*1 America, STATES UNITED
Appellee, BUTLER, Appellant.
Robert
No. 76-3275. Appeals, Court
United States Ninth Circuit.
Jan. 1978. March
As Amended En Banc
Rehearing Rehearing 7, 1978. April
Denied
PER CURIAM: 18, 1974, рanel On another December Wright and (Circuit Judges court this Schwartz) re- Judge and District Goodwin defendant’s this same versed a denial trial. a new motion for represent- thereafter The court, for rehear- petition ed this in the an unresolved conflict ing, that underlying mo- supporting this tion had been discovered evidentiary hearing. conflict and re- opinion withdrew its The court evidentiary the cause for the manded concluded in That was hearing. course, and the district court made due again and conclusions. Once findings for a court the motion the district denied chаllenged in new trial. That denial is this appeal. facts and
Because
essential
applicable
statement of
correct
law
December
appear
own and
adopt it as our
opinion, we
substantially
orig
incorporate the text
inally filed **:
WRIGHT,
Judge:
Circuit
us,
before
appellants
again
These
an order
appealing
deny-
time
ing their motions
a new trial under
33,
Rule
Rules of Criminal Procedure.
Their earlier convictions had been af-
appeal.
firmed on
United States But-
ler,
(9th Cir.),
F.2d 1
cert. den. 414
864,
37,
84],
38 L.Ed.2d
[94
reh. den. 414 U.S.
L.Ed.2d 325]
contentions is
appellants’
The
thrust
appeal,
their earlier
after
to its
government promises
learned of
key
witness,
pending
John
him
be dismissed
charges against
prosecu-
to the
favorably
if he testified
dis-
tion and
Butlers.
hearing on the
trict
new trial
conducted a
court
motion,
concluded that the new
discovered evidence
not have
al-
GOODWIN,
verdict,
tered the jury’s
Circuit
and denied the
ELY and
Before
motion. We reverse.
SOLOMON,*
Judge.
District
Judges,
**
*
Butler,
Solomon,
Ted
No.
States v.
Dean
74-
Senior United
United
Honorable
J.
Gus
Butler,
Robert
Oregon,
and United States v.
No.
Judge
District of
District
for the
74-2000;
opinion
filed December
sitting
designation.
appeal
present
April
1975. The
withdrawn
prosecuted
Robert
alone.
Butler
testimony.
for his
It also
that:
cast doubt
opinion,
In our earlier
noted
upon
corroborative
and assur-
witness
ances, by
and two govern-
ment
John Durden who had been
assigned to
caught by
federal narcotics
effect
promised
Durden had been
cooperate
apparently
decided
as-
*3
nothing except
cooperation
that his
in
sisting
agents
their efforts to
brought
would be
to the attention of the
against
evidence
his
secure
fellow con-
judge
subsequent
in
proceedings against
of
lenient
spirators
hopes
receiving
him.1
himself. During
treatment
1
gave no
they
agents
that
testified
The
trial,
of
course
Durden’s
leniency
promises
had nev-
of
to
frequently
was
and
at-
vigorously
possibility
to
indicated
him
er
tacked. One of the
lines of
charges
seeking
dismissal
reduction
or
comprised
assault
asking
facing,
were aware of no
he was
plan
and
whether
in fact
the pending indict-
in return
to offer such assistance
cooperation.
Durden’s
ment
him was going to be dis-
Appellants’
skepticism as to
dis-
these
missed in
consideration
his testimo-
light
appears justified in
claimers
ny against
To this
defendant.
very
accorded to Dur-
lenient
treatment
‘no.’
question, he answered
Undoubtedly
testimony.
his
as
after
den
a result
cooperation,
of his
argue
allowing
Appellants-
dismissed his federal
uncorrected,
go
testimony
his
cases
obtain
two state
terceded
acquiescing
was
in the
prosecutor
probation
in the
one and
dismissal
other.
knowing
of false
in the
use
evidence
Illinois,
by Napue
manner forbidden
testimony by Saul
gist
264, 79
3 L.Ed.2d
Clemente
was
Bernard
(1959),
recently
1217
and more
occa-
several
on
had indicated
Sternaman
405
demned
reduction
at least
that dismissal
sions
763, 31
L.Ed.2d
against Durden
pending
charges
However,
(1972).
argument
such an
is
The court
strong probability.
awas
upon
promise
premise
based
that a
Moreover,
this assessment.2
with
agreed
definitely
of dismissal had
been
findings, stat-
court made several
this alleged prom-
to Durden and that
point:
ing at one
prosecution.
ise was known to the
trial there
that before
“I conclude
higher au-
plan to recommend
government
has at all times de-
to Durden
thority
benefit
substantial
promise,
nied suсh a
there is no
a misdemeanor
least
form of at
in the
contrary.
evidence in the record to the
fully cooperated.”
he
King,
United States v.
F.2d
5-6
testi-
specifically rejected
court
States at-
of the assistant United
mony
Butler case. He
who tried the
torney
their new trial mo-
At the
dis-
that he had never discussed
testified
produce
sub-
were able
appellants
tion
with others on
of Durden’s case
missal
strongly
which
stantial
evidence
staff,
suggested
nor
prosecutorial
charges.
It con-
their earlier
supported
was likely.3
counsel-that dismissal
defense
testimony
sisted
affidavits and
of four
as to Mr. Ber-
of dismissal
mention
“His
attorneys
defense
associated with the But-
may
Mr.
not
been
nard and
in the
Russell
cases,
ler and Durden
Ber-
including Saul
positive
form of
declaration
nard,
were
attorney.
Durden’s
There
be dismissed
would
contemporaneous
file
also
be
But the
could
in such a
discussions
give
manner as to
sel
cards.
the defendant’s coun-
tape
surreptitious-
and the
memoranda
the idea that dismissal was in the
between Dur-
ly recorded conversations
appellant
Robert Butler.
den
Mr. Bain
probably
“You remember tо
he said
the case
be dis-
question
raised a serious
This
saying
missed. Now that’s not
a case
veracity of
going
to be dismissed. He said it
that he had been
original
trial
probably
It
dismissed.
inference,
course,
in return
of assistance
promises
no
leaves
given
‘Well,
might say,
action
the court
take or
counsel
defense
going
promised that
this was
could take
they
and that
would make
”
dismissed.’
every
help
effort to
him
think
significant.
His
affidavit
Bernard’s
they
did
every
make
effort
that the assistant United
sworn statement
him
help
because
their own testi-
him that Dur-
attorney had assured
mony
they
аfter
the trial
were the
case would be dismissed
den’s federal
ones that urged dismissal.
prosecuting
contradicts the
attor-
sharply
Durden said to Robert Butler that
that he even talked
ney’s denial
said that
couldn’t
Bernard,
less discussed dismissal
much
make any
promises,
definite
but not to
that a
with him. The court concluded
worry, everything
all right,
would be
Bernard and
between
conversation
and there were several comments Dur-
and that dis-
place
taken
along
den made
those lines.
*4
con-
It further
was discussed.
missal
I don’t doubt but that
the agents
may have been
discussion
that this
cluded
mаde promises
benefits,
without
anticipated dismissal
signal
as to
saying definitely they had no author-
—
counsel.4
to defense
ity to make any
promise,
definite
that
regard,
noted that:
the court
In this
they were going to do everything they
agents
Government,
through its
“The
help
could to
him
they
and I think
told
experi-
counsel,
from
we know
him that.
Government,
ence
Government
agents and counsel
findings
These
are consistent with
ways
indicat-
the Government
Durden’s admissions
emphasize
bene-
counsel
ing to defendant’s
district court’s conviction that both Dur-
coopera-
from
likely
result
fits
tion.
dеn
government
and the
agents sup-
without
be indicated
can
That
charge
promise that
making
pressed in their trial testimony the real
bald
a
that the
reduced
going to be
nature of their dealings.
going
be dismissed.”
We now address the question whether
3, supra.
note
also
See
apparent
effort of
maintained
also
affidavit
Bernard’s
conceal the true nature of
these
prom-
had
agents
government
key
its
witness should have been
cooperated.
if Durden
ised dismissal
adequate
found
to support a new trial
was communicated
promise
That this
ordеr.
Durden’s admis-
evident
Durden is
opinion
Our
in United
v.
Ger-
by the
Butler, secretly taped
sions
latter,
ard,
(9th
1974),
quires al. showing where the situations disclosure At conclusion of most recent the new short of harm falls of material evidentiary hearing, the district court sup- is also in civil cases standard trial found no one from the United States In consideration. practical a ported by Attorney’s made any office had direct this, finding intention- a such as cases promises to Durden. While fac- with it carry nondisclosure al finding supported by tual the evidence prosecutor presumption strong erroneous, clearly and is not it does not perjured staff had of his and members affect outcome of this case. prospect, Faced with this themselves. The district court found that might well be reluctant judges trial the agents Durden and failed intentional. Giv- any nondisclosure find jury disclose to the trial Butler legal of the standard rigor en the assurances the had made to Dur see Bronston finding perjury, den in for his agreement cooper return States, 409 U.S. ate with prosecution. noncondu- (1973), L.Ed.2d 568] for the nondisclosure of procedural new trial motion civeness of a assurances made to his witnesses facts, find- getting all setting promises by even if such govern other rather than inten- unintentional ings of were unknown prose to be more likely are nondisclosure tional cutor. Since the investigative officers frequent. part prosecution, the taint on likely difficulty distin- will There the trial is if they, no less rather than the and tacit of relief promises guishing prosecutor, were guilty nondisclosure. of lesser from assurances understandings Warden, (4th Barbee v. 331 F.2d Similarly, cooperation. degrees of 1964). Cir. .distinguish whether may be difficult motion for denying the defendant’s can be sentence of reduced “promise” trial, failed to a new the district court directly who deal most those apply legal standard witnesses, often lack since will above-quoted decision December make such assur- authority to formal The district court concluded ances. and the the nondisclosure Giglio, Consequently, reading *7 the ver- would not have affected nondisclosure negligent requiring dict. That is not the correct standard. to the whether assessed situations be the permits When assessment jury’s earlier colors, to in parade witness himself false newly by have been affected would discovered, the truth is and motion evidence, reasonable appears a disclosed granted if for a new trial should be rights pre- would process Due one. (or nondisclosure) could, false served, not be re- yet new trials would likelihood, any in affect reasonable have every in nondisclosure situation. quired jury. Napue of the judgment ed prosecu- cases where In those uncommon Illinois, 264, 271, 79 360 U.S. was admitted or virtu- misconduct torial (1959). L.Ed.2d 217 In this uncontroverted, preserve we would ally 1974, we that a new held trial is standard, granting se per an almost whenever nondisclosure have af suppressed evidence trials fected the assessment of credibili and material” been “favorable Here, ty. of Durden was falsehood In the more common the defense. could have affect egregious, clearly and nondisclosure, prosecu- unintentional ed the of his testimo jury’s assessment encouraged to disclose would be tors ny. with wit- their full course remanded. and Reversed requiring a new our rule under nesses at benefit all to Durden save that his ELY, concurring: Judgе Circuit cooperation brought opinion concur in the generally I Consequently, court’s attention. go Yet I a little farther. majority. Government’s sin of silence was trans- by troubled I am and offended deeply presentation formed into an affirmative in this Government conduct perjury. disgrace repeated This was joined Wright, by Brother my case. As at again hearing the new trial in 1974. Schwartz, so co- Judges Goodwin present Clemente Agent again was in the vacated 1974decision gently wrote bring perjury failed court, by now our reinstated Moreover, attention of the сourt. Clem- decision, the ac- present “[pjrosecution’s ente testified for the Government and corroboration of Dur- quiescence substantiated both Durden’s and Sterna- at trial den’s denials were followed representations man’s that no assurances deception continued and half-truths on been given to Durden appellants’ appeal hearing and at Government. At the 1976 hearing, reviewing After all new trial motion.” again presented agent Government once here, presented including of the facts Again Sternaman as a witness. he testi- еvidentiary at the those adduced fied no undisclosed “deals” had been from upon remand the vacated 1974 de- Durden. This campaign court, I am opinion cision of our of the deception and extends perjury across the gravity governmental of the entire range of proceedings conducted significantly misconduct is understated. this case. Never once did the agents Court, evidentiary in the The District hint at the full complement of assur- remand, found that Unit- hearing on given ances to Durden. Even if the Attorney’s made no ed office had United States Attorney’s оffice were to- Although direct Durden. promise tally ignorant agents’ activities strong- evidence me to indicate seems deceptions, the Government still re- Attorney’s of- ly that the United States mained responsible and all of representations fice made direct actively their actions. Giglio with the reluctantly agree findings of majority upholding L.Ed.2d 104 The agents were below, light of especially in fact made nothing less than “an arm of the prose- vantage point the District Court’s cutor.” United Morell, States v. Neverthe- credibility. which to assess (2d F.2d 1975). Cir. less, remains the Govеrnment Moreover, I find well nigh impossi- con- and intolerable for the inexcusable ble to believe that the United States At- agents. Agents duct of its Sternaman torney’s office fully ignorant was Clemente, the narcotics officers two activities and misrepresentations of the making intimately rep- involved in most agents. narcotics To the contrary, the attorney, Durden and his resentations to quite strongly suggests that the present were both in the courtroom United States Attorney’s office fully when Butler’s trial Durden testified aware of the nature of the assurances with the cerning “dеals” Government. being given to Durden the agents. Yet, fully of all the assurances aware example, For a memorandum to the file *8 Durden, they during given to sat silent in Durden’s case, federal written an any to exert testimony, failing his entire authoritative Assistant United States Durden’s blatant mis- effort to correct Attorney and 22, 1970, dated January This ab- and omissions. representations some six months trial, before Butler’s duty court and of their the dication stated: “This case was continued for tri- fraud the to correct Durden’s parties al from ostensibly 1/20/71 because Dur- agent when compounded Stеrnaman attorney den’s needed more time. The that and himself took the stand testified actual and SECRET reason is that Dur- agent ever den is cooperating neither he nor Clemente with the narcotics exchange agents, and is anything turning assured Durden the big of a presently under testimony or even indicated investiga- for his
893
charged.
about with which the Government is
with Novak
(sic)
tion. Chekc
has
appellant
pursue
been forced
[up] with mis-
should end
this —Durden
28
two
trial motions and a
U.S.C:
demeanor,
testify
and should
petition,
2255
well
separate ap-
as
attorney
§
is aware of
Butlеr. Durden’s
peals from the
denials thereof.
attorney
above,
and his
but Butler
the
heart of these motions and
is
appeals
is the case
Clemente
George
not.
are
obtained,
that Butler’s convictions were
agent, and is aware
the
[narcotics]
through
and
part,
perjury
added).
evi-
(emphasis
Further
above.”
the government’s failure to
le-
disclose
1976
the 1974 and
presented at
dence
hearings, including
-
niency agreements with Durden. Be-
govern-
the
other of
conduct,
government’s
cause
memoranda, also indi-
ment’s internal
of justice
administration
layеd
has been de-
attorneys
prosecuting
cates that
years.
seven
Even to
point,
of the narcot-
knowledgeable
fully
adamantly
Government
refuses to
The United
misconduct.
agents’
ics
admit
am
culpability. Consequently, I
rectify
attorneys’ failure
States
driven to the conclusion
prose-
that the
worst,
was, at
actions of
cution’s intolerable misconduct has so
of,
acquies-
subornation
knowing
permeated these
proceedings
and,
perjury
in,
odious
the most
cence
best,
dictment-
ought
pro-
as a
dismissed
incompetent failure
inexcusably
аn
phylactic measure to deter such conduct
adequately
inform themselves
to
knowledge
in the future. All federal courts
en-
are
of their
behavior
supervisory
with certain
dowed
inherent
witness-
prosecution
associates and
powers over the administration
justice
case,
conduct of the
In either
es.
in the courts of the United
States
was far below what
here
Government
must
that power,
compre-
utilize
which
entitled
ex-
people
American
to dismiss an
power
hends
indict-
with
servants entrusted
public
pect
ment,
pursuit
whenever the
of truth and
national
aspect of the
important
justice
Buy
becomes tainted.
La
v.
See
me,
totality
of these
interest. To
249, 259-60,
Co.,
Howes Leather
prosecutorial
rank
facts demonstrates
309,
(1956); Lego
1
S.Ct.
L.Ed.2d 290
ought
un-
of the sort
misconduct
479, n.1,
477,
v.
404
92
Twomey,
U.S.
strenuously to be con-
equivocally
(1972);
S.Ct.
that would for one as candidates than this
strongly most federal court’s of a
the exercise prosecutori- powers to deter
exalted one character- there If
al tactics. Government, it is glorifies istic that uniformly and justice, for the penchant The attain- administеred.
impartially the ulti- ever been justice has
ment of men. of honorable purpose
mate aim vested Attorneys,
The United espe- power, are dignity and
with such duty protect
cially entrusted including, of people, of all
the interests those ac-
course, legitimate rights the federal courts. of crime in
cused consideration, including zeal is no
There can affect inexperience, if, during obligation. And transcendent hearings, subsequent trial and
a criminal acquiescent quietly officers sit
federal witnesses, to their of their
while one perjures himself
knowledge, repeatedly accused, juridi- incriminating democracy is under-
cal of our idealism and subverted.
mined foregoing, express light judicial hope
the fervent Court, upon re- of the District
science
mand, the dismissal impel' will this, In a such as no
indictment. effectively to operate can
lesser action judicial nobility of our
perpetuate
process.
INSURANCE COMPANY OF NORTH
AMERICA, Appellant, Kane, Mark C. Cal, Los Angeles, ap- pellant. INSURANCE NATIONAL CENTRAL Scarantino, S. E. Hollywood, North OMAHA, Appellee. OF COMPANY appellee. No. 75-2927. United States Court of Appeals,
Ninth Circuit. Jan. KILKENNY, Before HUFSTEDLER GRANT,* District Judges, and
Circuit Judge.
* Grant, Judge, States District Robert A. Senior United Northern Honorable District of Indi ana, sitting by designation.