Appellants argue that, by allowing such testimony to go uncorrected, the prosecutor was acquiescing in the knowing use of false evidence in the manner forbidden by Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and more recently condemned in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). However, such an argument is based upon the premise that a promise of dismissal had definitely been made to Durden and that this alleged promise was known to the prosecution. The government has at all times denied such a promise, and there is no evidence in the record to the contrary.

United States v. King, 472 F.2d 1, 5-6 (1973).

At the hearing on their new trial motion appellants were able to produce substantial new evidence which strongly supported their earlier charges. It consisted of affidavits and testimony of four attorneys associated with prosecution of the Butler and Durden cases based, in one instance, on a contemporaneous file memorandum, an affidavit of Durden's attorney, Saul Bernard, and the tape of surreptitiously recorded conversations between Durden and appellant Robert Butler.

This evidence raised a serious question as to the veracity of Durden's testimony at the original trial that he had been given no promises of assistance in return for his testimony. It also cast doubt upon corroborative testimony and assurances, by the prosecutor and two government agents assigned to the case, to the effect that Durden had been promised nothing except that his cooperation would be brought to the attention of the judge in subsequent proceedings against him.¹

The gist of the testimony by Saul Bernard was that agents Clemente and Sternaman had indicated to them on several occasions that dismissal or at least reduction of the charges pending against Durden was a strong probability. The court agreed with this assessment.² Moreover, the court specifically rejected the testimony of Assistant United States Attorney Prager that he had never discussed dismissal of Durden's case with others on the prosecutorial staff, nor suggested to defense counsel that dismissal was likely.³

Bernard's affidavit is significant. His sworn statement that the assistant United States attorney had assured him that Durden's federal case would be dismissed sharply contradicts the prosecuting attorney's denial that he even talked with Bernard, much less discussed dismissal with him. The court concluded that a conversation between Bernard and the prosecutor had taken place and that dismissal was discussed. It further concluded that this discussion may have been such as to signal the anticipated dismissal to defense counsel.⁴

Bernard's affidavit also maintained that the government agents had promised dismissal if Durden cooperated. That this promise was communicated to Durden is evident from Durden's admissions to Butler, secretly taped by the latter, that the agents had given him substantial assurance of benefits greater than those they admitted at trial. While Durden's recorded statement did not claim an actual promise existed, he did assert that the agents made it clear by innuendo that he could expect very lenient treatment following his testimony.

The lower court declined to attach much credence to the recording. Nevertheless, it found:

The Government agents had told Durden--at least that's their statement--they told Durden he would help himself by cooperating with the Government and that they would call this cooperation to the attention of the Judge. Now, I think the agents told him more than that. The agents probably told Durden about the possible action that the court might take or could take and that they would make every effort to help him and I think that they did make every effort to help him because by their own testimony after the trial they were the ones that urged dismissal.

Durden said to Robert Butler that the agents said that they couldn't make any definite promises, but not to worry, everything would be all right, and there were several comments Durden made along those lines.

I don't doubt but that the agents made promises of benefits, without saying definitely they had no authority to make any definite promise, that they were going to do everything they could to help him and I think they told him that.

These findings are consistent with Durden's admissions and emphasize the district court's conviction that both Durden and the government agents suppressed in their trial testimony the real nature of their dealings.

We now address the question whether this apparent effort of the prosecution to conceal the true nature of these dealings with its key witness should have been found adequate to support a new trial order.

Our opinion in United States v. Gerard, 491 F.2d 1300 (9th Cir. 1974), is controlling. There, we set out the "basic principle" governing this type of situation:

(T)he government is obliged to disclose pertinent material evidence favorable to the defense, and this applies not only to matters of substance, but to matters relating to the credibility of government witnesses. Giglio v. United States, 405 U.S. 150, (92 S.Ct. 763, 31 L.Ed.2d 104) (1972).

491 F.2d at 1302.

We drew a distinction in Gerard between cases where the evidence was suppressed inadvertently or otherwise in good faith, and those in which "improper prosecutorial motives" played a part in the suppression. In the former situation, we found that "if the suppressed evidence was of unquestionable materiality, the government is not saved by good motives," 491 F.2d at 1302, citing Brady v. Maryland, 373 U.S. 83, 87, (83 S.Ct. 1194, 10 L.Ed.2d 215) (1963). "On the other hand, when the suppressed evidence is of less obvious materiality, improper prosecutorial motives may be relevant," either as an admission of materiality, or because we might choose to reverse "as a prophylactic against willful prosecutorial misconduct." 491 F.2d at 1302, 1303.

The district court clearly found that both the prosecutor and the government agents gave more assurances to Durden and his attorney than they or Durden had been willing to admit at trial. These involved more than the usual pledge that Durden's cooperation would be brought to the attention of the court. The prosecutor and the agents promised substantial benefits reasonably calculated to be understood as probable dismissal or, failing that, certain misdemeanor disposition. This distinction might well be of importance to a jury charged, among other things, with weighing the credibility of the principal prosecution witness.

Moreover, even if the prosecutor's conduct could be explained by a lack of knowledge of promises made to his principal witness, he would still be responsible for the consequences of his nondisclosure. The Supreme Court said in Giglio v. United States, 405 U.S. 150, 154, (92 S.Ct. 763, 31 L.Ed.2d 104) (1972):

The prosecutor's office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government. . . . To the extent this places a burden on...