Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 83-00113-01). On Remand from the Supreme Court Submitted Under Third Circuit Rule 12(6) August 5, 1985.
Before: GIBBONS and SLOVITER, Circuit Judges and MENCER, District Judge*fn*
The Supreme Court has vacated the judgment of this court which had reversed the convictions of William H. Pflaumer and remanded for a new trial for mail fraud, 18 U.S.C. § 1341 (1982), and conspiracy to commit mail fraud, 18 U.S.C. § 371 (1982, see United States v. Oxman, 740 F.2d 1298 (3d Cir. 1984), vacated and remanded sub. nom. United States v. Pflaumer, 473 U.S. 922, 87 L. Ed. 2d 673, 105 S. Ct. 3550, 53 U.S.L.W. 3914 (1985). The Court remanded the case to us for further consideration in light of United States v. Bagley, 473 U.S. 667, 87 L. Ed. 2d 481, 105 S. Ct. 3375, 53 U.S.L.W. 5084 (1985). Our consideration must be in two parts, first as to the prior decision on the issue of Brady material, and second as to whether a jury instruction held erroneous in our prior decision also infected Pflaumer's conviction on the substantive mail fraud charges.
When the matter was previously before us, the court, by a divided vote, concluded that Pflaumer was entitled to a new trial on his conviction of 21 counts of mail fraud an one count of conspiracy to commit mail fraud because, inter alia, "the government withheld specifically requested Brady [v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963)] material." 740 F.2d at 1319. The undisclosed information at issue was that a government witness, Ralph Wille, who was implicated in a check-kiting scheme, had been given a promise of use immunity for his information and testimony "relative to the federal investigation into certain activities of Charles Gillan [one of the co-defendants in this indictment] and others [conceded to include Pflaumer] during the period between June 2, 1978 and December 1979." 740 F.2d at 1301-02 n.3 (quoting agreement in full). Despite the government's contention that his related to a separate investigation into check-kiting, and not mail fraud, show that it applied only to the check-kiting investigation, and therefore the agreement was admissible to impeach Wille.
The majority held that this was "significant impeachment evidence" and determined its materiality under United States v. Agurs, 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976), by applying a prospective analysis. The majority stated that "the prosecutor should have appreciated that the disclosure of the existence of substantial benefits conferred on all of the government's principal incriminatory witnesses might have led the jury to doubt their truthfulness," and concluded that this gave rise to "a substantial basis for claiming materiality" of the use immunity agreement. 740 F.2d at 1317. We further held that this error was not harmless beyond a reasonable doubt. 740 F.2d at 1317-19. The government filed a petition for certiorari on this issue.
Thereafter, in United States v. Bagley, 473 U.S. 667, 87 L. Ed. 2d 481, 105 S. Ct. 3375, 53 U.S.L.W. 5084 (1985), the Supreme Court clarified the legal standard for determining whether the government's failure to disclose impeaching evidence warrants reversal of a conviction. In Bagley, the prosecution failed to turn over evidence of the government's agreement to pay the two prosecution witnesses for their cooperation. The district court found that the failure to disclose the agreements was harmless error and refused to vacate the sentence on defendant's subsequent motion brought pursuant to 28 U.S.C. § 2255. The Ninth Circuit reversed. It treated failure to disclose impeachment evidence as "more egregious" than failure to disclose exculpatory evidence, which under its view required automatic reversal. Bagley v. Lumpkin, 719 F.2d 1462, 1464 (9th Cir. 1983). In reversing the decision of the Ninth Circuit, the Supreme Court rejected any distinction between impeachment evidence and exculpatory evidence for purposes of the Brady rule. 53 U.S.L.W. at 5086.
The majority of the Court then reformulated the standard of materiality applicable to nondisclosed evidence, stating that "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." Id. at 5088 (opinion of Blackmun, J.), see also id. (opinion of White, J., concurring in part and concurring in judgment). Justice Blackmun's opinion further defined "a 'reasonable probability' as 'a probability sufficient to undermine confidence in the outcome.'" Id. (quoting Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984)).
Although the Court in Agurs had distinguished the situations in which defendant had made no request for disclosure, had made a general request, or had made a specific request, the Court held in Bagley that the announced standard for materiality was "sufficiently flexible" to cover each of these situations. Bagley, 53 U.S.L.W. at 5088. The Court remanded the case to the Ninth Circuit to determine "whether there is a reasonable probability that, had the inducement offered by the Government [to the witnesses] been disclosed to the defense, the result of the trial would have been different." Id.
Since the standard of "materiality" announced in Bagley is significantly different from the one that we previously applied in this case, we must review the record, the findings of the district court, and the contentions of the parties to determine whether, under the Bagley standard, the government's disclosure that use immunity had been granted to Wille would have engendered a reasonable probability that Pflaumer would have been acquitted.
The government's case against Pflaumer was described in the prior opinion of the court, 740 F.2d at 1300-01, 1315-19. Pflaumer was the sole stockholder of Wm. H. P., Inc. (WHP), a Philadelphia, Pennsylvania trucking corporation that purchased diesel fuel in bulk. He also owned C. Schmidt & Sons, Inc. (Schmidt's Brewery), a separate Philadelphia business. The indictment charged that Pflaumer participated in a scheme to falsify invoices to show that the trucks' diesel fuel had been delivered to WHP in Maryland and New Jersey, rather than in Pennsylvania. This falsification permitted the mailing of underreported state fuel excise taxes to Pennsylvania, where the fuel was in fact delivered, and the mailing of false claims for road use credits to Maryland and New Jersey, where in fact the fuel was not delivered and used. Co-defendants with Pflaumer at trial were Harold Oxman, a salesman for Park Oil Co., and Raymond Hill, manager for WHP's Philadelphia terminal. Pflaumer, Oxman and Hill conceded that there was such a scheme, but denied that they participated, instead attributing it to the defendants who had pled guilty, Charles Gillan, President of WHP, and John Luciano, owner of United Fuel Oil and Burner Co., as well as others.
Pflaumer was implicated in the tax fraud scheme by the testimony of a number of witnesses. Frank Jock, a convicted defrauder and the President of Park Oil Co., a fuel oil supplier, testified under an agreement with the government for preferential treatment with regard to his imprisonment for those convictions. he stated that he proposed the scheme to salesman Oxman as a means to win WHP's business by offering a lower overall price for fuel, and that Oxman arranged a meeting for them with Pflaumer and go-between John McCullough, a union leader who knew Pflaumer. Jock testified that, at the meeting, he explained the "tax-angle routine" to Pflaumer found the arrangement "satisfactory because he was going to save money on the tax." App. at 137. The agreement reached by the four participants, according to Jock, was that seven of the 13 cents a gallon saved through fuel tax fraud would go to Pflaumer, four cents would to to Jock, and two cents would be divided between Oxman and McCullough. Id. At Pflaumer's request, Jock repeated the proposed scheme to Gillan, President of WHP, who then directed Jock as to the billing particulars. Park Oil thereafter began receiving fuel orders from WHP. App. at 138-40. Jock then described the operation of the false invoicing scheme for fuel that Park Oil delivered to WHP's Philadelphia terminal but designated on invoices as for WHP in Maryland and New Jersey. App. at 140-45.
At one point, according to Jock, "Billy [Pflaumer] became delinquent in his payments [to Park Oil for the fuel]" and Jock discontinued paying commissions to Oxman and McCullough. App. at 148-51. Jock then told Pflaumer he was forming a new company, M & J Oil, in conjunction with his son, Michael, and Pflaumer did not "express any concern: over the use of the same billing procedures with M & J and said, "Just so everything went along the way it was going it would be fine." App. at 152-53. Jock also testified that Pflaumer, after the date of the last alleged mailing late in 1979, asked Jock and his son, Michael, to destroy invoices to conceal the tax fraud from state auditors. App. at 159-61. Jock protested that such action should be accompanied by increased business from WHP, and, according to Jock, Pflaumer said he would "see about getting [his son] some business." App. at 160.
Michael Jock's testimony corroborated his father's testimony that Park Oil and M & J Oil falsified invoices under the tax fraud scheme as instructed by Hill. App. at 410, 413-20. Michael Jock also testified that Pflaumer called him to alert him about a state tax audit and to put his accountants in touch with WHP's employee, Abe Siegel. App. at 456-65. He also gave testimony that supported an inference that Pflaumer knew federal excise taxes were not being paid. App. at 421-24, 530.
John Luciano, President of United Fuel Oil and Burner, testified that Oxman and McCullough had met with him, presumably about the time that Frank Jock ceased paying them commissions, to propose that his company become WHP's fuel supplier, using the same tax fraud scheme. Luciano testified that he met with Raymond Hill to discuss arrangements for delivery of destination in the invoices. App. at 592-95. Oxman brought Luciano to meet Pflaumer, who asked Luciano if he "worked everything out with Ray," and who told him, "Keep your nose clean and don't fuck up. We have a good arrangement." App. at 597. United Fuel thereafter began to deliver fuel to WHP, falsely showing that the deliveries were made to Maryland and New Jersey.
Further corroborating testimony came from William Holton, a former accountant for WHP, who testified that he had asked to have Pflaumer's signature on some of the (falsified) tax returns, and that these returns were given to him signed by Pflaumer. App. at 875-79. A Pennsylvania tax auditor testified that he had audited WHP's fuel tax returns beginning in December 1979, had been shown only a fraction of the true invoices, but had been told by Pflaumer, after confronting him, that he had been given "all that were available, all that there were," App. at 950-51. The government introduced into evidence false returns signed by Pflaumer that were not shown to the auditors but were produced by WHP in response to the federal grand jury subpoena.
This brings us to the testimony of Ralph Wille, the comptroller of WHP, who was the witness as to whom the Brady violation is claimed. As our prior opinion makes clear. Wille's most important testimony for the government was that Pflaumer had an active role in WHP's financial affairs, 740 F.2d at 1316, although he also stated that Pflaumer's "primary interest was in the operation of the brewery, Schmidt's Brewery." App. at 860. Wille testified that Pflaumer was aware of all checks paid and "pretty much directed the company . . . . from the financial end." App. at 859-61. He further testified that both he and WHP's office manager met frequently with Pflaumer to discuss "the financial end" of the business and the checks that were to be written. App. at 861. Although Wille testified as to Pflaumer's active role in WHP, he directly implicated only Gillan in the tax fraud scheme in that Gillan had provided Wille with an explanation for discrepancies in the fuel tax reports. App. at 865-67, 869. This testimony was consistent with both the prosecution and defense theories that Gillan was directly in charge of the day-to-day acts of putting the scheme into operation. The parties differed, of course, as to Pflaumer's role in the scheme. Wille's testimony certainly can be viewed as tending to rebut Pflaumer's defense that he did not participate in the daily role of WHP's financial affairs.
Wille's testimony as to Pflaumer's active role in running WHP was partially corroborated by the above-described testimony of various witnesses who testified to Pflaumer's actions in choosing WHP's fuel suppliers, in hiring its accounting employees, in signing tax returns, in meeting with a tax auditor, in agreeing to the tax fraud scheme, and in seeking to conceal evidence from state auditors. In addition, Delores Lyons, Officer Manager for WHP, corroborated Wille's testimony that she would discuss operations and the "financial end of the business" with Pflaumer, App. at 734, although she also testified that Gillan "was responsible for the running of the organization," App. at 733. Robert Gould, a former WHP accountant, also testified that he had discussed "the financial end" of WHP's business with Pflaumer. App. at 918.
As we noted in our prior opinion, in response to defense requests for material relating to prosecution witnesses, including all agreements, the government disclosed the prior criminal records of Luciano and Frank Jock and the agreements made for their "truthful cooperation", 740 F.2d at 1301. The defense vigorously cross-examined Frank Jock, suggesting that he had implicated Pflaumer only in order to secure a transfer for himself to a minimum-security prison, as well as a reduction in sentence and a favorable parole recommendation. App. at 270-75. Luciano was similarly cross-examined as to, inter alia, a series of false statements and reports he made, a series of bad acts, and as to his agreement to plead guilty to only a single count of conspiracy in this case and another single count of evading Federal Excise Tax and the government's agreement not to recommend imprisonment. There was no impeaching cross-examination of Wille.
Pflaumer did not testify. His defense was based on the testimony of three witnesses, Jacqueline Branson, his secretary, William T. Elliott, the president of Schimdt's, and co-defendant Hill. Branson testified that she observed part of the meeting around November 1976 between Pflaumer, Jock. Oxman and McCullough, at which the government contends Pflaumer's participation in the conspiracy began, because her desk was in that room. She testified that the meeting involved Jock's and Oxman's interest in supplying heating fuel for Schmidt's. App. at 1251-52. On cross-examination, she testified that she was not sitting at the table with the men and that she received frequent phone calls during that meeting. She also conceded on cross-examination that McCollough was the president of the roofer's union, which has nothing to do with Pflaumer's company. On redirect, she stated that McCullough was "a good will ambassador to numerous charities" and was a regular visitor. App. at 1261. She also stated that she did not overhear any conversation relating to fuel taxes at that meeting. Id. On re-cross, she conceded that McCullough "wasn't there for charity on that day." App. at 1262.
Elliott, the president of Schmidt's, testified contrary to Wille that Pflaumer spent nearly all his time running the brewery and had delegated the running of WHP to Gillan. App. at 1271.
Co-defendant Hill testified, describing Gillan as the active figure in WHP's affairs, including arranging for fuel oil suppliers. However, on cross-examination, Hill conceded that he had "no knowledge one way or the other about Mr. Pflaumer's involvement in the financial end" of WHP's business or as to "what Mr. Pflaumer told Mr. Gillan to do." App. at 1233.
The government's closing argument to the jury did not mention Wille's testimony, focusing instead on the directly incriminating testimony of Frank Jock, and inferences that it requested the jury to draw from (1) Pflaumer's meeting with Jock, Oxman and McCullough to decide to replace WHP's established fuel suppliers with Jock's company, App. at 1299-1306, and (2) Pflaumer's failure to produce to state tax auditors invoices which the company had. App. at 1313-18. The government then recounted as corroboration for Jock's story the testimony of Michael Jock, the Pennsylvania tax auditor, John Luciano, and WHP's accountants. App. at 1325-30. The government's theory was not that Pflaumer directed every aspect of the scheme, or that his general involvement with WHP was so close that the jury should infer his participation in the tax fraud, but that Pflaumer had agreed to set the specific tax fraud scheme in motion and had withdrawn from direct involvement in the details, except when the scheme was later threatened by such developments as state tax audits and threats of non-cooperation from his co-conspirators.
Counsel for Pflaumer sought to disassociate him from the acts of Jock, Luciano, and Gillan, emphasizing Jock's and Luciano's motives to lie in order to secure, respectively, release from prison and favorable prosecution treatment. The defense recounted the favorable testimony of several witnesses that showed Pflaumer as cooperating with the grand jury, as interested only in a business deal for cheaper fuel, and as involved for virtually all of his time in the affairs of Schmidt's Brewery. Pflaumer's counsel relied on and emphasized the testimony of Wille to support his theory that Gillan was the culprit. App. at 1363.
The jury convicted Pflaumer on all 21 counts of mail fraud and on the one count of conspiracy. The jury also convicted co-defendant Oxman, but acquitted co-defendant Hill. After counsel learned by happenstance on June 15, 1983, the day after the jury verdict, that the government failed to disclose that it had agreed to give Wille use immunity as set forth above, Pflaumer filed a motion for a new trial contending, inter alia, that the suppressed agreement between the government and Wille was material evidence that should have been disclosed. The district court ruled against Pflaumer on all contentions concluding that Wille's testimony was "merely cumulative" of other testimony at trial. App. at 1672. The district court stated the standard was whether the "suppressed evidence might have affected the outcome of a trial," App. at 1671, or whether it "is reasonably likely to have changed the jury's judgment." App. at 1672. Under this standard, the court concluded that the non-disclosure would not have affected the outcome of the trial. App. at 1672. The court reasoned"
Frank Jock testified that he entered into a conspiracy with Mr. Pflaumer. John Luciano also testified as to Mr. Pflaumer's involvement. Indeed, defendants' memorandum in support of motion for judgment of acquittal acknowledges the inculpatory nature of their combined testimony. Defendants' memorandum states "Mr. Luciano doe not directly inculpate Mr. Pflaumer to the same degree that Mr. Jock does." . . . Clearly, therefore, even if the defendants had been able to impeach Wille by virtue of the immunity agreement, there was sufficient other evidence implicating Mr. Pflaumer.
The standard applied by the district court was close to that adopted by the Supreme Court in Bagley. The district court correctly focused on the reasonable probability that, had the Wille agreement been disclosed, the result would have been different. Because Pflaumer cannot attack the legal reasoning of the district court, that court's weighing of the evidence merits deference from the Court of Appeals, see United States v. Agurs, 427 U.S. at 114, especially given the difficulty inherent in measuring the effect of a non-disclosure on the course of a lengthy trial covering many witnesses and exhibits. See, e.g., United States v. Provenzano, 615 F.2d 37, 49 (2d Cir.), cert. denied, 446 U.S. 953, 64 L. Ed. 2d 810, 100 S. Ct. 2921 (1980); United States v. Librach, 609 F.2d 919, 922 (8th Cir. 1979), cert. denied, 444 U.S. 1080, 62 L. Ed. 2d 764, 100 S. Ct. 1032 (1980); Skinner v. Cardwell, 564 F.2d 1381, 1388 (9th Cir. 1977), cert. denied, 435 U.S. 1009, 56 L. Ed. 2d 392, 98 S. Ct. 1883 (1978).
Even on a completely independent review of the record, however, we would reach the same conclusion. The jury was presented with substantial evidence of Pflaumer's guilt, both direct and circumstantial, from multiple and corroborating sources. Wille's testimony was largely supported by that of other witnesses, although he was the only witness stating that Pflaumer directly most of WHP's financial activities and controlled its payment of checks. Moreover, this testimony, even though it supported an inference that Pflaumer must have participated in the tax fraud scheme, was by no means as important to the prosecution as was the more direct incriminating testimony of other witnesses. Wille was not the sole witness supporting the prosecution case, compare United States v. McCrane, 547 F.2d 204, 206 (3d Cir. 1976) (per curiam), nor one of only two incriminating prosecution witnesses on whom the government's entire case was based, as in Bagley.
Moreover, Wille was not offered a direct benefit in return for this testimony, as were Jock and Luciano, but testified only under a grant of use immunity that was "not specific on the subject matter of the government's investigation." 740 F.2d at 1311. Although the agreement was admissible to impeach Wille, id., and may have suggested some inducement to cooperate with the prosecution in return for favorable consideration, it was surely of less direct import than prosecutorial promises of leniency and of favorable sentencing and parole recommendations.
In sum, in light of the totality of other evidence presented, the prosecution's failure to rely on Wille's testimony in closing, and Pflaumer's counsel's use of Wille's testimony in his closing as supportive of Pflaumer's defense, we conclude, as did the trial court, that there is not a reasonable probability that the result of the trial would have been different had the defense been in a position to use Wille's use immunity agreement to cross-examine him. The government's failure to disclose the immunity agreement, in the context of the facts and full record of this case, does not undermine our confidence in the verdict.
Nonetheless, we reiterate that a prosecutor's failure to disclose immunity agreements may lead to subversion of defendants' due process rights, and is incompatible with the government's obligation "to see that, so far as possible, truth emerges." Bagley, 53 U.S.L.W. at 5090 (Marshall, J., dissenting) (quoting Giles v. Maryland, 386 U.S. 66, 98, 17 L. Ed. 2d 737, 87 S. Ct. 793 (1967) (Fortas, J., concurring that we cannot hold that the district court erred in denying Pflaumer's motion for a new trial on the basis of nondisclosure of evidence.
The parties are in sharp disagreement whether our prior judgment vacating Pflaumer's convictions on all counts may be reinstated because of our prior holding on the jury instruction issue. The government contends that our holding that the jury instructions were inadequate was limited to the conviction on the conspiracy count. Pflaumer contends that he held that the conviction on the 21 substantive mail fraud counts must be overturned.*fn1 A reading of the opinion, as well as consideration of the indictment, the relevant evidence, the proffered instruction ...