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January 12, 1973


John Morgan Davis, District Judge.

The opinion of the court was delivered by: DAVIS

JOHN MORGAN DAVIS, District Judge.

 Presently before the Court is the Motion for a New Trial filed by Harold Barksdale. The defendant was found guilty by a jury on September 23, 1971 on Counts 6 and 8 of aiding and abetting Nathaniel Adderly in the sale of narcotics which was in violation of 18 U.S.C. § 2 and 26 U.S.C. §§ 4704(a) and 4705(a).

 The defendant alleges that the Assistant United States Attorney, Charles B. Burr, Esquire, deceived the Court and the jury in not advising them that when a codefendant, Nathaniel Adderly, testified as a government witness against the defendant, that Adderly had been offered promises of leniency and/or inducements when he pleaded guilty. In effect, Adderly was a sham defendant against Barksdale.

 Adderly on May 10, 1971, pleaded guilty to two of the six counts that he was charged with in the Indictment. The two counts that Adderly pleaded guilty were non-mandatory counts. The other four counts were to be dismissed at the time of sentencing (Docket No. 20, May 10, 1971).

 During the trial, there were various questions that were asked of Adderly, by both counsel, of whether or not any promises of leniency or inducements had been given to Adderly for testifying against Barksdale. Adderly testified that he did not know of any promises or inducements [N.T. Trial (hereafter N.T.) N.T. 25, 75-80 and 84-85].

 On September 27, 1971 (four days after Barksdale's conviction) the government filed a Motion to Dismiss all counts of the indictment against Adderly. The reason for the government's motion was that Adderly was a second offender of the Federal Narcotics Laws, which was unknown to all counsel at the time he entered his plea, and this would not have met the requirements of Rule 11 of the Federal Rules of Criminal Procedure (See Exhibit I of Government's Answer to Defendant's Amended Motion for a New Trial). On January 26, 1972 the Court granted Adderly's Motion to withdraw his plea of guilty and Adderly pleaded not guilty to all counts of the indictment. Thereafter, on January 27, 1972 the Court granted the government's Motion to Dismiss the Indictment against Adderly.

 On May 26, 1972 a post-trial hearing was held in order to find out if Adderly had been promised any leniency or other inducements by the government. The two principal witnesses were Joseph Bongiovanni, III, Esquire, Adderly's attorney and Charles B. Burr, Esquire, the former Assistant United States Attorney who prosecuted the case against Harold Barksdale.

 Mr. Bongiovanni testified, in effect, that he had discussions with Mr. Burr in which he, Mr. Bongiovanni, wanted some concession on sentencing from Mr. Burr. Mr. Burr indicated that the government would make no recommendation as to the sentence imposed by the Court [Post-Trial Hearing on May 26, 1972 (hereafter P.T.) P.T. 14-15]. Additionally, the question of when an arrangement had been made with the U.S. Attorney's Office to dismiss the case against Adderly was brought out in direct examination of Mr. Bongiovanni (P.T. 16-21). There were two letters which were introduced, one dated August 23, 1971 (D-1) in which Mr. Bongiovanni wrote to Mr. Burr and told Mr. Burr that he would have to petition the Court for the withdrawal of Adderly's guilty plea. The other letter (D-2) dated December 29, 1972 was from Mr. Bongiovanni and addressed to this Court with a carbon copy to Thomas McBride, Esquire, Assistant United States Attorney, who was handling the case at that time. Mr. Bongiovanni said that he would file a formal motion to withdraw Adderly's guilty plea and that the U.S. Attorney's Office would not be opposed to the Motion.

 Mr. Bongiovanni could not pinpoint the exact time that an agreement between the U.S. Attorney's Office and himself had been formalized. Mr. Bongiovanni stated that the agreement had been reached sometime in the Fall, about September, October or November (P.T. 20).

 Mr. Burr testified that he did have a discussion with Mr. Bongiovanni about the Court's inability to impose a probationary sentence because of a prior conviction of a federal narcotics violation. This conversation took place around the trial of Barksdale (P.T. 31-32). Mr. Burr did not convey, at the time of Barksdale's trial, the fact that he probably would recommend the dismissal of Adderly, but he had probably spoken to Mr. Bongiovanni about the matter. At this point, Mr. Burr felt that there was no obligation on his part to notify the Court and the Jury in the Barksdale trial of the possibility of the dismissal (P.T. 37-39). On September 24, 1971, the Justice Department by oral permission allowed the U.S. Attorney's Office to dismiss Adderly's counts (See D-4, Post-Trial Hearing). Mr. Burr felt that it was more likely than not that he had not discussed the dismissal with the Justice Department in Washington prior to September 24, 1971 (P.T. 45-46).

 The defendant relies on two recent cases for his Motion for a New Trial. First, in Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), the Supreme Court held where the government failed to disclose an alleged promise of leniency made to a key witness in return for his testimony is a violation of due process because it was the prosecutor's duty to present all material evidence to the jury. The Court beginning on page 153, 92 S. Ct. on page 766 stated the basis for its holding.

As long ago as Mooney v. Holohan, 294 U.S. 103 [112, 55 S. Ct. 340, 79 L. Ed. 791] (1935), this Court made clear that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with "rudimentary demands of justice." This was reaffirmed in Pyle v. Kansas, 317 U.S. 213, [63 S. Ct. 177, 87 L. Ed. 214] (1942). In Napue v. Illinois, 360 U.S. 264 [79 S. Ct. 1173, 3 L. Ed. 2d 1217] (1959), we said, "[the] same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears." Id., at 269 [79 S. Ct. 1173 at 1177]. Thereafter Brady v. Maryland, 373 U.S. at 83 [83 S. Ct. 1194, 10 L. Ed. 2d 215 (1962)] held that suppression of material evidence justifies a new trial "irrespective of the good faith or bad faith of the prosecution." See [American] [Bar] [Association, Project on] Standards for Criminal Justice, Prosecution Function and the Defense Function, § 3.11(a). When the "reliability of a given witness may well be determinative of guilt or innocence," nondisclosure of evidence affecting credibility falls within this general rule. Napue, supra, at 269 [79 S. Ct. 1173 at 1177]. We do not, however, automatically require a new trial whenever "a combing of the prosecutors' files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the ...

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