UNITED STATES OF AMERICA, PETITIONER V. HUGHES ANDERSON BAGLEY No. 84-48 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 Ninth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statement Reasons for granting the petition Conclusion Appendix OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-6a) is reported at 719 F.2d 1462. The order of the district court (App., infra, 7a-9a) and the proposed findings and recommendations of the magistrate (App., infra, 10a-15a) are unreported. JURISDICTION The judgment of the court of appeals was entered on November 10, 1983 (App., infra, 17a). A petition for rehearing was denied on March 2, 1984 (App., infra, 16a). On May 22, 1984, Justice Rehnquist extended the time in which to file a petition for a writ of certiorari to July 10, 1984. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether respondent's convictions should be set aside because the government failed to disclose, in response to respondent's pretrial request, evidence that respondent might have used to impeach two government witnesses, when it has been established beyond a reasonable doubt that the evidence would not have affected the verdict. STATEMENT 1. Respondent was indicted in the United States District Court for the Western District of Washington on 15 charges of violating federal narcotics and firearms statutes. /1/ In December 1977, after a trial without a jury, he was convicted on 11 counts of narcotics violations and acquitted on the other charges. /2/ O'Connor and Mitchell, two private security guards who were also commissioned as state law enforcement officers, had aided the Bureau of Alcohol, Tobacco and Firearms (ATF) in its investigation of respondent and testified for the government at respondent's trial. Pet. App. 2a. Before the trial, respondent sought discovery of, among other things, "any deals, promises or inducements made" to witnesses the government intended to call "in exchange for their testimony" (E.R. 9). Among the material respondent received in response to his discovery motions were affidavits by O'Connor and Mitchell. These affidavits, which were apparently furnished by the government in order to comply with respondent's request (E.R. 9) for "all Jencks Act material" (see 18 U.S.C. 3500), had been prepared during the investigation of respondent. They recounted at some length the dealings that O'Connor and Mitchell had with respondent on various occasions. See E.R. 64-85. Each affidavit contained the following recital: "I made this statement freely and voluntarily without any threats or rewards, or promises of reward having been made to me in return for it." E.R. 65, 66, 70, 72, 74, 77, 79, 82, 84. /3/ 2. In 1980, respondent filed a motion to vacate his sentence under 28 U.S.C. 2255. /4/ He alleged that the government had failed to disclose material that he could have used to impeach O'Connor and Mitchell. Respondent's motion was assigned to the same district judge who had presided over his non-jury trial and rendered the verdict. After a hearing before a magistrate, the district court found (see App., infra, 7a) that in May 1977, O'Connor and Mitchell had each signed a blank form contract printed by the ATF. This form was entitled "Contract for Purchase of Information and Payment of Lump Sum Therefor" (id. at 12a). /5/ The district court found that these forms "reflected no description of services, no dollar amount, and no signatures on behalf of ATF. The Contracts were not signed on behalf of ATF until after the trial" (ibid.). O'Connor testified at the hearing on respondent's motion that he "signed many ATF forms during the course of the investigation" (ibid.), and the district court found that "neither O'Connor nor Mitchell remembers signing (the contracts). * * * There is no evidence that either O'Connor or Mitchell read the Contract or retained a copy" (ibid.). The district court further found that no representative of the government "ever promised future payment for their testimony, either to O'Connor or to Mitchell, except for nominal witness fees" (App., infra, 11a). The court also noted, however, that the ATF agent with whom O'Connor and Mitchell were dealing "might have told them, at the time they signed the Contracts, that he would attempt to secure some expense money for them" (id. at 12a). After the trial, this ATF agent initiated efforts to obtain compensation for O'Connor and Mitchell, and each received $300 (id. at 13a, 14a). On this basis, the district court concluded that "it appears probable * * * that O'Connor and Mitchell did expect to receive from the United States some kind of compensation, over and above their expenses, for their assistance, though perhaps not for their testimony" (id. at 7a). /6/ The form contracts were not disclosed to respondent before trial. The government attorney responsible for prosecuting respondent stated, in stipulated testimony, that he had not known of the unexecuted contracts and that he would have furnished them to respondent if he had known of them (App., infra, 13a). 3. The district court denied respondent's motion. It remarked that "(a)s the trier of fact in (respondent's) trial * * * this Court is in the unique position of being able to know what effect the disclosure of the ATF agreements with O'Connor and Mitchell could have had upon the decisions made by the Court in the criminal prosecution" (App., infra, 8a). The district court then ruled "beyond reasonable doubt that had the existence of the agreements been disclosed to it during trial that disclosure would have had no effect at all upon its finding that the government had proved beyond a reasonable doubt that defendant was guilty of the offenses" of which he was convicted (ibid.). The district court explained the basis for its ruling as follows (App., infra, 8a): The Court has read in their entirety the transcripts of the testimony of James P. O'Connor and Donald E. Mitchell at the trial * * * . Almost all of the testimony of both of those witnesses was devoted to the firearm charges in the indictment. The court found the defendant not guilty of those charges. With respect to the charges against defendant of distributing controlled substances and possessing controlled substances with the intention of distributing them, the testimony of O'Connor and Mitchell was relatively very brief. With respect to the charges relating to controlled substances cross-examination of those witnesses by defendant's counsel did not seek to discredit their testimony as to the facts of distribution but rather sought to show that the controlled substances in question came from supplies which had been prescribed for defendant's own use. As to that aspect of their testimony, the testimony of O'Connor and Mitchell tended to be favorable to the defendant. 4. The court of appeals reversed (App., infra, 1a-6a). It stated (id. at 5a-6a): "(W)e hold that the government's failure to provide (the) requested * * * information to (respondent) so that he could effectively cross-examine two important government witnesses requires an automatic reversal." The court of appeals stated that respondent "was unaware during trial that O'Connor and Mitchell were subject to impeachment for bias based on their remunerative relationship with the government. The government's failure to disclose this * * * information inhibited (respondent's) ability effectively to cross-examine two important prosecution witnesses." App., infra, 4a. The court of appeals did not take issue with the district court's explanation of why such a disclosure would not have affected the verdict. Instead, the court of appeals emphasized the importance of cross-examination (id. at 4a-5a) and based its "automatic reversal" rule on its assertion that "a failure (by the government) to disclose requested * * * information that the defendant could use to conduct an effective cross-examination is (particularly) egregious because it threatens the defendant's right to confront adverse witnesses, and therefore, his right to a fair trial" (id. at 5a). REASONS FOR GRANTING THE PETITION The court of appeals has ruled that a conviction must automatically be set aside if the government failed to disclose requested information that might have been useful in impeaching a government witness, even if it is clear beyond a reasonable doubt that the information would have had no effect on the outcome of the trial. This approach is flatly inconsistent with the decisions of this Court, which have repeatedly emphasized -- even in connection with government failures to disclose that were far more improper than anything alleged here -- that a conviction is not to be set aside unless there is a significant likelihood that the evidence in question would have affected the verdict. Indeed, in discussing evidence of the kind involved here -- "evidence affecting (the) credibility" of a government witness -- this Court has explicitly said: "We do not * * * automatically require a new trial whenever 'a combing of the prosecutors' files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict . . . ' A finding of materiality of the evidence is required." Giglio v. United States, 405 U.S. 150, 154 (1972) (citation omitted). The court of appeals' approach would require defendants to be retried, often years after they were first convicted, for the sole purpose of permitting the use of evidence that -- beyond a reasonable doubt -- would not have affected the outcome of the first trial. In this way, the court of appeals' approach not only would impose wholly unnecessary costs on courts and the government but would enable some defendants -- those who cannot be retried because the passage of time has adversely affected the government's case -- to escape the consequences of a conviction that was the product of a wholly reliable verdict. Because the court of appeals' decision is manifestly in error and threatens to impose significant practical burdens on the administration of criminal justice, further review is warranted. 1. The court of appeals' "automatic reversal" rule appears simply to ignore the teachings of this Court's decisions. In a criminal prosecution, the government has a duty, under certain circumstances, to disclose information in its possession that could be useful to the defense. United States v. Agurs, 427 U.S. 97 (1976); Brady v. Maryland, 373 U.S. 83 (1963). But the Court has repeatedly ruled that a violation of that duty does not "automatically" require that the defendant's conviction be set aside; the defendant is entitled to relief only if there is a sufficient likelihood that the evidence in question would have affected the verdict. /7/ For example, the Court has made it clear that even if the government knowingly uses perjured testimony in its efforts to convict a defendant -- a vastly more egregious impropriety than anything alleged here (see Agurs, 427 U.S. at 104; Mooney v. Holohan, 294 U.S. 103, 112 (1935)) -- the conviction should be set aside only "if there is a () reasonable likelihood that the false testimony could have affected the judgment of the jury." Agurs, 427 U.S. at 103 (footnote omitted). See Giglio v. United States, 405 U.S. 150, 154 (1972), quoting Napue v. Illinois, 360 U.S. 264, 271 (1959). On numerous other occasions, the Court has considered the claims of criminal defendants who seek to have their convictions set aside because the government failed to disclose, or otherwise suppressed, evidence that might have been helpful to the defense; the Court has repeatedly emphasized in these cases that a conviction will not be overturned when the evidence allegedly suppressed by the government was not material to the defense. See, e.g., United States v. Valenzuela-Bernal, 468 U.S. 858, 866-872 (1982); California v. Trombetta, No. 83-305 (June 11, 1984), slip op. 9 & n.8; Agurs, 427 U.S. at 104-106, 108-113; Goldberg v. United States, 425 U.S. 94, 111 (1976); Moore v. Illinois, 408 U.S. 786, 795-798 (1972); United States v. Augenblick, 393 U.S. 348, 356 (1969); Giles v. Maryland, 386 U.S. 66, 98 (1967) (Fortas, J., concurring); Brady v. Maryland, supra. In this case, the government's demonstration that the evidence in question was not material met the most exacting standard; the district court found beyond a reasonable doubt that it would not have affected the outcome of the trial. The district judge who made this finding had himself been the trier of fact at respondent's trial, and he gave a cogent explanation of why his verdict would not have been affected. The court of appeals did not question this explanation or assert that the disclosure of the evidence in issue might have altered the verdict; it simply ordered a new trial, six years after respondent's initial conviction, for the sole purpose of receiving evidence that -- beyond a reasonable doubt -- would not have affected the outcome of the first trial. /8/ The principal basis of the court of appeals' decision appears to have been its view that evidence that can be used to impeach a prosecution witness has a peculiar importance to the defendant. On its face, the premise that evidence useful only in impeaching a prosecution witness is more helpful to the defendant than directly exculpatory evidence is surely incorrect. And as we have noted, this Court has ruled several times that the government's failure to comply with a duty to disclose either directly exculpatory material or impeaching material does not "automatically" require the setting aside of a conviction. The court of appeals relied heavily on Davis v. Alaska, 415 U.S. 308 (1974). But Davis is not a departure from the principle that the government's failure to disclose evidence cannot warrant a new trial if there is no significant likelihood that the evidence would have affected the outcome of the trial. In Davis, the Court reversed a conviction because the defendant was prohibited from using in his cross-examination of Green, a crucial witness against him, the fact that Green was on probation as a juvenile delinquent. The Court in Davis summarized the significance of this evidence (id. at 311): (Defense) counsel made it clear that he would not introduce Green's juvenile adjudication as a general impeachment of Green's character as a truthful person, but, rather, to show specifically that at the same time Green was assisting the police in identifying (the defendant) he was on probation for burglary. From this (the defendant) would seek to show -- or at least argue -- that Green acted out of fear or concern of possible jeopardy to his probation. Not only might Green have made a hasty and faulty identification of (the defendant) to shift suspicion away from himself * * * , but Green might have been subject to undue pressure from the police and made his identifications under fear of possible probation revocation. Elsewhere in the opinion in Davis, the Court described the evidence in a way that shows that the Court found the prohibition on its use highly damaging to the defense. See id. at 313-314, 318; id. at 319 ("Serious danger to the strength of the State's case would have been a real possibility had petitioner been allowed to pursue this line of inquiry."). It is entirely clear, therefore, that the Court's decision to set aside the defendant's conviction in Davis rested on its conclusion that the evidence the defense was barred from using would have been highly material and might well have affected the outcome of the trial. /9/ 2. The court of appeals' approach, if it prevails, would impose substantial -- and wholly unnecessary -- burdens on the courts, the government, and law enforcement interests generally. Criminal defendants routinely make pretrial requests for information similar to that made by respondent. Government attorneys are of course made aware of their obligation to comply with appropriate requests; indeed, it will seldom be in the prosecutor's interest not to comply with such a request, because the disclosure of the information in the government's file will usually be far less threatening to the prosecution than the possibility that the conviction will be set aside, at some point in the future, if a mandatory disclosure is not made. It is inevitable, however, that in a certain percentage of criminal prosecutions, government attorneys will erroneously fail to disclose information that should have been disclosed. This can occur for a number of reasons: there can be an inadvertent breakdown in communications, as apparently happened here and as can occur when different law enforcement agencies or different jurisdictions cooperate in an investigation; or an oversight can be caused by the time pressures associated with litigation and the limits on the government's resources. In addition, defendants' discovery requests are often not phrased with great precision, and a prosecutor might, in good faith, interpret a request more narrowly than it is subsequently interpreted by a court entertaining a collateral challenge to the conviction. This case appears to illustrate these points as well (see page 8 note 7, supra). If the government determines, during or after trial, that it may have breached a duty of disclosure, it will notify the defendant. See, e.g., United States v. Sperling, 726 F.2d 69, 71 (2d Cir. 1984). In addition, prisoners are generally familiar with their rights under the Freedom of Information Act and the Privacy Act. Consequently, there is a reasonable possibility that erroneous failures to disclose information will ultimately come to the defendant's attention. It can therefore be anticipated that the court of appeals' "automatic reversal" rule, if it prevails, will be applied in a substantial number of cases. Where the government's failure to disclose requested information has had the effect of depriving the defendant of a fair trial, he is of course entitled to have his conviction set aside. But under the court of appeals' approach, a conviction will be set aside even if it is clear that the evidence in question would not have affected the verdict. This approach serves no legitimate purpose; the costs it imposes on the courts and prosecutors that must retry the case are wholly unnecessary. In addition, the court of appeals' approach will often, as here, require retrials many years after the events in question have occurred. Consequently, the court of appeals' "automatic reversal" rule is likely to enable some defendants who have been convicted after a fair trial at which all material evidence was available to escape retrial, or to obtain an unwarranted acquittal, because evidence has been lost, memories have faded, and witnesses cannot be found. CONCLUSION The petition for writ of certiorari should be granted. The Court may wish to consider summary reversal. 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 July 1984 /1/ Count I of the indictment charged that respondent was an accessory after the fact to various firearms offenses, in violation of 18 U.S.C. 3. Counts II and III charged that respondent distributed a controlled substance, and Counts VI-XIV charged that he possessed a controlled substance with intent to distribute it, in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(B). Count IV charged him with dealing in firearms and ammunition without being licensed to do so, in violation of 18 U.S.C. 922(a)(1) and 924(a). Counts V and XV charged him with possessing unregistered firearms, in violation of 26 U.S.C. 5861(d) and 5871. E.R. 1-7. ("E.R." refers to the Excerpt of Record filed in the court of appeals.) /2/ Respondent was found not guilty on Counts I, IV, V, and XV. He was convicted on Counts II and III. On Counts VI-XIV, he was found guilty "of the lesser-included crime of possessing the described controlled substances" (E.R. 31). On Count II he was sentenced to six months' imprisonment and a special parole term of five years. On Count III he was sentenced to a suspended term of three years' imprisonment and placed on probation for five years. On Counts VI through XIV his sentence was suspended and he was placed on probation for five years. E.R. 32. Respondent's probation was subsequently revoked when he was convicted of another offense, and he was sentenced to three years' imprisonment. App., infra, 10a; E.R. 119. /3/ The court of appeals characterized these recitals as statements by O'Connor and Mitchell that each "had neither received nor expected compensation for his services" (App., infra, 2a). This description is exaggerated and inaccurate. The recitals, both literally and in context, represent only that the witnesses were not paid for giving their statements, not that they expected no compensation for the activities described in the statements. /4/ Respondent originally filed a petition for a writ of habeas corpus (see 28 U.S.C. 2241) in the Central District of California, where he was confined. This document was deemed a motion for relief under Section 2255 and transferred to the Western District of Washington. See E.R. 120. Apparently because respondent first sought a writ of habeas corpus, the warden having custody of respondent was named as the appellee in the court of appeals. The United States is the proper party adverse to the movant in a Section 2255 proceeding, and we have substituted the United States as petitioner in this Court. /5/ Respondent sought collateral relief after he had discovered these contracts by invoking the Freedom of Information Act and the Privacy Act, 5 U.S.C. 552 and 552a (App., infra, 2a). /6/ O'Connor and Mitchell also were paid a small amount of expense money -- $90 and $80 respectively -- before trial. The district court found that these payments "were intended to reimburse them" (App., infra, 14a) for "various expenses, including but not limited to automobile use and meals in the course of the investigation" (id. at 13a). /7/ It is far from clear that the prosecution breached any duty of disclosure or acted improperly at all in this case. Indeed, the district court appears to have avoided squarely ruling on whether the government should have disclosed additional information; it apparently preferred to rest its holding on the conclusion that respondent was not prejudiced even if the prosecution did err. Respondent requested information concerning "any deals, promises or inducements made in exchange for the () testimony" of O'Connor and Mitchell (App., infra, 13a; E.R. 9). The district court found that O'Connor and Mitchell were never promised payment by the government for their testimony (App., infra, 7a, 11a), and the court of appeals did not set aside this finding. The form contracts were not filled out and were not signed by ATF until after the trial. Thus, at the time of respondent's discovery motion, the contracts did not show that the witnesses had been promised any money at all -- much less compensation (as opposed to expense money) for their testimony (as opposed to their other services). The district court found only that it was "probable" that O'Connor and Mitchell "did expect to receive * * * some kind of compensation" (App., infra, 7a). Such a purely subjective expectation, of course, did not have to be "disclosed" in response to respondent's pretrial request. Moreover, the district court stated that O'Connor and Mitchell expected compensation "for their assistance, though perhaps not for their testimony" (ibid.; emphasis added). Respondent's pretrial request referred only to compensation for testimony. The district court attached no significance to the fact that O'Connor and Mitchell received a small amount of expense money before trial (see page 4 note 6, supra). It is unclear whether the court of appeals believed that the government should have disclosed this information. In any event, the reimbursement of expenses was plainly not within respondent's discovery request. Finally, as we noted above (page 3 note 3, supra), to the extent the court of appeals' opinion suggests that O'Connor and Mitchell made affirmatively misleading statements about the payments they had received and expected to receive, the court of appeals was incorrect. /8/ The court of appeals did not suggest that its disposition was needed to punish flagrant or repeated misconduct by the government. Even if the court of appeals had found such misconduct, it is at least open to serious question whether the court could have set aside respondent's conviction without applying a harmless error principle. See United States v. Hasting, No. 81-1463 (May 23, 1983). But in this case, it is, as we have noted, far from clear that the government acted improperly at all, and there is no suggestion of repeated or flagrant abuses (see page 8 note 7, supra). Indeed, the very insignificance of the evidence suggests that the government would have seen little to be gained from deliberately withholding it. Moreover, the district court appears to have credited the prosecutor's testimony that he would have disclosed the form contracts to respondent had ATF informed him of them (see App., infra, 7a, 13a). /9/ Not surprisingly, the court of appeals' decision here is in direct conflict with the decisions of other circuits. See, e.g., United States v. Farid, No. 83-2261 (8th Cir. May 10, 1984), slip op. 4-5; United States v. Sperling, 726 F.2d 69, 72-73 (2d Cir. 1984); United States v. Truong Dinh Hung, 667 F.2d 1105, 1107 (4th Cir. 1981), cert. denied, 454 U.S. 1144 (1982); Zeigler v. Callahan, 659 F.2d 254, 266-267 (1st Cir. 1981); United States ex rel. Marzeno v. Gengler, 574 F.2d 730 (3d Cir. 1978); Calley v. Callaway, 519 F.2d 184, 222 (5th Cir. 1975), cert. denied, 425 U.S. 911 (1976) ("(W)hen Brady is invoked to obtain information not favorable on the issue of guilt or innocence but useful for attacking the credibility of a prosecution witness, the information withheld must have a definite impact on the credibility of an important prosecution witness in order for nondisclosure to require reversal."). We know of no other court of appeals that has held that the government's failure to disclose requested information that could have been used to impeach a government witness requires that the conviction automatically be set aside. APPENDIX