Appeal from a judgment of the United States District court for the Southern District of New York, Whitman Knapp, Judge, granting a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982), on the ground that petitioner had been denied a fair trial under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963).
Oakes and Van Graafeiland, Circuit Judges, and Tenney, Senior District Judge.*fn1
Respondents ("the State") take this appeal from a judgment of the United States District Court for the Southern District of New York, Whitman Knapp, Judge, granting a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982). Petitioner Angelo Cantone ("Cantone") claimed below that the State's failure to disclose certain information constituted a violation of due process under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1983), and Mooney v. Holohan, 294 U.S. 103, 79 L. Ed. 791, 55 S. Ct. 340 (1935). Further, Cantone claimed that the failure to grant his motion for a mistrial also constituted a due process violation. Finding that there had, indeed, been a Brady violation in the state trial court, the district court granted the habeas petition. The district court did not reach the merits of Cantone's mistrial claim.*fn1
We agree with the district court that the State improperly withheld information specifically requested by the petitioner. We are, however, constrained to reverse on the ground that the information withheld does not meet the applicable standard of materiality. We find that there is not "any reasonable likelihood," Ostrer v. United States, 577 F.2d 782, 786 (2d Cir. 1978), cert. denied, 439 U.S. 1115, 59 L. Ed. 2d 73, 99 S. Ct. 1018 (1979), that the disclosure of this information "could have affected the outcome of the trial." Id. Therefore, we find that the nondisclosure did not deprive petitioner of due process of law, and that a writ of habeas corpus should not have issued on this ground.
The district court found that the petitioner's mistrial claim was properly before it. We disagree, and find that the petitioner forfeited this claim through procedural default in the state courts and that he did not show, under Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977), that he was entitled to relief from this forfeiture effect. Therefore, he is precluded from raising this claim in this federal habeas action.
Petitioner Cantone and two co-defendants, Alfred Gourdet ("Gourdet") and Michael Quaranta ("Quaranta"), were indicted for the sale and possession of cocaine. The purchaser was Special Agent Carliese Gordon ("Agent Gordon") who was then an undercover agent assigned to the Long Island office of the federal Drug Enforcement Administration. The sale commenced at Gourdet's home after Agent Gordon and the three defendants had gathered there. The defendants were subsequently arrested at a bank where they expected to receive payment for the cocaine.
After the trial began, defendant Gourdet was granted a severance and a mistrial. Gourdet subsequently entered into a plea, and testified as a witness for the prosecution. Cantone and Quaranta also moved for a mistrial, without success, and both were found guilty.*fn2
The testimony of the parties, including that of Cantone, revealed few factual disputes regarding the sale and arrest. The central issue was the state of mind of the defendants. Petitioner's theory of defense was that he was an innocent bystander to the sale, that he was at Gourdet's residence at the time in question in order to collect a debt owned to him by Gourdet, and that the sale was arranged exclusively between Gourdet and Agent Gordon. The State sought to prove, to the contrary, that Cantone had been fully aware of the purpose of the meeting and was instrumental in bringing the sale to fruition.
Agent Gordon, a principal witness for the prosecution, gave the following testimony. He stated that on August 22, 1977, he contacted Gourdet, whom he had met through a confidential informant, and hold him that he was interested in purchasing two kilos of cocaine. Gourdet told him that he could supply this quantity. On August 23rd, agent Gordon took Gourdet to a bank to view the money to be used in the sale, and they arranged to meet at Gourdet's house later that night to carry out the sale. Gourdet, however, subsequently cancelled the meeting because a third party -- Gourdet's "man in Brooklyn" -- was unable to meet with them as planned. The next day, Gourdet called Agent Gordon and said that his man from Brooklyn had arrived at the house, and that he had the cocaine Agent Gordon wanted.
Once at Gourdet's house, Agent Gordon was escorted to the basement where he found Cantone and Quaranta. Agent Gordon testified that Cantone was carrying a brown leather bag from which he removed a plastic bag containing a white brick. Gourdet placed a scale on the table, and Cantone and Agent Gordon weighed the cocaine. Cantone then placed the cocaine back in the brown leather bag.
Agent Gordon also testified that Cantone said he had not brought the entire amount of cocaine ordered. Cantone offered, however, to bring the rest of the order to Agent Gordon that night. Cantone also stated that once Agent Gordon was "in with the family" would take care of him.*fn3
At the outset, Gourdet reported fully on his plea and the cooperative agreement he had entered into. After he was granted a severance and a mistrial, Gourdet entered into an agreement to plead guilty with the understanding that he was to testify truthfully at trial. Gourdet was advised that further cooperation by him might lead to a reduction in his jail sentence.*fn4
Gourdet testified that in August 1977 Cantone owed him $6,000. Cantone told Gourdet that, if he wanted to be repaid, he could sell cocaine which Cantone would give him, and he could apply the profits from the sales toward satisfaction of the debt.*fn5 Gourdet's testimony regarding the transaction in question basically corroborated Agent Gordon's testimony.
Gourdet also testified that, after the defendants were arrested, Cantone told Gourdet to "keep [his] mouth shut," and to say that Cantone had been on the premises just to collect a debt of $3,000 that Gourdet owed him. On another occasion, Cantone indicated that Gourdet should fear for his life if he testified against him. Gourdet also testified that, after the trial started, Cantone told Gourdet he should leave the country, and write a letter from abroad stating that Cantone and Quaranta had nothing to do with the transaction.
On cross-examination, Gourdet testified that he had been involved in prior cocaine deals, and that he had contacts with certain deals, and that he had contacts with certain people in foreign countries who acted as "security" for drug export schemes by assuring that people involved in drug transport could enter and leave those countries without complications. He also testified that at the time of trial he was under two indictments for the sale of drugs.*fn6
Petitioner subsequently took the stand and testified that he had gone to Gourdet's house on the date in issue in order to collect $3,000 Gourdet owed him. Petitioner testified that he did not know what kind of business deal had been arranged by Gourdet, and that when he arrived in the basement of Gourdet's home, there was a paper bag on the table whose contents remained unknown to him throughout the meeting. He also stated that he had brought a leather bag with him, and that the bag contained a loaded gun. On cross-examination, Cantone stated that Gourdet had given him a gun a couple of weeks earlier, and had asked Cantone to hold it for him.
Cantone also testified on cross-examination that he had filed no income tax return during 1976 or 1977, and that during 1977 his sole source of income was selling clothes, which resulted in earnings of approximately $2,000 between January and August 1977. Cantone also testified that when he loaned Gourdet $3,000 in the spring of 1977, he (Cantone) had accumulated only $4,500.*fn7
On summation, Cantone's attorney attempted to discredit Gourdet's testimony. He stressed that, in entering into a deal with the government, Gourdet had revealed his mercenary nature and lost his credibility as a witness. Cantone's attorney also argued that Gourdet's testimony could not be trusted because the existence of the plea provided a tremendous incentive for Gourdet to provide testimony favorable to the prosecution in hope of obtaining more lenient terms. Finally, Cantone's attorney brought out that Gourdet had admitted to perjuring himself during the course of the trail.*fn8
Our central concern on this appeal is certain information which the prosecution withheld from petitioner. The information came to the attention of Cantone's appellate counsel by change, during the pendency of Cantone's appeal from his conviction.*fn9 The information withheld was described in the testimony of a government witness at an in camera hearing. This hearing was held, before the trial began, to allow the government to present evidence in support of its ;motion to close the courtroom during the testimony of Agent Gordon. Cantone and his counsel were excluded from that hearing. The record shows that Gourdet had told him -- when they ...