525 F.

2d 262

UNITED STATES of America ex rel. Leon WASHINGTON,

Petitioner-Appellant,
v.
Leon J. VINCENT, Warden, Greenhaven State Prison,
Respondent-Appellee.
No. 248, Docket 75-2100.

United States Court of Appeals,

Second Circuit.
Argued Oct. 9, 1975.
Decided Nov. 5, 1975.

Patrick M. Wall, New York City, for petitioner-appellant.

Ralph L. McMurry, Asst. Atty. Gen. of the State of New York (Louis J.
Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz,
First Asst. Atty. Gen., on the brief), for respondent-appellee.
Before KAUFMAN, Chief Judge, and FRIENDLY and SMITH, Circuit
Judges.
IRVING R. KAUFMAN, Chief Judge:

In March, 1967 Leon Washington was convicted of first degree murder. During
the trial, Martin Anderson, a key prosecution witness who was under
indictment for three felonies, repeatedly denied that he had been offered
favorable treatment in exchange for his testimony. The prosecutor, who had
indeed promised Anderson special consideration, made no effort to correct the
perjurious testimony. That such reprehensible conduct is not only improper but
frequently results in a violation of the constitutional right to a fair trial is
established beyond dispute. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3
L.Ed.2d 1217 (1959). The difficult question we must decide is whether
Washington should not be permitted to raise such due process claims because
he and his counsel had reason to suspect the falsity of the witness's answers, but
failed to make their suspicions known. We must also, of course, determine
whether Washington's challenge to the integrity of his trial must fail because

the prosecutorial misbehavior did not affect the ultimate outcome.

2

We have concluded that Washington's petition must be granted. Although we

do not view the performance of the appellant and his counsel as a model to be
emulated, we are of the view that, under the particular circumstances of this
case, Washington may challenge the prosecutor's misconduct. We have also
determined, after a careful examination of the State trial record, that the State's
misbehavior substantially prejudiced the defendant. Accordingly, we reverse.

I.
3

To provide the necessary background for our holding, a full exposition of the
facts and procedural posture of this case is required. On February 4, 1966 at
approximately 10:45 p. m., 68-year old Max Regenstrich,1 manager of the Gates
Wine & Liquor Store in Brooklyn, was standing near the store's cash register.
Also present in the store were Sam Silver (the owner) and Silver's wife Anna.
Four individuals entered, and while one went through the motions of
purchasing a bottle of wine, the other three departed. Immediately upon paying
Silver for the wine, the "customer" drew a revolver from his pocket and
announced, "This is a stickup." He ordered the 73-year old Mr. Silver to stand
off approximately seven feet from the cash register, while Mrs. Silver fled from
the store. Regenstrich, meanwhile, lunged at the intruder with an iron pipe. The
robber thereupon shot and killed Regenstrich. The gunman escaped
immediately, disappearing before the police arrived.

Shortly thereafter, the Silvers were questioned at the scene by Detective Robert
C. Free. Their descriptions of the killer were vague. They could not recall
whether the gunman had a moustache, a beard, or was clean-shaven. Based
upon their accounts, Detective Free issued a bulletin seeking a suspect 5'4 tall,
weighing 125 pounds. Two weeks after the crime, the Silvers were asked to
make a photographic identification of the murderer. Seated together to study
the array, they jointly selected the mug shot of Leon Washington. The police
unsuccessfully attempted to locate Washington, who then surrendered
voluntarily in April, 1966. Although Washington remained in custody awaiting
trial for almost a year, the Silvers were never requested to identify Washington
at a line-up.

Washington's trial commenced on February 21, 1967. Mr. Silver testified that
the killer was somewhat shorter than the 5'6 Silver, and "a little taller" than
Regenstrich, who was 4'11 in height. In fact, Washington stood 5'91/2 and
weighed 160 pounds. The Silvers, nevertheless, pointed to Washington, who
apparently was seated at the defense counsel table, as the murderer.

Washington took the stand in his own defense and denied any involvement in
the crime.2
II.
6

Except for the testimony of one Martin Anderson, a/k/a Ali Suba, the Silvers'
testimony was the only evidence offered to connect Washington with the
robbery and murder. Anderson, an 18-year old acquaintance of Washington,
had been arrested 21/2 hours after the Regenstrich murder for possession of a
gun which proved to be the murder weapon.3 At Washington's trial, Anderson
testified that he had received the revolver from Washington. Anderson said he
had been driving with Washington and another friend on the night of the
murder. At 10:30 p. m., Anderson testified, Washington left the car and entered
the Silvers' liquor store. The witness said he heard a "pop" like the firing of a
cap pistol, after which Washington returned to the car carrying a bag filled with
cash. Washington, Anderson testified, "just kept saying he had to do it. . . . He
said he had shot the man and that, you know, the man tried to hit him with
something." Anderson related that a gun had been protruding from
Washington's pocket, which Anderson removed when Washington fell asleep in
the car. He was merely showing it to a friend in a bar, he claimed, when he was
arrested.

On cross-examination Washington's attorney, Patrick Wall, questioned

Anderson extensively to determine whether his testimony was given in return
for favorable treatment on the weapons charge or on his indictments for first
degree burglary and first degree grand larceny stemming from a June, 1966
incident. Anderson repeatedly denied that he had been promised any quid pro
quo:

8 Has any arrangement been made between you and the district attorney's office
Q.
with respect to that (gun possession) case concerning your testimony here?
9A. No, sir.
Q. Do you expect to be rewarded in some way for your testimony here?
10
A. No, sir.
11
12 Has anyone given you an indication that by your testimony here you will be
Q.
helping yourself in that case?
A. No, sir.
13

14

Further cross-examination failed to shake Anderson:

15 Do you expect to receive any favorable treatment from the district attorney for
Q.
your testimony in this trial, implicating the defendant?
A. No, sir.
16
Q. Either on the June indictment or on the other indictment?
17
A. No, sir.
18
19 Have you had any arrangements with anybody so that you will receive the benefit
Q.
of implicating this defendant?
A. No, sir.
20
21 Court: All right. That's neither nothing was said before you made the statement
The
that you talked about, when you talked to the district attorney and he asked you
about a stenographer there, was anything said before that, or was anything said after,
at either time?
The Witness: No, sir.
22
23 (By Mr. Wall, defense counsel:) At any time, sir, since February 4th of 1966, has
Q.
anyone offered you anything in return for your favorable testimony to implicate him?
A. No, sir.
24
Mr. Levine (Assistant District Attorney:) Objection.
25
The Court: Overruled.
26
Mr. Wall: I have no further questions, your Honor.
27
28

The Assistant District Attorney, Arthur Levine, remained silent during these
exchanges, except for the single objection noted. Nor did Washington, when he
took the stand, indicate that he had any reason to suspect that Anderson was
lying about not having received consideration in return for his testimony:

29 Court: Any reason you could think of why (Anderson) should try to accuse you
The
of murder?
The Witness: Well, I know he's not loved me.
30

The Court: What?

31
32 Witness: He's not in love with me.The Court: I didn't ask you that. Is there any
The
reason why he would falsely accuse you of murder?
The Witness: He could be trying to protect someone. I don't know.
33
The Court: But why you?
34
The Witness: I don't know.
35
The Court: All right.
36
37

Neither Washington nor Wall made any further attempt to challenge Anderson's
denials of receiving a promise of leniency from the prosecutor.

38

Jury deliberations commenced on March 2, 1967. After 14 hours of

discussions, the jury announced at 4:45 p. m. on Friday afternoon, March 3,
1967 that it was deadlocked. The judge thereupon told the jurors that both sides
desired to have the jury continue its deliberations and arrive at a unanimous
verdict. He went on to caution them that their verdict should be the "result of
thought, consideration and of reason and an analysis of the evidence and not
just blind stubbornness." He also advised that "if there is a minority one way or
the other (, they should) reconsider (their) positions." The jury debated for an
additional five hours before finally returning with a guilty verdict. Washington
was sentenced to life imprisonment and is currently incarcerated at Greenhaven
State Prison.

39

Washington appealed his conviction to the Appellate Division, 32 A.D.2d 613,

300 N.Y.S.2d 525 (1969), and to the New York Court of Appeals, 27 N.Y.2d
649, 261 N.E.2d 905, 313 N.Y.S.2d 869 (1970). Both courts affirmed without
opinion.

III.
40

Although not mentioned at the trial, both Washington and Wall had reason to
doubt Anderson's denials of a bargain with the prosecutor. When Washington
encountered Anderson in jail, shortly before the murder trial, Anderson
revealed that Levine had promised leniency on his gun possession indictment in
consideration for Anderson's testimony. Washington informed Wall of this
conversation, but it was not brought to the court's (or Levine's) attention before
or during the trial.4

41

Some time in 1970, following the direct appeal to the New York Court of
Appeals, Wall inspected the transcript of the proceedings on Anderson's
weapons possession charge. He discovered that the following exchange had
occurred on April 12, 1967, only one month after Washington's trial:

42 Levine: . . . I move to dismiss this indictment, and I base it upon the assistance
Mr.
that this defendant (Anderson) gave the People in securing (Washington's) murder
one conviction.
The Court: Were any promises made to him that a disposition would be made?
43
Mr. Levine: I told him several times that I would see what I could do to help him.
44
45

Wall immediately instituted a coram nobis proceeding on Washington's behalf,

and a hearing was held in February, 1971 before Hon. Miles F. McDonald, the
justice who had presided at Washington's trial. Although four years had elapsed
since Levine had promised Anderson he would recommend favorable treatment,
he continued to be evasive when questioned about his arrangement with
Anderson. He repeatedly insisted that no specific offer had been extended.
After being confronted with his dismissal statement in Anderson's case,
however, he finally conceded that a promise had been made:

46 (By Mr. Wall:) . . . You did speak with Mr. Martin Anderson and told him, to be
Q.
exact, you told him that you would try to help him in his case?A. (Mr. Levine:)
That's right.
47

Justice McDonald granted the writ of coram nobis, but did so reluctantly:

I48can say now that testimony of this trial sans the testimony of Anderson was in my
opinion sufficient to convince the jury of the guilt of this defendant beyond a
reasonable doubt, and I was convinced of his guilt beyond a reasonable doubt . . . .
.49. . Personally, I would be inclined to hold in all of these circumstances in this case,
this evidence . . . is not sufficient to warrant a reversal of the verdict granted in a writ
of coram nobis in this case because the error was a harmless error in that respect,
and I'm prevented from doing that.
50

IV.

Justice McDonald interpreted People v. Savvides, 1 N.Y.2d 554, 136 N.E.2d

853, 154 N.Y.S.2d 885 (1956) as precluding reliance on the "harmless error"
doctrine in cases where a prosecutor made no attempt to correct testimony he
knew to be false.

51

The Appellate Division, by a vote of three to two, reversed the granting of

coram nobis, 38 A.D.2d 189, 328 N.Y.S.2d 317, modified, 39 A.D.2d 726, 331
N.Y.S.2d 880 (1972). Although the majority agreed that Levine had been guilty
of "gross impropriety in withholding the disclosure of the promise made to
Anderson . . .," it held that the error was harmless:

.52. . Anderson's testimony played little, if any, part in the defendant's conviction, for
the jury was made fully aware of his prior criminal record, of the pending gun
charge and of the fact that he had consumed a large quantity of alcohol on the day of
the murder.
53

38 A.D.2d at 194-95, 328 N.Y.S.2d at 322. The majority added that

Washington had "commit(ted) perjury" in denying that he knew of any specific
reason why Anderson would accuse him of murder, 38 A.D.2d at 193, 328
N.Y.S.2d 321, and concluded that

54 ends of justice are poorly served when a conviction is set aside in a case
(T)he
where the defendant's guilt is clear beyond any reasonable doubt and where the
defendant has not been misled or deceived by the perjured testimony and had it in
his power to indicate its falsity.
55

38 A.D.2d at 194, 328 N.Y.S.2d at 322. The two dissenters disagreed with the
characterization of Washington's responses as "perjury" and felt that Savvides
prevented them from denying the writ of coram nobis on the basis of harmless
error.

56

The Court of Appeals affirmed the majority holding of the Appellate Division,
32 N.Y.2d 401, 298 N.E.2d 665, 345 N.Y.S.2d 520 (1973), despite its view that
Martin Anderson was "an important prosecution witness" who had received "at
least soft promises, and probably more. . . ." 32 N.Y.2d at 402, 298 N.E.2d at
665, 345 N.Y.S.2d at 521. The Court conceded that Levine's failure to correct
the perjury by Anderson normally would warrant reversal of the conviction, but
felt that "a very limited exception to the Savvides rule" was necessary "(w)here
. . . both the defendant and his counsel, with knowledge of the facts, stood
silently by and did nothing themselves to remedy the situation . . . ." 32 N.Y.2d
at 403, 298 N.E.2d at 666, 345 N.Y.S.2d at 522. The majority apparently
agreed with the courts below that any error had been harmless, although it did
not directly address this question.

57

In his dissenting opinion, Chief Judge Fuld recalled the language in Savvides, 1
N.Y.2d at 556-57, 136 N.E.2d at 854, 154 N.Y.S.2d at 887, that "The
administration of justice must not only be above reproach, it must also be

beyond the suspicion of reproach." He insisted that the "defense counsel and his
client were assuredly entitled to rest upon the certainty that, if the witness was
testifying falsely on so vital a matter, the prosecutor himself would speak out
and set the record straight. . . . What we declared in Savvides should not, in this
case, be watered down one drop or changed one tittle." 32 N.Y.2d at 404-05,
298 N.E.2d at 666-67, 345 N.Y.S.2d at 522-23.
58

Having exhausted available state remedies, Washington petitioned for a writ of

habeas corpus in the federal district court, pursuant to 28 U.S.C. 2254. Judge
Costantino denied the petition, finding no "constitutional error sufficient to
require the issuance of a writ of habeas corpus." The district judge "
(b)uttress(ed) this conclusion (with) the comment of Justice McDonald, who
was both the trial judge and the coram nobis judge, that he was convinced that
the evidence at the trial was sufficient to convict the relator, even without the
testimony of (Anderson)."5

V.
59

We have come to the conclusion that the district judge's decision must be
reversed. The knowing use by a state prosecutor of perjured testimony
ordinarily results in a deprivation of fundamental due process, violating the
14th Amendment and requiring a new trial. Mooney v. Holohan, 294 U.S. 103,
112, 55 S.Ct. 340, 79 L.Ed. 791 (1935) (per curiam); Napue v. Illinois, 360
U.S. 264, 269, 271-72, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Giglio v. United
States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Whether the
State solicits the false testimony or merely allows it to stand uncorrected when
it appears does not diminish the viability of this principle, Napue, supra, 360
U.S. at 269, 79 S.Ct. 1173; Giglio, supra, 405 U.S. at 153, 92 S.Ct. 763; nor
does the rule lose force because the perjury reflects only upon the credibility of
the witness. Napue, supra, 360 U.S. at 269, 79 S.Ct. 1173. A conviction
obtained through the use of testimony known by the State to be untrue must fall
if

60 false testimony could . . . in any reasonable likelihood have affected the

the
judgment of the jury . . . (or if) the false testimony used by the State in securing the
conviction of petitioner may have had an effect on the outcome of the trial.
61

Napue, supra, at 271, 272, 79 S.Ct. at 1178; Giglio, supra, 405 U.S. at 154, 92
S.Ct. at 766.

62

Although Justice McDonald and others who have passed upon Washington's
petitions have decided that the State's misbehavior in this case did not affect the

outcome of the trial, it is clear that we are required to make our own
independent examination of the record. Townsend v. Sain, 372 U.S. 293, 316,
83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Napue, supra, 360 U.S. at 271, 79 S.Ct.
1173.6 Our study of the trial transcript makes plain we cannot conclude that
Anderson's testimony could not have influenced the jury to convict
Washington. Our reasons may be set forth en bloc. We have already noted that
the jury had considerable difficulty in reaching its verdict. The Silvers'
testimony, moreover, was far from overwhelming. Mrs. Silver had a mere
glimpse of the gunman as she fled from the store, and Mr. Silver described the
killer in terms that did not match Washington's height, weight, or appearance.
Neither of the Silvers was able to recall, either immediately after the incident or
at trial, whether the perpetrator had such obvious distinguishing marks as a
moustache or a beard.
63

Anderson, by contrast, delivered the coup de gr ace, unequivocally placing

Washington at the scene of the crime with the murder weapon in his pocket, the
robbery proceeds in his hands, and a confession in his mouth. Clearly it is
reasonable to conclude that Anderson's testimony tipped the balance for this
otherwise deadlocked jury. See United States v. Lusterino, 450 F.2d 572, 575
(2d Cir. 1971).7

64

There remains, therefore, the very real possibility that Washington may have
been innocent or, at least, that the jury might not have been convinced of
Washington's guilt beyond a reasonable doubt if the promise to Anderson had
been made known. For this reason, we believe that in this case it would be
inappropriate not to permit Washington to challenge the egregious and highly
damaging prosecutorial misconduct solely because he and his lawyer may have
failed to utilize all available means for exploring the prosecutor's
highhandedness at the trial.8 A contrary decision might be indicated in a case
where the possible harm was less pronounced, particularly where promising
opportunities to resolve the issue of prosecutorial misconduct at trial were
clearly available.9

65

Accordingly, we reverse with instructions to grant the writ of habeas corpus

unless the State accords Washington a new trial within 60 days of the issuance
of the mandate herein.10

Also referred to on occasion in the record as "Regenstreich."

He was unable to offer a precise alibi, however, since he could not recall

exactly where he had been during the period February-April, 1966. He claimed
to have worked at several short-lived, unspecified jobs and to have roomed with
various unidentified friends. (Washington did recall he had temporarily stayed
with someone known to him only as "Goomy.")
3

Police Officer James O. Barrentine received a report that someone was

brandishing a revolver at the Beverly Inn in Brooklyn. When he arrived at the
scene, he located the weapon in the pocket of one Robert Lipscome, a local
storeowner known to Barrentine who explained that he had seized the gun from
Anderson. Although Anderson insisted at Washington's murder trial that the
gun had been jammed and he was merely showing it to a friend who might fix it
for him, Barrentine testified that the loaded gun was test-fired after Anderson's
arrest and found to be in working condition

Observing Levine's studied silence during Anderson's cross-examination, Wall

claims he concluded either that Washington had lied to him or that Anderson
had fabricated the story, perhaps to justify turning State's witness against his
"friend"

Judge Costantino denied the appellant's request for a certificate of probable

cause. A panel of this Court granted such a certificate on May 21, 1975

In the light of this well-established rule, it is surprising that neither party

thought it appropriate to file a copy of the trial transcript. Repeated requests to
the parties made through the Clerk's Office finally produced a copy of the trial
minutes

That the jurors had been apprised of other grounds for disbelieving Anderson's
testimony could not turn "what was otherwise a tainted trial into a fair one."
Napue, supra, 360 U.S. at 270, 79 S.Ct. at 1177; Lusterino, supra, at 575

Although it is urged that further cross-examination of Anderson was unlikely to

be productive, and that placing the prosecutor on the stand might have risked
the resentment of the jury and disaster for Washington, we are not convinced
that Washington's counsel had no other alternatives. He could, for example,
have requested a side-bar conference or an in camera proceeding at which he
could put the matter of Levine's promises directly to the prosecutor. We cannot,
therefore, adopt Chief Judge Fuld's per se reversal approach, 32 N.Y.2d at 40405, 298 N.E.2d at 666-67, 345 N.Y.S.2d at 523, for all cases

We need not tarry over the various cases cited by the State, e. g., United States
v. Soblen, 301 F.2d 236, 242 (2d Cir.), cert. denied, 370 U.S. 944, 82 S.Ct.
1585, 8 L.Ed.2d 810 (1962); Wallace v. Hocker, 441 F.2d 219, 220 (9th Cir.
1971), which stand for the principle that relief must be denied where the

defendant or his counsel knew before trial of exculpatory material they later
claimed was suppressed by the prosecution. The harm in the present case was
caused not so much by unawareness that Anderson's testimony may have been
perjured as by inability to respond effectively in view of Levine's silence.
Moreover, unlike the facts in Green v. United States, 256 F.2d 483 (1st Cir.),
cert. denied, 358 U.S. 854, 79 S.Ct. 83, 3 L.Ed.2d 87 (1958), Washington had
not overheard the actual conversation between Levine and Anderson, and thus
could not know that Anderson was engaging in anything more than "jailhouse
talk."
10

The court trying the case may extend the period for a total not to exceed 180
days from the date on which the order occasioning the retrial becomes final,
where unavailability of witnesses or other factors resulting from passage of
time shall make trial within 60 days impractical