U.S. v. Wilson

Decision Date13 April 1990
Docket NumberNo. 88-7785,88-7785
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Edwin Paul WILSON, Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Daniel McCrea Schember, Gaffney, Schember & Kete, P.C. (Michael J. Gaffney, Gaffney, Schember & Kete, P.C., Paul S. Blumenthal, Blumenthal, Carpenter & Berkowitz, Washington, D.C., on brief), for defendant-appellant.

Vincent M. Gambale, Crim. Div., U.S. Dept. of Justice, Washington, D.C. (Theodore S. Greenberg, Acting Chief, Crim. Div., U.S. Dept. of Justice, Henry E. Hudson, U.S. Atty., Alexandria, Va., on brief), for plaintiff-appellee.

Before RUSSELL, PHILLIPS, and MURNAGHAN, Circuit Judges.

MURNAGHAN, Circuit Judge:

In this appeal we address for the second time Edwin Wilson's conviction for various offenses related to his sale of arms to the Libyan government. Wilson has appealed the district court's dismissal with prejudice of his collateral attack on his conviction without discovery and without an evidentiary hearing. Wilson's collateral attack had alleged essentially that the government had violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by withholding from Wilson exculpatory evidence.

I.

A full description of the facts underlying Wilson's trial can be found at United States v. Wilson, 721 F.2d 967 (4th Cir.1983). Briefly, employees of Wilson were caught exporting weapons illegally. At trial, Wilson attempted to advance several defenses including a) that he did not instruct his employees to export the arms illegally and b) that he was actually working in good faith for United States government intelligence, using his arms sales operation as a means of establishing the trust of the Libyan government. Wilson's trial resulted in a conviction.

A unanimous panel of this Court affirmed Wilson's conviction. 721 F.2d 967. We rejected, among other things, Wilson's good faith defense in two ways. First, we held that Wilson had failed to establish a sufficient evidentiary basis to warrant a good faith defense jury instruction. Id. at 974. Second, we rejected Wilson's claim that the district court improperly excluded classified documents under the Classified Information Procedures Act ("CIPA"), 18 U.S.C. app. IV. 721 F.2d at 976. Under CIPA, prior to the introduction of evidence, a court rules on the relevance of classified documents to permit the government to decide whether it wants to proceed with prosecution despite the attendant revelations of classified information. The district court had found that none of the classified information Wilson sought was relevant. We declined "to find that the District Court's exclusion of classified information according to CIPA deprived [Wilson] of a fair opportunity to mount his defense." Id.

Several years after our affirmance of his conviction, Wilson brought a motion coram nobis which the district court properly treated as a post-conviction collateral attack under 28 U.S.C. Sec. 2255. 1 The basis of Wilson's motion was essentially that the prosecution impermissibly withheld evidence favorable to Wilson during pretrial proceedings. Several months after the filing of the motion, Wilson requested discovery and an evidentiary hearing, supporting his requests with several affidavits. On January 15, 1988, after hearing oral argument on the necessity of an evidentiary hearing, the district court postponed reaching a decision and instead ordered Wilson to expand the record by submitting specific affidavits and proposed discovery requests. On two subsequent occasions, Wilson supplemented the record with additional affidavits and discovery requests.

After another hearing, the district court issued its decision, denying Wilson's discovery requests and dismissing his entire motion without an evidentiary hearing. The court first held that our affirmance of the prior rulings on CIPA and Wilson's trial discovery requests precluded litigation of Wilson's allegations of suppression of favorable evidence on collateral attack. Second, it held fatal to certain claims the fact that the favorable evidence allegedly withheld was available from witnesses whom Wilson could have called at trial. Finally, it held that Wilson had failed to establish both the existence and the materiality of the one category of evidence (so-called "NSA intercepts," discussed infra) that fell outside the ambit of matters resolved by the original trial and appeal. This appeal followed.

II.

The legal principles that guide our inquiry are familiar. Under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny, the government must disclose material evidence favorable to the defendant that the defendant specifically requests. Undisclosed evidence "is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985); see also id., 473 U.S. at 685, 105 S.Ct. at 3385 (opinion of White, J., concurring); Bond v. Procunier, 780 F.2d 461, 464 (4th Cir.1986). Furthermore, "the Brady rule does not apply if the evidence in question is available to the defendant from other sources." United States v. Davis, 787 F.2d 1501, 1505 (11th Cir.), cert. denied, 479 U.S. 852, 107 S.Ct. 184, 93 L.Ed.2d 118 (1986); see also United States v. Grossman, 843 F.2d 78, 85 (2d Cir.1988) (no Brady violation when defendant "knew or should have known the essential facts permitting him to take advantage of any exculpatory evidence") (citations omitted); Lugo v. Munoz, 682 F.2d 7, 9-10 (1st Cir.1982) (government has no Brady burden when facts are available to a diligent defense attorney). With these principles in mind, we now address each of the pieces of allegedly material favorable evidence that Wilson claims that the government withheld.

Much of Wilson's argument relies upon the affidavits of Shirley A. Brill. Brill apparently was the cohabitant girlfriend of Tom Clines, a CIA official who was approaching retirement and who was allegedly involved with Wilson. Although Brill states in her affidavit that she was questioned at length on several occasions by government officials prior to Wilson's trial, she asserts mostly vague statements with respect to her communication of favorable material evidence to the government. For example, she says that she told U.S. Attorney Larry Barcella "all about" Wilson's alleged interactions with government officials. The sole specific bit of arguably favorable material information Brill alleges to have communicated to the government was that she told Barcella about Clines' alleged intention to "set up" Wilson by framing him for an arms exportation conviction.

Although we recognize that any statements Brill may have made suggestive of a set-up could have helped Wilson's case, we find no Brady violation because Wilson was free to question Brill in preparation for trial. Indeed, given Wilson's awareness of Brill's closeness to Clines and given Wilson's belief that he was framed, it would have been natural for Wilson to have interviewed Brill in preparation for...

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