ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Before Gibbons, Higginbotham and Sloviter, Circuit Judges.
This is an appeal from a denial of a petition for a writ of habeas corpus. The appellant, Michael De Martino, argues that he was denied due process because of the prosecution's suppression of evidence that allegedly would have impeached a key witness. He also argues that the state and district courts' denials of his request for an evidentiary hearing on the issues of suppressed and newly discovered evidence deprived him of due process. Because we conclude that none of the evidence, either singly or in combination, can be considered material under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1973), we will affirm.
The appellant, who was president of the city council of Elizabeth, New Jersey and chairman of the local Alcoholic Beverage Commission (ABC), was found guilty on March 29, 1973 of extortion, of accepting a fee as a public officer for the performance of a service in a criminal case, and of misconduct in office, in violation of N.J.Stat.Ann. tit. 2A §§ 105-1, 105-2 and 85-1.
The crux of the case against the appellant concerned the purpose of a payment from Joseph Del Nero. Del Nero, who owned and operated a tavern in Elizabeth, New Jersey, had previously been arrested for conducting gambling activities on the tavern premises. The arrest resulted in the suspension of the tavern's license. Del Nero thereafter approached the appellant who was chairman of the local ABC, the issuing authority of liquor licenses in the city. Del Nero gave the appellant $3,000. The State claimed that this transfer was a bribe and was understood to be so by the parties. The appellant contended that the money was actually to be used to obtain a lawyer to represent Del Nero on the gambling charge.
On May 4, 1973, following his conviction, the appellant moved for a new trial alleging insufficient evidence and an improper jury charge. That motion was denied on May 11, 1973 and the trial judge, the Honorable Chester A. Weidenburner, sentenced the appellant. The convictions for extortion and for unlawful acceptance of a fee were merged to a jail term of one to two years and a fine of $1,000. A concurrent sentence and additional fine were ordered for misconduct in office.
On June 8, 1973, De Martino filed his second motion for a new trial on the grounds of newly discovered evidence and suppression of evidence by the state. This motion was denied by the trial court on June 25, 1973. De Martino appealed both denials to the Appellate Division of the New Jersey Superior Court which affirmed both denials on February 6, 1975. The appellant's petition to the New Jersey Supreme Court for certification was denied on April 24, 1975.
On May 8, 1975, De Martino filed with the trial court his third motion for a new trial and a petition for post-conviction relief on the grounds of newly discovered evidence and suppression of additional exculpatory evidence by the State. The newly discovered evidence consisted of statements by two acquaintances of Agnes Del Nero who was a witness for the State at the appellant's trial. These acquaintances claimed that Mrs. Del Nero told them, prior to the trial, that money had been given to De Martino so that he could obtain a lawyer for her son, Joseph. The judge concluded that neither the newly discovered evidence nor the allegedly suppressed evidence was sufficiently material as a matter of law to necessitate a new trial or a reversal. He therefore denied the motion and petition on February 10, 1977. No evidentiary hearing was held. The Appellate Division of the New Jersey Superior Court affirmed the denials of the new trial motion and of the petition for post-conviction relief. De Martino's appeal and petition for certification to the New Jersey Supreme Court were denied and dismissed.
On March 22, 1978, De Martino petitioned for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in the United States District Court for the District of New Jersey. The petition was denied and this appeal followed.
The appellant first claims that the State's failure to disclose certain documents, known as the Mello documents, denied him a fair trial and thereby violated his constitutional right to due process.*fn1 We disagree. The Supreme Court held in Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1197, 10 L. Ed. 2d 215 (1973), that non-disclosure of evidence favorable to the accused violates an accused's due process rights "where the evidence is material to guilt or to punishment . . . ." The standard of materiality varies according to the character of the prosecutorial breach of duty in the non-disclosure. In United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), the Supreme Court noted three distinct classes on non-disclosures and the corresponding standards of materiality. Because the appellant here made a specific request for information, the appropriate test of materiality under Agurs is whether the Mello documents "might have affected the outcome of the trial." 427 U.S. at 104, 96 S. Ct. at 2398.
The Mello documents consist of a July 28, 1972 report of a prosecutor's investigator, William A. Mello, concerning a meeting Mello had with Louis C. Barbato, an employee of the Elizabeth Recreation Department, and a transcript of an August 2, 1972 telephone conversation between Mello and Barbato. In these conversations, Barbato states that the money was to be used to obtain a lawyer for Del Nero. The appellant argues that because Barbato's statements to Mello pre-date De Martino's indictment of August 30, 1972, they indicate that De Martino told Barbato an account consistent with the appellant's trial testimony before he knew of the indictment and before he had retained counsel.
We hold that the Mello documents were not material. First the evidence is cumulative. Two witnesses directly corroborated the substance of the appellant's testimony on the purpose of the three thousand dollars. More importantly, the appellant admitted to having received other evidence that he could have used for the same purpose as the Mello Documents.*fn2 "A conviction need not be vacated because evidence that is "merely repetitious' or "cumulative' ...