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November 21, 1988


The opinion of the court was delivered by: WEBER

 On January 29, 1986, Robert Maker was sentenced on the verdict of a jury for participation in a conspiracy to possess cocaine with intention to distribute. On February 24, 1987, the Court of Appeals affirmed judgment in a detailed 16 page Memorandum Opinion (No. 86-3126, 2-24-87, unpublished). 813 F.2d 398. On September 27, 1988, Maker filed in this court a Motion for New Trial and/or Evidentiary Hearing Based on Newly Discovered Evidence. The Motion is 22 typewritten pages long, most of it presenting legal citations that have little relevance to the facts here.

 To attempt to be brief defendant now argues that a government witness presented perjurious testimony and that the government was aware at the time that the testimony was perjurious, that the government withheld exculpatory material, and that the prosecuting attorney physically assaulted defendant's counsel to the extent that he was no longer effective in representing defendant at trial.

 The difficulty is that despite his 21 page motion there is no evidence to support any of his claims. There is nothing "newly discovered" in defendant's motion, and the record belies most of his contentions.

 The main contention centers around the testimony of Richard Black. Black testified at length about his drug dealings with Maker. These events occurred after the last date charged in the conspiracy count. The court admitted this testimony over objection under Fed.R.Evid. 404. The Court of Appeals affirmed the decision in admitting the evidence in an extensive discussion (see typescript Memorandum Opinion pp. 2-5).

 Defendant now claims that Black perjured himself on direct examination by stating that he did not enter into a plea agreement before he testified, whereas he and his brother had signed a guilty plea and a statement of rights on the day before he testified. This was allegedly done in Black's attorney's office in Huntingdon, Pennsylvania, with the state prosecutor who was bringing the state charges under which the Blacks were arrested.

 Defendant further alleges that the guilty plea and statement of rights "contained promises, concessions, immunity, monetary compensation that he was paid for his testimony and leniency for their cooperation."

 The trouble with this allegation is there is no evidentiary support for the existence of such a document. The United States Attorney denies knowledge of the existence of such a document and the District Attorney for Huntingdon County denies its existence and presents copies of the docket sheets for the state cases showing that no such agreement had been filed.

 The trial court and the jury were fully aware of the circumstances under which Black testified. The first four pages of the witness Richard Black's testimony (see Transcript pp. 172-176) deal with the fact that he had entered a plea to the state charges, that he had agreed to cooperate with the authorities, that he had agreed to testify at the instant federal trial and that nothing that he said to law enforcement authorities or in testifying at trial would be used against him in a federal prosecution for marijuana, and that the extent of his cooperation would be brought to the attention of the court in Huntingdon County in which he had been charged. Richard Black was further subjected to cross-examination on his understanding of the plea agreement (Testimony pp. 192-194) and the court itself questioned the witness as to his understanding of the immunity granted.

 It is clear that the court, the jury, and defense counsel were fully advised of the circumstances under which Black testified. The government fully disclosed all the details of the witness's plea agreements with both state and federal authorities. We are sure that any additional evidence thereon would be merely cumulative, and would not change the result in view of the overwhelming nature of the evidence against Maker.

 (A) Maker makes separate allegations of misconduct by the prosecutor. The first relates to the non-production of the alleged "plea agreement and statement of rights" with which we have dealt above. No such document has been produced and nothing allegedly contained therein differs from the description of his plea agreement by the witness on the stand.

 (B) Maker complains that he was not provided with Brady material consisting of 12 items of evidence relating specifically to the marijuana charges against the Blacks in Huntingdon County. The government replies that it was not in possession of any of this material at the time of Maker's trial in this court except for Maker's Exhibit 1, the photographs of the Moon Bar Ranch and the marijuana seized therefrom. It is difficult to see how any of this information could be considered Brady material. It is noted that each of these items was produced to the defense at Maker's separate trial for the marijuana offense in the Middle District of Pennsylvania, where he was convicted. Defendant was thus long aware of their existence before the present motion.

 (C) Defendant argues that the witness Ingold had provided the government with exculpatory statements to the effect that Maker was not involved with any narcotic transactions between the co-conspirators Ingold and Gesuale. Again Ingold admitted at the trial that he had falsely testified before the Grand Jury that Maker was not involved which testimony he recanted at the trial. Again, this matter was subjected to extensive examination and cross-examination at trial. Defendant raises the fact that the rap-sheet on the witness Ingold was incomplete in that it omitted two arrests not resulting in conviction. However, Ingold was subjected to extensive examination on his prior record, and even if such omission were admissible, they would only be cumulative, and could not possibly have resulted in a favorable verdict for defendant.

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