Letter from Tegeler to Court RE: Plaintiff Inclusion on Final List

    ,und that Rule
I further, that
;rrt:rl Rule 14a

la '3 violation,
:s not violated

rrot material.
, no finding on
,',r' WaS a SUI)-

Ictlge of these
,ir',1 actual sig-
of the reason-

,rrstrie,s, Inc. v.
'.S. at ---, 96
766. Although
rrt'hased by the
rl only 4.9Vo <tf

,t majority of
rl by a single
Metlfield. A
,,f this fact,

rr-nominee was
,,r' of influence
ircrr brief, con-

t he purrha^ses
'l',,rt a reasona-
,ining how to
hrghly unlikely
,ave influenced
[o vote against
i,, r.'riality does
, information is
lir"rlet"S to vote;
,r Lhe inforrna-
'lrt r/eclsion to

| ,lealing

unrl a material
,ri( to disclose
r( ,rl wherebl a

ti:rlly ownetl b-v

,r,,rrce, prOvirled
antl diagnost ic
,,, tontract be-
,'r'l)oration and
It rlfiekl's proxy

, stockholrlt,r rlf
r 1l .rLecff, Miller

t tilr'annual nr('tt.

'I

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t

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i1

and Willey, M.D.'s, P.A.) .vhich is undel a of matters important to stockholders in vot-
contractual agreement with the Compa- ing at the annual meeting.
ny, which terminates on January 18, 1975,
to provide all laboratory, pathology and
diagnostic services for the Company's fa-

GARRISON v. MAGGIO
Clte as 540 F.2d t27l (t076)

r27t

VL lmpugning the character of a
Committce nominec

reasoning contained in the opinion of the
district court. CCH Fed.Sec.L.Rep. fl 95,018
at 97,543 (M.D.Fla.1975).

As modified, we AFFIRM.

Warren GARRISON, Petitioner-Appellee,

v.

Ross MAGGIO, Jr., acting warden,
Respondent-Appellant.

No. 75-2798.

United Appeals,

0cI-21tszo'
Keheanng uro t"nF.,ng rr, uun.

- Denied Dec. 2, 1976.

State prisoner serving sentence for
armed robbery petitioned for writ of habeas
corpus. The United Stetes District Court
for the Eastern District of Louisiana, at
New Orleans, Frederick J. R. Heebe, Chief
Judge, entered a judgmcnt granting relief
and the state appealed. The Court of Ap-
peals, Gee, Circuit Judge, held that prosecu-
tor's fai makc a v<llunt

cilities. Dr. Willey owns 33%7o of the Medfielrt disseminated a letter pointing
stock of the professional association. The out the involvement of a Committec nomi-
association is obligated to provide these nee in an unrelated patent infringement
services on a 2l-hour basis and has done suit. The letter quoted from a lower court
so since 1966. This professional associa- opinion that described the person as having
tion received aggregate remuneration of infringed upon the palent of another. The
$261,914 for providing such services dur- case had been reversed on appeal and even-
ing the last fiscal year. tually settled. The settlement expressly

The following facts concerning this contrac- avoided an admission of liability.
tual arrangement were not revealed to the The district court found that the refer-shareholders: ence in the letter implicri that the nominee

1) In return for its services, the profes- was of bad moral character beeause hc was
sional corporation was guaranteed g208,500 a patent infringer. We affirm this point on
per year.

2) Medfield provided the group with all
necessary expendable and non-expendable
equipment, supplies, furniture and fixtures,
offices and laboratories, and all technolo-
gists, technical aides, secretaries, clerks and
other non-medical employees.

3) Medfield was responsible for mainle-
nance and utilities.

4) The members of the professional cor-
poration were further permitted to engage
in outside consultation and teaching.

We agree with the district court that
neither the true extent of the economic
benefit conferred on Dr. Willey nor its con-
comitant cost to the corporation was fully
disclosed.

V. Disclosure of the sale of major asscts

t?l Medfield did not reveal in its proxy
materials that it had been attempting to
sell two nursing homes. In fact the materi-
als stated that Medfield was hopeful that
the profitability of these two major facili-
ties would increase.

Medfield urges that these attempts to sell
need not be disclosed because neither the
proxy rules nor Florida law requires sharc-
holder approval of the sale of these facili-
ties. This misses the issue, which is n<rt

stockholder consent to a sale but disclosure

of
mental

of contcnts of



a

denial of due process to pctitioner where

contents of report were not in themselves

t272

excul and

Reversed.

Wisdom, Circuit Judge, filed a dissent-

ing opinion.

l. Constitutional Law e268(5)
Elements of potential due process vio-

lation arisins from prosecutorial nondisclo-

sure vary with factual circumstances.

2. Criminal Law e700
Prosecutor's failure to voluntarily dis-

close evidence favorable to defense, in ab-

sence of a specific defense request for the
undisclosed evidence or only a general re-

quest, is constitutional_rgot onlV wlpl yn-

3. Criminal Law e919(1)
Before new trial must be granted be-

cause of prosecutor's failure to make a vol-

untary disclosure of Durelv impeachin

dence, in absence of a specific defense re-

oiEst therefor. defendant must demon-

.t."t" th"t th" nu* ?id lY

would have resulted in an acqg!t!q!. Fed.

RM.S.C.A.
4. Constitutional Law e268(5)

Failure of prosecutor, in absence.of a

specific defense request therefor, to disclose

the existence of a supplementary police re-
port summarizing interview between inves-

tigating officer and armed robbery victim
did not violate defentlant's right to due

lvi

540 }'EDERAL REPORTER, 2d SERIES

5. Constitutional [,aw e268(5)
Ultimate issue with respect to determ!

nation of whether prosecutor's nondisclo'
sure of information favorable to defense\
a violation of due process is whether prose- I

cutor'somissi@ce \
to result in denial of defendant's right to I
fair trial.

Joseph B. Tosterud, Jr., William Brock-

man, Asst. Dist. Attys., New Orleans, La.,

for respondent-appellant.

F. Irvin Dymond, William L. Crull, III,
New Orleans, La., for petitioner-appellee.

Appeal from the United Statcs District
Court for the Eastern District of Louisiana

Before WISDOM, COLEMAN and GEE,

Circuit Judges.

GEE, Circuit Judge:

Warren Garrison is serving a 99-year sen-

tence in Louisiana on a 1968 conviction for
armed robbery. After exhausting his state

remedies, Garrison filed this federal habeas

corpus action. Looking simply to the

record in the state proceedings, the district
court granted relief on the theory that the

prosecutor's failure to provide Garrison

with certain material violated the require'
ments of due process enunciated in Brady v.

Maryland, 3?3 U.S. 83, 83 S.Ct. 1194, 10

L.Ed.zd 215 (1963), and Giglio v. Unitnd

States, 405 U.S. 150, 92 S.Ct. 763, 31

L.Ed.2d 104 (1972). Wr.-rriteqe'
The material which was not disclosed to

the defense was a supplementary police re-

port which sr;glg3I!431-it@!9gl be-

tween an investigating officer and the arm-

ed robbery victim. This report describes

the first of the robbers as being "about
6'1"," having a "slender build," and wear-

ing a whitc shirt and khaki pants. It also

indicatos that this roblrcr beat the victim

with :r shovcl. Thc othcr robber is dcscrib
ed as "shortcr" and "stocky." Aj-tdal-tLe '

(i3furyg His dcscription of Garrison's

clothing and his rolc in thc robbcry corre
spond to that attributed to the first suspect

in the police report. But Garrison is about

!

I

,

I

d
1

1

;

sig4-pllgi.ug nlav havc lrccn prcviously

offcretl bv victim who ma,le :tn uncr;uivocal

--r-

ide nlifi-catlon oflcf c nrla n t itt trial, si ncc

report did not raise a reasonable doubt

about defendant's guilt.

victi

t victim
somew erent version

not

about defendant's



t(5)

'r't to determi-
,r's nondisclo-
.' to defense is
,vhether prose-
:rl significance
lant's right to

Villiam Brock-
r Orleans, La.,

, L. Crull, III,
I ioner-appellee.

States District
't of [rcuisiana.

,AN and GEE,

' a 99-year sen-
conviction for

rsting his state
federal habeas

'imply to the
gs, the district

theory that the
rvide Garrison
:d the require-
ted in Brady r.
s.ct. 1194, 10

,glio v. United

,f;,f.r. '*' "
rot disclosed to
:rtary police re-

interview be-
r and the arm-

,'port describes
r lrcing "about
ikl," and wear-
pants. It also

,cat the victim
,lrber is describ
" At trial, the
'cntification of
of Garrison's
robbery corre-

lre first suspect
trrison is about

GAIIIiISON v. MAGGIO ro'lc,

five feer, five inchcs inhcight 
"rn:';il.;'l;'':';;:,;;:'"f rhg10!cnti,rr rruc-,r<,ccs, ;"builrl, so his lrhysical staturc is complt:L,,ly tir, ,.irirginconsistentwiththatassignedtothr,firsts

suspect in the police relxrrt. The victim S"
also inrlicated at trial .that he had givcn a g6 s.ct. 2392, ag l.rri.zo 342 (r97ri). Agurs<lescription of the rohbers to thc Jxrlicc employs thrcc distinct catcgorics of c.,scs t,-which parallcletl his testim,ny on thc stanrl. <lc.lincatc thc ,lu; ;;;r, issucs in this arca;[At no lroint in the rrroccerlings has eithcr Giglio f.;tlls in thc iir.st analytic catcgory,\the victim or thc oriiccr who-prcparcd thc Brarry inthe sccond, and Agurs itself is the

[lJl'""'*rv 
report ,.rffi-," ,,t;;: reading case in tr,u'ttrinr categ<.rry. It]. aLrr<r --, 96 S.Ct. 23gz.

.G"i'DespiteGarrison,scitationofGiglio,hethc report, anrl hc <lid I does not seriously argue that this case in_E""dJ-qr+q] T.h. volves a knorvini i"itu.n ro correct fatse

:: jt" iili"ry:II,il 1il,::1 ::,:li::.1,_'t:
ii:rffi1r":-:".,:1:^:h:.L 

they becamc public rential Gigtio ctaim u, ;;il;;;;: il";
l,*::n:-.:ll':1i"1 ?llln.prosecutor, tes_ ,;;;;i " i;;.;;il ," ".rJii,i';.1#,:

::tJ'#.:l :T":li:-lio-': :.'1"'r 
rrici nor .*i;; r;;';;.;;;:'.;.J':;l1i:,1'11fi:

ffiI;'ET,,In"#"":.'l;;1:*3.u l::1 l, case therefor. i,ri, *",r* ;; :;r#.J::
ii:_tTllii.:"^Y: :':ume 

without dec.i<iing Agurs_iL involves ; ;;#ffii:"i:lr_::
read the report before Garrison,s trial.z the defense.

tl] Our analysis commences with thc
recognition that the district court's assump_
tion that Brady an<l Giglio arc applicabie

I

t.

or punish-

. at =--, 96 S.Cr.

?392.3 Although the prosecutor,s concluct

On the other hand, there is convincing evidence
that the prosecutor had read tt. .uipf"_"ntu-
ry report. His notes on his own pretrial inter_
vierv with the victim conrained a notation that
a remark attributed to one of the robbers was"same as report.', The orrly one of the threepolice reports which contained this rernark was
the supplementary report at issue here. Our
statement in text is equivalent to assuming
without deciding that the state findings u." noifairly supported by the record. See 

-2S 
U.S.C.g 2251(d)(8) (1970); Tow,nsend v. Sain, 3i2u.s. 293, 313, 83 s.ct. 245, s t.aazi tto(1963). ln view of our disposition of this case,this extraordinary assunrption is justificcl be-

cause it l)ernlits us to avoitl conlplicated issues
about the duty of the police to furnish theprosecutor with all the cvidence generated by
their investigation.

3, It likervise equates a general request with the
no-request situatiolr presented here.

1

t
ri

f
i
f'{

tt
Y
I
f

a

l. Under Louisiana law, he would not have beeneititled to the police report. E. g., State v.
Cardinate, ZSt La. 827, 206 So.Za 

"SiO 
fISOS),cert. denied, 394 U.S. 432, 89 S.Ct. lt'62, 2:;

L.Ed.2d 3e8 (1969).

2. 
- 

Applying the presumption of 28 U.S.C.
S 2254(d), the district court accepted the srate
habeas court,s findings that the i.o.u.rto. JiJ
not know of the report and thai it was not in
his file before or during trial. These finJin;;
are-tainted, however, by the state 

"or.t,. rn[-
understanding of the prosecutor,s testimon),,
revealed by its incorrect statement that theprosecutor testlfied he hacl never seen the po-
lice report and did not know of its cxistt,ix,e
before or after trial. ln fact, he testitica mer.,iy
that he did not remcmber whether he had sceit
it before or whether it had been in his file. l.hei
only fact suggesting that he had not read this
report, as he read the other reports in the case,
is its.absence from the prosecutor,s file when ii
was produced years later at the state hearing.

[2,3)
closure

rs statcs that such a
is a constitutional eGr

u

tio, of a murelGnEG1 qtandard. e .u."
such as this onq whffiffiiosed evi-



'i{
;

t274 540 I.'DIJI'RAL III]PORTEII, 2d SEITIDS

dence is uscful.{ELLfor impcachmcnt, is
slgnllrcanuy drllerent lrom one lrke Agurs,
whcre the undisclosed evidence was perti-
nent to the merits of a self-defense claim.
Requiring a prosecutor to disclose substan-
Llve evloence arwavs ennances rnilGEil'
f". t*tffid maintains or incrcases the
amount of evidence available to the trier of
fact. Br,t requiring a Drosecutor to voluL

matter may actually inhibit a full presenta-
tion to the trier of fact. Tt may be thpt

nt in this
ree to

ever, that we are free after ,Agurs to hold
that an even stricter standard of materiali-

cxculpatory. The report merely iyl.iicatss
that the victim may have oreviously offered
a somewhat different version of the crimg
In view of thc facts that the victim's trial
identification was unequivocal and that the
report summarizes an interview conducted
while the victim was still in the hospital
recovering from severe injuries, the report
does not raise a reasonable doubt about
Garrison's guilt.s

I of the de

tainty about the impact of impeachment
matter means that such evidence can very
rarely clear the bar, and consequently a
prosecutor iq spld^m

it to the defense..

REVERSED.

WISDOM, Circuit Judge (dissenting):

I respectfully dissent.

First, I disagree with the strict standard
of materiality the majority promulgates for
determining whether the prosecution's non-
disclosure of "purely impeaching" evidence
requires a new trial. Second, I cannot
agree that a police report, in which the
victim and sole eyewitness of the crime
describes the robber rvho beat him in terms
drastically inconsistent with his testimon_v
at trial, is "purely impeaching" evidence.
Finally, I believe that under the proper
materiality standard, the petitioner in this
case is entitled to relief.

I.

ln United States v. Agurs, 19?6, 
-, 

U.S.

--, 96 S.Ct. 2392, 49 L.Ed.2d 342, the

overruled, it is maintainable that nothing in
ASurs permits reevaluation of the scope of the
duty to volunteer established by Davis.

5. Carrison docs not specifically scek resentenc.
ing on rhe theory that the rcpol.t is materisl ro
his Jturrishrnent. Wc intitnItc no view on t]c
nrerits of such an argumellt or orr whether
Garrison has exhausted his state remedies as to
it.

ft<futh-
1.

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Crim.P. 33 for a new trial based on newly
discovered evidence, still gives special sig-
nificance to the prosecutor's obligati<in to
serve the cause of justice because it repre-
sents a relaxation of this circuit's general
rule that newly discovered evidence useful
only for impeachment never requires a new
trial. E. g., United States v. Rodriguez,437
F.2d 940 (5th Cir. 1971).

t4l Ity this standard, Garrison's cause
must fail. But even under the reasonable-
<loubt standard of Agurs, the suplllernenta-
ry report does not pass the test. The con-
tents of the report are not in themselves

L!"/ln Daris ". Ueya, q79 F.2

J973). we anticipated Agurs' ruling that the
absence of a request is not fatal to a Brady
claim. We reversed a district court which had
relied in part on the fact that thc undisclosed
evidt'nco, including a l)rior inconsistcnr sratc-
rllsl]ll,f u prosotutior) witncss, wus useILrl only
for cross-exanrination. Although tho standard
of materiality used in Davis is inconsistcnt with
Agurs and that aspect of Davis is therefore

., 1

tI
J:

,:.

.jt

ii,

tegr imrreachment evidence about his wit-

-

"-nesses will be less ooen with the orosecutornesses wlll be less oDen wlth the orosecutor
or mav even refuse to testifv voluntarilv.
Thus, forcing disclosure of impe

om

fair trial. UniIarr tnal. Uruted States v. Agurs, supra at

-:d S.Ct. i892. The inevitable uncer-n

We believe, how-

resulted ln an acoulttal. ts