United States v. Derrick

799 including proceedings case is remanded for maiming, engaging in shoot-outs further opinion. owed consistent with firing the houses those who and into Additionally, they money. him knew Wooten AND REVERSED REMANDED. techniques. his minions criminal trained this, reasonably police infer From could may predi- have his transferred

that Wooten others, including Gro- for violence

lection

gins, operation. run helped who Wooten’s particularized to these facts is

Added

background fact that connection between soci-

illegal drug operations guns and our America, Kennedy, See UNITED STATES of ety tight 32 F.3d at is a one. Plaintiff-Appellant, (“[G]uns drug transac- 882-83 are common White, tions____”); United States v. 875 v. (4th 1989) (“[I]t Cir. is F.2d Wayne DERRICK, Paul Defendant- recognize weapons have unreasonable Appellee. illegal of the trade in narcotics become tools (internal quotation omit- operations.” marks Daniel; DuTremble; Dale L. E. Bart Bonner, v. ted)); States F.2d Greer, Curiae, Richard Amici (The (D.C.Cir.1989) into a situs “entrance activity drug trafficking all too real carries officers.”). to law enforcement dangers Courier, Post Movant. Charleston long acknowledged that the ña- Courts have activity strongly inform tee of criminal can America, United States of target armed. suspicion an that a is officer’s Plaintiff-Appellant, Ohio, Terry See v. 88 S.Ct. U.S. (1968) (noting L.Ed.2d 889 v. officer, reasonably a man was suspecting that Jr., Long, Marion Jefferson a/k/a robbery, perform daylight “would about to Bud, Defendant-Appellee. believing man] [that have been warranted presented thus a threat was armed and DuTremble; Daniel; Rich L. E. Bart Dale Thus, safety”). police could officer’s Brown, Greer; Alva Personal ard reasonably suspect from use the continuous Representative of Luther of the Estate drug guns home as a stash house Taylor; Langford Association National knocking an- present and that would be Lawyers, Amici Cu Defense of Criminal dangero presence be nouncing their would riae, us.* Courier, Movant. Post and Charleston IV. America, knocked here need not have The officers United States of might risk answer Plaintiff-Appellant, that the “take[n] (Harlan, Id. be a S.Ct. bullet.” v. J., concurring). Accordingly, Defendant-Appellee. Blanding, Larry order reversed and suppression court’s * particular Of safety caught with narcotics evidence. personal Although for the concerns plain associ- to his para-mount, makes advice importance Richards is Wooten's officers here justified lye on the could be drugs here likewise when the search grounds bucket dispose of in a ates to basis officers a reasonable reasonably have police Dawes could arrive. destroyed. suspect evidence would if the Grogins done so suspected that Woo- testified that he knew Detective Dawes presence. provided notice of their police being underlings to avoid how ten instructed Daniel; DuTremble; E. Bart Rich-

Dale L. Greer; Benjamin J. Gor-

ard Estate Gordon; Jr.,

don, Alva B.J. a/k/a Representative

Brown, Personal Langford Taylor; Na- of Luther

Estate Criminal Defense Association of

tional Curiae,

Lawyers, Amici Courier, Movant.

Charleston Post 97-4230, 97-4231 and 97-4232.

Nos. Appeals, States Court of

United’ Circuit.

Fourth

Argued May Nov.

Decided

802 Dorsey Collery, Ap-

ARGUED: Elizabeth Section, Division, pellate Criminal Justice, Washington, Department States D.C., DuTremble, L. Appellant. for Dale Carolina; Charleston, Gedney Main South Howe, Charleston, Carolina, III, for South DuTremble, Amici Daniel Curiae and Greer. Collins, Jr., Lacy, Wyman Collins Joel & P.C., Carolina; Columbia, Jack Bruce South Columbia, Carolina, Swerling, Ap- South for Miller, Alexandria, pellees. Marvin David Lofton, Charleston, Virginia; Lionel S. South Carolina; Collins, Jr., & W. Collins Joel Columbia, Carolina, P.C., Lacy, for South Gordon, Association, Amici and Es- Curiae Taylor. tate of BRIEF: John C. Kee- ON General, Attorney ney, Acting Assistant Division, Department Criminal United States D.C., Justice, for Washington, Appellant. Sumter, Bell, III, Moore, & E. Bell James Carolina, Appellee Blanding. Lisa South for Kemler, Alexandria, Kemler, Zwerling B. & Virginia, Amicus Curiae Association. for WIDENER, NIEMEYER, and Before LUTTIG, Judges. Circuit by published Vacated and remanded opinion. Judge opinion, LUTTIG wrote Judges which WIDENER Judge joined. WIDENER NIEMEYER concurring opinion. separate wrote remand, Upon defendant moved OPINION indictment, superseding dismissal of his LUTTIG, Judge: Circuit which had also included defendants Gordon America, Appellant, the United States discovery Blanding, grounds appeals from the order of the federal district prosecutorial alleged and other violations Carolina, the District of South dis- response allega- misconduct. And missing prejudice five re- indictments withholding improper tions of of documents the so called turned in the aftermath of wrongdoing, and other de- investigation polit- into Operation Lost Trust essentially discovery to “start over on cided corruption ical the South Carolina State- again.” by providing it United States v. early For the house in the 1990s. reasons (D.S.C. Taylor, 956 626 n. follow, opinion we vacate (district 1997) dismissing court order defen- instructions district court and remand with indictments) (quoting dants’ OPR 10/18/94 that the dismissed indictments reinstated. 10). having Report at This decision been made, government produced to the de- I. “all 302s that mentioned [FBI] fendants investigation This case from an FBI arises co-conspirator named in the new indictment political Carolina corruption into the South pre-trial as well as all Jencks Act materials.” in its legislature connection with consider- production at 2688. This on November J.A. parimutuel betting ation in 1990 of the state’s 1993, 29, prompted defendant also to Gordon investigation in legislation. resulted That for on move the dismissal of indictment jury prosecution by the the and conviction grounds government the had im- the Larry Blanding, Wayne Paul defendants— required properly withheld materials to be Derrick, Long, and Jefferson Marion Jr.1— produced Brady v.Maryland, 373 U.S. under offenses, un- including extortion for various (1963). 1194, 83, 10 L.Ed.2d 215 83 S.Ct. right conspiracy to der color of official and 22, 1994, February the court district On extortion, the commit in violation of Hobbs granted government’s the motion for continu- Act, § Bland- 18 1951. Defendants U.S.C. Department the ance in order to allow (as well as ing’s and Derrick’s convictions Responsibility Office of Professional Justice’s Gordon’s) eventually Taylor’s and were over- (OPR) allega- investigate to the defendants’ by appeal this on on the turned court That in- prosecutorial misconduct. tions Supreme grounds intervening the Court no intentional vestigation, which disclosed States, in v. United 500 decisions McCormick cases, in prosecution misconduct the 1807, 257, 111 114 L.Ed.2d 307 U.S. S.Ct. Although of 1994. was concluded October States, (1991), and Evans v. United U.S. Department of Justice found that the the (1992), 255, 1881, L.Ed.2d S.Ct. any inten- prosecution engaged had jury defective the instructions rendered Attor- wrongdoing, the States tional given at their trials. See United States his office ney for South Carolina recused 138353, 966 F.2d 1444 Blanding, v. 1992 WL involvement, attorneys further and from (4th 91-5871); v. Der- Cir. No. United States Integrity Main as- Public Justice from (4th rick, 34691, WL 16 F.3d Cir. responsibility prosecution of the sumed 92-5084). No. We affirmed cases. of a new trial to defendant court’s award Thereafter, at an October status upon improper playing of Long the based conference, agreed pro- government recordings jury. the tape before his inadmissible FBI 56993, all 302s 19 duce to the defendants Long, v. 1994 WL United States 92-6799). relating to the (4th transcripts possession According- in its F.3d 1430 Cir. No. right investigation, reserving to seek were remanded to the ly, all three cases any materials by the court of camera review court retrial. district court, By appeal. order of the original defendant-appellees party to this Two other Gordon, however, appeal, Taylor granted are now of both of these Luther and B.J. we the estates away passed on March participate opportunity deceased. as ami- defendants July passed away Gordon curiae. cus Consequently, neither these individuals pro- Responsibili- government believed should not be the Office of Professional ty. 1341. The district duced. at 1422. See J.A. government pro- court also ordered 25,1995, discovery In July order entered any existing duce handwritten interview following of the materi- its in camera review All of notes. J.A. at 1348. these materials orders, produced pursuant als earlier its 1,1994, to be surrendered December govern- district court concluded that by the into the evidence room established argument drug-related audio- ment’s (district at 1352-53 court. J.A. tapes in March were not produced of 1995 order). discovery promise Pursuant its Brady was relevant discoverable under conference, government placed the status investigation drug “the “ludicrous” because large the evidence number of documents hand-in-glove corruption inves- upon Additionally, acting reserva- room. tigation as Lost at 1427. known Trust.” J.A. right, tion of submitted a Arguments by as the made such one number of to the for in FBI 302s said, government, “cause the district court inspection argued camera very closely look at what was court to produced should not defendants. may have withheld February January jeopardized rights of these defendants.” prosecution that the FBI in its learned J.A. at 1427. The court concluded also recordings possession tape and FBI 302s re- relating corruption in connec- documents lating drug investigations 1988-89 (as capital gains legislation tion with the prosecution Upon Ron Cobb. learn- witness opposed legislation parimutuel betting materials, ing prosecution of these ob- subject sting of the Lost Trust tained these documents turned them operation) were relevant to the defendants’ over to the defendants. key figures defense because “one Following productions, the above-described investigation pled a RICO Lost Trust proposed to the at the defendants court its violation, predicate of the offenses of one 1995, discovery April hearing pending 19, taking which the of a from the bribe motions, that government’s subject key cooperating government every scrap paper the take witness, Cobb, Lost Ron in relation to Trust they have, every internal memoran- gains capital the tax bill.” at 1428. J.A. dum, every correspondence, every piece of by As pad, every videotape, every to the documents submitted doodle tran- script, every tape, everything, put government inspection, it audio for in camera in the room. district court concluded (The main, day, at same internal administrative docu- J.A. 1364-65. defendant filed constituting Derrick a motion to dismiss his indict- privileged prod- ments work ment.) following day, gov- And the over the ucts, part or are documents that are objections already pro- ernment’s that it had cases, public copies in these record by required duced far than more documents by known to have documents this court rules, Brady and court federal district previously been furnished to defendants. any issued an order avoid further confu- “[t]o The mate- court has additional few found sion as to material should should what therein to which it believes these rials government not be turned to the over Brady are entitled under either defendants 1418, ... at That defendants.” J.A. 1419. meaning “open or ivithin the file required government produce order policy” in in this district. effect 8,1995, by May inspection for in camera “all added). (emphasis The court J.A. at 1430 posses- materials [its] documents and/or government produce ten ordered the but ... dealing sion with these cases and not specific to OPR inter- documents addition presently available to the defendants in the view notes. J.A. at 1440. compli- 1420. ‘evidence room’.” at In J.A. subsequently amended order, government ance with the court’s discovery July its a number of order court, produced, according to the district sev- times, 7, including 1995. Justice, September once on Department en file boxes from the FBI, order, In its the court September four file from the one file box amended boxes intentionally do it. He doesn’t how “that come know should ordered it, any might got misplaced, it but he found and he possession of evidence which into capital alleged gains cover-up, gave up. it impact on shall materials be such information guess and/or he would been better off if for immediately to this court submitted it, just acted like he didn’t find had response review.”J.A. camera comply trying I think he’s with the order, in- amended this orders, and there have been several court’s 1542, and was quired, J.A. informed things up of these that have come after located, Special Agent had FBI that Denton thorough investigation. more 14th floor of the Strom Thurmond “on the J.A. Building in a section files Federal known hearing, At dis- the conclusion of the files,” 1540, investiga- closed an trict that it to re-review court said wanted gains capital for matter.2 The tive file already of documents that had boxes the court that government notified July reviewed in camera and had said file, placed this some of the documents found produced. need 1995 order not be On room, and, on October evidence February ordered that all for in submitted other documents cam- produced these be to the defen- documents court. In an order dated era review dants, “little, if reasoning anything, con- 6, 1995, the district court indicated October tained therein can still be classified as ‘sensi- “should have that the submitted documents tive’,” given “a wider latitude must be and, ago” acknowledging long furnished been regard to materials to be furnished for only cursory it had “made in camera purposes pursuit their of the defendants’ documents,” pro- them ordered review prosecutorial motions miscon- to dismiss J.A. at 1460. duced to defendants. might given prepara- duct than for trial 18-20,1995, October the court conduct- On tion,” prejudice and that “no will inure to the hearing evidentiary on the defendants’ ed government should this court order all of During prosecutorial misconduct. claims to the defen- documents furnished hearing, primarily related which at 1946-47. dants.” J.A. investigation, Agent capital gains Special re- On October the district court Denton, testifying after FBI main- hearing on defendants’ motions convened files, “cooperating witness” was asked tained indictments, and thereafter to dismiss their again relating files to search files support in briefing received additional review, conducting Ron Cobb. In this And, opposition in to the motions to dismiss. Kohn, FBI 302 found an on Robert Denton 3, 1997, en- February the district court on generated after the defendants’ was

which dismissing the defendants’ tered its order produced the defen- trials which prejudice pursuant its indictments with suggestion Rejecting the defendants’ dants. supervisory power. intentionally this document had been that Rejecting government’s contention that withheld, the court stated: would be the dismissal of indictments thousands and thousands of [O]ut finding that specific absent a unauthorized passed through that’s this documents preju- misconduct alleged prosecutorial court, surprised there’s I’m not that one defendants, district court stat- diced the overlooked, lost, got or whatever it that is____ ed: Now, last I had not seen that 302 totality of The court is convinced found, and I know if it don’t government’s in matters actions these any anything would warrant contains egregious prosecutorial rises the level intentionally it. body trying hide misconduct, a this is sufficient already agent say that he didn’t heard the Agent Special Denton testified: 2. file, gains capital which It it was the turns out number of the flies a file I noticed on one file, capital gains. down at not indexed not the Trust it was Lost 302, empty and it had Lost bottom an on it and had another file Trust file number it number. 806 1974, 504, 103

finding which court at reversed the defen on can exercise its id. S.Ct. power. prosecutor had supervisory dants’ convictions because the failure to tes

commented on the defendants’ California, tify in v. violation argue using The Griffin 106(1965). 609, 1229, 14 L.Ed.2d U.S. 85 S.Ct. must supervisory power find had, Appeals through The Court of its rever pattern prejudice, and the defen- convictions, sought discipline “to sal of the proven neither. The court dants have prosecutor prosecu other warn disarray agrees that the are in circuits —and perceived continuing tors —for it to be what subject, this but believes there is sufficient ” within violations of the circuit. precedent subject indict- dismiss Griffin 504, Hasting, at 461 U.S. 103 S.Ct. 1974. addressing issues. ments without however, reversed, Court, Supreme The (district 623; see also id. holding supervisory powers that a court’s concluding “it has the discretion may not invoked evade the harmless supervisory under the doctrine of the court’s error constitutional violations5 be- rule for power govern- to dismiss should find the preserved doc- cause “the interests outrageous so actions as to offend the ment’s including trine of harmless the inter- court”).3 error”' — of the From the dis- sensibilities seeing est of the victims defendants dismissing trict order court’s the defendants’ brought justice public’s and the interest pursuant supervisory pow- indictments to its justice” “prompt administration of er, —“can- appealed.4 States casually ignored lightly not be so II. order to what the court viewed as chastise prosecutorial overreaching.” Hasting, 461 vigorously As United States as U.S. 103 S.Ct. 1974. serts, the district court’s dismissal Court that invocation of the “[s]u- reasoned finding indictments defendants’ without pervisory power to reverse conviction is not prejudice directly contrary to the remedy the error needed as a when to which court, precedent but also to clear and since is addressed is harmless defini- Supreme precedent. well-established Court tion, the been conviction would have obtained Supreme As held Court United States notwithstanding the asserted error.” Id. Hasting, v. U.S. S.Ct. 506, 103 1974. The Court also noted (1983), S.Ct. “supervisory court’s L.Ed.2d 96 integrity “the process that concern for discipline powers prosecutors of its weight” carries the error may less when is harm- jurisdiction” not be invoked to reverse a possibil- less there is “no prosecutorial because ‘reasonable conviction for mis defendant’s ity’ that alleged contributed conviction.” [it] conduct where the misconduct was Connecticut, (quoting Fahy Id. v. harmless. Id. 375 U.S. S.Ct. 85, 86-87, had, Hasting, “notwith 84 S.Ct. L.Ed.2d Seventh Circuit error,” 171(1963)). Finally, standing explained, the harmless nature of the the Court occasion; primary coop- district court its beliefs as than to allow its 3.The summarized to one witness, Cobb, erating take prosecution’s the as to an unusual misconduct follows: sting operation; go amount of control of the to investigation court is convinced that this regulations target its own to outside of certain is, began appropriate in an It after fashion. legislators, and this court an to mislead to such all, responsibility of the the the FBI and USAO perpetrate upon extent to a fraud court. as the illegal pursue regard information with to to 956 at 658. jurisdiction. opinion the acts within their It is court, however, that court, some of investi- By prosecutors 4. orders of this former E. gators got prosecutors DuTremble, and lead lost on their by joined Bart and Dale Daniel L. lofty drugs goal weeding Greer, way out and permitted to participate Richard in cunae, corruption the South Carolina State appeal from this as amicus as were the estates political pres- Benjamin and House. Overzealousness and Gordon. The Luther DuTremble, Daniel, authority ap- upon positions by and will sure those in brief filed Greer throughout pear government be the detours that led the be referred to brief of the trial, Tay- "prosecutors especially amici." in the cases of to rush Gordon; lor, Blanding withhold vol- evidence; 18, per- exculpatory Chapman California, to allow 5. See v. 386 87 umes U.S. 824, (1967). jured testimony to stand uncorrected on more S.Ct. 17 L.Ed.2d 705

807 supervisory power inappropriate for re- not invoke “deterrence an basis circumvent” where, here, 254-55, inquiry. vio- [the versal constitutional Id. at 108 S.Ct. 2369. explained, ‘attenuated’] lation is at best and where As the Court balance struck “[t]he objec- 52(a)] narrowly more tailored deter [Rule means between societal costs and prosecutorial tionable conduct available.”6 rights may casually of the accused omitted). (footnotes Id. a overlooked ‘because court has elected to analyze question the supervisory under follow, fortiori, It seem to a ” 255, power.’ Id. at 108 (quoting S.Ct. 2369 Hasting holding in that a court Court’s Payner, United States v. 447 U.S. not, may finding prejudice to without (1980)). 2439, S.Ct. L.Ed.2d 468 defendant, supervisory power exercise its Thus, broadly the Court held that “a district require a reverse defendant’s conviction powers dismissing court exceeds its an prosecutorial upon a retrial ba*sed miscon- prosecutorial indictment for misconduct not duct, may that a court not dismiss an indict- defendant,” Scotia, prejudicial Nova altogether ground ment without also 255, 108 487 U.S. at S.Ct. 2369. finding prejudice. The dismissal of an indict- altogether clearly public’s ment thwarts the Supreme Other Court cases likewise con in the enforcement of its criminal interest supervisory power firm that a court’s cannot profound lasting laws in an even more gov be exercised dismiss for indictments And, way requirement of a retrial. than showing ernment misconduct a absent indeed, in Bank Nova Scotia v. United See, prejudice to e.g., the defendants. Unit States, 2369, 108 S.Ct. 487 U.S. Morrison, 361, 365-67, ed States v. 449 U.S. (1988), reaffirmed its L.Ed.2d Court (1981) (holding S.Ct. 66 L.Ed.2d 564 analysis Hasting squarely held that a inap an an dismissal of indictment was authority court has “no to dismiss the indict- propriate remedy for alleged an Sixth prosecutorial miscon- ment on basis prejudice that did not Amendment violation finding petitioners duct absent defendant, though even conduct of . at prejudiced such misconduct.” Id “egregious”); agents id. S.Ct. (“[A]bsent 365, 101 S.Ct. 665 demonstrable thereof, prejudice dis or substantial threat apparently contend that Defendants plainly inappropri missal of the indictment is holding applies only Court’s NovaScotia ate, may though the violation have been even occurs at prosecutorial misconduct that (footnote omitted)); deliberate.” stage.7 Br. at cf. grand jury Appellee’s See 727, 733, 100 Payner, 447 S.Ct. States v. U.S. However, at issue in although the misconduct (1980) (holding 65 L.Ed.2d grand jury, Nova did occur before Scotia supervisory court cannot invoke its (“[A]s 254, 108 general id. at S.Ct. 2369 see the Fourth Amendment power to circumvent matter, may a district court dismiss by excluding evidence seized standing rules [prosecutorial misconduct] indictment faith illegally and bad proceedings grand jury unless such errors party’s not the in violation of a third defendants.”), prejudiced both the —but rights). defendant’s —constitutional analysis opinion and the text of its Court’s holding applies Scotia’s confirm Nova We, too, consistently recognized that prosecutorial that oc- equally to misconduct pros- may not be dismissed an indictment pretrial stages trial of a curs at showing absent ecutorial misconduct prosecution. prejudiced defendant. the misconduct McDonald, See, 61 F.3d v. e.g., United States Specifically, reasoned that all the Court Cir.1995) (4th (holding indict- Rule 253 by Federal of federal courts are bound alleged 52(a) ment not be dismissed should to conduct Criminal Procedure grand before may prosecutorial a misconduct inquiry and that “court harmless-error Hasting, 461 by identifying opinion.” narrowly in its him 6. Court noted that more tailored 5, S.Ct. 1974. U.S. at 506 n. 103 "order[ing] the included means deterrence why prosecutor to cause he should not be show findings "asking Department this case made no disciplined,” of Justice court in 7. The district indicting against prosecutorial before the disciplinary proceeding misconduct a to initiate him," grand Appellees' at 93. jury. See Brief “publically chastisfing] prosecutor or 808 using to conform supervisory power prejudice the defendant from

jury that did not judicially preferred Supreme Court executive conduct States “[t]he because United cogniza- may- by dismissing charges, absent recognized ... indictment norms has defendant.”); particular a prosecutorial mis- ble quashed prejudice on the basis be 1091, Isgro, 1097 conduct, v. 974 F.2d only government’s United States where (“In (9th Cir.1992) jurisprudence grand its recent ‘substantially influenced misdeeds ... indict, to- grave Supreme ... Court has moved or if there is jury’s decision to a court should not use its ward rule that indict free doubt the decision punishment supervisory powers to mete out influence of such viola- from substantial ” defendant.”); Scotia, prejudice to a id. 487 U.S. at absent (quoting Nova tions’ 2369) (internal rejects the 256, quotation (“Hasting unequivocally idea thus 108 S.Ct. Lee, may government for omitted)); that a court sanction the States v. 906 marks United Cir.1990) (“[T]he 117, (4th considering first the district its misconduct without F.2d 120 defendant.”). prejudice dismissing actual suffered erred in the indictment court pro- prosecution’s failure to on the [based ignored entirely this im The district court witness, allegedly who was duce defense body Supreme Court pressive of established control,’] because, as the ‘within caselaw, failing appellate court even to explained, de Supreme Court has ‘absent single to a one of the cases discussed cite prejudice, or substantial threat monstrable Instead, the district court relied on a above. thereof, plainly is dismissal of the indictment of which number district cases—all may though inappropriate, even the violation both, Hasting or predated or Nova Scotia ” Morrison, (quoting have been deliberate.’ distinguishable easily and most which 365, 665; citing 101 Nova 449 U.S. S.Ct. present case in event. See 956 from Scotia, 254, 2369)); 487 108 U.S. S.Ct.. 657-59, citing F.Supp. at States v. to United 310, Hastings, States v. 126 F.3d 317 United (D.Md. Corp., F.Supp. 634 1414 Omni Intern. (1997) that, although govern (holding 1986) preju (dismissing indictment without comply improper refusal with a ment’s Moore, dice); v. Fischbach & United States sanctions, discovery dis order warranted (W.D.Pa. 1983) 1384, Inc., F.Supp. 576 1396 “an of the indictment was extreme missal (denying for release of defendant’s motion only inappropriate sanction” where jury grand transcripts there was no because was “inconvenience prejudice defendant government abused evidence that expense delays”). slight jury grand process and “no indication of defendant”); every prejudice consid- United virtually other circuit to actual And Lawson, 158, F.Supp. v. 502 172 post-Hasting the issue and Nova Scotia States er (D.Md.1980) (dismissing may not without also held that an indictment indictment has DeMarco, misconduct, prosecutorial prejudice); United States v. 407 dismissed based on (C.D.Cal.1975); F.Supp. 107 States v. showing prejudice to the defen- United absent (D.S.D.1974). Banks, See, Engel, F.Supp. 383 389 Addi- e.g., States v. Van dant. (7th Cir.1993) (“A tionally, federal court relied on three 15 F.3d 631-32 predated punish miscon- court cases. Two of these judge is not authorized to circuit Scotia, citing prosecutor by letting defendant Nova see 956 of a duct (3d Serubo, walk, v. 604 F.2d 807 unless not violated United States the misconduct Cir.1979), Hogan, v. 712 rights prejudiced but also and United States the defendant’s (2d Cir.1983),8 defense, the other failed condition is satisfied F.2d neither Santana, Hasting, here.”); Scotia or see v. 6 F.3d even cite Nova United States (9th Cir.1993) (“[T]aken (1st Kojayan, Payner, F.3d 1315 together, United States v. Cir.1993).9 Obviously, of the cases cit- Hasting, and Nova form a none Bank Scotia by the overcome admonishing to refrain ed can trilogy federal courts distinguishable v. Hogan easily The district court also cited to McNabb Unit- also States, hand, ed U.S. S.Ct. L.Ed. the court in that case case because (1943), "govern- proposition "If not that the error was harmless: found unfair misconduct 'need not be so ment's resulting prejudice clear from the AUSA’s for the process” imprudent before as to offend "due misconduct, might appellants have been in- power supervisory exercise of this is [court's] 712 762 n. 2. dicted." F.2d at ” F.Supp. (Although appropriate.' at 658. 956

809 misconduct, 623, 956 at it in controlling Supreme au- rial see Court force of the misconduct, a of at pattern found id. the court to find fact thority requiring district cf. (finding government’s discovery 657 that the dismissing defendants before prejudice the conduct”), pattern a “amounted to of errors prosecutorial on miscon- indictments based a is pattern and such sufficient alone duct. justify of indictments even dismissal however, hardly surprising, It is finding prejudice to the specific a of without precedents, in face of these even For before court. this con- defendants any findings make court declined to tention, presumably rely upon the defendants fact, were, prejudiced. in that the defendants in that it the Court’s statement Nova Scotia noted, of district court itself the bulk As the it identified related to discov the misconduct prosecutorial history not faced with a of violations, now have ery defendants cases, misconduct, spanning several that is discovery materials to which all of the systematic pervasive as to a so raise considerably possibly be entitled —and could question serious substantial and about at re to them for use their more—available process fundamental fairness of the which Thus, any prejudice arguably trials. resulted the indictment. consequence discovery viola as a of existed 2369; 259, at U.S. 108 S.Ct. see also 487 by this orders fully is remedied court’s tions Morrison, 2, n. 101 665 449 U.S. S.Ct. v. new trials. See United States Borokin of (“[W]e note the record before us does Cir.1984) (4th ni, 236, (rejecting 748 F.2d recurring a pattern reveal of violations not claim that his indictment should defendant’s investigative might officers that warrant government have been dismissed because imposition remedy a more of extreme his produce exculpatory material at failed to lawlessness.”); to deter future Santa- order because, “assuming even [defen first trial na, (noting may F.3d that the Court first entitled to the materials at his dant] was open possibility the re- have left trial, failure remedy government’s for the qualified if the quirement prejudice of trial, an a new not to furnish them was plainly improper, indisputably misconduct “is Similarly, any prejudice de acquittal”). through the outrageous, and not redressable might original trials that fendants at them tools”). disciplinary utilization of less drastic alleged from the other miscon have resulted that, suggest language may despite This fully also duct language reasoning Court’s broad cured retrial. Scotia, Hasting and the Court has Nova nonetheless, contend, possibility pat- that a entirely foreclosed the Defendants so prosecutorial of the indict misconduct could be court’s dismissal tern of the district because, justi- although pervasive dis that it would proper ments was entrenched finding a unnecessary fy of indictments without address dismissal trict court found if Even an prosecuto- prejudice to defendants.10 such “pattern” a there was whether employed McNabb as both suggests tactics that it was ernment court's citation McNabb, and in "viola prejudicial to the defendants clear phrase quoting quoted does 346, rights.”Id. McNabb, legal S.Ct. McNabb). Supreme [their] tion of appear in authority "supervisory over Court exercised justice fed- of criminal administration McNabb, courts,” S.Ct. 318 U.S. at eral explicitly suggest Supreme Court did not 10. The op- however, Scotia, obtained under sys- to exclude confessions finding a in Nova “flagrant disregard” pressive circumstances in prosecutorial alterna- misconduct tematic duty by Congress statutory imposed justification finding prejudice a tive Rather, per- promptly to a dismissing officers take law enforcement the Court made indictments. judicial "reviewing] can officer who arrested before son in the context its statement justification for sufficiency conclusion] [its the basis of determine detention, record set forth 344-45, established,” 608. McNabb Nova prejudice 63 S.Ct. has not been id. that Scotia, suggest- support S.Ct. provides for the district court 487 U.S. at no consider, supervisory pow- ing might subset of defendants’ contention (much history prosecu- generally inquiry, prejudice less exer- whether can be exercised er grand indictments) jury jeopardized discipline the torial misconduct to dismiss cised 257- 108 S.Ct. 2369. independence, id. at prejudice to the the absence of indeed, And, long- Hasting suggests defendants, that even a clearly gov- the Court viewed the .drawing conclusions as requirement prejudice without itself exception law, whether, production however, as a matter of exists, we the Court doubt district required. example, For where, here, apply it as alternative purport to determine not even does including publicly chastising the sanctions — assertedly any of the withheld infor- whether recommending them for disci- attorneys and defense, cumula- material to the mation was available to the plinary proceedings —were already provided, or information tive of prior to employed not dis- court and were readily available to the defendants —all Hasting, 461 missal of the indictments. Cf. Brady necessary inquiries under which are (noting that 506 n. 103 S.Ct. 1974 U.S. at. States, Giglio and v. United U.S. narrowly tai- the court should select “more (1972). fact, L.Ed.2d 104 S.Ct. objectionable prosecu- means to deter lored” only infrequently makes factual misconduct). However, torial because all; mostly on “findings” opinion its rests sug- findings can read to district court’s innuendo, of this is implication and much gest pattern prosecutorial mis- of serious pro- as to matters either extraneous spans at these several conduct that least beyond pending the court or ceedings before have, cases, urging at the related we general. purview of the federal courts defendants, and of the under- United States And, make such find- when the court does findings. painstaking review of those taken a upon credibili- ings of which are based —none below, And, fully explain we more as are, ex- ty almost without assessments — support record does not even the district wholly conclusory: The court either ception, “findings” prosecutorial court’s individual findings explain the for the does not basis misconduct, much that there has been an less only what can best be characterized offers pattern prosecutorial miscon- established analysis of the superficial incomplete justify the in these cases that would duct Indeed, in a number of record evidence. extraordinary sanction of dismissal instances, explain, the district court as we indictments. defendants’ that material simply erred in its assertion others, and, produced contra- still III. findings and assessments ear- dicted own court’s parsing A careful of the district produc- proceedings lier in the as to whether lengthy opinion reveals that the district court shortcomings required. same tion as to for its scores of conclusions relied portions appear in those of the district exculpatory wrongful withholding of material charges gov- opinion in which it court’s prosecutorial miscon- information and other than the ernment with misconduct other largely upon only the defense claims of duct with wrongful disclosure of information. As upon an wrongdoing, rather than intentional portions opin- of its the document disclosure analysis independént of the record evidence. ion, court often did not even the district is, merely court often re- “findings” That as that term is con- make factual understood, in- ventionally employing that cer- mere cites that the defendants contended produced, ference and innuendo instead.11 When materials should have been tain Agent Special standing pervasive pattern prosecutorial Clemens Assistant Attorney perjured justify dismissing themselves indict- States Barton misconduct does not discussing finding prejudice denying an FBI 302 to the defen- the existence of ments without matter, merely capital gains 103 S.Ct. 1974 dants. See 461 U.S. the district court (rejecting attempt observing disci- perjury by the Seventh Circuit’s implies that the sub- such jurisdiction pline prosecutors "big in its dis- jects question of the 302 in fish” despite missing the Seventh Circuit's certainly indictments whose mention in a 302 "would prosecutors generally findings that the circuit's F.Supp. at 640-41. In like been noticed.” 956 prior fashion, to heed the court's admonitions” finding "failed never made a the district court charged engaged misconduct concerning perjured Clemens himself that SA Morrison, "disturbing frequency”); see also late-night visit him and Cobb to Smith's (characterizing the house; rather, U.S. at 101 S.Ct. 665 only the court said that Smith's conduct, which was insufficient to ... was "indicate[d] that SA Clemens justify dismissing without a find- the indictments testimony.” entirely truthful in his "egregious”). ing prejudice, added). (emphasis So also did at 648 actually imply find that the the court but not below, but, gains government's investigation capital into the fully 11. We discuss these instances gov- inadequate, noting "finding” example, explicitly matter was rather than by overwhelmed findings, make never are fendants themselves were court did almost oftentimes, And, they adequately supported. magnitude litigation. of the That itself, litiga- earlier may the district court court have become overwhelmed district tion, rejected specifically the claims of however, litigation, by protracted this did not ultimately wrongdoing prosecutorial that obligation that of ultimate relieve to recited as a basis for decision dismiss fully support to its conclusions with evidence indictments. defendants’ obligation That from the record before it. is upon always the court and is incumbent may many No of these errors doubt where, here, charges as the court a heaviest simple to the fact that ascribed party litigant wrongdoing. with intentional by the overwhelmed sheer vol- became Upon careful review of the district court’s (and evidence) in ume other of documents mis- charges and of opinion, of individual dispute by this and the countless individual therein, we are convinced conduct recited adjudi- that had to be claims of entitlement properly obligation simply that this was not decade-long pro- cated in the of these course discharged by the district court.12 ceedings. government Even the and the de- ríes, by "suggest of a fact confirmed our own exhaustive a total avoidance ernment’s actions Accordingly, might pursuing proved have record. the court has information that review the generally categories (empha- only F.Supp. at 660 to these adverse to Greer." 956 addressed itself added). And, although in- the district court sis and individual assertions misconduct perjured categories. corporated that Greer had him- cate- seemed convinced self, within these These apparently unprepared appear govern- to a gories, they page make as on effect, brief, finding noting specific instead that to that ment's are as follows: perjured” testimony "would to be Greer’s (1) Failing reports to FBI 302 disclose unless, "[ajlternatively, government ... ... pay- indicated that he had made which Cobb sentencing hearing. lied court” at Greer's to the friendly legislators keep to to ments other them instances, although imply- Finally, Id . in some expressed uncertainty and about whether such actually ing findings, expressly the district court J.A. 234-36. were "bribes.” all, findings” "specific as it to make declined (2) exculpatory Failing evi- to disclose other testify- regard did with ing to Cobb’s truthfulness in dence, including tape recorded conversations. Attorney Daniel authorized that United States 236-40, 274-77. J.A. $10,000 payment to Sena- Cobb to characterize (3) by Allowing perjury to testi- Cobb commit Lindsay attorney’s as Id. at 649. tor fees. correction, fying, had never without When, infrequent the court occasions illegal given Lindsay any "bribes or Senator finding possible to did make a factual and it money.” J.A. 244-54. such, identify finding impossible it is often (4) agent Presenting testimony from an FBI or as to whom to what conduct ascertain falsely prepared he had who denied that see, made, (seemingly e.g., finding id. at 660 Lindsay relating payoffs report Cobb’s perju- finding government that the had suborned tax, Capital and connection with Gains instances,” identifying ry but without "in several having falsely represent to the court an AUSA perjury was committed whether the referenced report J.A. that no of this interview existed. Clemens); by and or also Greer Cobb 247-49. compare (characterizing testimony as id. Cobb's (5) Placing telephone to Sena- a 2:00 a.m. call over”) (stating id. "perjurious times several falsely testifying Lindsay, then that the tor play "apparently, out felt he had Clemens merely purpose warn Lind- this call was end”, characteriz- to the but without scenario negative upcoming publicity. 261— say J.A. added), (emphasis ing testimony "perjurious”) (stating perjured id. either himself Greer Greer, (6) Permitting the former head Richard court), (finding id. government lied Development State of the South Carolina "allow[edj testimony that the Board, knowledge falsely deny Cobb, Greer it knew to be Clemens and jury gains bribery grand capital scheme without charac- untrue to stand uncorrected” investigating J.A. 254-61. that matter. (em- testimony by "perjurious”) terizing three as investigate (7) capital Failing adequately to added). phasis matter, avoiding pursuit gains prove Greer. could adverse to court, information that argument we asked before this 12. At oral 254-61, J.A. (8) 294-95. counsel and counsel for defense usage drug Withholding of Cobb's evidence catego- agree the nine whether employment by the both before after his United States ries misconduct recited government. J.A. 271-74. comprised page principal brief the bulk of its (9) sting Allowing control take prosecutorial "findings” of district court’s target legislators particular operation virtually agreed that counsel misconduct. Both required regulations him to grounds violation of all addressed of the misconduct 277-80. catego- passively. more act within court were included govern- challenged as tion been so A. lawyer present arguments. As ment’s ultimately The district court concluded experience has judge, court’s and a government’s that “much of the misconduct gov- “open file” meant been actually from its failure to dis- stem[med] discovery file would be ernment’s entire to the defendants.” close evidence for their available to the defendants made the court: F.Supp. at 659. Said long has been estab- examination.... It ar- withholding of a voluminous The such policy “open an file” is lished that when government ray discovery which the had declared, Giglio Brady and the dictates exculpatory relevant to and to know was Particular, ex- become as well as Bills of unprec- is the defenses of these defendants traneous; material, discovery except as all The court finds before this court. edented product, is made privileged limited to work are too numerous and that these violations This would available to the defendants. specific to certain issues to be consid- too Daniel or surprise no to USA have come as simply unintentional or the result of ered assistants, prosecut- had most of whom neglect. numerous this court on ed cases before 658-59; (rejecting also id. at 657 Id. at see occasions. Responsibility’s the Office of Professional [Mjotions prosecutorial for mis- mistakes and mis- to dismiss finding that “incremental prosecutors, another judgments” by the FBI and and been filed one or conduct had wrongful decisions to during preparation not “intentional and of these defendants failures).13 conceal,” discovery caused the originál pendency their trials and primary 1990 and 1991. One and the grounds on which those motions Underlying much of the district the wilful motions are based is more recent reasoning government had court’s exculpato- withholding Brady and other exculpatory in wrongfully material withheld ry material. apparent was the court’s belief formation F.Supp. at 632. tried under a so-called the case was Notwithstanding statements pursuant gov to which the “open policy,” file order, it evident from the district court’s essentially agreed to turn over all of ernment agreed government never record that the the defendants in return for its documents to “open prosecutions under an' conduct these Brady knowing that neither the comfort of that the district court policy” file the sense throughout the Giglio nor would be relevant only suggested in order of dismissal. Not its Thus, proceedings. the district protracted each file numerous discov- did the defendants detailing began opinion entire what court its Brady, ery requests under and motions for “egregious prosecutori perceived to be the district court close- particular, bills of as follows: al misconduct” discovery, meticulously and ly supervised the outset, to be these cases were From considering, adju- hearing, and painstakingly to in under what is referred this tried Indeed, dispute. dicating each individual policy.” During its “open an file district as notes, the them- government defendants bench, court has con- tenure on the “essentially ] the district selves under this numerous criminal trials ducted abandon! ‘open policy.” theory about the file’ interpreta- has its court’s policy and never before majority of the documents the vast United States at 25. Br. of produced to the defendants on remand are has exactly completely indisputably to the de- emphasize numer- and irrelevant Apparently to how (district were, at 1520 fendants’ cases. See J.A. the violations noted ous noting percent" that "at of the docu- undisputed ... the court was least 90 ‘‘[i]n provided produced and later prior ments in camera to his trial received informed "really relevance as to 550-plus-or the defendants has no minus 302s and 26 of 66 of the now”). govern- tapes what we are here about 227-plus-or that are now in minus produce, prior to defendants' possession. ment’s failure to trials, The number of 302s defendants’ documents to pretrial by "volumes” of irrelevant tapes the other defendants received legally entitled defendants were not vary only slightly.” at 657. which the error, acknowledge, certainly viewed as much less cannot be failed to What the district court however, "egregious prosecutorial misconduct.” its own admission—-the that — 16; only “to the extent that all matters discover- also Reply Br. of United States see 4; Amici at Br. of Reply Br. of Prosecutors Title able under Rule (“Whether or not there was Appellees Code, provided 3500 will be States Section policy,’ ‘open file (United defendant,” States Brady v. obligations comply clear Response to Defendant’s Motion Discov- Maryland,Rule Federal Rules Crimi- Inspection), ery withholding documents (the § Procedure and 18 U.S.C. nal producible which it believed were not under Act).”). Jeneks statute, either the rule id. 888-94 pro- the defense prosecution Both the (United Response Sup- Defendant’s States throughout understanding ceeded on the plemental Discovery Inspec- Motion proceedings gov- pretrial and trial tion). opened files the man- ernment had not defense, through Taylor’s defendant suggested by the court. The ner district counsel, repeatedly likewise stated that did on, in early Septem- clear prosecution made government opened not believe that the 1990, only provide that it intended ber its files manner believed required by rule and those materials statute: 19, 1990, During the court’s October court. for Bill of Partic- The Defendant’s “motion in hearing, response to the court’s observa- general discovery ulars” is tantamount to a have an tion that the defense could not both majority of the matters request and the particulars, open policy file bill properly requested inquired about are not counsel, Collins, However, Taylor’s Joel stated: by way particulars. of a bill recognize its obli- the United States does you saying I are I think what understand provide the Defendant with cer- gations that, just say me I Your Honor. Let pursuant to Rule 16 of the tain information operat- never have believed that we and 18 U.S.C. Federal Rules Evidence policy. file ing open under an § intends to and the United States 420; (Taylor’s see also id. at “open in discovery this case an conduct understanding stating counsel all to the extent that matters file” manner particu- being case was tried under bills pursuant [of to Rule discoverable lar). And, Taylor’s again October of Procedure] of Criminal Federal Rules provided § repeated 3500 will be that there no 18 U.S.C. his view counsel prior to trial. Defendant open policy: file (United Tay- Response to at 317 States JA. operated never MR. COLLINS: I have Particulars); Bill of see also lor’s Motion for assumption open an file that there was (reading into record at at 415-17 same J.A. of 1990— n policy after time in October some hearing). At request at court’s October you you But talked like THE COURT: hearing Blanding on November it’s think one. again position repeated generally under proceeding it was not ought think there We MR. COLLINS: file open policy: an now, Honor. one Your be policy you open an file Do have COURT: J.A. at 1321. here? Finally, it from the district court’s is clear honor, Well, I’m your [PROSECUTION]: if it and actions that —even statements own that, say always view hesitant initially mistakenly such even believed —not coming for- discovery that I see motions proceed- throughout the court believed they are entitled to Everything that ward. file open had an ings 16, everything Rule under under discover or, open policy file an policy, least gov- anything § 18 U.S.C. early as trial, As suggested in its order. I have kind to use at ernment intends of the issue after extended discussion produced for them. counsel, the district court on the record And, April as late as at 531-32. that, although con- it had been concluded trial, government con- during the Derrick date, parties in fact had not fused to conducting dis- that was to assert tinued policy: file agreed open to an open file manner covery in case an you aware as you to make sure are Skip wanted THE on down there COURT: you telling yourself you get part you might narrowing are be where to what having open you know, all are door file, me that open you is to. An down responding you are not policy like trying a case completely different from guess I particulars. What to his bill of particulars. a bill of under say they laboring if have trying am been percent kept in 100 certainly we haven’t telling you I am THE What COURT: treating it like it up have been kind of —we responding to the bill of them keeps saying open policy file when he you that is and what told particulars that, and I have been get he didn’t this and obligation they have in this case him. a bill making you give all it to With why you That is from their own. get involved in particulars we don’t very questions that particular about the of that. request you your for the bill ask (reading prior submis- MR. DANIEL just guess you can’t —I particulars, by government): ... “[T]he sion you open policy can’t have an file and bill obligations to recognize its States does particulars. provide the with certain infor- defendant I think I understand MR. COLLINS: pursuant to Rule 16 of the Federal mation that, saying by your Honor. you what 18 U.S.C. Section Rules of Evidence and just say I believed that to Let me have never And the States intends discovery ‘open poli- in an operating open this case an conduct we were under file the extent that all matters file’ manner to cy.... pursuant to Rules 16 and 18 discoverable getting I I am at is THE COURT: What provided § to the de- 3500 will be U.S.C. know whether that came about as a don’t trial.” prior fendant to laboring theory you me under the result of working open policy under an all were file guess trying I what I am THE COURT: paHiculars you or whether in the bill of Collins, to, operating if get Mr. we are to tapes they what paHicularly asked case, particulars are a bill of we under going to use. way. thought I doing things one we were open file case. operating under an Once guess trying I I am THE COURT: what responses partic- of you get the bill I you. I because to tell don’t know stuck, stuck, ulars, you then he is stopped fooling particulars with the bill of everybody stuck. That is what the case is treating open it like it was an started and. all about. give policy. They might not have to file you tapes. I don’t know whether those becoming more and more in favor of I am go they or not. I have to back to the do myself. I particulars know U.S. bill kind particulars bill of and see what Attorney’s Office and most defendant’s up, and bound to parameters have been set opposed to lawyers become more and more up for the trial of this case. That is be set things them because it closes out lot of particulars the bill of is all about. what light open come to with an file that could you questions they give You asked the my question you right policy. guess I answers, and both sides are stuck with is, your understanding it this case is now is goes that and the case to trial. particulars? being tried under this bill of Yes, sir, it sure is. MR. COLLINS: putting ... I

government— THE COURT: was kind you if in fact of these other on notice some have to tell me THE COURT: You don’t things, protected I know how and don’t anymore. are, unprotected they operating if we are May I make a further MR. COLLINS: particulars, the bill of then Attorney under said? response to what U.S. rulings up point might not court’s to this can make another re- THE COURT: You necessarily have confined the just trying I to close it on sponse. am particulars. may gone I have doing. I to the bill of up we are down and narrow what get I then they had do wanted out of let’s on what because outside of guess through an thought, I error the case. mine, operating under that we were Well, Attorney’s wasn’t U.S. Office policy. it. open That is about file that, twilling they and I’m sure had do reasons, going and I ivasn’t to order their may I have to do some THE COURT: because, thing, you them to do such I under the backtracking now because was know, anybody I have never ordered open under opinion operating we open It to me if have an seems file. From I am policy. here on file forward particulars want to bills fool file particulars. I don’t going to this bill of time, with them for at a around all months anything I earlier could ruled think working like looks we’re more defendant, and I don’t prejudiced the having me more towards do some sort might coming in the what know future. thing of that nature. say than time You heard me this more one added). (emphasis J.A. at 1935-36 I cases. have about come other it is a lot better for conclusion indeed, Accordingly, record — partic- operate under a bill make case simply own does court’s statements — called than fool around with so ulars rather inexplicable con- support the court’s policies. way That can elimi- open file we proceeded under parties clusion problems. A lot of Brady a lot of nate open policy a full from the outset of file That is all. problems we can eliminate. case. run just going know how we are want to got here because case has end sometime. specific .example egre The first cited gious prosecutorial misconduct My only question to ... THE COURT: alleged improper with district was the operating open you we on an is are file prepared by Spe holding of three FBI 302s was policy particulars or bill which this 1989, them, Agent cial Clemens and dated June 19th. filed, responses September to 26, 1989, 22, 1989, July and which June your It that is what %ve indication payments to operating operate I will on that he had made on so Cobb said that gov- legislators throughout many the rest case. over South Carolina done prepared better be to have Taylor, ernment Bland- years other than defendants worry they I don’t have to what said. Gordon, Long, ing, and but refused Derrick anymore open questions. about payments “bribes.” file to characterize those added). (emphases F.Supp. 632-34. The June 410-27 FBI 302 states: to car- court seems And understanding was ried the case giving this regards to related that COBB —that open to an file being pursuant not conducted routinely he money Legislators, to State pro- the remainder policy through gives dollars to some two or three hundred — him____ it the time when entered ceedings until friendly just toward keep them dismissal. Said final order of FERGUSON, TEE stated COBB 20, 1995, hearing, court at October HARVIN, III and DONNA A. CHARLES example: among those who he MOSS were matter, Now, very outset of this money give money. COBB indicated this get who I don’t want to involved with any specific return benefit paid for was not suggested way I back might had —but having friendly to him than other someone Attorney’s Office of the U.S. with members on whom he could call. highest as much as respect, had that I perti- FBI 302 states The June know, and we both were anybody part: nent just opinion ought to have what’s that we provided a 1989 South L. COBB RONALD you than That’s different open file. Legislative Manual which Carolina everything me, ought put out but we legislators those they checked off all get whatever let the defendants bribes, money. support and thus to their defense that paid he had When asked if whom campaign contri- payments cam- were in fact type payments these were bribe or paign replied, butions: contributions COBB “That’s question a hard to answer.” COBB paid Evidence of how often various per-

then asked if checked off were “keep those legislators a few hundred dollars three, two, given or four hun- friendly” sons he had it was no concern them and that specific to for reason other the mo- recipients dred dollars no his how the handled nies, by than to maintain contact with favorable was not furnished attempt COBB. COBB indicated that this so as to allow the defendants case, pay- give impeach the mon- Cobb’s and indicated he would (ex- it. If he made defendants ey legislator and that was ments to these by by him cluding Long) it as were known individual then wanted to .claim a just them to be bribes. campaign report it or contribution pocket, it in his of no con- stick that was at 660. cern to COBB. apparently Long At least defendant —and July similarly Finally, the FBI 302 Derrick, both defendant as well14—received reads: prior 14 and the 22 FBI 302s the June June trial, by was asked the manner in a fact not the district court COBB about noted pay legislators Appellees at opinion. which he would several in its See Br. of (acknowledging Long dollars. stated that had access to the hundred COBB 302s). cash, Apparently, accomplished and June FBI was sometimes June check, only one of the that these two either from FBI 302s and sometimes July personal did not receive was that of account. COBB ad- defendants business Thus, of the defendants now before the were vised sometimes made (Derrick, Blanding), ap- Long at official and sometimes a fundraisers pears Blanding failed defendant setting appreciation social token of all three of FBI 302s. receive support something. stated that COBB legislator drop a hint sometimes will three It is doubtful whether these FBI tight money is and that could use Of- Department 302s—which Justice’s if it some cash. COBB added that Responsibility of Professional fice concluded friendly in- who was toward his someone prose- intentionally withheld them with terests he would take care of produced but rather cution emphasized few hundred COBB dollars. Attorney’s FBI to the United States Office— he did not and did not care how know “material,” or, so, “exculpatory,” even if money. they reported handled or producible require- pursuant and thus gain to COBB’s sole interest was friends Brady v. Maryland, ments of 373 U.S. 83 (1963). supporters and of his interests. 10 L.Ed.2d 215 The S.Ct. premise suggestion of the that these docu- language The district court noted that exculpatory appears ments were to be that three included in from these FBI 302s was cannot, campaign a contributions as matter prosecution FBI Columbia Office’s law, subject prose- be the a Hobbs Act proposal, confirmed to authorization which Therefore, goes, if argument cution. totally court that the “was pay- by analogy to the defendants 302s,” could— familiar with the existence of these legislators— ments made Cobb to other government] turn “yet [these did not [the payments that Cobb’s to them were show for at trial.” over to the defendants use 302s] contributions, campaign their Hobbs Act con- F.Supp. at 634. The district court prosecutions could not stand. these could have been cluded that FBI 302s However, held, impeach Supreme to Cobb’s as the Court has used defendants subject may campaign his to them contributions be the payments Reply "a to Br. United at 20 n. 14. The in its files letter States 14. has and, transmitting granted counsel 22, this document Derrick's court has now that motion trial,” June before his [the FBI-302] accordingly, grant we motion of the the consent to have and it moved district court this joint appendix. supplement United States this letter included the record before court. First, violation, provided each of the defendants was than other a Hobbs Act no less jury testimony, in copy grand a of Cobb’s payments, that, years, which he both over the he stated an if are made return payments for. routinely payments made to a $200-$300 undertaking by explicit or the offi- promise legislators, and number of declined charac- perform or an official perform cial to not to payments campaign as either con- terize asserts act. In such situations official or bribes. Cobb testified before tributions official conduct will controlled jury July example, grand or promise undertak- terms payments legisla- that he had often made money by an ing. receipt is the This tors: right under of official elected official color years, very customary its been [O]ver meaning Hobbs Act. within the give guy all a and not a unusual 1807; McCormick, 273, 111 500 U.S. at S.Ct. bucks, along, couple of hundred bucks $300 Evans, 112 S.Ct. see also U.S. you. helped he And because has some (“We today hold Government man, say, I’m times he’ll and look come has public that a official need show you do going out. I this. Can want payment not obtained a to which help me a little bit. So that’s not out entitled, knowing payment was unusual at all. acts.”); made return for official grand during the same And Montoya, n. 2 v. 945 F.2d States response question a jury appearance, in Cir.1991) (9th (noting prosecution for re- grand juror, a he likewise declined to honoraria, campaign illegal con- ceipt payments either cam- characterize these tributions, question is critical “[t]he paign contributions or bribes: payments were induced whether Q: you you that when Is this —do consider exists, quid pro not how quo whether a you do give legislators], [the cash] [the payments in his defense to official labels the or political a contribution a consider that extorted”). charge payments were give it to In other you when them? bribe pay- Because the mere characterization of words, your case or what- you when state campaign does ment contribution you money, say, do them ever hand prose- payment from Hobbs Act insulate that political or a cam- is a contribution cution, even how it is difficult to discern something or is this paign contribution 302s, reciting frequency which FBI you? legislators and payments Cobb made that, like it’s kind of In a situation A: to characterize Cobb’s refusal my pocket pull cash understood if I out legislators as either cam- he made to other you to, Legislator, put give it Mr. bribes, could be con- paign contributions nothing you pocket, then don’t know it in exculpatory. less clear still how sidered It is nothing. you know don’t “mate- documents could be considered Id. at rial,” given that related individuals receiving grand jury In addition to Cobb’s defendants, payments the the other than testimony, also received the defendants quid quo pro as by the defendants received 1989, 1, FBI which May 302 copy of were record- in return for their official votes he to have said that reported Cobb audiotape. videotape and ed on both in the many $300 made contributions “ha[d] event, testi- the substance Cobb’s range over the to elected officials to $500 mony well known defendants. years,” “most of these contributions and that word, Thus, question were free legal the defendants strict be in the sense would legislators he was for making which individual them Cobb as to his reason for lobbying ef- under payments and the circumstances favorable consideration made Thus, plain that 2177.15 it is forts.” payments were made. which the 28, listing 1991, the 302 names February manual an FBI Additionally, evi- lative at the 15. hearing legislators to Cobb re- dentiary motions to dismiss the whom the of all of during years. held the making payments indictments —which Blanding/Gordon over membered Agent Special Clemens Blanding Gordon were at 835-36. trial.— legis- prepared had from the testified that he payments as to characterize the either fully very aware of the fused the defendants bribes, within the FBI it campaign information included contributions or is diffi- same sources. In- a number of other 302s from matter even to discern the cult as a threshold pay- deed, frequently made McBride, Faber, and Fant relevancy of the appears legislators past to other ments prosecutions. Hobbs Act 302s to defendants’ all fact known to have been a well regarded legislators these That three prosecution. inception of the they campaign contri- payments received bribes, butions, appear would Supreme “[t]he Court has said rather than possibility an item undisclosed exculpatory mere nor material for the be neither defense, might helped information FBI reasons that 302s would same Cobb’s the outcome might have affected exculpatory been or material. The not have trial, ‘materiality’ in not establish does character of exculpatory and material these sense.” States v. constitutional United further, even if not FBI 302s is diminished 97, 109-10, Agurs, 427 96 S.Ct. U.S. altogether, by fact that each eliminated (1976); rather, evidence “[t]he is L.Ed.2d legislators three were either unindict- proba only if material there is a reasonable actually targets or had been indicted and ed that, disclosed bility had the evidence been pled guilty at the times of the defendants’ defense, proceeding the result of the trials; thus, they their re- have been different.” States v. received, payments they garded the not as Bagley, 473 U.S. 105 S.Ct. contributions, bribes, campaign but as could (1985). foregoing, From the L.Ed.2d exculpatory. hardly considered More- be that, all, apparent no sense at can over, recognized, district court proceeding below would have said legislators these FBI statements pro been had the defendants been different likely would have been 302s not even admis- FBI the three 302s discussed. vided hearsay. they trial sible at because Brady Accordingly, did not re- because 302s, production of three FBI quire prosecution’s produce failure the docu- additionally The district court admon to defendants was not error —much ments producing for not ished less intentional misconduct. certain video and audio recorded

the defense January 1990, and conversations dated 5, 1990, April legis between Cobb and state egregious example another As Kohn, paid lator Robert whom Cobb to. re misconduct, prosecutorial district parimu legislators support the cruit other government’s produce cited to the failure legislation. July betting During January FBI of defendant- 302s tuel Faber, conversation, Frank Earl legislators following exchange James took Fant, McBride, in which and Ennis Maurice place between Kohn and Cobb: legislator “campaign each characterized as And if make a showin’ COBB: we contributions” received do, mean, you’re gonna what see parimutuel from Cobb connection with the do, they’ll they, they’re willin’ to do betting legislation. F.Supp. at 634. In I ask whatever ‘em to do. sentence, stated, single See, I, they, got I think that we KOHN: explanation, that “[e]ven without substantive thing out of committee with no one had the defendants not been able to utilize doing anything. at trial as of unavail these 302s statements Yeah, yeah. COBB: ... it opinion able witnesses is the the pro court that these 302s should have been know, money, you just, No KOHN: discovery relevant material.” vided as Id. Baptist the just doin’ for the issue. Now week, out last I Courier sent their note Cobb, the FBI As with 302s of which be, mean, they’re, gonna they’re and its making payments many Cobb admitted legislators gonna people re- follow it. that are under different South Carolina So clearly prior their trial. therefore aware of that to the conclusion of information

819 gued, January tape that gonna the 16 established Baptist control of Courier quid he received run. parimutuel pro quo support for his you many people How do think COBB: can, get betting legislation can the one-on- this bill had been we that we because that give them prior and where we one situation with of his committees even voted out motivation, gotta, I right say, like we sting operation. See id. institution know, good gotta do a showin’. you we underlay It cannot be determined what 635. can, no, we, no I I’m we April KOHN: that conclusion sure the district court’s can on that. think we do well telephone conversation between tape of the produced, have been

Kohn and Cobb should start, thing Taylor’s appeared in the except I’ll that name Let me start first KOHN: the, hell, tonight. might transcript I even reproduced well start FBI 302 im- telephone conversation and “[was] Right. COBB: possible for the to ascertain whether (Unintelligible) KOHN: present [quoted] time [Taylor] was at the to, you You know how I mean COBB: to Kohn.” Id. at 635. statement made mean, us, and cover I know how work it appear in the Taylor’s “[did] name Because there and [sic] don’t want come over we FD-302, yet this he was furnished well, here, gonna buy cover say they’re the damn prior thing. tape transcription or the FD-302 trial,” the district court reasoned to his INo understand. KOHN: tape wrongfully withheld.16 during April 5 And at 2337-2340. J.A. conversation, Cobb: Kohn tells January respect tape, it With back, I I mean trying simply I’m not to hold court was appears district trying play I ain’t (unintelligible) realize produced by that it not been incorrect (cid:127) game. (Unintelligible) I’ve been fact, Taylor’s as counsel government. If it look like gold for coins. doesn’t asked acknowledged open candidly Joel Collins brought up, I do it money don’t should be court, tape pro- had been just it’s money, I don’t think to hold back inspection pursuant the district duced for bring up (unintelligible). I use good to order, simply had but he not had court’s just casual (unintelligible) some of them it. opportunity view their a contribution to comment about from the fact that defense Apart if campaign you see have to do ‘cause January provided access to the tell I think write a check and them counsel I can (unintelli- good spirited imagine, tape, citizen it is hard to as [sic] their gible). co-con of Cobb and of three FBI 302s tape exculpa legislators, spirator how Again any ex- F.Supp. at without 635. assuming tory material. Even single conclusory sen- and in a planation, betting parimutuel legislation that, supported the tence, merely court recited spring, previous see J.A. in committee tapes, as the numerous as well [t]hese (statement “nobody’s real of Kohn that tapes audio video furnished other committee last anything ly done since on November the defendants possi it was thing”), on still spring voted certainly exculpatory as be viewed must byAct receiv the Hobbs could have been used ble that violated evidence which sup de- put money forth his continued ing further the defense return for monies legislation considered the the floor of port fendants campaign to be they received from Cobb receipt money, even Statehouse. contributions. taken that would been official action Act, we held Hobbs anyway, violates the Presumably the Id. at (4th v.Paschall, 772 F.2d that, States Taylor had ar- legislator concluded [Derrick] evidence was available explained was rea held that it The district court Long soning primarily the submissions made Gordon, their trials.” defendant "some, omitted). Taylor, Blanding, (footnote and that 636 all, previously although by with no of means denied, 1119, Cir.1985), definitely by to be known them bribes.” 956 cert. U.S. omitted). (1986). (citation 1635, L.Ed.2d 181 at 634 S.Ct. analy- Again, court offered no the district April whether It is unclear its reasoning support in conclusion sis tape, particular, produced in was to the de pro- that these documents should been but, event, fense, in it was neither dis repeated simply duced. The court produced by nor ordered the dis coverable copies argued of these defendants only is trict court. Not the conversation them in checks have aided them de- (at tape this not not evi recorded on least fense. exculpatory, describing only dently) the care Kohn decided whether or not to which We are to divine how these checks unable question money legislators the raise with by other legislators written than the Cobb votes, in for their the record return exculpatory or material. defendants would be that, 11, clearly at the establishes October fact that “Corroboration” of the Cobb 1990, hearing evidentiary by the conducted years many payments made over the to other court, provide offered to unnecessary, legislators there tapes and all other court for its review ample fact evidence of this fact was exculpatory and determination whether disputed; apparent nor is it how these included, an information was offer which any sug- cheeks to refute would have served Taylor’s rejected. counsel See J.A. 353 gestion by payments Cobb that his (statement Mr. “I am DuTremble that bribes. Even defendants were willing provide tapes. the court with all initially production court did not order government’s position let And the 1995, when, they, these checks in other determination, independent make an court materials, provided to the court for in is, exculpatory”); or is not as to what is When, inspection. upon subsequent camera (statement by id. Joel that “I at 343 Collins motion, the court concluded these docu- record to show would like the that we would properly ments identified “were not like our consent to the in camera to withdraw review,” original court in camera its evidence.”). potentially exculpatory review of (district 1112, n. 1 court order Furthermore, the order entered the dis 7,1995), Sept. produced, and should be id. at at the conclusion of full eviden- trict court its 1444, 1455, only court stated 11, 1990, tiary hearing during on October point, simply “[a]t this ... the court states tapes

which this and the other were dis opinion is of the that these documents cussed, required should now be turned over to defen- produce inspection “videotapes” for defense dants.” Id. at 1444. possession, government’s and thus did tape, April which was an cover (district audiotape. J.A. at 395-97 See district court rested dismiss order). upon

al of also defendants’ indictments government’s produce failure to all of its files bearing 1988, drug use from Cobb’s for part court also The district relied ward: for indict its dismissal defendants’ drug scope usage The full of Cobb’s nonproduction copies of nine ments on the sought by often the defendants in their checks written various South quest discovery might materials which legislators ranging amounts Carolina impeach testimony at Cobb’s defendants’ The district noted that $100-$650. trials. On November the defen- argued copies defendants of these dants a minimum of six FBI docu- received checks would have the infor “eorroborate[d] 14, ments which revealed that Cobb had been ... from the mation FD-302s of June 1989, investigation by drug under the FBI July 26, June early and that violations since he had that this information would have served to previ- used two at the trials that the cocaine on at least other refute Cobb’s ously May he made to these unknown occasions defendants 1989, 13, 18, 18 and November was the FBI. Sever- October went to work for after he trials,” documents indicate that Cobb [defendants’] al these at the Cobb’s disclosed “trafficker” reputed to a cocaine possession of on “indictment for cocaine Feb- others, implicated and such as Greer and 1991, 11, ruary 2, January and Kohn. days prior a few to the Bland- returned gov- by the representations In contrast to trial,” guilty ing/Gordon “pled and Cobb open in on the record court that ernment prior Derrick and incidents they each given had the defendants and Long F.Supp. at More- trials.” 956 649-50. had, audiotapes every tape some 50 over, Department explains, Justice FD-302s, and which contain evidence apprised also of Cobb’s each defendant was usage traffick- bearing drug on and Cobb’s 1989, including “drug-related in arrest in Febru- ing, defendants were received attempt- fact that it occurred while Cobb was ary of 1995. kilogram of Br. ing purchase cocaine.” (district op.; F.Supp. at 650 court cita- Additionally, at 65. United States omitted). consequence of tions As during Blanding and Gor- Cobb testified documents, the of these dis- nondisclosure provided or co- don trial that had used concluded, trict court legislators 50-60 caine to Carolina South ... unable to [a]ll of the defendants times. confront impeach Cobb’s Against backdrop of the considerable he had involved him the fact that been with provided to occasions and over a amount of evidence known or drugs in on more disclosed, longer period personal than' time cocaine the defendants about Cobb’s drugs deep so in that his involvement years, including use and distribution over reputation that he had earned employment with the use 1989 after his “trafficker.” impossible began, to con- it gen- investigatory Id. clude documents 1988, prior even to the initiation of erated in were, as the district These documents investigation, Trust and the docu- noted, the Lost produced not to the defendants court appears revealing previously Additionally, ments a handful of prior their trials. receive, prior May did 1989 and in personal that the defense also uses unknown trial, relating drug to Cobb’s the information anything cumulative However, May each of the use of 1989. and immaterial. copies did of Cobb’s defendants receive jury testimony in which he detailed his grand Carolina drug purchases from and South of cocaine concluded

legislators personal and his use The district also 1987-88, personal use during including failed to wrongfully had legislators. See the individual cocaine a December produce to defendant testimony). (grand jury Be- at 2402-16 selling videotape legislator Kohn jury, testified essential- grand Cobb fore the using co worth of cocaine Cobb $500 gotten together group with a ly that he had had The district court said caine. during every or so 1987- week of individuals cumulative this issue “to referenced show 2414; See, drugs. e.g., J.A. at see to do impeacha potentially effect the defense of on (statement by “you id. Cobb also fully timely being dis ble material people together with get a little would have F.Supp. at 651. closed.” 956 certainly I would use use cocaine. And who too.”). Again, loss to understand the it, we are at a it, also testified and I did actually of this grand jury that he had district court’s inclusion reason for the before the latter prose- and as late as “egregious used cocaine example incident as 2414-16. part of 1989. J.A. at misconduct,” because cutorial recognized itself, opinion, own noted, in addition to district court As the Taylor’s apprised prosecution jury testimony grand con- Cobb’s substantial trial and tape by letter before use, counsel of the cerning purchases his cocaine that, tapes, video see dis- the other usage as with drug the dates of October “Cobb’s pay- testimony about the counsel, expected swpra, Taylor’s simply had Cobb’s cussion Lindsay, tape: day so that Cobb’s to view the ment the next not had time friend, would not first learn close a letter Taylor concedes that he received at 823- testimony through media. J.A. shortly government very before from the be- testified that when telling him had 25. Clemens trial Cobb carry telephone giving cocaine to Cobb. on the evidence of Kohn too emotional came (Clemens) argues deeply Lindsay, that he was involved in- He he call with Senator trial; preparing and that since this is impending testi- Lindsay of Cobb’s formed told, he did not take the all that he was Lindsay payment. mony pursue it. time to 839-40. even F.Supp. at 651. The district court purpose of likewise testified Cobb “[although government’s it is the noted that he could tell telephone call was so the de- responsibility to disclose evidence to testify going about Lindsay that he was manner, timely it is fendants in a and honest Lindsay learned of the payment before responsibility of the defense to re- also the testimony the media. J.A. at 812-14 from Id. view that evidence when is disclosed.” Cobb). (testimony denied that the of Cobb event, tape any In it is doubtful whether to deter- telephone call was purpose of trial, given have been admissible at mine, Lindsay, how to characterize trial extensive that Kohn testified at to his $10,000 (testimony payment. at 814-15 J.A. (district Id drug and alcohol use. Cobb). noting that “Kohn’s involvement the exten- testimony Following by both Clemens this use of cocaine and alcohol was admitted sive February the district and Cobb trials”). during him motion Blanding’s and Gordon’s court denied B. ground their indictments on the to dismiss perjured them- that Clemens and Cobb only, Through innuendo and without telephone purpose and that the selves any explanation as to conclusions it testimony. call to coordinate witness drew, suggested court also Special Agent FBI order that Clemens Blanding April after concerning perjured themselves Ron Cobb trial, Taylor seeking bail Gordon when early-morning visit an October appeal, testified to the pending Smith also H. and Cobb to the home Steven Clemens under- 18 events. He detailed his October Smith, Lindsay, and a close friend of Senator standing that wanted to characterize Cobb Lindsay by telephone morning to call that fee, $10,000 payment legal as a but that Cobb, during which the issue of Clemens and that he not do Agent Clemens insisted could $10,000 Mag payment of to Senator Cobb’s legal payment was not for so because Lindsay in num and connection with Senator 911-12, (testimony services. J.A. (All Bill was discussed. Oil Jobber’s Smith). call knew of this visit and the defendants until four was the state of the record This trials; accordingly, the issue is before their later, years half in October of and a disclosure, but, rather, possible wrongdo again. At testified to the events when Smith agent FBI ing by prosecution and the hearing, explaining without its omission involved.) The district court intimated earlier, years Smith testi- pur he testified that the Clemens lied when repeatedly been autho- fied that Cobb had telephone call was to inform pose of the Attorney char- going testify as to Lindsay that rized the United States Cobb $10,000 following day $10,000 attorney’s at the payment payment as an acterize the trial, similarly (testimo- 1563-64, 1569, and that Cobb Luther 1582-83 fee. J.A. (at initially) pur least that this was the Smith). lied repeatedly ny of He also testified telephone pose of the call. refusing to characterize the that Cobb was truthfully permission to do payment absent at the district court’s testified Clemens 1565-66,1569,1583 Lindsay. so from 28, 1991, evidentiary hearing that February Smith). Cobb, too, (testimony in his testi- telephone the visit and the purpose mony during hearing, suggested Lindsay of the same enable to tell call was to Cobb argu- had been Attorney’s fied that Clemens and Cobb in the United States that someone him characterize ing Office had told could over whether would tell the truth— 1617-19, legal payment as a fee. J.A. characterize as Clemens insisted —or Clemens, 1637-41. fee, legal and that payment as evening, throughout had insisted that Smith, upon testimony of Based the latter 912, 1583, full at tell the truth. J.A. Cobb the court viewed as consistent which district following the 1588. Smith even said of Cle- testimony, February 1991 with Smith’s Cobb, that Smith’s mens: the court stated testimony: any way in Q: you Did see Mike Clemens Clemens, not that SA himself was night inappropriate

indicates all act in an that testimony entirely in his at the truthful way? hearing February he on when. trying A: I Mr. No. saw Clemens to. purpose [of of the visit Octo- described the way. perform appropriate in the most only give to as one to information 18] ber Q: your opinion Mike And I believe that Further, Lindsay. that indicates Cobb night all Clemens’ actions on that testimony at truthful in also was not everything doing was was above— hearing. February 1991 aboveboard? 648. The court characterized My night opinion A: of Mike Clemens that “shocking” both the involvement Cle- every him and on occasion have ever met early morning mens in the visit and high. trying was very He was —he testimony October 1995 Cobb trying trying make to set —and he was to him Attorney had authorized United States things day’s in right the truth and $10,000 “attorney’s payment to the' an call testimony. following fee.” Id. J.A. testimony about the to Cobb’s 1995 As say court did even what The district not characterization, payment the district court Lindsay telephone call to purpose Cobb’s finding a expressly specific to “make declined than one served other identified truthfulness,” and therefore to Cobb’s clearly And is insufficient and Clemens. there Attorney finding as to whether United States purpose which to infer a evidence from payment term the Daniel authorized Cobb to Lindsay to other than telephone call Cobb’s fact, “attorney’s an fee.” initially Cobb and Clemens which give was court said that it “loath credence testified Both Cobb Clemens testified. testimony over statements Cobb’s permis- not purpose was to obtain And, prosecutors.” Id. at 649. pay- Lindsay to characterize the course, sion repeatedly testify only not did Smith course, and, way, particular in ment that Cobb tell the

that Clemens insisted call, telephone party payment, about but Cobb never was not truth Smith payment call any proceeding only in the room when the present testified in Therefore, (Smith “attorney’s See, there e.g., was an fee.” not- J.A. at 1569 occurred. concluding that no basis for United telephone ing that Cobb was on when wrongdoing Attorney engaged States talking Agent “I then Lindsay with with Cobb’s characterization connection side, it was on the other so over Clemens $10,000 Lindsay. payment to Senator other----”). one ear and the kind out no for conclud- obviously there is basis And participation As to Clemens’ necessarily testimony ing that Clemens’ house and the early morning visit to Smith’s testimony as upon false based Smith’s Lindsay, gov to Senator telephone call call, telephone purpose because to the “unorthodox ernment admits such was (if upon testimony based and, Br. of retrospect, ill-advised.” contempora- he heard partial conversations nothing suggest at 96. But there is States Smith, neously) upon statements Cobb’s engaged wrongdoing. In that Clemens call itself. As not on the Smith, deed, upon contrary, whose notes, testimony on his “if was based Smith’s for the testimony district court relied Cobb, show does wrongdoing, repeatedly testi- conversation suggestion of (5/1/89 recording Cobb’s statement falsely FBI 302 when he stated his Clemens testified understanding regarding ‘purpose’ Rogers Jack regarding “payoff’ own Senator Br. of Kinard), of the call.” United States through lobbyist Ken J.A. at 2198 (9/25/89 stating FBI that “Cobb advised possible for conclud- other basis pay off JACK LINDSAY that he had to both telephone call ing that there was more to the on side and JACK ROGERS Senate testified is the dis- than Clemens and Cobb (9/11/90 side”), at 2485 FBI “Lindsay was the House trict court’s observation him stranger publicity, lobbyist Randy and a notice to reporting no Lee’s state- might appear in the media as a efforts), that his name “privy” to these ment that he was certainly result of Cobb’s began investigation, head- dying telephone call to a man not warrant a Morehart, by Agent a white collar ed Michael night.” F.Supp. at middle allegations specialist, into the of brib- crime However, only is this rawest gains legisla- ery respect capital to the with speculation, disagree with the district but we Lindsay and and Senators tion.17 Greer purpose for the stated court that a call subjects investiga- Rogers of the were the would be out of the ordi- Clemens and Cobb subsequently cooperated with tion. Greer friendship nary, given the close between testifying, eventually the government, Lindsay, the imminence of the Cobb and 23, 1991, grand jury May before a federal public testimony, and the conceded condition capital gains matter. investigating the Lindsay time. of Senator at the The district court volunteered the follow- government’s investiga- ing

C. as to the federal capital with the tion of Greer connection inexplicably The district court devot gains matter: portion of its order dis ed a considerable missing perception government’s to its The actions as outlined the indictments inadequately investigat had suggest a total avoidance of this order bribery respect to the allegations of with ed pursuing might have information Greer____ legislation had sub capital gains State’s proved govern- adverse Greer, jury perjury by grand Richard orned fully investigate ment’s failure to Greer of the the former Chairman South Carolina falling might be excused as within the Board, capital gains Development about the government’s prosecutorial province of the by the district matter. These comments alleged if his involvement was discretion investigation capital gains court about the in an isolated. The fact that surfaced entirely gratuitous, because that inves investigation resulting in the convictions of wholly tigation was unrelated to the Lost may an these defendants and have had prosecu investigation that led to the Trust puts their impact on the fairness of trials in this case. More tion of the defendants government’s handling of in- Greer’s over, to both the the court’s conclusions as entirely light. different volvement an investi adequacy of the Executive Branch’s F.Supp. 956 at 660. gains bribery allega gation capital into the alleged perjury wholly and the tions matter, As an initial support without in the record. authority upon to comment court was without government’s capital gains investigation. receipt concerning Upon of information legend Supreme from the The caselaw is surrounding capital corruption the State’s rollback, appeals see J.A. gains at 2183 Court and the courts deduction Development attempt- South Carolina Board. As dis- 17. At the same time that the State was below, deprive ing allegations capital the deduction so as not to to rollback cussed taxpayers capital gains of a deduction for real- gains corruption were in connection ized in the first half of the State was also legislation "rollback” with the retroactive —not considering whether to lower South Carolina’s legislation prospective there is no record —and tax, highest capital gains which was one of the sugges- support evidence to the district court's legis- country. In contrast to "rollback” Campbell that either Greer or Governor tion above, prospective reduction lation discussed corruption or that the matter involved in that and, priority Campbell was a of then-Governor investigated. inadequately Greer, consequence, chairman of the as a it, unsupported suggestion and its function rests before investigatory prosecutorial See, e.g., government’s adequately failure to exclusively Executive. with the States, 598, 607, “may investigate capital gains matter Wayte v. U.S. (1985)(“Such 1524, 84 L.Ed.2d 547 impact [defen- 105 S.Ct. on the fairness had ease, prose- strength trials,” factors was with- dants’] value, general deterrence Gov- cution’s out basis. and the priorities, ernment’s enforcement so, clearly in Even court was over- relationship to Government’s case’s investigated. been error that Greer plan readily suscepti- all are not enforcement Although none of the the district court noted analysis kind the courts are ble authority from the following, sought undertake.”); v. competent to Heckler Cha- government’s investiga- outset federal ney, U.S. S.Ct. surrepti- capital gains matter to tion into (1985) prosecu- (noting that a L.Ed.2d 714 tiously conversations with co- record Greer’s long tor’s not to indict “has been decision Agent at 2505. operating witnesses. province special exec- regarded as individuals, Morehart interviewed numerous Branch, it is the Executive inasmuch as utive Turner, Gary Director including Executive to ‘take charged the Constitution who Commission,-J.A. Carolina Tax South faithfully the Laws be execut- Care that Kinard, 1691-92; Rogers’ Senator Gail Giannattasio, ed.’”); v. United States 1692; Senator Passai- secretary, (“[a] (7th Cir.1992) judge in our F.2d Howard, 1693; laigue, at Hunter Chair- J.A. authority to tell system not have the does Commission, Tax man of the South Carolina prosecute prosecutors which crimes Mathews; 1695; at Sena- J.A. Senator John them”). As the Ninth prosecute when Waddell, Roe; Jr.; Thomas Wal- tor James said, Circuit has Brashier; Rawl, Director ter and Otis separation pow- would raise serious [i]t Tax for the South Carolina Tax Research virtually a questions well as host of ers —as Commission, infor- received and Morehart practical problems insurmountable —for persons still. Morehart mation from more super- court to into and inquire and analyzed of Cobb traced bank records workings of the United inner vise the paid & money was to Ken Kinard that Attorney’s Office. States at A number Associates. J.A. 1701-02.18 Redondo-Lemos, v. 955 F.2d States grand appeared the'federal persons before (9th Cir.1992). in in- But 2525-2641, including More- jury, see J.A. at stance, judicial investigato- into the intrusion course, 2632-41, and, hart, ry Executive was even less function of the several times himself interviewed Greer was capital gains matter because the defensible jury, grand appeared J.A. before nothing do absolutely whatsoever to with had investigation, At the end of his 2583-2604. investigations Trust and trials the Lost court, by the unmentioned And pending before district court. testified as follows: Morehart nothing certainly had to do Richard Greer Q: with the you want to do more Did investigation or trials. the Lost Trust with investigation? separate matter a in- capital gains was compre- No, pretty a A: sir. I think I did years occurred two vestigation of events that investigation. hensive earlier, supervised by different which was any that there were Q: you remember Do assigned to the Lost personnel than those you .pursue you leads wanted investigation. The district court’s Trust thus, couldn’t? comments, gratuitous to the eases out, suggested profited that Greer one ever that Greer "no of witnesses testified

18. A number capital gains personally [and matter ... money capital from the in connection with never took is unclear what basis legislation, thus] gains the district court noted a review.” to undertake such strenuously would have had asserted much. n.53; at 105 see also Br. of United States F.Supp. nonethe- at 644. The district court (statement Col- "[tjhere nothing witness Rhonda of defense in the record less stated that, knowledge, Greer did not receive her pursuit' of lins government’s 'active to show capital gains money any with the connection financial rec- review of Greer's Greer included matter). However, points as the United States ords.” Id. else, Kinard, No, sir, in- one other than Ken A: none. Lee). (testimony volved. J.A. at 1878-79 Q: any you there resources wanted Were you get? couldn’t Moreover, testimony by this later Lee also adequately supplied. A: I was makes clear that the district court’s concomi- Q: anyone you keep ever ask Did Campbell tant intimation that Governor away capital gains investigation from the wrongdoing involved in connection with knowledge people? of other capital gains legislation, see 956 No, lacking in record is likewise A: sir. Greer, support. case with Lee As was the And, J.A. at 1778. result of the investi- only person testimony might whose gation, Rogers pled guilty, Senator and the arguably implicating even be read as Gover- death, government planned, pros- until his Campbell alleged capital gains nor in the See, Lindsay. e.g., Reply Br. ecute Senator bribery. only allegations capital And the (noting of Prosecutors Amici at 12 gains corruption of was aware which Lee “Lindsay’s attorney plea agreement allegations payments were Cobb’s to Lind- death.”). Lindsay’s hand at the time of say Rogers in connection with the retro- Clearly, overstepped the district court See, legislation. e.g., active J.A. at 2183 bounds, erred, doing and in so when it stated (Cobb’s description of his to Lind- conclusorily that Greer had not been ade- say Rogers “capi- connection with the quately investigated by government. credit,” i.e., gains tal tax the retroactive Equally support without record is the dis- bill). suggested any never “rollback” assertion, trict court’s related without wrongdoing by Campbell. Governor And whatsoever, citation that “the record is re- explained subsequent Lee in his plete implications was heavi- Greer mistakenly implicated Campbell that he had ly payoffs capital involved related to the because, capital gains wrongdoing bill,” gains F.Supp. tax at 660. In mak- originally spoken the time when he had with ing unsupported allegation, this FBI, he had not been aware that there appears simply accepted to have legislature in two different bills allegations by Randy true the initial made concerning capital gains pro- matter —the prompted investigation Lee that into spective legislation, priority which was a Greer, despite investigation the fact that the administration, Campbell and the retro- nothing suggest that followed disclosed to legislation, active which was not. was, fact, any that Greer in in involved al- Lee).19 (testimony 1878-81 Indeed, leged payoffs. Lee—whose initial allegations against only sug- Greer are the D. gestion in might the record that Greer have engaged wrongdoing in in supportable connection with No more were the district capital gains subsequently suggestions per- testi- court’s that Richard Greer matter — post-trial jured fied under oath grand jury that he was un- himself before the and any wrongdoing by prosecutors aware of regarding perjury. Greer In- suborned deed, capital gains legislation. simple jury reading grand As Lee himself explained, testimony Lee knew what Cobb had told itself reveals that it is not even him, (Cobb) arguable paid intentionally which was that he had that Greer was mis- money Rogers Lindsay leading grand jurors. and and that no unsupported by F.Supp. implicated Campbell 19. Likewise the record is the Governor suggestion district court’s that Senator William wrongdoing. Greer Senator Lee testified 3, 1990, statement, Richard Lee's December post-trial under oath that he did not know of or through, present meeting that he was at a any any illegality by h&ve information as to Gov- spring Camp- or summer of 1988 with Governor Campbell respect capital gains ernor with to the bell and his staff where he was told that fact, legislation. J.A. at 1666. Senator Lee capital gains legislation important was "the most any testified that he never "had information as to legislation governor’s legisla- office for this any illegal by anybody regarding conduct year[and][i]f anybody question tive raises a about capital gains bill.” J.A. at 1666. it, you sweep rug,” under Greer, noted, against and there- charge perjury district court As the 643^14, grand jury charge testified before in its related of subornation Greer fore also testimony During May by prosecutors and Barton. perjury Daniel exchange following occurred between Assis- you “Are not asked Barton Greer was Attorney Barton tant United States any paid any legislators monies aware Greer: (sic) influence their vote con- in effort any paid to you monies Q: Were aware capital gains bill?” rollback nection with (sic) influence any legislators in effort Rather, you asked aware of he was “Were ” capital with the vote connection their paid any legislators.... any monies gains bill? rollback terms, context, if question, in not also A: No. response from to whether Greer as elicited Q: How in connection with Gov- about any at or about payments he such knew priori- change, bill that was his ernor’s not they were made wheth- the time ty? er, testimony in time of his as of the Absolutely A: not. “play This not payments. is knew such semantics,” seemed as the district court charac- The district court J.A. at 2596-97. testimony perjurious 643-M4; it, that this id. at these are different believe terized because, self-evidently questions so. —and government’s argu- is obvious from the [i]t jury testimony, By grand time of his Greer departure for ment for a downward obviously payoffs Rog- knew of the Greer early as De- knowledge had that Greer way Lindsay ers and payoffs been cember of 1990 jury grand as to attempting to deceive the Lindsay Rogers. by Cobb to made knowledge. This clear from his testi- Daniel, present at who was USA response to a mony only moments later in was, or meeting, and who Christmas grand juror testimony question from a — been, privy giv- information should district court —in which mentioned Greer, debriefings of was also at other en explicitly distinguishes between Greer questioned present Barton when AUSA at the time of the knowledge Jury. did Grand Daniel before the Greer understanding: his later nothing to correct Greer’s you surprised GRAND JUROR: Would any illegal payoffs to he was not aware legislators you that several if were told legislators. money out of the large sums of paid 643; F.Supp. at see also id. Mr. from Mr. Roe and received monies (“[Greer’s] Jury testimony before Grand Brashier? arguments perjured if the have to be Well, have I think it —I would GREER: government Greer’s sen- advanced Certainly in surprised at the time. been (“The true.”); further tencing id. court foolish not be kind of retrospect would did, fact, government allow that the finds surprised. it knew be testimony ... Greer uneorrected.”). subsequently untrue stand ex- As Greer at 2603. J.A when of 1995 plained under oath October remarks district court’s Again, as with the grand jury testi- about his specifically asked government’s investigation of concerning the Lofton, in re- mony matter, by defense counsel capital gains are at we unrelated why questioning in the same sponse further even to understand a loss question put him addressing hearing, itself to Greer’s testi- court was he answered whether, jury investigating the grand mony grand jury, before the was which before matter, That gains Lindsay, matter. capital Rogers of the bribes of the time testimony connection with that Greer’s any illegal payments was aware of he matter, to the Lost peculiarly irrelevant capital gains money with the in connection pending was before matter which Trust 1812-14, 1849-50, At 1854-55. bill. court. district time, grand clear to the he made the same that, al- very same jurors in the event, that the any painfully clear In or any bribes at though not aware of clearly, he was in its simply, and erred district occurred, they about given illegal money the time that he subse- bribes or to Senator quently illegal pay- became aware of “No, sir, these Lindsay,” replied, and Cobb ments, everyone as did else in the communi- given Lindsay bribes or Senator conclusion, ty.20 clearly In the district court illegal money.” Id. at did not 640. Cobb “findings” perjury by erred in its Richard deny having Lindsay, payments made misperceived Greer and subornation of that that, view, payments insisted in his perjury by Daniel and Barton. Indeed, illegal giv- bribes. he admitted “$10,000 time,” Lindsay ing all at Br. of one E. (quoting Taylor United States at 72 N.169 at suggesting addition to 58), thought, but denied ever Greer, perjury by had suborned said, money given exchange that the “in suggested also in its order [Lindsay’s] support vote or for a bill for dismissing govern the indictments that the Carolina South Oil Jobbers Association perjury by ment had suborned Cobb and that 1985 or 1986.”J.A. at 439. Special Agent perhaps Clemens —and AUSA perjury Barton —had themselves committed testimony by perjuri This Cobb was before the court. Like the district court’s only if misrepresenting ous he was his sub suggestion himself, perjured that Greer jective purpose legality belief as to the suggestions support are without is, payments Lindsay. he made to It record. course, prove difficult to that someone is The district court relied on the defendants’ lying subjective per about their beliefs and allegation that the allowed Cobb Ellis, ceptions. See United States v. perjury Taylor’s to commit trial when he (4th Cir.1997) (noting F.3d 908 that an alle testified, correction, without that he had nev- gation perjury to a percep “matter of given Lindsay any er Senator “bribes or proof’ tion” fails “absen[t] conclusive illegal money.” at 639^40. An belief, falsely witness testified as to her rath reveals, however, examination of the record merely er than that she was mistaken her that, consistently that Cobb maintained al- facts). subjective assessment of the More though given money Lindsay he had over over, prosecutors in this case suborned years, payments he did not believe those perjury only they if actually knew that Cobb illegal were bribes or were otherwise because testifying falsely subjective about his exchange he did not think were made in beliefs; knowledge, absent such actual Thus, specific votes. while the FBI disa- prosecutors perjury, did not suborn even if greed legal- with Cobb’s conclusion about they suspected suspect or had reason to ity payments Lindsay, repeated- of his lying pay about his view of the much, ly told him and court as it had no Netherland, legality. ments’ Hoke v. 92 F.3d (Cobb’s) question subjective basis to be- (4th Cir.1996). 1350, 1360 concerning payments lief legali- or their ty. consistently represented Because Cobb

During trial, Lindsay that his Cobb was asked were not bribes, prosecutors cross-examination whether he “had ever ques- had no basis for testimony fully 20. Greer’s consistent with that tax bill. He told us this is the time that he first 31, 1991, Special Agent July Davis on at doing knew what Ron Cobb—what he was was sentencing hearing. hearing, illegal. Greer’s At that Davis testified: J.A. at 1074. The fact that the defendants omit Honor, testimony the final italicized sentence from this ap- Your last Christmas FBI they alleged proached when discuss the issue of Dick Greer for the first time Greer’s in con- 70; perjury, Appellees drug investigation compare see Br. nection with our at of Mr. (district F.Supp. prior Rogers’ quoting at 642-43 Greer. This was to the Jack Davis’ time, statement), provided they indictment. At that Mr. Greer all but confirms that even under- concerning capital grand jury testimony, us with information stand that Greer’s Davis' gains investigation. essentially testimony, government’s representations tax Mr. Greer and the lobbyist approached Appellees told us that Ron Cobb had were all consistent. See also Br. of at money (conceding testimony, parsed, him and told him that he needed more that Greer’s if payoff Rogers "plausibly literally to both Jack and Senator Jack can be ... as characteriz[ed] Lindsay capital gains perjurious”). in connection with the true and therefore not characterization of the greed as with Cobb’s tioning veracity belief to of Cobb’s response Lindsay, they legality. payments and that intended Cobb’s to payments’ fully. See, fully Lindsay Taylor’s investigate e.g., was consis- questioning at trial to throughout the Lost position investigation his That was on- tent with 989-90. always investigation trials. Cobb Lindsay Trust going when died. that, years, paid he acknowledged over the government’s disagreement Cobb Lindsay’s Lindsay money in connection with legality payments, about the ultimate of the South Carolina position as a member course, demonstrates neither Cobb (Cobb testifying that J.A. at 792 Senate. See was, fact, lying about his own view of the throughout my Lindsay “helped me en- payments that the be- nor even career, any make time I could some tire lying. Certainly, that he was lieved did”). way, I money put money his some gov- that the disagreement is not evidence However, adamantly and invari- Cobb also testifying ernment knew that Cobb was un- of the inves- ably maintained from outset truthfully subjective to about his belief as money in gave Lindsay tigation that he never explained payments’ legality. As Barton any specific other exchange for a vote the district court in explained: “I act. As Cobb specific official Lindsay prosecute I for that Could Jack in- gave Lindsay money at different Senator Magnum? certainly I payment to Tom tervals, any gave Lindsay I never Senator that I could do could. I’m comfortable he money specific vote. Because for a I That mean that because that. doesn’t doing. I anything was helped me on against am convinced there is a case Jack making money, I I is when would "When was Lindsay any that Ron has under- Cobb pass to him.” J.A. at 802. Because some standing illegality as to the of what did. money did not believe that Cobb 846; F.Supp. also 956 J.A. see specific pro quo, given exchange quid for a Special L. (quoting Agent affidavit of Ronald consistently not maintained that was Cobb Dick, never which states that “Cobb would (“[The See, money e.g., at 804 a bribe. J.A. to state sena- payments [he made] allow the bribe, no Lindsay] and at paid to Lindsay to as tor be characterized vote, Jack buy Lindsay’s I time did ever Senator My position on this matter was simi- bribes. I bribe Senator Lind- no time did ever (“[Y]ou saying if it walks like a until lar to the old quiz can me say.”); at 810 duck, home, duck, going duck, but I’m not like and looks like a the Indians come talks vote, it Lindsay’s listening didn’t say bought be After Senator then it must a duck. happen.”).21 try payments made characterize Cobb bribery, I Lindsay anything other than as consistently implicate thus refused Cobb agent, it As an FBI remain unconvinced. wrongdoing, and he Lindsay made paid to the monies was clear to me that FBI cooperation with the condition Lindsay by violation incriminate not be used to that his Cobb, however, would never Act. Hobbs prosecutors, FBI and in con- Lindsay. The characterized allow transactions trast, dis- Cobb—and made clear to bribes.”).22 recog- as The district disa- trict court —from the outset itself this affidavit perjuring 22. The district court cites being himself in After accused of trial, allegations confirming in the later trials to Cobb took care "the defendants’ totally that he did believe make clear nature of aware of the bribes, government disagreed. but that the Lindsay.” payments to the Cobb See, ("I e.g., J.A. at 881 have been informed on the affidavit reliance 640. The district court's my vantage point that I—I didn't consider prosecutor perju- suggesting suborned bribe, point, vantage prosecutor's it it a from ry 1997 or- merely that the court’s underscores added)); (emphasis J.A. could be labeled bribe." be- critical difference der failed to focus $10,000 (“I payment to [the didn't label at disagreement objective government's tween the Lindsay gave Lindsay] a I Senator bribe.... legality of with Cobb's assessment it that money I am at different times. informed knowledge government's as to payments and the bribe.”) bribe, (empha- me was not a but to it subjective misrepresenting his whether Cobb was added). position wavered from his He never sis payments. those beliefs about payments he did believe that that he made were bribes. hearing everyone nized in a 1991 illegal money” Lindsay. even “bribes or at J.A. if involved in the case other than Cobb believed 606-10. The district court held detailed bribes, payments Lindsay that his were lengthy evidentiary hearing on that mo- that did not indicate that Cobb be- tion, and, following day, the mo- denied himself response lieved as much. In to defense’s rejected tion to dismiss and the defendants’ allegation himself, perjured that Cobb had request precluded testify- that Cobb be from the court stated: ing alleged at their trials because of his Collins, THE Mr. COURT: is what “perjury” Taylor’s F.Supp. trial. 956 at trying you am from tell the outset here 628.24 got might when we in involved this. You abruptly The district court reversed course they illegal money think are bribes and order, February in its 1997 order. In that might they whatever it is and I think the district court concluded that Cobb had illegal money bribes and or whatever it perjured government himself and that story was Mr. but Cobb stuck from perjury suborned because “[t]he outset____ [Wjhat trying I am to tell 1) evidence now shows” that Cobb “discussed you always [is Cobb] has been consis- payoffs in capital gains connection with the tent, gifts. were He never denied Clemens, Greer, tax bill with SA in with give [Lindsay] money____ that he didn’t Lee, presence Randy all of whom J.A. 925. payments Lindsay knew that the Cobb Nevertheless, the district court concluded were, fact, 2) illegal;” in that Cobb “ad- February in its dismissing 1997 order May mitted to SA Richards on perjured indictments that Cobb had himself. $20,000 paid in illegal Lindsay monies to And, while the district 63— Magnum in passing their influence specific court failed to finding make a bill,” jobbers poly- the oil and that Richards’ government thought knew that Cobb graph of Cobb confirmed as much. 956 payments illegal, apparently were conclud- Despite at 640. the district court’s government ed that the had suborned that intimation that the state of the evidence had perjury.23 changed substantially February since its Curiously, arguments relied on issue, hearing on the argu- the basic concluding district couH in that Cobb’stesti- ruling ments on which its 1997 were based was, mony fact, perju- at the trial in rejected by were the district court in 1991 rious, essentially arguments the same properly so. heard, considered, and apparently The district court’s first observation rejected February when the alle- opinion “payoffs” that Cobb discussed gation perjury Cobb’s first surfaced. (and Lindsay Special Agent Clemens (denying at 877 defendants’ motion to dis- miss). government others outside the United States trial, During Blanding their and Gor- Greer) indictment, payments’ such as who knew of don alleg- moved to dismiss their ing, part, illegality perjured govern- that Cobb had demonstrates that the himself Taylor’s trial when paying he denied ment payments knew that Cobb had made prosecu- support The district court concluded identifying alleged that the and without which totally tion "was aware of the nature of the Cobb perjury being fairly referenced—cannot payments Lindsay,” F.Supp.- finding viewed aas that the knew perjured testimony allowed this to stand uncor- misrepresenting subjective that Cobb was be- above, rected. As discussed the fact that the payments Lindsay, lief about the nature of his prosecution surrounding aware facts particularly light of the court’s manifest fail- (cid:127) payments Lindsay Cobb’s and believed that the appreciate ure in its 1997 order to the crucial payments probably illegal, is not a suffi- objective legality difference between the concluding prosecution cient basis for subjective Cobb’s and his view of their perjury. suborned the final section of its legality. opinion, the district court also included a conclu- sory statement that ”[t]he further finds that later, again 24. Two did, fact, months the district court allow Cobb, rejected perjury the defendants’ claims of be- Clemens and Greer that it knew to be story every- "[Cobb] untrue general cause sticks the same to stand uncorrected.” Id. at 660. This goes.” statement-—made without record where he J.A. at 919. significantly, the at 2739.25 Even more government believed J.A. Lindsay and that recognized earlier illegal itself under payments that those agent’s charac- con- crucial distinction between has never Hobbs Act. of said and what Cobb As dis- terization what Cobb of conclusions. tested either rejected argu- actually said and the defense above, by that belief cussed necessarily lying spoken ment that Cobb had neither that Cobb was demonstrates 927; pay- at subjective J.A. see his belief about words recorded 302s. about (district government believed that court at the 1991 nor that the also J.A. at 757 ments evidentiary hearing describing the defense he was. argument resting perjury apparent as on the to have appears court also The district testimony, and what he “conflict [Cobb’s] actually characterized concluded Cobb agents agents, re- told these or what these illegal Lindsay payoffs as payments his to writing (emphasis to in these S02’s” duced Special payments he described when added)). logic same makes clear that This Agent support that conclu- Clemens. Agent “pay- of the term Special Clemens’ use sion, September cites to a the district court September FBI does off’ in his 25, 1989, FBI 302 of an interview Cobb called the Lind- not demonstrate that Cobb Clemens, pay- Agent “in which the Special payoff say payments a or otherwise believed charac- Lindsay by Cobb ... were ments ” illegal.26 However, ‘payoffs.’ as Id. terized that the FBI 302 characterizes the fact The district court also relied an inter- Lindsay “payoffs” does not payments to Cobb, polygraph which was view mean that himself so characterized Cobb Richards, by Special Agent conducted in the FBI payments. The words recorded perju- concluding was that Cobb’s agent’s FBI characterization 302 are the According rious. to Richards’ notes of said, not the words that Cobb what Cobb interview, 1,May Cobb “asked Sena- “routinely spoke. pre- actually FBI 302s are Lindsay obtain what it would take to tor sum- merely agent’s personal “the pared” vote, Magnum’s Representative Senator mary to serve to refresh of the interview $20,000, $10,000 which Lindsay him told report memory preparing in later a written Magnum and Representative would be for investigation,” United v. Peter- of the States (Senator $10,000 Lindsay).” for him J.A. (4th Cir.1975), son, 167, 175 n. 11 524 F.2d & Cobb). Ron (May FBI 302 of recita- and are not intended to verbatim above, how- with the FBI 302s discussed As tions of the interviewee’s statements. ever, Agent Richards’ reflect these notes testimony, rather characterization Cobb’s Nothing indi- in the Clemens 302 Cobb purpose of about the own view attempting to recite than Cobb’s cates Clemens disputes Lindsay. one payment to No spoke. that Cobb himself verbatim the words during inter- told Richards Rather, Agent be- that Cobb Special Clemens —who $10,- paid he polygraph that Lindsay money gave view lieved exchange Representative Magnum regardless Cobb’s 000 to illegal payoff was an Qil Bill, on the Jobbers Magnum’s for vote payments characterization —recorded Lindsay an intermedi- acted as perspective from his own Senator statements Cobb’s that, same at the ary payment, “payoffs” the word and thus used —with $10,000 give Lindsay gave that he illegality char- time connotations of attendant —to $10,000 Lindsay gave Magnum, In- Lindsay. payments Cobb’s acterize However, Agent OPR, Special Rich- keep. when deed, Clemens when interviewed questioned at the Feb- specifically “payoff’ ards explained thought the term that he evidentiary hearing how ruary about my term.” [Clemens’] “more in the Appellees’ Brief See in their brief. Additionally, rough defendants 832 $10,- correctly purpose

Cobb had described the while district court concluded that payment Lindsay, was, testimony 000 to Richards admitted any question, Cobb’s without $10,- although that “farfetched,” that he understood simply there is no evidence payment Lindsay “getting 000 to for was lying that sub- the record he was about his vote,” Representative Magnum’s J.A. at jective legality purpose as to the belief did Cobb not indicate to Richard that that Lindsay. his to The district And, purpose payment, id. was February opinion explain court’s 1997 fails to fact, purpose Richard testified that the date, why, late at that the court concluded payment Lindsay to not was discussed support otherwise —and record does not Indeed, all. Id. at when whether he asked ultimately by the conclusion reached making believed that il- Cobb knew he was court.27 legal payoffs replied Lindsay, Richard that, explained while he had the Hobbs Act F. beginning to Cobb at the interview “talking he pay- and Cobb were about allegations In addition to the that in the generally, offs” interview J.A. at perjury had suborned “obviously say he ... what in a is c[ould]n’t Lindsay’s Cobb about involvement mind,” guy’s id. matter, capital gains the district court also Clemens, Special suggested Agent that testimony February In his at the 1991 Attorney perhaps Assistant United States evidentiary hearing Cobb denied that Barton, perjured denying had themselves $10,000 payment exchange was in for Lind- of an FBI the existence 302 of Cobb discuss securing say’s Magnum’s vote and confirmed gains ing capital matter. at that he and Richards had not discussed the purpose payment Lindsay. Gordon/Blanding the time of 639-40. At pressed trial, any 791-92. When how he about defense asked the payment Lindsay, his characterize Cobb capital 302 about Cobb’s involvement in the “gift,” described it as a J.A. gains -Special Agent testi matter. Clemens $10,000 payment contrasted it with the he evidentiary hearing fied at the that he vote, Magnum buy Magnum’s made J.A. FBI 302 of did not do an interview with at 794. capital gains Cobb about matter and any rough he did not notes of such receiving After all of this J.A. at 836-37. Barton discussion. AUSA defense, hearing argument from the the dis- also told the court that no secret Cobb trict court itself was unable to conclude that discussing Lindsay’s capi himself, involvement in the perjured stating had Cobb while gains tal matter existed that had not been “it would be farfetched to all that believe we (“[I]f afternoon, ... turned over to the defense. have heard here this I don’t J.A. perjury looking know that it’s that he’s the secret 302 of Cobb crime we Ron Thus, talking discussed, about.” 843. the where this it does exist. evidentiary hearing At the intermediary paying the court also served as Senator initially establish, however, and considered the Cobb heard fact that Magnum does not Cobb polygraph given failed examination Rich- Lindsay. he had believed that bribed Cobb during regarding ards interview Oil Job- during polygraph had asked whether he examination, bers bill. Cobb was asked illegal payment Lindsay; made an or bribe to $10,000 Magnum paid whether he had through Senator polygraphed issue that "[t]he [Richard] [Cobb] intermediary. poly- an Cobb failed paid Represen- whether or not he in fact graph intermediary Lindsay until he revealed was the $10,000 Mangum through [sic] tative Magnum. payment for the intermediary.” J.A. at 778. As ex- Richard F.Supp.at dismissing In its the in- order initially plained, polygraph failed the dictments, concluded, contrary the district court (“showed deception"), not because he refused implicit that "[t]his conclusion in bribe, paid Lindsay illegal had admit that he government’s argument alone [fact] refutes the divulge Lindsay he failed to but because consistently subjec- that ‘Cobbhas to his adhered ’’ intermediary Mag- payment acted as an investigation.’ during view the tive facts num, withholding regis- and that of information Id. polygraph. tered on the polygraph fact that Cobb failed the test J.A. 779. concealing Lindsay when the fact that (which ”). 1989, 25, FBI focused September ... 302 concerning 302 that is no such There matters) reasonably largely state- could government concedes that these other The fact, were, in not by slipped and Barton have his mind. Clemens did ments Clemens Lindsay’s alleged at 81-82. forgot Br. of United States he about incorrect. claim that 25, 1989, FBI 302 September Clemens capital gains in matter alto- involvement above, Cobb, para- included one discussed only forgot gether, but rather that he matter, addressing capital gains graph FBI September was a 1989 302 there available de- and that 302 was not made Lindsay’s involvement. More- mentioned 1993, the cases were until after fendants over, September indicated that in Clemens government con- for retrial. The remanded logistics with the preoccupied he was 1989 tends, however, nor neither Clemens 2734, operation, and that sting of the intentionally the court. misled Barton he consider conversation did not investigation gains capital about the find specifically not The district court did important the information Cobb because intentionally or Barton that either Clemens Lindsay’s connection provided about not misrepresented that the FBI 302 did “only a his- capital gains [to] matter related exist, not that the record does and we believe we would look at eventual- charges of deliberate torical case that defendants’ support the Instead, suggests ly.” the evidence misconduct. J.A. at 2738. by Clemens were the the misstatements Barton, As to AUSA and for- oversight, disorganization, result handling only that “AUSA Barton was stated Barton never saw getfulness and that trial, any discovery Taylor for the original of the trials. FBI 302 at the time alia, capital mentioning [inter FBI 302 by report of conclusion is bolstered Our Lindsay] gains payment related Senator investigation the Office the internal him, certainly have been noticed would found Responsibility, which also Professional the ‘secret yet the existence of he denied no evidence that either Cle- that there was ” Obviously, F.Supp. at 641. how- 302.’ intentionally Barton misled mens or ever, noticed the Barton (“On allega- the central J.A. at court. provided prosecu- to the if it was FBI 302 prose- tion of intentional concealment tors, any finding of deliberate con- and thus cutors, insufficient we find the evidence necessarily predicated on the as- cealment is (“[0]ur it.”); investiga- support J.A. at 2749 FBI transmitted the sumption that Clemens there developed has no evidence tion assumption prosecutors. Such an to the any misleading of the court intentional was All rec- be sustained on this record. cannot defendant....”). or of the not that Clemens did indicates ord evidence in- explained in his OPR Agent Clemens until prosecutors provide the FBI 302 FBI 302 as that he never viewed the terview question. Clemens himself after the trials “any particular significance,” J.A. having probably passing he indicated that existed,” “forgot he ever saying in along to the what Cobb AUSAs Moreover, indicated Clemens J.A. at was so Clemens Fall 1989 because he when he learned was “shocked” oper- undercover busy with the details his misstate- and that the 302’s existence prose- at 2734. And none of ation. J.A. “extraordinarily ments to the having FBI 302 seen the cutors recalls 2738. The embarrassing” to him. J.A. at 2742. As J.A. at original trials. time of skeptical of apparently court was report summarized the evidence: the OPR explanation for his misstatements Clemens’ anyone else from nor Neither SA Clemens “big fish” in South Lindsay was because [the have transmitted FBI claimed to suggestion that politics and Carolina or the June September “explosive” corruption

was involved USAO, no one 302] likely forgotten. 956 to be having [the 302s] seen remembers USAO However, explained, he as Clemens at 640. being discovery was during time that Lindsay's allegations about knew Cobb’s Blanding/Gor- given capital gains matter well involvement as for particular, cases. thus the few September of 1989 and don/Derrick before none of the September about the matter isolated statements Barton, course, prosecutors Du- involved—AUSA J.A. at 2508. Of one cannot reason- Tremble, Daniel, Lydon ably from the Barton and Schools—re- infer fact that AUSA gains having capital was aware “facts” of the called see it at least while the first matter that he also knew of the existence of a being several Lost Trust cases tried. also part: use electronic his conversations 302 in teletype, prior quested authority FBI-Columbia other suggests that AUSA Barton knew of the FBI cite to an dressed whether the 1988-89 ensure tax that bribe ator John Charles Rogers, Carolina CW-3 Three [Lobbyist The recited legislation prosecutors) 2505. district question. CWs which the court [Cobb] have III, State August Lee], passage trials. The district court does legislative hereafter The last and South Carolina State Sen- recording court never to FBI-Headquarters, AUSA Representative with Greer and CW-2 The of certain lobbyist Randy Lindsay, provided received were made to South page State of S.C. Barton referred teletype, session. apparently devices [Senator of specifically FBI internal (or any capital in order to the FBI to as information to monitor John sent from stated, Lee] teletype believed during Lee to CW-1 gains Irby ad- re- number, defendants confined multiple-defendant ing up generated in ter and would oppressive consider them numerous. trict court ate well our honest” had a knowledge of the FBI that See OPR particular FBI that existed at the time We protracted, zealously prosecuted (arguing first two part discussion, any prosecutor “[h]e there are, as we duty (emphasis and that the discovery of this have Report, knew all is insufficient as an officer of the trials.”);29 Appellees’ not that Barton had connection with this appeal time-consuming ^[*] decade, reluctant to criticize the dis- been so even if the court had its legally countless intimated at the outset added)). to that J.A. at 2745 discovery litigation errors, even knew that discussing about ^[*] have discovery process cf. entitled. evidence evidence capital gains proceedings spanned For, even ^[*] are massive the documents issue, that matter.28 for the Court we (“[W]e provided though sprawling, This to which [the personal the bet- to show and de- appreci- Brief at court, to be lead- kind 302] find we of in UNITED ASSISTANT STATES ATTOR- fended, litigation record-intensive John NEY Barton is aware the facts challenge encyclopedic most minds fully case and concurs with the use of try patience toler- even the most monitoring. Entrapment Indeed, consensual is not prosecutors ant. both the and the upon an issue based difficulty the facts obtained defense themselves have had thusfar. achieving a command of doc- the voluminous documents, 1, 1989, 28. Defendants also cite to May two other the redactions FBI 302 court, trial, they not relied on which prior to his and the district court sustained claim indicate that Barton the existence government’s knew of decision to the 302. redact Appellees’ FBI trial, 302. See Brief at 75. Taylor's J.A. at 384. After the conclusion of However, both of these documents—like the FBI again rejected the court counsel’s claim most, indicate, teletype discussed Brady. above— of the FBI 302 redaction violated The Lindsay's Barton was aware of involvement in explained: court gains capital Nothing matter. in either docu- argument have to take You somewhere suggests particular ment awareness of a FBI buy They else I don’t been because that. discussing document the matter. things. redacting probably you You when did Attorney. Nobody an Assistant U.S. ever govern- district court also criticizes ongoing providing investigations turned over other ment for to the redacted versions lawyer May August jury public any- of the 21, or to the or Cobb 302 and the 14- body. too, protect people, Lee have and I 302. 956 at 640. This innocent particularly unconvincing light criticism if are out there. February the fact that the redacted FBI J.A. at 936. The court's order knowledge express approval dismissing attempt 302s with does not indictments even Taylor specifically challenged explain the district court. the court’s about-face on this issue. reign- produced and generated and uments FISHER, Petitioner-Appellant, frustrations.

ing their own understandable David Lee said, however, it still to this This falls v. And, respected. law is to ensure Director, ANGELONE, Vir- Ronald J. articulated, we find specific reasons for the Corrections, ginia Department of that the dis- of the firm conviction ourselves Respondent-Appellee. miscon- of intentional trict court’s assertions prosecutors government and its duct No. 98-4. unsupported by the record before simply Appeals, United States Court court, and, accordingly, that Fourth Circuit. clearly conclusion that the erred “egregious miscon- engaged in

United States Argued Oct. defendants. duct” in trials of these Dec. Decided rv. dismissing of the district court

The order indictments is vacated and the

defendants’ with instructions

case is remanded to reinstate the indictments and

district court defendants the United

allow retrial of the

States. AND REMANDED.

VACATED

WIDENER, Judge, concurring: Circuit opinion panel.

I concur I opinion think it

I in that because concur consequence that there be an of some merely majori- instead of

opinion of the court espe- concurring opinions, and more

ty and

cially requested our parties because record.

review of the word, my Left to

I however. would add devices, opinion am the action

own court, in its examination

of the district government’s in this case of

criticism

handling similar unrelated investi- capital gains legislation, tax

gation I would have beyond its warrant far

so reason findings for that all of those

vacated consideration.

without further notes Clemens’ purport to "pay-off” did not documents 302 do contain the word These 59-60. Lindsay’s dealing portion description involvement own recite verbatim Cobb's capital gains n. 20. Lindsay, matter. re- rather he made payments. of those the FBI's assessment flected analysis applies the other also 26. The identical mainly teletypes internal FBI documents— —cited

Case Details

Case Name: United States v. Derrick

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Nov 23, 1998

Citation: 163 F.3d 799

Docket Number: 97-4230, 97-4231 and 97-4232

Court Abbreviation: 4th Cir.