United States v. Brawer

• Decision Date: 26 November 1973
• Docket Number: No. 72 Cr. 64 (MP).,72 Cr. 64 (MP).
• Parties: UNITED STATES of America, Plaintiff, v. Alfred BRAWER et al., Defendants.
• Court: U.S. District Court — Southern District of New York

367 F. Supp. 156

UNITED STATES of America, Plaintiff, v. Alfred BRAWER et al., Defendants.

No. 72 Cr. 64 (MP).

United States District Court, S. D. New York.

November 26, 1973.

COPYRIGHT MATERIAL OMITTED

Paul J. Curran, U. S. Atty., S. D. N. Y., by Robert P. Walton, and Jay Horowitz, Asst. U. S. Attys., for plaintiff.

Alfred I. Rosner, New York City, for defendants Brawer and Ignomirello.

Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for defendant Kreshik, by Kenneth C. Bass. III, Washington, D. C., of counsel.

FINDINGS AND OPINION

POLLACK, District Judge.

This case is presently on appeal before a panel of the Court of Appeals (Moore, Hays and Feinberg, C. JJ.) following conviction by a jury of all three defendants of knowingly transporting stolen United States Treasury Bills and of conspiring to do so. 18 U.S.C. §§ 2, 371, 2314.

After hearing argument on a wide spectrum of points of the parties, the Court of Appeals ruled that the convictions were grounded on sufficient evidence, that there were no errors in the reception of evidence, that the criticisms of the charge to the jury were without legal merit, and that the government's summation was not ground for reversal. 482 F.2d 117 (2d Cir. 1973). However, before making a final disposition, the Court of Appeals decided to obtain the rulings of the trial judge on questions raised on appeal under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L. Ed.2d 215 (1963).

In the course of the briefing of the appeals, the defendants Brawer and Ignomirello suggested — for the first time — that the government might have suppressed allegedly exculpatory evidence in its possession consisting of certain 1969 statements of three Canadians, the grand jury testimony of one of them and some notes made by the prosecutors of talks with the Canadians. This data was not disclosed to the defendants before or during the trial and it is now claimed that the doctrine of Brady v. Maryland required disclosure thereof. The defendant Kreshik echoed this contention in his reply brief.

The questions thus remanded to this Court were "whether the 1969 statements fit the description of `exculpatory evidence' and whether they should have been made available to defendants". (482 F.2d at 136). The Court of Appeals further directed this Court to "read and consider such material as the government may have had in its files, and determine whether this material falls into the category of exculpatory material which `in any reasonable likelihood would have affected the judgment of the jury'." (Id.)

The Court of Appeals said:

Since we have considered carefully all of appellants' various other contentions on appeal and find them to be without merit, and since we are of the opinion that, absent a finding of improper suppression of material evidence on the Brady issue, the evidence justifies affirmance of the judgments of conviction, we will await both a ruling by the district court on the Brady issue and the expanded record before making a final disposition of this appeal. (Id. at 136-137)

Hearings pursuant to this remand were duly held in the District Court. The parties submitted their documentary proofs and the testimony of defendant Kreshik was taken on direct and cross examination; Brawer had testified on the trial and he and Ignomirello were present at the hearings but did not testify. The three Canadians involved in the statements were no strangers to Ignomirello and Brawer, who knew their identity and location since Ignomirello had met and was present at the negotiations with them. There was no claim that Kreshik had met them and at the hearings he sought to throw off any suggestion that he was aware of them or what had transpired with them. He also attempted to deny knowledge of the stolen character of the Bills.

One fact stands out starkly from the hearings. The testimony of the defendant Kreshik in the post-appeal hearings as to his timely awareness of the Canadians and his connection with the scheme and knowledge of the stolen character of the Treasury Bills was plainly incredible. The demeanor evidence and the reasonable inferences to be drawn from his assertions and denials, in the light of all the facts and circumstances disclosed by the trial and hearing records, render his testimony wholly unworthy of belief on his oft repeated assertion in this Court and in the Court of Appeals that he lacked guilty knowledge of who was involved, what was going on and what he was doing to facilitate the criminal venture.

In addition to taking the evidence adduced at the hearings, the Court has read and considered such material as was contained in the government files, as well as certain other documents, to be discussed at length below, which purport to bear in some way upon the characterization and relevance vel non thereof.

Based on the foregoing, and for the reasons indicated hereafter, the Court finds and reports that the 1969 statements and data referred to by the Court of Appeals in no wise fit the description of "exculpatory evidence" as defined in Brady and its progeny.

It is amply evident that in no reasonable likelihood would the disclosure of the questioned statements have affected the verdict of the jury or provided any unknown or unappreciated opportunities to weaken the government's case or to have had an effect on the verdict.

Accordingly, there is no reason why the questioned statements should have been turned over to defendants, either prior to or during the trial.

It is clear from a careful perusal of the trial record that the government established a substantial enough case as to each defendant — Kreshik, Brawer and Ignomirello — from which the jury could properly infer their guilt beyond a reasonable doubt, even without the testimony of the witness Maucelli, a coconspirator herein. It is on the question of Maucelli's credibility that defendants base their argument that the 1969 statements are relevant to the present issue. However, since there was a sufficient case apart from his testimony, even assuming both the availability and admissibility of the 1969 statements each highly questionable at best, defendants' argument is wide of the mark.

I.

As summarized by the Court of Appeals, the facts of the crime are these. On March 6, 1969, the brokerage house of Francis I. duPont & Co. received at its New York offices $342,000 in six-month United States Treasury Bills, issued that same day. One month later, duPont found these bills to have been taken from its possession. At about the time duPont received the bills, i.e., the first week in March, the defendant Kreshik, a priest, approached a banker named Dembe and sought the latter's assistance in the disposition of $262,000 of these securities. Kreshik stated his requirements: The sale must be abroad, and Kreshik would divulge neither the identity of his principal — a parishioner — nor that person's reason for desiring to effectuate a foreign sale. Dembe cautioned Kreshik against the possibility that the securities were either stolen or forged. Kreshik responded by personally vouching in all respects for both his principal¹ and the transaction itself, notwithstanding the fact that Kreshik, according to his own testimony, never saw fit to inquire of his principal concerning the latter's possession of negotiable securities in an amount usually traded only by institutions. None of the actors herein at any time possessed, or requested of one another, any documents evidencing ownership of the Bills.

In all events, Dembe eventually agreed, after satisfying himself that the Bills were at least not counterfeit, to put Kreshik in contact with a person "who has some knowledge of securities in foreign markets." This person turned out to be the defendant Brawer, not theretofore known to Kreshik. After Dembe made the introduction, he departed the scene permanently. In due course, Kreshik delivered the $262,000 face amount of Treasury Bills to Brawer although he testified at the hearings that he neither knew nor ever inquired as to Brawer's background, his phone number, his business or where he lived. According to the position taken by Kreshik's appellate counsel, this was the end of Kreshik's involvement in the transaction. As will be treated more fully below, it is abundantly clear from Kreshik's testimony before this Court at the hearing on remand that this position is not supportable, particularly in light of the facts which are now in the expanded record.

Brawer brought Maucelli^1a — a photographer — into the picture at this juncture, and thereafter employed him as a combination negotiator/messenger until such time as Maucelli was arrested by the FBI. Brawer outlined certain explicit conditions of the sale to Maucelli. The bills had to be sold abroad, preferably for 90% of the face value, but possibly as low as 85% of face, in what had to be a cash deal, consummated as quickly as possible (within two days at the most), on behalf of but without the disclosure of the identity of the "priest" (Kreshik) for what Brawer intimated might be tax reasons. For their respective parts in the transaction, Brawer and Maucelli were to share equally in 10% of the sales price.

Maucelli promptly telephoned a Canadian, Riel, and arranged to fly to Montreal on Friday, April 11, 1969, after receiving the Bills from Brawer at LaGuardia Airport. Upon his arrival at the airport, Maucelli encountered defendant Ignomirello, who had been requested by Brawer to accompany Maucelli to Canada "just in case." In response to an inquiry from Maucelli, Brawer at this point vouched for the legitimacy of the securities and their absence from any list of stolen securities at that time; he enigmatically refused to certify that they would not be so listed in the future.

In Montreal, Maucelli and Ignomirello met with Riel. Ignomirello "went into the arrangements with J. R. Riel and said he was standing in for the owner who preferred to remain anonymous."...