U.S. v. Librach, 75-1153

• Decision Date: 30 July 1975
• Docket Number: No. 75-1153,75-1153
• Citation: 520 F.2d 550
• Parties: UNITED STATES of America, Appellee, v. Burton A. LIBRACH, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 550

520 F.2d 550

UNITED STATES of America, Appellee, v. Burton A. LIBRACH, Appellant.

No. 75-1153.

United States Court of Appeals,

Eighth Circuit.

Submitted June 12, 1975.

Decided July 30, 1975.

Lawrence J. Fleming, St. Louis, Mo., for appellant.

Barry Short, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before GIBSON, Chief Judge, WEBSTER, Circuit Judge, and DEVITT, Chief District Judge. ^*

GIBSON, Chief Judge.

The defendant, Burton A. Librach, was convicted by a jury of filing a false claim and using a false document to obtain an urban renewal relocation payment of $9,700 from the Department of Housing and Urban Development (HUD), in violation of 18 U.S.C. § 1001 (1970). He was sentenced to six months confinement on count I and 2 years probation to be served consecutively on count II.

On appeal defendant asserts as error (1) the court's refusal to grant a new trial based on prosecutorial suppression of favorable evidence, (2) the court's failure to dismiss the case because of prosecutorial delay in bringing the indictment (3) admission of allegedly illegal testimony, (4) a procedural ruling allowing the Government to lead its own witness and attempt to refresh the recollection of that witness, and (5) imposition of sentence under the general felony fraud statute, § 1001, rather than the more specific HUD misdemeanor statute, 18 U.S.C. § 1012 (1970). We believe the defendant was denied a fair trial by the Government's suppression of evidence material to impeach its key witness, Robert Fowler, and thus reverse and remand for a new trial. Since defendant is subject to a retrial, we also pass upon the other assertions of error.

Defendant Librach, an attorney, was accused of filing a false claim in August, 1969, for expenses fictitiously incurred in relocating the furniture of the Windemere Hotel from the West End Urban Renewal Area of St. Louis, Missouri, to two buildings known as the Kingsbury Court Apartments owned by him in the same vicinity. The Windemere Hotel was owned by Librach's stepmother, Peppi Librach, who was too ill to participate in the trial. The defendant filed the claim as her attorney.

Librach obtained the funds from the St. Louis Land Clearance Redevelopment Authority (LCRA), a quasi-municipal agency under contract with HUD. Mrs. Librach was entitled under the LCRA program to a small business displacement award of $2,500 and reimbursement for her expenses in relocating the hotel. The defendant is charged with fraudulently obtaining $9,700 reimbursement for moving expenses never incurred. The furniture contained in the 64 rooms of the Windemere Hotel was not moved to the defendant's Kingsbury Court Apartments as he certified to HUD; rather, it was sold to one Richard Green for approximately $1,000. Green took possession of the furniture at the hotel and transported it himself at no cost to the defendant.

The Government's key witness was Robert Fowler, a business relocation specialist for LCRA at the time of the offense in 1969, who arranged the fraudulent transaction for personal gain. Fowler did not implicate the defendant when he was first interviewed under oath in May, 1974, but later he testified that he arranged the fraudulent payment with Librach's knowledge and connivance, receiving in return a kickback of $1,000. Fowler's implication of Librach was partly corroborated by Charles Ginsberg, a real estate broker who telephoned Librach in 1969 to submit Green's offer to buy the furniture. Librach accepted the offer, according to Ginsberg. Fowler was further corroborated by Sam Siegel, another real estate broker who accompanied Librach to Fowler's office to discuss the deal in 1969.

Fowler was in protective custody when he testified at trial and was informally granted immunity, apparently since he is chronically ill from sickle cell anemia. Six months prior to trial he reported threats on his life and was relocated with his wife and seven children to another state and paid $1,000 per month plus expenses. By the time of trial Fowler had received $9,947.65 in "subsistence maintenance and relocation payments" from the Government. Defense counsel first learned of the protective custody during the trial and was not informed of Fowler's support payments until several weeks after trial.

The defendant testified that he filed the LCRA claim as an agent accommodating his ailing stepmother who had left St. Louis to live with her daughter in Kansas City. Mrs. Librach, he claims, nevertheless dealt directly with Siegel and Heller, the realty firm managing the sale or relocation of the hotel. The defendant admitted going to Fowler's LCRA office at Siegel's request to sign papers concerning the move, but insists he signed only as Fowler instructed. He claims he did not know, and did not check to see, if the furniture had been moved but claims Siegel and Fowler told him it was. He disclaimed financial interest in the furniture and, though he personally received the $12,200 ¹ LCRA payment in September, 1969, he remitted the entire amount to his stepmother in June, 1970. He admitted appropriating some of the funds for his own use during this interim period.

I. The defendant contends that Government suppression of favorable evidence denied him due process. In response to his discovery motion requesting all favorable evidence, filed five months before trial, the Government stated it had no favorable evidence but promised to disclose any that might arise later. He designates three items of evidence relevant to impeach the Government's key witness, Robert Fowler, which were suppressed. They are (1) the contradiction between Fowler's sworn pretrial statement that did not inculpate the defendant (disclosed three weeks before trial) and Fowler's later grand jury testimony that did (disclosed just prior to trial), (2) the fact that Fowler was placed in protective government custody beginning in June, 1974 (not disclosed until trial), and (3) the undisclosed fact that Fowler was paid nearly $10,000 during the six months from June, 1974, until after trial in January, 1975.

Defendant relies on the familiar rule that government suppression of favorable evidence material to the defense justifies a new trial irrespective of the good or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the Supreme Court reversed a conviction secured on a witness's false denial that the Government promised him leniency for his testimony. Therein it noted that the particular witness's reliability may have been determinative of guilt or innocence. The Court held that nondisclosure of evidence affecting the witness's credibility falls within the Brady rule, provided "the false (or suppressed) testimony could . . . in any reasonable likelihood have affected the judgment of the jury . . . ." Giglio v. United States, supra at 154, 92 S.Ct. at 766, quoting Napue v. Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).

Application of these principles to the instant case calls for a new trial. This is an egregious case of prosecutorial suppression of evidence that was both favorable and material to the defense. Evans v. Janing, 489 F.2d 470, 475 (8th Cir. 1973). The Government's failure to disclose protective custody and its substantial payment of almost $10,000 to Robert Fowler obviously could have affected the jury's judgment of the witness's credibility. The circumstances were such that Fowler's testimony was the primary basis for determining Librach's guilt. The Government's paying a monthly subsidy to a witness is certainly a fact that should be disclosed to the trier of the facts since it is relevant to the witness's interest in testifying. Here, actually, Fowler's culpability is greater than that of the defendant. Fowler violated his public trust by fraudulently dispensing public funds. Yet the Government grants him immunity and a compensation of $1,000 a month plus expenses. Many observers may feel this is a strange way to enforce the criminal laws. Therefore, despite substantial evidence that Librach committed the crime charged, his due process rights to a fair trial have been violated and he is entitled to a new trial.

Fowler was the final witness on the first day of the two day trial. Defendant claims he did not discover that Fowler was in protective custody until the witness left the courtroom accompanied by two persons whom he recognized as Deputy United States Marshals. On inquiry, the prosecutor informed the defendant that Fowler was in protective custody but did not mention the payments nor describe the custody in any detail. Defendant did not recall Fowler for additional cross-examination concerning his protective custody. However, it was not until several weeks after trial that he learned Fowler was receiving substantial Government support. And even then counsel learned of the financial support only inadvertently. ²

We have no doubt that evidence of payments of nearly $10,000 to a witness in circumstances providing him an incentive to change his testimony is favorable and material ³ to the defense and that its suppression requires a new trial. This court cannot place its approval on the undisclosed payment of money to a government witness in these circumstances. ⁴ The Government's insistence that the suppression was inadvertent and that Fowler's friendly relationship with the prosecution was in fact partially disclosed, does not eliminate the need for reversal if the balance of the evidence suppressed "might reasonably have affected the jury's judgment on some material point." United States v. Butler, 16 Cr.L.Rep. 2345, 2346 (9th Cir. Dec. 18, 1974); accord, United States v. Smith, 480 F.2d 664 (5th Cir. 1973).

Applying this test to the instant facts it is significant that Fowler's credibility was crucial to the case against Librach and that suppression of...