UNITED STATES OF AMERICA, PETITIONER V. HUGHES ANDERSON BAGLEY

   No. 84-48

   In The Supreme Court of the United States

   October Term, 1984

   On Writ of Certiorari to the United States Court of Appeals for the
Ninth Circuit

   Reply Brief for the United States

   The court of appeals' explicit holding was that The government's
failure to provide requested Brady information to (respondent) so that
he could effectively cross-examine two important government witnesses
requires an automatic reversal" (Pet. App. 5a-6a).  In our opening
brief, we demonstrated that the court of appeals' "automatic reversal"
approach -- under which the court required no showing of the
materiality of the undisclosed evidence -- is utterly inconsistent
with this Court's decisions.  U.S. Br. 10-17.  We further urged that
the standard of materiality used for determing whether a conviction
must be set aside because the government did not make a complete
response to a specific defense request for information should be less
strict than the "beyond a reasonable doubt" standard that the district
court found to be satisfied here.  U.S. Br. 18-41.

   Respondent makes no serious effort to defend the court of appeals'
"automatic reversal" rule;  instead, he asserts that the court of
appeals' use of that phase was "superfluous"(Resp. Br. 21).  /1/ But
respondent also fails to show that the ATF form contracts that the
government failed to disclose were in fact material to this
prosecution.  Respondent simply asserts in general terms that the
government's failure to deliver the form contracts to the defense
materially affected the defense case (see, e.g., Resp. Br. 19-20,
24-26);  like the court of appeals, respondent identifies nothing in
the record that suggests that disclosure of the form contracts would
have significantly impeached the testimony of O'Connor or Mitchell,
and, again like the court of appeals, respondent provides no
justification whatever for disturbing the ruling of the district court
judge, who stated that he would have found respondent guilty even if
he had known of the form contracts.  /2/

   Instead, respondent's principal tactic appears to be to assert that
the government affirmatively misled his trial counsel by making false
representations.  In this connection, respondent repeatedly refers
(see Resp. Br. 2 & n.3, 5 n.9, 18-19, 22, 24) to affidavits, executed
by O'Connor and Mitchell during the investigation of respondent, that
detailed the affiants' dealings with respondent, /3/ these affidavits
were delivered to respondent before trial in response to his discovery
requests.  /4/ Each affidavit concluded with a paragraph similar to
the following:

         I have read the foregoing statement consisting of 4 pages,
      each of which I have signed.  I fully understand this statement
      and it is true, accurate and complete to the best of my
      knowledge and belief. * * * I made this statement freely and
      voluntarily without any threats or rewards, or promises of
      rewards having been made to me in return for it.

   E.R. 65;  see E.R. 66, 70, 72, 74, 77, 79, 82, 84.  Respondent
describes these statements as "materially false representations" (Br.
2 n.3), "false statements which led respondent to belive that the
(trial) testimony (of O'Connor and Mitchell) could not be discredited"
(Br. 5 n.9), and "misrepresentations" that "indicate(ed) that there
were no promises of reward" (Br. 24).

   We showed in our opening brief that these statements in the
affidavits were not false at all.  U.S. Br. 3 n.4.  Moreover, while
the court of appeals incorrectly characterized these statements (Pet.
App. 2a), it did not assert that they were false, and it appears to
have attached no significance to them;  it based its "automatic
reversal" squarely on the nondisclosure of the ATF form contracts, not
on any suggestion that the government misled respondent.  /5/ Indeed,
it is not apparent from the record that the affidavits were even
introduced into evidence at the trial.  But because respondent has
attached such significance to these affidavits -- emphasizing them far
more heavily than the ATF form contracts that were the basis of the
court of appeals' decision -- we consider it appropriate to review the
facts that demonstrate that the affidavits were not inaccurate or
misleading in any way.

   The boilerplate language in the affidavits represented that
O'connor and Mitchell had not received or been promised rewards for
executing the affidavits.  There is no finding, and no evidence, that
either O'connor or Mitchell ever received or was promised a reward in
connection with the affidavits.  Well after the trial -- and therefore
long after the dates on which they executed the affidavits -- O'Connor
and Mitchell were compensated for their services in connection with
the investigation of respondent.  But the fact that a law enforcement
officer has received legitimate compensation for helping to conduct an
investigation does not mean that a statement he made about his role in
the investigation was given "in return for" a "reward." Moreover, the
district court found that O'Connor and Mitchell received no promises
of compensation (See Pet. App. 7a, 11a-12a);  therefore, O'Connor and
Mitchell had not received any "rewards, or promises of rewards" for
any purpose at the time they executed the affidavits.  The district
court remarked that O'Connor and Mitchell may have entertained a
subjective expectation that they would be compensated for their
services (id. at 7a), but nothing in the affidavits is remotely
inconsistent with their having had such a purely subjective
expectation of compensation for this purpose.

   For these reasons and the reasons stated in our opening brief, the
judgment of the court of appeals should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   MARCH 1985

   /1/ Our citations to respondent's brief refer to the typescript;
the printed copy was unavailable when we filed this reply.

   /2/ Respondent's assertion (Br. 5 n.9) that the testimony of
O'Connor and Mitchell was the sole basis of his convictions is
incorrect;  the evidence that formed the basis of nine of the eleven
counts on which respondent was convicted was uncovered during a search
of respondent's residence.  See VI Tr. 1039 (government counsel
stated, without defense objection, stipulation that controlled
substances were uncovered in a search of respondent's residence);  id.
at 1107-1108.

   /3/ The affidavits appear at E.R. 64-85 and are also appended to
respondent's motion for collateral relief, a copy of which we lodged
with the Clerk of this Court when we filed our opening brief.

   /4/ Respondent asserts (Br. 2,22-23) that the affidavits were
delivered in response to the discovery request that was the basis of
the court of appeals' ruling, a request for "any deals, promises, or
inducements made" to government witness "in exchange for their
testimony" (J.A. 18;  see Pet. App. 2a).  But the affidavits make no
reference to trial testimony, and it is evident that they were in fact
delivered in response to respondent's request for "all Jencks Act
material" (J.A. 18).

   /5/ See, e.g. Pet. App. 1a (asserting that this case concerns the
"nodisclosure of impeachment evidence");  id. at 2a-3a ("the
prosecutor's failure to produce information material to the
credibility of key government witnesses");  id. at 3a (referring to
the government's duty "upon specific request * * * to disclose
information favorable to the accused");  id. at 4a ("The government's
failure to disclose this Brady information inhibited (respondent's)
ability effectively to cross-examine two important prosecution
witnesses.");  id. at 5a ("the government's failure to provide
requested Brady information").