Appeal from the United States District Court for the District of New Jersey D.C. Civil Action No. 75-297.
Seitz, Chief Judge, and Biggs and Hunter, Circuit Judges. Seitz, Chief Judge, concurring.
In this appeal, this Court is once again confronted with the application of United States v. Agurs, 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976), to a prosecutor's failure to disclose information potentially helpful to a criminal defendant.*fn1 The district court denied Marzeno's motion under 28 U.S.C. § 2255 on the ground that the undisclosed information would not have affected the jury's judgment in the prisoner's 1973 criminal case. After our review of the evidence presented at trial in conjunction with the information adduced at the section 2255 evidentiary hearing, we hold that the undisclosed information is not "material" under Agurs, and thus affirm the denial of the motion.
The prisoner was convicted on several counts of an eight count indictment, which stemmed from his alleged involvement in counterfeiting matters in 1971. He was tried along with three co-defendants in the District of New Jersey before Judge William W. Knox, visiting judge from the Western District of Pennsylvania, and a jury. On appeal, his conviction was affirmed by this court in a judgment order on January 18, 1974. United States v. Marzeno, 491 F.2d 751 (3d Cir. 1974). Marzeno brought this section 2255 motion on February 20, 1975. After an evidentiary hearing was held, Judge Meanor denied the motion in an opinion dated January 4, 1977.
Marzeno alleges three different violations of his right to a fair trial on the counterfeiting violations, all directed at alleged prosecutorial misconduct in failing to reveal information that would have impeached the credibility of the government's informant-witness, Joseph Bogdanski. Marzeno alleges that the failure to reveal the information prior to trial or when requested by defense counsel during trial violated rights enunciated in Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). The three nondisclosures related to
1) Bogdanski's participation in an Irvington, New Jersey incident in which he was investigated for allegedly passing a counterfeit bill, which later was shown to have the same serial number as one of the bills which formed the basis of the prosecution against Marzeno;
2) The intercession by a Secret Service agent, on behalf of Bogdanski, in a pending state criminal proceeding against Bogdanski in Delaware; and
3) Certain elements of Bogdanski's prior criminal record, which were not brought out by the prosecution at trial.
In this appeal, we are asked to review the claims of Marzeno as to the sentences he received upon conviction under Count I of the indictment (conspiracy to possess and utter counterfeit currency) and Count VI (transfer of approximately $95,000 of counterfeit currency on June 29, 1971).*fn2
Bogdanski's role in the investigation leading to Marzeno's arrest and at trial is critical to Marzeno's allegations of a denial of his due process right to a fair trial. Bogdanski participated in the investigation and prosecution of Marzeno and his co-defendants as an undercover informant, engaging in transactions in which counterfeit bills were passed, and reporting to Secret Service agents investigating the counterfeiting ring. He related at trial that his motivation for informing and testifying against Marzeno, who formerly had been a friend, was that he had developed a grudge against Marzeno and was willing to cooperate with federal authorities in order to exact his revenge.
Since Bogdanski's credibility has been called into question, we examine first the relevant facts of the case apart from the testimony given by Bogdanski.
On June 29, 1971, Bogdanski called Marzeno to set up a meeting for that night.*fn3 The call was recorded by the Secret Service. After the meeting was arranged, Special Agent Cavicchia of the Secret Service and other agents thoroughly searched Bogdanski's person and his car. Under surveillance by other Secret Service agents, Cavicchia traveled with Bogdanski to Marzeno's home. Cavicchia was to masquerade as the ultimate buyer of the counterfeits, with Bogdanski serving as the middleman. Bogdanski alone went into Marzeno's home, while Cavicchia remained in the car. After a short period of time, Bogdanski left the house and drove with Cavicchia to a restaurant in Maplewood, N.J. There Bogdanski met with Marzeno, away from Cavicchia. Marzeno and Bogdanski then left the restaurant in separate cars. The two were absent from the restaurant for approximately thirty minutes, and were not under surveillance. When they returned in Bogdanski's car, Bogdanski told Cavicchia that he refused to proceed with "the deal" because he felt that there was no surveillance, as had been originally planned. He also told Cavicchia the general destination of Marzeno, which was the 300 block of Sanford Avenue in Newark. After a short time at the restaurant, Marzeno and Bogdanski left again, in Bogdanski's car. At this time, there was Secret Service surveillance in the area of Newark mentioned by Bogdanski. The agents saw Bogdanski's car pull up at 379 Sanford Avenue. Marzeno got out of the car, entered the building, and was seen leaving the building carrying a small, " airline-type" bag. Marzeno got into the car with Bogdanski and the two left the location. From the time Bogdanski and Marzeno left the Sanford Avenue pickup point, the Secret Service failed to maintain surveillance on the car. Bogdanski returned to the restaurant alone. Cavicchia inspected the bag, which contained the counterfeit bills.*fn4
The gaps in the Secret Service agents' testimony and surveillance included 1) the period when Bogdanski alone entered Marzeno's home; 2) the times Bogdanski and Marzeno left the Maplewood restaurant apparently headed towards Sanford Avenue in Newark; and 3) from the time Marzeno and Bogdanski left 379 Sanford Avenue until Bogdanski reappeared at the Maplewood restaurant with the bag in his car.
At trial, Bogdanski served as a government witness. On direct, he testified that he had received money from the Secret Service for his role in the investigation. He was questioned by the government, but not cross-examined, about his prior convictions, revealing four felonies on his record. Although it was later adduced at the § 2255 hearing, at trial Bogdanski did not mention that Agent Cavicchia had traveled to Delaware during the pendency of state criminal proceedings against Bogdanski to discuss with state authorities the assistance rendered by the informant.
He further asserted that his first contact with the Secret Service was in February 1971, when he called to report his knowledge of Marzeno's counterfeiting activities (arising from an offer by Marzeno the previous month to sell counterfeit currency to ...