UNITED STATES OF AMERICA, PETITIONER V. WILLIAM H. PFLAUMER

   No. 84-1033

   In the Supreme Court of the United States

   October Term, 1984

   The Solicitor General, on behalf of the United States, petitions
for a writ of certiorari to review the judgment of the United States
Court of Appeals for the Third Circuit in this case.

   Petition For a Writ of Certiorari to the United States Court of
Appeals for the Third Circuit

                       PARTIES TO THE PROCEEDING

   In addition to the parties named in the caption, Harold Oxman was a
defendant in the district court, and his appeal was consolidated with
respondent's in the court of appeals.  The court of appeals affirmed
his conviction and he is not a party before this Court.

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D

                            OPINIONS BELOW

   The opinion of the court of appeals (App., infra, 1a-54a) is
reported at 740 F.2d 1298.  The memorandum and opinion of the district
court (App., infra, 55a-66a) is unreported.

                             JURISDICTION

   The judgment of the court of appeals (App., infra, 67a-68a) was
entered on August 1, 1984.  A petition for rehearing was denied on
September 28, 1984 (App., infra, 69a).  On November 20, 1984, Justice
Brennan extended the time for filing a petition for a writ of
certiorari to December 27, 1984.  The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether a failure by the prosecution to disclose, in response to a
defense request, information that might have been used to impeach a
government witness violates the Due Process Clause and requires a
reversal of the defendant's conviction unless shown to be harmless
beyond a reasonable doubt.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Eastern District of Pennsylvania, respondent was convicted on 21
counts of mail fraud, in violation of 18 U.S.C. 1341, and one count of
conspiracy to commit mail fraud, in violation of 18 U.S.C. 371.  He
was sentenced to two concurrent terms of three years' imprisonment;  a
suspended three year term of imprisonment;  and fines totalling
$25,000.  The court of appeals reversed (App., infra, 1a-54a).

   1. Respondent is the sole stockholder of Wm. H.P., Inc. (WHP), a
trucking company.  The evidence showed that respondent, together with
several others, operated a scheme to defraud the states of
Pennsylvania, Maryland, and New Jersey of tax revenues owed to them
for fuel delivered to WHP.  Each of these states charges both a
per-gallon excise tax and a road use tax but allows taxpayers to
reduce road use taxes by the amount of excise tax paid.  The
fraudulent scheme that was the basis of respondent's convictions
involved altering invoices for diesel fuel delivered to WHP's
Philadelphia terminal in order to indicate, falsely, that the fuel was
delivered to WHP in Maryland and New Jersey.  WHP then underreported
its excise taxes in Pennsylvania;  paid no excise taxes in Maryland or
New Jersey;  and reduced its road use taxes by the amounts of excise
taxes it falsely claimed to have paid to Maryland and New Jersey.
App., infra, 3a-4a.

   Before trial, respondent requested that the government produce any
documents evidencing either agreements with any person whom the
government intended to call as a witness or benefits the government
intended to offer such persons.  The government disclosed extensive
materials pertaining to Frank Jock, an unindicted co-conspirator and
the principal witness against respondent, and John Luciano, another
conspirator.  The government did not disclose a letter reflecting an
agreement with Ralph Wille, the comptroller of WHP.  App., infra,
5a-8a & n.3.  This letter stated that in return for Wille's
"cooperation and testimony * * * relative to the federal investigation
into certain activities of Charles Gillan and others during the period
between June 2, 1978 and December 1979," Wille would be given use and
derivative use immunity for any statements he made in connection with
that investigation (ibid.).  Charles Gillan was the President of WHP
(id. at 2a);  he pleaded guilty to offenses arising out of his role in
the scheme of which respondent was convicted (id. at 3a).  The
government explained, in a post-trial hearing before the district
court, that it did not disclose the letter reflecting the agreement
with Wille because that agreement concerned a separate check-kiting
scheme, not the tax scheme for which respondent was indicted (id. at
28a-30a, 64a).  /1/

   2. At trial, Jock -- the owner of one of the companies that
supplied fuel to WHP -- testified that he and respondent discussed the
tax fraud scheme at a meeting and agreed to implement it;  that
respondent told him to explain the scheme to others who were involved;
 and that respondent subsequently sought to have fuel invoices
destroyed in an effort to conceal the scheme from auditors.  Wille
also testified at the trial, but he did not directly implicate
respondent in the scheme;  rather, he testified only about the extent
to which respondent was involved in the day-to-day operations of WHP.
This testimony tended to undermine respondent's assertion that others
at the firm were solely responsible for the illegal scheme and that he
had no knowledge of it.  App., infra, 37a-40a.

   Respondent's counsel learned of the letter concerning the agreement
with Wille, allegedly for the first time, on the day after the
verdict.  He then moved for a new trial.  App., infra, 7a, 8a.  The
district court denied the motion (id. at 64a-66a).  The district court
stated that "a new trial is warranted when suppressed evidence might
have affected the outcome of a trial" (id. at 64a), but "(w)here the
requested information is not material, the government has no duty to
turn it over to the defense" (ibid.).  The district court ruled that
the letter reflecting the government's agreement with Wille was not
material because it was not "'reasonably likely to have changed the
jury's judgment'" (id. at 65a;  citation omitted).  The court
explained that in view of the testimony of Jock and Luciano, "the
testimony of Ralph Wille was merely cumulative" and "even if the
defense had been able to impeach Mr. Wille with the requested
information, the outcome of the trail would have been the same." Ibid.
 The district court also suggested that respondent may have known of
the government's agreement with Wille before the government disclosed
it (id. at 66a).

   3. A divided court of appeals reversed (App., infra, 1a-54a).  The
court set forth an extensive account of the development of the law
governing the effects of a failure by the prosecution to disclose
information useful to the defense (id. at 17a-28a), beginning with
this Court's decision in Pyle v. Kansas, 317 U.S. 213 (1942), and
concluding with United States v. Agurs, 427 U.S. 97 (1976).  While
acknowledging its duty to follow Agurs, the court commented that
"(t)he Pyle v. Kansas rule was uncomplicated, and in this court it was
applied in a relatively straightforward manner," but that "(s)ince the
Agurs Court 'refined' the law with respect to the prosecutor's duty to
disclose exculpatory materials, replacing the rather clear test of
Pyle with * * * standards" pertaining to the materiality of the
withheld evidence, "this court has been faced with annoying frequency
with gamesmanship by some prosecutors with respect to the duty to
disclose" (App., infra, 18a, 26a).  By "gamesmanship" the court
apparently meant that prosecutors sometimes withhold evidence
requested by the defense because they believe that it is not material
(see id. at 27a-28a).

   The court then stated that Agurs stands for the following
proposition:  "If a specific request has been made, then the
nondisclosure of evidence favorable to the accused violates due
process if a 'substantial basis for claiming materiality exists'"
(App., infra, 25a;  citation omitted).  In the case of material that
might tend to impeach a government witness, the court concluded, this
principle dictates that "due process requires" the government to
disclose any requested information if it "significantly impairs the
incriminatory quality of (the) testimony" of a government witness (id.
at 32a).  The court then determined that Wille's testimony
incriminated respondent (id. at 36a-40a) and that the agreement would
have significantly impeached Wille (id. at 40a).  In reaching these
conclusions, the court specifically declined to determine "whether or
not, or in what particular fashion, trial counsel might have impeached
the witness in question (id. at 32a;  footnote omitted);  the court
also declined to determine "what the jury's reaction to the agreement
'might have been'" (id. at 33a).  The court explained its refusal to
make these determinations by saying that "(s)peculation of this kind
simply invites the pre-trial gamesmanship with which this court is
becoming all too familiar" (id. at 34a).  The court further concluded
that the nondisclosure of the Wille agreement was not harmless beyond
a reasonable doubt (id. at 41a-46a).

   Judge Sloviter dissented (App., infra, 47a-53a).  She stated that
the majority, by reversing respondent's conviction because the
government had not shown that the nondisclosure was harmless beyond a
reasonable doubt, had required respondent to make only a minimal
showing that the undisclosed evidence was material -- the same showing
of materiality that is required in a case in which the prosecution
knowingly uses perjured testimony.  Such a lowered materiality
standard, Judge Sloviter urged, is inconsistent with Agurs, where this
Court specifically distinguished between cases in which the government
knowingly uses perjured testimony and cases, like this one, in which
the government simply fails to disclose information specifically
requested by the defendant.  Id. at 47a-48a, 51a-52a.  Judge Sloviter
criticized the majority's focus on whether there was "a substantial
basis for claiming materiality";  Agurs, she asserted, requires a
showing of "materiality in fact" (App., infra, 31a), not just a
substantial basis for showing materiality.  See id. at 48a-49a.  Judge
Sloviter also stated that the majority had given insufficient
deference to the district court's assessment of the significance of
the evidence that was not disclosed (id. at 52a-53a).  /2/

   The court of appeals denied rehearing en banc by a vote of 5-4.

                   REASONS FOR GRANTING THE PETITION

   The court of appeals has ruled that any failure by the government
to disclose requested information that might be used significantly to
impeach a government witness violates the Due Process Clause and
requires that the conviction be set aside unless the government can
show beyond a reasonable doubt that the nondisclosure was harmless.
This holding is inconsistent with this Court's decision in United
States v. Agurs, 427 U.S. 97 (1976).  Agurs makes plain this Court's
conclusion that the purpose of the Due Process Clause is to ensure a
fair trial, not to regulate the prosecutor's behavior, and that
whether a constitutional violation arises from the government's
failure to disclose information depends on the impact that information
would have had on the outcome of the trial.  While the standard for
assessing the impact of undisclosed evidence -- and therefore the
existence of a constitutional violation -- varies depending upon the
nature of that evidence and of the defense request for disclosure,
only in a very narrow category of cases does this standard resemble
the constitutional harmless error standard employed here by the court
of appeals.  Because the court of appeals' approach differs so
substantially from that adopted by this Court in Agurs and applied by
other courts of appeals, further review is warranted here.  /3/

   1. a. In Agurs, this Court explained that the prosecution's duty to
disclose evidence favorable to the defense can arise "in three quite
different situations" (427 U.S. at 103).  In the first situation, "the
undisclosed evidence demonstrates that the prosecution's case includes
perjured testimony and that the prosecution knew, or should have
known, of the perjury." Ibid. (footnote omitted).  In the second
situation, the prosecutor receives "a pretrial request for specific
evidence" and fails to disclose some of the information requested.
Id. at 104.  The third situation arises when the defendant makes
either no request or only a general request for the evidence in issue.
 Id. at 107.

   The Court in Agurs emphasized that in each of these situations the
defendant cannot obtain a new trial unless he shows that the
suppressed evidence is material.  See 427 U.S. at 104, 106, 109-110,
111-113.  The Court has subsequently reiterated the importance of this
holding of Agurs.  See United States v. Valenzuela-Bernal, 458 U.S.
858, 867-868 (1982).

   The requisite showing of materiality is different in each
situation, however, In the case of perjured testimony, "the Court has
applied a strict standard of materiality" (427 U.S. at 104) that in
practical operation produces the same results as the approach of the
court of appeals in this case;  a conviction "must be set aside if
there is any reasonable likelihood that the false testimony could have
affected the judgment of the jury." Id. at 103 (footnote omitted;
emphasis added);  see Giglio v. United States, 405 U.S. 150, 154
(1972), quoting Napue v. Illinois, 360 U.S. 264, 271 (1959).  While
the Court did not specifically define the standard of materiality in
the second situation of failure to respond to a request for specific
information -- which is, of course, this case -- the Court plainly did
not intend to apply the same "strict standard" in this situation as it
does when the prosecution knowingly uses perjured testimony.  See 427
U.S. at 104.  As Judge Sloviter noted in her dissent, "it is apparent
* * * that the Court intended to make it easier for the defendant to
show materiality when the prosecution knowingly used perjured
testimony than when it withheld evidence." App., infra, 52a.

   b. The court of appeals' decision is inconsistent with these
central teachings of Agurs.  The court of appeals' complicated
analysis boils down to the conclusion that the Due Process Clause is
violated whenever the government fails to disclose evidence that could
have significantly impeached the testimony of a government witness,
without regard to the materiality of that information in the context
of the actual trial.  /4/ But this Court held in Agurs, and has
subsequently reemphasized, that the Due Process Clause is violated
only if the government suppresses evidence that is material in the
sense that it "might have affected the outcome of the trial." 427 U.S.
at 104;  see id. at 112;  Valenzuela-Bernal, 458 U.S. at 872.  The
court of appeals did not require respondent to demonstrate that the
Wille agreement was material in this sense;  instead, it adopted what
amounts to an irrebuttable presumption that significantly impeaching
evidence is always material.  This presumption is unsound;  impeaching
evidence will not be material if, for example -- as the district court
found here -- the government witness who would have been impeached
gave testimony that was mostly cumulative or relatively unimportant.
The court of appeals' conclusion that the government violated the Due
Process Clause when it failed to disclose the Wille agreement is
therefore in error.

   Having concluded that the nondisclosure violated the Due Process
Clause, the court of appeals applied the harmless error principle
appropriate for constitutional violations and reversed respondent's
conviction because it could not find beyond a reasonable doubt that
the nondisclosure was harmless.  App., infra, 41a-46a.  As Judge
Sloviter explained, the net effect of the court of appeals' approach
is that if the government fails to disclose significantly impeaching
information in response to a request, the defendant is entitled to a
new trial unless the government can demonstrate, beyond a reasonable
doubt, that the outcome of the trial was unaffected by its failure to
disclose the information.

   Judge Sloviter correctly pointed out that a rule requiring the
government to bear this burden cannot be squared with Agurs.  The
strictest standard of materiality -- applicable where the government
knowingly uses perjured testimony to obtain a conviction -- requires
the government to demonstrate that there is no "reasonable likelihood"
(Agurs, 427 U.S. at 103) that the false testimony affected the
verdict.  This standard is no stricter than a "beyond a reasonable
doubt" standard.  As we have explained, Agurs makes it clear that such
a strict standard does not apply in cases like the present case.  /5/

   c. The underlying error of the court of appeals' approach is its
failure to recognize that the Due Process Clause does not prescribe
standards of prosecutorial behavior;  it is concerned with the
fairness of the trial proceeding that results.  The district court
concluded that the government's failure to disclose the Wille
agreement did not deprive respondent of a fair trial, and the court of
appeals gave no sufficient reason for overturning that determination.
Instead, the court of appeals reversed respondent's conviction for the
explicit reason that it wanted to adopt a rule that would discourage a
certain practice of withholding requested information on the ground
that it was insufficiently material.  See App., infra, 33a-34a.

   This approach is fundamentally inconsistent with Agurs.  The court
of appeals seemed to recognize as much;  it explicitly criticized
Agurs on the ground that Agurs "encourage(s)" prosecutors to assess
the materiality of information requested by the defense before
disclosing it (App., infra, 28a).  The court of appeals is correct
insofar as it suggests that it may be imprudent or even improper for a
prosecutor to refuse to disclose requested information that is
arguably material.  That was the point this Court was making in Agurs
when it said -- using the phrase that, as Judge Sloviter point out,
the court of appeals repeatedly quoted out of context -- that "if a
substantial basis for claiming materiality exists, it is reasonable to
require the prosecutor to respond either by furnishing the information
or by submitting the problem to the trial judge." 427 U.S. at 106.

   But "there is a significant practical difference between the
pretrial decision of the prosecutor and the post-trial decision of the
judge." Agurs, 427 U.S. at 108.  The court of appeals' task was to
apply the Due Process Clause, the principal purpose of which is to
guarantee a fair trial.  At least within certain limits, even improper
behavior by a prosecutor does not violate the Due Process Clause
unless it deprives the accused of a fair trial.  "The Due Process
Clause is not a code of ethics for prosecutors;  its concern is with
the manner in which persons are deprived of their liberty." Mabry v.
Johnson, No. 83-328 (June 11, 1984), slip op. 6 (footnote omitted).
The Court emphasized this point repeatedly in Agurs.  See, e.g., 427
U.S. at 108 ("(U)nless the (failure to disclose information) deprived
the defendant of a fair trial, there was no constitutional violation
requiring that the verdict be set aside;  and absent a constitutional
violation, there was no breach of the prosecutor's constitutional duty
to disclose. * * * (T)o reiterate a critical point, the prosecutor
will not have violated his constitutional duty of disclosure unless
his omission is of sufficient significance to result in the denial of
the defendant's right to a fair trial.");  id. at 110 (footnote
omitted) ("Nor do we believe that the constitutional obligation is
measured by the moral culpability, or the willfulness, of the
prosecutor.").

   d. The ease with which the court of appeals' approach can lead to
undoing the result of trials that were constitutionally fair is well
illustrated by this case.  The materiality of undisclosed impeachment
information (which is surely a different question from its mere
admissibility) depends on both the extent to which the evidence is
likely to have impaired the witness's credibility in the eyes of the
jury and the importance of the witness's testimony to the jury's
verdict.  Here, the impeachment value of the undisclosed agreement
with witness Wille could not have been great.  Not only did the
agreement relate to a separate investigation of different offenses,
but it conferred virtually no benefit upon Wille.  That is because the
government agreed not to transaction immunity but only to use and
derivative use immunity for truthful statements made in the course of
Wille's cooperation (C.A. App. A-1529);  this left Wille no better off
than he would have been if he had refused to cooperate -- as was his
right -- and required the government to compel his testimony by
securing a formal immunity order from a court.  Moreover, in contrast
to a case like Giglio v. United States, supra, in which false
testimony was given by a critical witness, there is no suggestion that
Wille testified falsely, and the district court found that Wille's
testimony was not crucial because it was mostly cumulative of the
testimony of other, more important prosecution witnesses.  The
district court therefore was correctly satisfied that any impeachment
of Wille's testimony that might have resulted from evidence of the
rather inconsequential "inducement" contained in the use immunity
agreement was not material to the outcome of respondent's trial.  /6/

   2. In United States v. Bagley, 719 F.2d 1462 (1983), cert. granted,
No. 84-48 (Nov. 14, 1984), the Ninth Circuit, like the court below,
set aside a conviction because the government failed to disclose
requested information that could have been used to impeach government
witnesses.  The Ninth Circuit in Bagley held that such a nondisclosure
requires an automatic reversal of the conviction, and this Court has
granted certiorari on the question whether such a rule of automatic
reversal is correct.

   Like the present case, therefore, Bagley concerns the extent to
which a defendant seeking a new trial must show that he was prejudiced
by the government's failure to disclose requested information that
might have been used for impeachment purposes.  Accordingly, the
Court's decision in Bagley may shed light on the question presented by
this case.  But because the court below, unlike the Ninth Circuit in
Bagley, applied a harmless error rule, this Court's decision in
Bagley, even if it reverses the Ninth Circuit's decision, will not
necessarily resolve the question presented by this case.
Nevertheless, in our brief on the merits in Bagley we intend to
discuss in general terms the showing of materiality that a defendant
must make in order to obtain relief in cases of this kind.  We
accordingly suggest that the Court hold this petition pending the
decision in Bagley and dispose of it as appropriate in light of that
decision.

                              CONCLUSION

   The petition for a writ of certiorari should be disposed of as
appropriate in light of the disposition of United States v. Bagley,
No. 84-48.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   STEPHEN S. TROTT

      Assistant Attorney General

   ANDREW L. FREY

      Deputy Solicitor General

   DAVID A. STRAUSS

      Assistant to the Solicitor General

   DECEMBER 1984

   /1/ The indictment on which respondent was convicted alleged
mailings in violation of 18 U.S.C. 1341 from April 3, 1978 to June 30,
1979 (App., infra, 11a-12a).

   /2/ The court of appeals also ruled that the district court's
instructions on the duration of the conspiracy constituted reversible
error (App., infra, 11a-17a).  The court of appeals faulted the
district judge for permitting the jury to convict respondent on the
conspiracy charge if it found that he joined the conspiracy any time
before January 1981;  the court of appeals apparently believed that
the government had to show that respondent joined the conspiracy by
June 1979, the date of the last mailing charged as either a
substantive offense or an overt act (see id. at 14a-15a).  Judge
Sloviter, in dissent, stated (id. at 53a n.2):

         I am not convinced by the majority's conclusion that the jury
      instruction was both erroneous and not harmless when viewed in
      its totality.  I agree, however, that the issue is a close one.
      Under such circumstances, I believe that we should have the
      benefit of oral argument on that issue before reversing on that
      ground, particularly since both attorneys who argue were helpful
      in their presentation before this court.  However, at the
      direction of this court, the oral argument was limited to the
      Brady issue.

   Although we have not included it as a question presented, we
believe this holding is plainly incorrect.  Among other things, any
error in the instruction was necessarily harmless because respondent
was convicted on the 21 substantive counts charging mailings on or
before June 1979.  The jury therefore must have found that respondent
participated in the scheme before June 1979.  Since the jury was not
given an instruction permitting it to hold respondent vicariously
liable for the substantive offenses committed by his co-conspirators
(see Pinkerton v. United States, 328 U.S. 640(1946)), any error in the
conspiracy instructions could not have affected the validity of the
verdict on the substantive offenses.

   While the opinion does not separately discuss the matter -- which
was superfluous to its disposition of the case in light of its ruling
on the Agurs issue -- it seems plain that the error it found in the
conspiracy instruction was not an independent basis for reversal of
the convictions on the 21 substantive counts, since the error could
not possibly have affected the verdicts on those counts.

   /3/ In our petition for a writ of certiorari (at 12-13) in United
States v. Bagley, cert. granted, No. 84-48 (Nov. 14, 1984), we explain
the considerable practical significance of the rules that specify the
circumstances in which a new trial must be ordered because the
government failed to disclose information arguably helpful to the
defense.  We are serving a copy of our petition in Bagley on counsel
for respondent.  We discuss the relationship between this case and
Bagley at page 13, infra.

   /4/ See App., infra 32a (footnote omitted):  "(W)hen the government
has evidence in its files that serves to impeach a prosecution
witness, and when, as here, a specific request for that evidence is
made, then due process requires the government to disclose the
evidence if, viewed prospectively, the witness incriminates the
defendant at trial and the impeaching evidence significantly impairs
the incriminatory quality of the testimony."

   This conclusion followed from two premises that the court of
appeals elaborated at length.  Neither premise is sound.  The first
premise was that the nondisclosure of evidence "violates due process
if a 'substantial basis for claiming materiality exists'" (App.,
infra, 25a;  citation omitted).  But Agurs emphasized that in all
cases involving the nondisclosure of information -- including those
that, like the present case, fall into the second category -- the
defendant must demonstrate actual "materiality." 427 U.S. at 104.  As
Judge Sloviter noted, the court of appeals had no basis for diluting
this requirement of "materiality" to a requirement that the defendant
merely make a "substantial claim" of materiality.

   The court of appeals' second premise was that a substantial basis
for claiming materiality would exist whenever the requested
information would have significantly impeached a government witness.
The court of appeals did not explain why this premise is true, and
often it will not be;  for example, a claim of materiality may not be
substantial if it is clear that the witness provided only cumulative
testimony.

   /5/ As we noted, Agurs did not define the showing of materiality
that a defendant must make in order to obtain a new trial on the
ground that the government did not disclose specifically requested
information.  But the standard applied by the district court, in
reliance on a previous Third Circuit decision, and rejected by the
court of appeals -- whether the information in question is
"'reasonably likely to have changed the jury's judgment'" (App.,
infra, 65a, quoting United States v. McCrane, 527 F.2d 906, 911 (3d
Cir. 1975)) -- appears to be consistent with the approach of other
courts of appeals.  See, e.g., United States v. Farid, 733 F.2d 1318,
1320-1321 (8th Cir. 1984);  Zeigler v. Callahan, 659 F.2d 254, 266-267
(1st Cir. 1981).

   /6/ The approach of the majority below -- turning the materiality
inquiry into a constitutional harmless error question -- tends to
convert what this Court conceived in Agurs as a mixed question of fact
and law into a question of law to be decided de novo by the appellate
court.  But it is clear to us that the question of the relation of the
withheld information to the fairness of the trial is a matter
appropriately committed to the discretion of the district court, which
having seen the entire trial unfold in its presence, is best situated
to make the relevant determination.  See Agurs, 427 U.S. at 113-114.

                               APPENDIX