United States v. Gerard

• Decision Date: 06 February 1974
• Docket Number: 72-3129.,No. 72-3128,72-3128
• Citation: 491 F.2d 1300
• Parties: UNITED STATES of America, Plaintiff, Appellee, v. Daniel GERARD, Defendant, Appellant. UNITED STATES of America, Plaintiff, Appellee, v. Harold Eugene GOLDSTEIN, Defendant, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

491 F.2d 1300 (1974)

UNITED STATES of America, Plaintiff, Appellee, v. Daniel GERARD, Defendant, Appellant.

UNITED STATES of America, Plaintiff, Appellee, v. Harold Eugene GOLDSTEIN, Defendant, Appellant.

Nos. 72-3128, 72-3129.

United States Court of Appeals, Ninth Circuit.

February 6, 1974.

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Alvin S. Michaelson (argued), Los Angeles, Cal., for appellant Gerard.

Henry Huntington Rossbacker, Los Angeles, Cal. (argued), for appellant Goldstein.

Brendan D. Lynch, Asst. U. S. Atty. (argued), William D. Keller, U. S. Atty., and Eric A. Nobles, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before ALDRICH,^* DUNIWAY and SNEED, Circuit Judges.

ALDRICH, Senior Circuit Judge:

Our conclusion that there must be a new trial essentially limits our consideration in this case to one ground we find sufficient in itself — the government's coverup of its relations with its principal witness, an alleged accomplice of the defendants. The underlying facts are these. Defendants Gerard, Goldstein and DeVito were indicted on a three-count indictment in connection with counterfeit Federal Reserve notes. 18 U.S.C. §§ 2, 371, 472 and 473. All three pleaded guilty to Count I (conspiracy), but at the sentencing a problem arose and the court allowed the withdrawal of the pleas. All were then reindicted on the same counts, with a fourth count added against Gerard. DeVito pleaded guilty again on the conspiracy count, but his sentencing was postponed until after the trial of the others. The other defendants, the present appellants, went to trial, with DeVito a key witness against them. They were convicted on all counts.

Prior to trial defendants sought unsuccessfully to learn of any government promise to DeVito. We agree, at least for present purposes, that the government was not obliged to disclose in advance the possible vulnerability of its witnesses and we mention this only to show that the defendants' interest in this subject at trial could not have caught the government by surprise. With regard to the government's withholding of information at trial we will proceed in the following order. First, a statement of applicable principles; second, by way of anticipation, the government's explanation of any nondisclosure of its full dealings with DeVito, and last, what the record in fact shows.

The basic principle is clear enough: the 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); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); United States v. Hibler, 463 F.2d 455, 460 (9th Cir. 1972); Loraine v. United States, 396 F.2d 335 (9th Cir. 1968), cert. denied 393 U.S. 933, 89 S.Ct. 292, 21 L.Ed.2d 270. There is a subsidiary principle: the government's motives in suppressing evidence may be material in determining whether a new trial is necessary. True, if the suppressed evidence is of unquestionable materiality, the government is not saved by good motives. Brady v. Maryland, 373 U.S. 83, at 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 for one of two reasons. The fact that a prosecutor intentionally fails to perform his duty may be regarded as an admission that performance would injure the government's case; an admission, so to speak, of prejudice which might, particularly in close cases, tip the scales. See, e.g., Napue v. Illinois, ante, 360 U.S. at 270, 79 S.Ct. 1173. Alternatively, even though we could not be persuaded that the defendant had been seriously prejudiced, if the prosecutorial conduct was censorable we might reverse a conviction in the interest of keeping the administration of justice beyond the "suspicion of reproach," or, perhaps, as a prophylactic against willful prosecutorial misconduct. Kyle v. United States, 297 F.2d 507, 514 (2d Cir. 1961); see Mooney v. Holohan, 294 U.S. 103, 112-113, 55 S.Ct. 340, 79 L.Ed. 791 (1935); cf. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914).

The government's position (in a brief filed by other than trial counsel) was that the court permitted full cross-examination as to DeVito's understanding of his agreement with the government, including even DeVito's subjective conclusion as to what the government's sentencing recommendation would be.

"DeVito testified that the prosecutor, Mr. MacIntyre `. . . says he would make a recommendation on the day of my sentence to the Judge and it was entirely up to the Judge — the Judge\'s own discretion whether he would accept it or not.\'"

"DeVito testified that he `expected the Government\'s recommendation would help him get the lightest possible sentence:\' and that he had `never been told by anyone that the recommendation would be for probation.\'"

Thus the defendants, the government says, had ample opportunity to put before the jury the full relationship between DeVito and the government. Finally, the government pointed out that certain self-contradictory testimony by the prosecutor, Mr. MacIntyre, was not given in the presence of the jury and therefore was not prejudicial, and asserted that what took place during the summation, post, was not error.

We turn to the record facts referred to in defendants' briefs. Early during cross-examination De Vito said that the prosecutor had told him that in return for testifying he would make a "recommendation" as to his sentence, but that he did not state what it would be.¹ However, he did later say that he did expect probation.² After the jury was excused for the day, defense counsel put the prosecutor on the stand. His testimony was that although he told DeVito he would make a recommendation, he "believed" he did not tell anyone what the recommendation would be. The next day, in the continued absence of the jury, in response to further pressing by the defense, he admitted that he told DeVito's counsel that he was going to recommend probation. The reason for this reluctance is elusive. Unobserved by counsel and by the court, DeVito was in the courtroom at that time. When his presence was discovered, in response to a question by the court he said his attorney had not disclosed this recommendation to him. The court then prohibited any further inquiry or mention of this promise to the attorney in the presence of the jury.

A "recommendation" that a defendant hoped would be for probation, and a positive commitment to recommend probation are two very different matters. Whatever is the commitment must be kept. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). The jury should have been permitted to find that DeVito in fact knew the full promise. His denial that his attorney had told him should not have ended the matter, for it was DeVito's very credibility that was at stake. The prosecutor admitted that he had not requested DeVito's counsel to keep the promise secret from his client, and a jury could reasonably infer that counsel would in fact communicate. Indeed, we can scarcely doubt that he would. There is no reason for the prosecutor to make the promise, except for its intended effect upon the witness.

Defendants were not only deprived of all evidence of this promise, but the prosecutor failed to disclose at trial that DeVito was in separate and further difficulties, this time involving counterfeit government securities, giving him further reason for "cooperating" with the government. This matter came to the defense's attention only after trial, when, at DeVito's sentencing, his "cooperation" was detailed and he received here, also, a suspended sentence and probation. In the light of our clearly announced rule it is difficult to think that the prosecutor's failure to disclose this further interest of DeVito's was inadvertent. Hibler v. United States, ante, 463 F.2d at 459; Rhinehart v. Rhay, 440 F.2d 718, 723 (9th Cir. 1971).

Instead of making disclosure, the prosecutor elevated and exacerbated the situation. When, during the summation, defense counsel argued that DeVito "is going to get sentenced after this case. He has a deal. Whatever that deal is, I don't know," the prosecutor objected. "That is an improper statement, your Honor. There is no evidence of that whatsoever." The court replied, "I think that is certainly an improper statement. Now, you can state what the testimony is, but that wasn't the testimony." Counsel dropped the matter by referring to the jury's memory.

It may be that this exchange was technically correct, depending on how one interprets the word "deal." We may observe, however, that for a prosecutor to fail to keep his promise as to a recommendation is enough to require the court to vacate a plea. Santobello v. New York, ante. It is with this background that we view the prosecutor's further remarks which the government says were not prejudicial.

"The fact that they state to you that there was a deal made, is ridiculous. Because I have nothing to do with sentencing whatsoever. . . ."

This, of course, was not true; otherwise there would be no point in even discussing recommendations.

"Mr. DeVito . . . has nothing to gain in this case, except here in court having the court hear him testify, that is it."

This, equally, was not true. With the court's exclusion of the specific promise of probation on the one hand, the downgrading of even the admitted evidence of the witness' hope for indulgence on the other, and the concealment of significant further evidence supportive of that hope, we cannot feel that defendants have had a full opportunity of attacking the credibility of a, and in the case of one defendant, the, main witness against them. There must be a new trial.

A separate point is raised by Gerard in connection with Count...