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Volume 1 of 2
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-4230
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
PAUL WAYNE DERRICK,
Defendant-Appellee.
DALE L. DUTREMBLE; E. BART
DANIEL; RICHARD GREER,
Amici Curiae,
and
CHARLESTON POST AND COURIER,
Movant.
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
JEFFERSON MARION LONG, JR., a/k/a
Bud,
No. 97-4231
Defendant-Appellee.
DALE L. DUTREMBLE; E. BART
DANIEL; RICHARD GREER; ALVA
TAYLOR BROWN, Personal
Representative of the Estate of
LUTHER LANGFORD TAYLOR;
NATIONAL ASSOCIATION OF CRIMINAL
DEFENSE LAWYERS,
Amici Curiae,
and
CHARLESTON POST AND COURIER,
Movant.
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
LARRY BLANDING,
Defendant-Appellee.
DALE L. DUTREMBLE; E. BART
DANIEL; RICHARD GREER; ESTATE OF
BENJAMIN J. GORDON, JR., a/k/a B. J.
No. 97-4232
Gordon; ALVA TAYLOR BROWN,
Personal Representative of the
Estate of LUTHER LANGFORD TAYLOR;
NATIONAL ASSOCIATION OF CRIMINAL
DEFENSE LAWYERS,
Amici Curiae,
and
CHARLESTON POST AND COURIER,
Movant.
Appeals from the United States District Court
for the District of South Carolina, at Columbia.
Falcon B. Hawkins, Chief District Judge.
(CR-91-91-FBH, CR-91-384-FBH, CR-90-434-FBH)
Argued: May 7, 1998
Decided: November 23, 1998
2
Before WIDENER, NIEMEYER, and LUTTIG, Circuit Judges.
_________________________________________________________________
Vacated and remanded by published opinion. Judge Luttig wrote the
opinion, in which Judges Widener and Niemeyer joined. Judge Wid-
ener wrote a separate concurring opinion.
_________________________________________________________________
COUNSEL
ARGUED: Elizabeth Dorsey Collery, Appellate Section, Criminal
Division, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C., for Appellant. Dale L. DuTremble, Charleston, South
Carolina; Gedney Main Howe, III, Charleston, South Carolina, for
Amici Curiae DuTremble, Daniel and Greer. Joel Wyman Collins, Jr.,
COLLINS & LACY, P.C., Columbia, South Carolina; Jack Bruce
Swerling, Columbia, South Carolina, for Appellees. Marvin David
Miller, Alexandria, Virginia; Lionel S. Lofton, Charleston, South Car-
olina; Joel W. Collins, Jr., COLLINS & LACY, P.C., Columbia,
South Carolina, for Amici Curiae Association, Gordon, and Estate of
Taylor. ON BRIEF: John C. Keeney, Acting Assistant Attorney Gen-
eral, Criminal Division, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellant. James E. Bell, III, BELL &
MOORE, Sumter, South Carolina, for Appellee Blanding. Lisa B.
Kemler, ZWERLING & KEMLER, Alexandria, Virginia, for Amicus
Curiae Association.
_________________________________________________________________
OPINION
LUTTIG, Circuit Judge:
Appellant, the United States of America, appeals from the order of
the federal district court for the District of South Carolina, dismissing
with prejudice five indictments returned in the aftermath of the so-
called Operation Lost Trust investigation into political corruption in
the South Carolina Statehouse in the early 1990s. For the reasons that
3
follow, we vacate the opinion of the district court and remand with
instructions that the dismissed indictments be reinstated.
I.
This case arises from an FBI investigation into political corruption
in the South Carolina legislature in connection with its consideration
in 1990 of the state's parimutuel betting legislation. That investigation
resulted in the prosecution and conviction by jury of the defendants
-- Larry Blanding, Paul Wayne Derrick, and Jefferson Marion Long,
Jr.1 -- for various offenses, including extortion under color of official
right and conspiracy to commit extortion, in violation of the Hobbs
Act, 18 U.S.C. § 1951. Defendants Blanding's and Derrick's convic-
tions (as well as Taylor's and Gordon's) were eventually overturned
by this court on appeal on the grounds that the intervening Supreme
Court decisions in McCormick v. United States, 500 U.S. 257 (1992),
and Evans v. United States, 504 U.S. 255 (1992), rendered defective
the jury instructions that were given at their trials. See United States
v. Blanding, 1992 WL 138353 (4th Cir. No. 91-5871); United States
v. Derrick, 1994 WL 34691 (4th Cir. No. 92-5084). We affirmed the
district court's award of a new trial to defendant Long based upon the
improper playing of inadmissible tape recordings before his jury.
United States v. Long, 1994 WL 56993 (4th Cir. No. 92-6799).
Accordingly, all three cases were remanded to the district court for
retrial.
Upon remand, defendant Taylor moved for dismissal of his super-
seding indictment, which had also included defendants Gordon and
Blanding, on the grounds of discovery violations and other alleged
prosecutorial misconduct. And in response to these allegations of
improper withholding of documents and other wrongdoing, the gov-
ernment decided essentially to "start over on discovery by providing
it again." United States v. Taylor , 956 F. Supp. 622, 626 n.4 (D.S.C.
_________________________________________________________________
1 Two other original defendant-appellees to this appeal, Luther Taylor
and B.J. Gordon, are now deceased. Taylor passed away on March 23,
1997, and Gordon passed away on July 12, 1997. Consequently, neither
of these individuals is a party to this appeal. By order of the court, how-
ever, we granted the estates of both of these defendants the opportunity
to participate as amicus curiae.
4
1997) (district court order dismissing defendants' indictments) (quot-
ing 10/18/94 OPR Report at 10). This decision having been made, the
government produced to the defendants "all [FBI] 302s that men-
tioned any co-conspirator named in the new indictment as well as all
pre-trial Jencks Act materials." J.A. at 2688. This production on
November 29, 1993, prompted defendant Gordon also to move for the
dismissal of his indictment on the grounds that the government had
improperly withheld materials required to be produced under Brady
v. Maryland, 373 U.S. 83 (1963).
On February 22, 1994, the district court granted the government's
motion for continuance in order to allow the Department of Justice's
Office of Professional Responsibility (OPR) to investigate the defen-
dants' allegations of prosecutorial misconduct. That investigation,
which disclosed no intentional misconduct by the prosecution in these
cases, was concluded in October of 1994. Although the Department
of Justice found that the prosecution had not engaged in any inten-
tional wrongdoing, the United States Attorney for South Carolina
recused his office from further involvement, and attorneys from Pub-
lic Integrity at Main Justice assumed responsibility for prosecution of
the cases.
Thereafter, at an October 20, 1994, status conference, the govern-
ment agreed to produce to the defendants all FBI 302s and transcripts
in its possession relating to the investigation, reserving the right to
seek in camera review by the court of any materials the government
believed should not be produced. J.A. at 1334, 1341. The district
court also ordered the government to produce any existing handwrit-
ten interview notes. J.A. at 1348. All of these materials were to be
surrendered by December 1, 1994, into the evidence room established
by the district court. J.A. at 1352-53 (district court discovery order).
Pursuant to its promise at the status conference, the government
placed a large number of documents in the evidence room. Addition-
ally, acting upon its reservation of right, the government submitted a
number of FBI 302s to the court for in camera inspection and argued
that they should not be produced to the defendants.
In January and February of 1995, the prosecution learned that the
FBI had in its possession tape recordings and FBI 302s relating to the
1988-89 drug investigations of prosecution witness Ron Cobb. Upon
5
learning of these materials, the prosecution obtained these documents
and turned them over to the defendants.
Following the above-described productions, the defendants pro-
posed to the court at its April 19, 1995, hearing on pending discovery
motions, that
the government take every scrap of paper that they have,
every internal memorandum, every piece of correspondence,
every doodle pad, every videotape, every transcript, every
audio tape, everything, put it in the room.
J.A. at 1364-65. (The same day, defendant Derrick filed a motion to
dismiss his indictment.) And the following day, over the govern-
ment's objections that it had already produced far more documents
than required by Brady and federal rules, the district court issued an
order "[t]o avoid any further confusion as to what material should and
should not be turned over by the government to the .. . defendants."
J.A. at 1418, 1419. That order required the government to produce for
in camera inspection by May 8, 1995, "all documents and/or materi-
als in [its] possession . . . dealing with these cases and not presently
available to the defendants in the `evidence room'." J.A. at 1420. In
compliance with the court's order, the government produced, accord-
ing to the district court, seven file boxes from the Department of Jus-
tice, four file boxes from the FBI, and one file box from the Office
of Professional Responsibility. See J.A. at 1422.
In a July 25, 1995, discovery order entered following its in camera
review of the materials produced pursuant to its earlier orders, the dis-
trict court concluded that the government's argument that the drug-
related audiotapes produced in March of 1995 were not relevant or
discoverable under Brady was "ludicrous" because "the drug investi-
gation was hand-in-glove with the corruption investigation known as
Lost Trust." J.A. at 1427. Arguments such as the one made by the
government, the district court said, "cause the court to look very
closely at what was withheld by the government that may have jeop-
ardized the rights of these defendants." J.A. at 1427. The court also
concluded that documents relating to corruption in connection with
the capital gains legislation (as opposed to the parimutuel betting leg-
islation that was the subject of the Lost Trust sting operation) were
6
relevant to the defendants' defense because "one of the key figures in
the Lost Trust investigation pled to a RICO violation, one of the pred-
icate offenses of which was the taking of a bribe from the govern-
ment's cooperating subject and key Lost Trust witness, Ron Cobb, in
relation to the capital gains tax bill." J.A. at 1428.
As to the documents submitted by the government for in camera
inspection, the district court concluded they were
in the main, internal administrative documents constituting
privileged work products, or are documents that are part of
the public record in these cases, or are copies of documents
known by this court to have been previously furnished to
defendants. The court has found few additional materials
therein to which it believes these defendants are entitled
under either Brady or within the meaning of the "open file
policy" in effect in this district.
J.A. at 1430 (emphasis added). The court ordered the government to
produce but ten specific documents in addition to OPR interview
notes. J.A. at 1440.
The district court subsequently amended its July 25 discovery order
a number of times, including once on September 7, 1995. In its Sep-
tember 7 amended order, the court ordered "that should the govern-
ment come into possession of any evidence which might impact on
the alleged capital gains cover-up, such information and/or materials
shall be immediately submitted to this court for in camera review."
J.A. at 1457. In response to this amended order, the government
inquired, J.A. at 1542, and was informed by the FBI that Special
Agent Denton had located, "on the 14th floor of the Strom Thurmond
Federal Building in a section of files known as closed files," J.A. at
1540, an investigative file for the capital gains matter.2 The govern-
ment notified the court that it had found this file, placed some of the
_________________________________________________________________
2 Special Agent Denton testified:
I noticed on one of the files a file number that was not the Lost
Trust file, it was down at the bottom of an empty 302, and it had
the Lost Trust file number on it and it had another file number.
. . .
It turns out it was the capital gains file, which was not indexed
capital gains.
J.A. at 1542.
7
documents in the evidence room, and, on October 4, 1995, submitted
other documents for in camera review by the court. In an order dated
October 6, 1995, the district court indicated that the submitted docu-
ments "should have been furnished long ago" and, acknowledging
that it had "made only a cursory in camera review of the documents,"
ordered them produced to the defendants. J.A. at 1460.
On October 18-20, 1995, the court conducted an evidentiary hear-
ing on the defendants' claims of prosecutorial misconduct. During
this hearing, which related primarily to the capital gains investigation,
Special Agent Denton, after testifying that the FBI maintained "coop-
erating witness" files, was asked to search his files again for any files
relating to Ron Cobb. In conducting this review, Denton found an FBI
302 on Robert Kohn, which was generated after the defendants' trials
and which he produced to the defendants. Rejecting the defendants'
suggestion that this document had been intentionally withheld, the
district court stated:
[O]ut of the thousands and thousands of documents that's
passed through this court, I'm not surprised that there's one
that got overlooked, or lost, or whatever it is. . .. Now, I had
not seen that last 302 that was found, and I don't know if
it contains anything that would warrant anybody trying to
intentionally hide it. I have already heard the agent say that
he didn't intentionally do it. He doesn't know how it got
misplaced, but he found it, and he gave it up.
I guess he would have been better off if he had just acted
like he didn't find it, but I think he's trying to comply with
the court's orders, and there have been several of these
things that have come up after a more thorough investiga-
tion.
J.A. at 1929.
At the conclusion of the hearing, the district court said that it
wanted to re-review the boxes of documents that it had already
reviewed in camera and had said in its July 25, 1995 order need not
be produced. On February 6, 1996, the court ordered that all of these
documents be produced to the defendants, reasoning that "little, if
8
anything, contained therein can still be classified as `sensitive'," "a
wider latitude must be given with regard to materials to be furnished
for the purposes of the defendants' pursuit of their motions to dismiss
for prosecutorial misconduct than might be given for trial prepara-
tion," and that "no prejudice will inure to the government should this
court order all of these documents furnished to the defendants." J.A.
at 1946-47.
On October 3, 1996, the district court reconvened the hearing on
defendants' motions to dismiss their indictments, and thereafter
received additional briefing in support of and in opposition to the
motions to dismiss. And, on February 3, 1997, the district court
entered its order dismissing the defendants' indictments with preju-
dice pursuant to its supervisory power.
Rejecting the government's contention that the dismissal of the
indictments would be unauthorized absent a specific finding that the
alleged prosecutorial misconduct prejudiced the defendants, the dis-
trict court stated:
The court is convinced that the totality of the government's
actions in these matters rises to the level of egregious pro-
secutorial misconduct, and that this is a sufficient finding on
which the court can exercise its supervisory power.
. . .
The government would argue that in using its supervisory
power the court must find pattern and prejudice, and that the
defendants have proven neither. The court agrees that the
circuits are in disarray on this subject, but believes there is
sufficient precedent to dismiss the subject indictments with-
out addressing these issues.
956 F. Supp. at 623; see also id. (district court concluding that "it has
the discretion under the doctrine of the court's supervisory power to
dismiss should it find the government's actions so outrageous as to
offend the sensibilities of the court").3 From the district court's order
_________________________________________________________________
3 The district court summarized its beliefs as to the prosecution's mis-
conduct as follows:
9
dismissing the defendants' indictments pursuant to its supervisory
power, the United States appealed.4
II.
As the United States vigorously asserts, the district court's dis-
missal of the defendants' indictments without a finding of prejudice
is directly contrary not only to the precedent of this court, but also to
clear and well-established Supreme Court precedent. As the Supreme
Court held in United States v. Hasting , 461 U.S. 499 (1983), a court's
"supervisory powers to discipline the prosecutors of its jurisdiction"
may not be invoked to reverse a defendant's conviction for prosecu-
torial misconduct where the alleged misconduct was harmless. Id. at
505. In Hasting, the Seventh Circuit had,"notwithstanding the harm-
less nature of the error," id. at 504, reversed the defendants' convic-
tions because the prosecutor had commented on the defendants'
_________________________________________________________________
The court is convinced that this investigation began in an appro-
priate fashion. It is, after all, the responsibility of the FBI and the
USAO to pursue information with regard to illegal acts within
their jurisdiction. It is the opinion of the court, however, that
some of the investigators and lead prosecutors got lost on their
way to the lofty goal of weeding out drugs and corruption from
the South Carolina State House. Overzealousness and political
pressure upon those in positions of authority appear to be the
detours that led the government to rush to trial, especially in the
cases of Taylor, Blanding and Gordon; to withhold volumes of
exculpatory evidence; to allow perjured testimony to stand
uncorrected on more than one occasion; to allow its primary
cooperating witness, Cobb, to take an unusual amount of control
of the sting operation; to go outside of its own regulations to tar-
get certain legislators, and to mislead this court to such an extent
as to perpetrate a fraud upon the court.
956 F. Supp. at 658.
4 By orders of this court, former prosecutors E. Bart Daniel and Dale
L. DuTremble, joined by Richard Greer, were permitted to participate in
this appeal as amicus curiae, as were the estates of Luther Taylor and
Benjamin Gordon. The brief filed by Daniel, DuTremble, and Greer will
be referred to throughout as the brief of the "prosecutors amici."
10
failure to testify in violation of Griffin v. California, 380 U.S. 609
(1965). The Court of Appeals had, through its reversal of the convic-
tions, sought "to discipline the prosecutor -- and warn other prosecu-
tors -- for what it perceived to be continuing violations of Griffin"
within the circuit. Hasting, 461 U.S. at 504. The Supreme Court,
however, reversed, holding that a court's supervisory powers may not
be invoked to evade the harmless error rule for constitutional violations5
because "the interests preserved by the doctrine of harmless error" --
including the interest of the victims in seeing the defendants brought
to justice and the public's interest in the "prompt administration of
justice" -- "cannot be so lightly and casually ignored in order to chas-
tise what the court viewed as prosecutorial overreaching." Hasting,
461 U.S. at 507, 509, 505. The Court reasoned that invocation of the
"[s]upervisory power to reverse a conviction is not needed as a rem-
edy when the error to which it is addressed is harmless since by defi-
nition, the conviction would have been obtained notwithstanding the
asserted error." Id. at 506. The Court also noted that concern for "the
integrity of the process carries less weight" when the error is harmless
because there is "no `reasonable possibility' that [it] contributed to the
conviction." Id. (quoting Fahy v. Connecticut, 375 U.S. 84, 86-87
(1963)). Finally, the Court explained, "deterrence is an inappropriate
basis for reversal where, as here, [the constitutional violation is at best
"attenuated"] and where means more narrowly tailored to deter objec-
tionable prosecutorial conduct are available." 6 Id. (footnotes omitted).
It would seem to follow, a fortiori, from the Court's holding in
Hasting that a court may not, without finding prejudice to the defen-
dant, exercise its supervisory power to reverse a defendant's convic-
tion and require a retrial based upon prosecutorial misconduct, that a
court may not dismiss an indictment altogether on this ground without
also finding prejudice. The dismissal of an indictment altogether
clearly thwarts the public's interest in the enforcement of its criminal
laws in an even more profound and lasting way than the requirement
_________________________________________________________________
5 See Chapman v. California, 386 U.S. 18 (1967).
6 The Court noted that more narrowly tailored means of deterrence
included "order[ing] the prosecutor to show cause why he should not be
disciplined," "asking the Department of Justice to initiate a disciplinary
proceeding against him," or "publically chastis[ing] the prosecutor by
identifying him in its opinion." Hasting, 461 U.S. at 506 n.5.
11
of a retrial. And, indeed, in Bank of Nova Scotia v. United States, 487
U.S. 250 (1988), the Court reaffirmed its analysis in Hasting and
squarely held that a court has "no authority to dismiss the indictment
on the basis of prosecutorial misconduct absent a finding that petition-
ers were prejudiced by such misconduct." Id . at 263.
Defendants apparently contend that the Court's holding in Nova
Scotia applies only to prosecutorial misconduct that occurs at the
grand jury stage.7 See Appellee's Br. at 93. However, although the
misconduct at issue in Nova Scotia did occur before the grand jury,
see id. at 254 ("[A]s a general matter, a district court may not dismiss
an indictment for [prosecutorial misconduct] in grand jury proceed-
ings unless such errors prejudiced the defendants."), both the Court's
analysis and the text of its opinion confirm that Nova Scotia's holding
applies equally to prosecutorial misconduct that occurs at the pre-trial
and trial stages of a prosecution.
Specifically, the Court reasoned that all federal courts are bound by
Federal Rule of Criminal Procedure 52(a) to conduct the harmless-
error inquiry and that a "court may not invoke supervisory power to
circumvent" that inquiry. Id. at 254-55. As the Court explained, "[t]he
balance struck by [Rule 52(a)] between societal costs and the rights
of the accused may not casually be overlooked `because a court has
elected to analyze the question under the supervisory power.'" Id. at
255 (quoting United States v. Payner, 447 U.S. 727, 736 (1990)).
Thus, the Court held broadly that "a district court exceeds its powers
in dismissing an indictment for prosecutorial misconduct not prejudi-
cial to the defendant," Nova Scotia, 487 U.S. at 255.
Other Supreme Court cases likewise confirm that a court's supervi-
sory power cannot be exercised to dismiss indictments for govern-
ment misconduct absent a showing of prejudice to the defendants.
See, e.g., United States v. Morrison, 449 U.S. 361, 365-67 (1981)
(holding that dismissal of an indictment was an inappropriate remedy
for an alleged Sixth Amendment violation that did not prejudice the
defendant, even though the conduct of the government agents was
"egregious"); id. at 365 ("[A]bsent demonstrable prejudice or substan-
_________________________________________________________________
7 The district court in this case made no findings of prosecutorial mis-
conduct before the indicting grand jury. See Appellees' Brief at 93.
12
tial threat thereof, dismissal of the indictment is plainly inappropriate,
even though the violation may have been deliberate." (footnote omit-
ted)); cf. United States v. Payner, 447 U.S. 727, 733 (1980) (holding
that district court cannot invoke its supervisory power to circumvent
the Fourth Amendment standing rules by excluding evidence seized
illegally and in bad faith by the government in violation of a third
party's -- but not the defendant's -- constitutional rights).
We, too, have consistently recognized that an indictment may not
be dismissed for prosecutorial misconduct absent a showing that the
misconduct prejudiced the defendant. See, e.g., United States v.
McDonald, 61 F.3d 248, 253 (4th Cir. 1995) (holding that indictment
should not be dismissed for alleged prosecutorial misconduct before
the grand jury that did not prejudice the defendant because "[t]he
United States Supreme Court has recognized . . . that an indictment
may be quashed on the basis of prosecutorial misconduct, but only
where the government's misdeeds `substantially influenced the grand
jury's decision to indict, or if there is grave doubt that the decision
to indict was free from the substantial influence of such violations'"
(quoting Nova Scotia, 487 U.S. at 256) (internal quotation marks
omitted)); United States v. Lee, 906 F.2d 117, 120 (4th Cir. 1990)
("[T]he district court erred in dismissing the indictment [based on the
prosecution's failure to produce a defense witness, who was allegedly
"within government control,"] because, as the Supreme Court has
explained, `absent demonstrable prejudice, or substantial threat
thereof, dismissal of the indictment is plainly inappropriate, even
though the violation may have been deliberate.'" (quoting Morrison,
449 U.S. at 365; citing Nova Scotia, 487 U.S. at 254)); United States
v. Hastings, 126 F.3d 310, 317 (1997) (holding that, although the
government's improper refusal to comply with a discovery order war-
ranted sanctions, dismissal of the indictment was"an extreme and
inappropriate sanction" where the only prejudice to defendant was
"inconvenience and slight expense of delays").
And virtually every other circuit to consider the issue post-Hasting
and Nova Scotia has also held that an indictment may not be dis-
missed based on prosecutorial misconduct, absent a showing of preju-
dice to the defendant. See, e.g., United States v. Van Engel, 15 F.3d
623, 631-32 (7th Cir. 1993) ("A federal judge is not authorized to
punish the misconduct of a prosecutor by letting the defendant walk,
13
unless the misconduct not only violated the defendant's rights but also
prejudiced his defense, and neither condition is satisfied here.");
United States v. Santana, 6 F.3d 1, 11 (1st Cir. 1993) ("[T]aken
together, Payner, Hasting, and Bank of Nova Scotia form a trilogy
admonishing federal courts to refrain from using the supervisory
power to conform executive conduct to judicially preferred norms by
dismissing charges, absent cognizable prejudice to a particular defen-
dant."); United States v. Isgro, 974 F.2d 1091, 1097 (9th Cir. 1992)
("In its recent jurisprudence . . . the Supreme Court has moved . . .
toward a rule that a court should not use its supervisory powers to
mete out punishment absent prejudice to a defendant."); id. ("Hasting
thus unequivocally rejects the idea that a court may sanction the gov-
ernment for its misconduct without considering first the actual preju-
dice suffered by the defendant.").
The district court ignored entirely this impressive body of estab-
lished Supreme Court and appellate court caselaw, failing even to cite
to a single one of the cases discussed above. Instead, the district court
relied on a number of district court cases -- all of which predated
Hasting or Nova Scotia or both, and most of which are easily distin-
guishable from the present case in any event. See 956 F. Supp. at 657-
59, citing to United States v. Omni Intern Corp., 634 F. Supp. 1414
(D. Md. 1986) (dismissing indictment without prejudice); United
States v. Fischbach & Moore, Inc., 576 F. Supp. 1384, 1396 (W.D.
Pa. 1983) (denying defendant's motion for release of grand jury tran-
scripts because there was no evidence that the government abused the
grand jury process and "no indication of actual prejudice to defen-
dant"); United States v. Lawson, 502 F. Supp. 158, 172 (D. Md. 1980)
(dismissing indictment without prejudice); United States v. DeMarco,
407 F. Supp. 107 (C.D. Cal. 1975); United States v. Banks, 383 F.
Supp. 389 (D.S.D. 1974). Additionally, the district court relied on
three circuit court cases. Two of these predated Nova Scotia, see 956
F. Supp. at 658, citing United States v. Serubo, 604 F.2d 807 (3d Cir.
1979), and United States v. Hogan, 712 F.2d 757 (2d Cir. 1983),8 and
the other failed even to cite Nova Scotia or Hasting, see United States
_________________________________________________________________
8 Hogan is also easily distinguishable from the case at hand, because
the court in that case found that the error was not harmless: "If not for
the clear prejudice resulting from the AUSA's misconduct, appellants
might not have been indicted." 712 F.2d at 762 n.2.
14
v. Kojayan, 8 F.3d 1315 (9th Cir. 1993). 9 Obviously, none of the
cases cited by the district court can overcome the force of the control-
ling Supreme Court authority requiring the district court to find preju-
dice to the defendants before dismissing indictments based on
prosecutorial misconduct.
It is hardly surprising, however, that even in the face of these pre-
cedents, the district court declined to make any findings that the
defendants were, in fact, prejudiced. As the district court itself noted,
the bulk of the misconduct it identified related to discovery violations,
and the defendants now have all of the discovery materials to which
they could possibly be entitled -- and considerably more -- available
to them for use at their retrials. Thus, any prejudice that arguably
existed as a consequence of discovery violations is fully remedied by
this court's orders of new trials. See United States v. Borakinni, 748
F.2d 236, 237 (4th Cir. 1984) (rejecting defendant's claim that his
indictment should have been dismissed because the government failed
to produce exculpatory material at his first trial because, even "assum-
ing [defendant] was entitled to the materials at his first trial, his rem-
edy for the government's failure to furnish them was a new trial, not
an acquittal"). Similarly, any prejudice to defendants at their original
_________________________________________________________________
9 The district court also cited to McNabb v. United States, 318 U.S. 332
(1943), for the proposition that the "government's misconduct `need not
be so unfair or imprudent as to offend "due process" before exercise of
this [court's] supervisory power is appropriate.'" 956 F. Supp. at 658.
(Although the district court's citation suggests that it was quoting
McNabb, the quoted phrase does not appear in McNabb). In McNabb, the
Supreme Court exercised its "supervisory authority over the administra-
tion of criminal justice in the federal courts," McNabb, 318 U.S. at 341,
to exclude confessions obtained under oppressive circumstances in "fla-
grant disregard" of the statutory duty imposed by Congress on law
enforcement officers promptly to take a person arrested before a judicial
officer who can determine the sufficiency of the justification for deten-
tion, id. at 344-45. McNabb provides no support for the district court and
defendants' contention that the supervisory power can be exercised gen-
erally (much less exercised to dismiss indictments) to discipline the gov-
ernment in the absence of prejudice to the defendants, for the Court
clearly viewed the government tactics employed in McNabb as both prej-
udicial to the defendants and in clear "violation of [their] legal rights."
Id. at 346.
15
trials that might have resulted from the other alleged misconduct of
the government would also be fully cured by retrial.
Defendants contend, nonetheless, that the district court's dismissal
of the indictments was proper because, although the district court
found it unnecessary to address whether there was a"pattern" of pro-
secutorial misconduct, see 956 F. Supp. at 623, it in fact found a pat-
tern of misconduct, cf. id. at 657 (finding that the government's
discovery errors "amounted to a pattern of conduct"), and such a pat-
tern is sufficient alone to justify dismissal of the indictments even
without a finding of prejudice to the specific defendants before the
court. For this contention, the defendants presumably rely upon the
Court's statement in Nova Scotia that it was
not faced with a history of prosecutorial misconduct, span-
ning several cases, that is so systematic and pervasive as to
raise a substantial and serious question about the fundamen-
tal fairness of the process which resulted in the indictment.
487 U.S. at 259; see also Morrison, 449 U.S. at 365 n.2 ("[W]e note
that the record before us does not reveal a pattern of recurring viola-
tions by investigative officers that might warrant the imposition of a
more extreme remedy in order to deter future lawlessness."); Santana,
6 F.3d at 11 (noting that the Court may have left open the possibility
that the requirement of prejudice is qualified if the misconduct "is
plainly improper, indisputably outrageous, and not redressable
through the utilization of less drastic disciplinary tools"). This lan-
guage may suggest that, despite the Court's broad language and rea-
soning in Hasting and Nova Scotia, the Court has not entirely
foreclosed the possibility that a pattern of prosecutorial misconduct
could be so entrenched and pervasive that it would justify dismissal
of indictments without a finding of prejudice to defendants.10 Even if
_________________________________________________________________
10 The Supreme Court did not explicitly suggest in Nova Scotia, how-
ever, that a finding of systematic prosecutorial misconduct was an alter-
native to finding prejudice as a justification for dismissing indictments.
Rather, the Court made its statement in the context of "review[ing] the
record to set forth the basis of [its conclusion] that prejudice has not been
established," Nova Scotia, 487 U.S. at 257, suggesting that it might con-
sider, as a subset of the prejudice inquiry, whether a history of prosecu-
16
such an exception to the requirement of prejudice exists, however, we
doubt that the Court would apply it where, as here, alternative sanc-
tions -- including publicly chastising the attorneys and recommend-
ing them for disciplinary proceedings -- were available to the court
and were not employed prior to dismissal of the indictments. Cf.
Hasting, 461 U.S. at 506 n.5 (noting that the court should select
"more narrowly tailored" means to deter objectionable prosecutorial
misconduct). However, because the district court's findings can be
read to suggest a pattern of serious prosecutorial misconduct that
spans at least these several related cases, we have, at the urging of the
United States and of the defendants, undertaken a painstaking review
of those findings. And, as we explain more fully below, the record
does not even support the district court's individual "findings" of pro-
secutorial misconduct, much less that there has been an established
pattern of prosecutorial misconduct in these cases that would justify
the extraordinary sanction of the dismissal of the defendants' indict-
ments.
III.
A careful parsing of the district court's lengthy opinion reveals that
the district court relied for its scores of conclusions as to wrongful
withholding of material exculpatory information and other prosecu-
torial misconduct largely upon only the defense claims of intentional
wrongdoing, rather than upon an independent analysis of the record
evidence. That is, the district court often merely recites that the defen-
dants contended that certain materials should have been produced,
_________________________________________________________________
torial misconduct had jeopardized grand jury independence, id. at 257-
59. And, indeed, Hasting suggests that even a longstanding and perva-
sive pattern of prosecutorial misconduct does not justify dismissing
indictments without a finding of prejudice to the defendants. See 461
U.S. at 504 (rejecting the Seventh Circuit's attempt to discipline the
prosecutors in its jurisdiction by dismissing indictments despite the Sev-
enth Circuit's findings that the circuit's prosecutors generally "failed to
heed the court's prior admonitions" and engaged in the charged miscon-
duct with "disturbing frequency"); see also Morrison, 449 U.S. at 367
(characterizing the government conduct, which was insufficient to justify
dismissing the indictments without a finding of prejudice, as "egre-
gious").
17
without itself drawing conclusions as to whether, as a matter of law,
the production was required. For example, the district court does not
even purport to determine whether any of the assertedly withheld
information was material to the defense, cumulative of information
already provided, or readily available to the defendants -- all of
which are necessary inquiries under Brady and Giglio v. United
States, 405 U.S. 150 (1972). In fact, the district court only infre-
quently makes factual "findings" at all; its opinion rests mostly on
implication and innuendo, and much of this is as to matters either
extraneous to the proceedings pending before the court or beyond the
purview of the federal courts in general. And, when the court does
make such findings -- none of which are based upon credibility
assessments -- they are, almost without exception, wholly conclu-
sory: The court either does not explain the basis for the findings or
offers what can best be characterized as only a superficial and incom-
plete analysis of the record evidence. Indeed, in a number of
instances, as we explain, the district court simply erred in its assertion
that material was not produced and, in still others, contradicted its
own findings and assessments earlier in the proceedings as to whether
production was required. The same shortcomings appear in those por-
tions of the district court's opinion in which it charges the govern-
ment with misconduct other than the wrongful disclosure of
information. As with the document disclosure portions of its opinion,
the district court often did not even make factual"findings" as that
term is conventionally understood, employing mere inference and
innuendo instead.11 When the court did make findings, almost never
_________________________________________________________________
11 We discuss these instances fully below, but, for example, rather than
explicitly "finding" that Special Agent Clemens and Assistant United
States Attorney Barton perjured themselves by denying the existence of
an FBI 302 discussing the capital gains matter, the district court merely
implies such perjury by observing that the subjects of the 302 in question
were "big fish" whose mention in a 302 "would certainly have been
noticed." 956 F. Supp. at 640-41. In like fashion, the district court never
made a finding that SA Clemens perjured himself concerning the late-
night visit by him and Cobb to Smith's house; rather, the court said only
that Smith's testimony "indicate[d] that SA Clemens . . . was not entirely
truthful in his testimony." 956 F. Supp. at 648 (emphasis added). So also
did the court imply but not actually find that the government's investiga-
tion into the capital gains matter was inadequate, noting only that the
government's actions "suggest a total avoidance of pursuing information
18
are they adequately supported. And, oftentimes, the district court
itself, earlier in the litigation, had specifically rejected the claims of
prosecutorial wrongdoing that it ultimately recited as a basis for its
decision to dismiss defendants' indictments.
No doubt many of these errors may be ascribed to the simple fact
that the district court became overwhelmed by the sheer volume of
documents (and other evidence) in this dispute and by the countless
individual claims of entitlement that had to be adjudicated in the
course of these decade-long proceedings. Even the government and
the defendants themselves were overwhelmed by the magnitude of the
litigation. That the district court may have become overwhelmed by
this protracted litigation, however, did not relieve that court of the
ultimate obligation to fully support its conclusions with evidence
_________________________________________________________________
that might have proved adverse to Greer." 956 F. Supp. at 660 (emphasis
added). And, although the district court seemed convinced that Greer had
perjured himself, it was apparently unprepared to make a specific finding
to that effect, noting instead that Greer's testimony "would have to be
perjured" unless, "[a]lternatively, . . . the government . . . lied to the
court" at Greer's sentencing hearing." Id . Finally, in some instances,
although implying findings, the district court actually expressly declined
to make "specific findings" at all, as it did with regard to Cobb's truthful-
ness in testifying that United States Attorney Daniel authorized Cobb to
characterize a $10,000 payment to Senator Lindsay as attorney's fees. Id.
at 649.
When, on the infrequent occasions the court did make a factual finding
and it is possible to identify the finding as such, it is often impossible to
ascertain as to whom or to what conduct the finding was made, see, e.g.,
id. at 660 (seemingly finding that the government had suborned perjury
"in several instances," but without identifying whether the referenced
perjury was committed by Cobb only or also by Greer and Clemens);
compare id. (characterizing Cobb's testimony as"perjurious several
times over") with id. (stating that Clemens "apparently, felt he had to
play out the scenario to the end", but without characterizing testimony as
"perjurious") (emphasis added), id. (stating that Greer either perjured
himself or the government lied to court), and id . (finding that the govern-
ment "allow[ed] testimony from Cobb, Clemens and Greer that it knew
to be untrue to stand uncorrected" but without characterizing testimony
by three as "perjurious") (emphasis added).
19
from the record before it. That obligation is always incumbent upon
the court and is heaviest where, as here, the court charges a party liti-
gant with intentional wrongdoing. Upon careful review of the district
court's opinion, and of the individual charges of misconduct recited
therein, we are convinced that this obligation simply was not properly
discharged by the district court.12
_________________________________________________________________
12 At oral argument before this court, we asked defense counsel and
counsel for the government whether they would agree that the nine cate-
gories of misconduct recited by the United States at page 25 of its princi-
pal brief comprised the bulk of the district court's"findings" of
prosecutorial misconduct. Both counsel agreed that virtually all of the
misconduct grounds addressed by the district court were included within
these categories, a fact confirmed by our own exhaustive review of the
record. Accordingly, the court has generally addressed itself only to these
categories and the individual assertions of misconduct incorporated
within these categories. These categories, as they appear on page 25 of
the government's brief, are as follows:
(1) Failing to disclose FBI 302 reports in which Cobb indicated
that he had made payments to other legislators to keep them
friendly and expressed uncertainty about whether such payments
were "bribes." J.A. 234-36.
(2) Failing to disclose other exculpatory evidence, including
tape recorded conversations. J.A. 236-40, 274-77.
(3) Allowing Cobb to commit perjury by testifying, without cor-
rection, that he had never given Senator Lindsay any"bribes or
illegal money." J.A. 244-54.
(4) Presenting testimony from an FBI agent who falsely denied
that he had prepared a report relating to Cobb's payoffs to Lind-
say in connection with the Capital Gains tax, and having an
AUSA falsely represent to the court that no report of this inter-
view existed. J.A. 247-49.
(5) Placing a 2:00 a.m. telephone call to Senator Lindsay, and
then falsely testifying that the purpose of this call was merely to
warn Lindsay of upcoming negative publicity. J.A. 261-71.
(6) Permitting Richard Greer, the former head of the South Car-
olina State Development Board, falsely to deny his knowledge of
the capital gains bribery scheme to the grand jury investigating
that matter. J.A. 254-61.
(7) Failing adequately to investigate the capital gains matter,
and avoiding the pursuit of any information that could prove
adverse to Greer. J.A. 254-61, 294-95.
20
A.
The district court ultimately concluded that "much of the govern-
ment's misconduct actually stem[med] from its failure to disclose evi-
dence to the defendants." 956 F. Supp. at 659. Said the court:
The withholding of such a voluminous array of discovery
which the government had to know was exculpatory and rel-
evant to the defenses of these defendants is unprecedented
before this court. The court finds that these violations are
too numerous and too specific to certain issues to be consid-
ered simply unintentional or the result of neglect.
Id. at 658-59; see also id. at 657 (rejecting the Office of Professional
Responsibility's finding that "incremental mistakes and misjudg-
ments" by the FBI and prosecutors, and not "intentional and wrongful
decisions to conceal," caused the discovery failures).13
_________________________________________________________________
(8) Withholding evidence of Cobb's drug usage both before and
after his employment by the government. J.A. 271-74.
(9) Allowing Cobb to take control of the sting operation and to
target particular legislators in violation of regulations that
required him to act more passively. J.A. 277-80.
Br. of United States at 25.
13 Apparently to emphasize exactly how numerous the violations were,
the district court noted that "[i]n undisputed testimony . . . the court was
informed that prior to his trial Taylor received only 66 of the 550-plus-
or-minus 302s and 26 of the 227-plus-or minus tapes that are now in
defendants' possession. The number of 302s and tapes received pretrial
by the other defendants would vary only slightly." 956 F. Supp. at 657.
What the district court failed to acknowledge, however, was that -- by
its own admission -- the vast majority of the documents the government
has produced to the defendants on remand are completely and indisputa-
bly irrelevant to the defendants' cases. See J.A. at 1520 (district court
noting that "at least 90 percent" of the documents produced in camera
and later provided to the defendants "really has no relevance as to what
we are here about now"). The government's failure to produce, prior to
defendants' trials, "volumes" of irrelevant documents to which the defen-
dants were not legally entitled certainly cannot be viewed as error, much
less "egregious prosecutorial misconduct."
21
1.
Underlying much of the district court's reasoning that the govern-
ment had wrongfully withheld material exculpatory information was
the court's apparent belief that the case was tried under a so-called
"open file policy," pursuant to which the government agreed to turn
over essentially all of its documents to the defendants in return for the
comfort of knowing that neither Brady nor Giglio would be relevant
throughout the protracted proceedings. Thus, the district court began
its entire opinion detailing what it perceived to be the "egregious pro-
secutorial misconduct" as follows:
From the outset, these cases were to be tried under what is
referred to in this district as an "open file policy." During its
tenure on the bench, this court has conducted numerous
criminal trials under this policy and never before has its
interpretation been so challenged as in the government's
present arguments. As a lawyer and a judge, this court's
experience has been that "open file" meant that the govern-
ment's entire discovery file would be made available to the
defendants for their examination. . . . It has long been estab-
lished that when an "open file" policy is declared, the dic-
tates of Brady and Giglio as well as Bills of Particular,
become extraneous; all discovery material, except as limited
to privileged work product, is made available to the defen-
dants. This would have come as no surprise to USA Daniel
or his assistants, most of whom had prosecuted cases before
this court on numerous occasions.
[M]otions to dismiss for prosecutorial misconduct had been
filed by one or another of these defendants during the prepa-
ration and pendency of their original trials in 1990 and
1991. One of the primary grounds on which those motions
and the more recent motions are based is the wilful with-
holding of Brady and other exculpatory material.
956 F. Supp. at 632.
Notwithstanding these statements in the district court's order, it is
evident from the record that the government never agreed to conduct
22
these prosecutions under an "open file policy" in the sense that the
district court suggested in its order of dismissal. Not only did the
defendants each file numerous discovery requests under Brady, and
motions for bills of particular, but the district court closely supervised
the discovery, meticulously and painstakingly hearing, considering,
and adjudicating each individual dispute. Indeed, as the government
notes, the defendants themselves "essentially abandon[ ] the district
court's theory about the `open file' policy." Reply Br. of United
States at 16; see also Reply Br. of Prosecutors Amici at 4; Br. of
Appellees at 20 ("Whether or not there was an`open file policy,' the
government had clear obligations to comply with Brady v. Maryland,
Rule 16, Federal Rules of Criminal Procedure and 18 U.S.C. § 3500
(the Jencks Act).").
Both the prosecution and the defense proceeded on the understand-
ing throughout the pretrial and trial proceedings that the government
had not opened its files in the manner suggested by the district court.
The prosecution made clear early on, in September of 1990, that it
only intended to provide those materials required by rule and statute:
The Defendant's "motion for Bill of Particulars" is tanta-
mount to a general discovery request and the majority of the
matters inquired about are not properly requested by way of
a bill of particulars. However, the United States does recog-
nize its obligations to provide the Defendant with certain
information pursuant to Rule 16 of the Federal Rules of
Evidence and 18 U.S.C. 3500, and the United States intends
to conduct discovery in this case in an `open file' manner to
the extent that all matters discoverable pursuant to Rule 16
[of the Federal Rules of Criminal Procedure] and 18 U.S.C.
§ 3500 will be provided to the Defendant prior to trial.
J.A. at 317 (United States Response to Taylor's Motion for Bill of
Particulars); see also J.A. at 415-17 (reading same into record at
court's request at October 1990 hearing). At the Blanding hearing on
November 19, 1990, the government again repeated its position that
it was not proceeding generally under an open file policy:
COURT: Do you have an open file policy here?
23
[PROSECUTION]: Well, your honor, I'm always hesitant
to say that, in view of the discovery motions that I see com-
ing forward. Everything that they are entitled to discover
under Rule 16, everything under 18 U.S.C. 3500, and any-
thing the government intends to use at trial, I have produced
for them.
J.A. at 531-32. And, as late as April 1991, during the Derrick trial,
the government continued to assert that it was conducting discovery
in the case in an open file manner only "to the extent that all matters
discoverable under Rule 16 and Title 18, United States Code, Section
3500 will be provided to the defendant," J.A. at 887 (United States
Response to Defendant's Motion for Discovery and Inspection), with-
holding documents which it believed were not producible under either
the rule or the statute, id. at 888-94 (United States Response to Defen-
dant's Supplemental Motion for Discovery and Inspection).
The defense, through defendant Taylor's counsel, likewise stated
repeatedly that it did not believe that the government had opened its
files in the manner believed by the district court. During the court's
October 19, 1990, hearing, in response to the court's observation that
the defense could not have both an open file policy and a bill of par-
ticulars, Taylor's counsel, Joel Collins, stated:
I think I understand what you are saying by that, Your
Honor. Let me just say I have never believed that we were
operating under an open file policy.
J.A. at 420; see also id. at 419 (Taylor's counsel stating his under-
standing that the case was being tried under bills of particular). And,
again in October of 1994, Taylor's counsel repeated his view that
there was no open file policy:
MR. COLLINS: I have never operated on the assumption
that there was an open file policy after some time in October
of 1990 --
THE COURT: But you talked like you think it's one.
24
MR. COLLINS: We think there ought to be one now, Your
Honor.
J.A. at 1321.
Finally, it is clear from the district court's own statements and
actions that -- even if it mistakenly believed such initially -- not
even the court believed throughout the proceedings that the govern-
ment had an open file policy, or, at least an open file policy of the
kind suggested in its 1997 order. As early as 1990, after extended dis-
cussion of the issue on the record with counsel, the district court con-
cluded that, although it had been confused to that date, the parties in
fact had not agreed to an open file policy:
THE COURT: Skip on down there to where you get to the
part you are telling me that you all are having an open door
like policy and that you are not responding to his bill of par-
ticulars. What I guess I am trying to say if they have been
laboring certainly we haven't in 100 percent kept up-- we
have been kind of treating it like it was open file policy
when he keeps saying he didn't get this and that, and I have
been making you all give it to him. With a bill of particulars
we don't get involved in any of that.
MR. DANIEL (reading from prior submission by govern-
ment): . . . "[T]he United States does recognize its obliga-
tions to provide the defendant with certain information
pursuant to Rule 16 of the Federal Rules of Evidence and 18
U.S.C. Section 3500. And the United States intends to con-
duct discovery in this case in an `open file' manner to the
extent that all matters discoverable pursuant to Rules 16 and
18 U.S.C. 3500 will be provided to the defendant prior to
trial."
. . .
THE COURT: I guess what I am trying to get to, Mr. Col-
lins, if we are operating under a bill of particulars case, we
are doing things one way. I thought we were operating
25
under an open file case. Once you get the responses to that
bill of particulars, then you are stuck, he is stuck, everybody
is stuck. That is what the case is all about.
. . .
I am becoming more and more in favor of bill of particulars
myself. I know the U.S. Attorney's Office and most defen-
dant's lawyers become more and more opposed to them
because it closes out a lot of things that could come to light
with an open file policy. I guess my question to you right
now is, is it your understanding this case is being tried under
this bill of particulars?
MR. COLLINS: Yes, sir, it sure is. The government--
THE COURT: You don't have to tell me anymore.
MR. COLLINS: May I make a further response to what the
U.S. Attorney said?
THE COURT: You can make another response. I am just
trying to close it on down and narrow up what we are doing.
I wanted you to make sure you are aware as to what you
might be narrowing yourself down to. An open file, as you
know, is completely different from trying a case under a bill
of particulars.
. . .
THE COURT: What I am telling you is that by them
responding to the bill of particulars and what they told you
that is the only obligation they have in this case from their
own. That is why you have to be very particular about the
questions that you ask in your request for the bill of particu-
lars, that you just can't -- I guess you can't have an open
file policy and a bill of particulars.
MR. COLLINS: I think I understand what you are saying by
that, your Honor. Let me just say I have never believed that
we were operating under an open file policy. . . .
26
THE COURT: What I am getting at is I don't know whether
that came about as a result of me laboring under the theory
you all were working under an open file policy or whether
in the bill of particulars you particularly asked what tapes
they were going to use.
. . .
THE COURT: I guess what I am trying to tell you. I don't
know because I stopped fooling with the bill of particulars
and started treating it like it was an open file policy. They
might not have to give you those tapes. I don't know
whether they do or not. I have to go back to the bill of par-
ticulars and see what kind of parameters have been set up,
and bound to be set up for the trial of this case. That is what
the bill of particulars is all about. You asked the questions
and they give you the answers, and both sides are stuck with
that and the case goes to trial.
. . .
THE COURT: . . . I was kind of putting you on notice if
in fact some of these other things, and I don't know how
protected or unprotected they are, if we are operating under
the bill of particulars, then the court's rulings up to this
point might not necessarily have confined the government to
the bill of particulars. I may have gone outside of what they
had to do because I thought, and I guess through an error
of mine, that we were operating under an open file policy.
That is about it.
. . .
THE COURT: I may have to do some backtracking now
because I was under the opinion we were operating under
the open file policy. From here on forward I am going to
this bill of particulars. I don't think anything I ruled earlier
could have prejudiced the defendant, and I don't know what
might be coming in the future. You heard me say this more
27
than one time in other cases. I have about come to the con-
clusion it is a lot better for the court to make a case operate
under a bill of particulars rather than fool around with so
called open file policies. That way we can eliminate a lot of
Brady problems. A lot of problems we can eliminate. That
is all. I just want to know how we are going to run from here
on because this case has got to end sometime.
. . .
THE COURT: . . . My only question to you is are we oper-
ating on an open file policy or this bill of particulars which
was filed, responses to them, September 19th. It is your indi-
cation that is what we are operating on so I will operate on
that throughout the rest of the case. The government better
be prepared to have done what they said. I don't have to
worry about anymore open file questions.
J.A. at 410-27 (emphases added).
And the district court seems to have carried this understanding --
that the case was not being conducted pursuant to an open file policy
-- through the remainder of the proceedings until the time when it
entered its final order of dismissal. Said the district court at the Octo-
ber 20, 1995, hearing, for example:
Now, at the very outset of this matter, and I don't want
to get involved with who it might -- but I had suggested
way back with members of the U.S. Attorney's Office that
I had the highest respect, as much as anybody I know, and
we both were of the opinion that we ought to just have
what's an open file. That's different to you than me, but we
ought to put everything out and let the defendants get what-
ever they wanted out of it and then let's get on with the case.
Well, the U.S. Attorney's Office wasn't willing to do that,
and I'm sure they had their reasons, and I wasn't going to
order them to do such a thing, because, you know, I have
never ordered anybody to have an open file. It seems to me
28
if they want to file bills of particulars and fool around with
them all for months at a time, but it looks like we're work-
ing more and more towards me having to do some sort of
thing of that nature.
J.A. at 1935-36 (emphasis added).
Accordingly, the record -- indeed, the court's own statements --
simply does not support the district court's inexplicable conclusion
that the parties had proceeded under a full open file policy from the
outset of the case.
2.
The first specific example of egregious prosecutorial misconduct
cited by the district court was the alleged improper withholding of
three FBI 302s prepared by Special Agent Clemens and dated June
14, 1989, June 22, 1989, and July 26, 1989, in which Cobb said that
he had made payments to many South Carolina legislators over the
years other than defendants Taylor, Blanding, Gordon, Derrick and
Long, but refused to characterize those payments as"bribes." 956 F.
Supp. at 632-34. The June 14, 1989, FBI 302 states:
COBB related that in regards to giving money to State Leg-
islators, he routinely gives two or three hundred dollars to
some just to keep them friendly toward him. . . . COBB
stated that TEE FERGUSON, CHARLES A. HARVIN, III
and DONNA MOSS were among those who he would give
money. COBB indicated this money was not paid for any
specific return benefit other than having someone friendly to
him on whom he could call.
The June 22, 1989, FBI 302 states in pertinent part:
RONALD L. COBB provided a 1989 South Carolina Legis-
lative Manual in which he had checked off all those legisla-
tors to whom he had paid money. When asked if these were
bribe type payments or campaign contributions COBB
replied, "That's a hard question to answer." COBB was then
29
asked if those checked off were persons he had given two,
three, or four hundred dollars to for no specific reason other
than to maintain favorable contact with COBB. COBB indi-
cated that this was the case, and indicated he would give the
money to the legislator and that was it. If the individual then
wanted to claim it as a campaign contribution and report it
or just stick it in his pocket, that was of no concern to
COBB.
Finally, the July 26, 1989, FBI 302 similarly reads:
COBB was asked about the manner in which he would pay
legislators several hundred dollars. COBB stated that this
was sometimes accomplished with cash, and sometimes by
check, either from his business or personal account. COBB
advised that sometimes payments were made at official fund
raisers and sometimes in a social setting as a token of appre-
ciation for support on something. COBB stated that some-
times a legislator will drop a hint that money is tight and
that they could use some cash. COBB added that if it was
someone who was friendly toward his interests he would
take care of them with a few hundred dollars. COBB
emphasized that he did not know and did not care how they
handled or reported the money. COBB's sole interest was to
gain friends and supporters of his interests.
The district court noted that the language from these three FBI 302s
was included in the FBI Columbia Office's 1989 prosecution authori-
zation proposal, which confirmed to the court that the government
"was totally familiar with the existence of these 302s," but "yet [the
government] did not turn [these 302s] over to the defendants for use
at trial." 956 F. Supp. at 634. The district court concluded that these
FBI 302s could have been used by the defendants to impeach Cobb's
testimony that his payments to them were bribes, and thus to support
their defense that the payments were in fact campaign contributions:
Evidence of how Cobb often paid various legislators a few
hundred dollars to "keep them friendly" and that it was no
concern of his how the recipients handled the monies, was
not furnished by the government so as to allow the defen-
30
dants to attempt to impeach Cobb's testimony that the pay-
ments he made to these defendants (excluding Long) were
known by him and by them to be bribes.
956 F. Supp. at 660.
At least defendant Long -- and apparently defendant Derrick, as
well14 -- received both the June 14 and the June 22 FBI 302s prior
to trial, a fact not noted by the district court in its opinion. See Br. of
Appellees at 40 (acknowledging that Long had access to the June 14
and June 22 FBI 302s). Apparently, the only one of the FBI 302s that
these two defendants did not receive was that of July 26. Thus, of the
defendants now before the court (Derrick, Long and Blanding), it
appears that only defendant Blanding failed to receive all three of
these FBI 302s.
It is doubtful whether these three FBI 302s -- which the Depart-
ment of Justice's Office of Professional Responsibility concluded
were not intentionally withheld by the prosecution but rather were not
produced by the FBI to the United States Attorney's Office -- were
even "exculpatory," or, if so, "material," and thus producible pursuant
to the requirements of Brady v. Maryland , 373 U.S. 83 (1963). The
premise of the suggestion that these documents were exculpatory
appears to be that campaign contributions cannot, as a matter of law,
be the subject of a Hobbs Act prosecution. Therefore, the argument
goes, if the defendants could -- by analogy to the payments made by
Cobb to other legislators -- show that Cobb's payments to them were
campaign contributions, their Hobbs Act prosecutions could not
stand.
However, as the Supreme Court has held, campaign contributions
may be the subject of a Hobbs Act violation, no less than any other
payments,
_________________________________________________________________
14 The government has in its files"a letter to Derrick's counsel trans-
mitting this document [the June 22, 1989 FBI-302] before his trial," and
it moved in the district court to have this letter included in the record
before this court. Reply Br. of United States at 20 n.14. The district court
has now granted that motion and, accordingly, we grant the consent
motion of the United States to supplement the joint appendix.
31
if the payments are made in return for an explicit promise
or undertaking by the official to perform or not to perform
an official act. In such situations the official asserts that his
official conduct will be controlled by the terms of the prom-
ise or undertaking. This is the receipt of money by an
elected official under color of official right within the mean-
ing of the Hobbs Act.
McCormick, 500 U.S. at 273; see also Evans, 504 U.S. at 268 ("We
hold today that the Government need only show that a public official
has obtained a payment to which he was not entitled, knowing that the
payment was made in return for official acts."); United States v.
Montoya, 945 F.2d 1068, 1074 n.2 (9th Cir. 1991) (noting in prosecu-
tion for receipt of illegal honoraria, not campaign contributions, that
"[t]he critical question is whether the payments were induced and
whether a quid pro quo exists, not how an official labels the payments
in his defense to a charge that the payments were extorted"). Because
the mere characterization of a payment as a campaign contribution
does not insulate that payment from Hobbs Act prosecution, it is diffi-
cult to discern even how the FBI 302s, reciting the frequency with
which Cobb made payments to legislators and Cobb's refusal to char-
acterize the payments he made to other legislators as either campaign
contributions or bribes, could be considered exculpatory. It is less
clear still how these documents could be considered"material," given
that they related to individuals other than the defendants, and the pay-
ments received by the defendants as quid pro quo in return for their
official votes were recorded on both videotape and audiotape.
In any event, the substance of Cobb's testimony was well known
to the defendants. Thus, the defendants were free to question Cobb as
to which individual legislators he made payments and the circum-
stances under which the payments were made.
First, each of the defendants was provided a copy of Cobb's grand
jury testimony, in which he both stated that, over the years, he had
routinely made $200-$300 payments to a number of legislators, and
declined to characterize the payments as either campaign contribu-
tions or bribes. Cobb testified before the grand jury on July 17, 1990,
for example, that he had often made payments to legislators:
32
[O]ver the years, its been very customary and not unusual
at all to give a guy a couple of hundred bucks, $300 bucks
along, because he has helped you. And sometimes he'll
come and say, look man, I'm going out. I want to do this.
Can you help me out a little bit. So that's not unusual at all.
J.A. at 2400. And during the same grand jury appearance, in response
to a question from a grand juror, he likewise declined to characterize
these payments as either campaign contributions or bribes:
Q: Is this -- do you consider that when you give [the cash]
to [the legislators], do you consider that a political contribu-
tion or a bribe when you give it to them? In other words,
when you state your case or whatever and hand them
money, do you say, this is a political contribution or a cam-
paign contribution or is this something for you?
A: In a situation like that, it's kind of understood if I pull
cash out of my pocket and give it to, Mr. Legislator, and you
put it in you pocket, then I don't know nothing and you
don't know nothing.
Id. at 2401.
In addition to receiving Cobb's grand jury testimony, the defen-
dants also received a copy of a May 1, 1989, FBI 302 in which Cobb
was reported to have said that he "ha[d] made many contributions in
the $300 to $500 range to elected officials over the years," and that
"most of these contributions would be legal in the strict sense of the
word, but his reason for making them was for favorable consideration
of his lobbying efforts." J.A. at 2177.15 Thus, it is plain that the defen-
dants were fully aware of the very same information included within
_________________________________________________________________
15 Additionally, at the February 28, 1991, evidentiary hearing on the
motions to dismiss indictments -- which was held during the Bland-
ing/Gordon trial -- Special Agent Clemens testified that he had prepared
from the legislative manual an FBI 302 listing the names of all of the leg-
islators to whom Cobb remembered making payments over the years.
J.A. at 835-36. Blanding and Gordon were therefore clearly aware of that
information prior to the conclusion of their trial.
33
the FBI 302s from a number of other sources. Indeed, that Cobb had
frequently made payments to other legislators in the past appears to
have been a fact well known to all from the inception of the prosecu-
tion.
The Supreme Court has said that "[t]he mere possibility that an
item of undisclosed information might have helped the defense, or
might have affected the outcome of the trial, does not establish `mate-
riality' in the constitutional sense." United States v. Agurs, 427 U.S.
97, 1109-110 (1976); rather, "[t]he evidence is material only if there
is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different."
United States v. Bagley, 473 U.S. 667, 678 (1985). From the forego-
ing, it is apparent that, in no sense at all, can it be said that the pro-
ceeding below would have been different had the defendants been
provided the three FBI 302s discussed.
Accordingly, because Brady did not require production of these
three FBI 302s, the prosecution's failure to produce the documents to
defendants was not error -- much less intentional misconduct.
3.
As another example of egregious prosecutorial misconduct, the dis-
trict court cited to the government's failure to produce the July 18,
1990, FBI 302s of defendant-legislators James Faber, Frank Earl
McBride, and Ennis Maurice Fant, in which each legislator character-
ized as "campaign contributions" the payments he received from
Cobb in connection with the parimutuel betting legislation. 956 F.
Supp. at 634. In a single sentence, the district court stated, without
substantive explanation, that "[e]ven had the defendants not been able
to utilize these 302s at trial as statements of unavailable witnesses . . .
it is the opinion of the court that these 302s should have been pro-
vided as relevant discovery material." Id.
As with the FBI 302s of Cobb, in which Cobb admitted making
payments to many different South Carolina legislators but refused to
characterize the payments as either campaign contributions or bribes,
it is difficult as a threshold matter even to discern the relevancy of the
Faber, McBride, and Fant 302s to defendants' Hobbs Act prosecu-
34
tions. That these three legislators regarded the payments they received
as campaign contributions, rather than bribes, would appear to be nei-
ther exculpatory nor material for the same reasons that Cobb's FBI
302s would not have been exculpatory or material. The exculpatory
and material character of these FBI 302s is diminished even further,
if not eliminated altogether, by the fact that each of the three legisla-
tors were either unindicted targets or had actually been indicted and
pled guilty at the times of the defendants' trials; thus, their testimony
that they regarded the payments they received, not as bribes, but as
campaign contributions, could hardly be considered exculpatory.
Moreover, as the district court recognized, the statements by the legis-
lators in these FBI 302s likely would not even have been admissible
at trial because they are hearsay.
4.
The district court additionally admonished the government for not
producing to the defense certain video and audio recorded conversa-
tions dated January 16, 1990, and April 5, 1990, between Cobb and
state legislator Robert Kohn, whom Cobb paid to recruit other legisla-
tors to support the parimutuel betting legislation. During the January
16 conversation, the following exchange took place between Kohn
and Cobb:
COBB: And if we make a showin' and you're gonna see
what they do, I mean, they, and they're willin' to do, they'll
do whatever I ask 'em to do.
KOHN: See, I, I think that they, we got the thing out of
committee with no one doing anything.
COBB: Yeah, yeah.
KOHN: No money, and you know, just, just doin' for the
issue. Now the Baptist Courier sent their note out last week,
I mean, and its gonna be, they're, they're gonna follow it.
So people that are under the control of Baptist Courier are
gonna run.
35
COBB: How many people do you think that we can, that
we can get the one-on-one situation with and where we give
them the right motivation, like I say, we gotta, you know,
we gotta do a good showin'.
KOHN: I'm sure we can, no, we, no I think we can do well
on that.
. . .
KOHN: Let me start, I'll start first thing in the, well hell,
I might even start tonight.
COBB: Right.
KOHN: (Unintelligible)
COBB: You know how to, I mean you know how to work
it and cover us, I mean, we don't want come [sic] over there
and say well, here, they're gonna buy the damn thing.
KOHN: No I understand.
J.A. at 2337-2340. And during the April 5 conversation, Kohn tells
Cobb:
I'm not trying to hold back, I mean I realize (unintelligible)
I ain't trying to play that game. (Unintelligible) I've been
asked for gold coins. If it doesn't look like money should be
brought up, I don't do it to hold back money, I just don't
think it's good to bring it up (unintelligible). I use (unintelli-
gible) some of them I just casual comment about a contribu-
tion to their campaign 'cause see if you have to do that I can
write a check and tell them I think their [sic] a good spirited
citizen (unintelligible).
956 F. Supp. at 635. Again without any explanation, and in a single
conclusory sentence, the district court recited merely that,
36
[t]hese tapes, as well as the numerous other audio and video
tapes furnished to the defendants on November 29, 1993,
certainly must be viewed as exculpatory evidence which
could have been used to further the defense put forth by
these defendants that they considered the monies they
received from Cobb to be campaign contributions.
Id. at 636. Presumably the district court concluded that, as legislator
Taylor had argued, the January 16 tape established that the payments
he received were not a quid pro quo for his support of the parimutuel
betting legislation because this bill had been voted out of his commit-
tees prior even to institution of the sting operation. See id. at 635. It
cannot be determined what underlay the district court's conclusion
that the April 5 tape of the telephone conversation between Kohn and
Cobb should have been produced, except that Taylor's name appeared
in the FBI 302 that reproduced the transcript of the telephone conver-
sation and it "[was] impossible for the court to ascertain whether
[Taylor] was present at the time the [quoted] statement was made to
Kohn." Id. at 635. Because Taylor's name"[did] appear in the cover
FD-302, yet he was not furnished this tape or the FD-302 and tran-
scription prior to his trial," the district court reasoned that the tape
was wrongfully withheld.16
With respect to the January 16 tape, it appears that the district court
was simply incorrect that it had not been produced by the govern-
ment. In fact, as Taylor's counsel Joel Collins candidly acknowledged
in open court, J.A. at 420, the tape had been produced for inspection
pursuant to the district court's order, but he simply had not had an
opportunity to view it.
Apart from the fact that defense counsel was provided access to the
January 16 tape, it is hard to imagine, as with the FBI 302s of Cobb
and of the three co-conspirator legislators, how this tape is exculpa-
tory or material. Even assuming that Taylor supported the parimutuel
_________________________________________________________________
16 The district court explained that it was reasoning primarily from the
submissions made by Taylor, Blanding, and Gordon, and that "some,
although by no means all, of the previously withheld evidence was avail-
able to [Derrick] and defendant Long for their trials." 956 F. Supp. at 636
(footnote omitted).
37
betting legislation in committee the previous spring, see J.A. at 2338
(statement of Kohn that "nobody's really done anything since the
committee last spring voted on the thing"), it was still possible that
he violated the Hobbs Act by receiving money in return for his con-
tinued support of the legislation on the floor of the Statehouse. The
receipt of money, even for official action that would have been taken
anyway, violates the Hobbs Act, as we held in United States v.
Paschall, 772 F.2d 68 (4th Cir. 1985), cert . denied, 475 U.S. 119
(1986).
It is unclear whether the April 6 tape, in particular, was produced
to the defense, but, in any event, it was neither discoverable nor
ordered produced by the district court. Not only is the conversation
recorded on this tape not (at least not evidently) exculpatory, describ-
ing only the care with which Kohn decided whether or not to raise
with legislators the question of money in return for their votes, but the
record establishes clearly that, at the October 11, 1990, evidentiary
hearing conducted by the court, the government offered to provide
this and all other tapes to the court for its review and determination
of whether exculpatory information was included, an offer which
Taylor's counsel rejected. See J.A. at 353 (statement of Mr. DuTrem-
ble that "I am willing to provide the court with all tapes. And the gov-
ernment's position is let the court make an independent
determination, that is, as to what is or is not exculpatory"); id. at 343
(statement by Joel Collins that "I would like the record to show that
we would like to withdraw our consent to the in camera review of
potentially exculpatory evidence."). Furthermore, the order entered by
the district court at the conclusion of its full evidentiary hearing on
October 11, 1990, during which this and the other tapes were dis-
cussed, required only that the government produce for defense inspec-
tion "videotapes" in the government's possession, and thus did not
cover the April 6 tape, which was an audiotape. See J.A. at 395-97
(district court order).
5.
The district court also relied in part for its dismissal of the defen-
dants' indictments on the nonproduction of copies of nine checks
written by Cobb to various South Carolina legislators in amounts
ranging from $100-$650. The district court noted that the defendants
38
argued that copies of these checks would have "corroborate[d] the
information . . . from the FD-302s of June 14, 1989, June 22, 1989,
and July 26, 1989, and that this information would have served to
refute Cobb's testimony at the trials that the payments he made to
these defendants were definitely known by them to be bribes." 956 F.
Supp. at 634 (citation omitted).
Again, the district court offered no analysis or reasoning in support
of its conclusion that these documents should have been produced.
The court simply repeated that the defendants argued that copies of
these checks would have aided them in their defense.
We are unable to divine how these checks written by Cobb to legis-
lators other than the defendants would be exculpatory or material.
"Corroboration" of the fact that Cobb had made many payments over
the years to other legislators was unnecessary, as there was ample evi-
dence of this fact and the fact was not disputed; nor is it apparent how
these checks would have served to refute any suggestion by Cobb that
his payments to the defendants were bribes. Even the district court did
not initially order production of these checks when, in 1995, they, and
other materials, were provided to the court for in camera inspection.
When, upon subsequent motion, the court concluded that these docu-
ments "were not properly identified by the court in its original in
camera review," J.A. at 1112, 1443 n.1 (district court order of Sept.
7, 1995), and should be produced, id. at 1444, 1455, the district court
stated only that "[a]t this point, . . . the court simply states that it is
of the opinion that these documents should now be turned over to the
defendants." Id. at 1444.
6.
The district court rested its dismissal of defendants' indictments
also upon the government's failure to produce all of its files bearing
on Cobb's drug use from 1988, forward:
The full scope of Cobb's drug usage was often sought by the
defendants in their quest for discovery materials which
might impeach Cobb's testimony at defendants' trials. On
November 29, 1993, the defendants received a minimum of
six FBI documents which revealed that Cobb had been
39
under investigation by the FBI for drug violations since
early 1988, and that he had used cocaine on at least two
other previously unknown occasions in May of 1989, after
he went to work for the FBI. Several of these documents
indicate that Cobb was reputed to be a cocaine "trafficker"
and implicated others, such as Greer and Kohn.
In contrast to representations by the government on the
record in open court that they had given the defendants each
and every tape they had, some 50 audiotapes and 118 FD-
302s, which contain evidence bearing on Cobb's drug usage
and trafficking, were received by defendants in February of
1995.
956 F. Supp. at 650 (district court op.; citations omitted). As a conse-
quence of the nondisclosure of these documents, the district court
concluded,
[a]ll of the defendants . . . were unable to impeach Cobb's
testimony and confront him with the fact that he had been
involved in drugs on more occasions and over a longer
period of time than disclosed, and that his involvement in
drugs was so deep that he had earned the reputation of a
"trafficker."
Id. at 651.
These documents were, as the district court noted, not produced to
the defendants prior to their trials. Additionally, it appears that the
defense also did not receive, prior to trial, the information relating to
Cobb's drug use in May of 1989. However, each of the defendants did
receive copies of Cobb's grand jury testimony in which he detailed
his drug purchases from and for South Carolina legislators and his
personal use of cocaine during 1987-88, including his personal use of
cocaine with the individual legislators. See J.A. at 2402-16 (grand
jury testimony). Before the grand jury, Cobb testified essentially that
he had gotten together with a group of individuals every week or so
during 1987-88 to do drugs. See, e.g. , J.A. at 2414; see also id. at
2407 (statement by Cobb that "you would have a little get together
with people who use cocaine. And certainly I would use it, and I did
40
it, too."). Cobb also testified before the grand jury that he had actually
used cocaine in 1989, and as late as the latter part of 1989. J.A. at
2414-16.
As the district court noted, in addition to Cobb's substantial grand
jury testimony concerning his cocaine purchases and use, "Cobb's
drug usage on the dates of October 13, October 18 and November 18,
1989, was disclosed at the [defendants'] trials," Cobb's "indictment
for possession of cocaine on February 2, 1990, and January 11, 1991,
was returned a few days prior to the Blanding/Gordon trial," and
Cobb "pled guilty to these incidents prior to the Derrick and Long tri-
als." 956 F. Supp. at 649-50. Moreover, as the Department of Justice
explains, each defendant was also apprised of Cobb's"drug-related
arrest in 1989, including the fact that it occurred while Cobb was
attempting to purchase a kilogram of cocaine." Br. for the United
States at 65. Additionally, Cobb testified during the Blanding and
Gordon trial that he had used or provided cocaine to South Carolina
legislators 50-60 times.
Against the backdrop of the considerable amount of evidence
known by or provided to the defendants about Cobb's personal
cocaine use and distribution over the years, including use in 1989
after his employment with the government began, it is impossible to
conclude that the investigatory documents generated in 1988, prior
even to the initiation of the Lost Trust investigation, and the docu-
ments revealing only a handful of previously unknown personal uses
in May of 1989 and in 1990 and 1991, were anything but cumulative
and immaterial.
7.
The district court also concluded that the government had wrong-
fully failed to produce to defendant Taylor a December 6, 1989, vid-
eotape of legislator Kohn selling Cobb $500 worth of cocaine and
using cocaine. The district court said that it had referenced this issue
"to show the cumulative effect on the defense of potentially impeach-
able material not being fully or timely disclosed." 956 F. Supp. at
651.
Again, we are at a loss to understand the reason for the district
court's inclusion of this incident as an example of "egregious pro-
41
secutorial misconduct," because the district court itself, in its own
opinion, recognized that the prosecution had apprised Taylor's coun-
sel of the tape by letter before trial and that, as with the other video
tapes, see discussion supra, Taylor's counsel, simply had not had time
to view the tape:
Taylor concedes that he received a letter from the govern-
ment very shortly before trial telling him that the govern-
ment had evidence of Kohn giving cocaine to Cobb. He
argues that he was deeply involved in preparing for trial;
and that since this is all that he was told, he did not take the
time to pursue it.
956 F. Supp. at 651. The district court even noted that "[a]lthough it
is the government's responsibility to disclose evidence to the defen-
dants in a timely and honest manner, it is also the responsibility of the
defense to review that evidence when it is disclosed." Id. In any event,
it is doubtful whether the tape would have been admissible at trial,
given that Kohn testified at trial to his extensive drug and alcohol use.
Id. (district court noting that "Kohn's involvement in the extensive
use of cocaine and alcohol was admitted by him during the trials").
B.
Through innuendo only, and without any explanation as to any
conclusions it drew, the district court also suggested in its order that
FBI Special Agent Clemens and Ron Cobb perjured themselves con-
cerning an October 18, 1990, early-morning visit by Clemens and
Cobb to the home of Steven H. Smith, a close friend of Senator Lind-
say, and a telephone call that morning to Lindsay by Clemens and
Cobb, during which the issue of Cobb's payment of $10,000 to Sena-
tor Magnum and Senator Lindsay in connection with the Oil Jobber's
Bill was discussed. (All of the defendants knew of this visit and call
before their trials; accordingly, the issue is not disclosure, but, rather,
possible wrongdoing by the prosecution and the FBI agent involved.)
The district court intimated that Clemens lied when he testified that
the purpose of the telephone call was to inform Lindsay that Cobb
was going to testify as to the $10,000 payment the following day at
the Luther Taylor trial, and that Cobb similarly lied (at least initially)
that this was the purpose of the telephone call.
42
Clemens testified at the district court's February 28, 1991, eviden-
tiary hearing that the purpose of the visit and the telephone call was
to enable Cobb to tell Lindsay of Cobb's expected testimony about
the payment the next day so that Lindsay, Cobb's close friend, would
not first learn of the testimony through the media. J.A. at 823-25.
Clemens testified that when Cobb became too emotional to carry on
the telephone call with Senator Lindsay, he (Clemens) informed Lind-
say of Cobb's impending testimony as to the Lindsay payment. J.A.
at 839-40.
Cobb likewise testified that the purpose of the telephone call was
so that he could tell Lindsay that he was going to testify about the
payment before Lindsay learned of the testimony from the media. J.A.
at 812-14 (testimony of Cobb). Cobb denied that the purpose of the
telephone call was to determine, with Lindsay, how to characterize
the $10,000 payment. J.A. at 814-15 (testimony of Cobb).
Following this testimony by both Clemens and Cobb in February
of 1991, the district court denied Blanding's and Gordon's motion to
dismiss their indictments on the ground that Clemens and Cobb had
perjured themselves and that the purpose of the telephone call was to
coordinate witness testimony.
In April of 1991, after the Blanding and Gordon trial, when Taylor
was seeking bail pending appeal, Smith also testified to the October
18 events. He detailed his understanding that Cobb wanted to charac-
terize the $10,000 payment as a legal fee, but that Agent Clemens
insisted that he could not do so because the payment was not for legal
services. J.A. at 911-12, 917 (testimony of Smith).
This was the state of the record until four and a half years later, in
October of 1995, when Smith testified to the events again. At this
hearing, without explaining its omission from his testimony years ear-
lier, Smith testified repeatedly that Cobb had been authorized by the
United States Attorney to characterize the $10,000 payment as an
attorney's fee. J.A. at 1563-64, 1569, 1582-83 (testimony of Smith).
He also testified repeatedly that Cobb was refusing to characterize the
payment truthfully absent permission to do so from Lindsay. J.A. at
1565-66, 1569, 1583 (testimony of Smith). Cobb, too, in his testi-
mony during the same hearing, suggested that someone in the United
43
States Attorney's Office had told him that he could characterize the
payment as a legal fee. J.A. at 1617-19, 1637-41.
Based upon the latter testimony of Smith, which the district court
viewed as consistent with Smith's February 1991 testimony, and of
Cobb, the district court stated that Smith's testimony:
indicates that SA Clemens, himself was not entirely truthful
in his testimony at the hearing on February 27, 1991, when
he described the purpose of the visit [of October 18] as one
only to give information to Lindsay. Further, it indicates that
Cobb also was not truthful in his testimony at the February
1991 hearing.
956 F. Supp. at 648. The court characterized as"shocking" both the
involvement of Clemens in the early morning visit and the October
1995 testimony by Cobb that the United States Attorney had autho-
rized him to call the $10,000 payment an "attorney's fee." Id.
As to Cobb's 1995 testimony about the payment characterization,
the district court expressly declined to "make a specific finding as to
Cobb's truthfulness," and therefore a finding as to whether United
States Attorney Daniel authorized Cobb to term the payment an "at-
torney's fee." In fact, the district court said that it was "loath to give
credence to Cobb's testimony over the statements of these prosecu-
tors." Id. at 649. And, of course, not only did Smith repeatedly testify
that Clemens had insisted that Cobb tell the truth about the payment,
but Cobb never testified in any proceeding that the payment was an
"attorney's fee." Therefore, there is no basis for concluding that the
United States Attorney engaged in any wrongdoing in connection
with Cobb's characterization of the $10,000 payment to Senator Lind-
say.
44
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