Volume 1 of 2

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.

PAUL WAYNE DERRICK,
Defendant-Appellee.

                                    No. 97-4230
DALE L. DUTREMBLE; E. BART
DANIEL; RICHARD GREER,
Amici Curiae,

and

CHARLESTON POST AND COURIER,
Movant.

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.

JEFFERSON MARION LONG, JR., a/k/a
Bud,
                                    No. 97-4231
Defendant-Appellee.

DALE L. DUTREMBLE; E. BART
DANIEL; RICHARD GREER; ALVA
TAYLOR BROWN, Personal
Representative of the Estate of
LUTHER LANGFORD TAYLOR;
NATIONAL ASSOCIATION OF CRIMINAL
DEFENSE LAWYERS,
Amici Curiae,
and

CHARLESTON POST AND COURIER,
Movant.

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.

LARRY BLANDING,
Defendant-Appellee.

DALE L. DUTREMBLE; E. BART
DANIEL; RICHARD GREER; ESTATE OF
BENJAMIN J. GORDON, JR., a/k/a B. J.
                                                   No. 97-4232
Gordon; ALVA TAYLOR BROWN,
Personal Representative of the
Estate of LUTHER LANGFORD TAYLOR;
NATIONAL ASSOCIATION OF CRIMINAL
DEFENSE LAWYERS,
Amici Curiae,

and

CHARLESTON POST AND COURIER,
Movant.

Appeals from the United States District Court
for the District of South Carolina, at Columbia.
Falcon B. Hawkins, Chief District Judge.
(CR-91-91-FBH, CR-91-384-FBH, CR-90-434-FBH)

Argued: May 7, 1998

Decided: November 23, 1998

                  2
Before WIDENER, NIEMEYER, and LUTTIG, Circuit Judges.

_________________________________________________________________

Vacated and remanded by published opinion. Judge Luttig wrote the
opinion, in which Judges Widener and Niemeyer joined. Judge Wid-
ener wrote a separate concurring opinion.

_________________________________________________________________

COUNSEL

ARGUED: Elizabeth Dorsey Collery, Appellate Section, Criminal
Division, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C., for Appellant. Dale L. DuTremble, Charleston, South
Carolina; Gedney Main Howe, III, Charleston, South Carolina, for
Amici Curiae DuTremble, Daniel and Greer. Joel Wyman Collins, Jr.,
COLLINS & LACY, P.C., Columbia, South Carolina; Jack Bruce
Swerling, Columbia, South Carolina, for Appellees. Marvin David
Miller, Alexandria, Virginia; Lionel S. Lofton, Charleston, South Car-
olina; Joel W. Collins, Jr., COLLINS & LACY, P.C., Columbia,
South Carolina, for Amici Curiae Association, Gordon, and Estate of
Taylor. ON BRIEF: John C. Keeney, Acting Assistant Attorney Gen-
eral, Criminal Division, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellant. James E. Bell, III, BELL &
MOORE, Sumter, South Carolina, for Appellee Blanding. Lisa B.
Kemler, ZWERLING & KEMLER, Alexandria, Virginia, for Amicus
Curiae Association.

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

Appellant, the United States of America, appeals from the order of
the federal district court for the District of South Carolina, dismissing
with prejudice five indictments returned in the aftermath of the so-
called Operation Lost Trust investigation into political corruption in
the South Carolina Statehouse in the early 1990s. For the reasons that

                     3
follow, we vacate the opinion of the district court and remand with
instructions that the dismissed indictments be reinstated.

I.

This case arises from an FBI investigation into political corruption
in the South Carolina legislature in connection with its consideration
in 1990 of the state's parimutuel betting legislation. That investigation
resulted in the prosecution and conviction by jury of the defendants
-- Larry Blanding, Paul Wayne Derrick, and Jefferson Marion Long,
Jr.1 -- for various offenses, including extortion under color of official
right and conspiracy to commit extortion, in violation of the Hobbs
Act, 18 U.S.C. § 1951. Defendants Blanding's and Derrick's convic-
tions (as well as Taylor's and Gordon's) were eventually overturned
by this court on appeal on the grounds that the intervening Supreme
Court decisions in McCormick v. United States, 500 U.S. 257 (1992),
and Evans v. United States, 504 U.S. 255 (1992), rendered defective
the jury instructions that were given at their trials. See United States
v. Blanding, 1992 WL 138353 (4th Cir. No. 91-5871); United States
v. Derrick, 1994 WL 34691 (4th Cir. No. 92-5084). We affirmed the
district court's award of a new trial to defendant Long based upon the
improper playing of inadmissible tape recordings before his jury.
United States v. Long, 1994 WL 56993 (4th Cir. No. 92-6799).
Accordingly, all three cases were remanded to the district court for
retrial.

Upon remand, defendant Taylor moved for dismissal of his super-
seding indictment, which had also included defendants Gordon and
Blanding, on the grounds of discovery violations and other alleged
prosecutorial misconduct. And in response to these allegations of
improper withholding of documents and other wrongdoing, the gov-
ernment decided essentially to "start over on discovery by providing
it again." United States v. Taylor , 956 F. Supp. 622, 626 n.4 (D.S.C.
_________________________________________________________________
1 Two other original defendant-appellees to this appeal, Luther Taylor
and B.J. Gordon, are now deceased. Taylor passed away on March 23,
1997, and Gordon passed away on July 12, 1997. Consequently, neither
of these individuals is a party to this appeal. By order of the court, how-
ever, we granted the estates of both of these defendants the opportunity
to participate as amicus curiae.

                     4
1997) (district court order dismissing defendants' indictments) (quot-
ing 10/18/94 OPR Report at 10). This decision having been made, the
government produced to the defendants "all [FBI] 302s that men-
tioned any co-conspirator named in the new indictment as well as all
pre-trial Jencks Act materials." J.A. at 2688. This production on
November 29, 1993, prompted defendant Gordon also to move for the
dismissal of his indictment on the grounds that the government had
improperly withheld materials required to be produced under Brady
v. Maryland, 373 U.S. 83 (1963).

On February 22, 1994, the district court granted the government's
motion for continuance in order to allow the Department of Justice's
Office of Professional Responsibility (OPR) to investigate the defen-
dants' allegations of prosecutorial misconduct. That investigation,
which disclosed no intentional misconduct by the prosecution in these
cases, was concluded in October of 1994. Although the Department
of Justice found that the prosecution had not engaged in any inten-
tional wrongdoing, the United States Attorney for South Carolina
recused his office from further involvement, and attorneys from Pub-
lic Integrity at Main Justice assumed responsibility for prosecution of
the cases.

Thereafter, at an October 20, 1994, status conference, the govern-
ment agreed to produce to the defendants all FBI 302s and transcripts
in its possession relating to the investigation, reserving the right to
seek in camera review by the court of any materials the government
believed should not be produced. J.A. at 1334, 1341. The district
court also ordered the government to produce any existing handwrit-
ten interview notes. J.A. at 1348. All of these materials were to be
surrendered by December 1, 1994, into the evidence room established
by the district court. J.A. at 1352-53 (district court discovery order).
Pursuant to its promise at the status conference, the government
placed a large number of documents in the evidence room. Addition-
ally, acting upon its reservation of right, the government submitted a
number of FBI 302s to the court for in camera inspection and argued
that they should not be produced to the defendants.

In January and February of 1995, the prosecution learned that the
FBI had in its possession tape recordings and FBI 302s relating to the
1988-89 drug investigations of prosecution witness Ron Cobb. Upon

                    5
learning of these materials, the prosecution obtained these documents
and turned them over to the defendants.

Following the above-described productions, the defendants pro-
posed to the court at its April 19, 1995, hearing on pending discovery
motions, that

          the government take every scrap of paper that they have,
          every internal memorandum, every piece of correspondence,
          every doodle pad, every videotape, every transcript, every
          audio tape, everything, put it in the room.

J.A. at 1364-65. (The same day, defendant Derrick filed a motion to
dismiss his indictment.) And the following day, over the govern-
ment's objections that it had already produced far more documents
than required by Brady and federal rules, the district court issued an
order "[t]o avoid any further confusion as to what material should and
should not be turned over by the government to the .. . defendants."
J.A. at 1418, 1419. That order required the government to produce for
in camera inspection by May 8, 1995, "all documents and/or materi-
als in [its] possession . . . dealing with these cases and not presently
available to the defendants in the `evidence room'." J.A. at 1420. In
compliance with the court's order, the government produced, accord-
ing to the district court, seven file boxes from the Department of Jus-
tice, four file boxes from the FBI, and one file box from the Office
of Professional Responsibility. See J.A. at 1422.

In a July 25, 1995, discovery order entered following its in camera
review of the materials produced pursuant to its earlier orders, the dis-
trict court concluded that the government's argument that the drug-
related audiotapes produced in March of 1995 were not relevant or
discoverable under Brady was "ludicrous" because "the drug investi-
gation was hand-in-glove with the corruption investigation known as
Lost Trust." J.A. at 1427. Arguments such as the one made by the
government, the district court said, "cause the court to look very
closely at what was withheld by the government that may have jeop-
ardized the rights of these defendants." J.A. at 1427. The court also
concluded that documents relating to corruption in connection with
the capital gains legislation (as opposed to the parimutuel betting leg-
islation that was the subject of the Lost Trust sting operation) were

                     6
relevant to the defendants' defense because "one of the key figures in
the Lost Trust investigation pled to a RICO violation, one of the pred-
icate offenses of which was the taking of a bribe from the govern-
ment's cooperating subject and key Lost Trust witness, Ron Cobb, in
relation to the capital gains tax bill." J.A. at 1428.

As to the documents submitted by the government for in camera
inspection, the district court concluded they were

          in the main, internal administrative documents constituting
          privileged work products, or are documents that are part of
          the public record in these cases, or are copies of documents
          known by this court to have been previously furnished to
          defendants. The court has found few additional materials
          therein to which it believes these defendants are entitled
          under either Brady or within the meaning of the "open file
          policy" in effect in this district.

J.A. at 1430 (emphasis added). The court ordered the government to
produce but ten specific documents in addition to OPR interview
notes. J.A. at 1440.

The district court subsequently amended its July 25 discovery order
a number of times, including once on September 7, 1995. In its Sep-
tember 7 amended order, the court ordered "that should the govern-
ment come into possession of any evidence which might impact on
the alleged capital gains cover-up, such information and/or materials
shall be immediately submitted to this court for in camera review."
J.A. at 1457. In response to this amended order, the government
inquired, J.A. at 1542, and was informed by the FBI that Special
Agent Denton had located, "on the 14th floor of the Strom Thurmond
Federal Building in a section of files known as closed files," J.A. at
1540, an investigative file for the capital gains matter.2 The govern-
ment notified the court that it had found this file, placed some of the
_________________________________________________________________
2 Special Agent Denton testified:

          I noticed on one of the files a file number that was not the Lost
          Trust file, it was down at the bottom of an empty 302, and it had
          the Lost Trust file number on it and it had another file number.

          ...

          It turns out it was the capital gains file, which was not indexed
          capital gains.

J.A. at 1542.

                    7
documents in the evidence room, and, on October 4, 1995, submitted
other documents for in camera review by the court. In an order dated
October 6, 1995, the district court indicated that the submitted docu-
ments "should have been furnished long ago" and, acknowledging
that it had "made only a cursory in camera review of the documents,"
ordered them produced to the defendants. J.A. at 1460.

On October 18-20, 1995, the court conducted an evidentiary hear-
ing on the defendants' claims of prosecutorial misconduct. During
this hearing, which related primarily to the capital gains investigation,
Special Agent Denton, after testifying that the FBI maintained "coop-
erating witness" files, was asked to search his files again for any files
relating to Ron Cobb. In conducting this review, Denton found an FBI
302 on Robert Kohn, which was generated after the defendants' trials
and which he produced to the defendants. Rejecting the defendants'
suggestion that this document had been intentionally withheld, the
district court stated:

          [O]ut of the thousands and thousands of documents that's
          passed through this court, I'm not surprised that there's one
          that got overlooked, or lost, or whatever it is. . .. Now, I had
          not seen that last 302 that was found, and I don't know if
          it contains anything that would warrant anybody trying to
          intentionally hide it. I have already heard the agent say that
          he didn't intentionally do it. He doesn't know how it got
          misplaced, but he found it, and he gave it up.

           I guess he would have been better off if he had just acted
          like he didn't find it, but I think he's trying to comply with
          the court's orders, and there have been several of these
          things that have come up after a more thorough investiga-
          tion.

J.A. at 1929.

At the conclusion of the hearing, the district court said that it
wanted to re-review the boxes of documents that it had already
reviewed in camera and had said in its July 25, 1995 order need not
be produced. On February 6, 1996, the court ordered that all of these
documents be produced to the defendants, reasoning that "little, if

                    8
anything, contained therein can still be classified as `sensitive'," "a
wider latitude must be given with regard to materials to be furnished
for the purposes of the defendants' pursuit of their motions to dismiss
for prosecutorial misconduct than might be given for trial prepara-
tion," and that "no prejudice will inure to the government should this
court order all of these documents furnished to the defendants." J.A.
at 1946-47.

On October 3, 1996, the district court reconvened the hearing on
defendants' motions to dismiss their indictments, and thereafter
received additional briefing in support of and in opposition to the
motions to dismiss. And, on February 3, 1997, the district court
entered its order dismissing the defendants' indictments with preju-
dice pursuant to its supervisory power.

Rejecting the government's contention that the dismissal of the
indictments would be unauthorized absent a specific finding that the
alleged prosecutorial misconduct prejudiced the defendants, the dis-
trict court stated:

          The court is convinced that the totality of the government's
          actions in these matters rises to the level of egregious pro-
          secutorial misconduct, and that this is a sufficient finding on
          which the court can exercise its supervisory power.

          ...

          The government would argue that in using its supervisory
          power the court must find pattern and prejudice, and that the
          defendants have proven neither. The court agrees that the
          circuits are in disarray on this subject, but believes there is
          sufficient precedent to dismiss the subject indictments with-
          out addressing these issues.

956 F. Supp. at 623; see also id. (district court concluding that "it has
the discretion under the doctrine of the court's supervisory power to
dismiss should it find the government's actions so outrageous as to
offend the sensibilities of the court").3 From the district court's order
_________________________________________________________________
3 The district court summarized its beliefs as to the prosecution's mis-
conduct as follows:

                    9
dismissing the defendants' indictments pursuant to its supervisory
power, the United States appealed.4

II.

As the United States vigorously asserts, the district court's dis-
missal of the defendants' indictments without a finding of prejudice
is directly contrary not only to the precedent of this court, but also to
clear and well-established Supreme Court precedent. As the Supreme
Court held in United States v. Hasting , 461 U.S. 499 (1983), a court's
"supervisory powers to discipline the prosecutors of its jurisdiction"
may not be invoked to reverse a defendant's conviction for prosecu-
torial misconduct where the alleged misconduct was harmless. Id. at
505. In Hasting, the Seventh Circuit had,"notwithstanding the harm-
less nature of the error," id. at 504, reversed the defendants' convic-
tions because the prosecutor had commented on the defendants'
_________________________________________________________________

          The court is convinced that this investigation began in an appro-
          priate fashion. It is, after all, the responsibility of the FBI and the
          USAO to pursue information with regard to illegal acts within
          their jurisdiction. It is the opinion of the court, however, that
          some of the investigators and lead prosecutors got lost on their
          way to the lofty goal of weeding out drugs and corruption from
          the South Carolina State House. Overzealousness and political
          pressure upon those in positions of authority appear to be the
          detours that led the government to rush to trial, especially in the
          cases of Taylor, Blanding and Gordon; to withhold volumes of
          exculpatory evidence; to allow perjured testimony to stand
          uncorrected on more than one occasion; to allow its primary
          cooperating witness, Cobb, to take an unusual amount of control
          of the sting operation; to go outside of its own regulations to tar-
          get certain legislators, and to mislead this court to such an extent
          as to perpetrate a fraud upon the court.

956 F. Supp. at 658.

4 By orders of this court, former prosecutors E. Bart Daniel and Dale
L. DuTremble, joined by Richard Greer, were permitted to participate in
this appeal as amicus curiae, as were the estates of Luther Taylor and
Benjamin Gordon. The brief filed by Daniel, DuTremble, and Greer will
be referred to throughout as the brief of the "prosecutors amici."

                     10
failure to testify in violation of Griffin v. California, 380 U.S. 609
(1965). The Court of Appeals had, through its reversal of the convic-
tions, sought "to discipline the prosecutor -- and warn other prosecu-
tors -- for what it perceived to be continuing violations of Griffin"
within the circuit. Hasting, 461 U.S. at 504. The Supreme Court,
however, reversed, holding that a court's supervisory powers may not
be invoked to evade the harmless error rule for constitutional violations5
because "the interests preserved by the doctrine of harmless error" --
including the interest of the victims in seeing the defendants brought
to justice and the public's interest in the "prompt administration of
justice" -- "cannot be so lightly and casually ignored in order to chas-
tise what the court viewed as prosecutorial overreaching." Hasting,
461 U.S. at 507, 509, 505. The Court reasoned that invocation of the
"[s]upervisory power to reverse a conviction is not needed as a rem-
edy when the error to which it is addressed is harmless since by defi-
nition, the conviction would have been obtained notwithstanding the
asserted error." Id. at 506. The Court also noted that concern for "the
integrity of the process carries less weight" when the error is harmless
because there is "no `reasonable possibility' that [it] contributed to the
conviction." Id. (quoting Fahy v. Connecticut, 375 U.S. 84, 86-87
(1963)). Finally, the Court explained, "deterrence is an inappropriate
basis for reversal where, as here, [the constitutional violation is at best
"attenuated"] and where means more narrowly tailored to deter objec-
tionable prosecutorial conduct are available." 6 Id. (footnotes omitted).

It would seem to follow, a fortiori, from the Court's holding in
Hasting that a court may not, without finding prejudice to the defen-
dant, exercise its supervisory power to reverse a defendant's convic-
tion and require a retrial based upon prosecutorial misconduct, that a
court may not dismiss an indictment altogether on this ground without
also finding prejudice. The dismissal of an indictment altogether
clearly thwarts the public's interest in the enforcement of its criminal
laws in an even more profound and lasting way than the requirement
_________________________________________________________________
5 See Chapman v. California, 386 U.S. 18 (1967).
6 The Court noted that more narrowly tailored means of deterrence
included "order[ing] the prosecutor to show cause why he should not be
disciplined," "asking the Department of Justice to initiate a disciplinary
proceeding against him," or "publically chastis[ing] the prosecutor by
identifying him in its opinion." Hasting, 461 U.S. at 506 n.5.

                    11
of a retrial. And, indeed, in Bank of Nova Scotia v. United States, 487
U.S. 250 (1988), the Court reaffirmed its analysis in Hasting and
squarely held that a court has "no authority to dismiss the indictment
on the basis of prosecutorial misconduct absent a finding that petition-
ers were prejudiced by such misconduct." Id . at 263.

Defendants apparently contend that the Court's holding in Nova
Scotia applies only to prosecutorial misconduct that occurs at the
grand jury stage.7 See Appellee's Br. at 93. However, although the
misconduct at issue in Nova Scotia did occur before the grand jury,
see id. at 254 ("[A]s a general matter, a district court may not dismiss
an indictment for [prosecutorial misconduct] in grand jury proceed-
ings unless such errors prejudiced the defendants."), both the Court's
analysis and the text of its opinion confirm that Nova Scotia's holding
applies equally to prosecutorial misconduct that occurs at the pre-trial
and trial stages of a prosecution.

Specifically, the Court reasoned that all federal courts are bound by
Federal Rule of Criminal Procedure 52(a) to conduct the harmless-
error inquiry and that a "court may not invoke supervisory power to
circumvent" that inquiry. Id. at 254-55. As the Court explained, "[t]he
balance struck by [Rule 52(a)] between societal costs and the rights
of the accused may not casually be overlooked `because a court has
elected to analyze the question under the supervisory power.'" Id. at
255 (quoting United States v. Payner, 447 U.S. 727, 736 (1990)).
Thus, the Court held broadly that "a district court exceeds its powers
in dismissing an indictment for prosecutorial misconduct not prejudi-
cial to the defendant," Nova Scotia, 487 U.S. at 255.

Other Supreme Court cases likewise confirm that a court's supervi-
sory power cannot be exercised to dismiss indictments for govern-
ment misconduct absent a showing of prejudice to the defendants.
See, e.g., United States v. Morrison, 449 U.S. 361, 365-67 (1981)
(holding that dismissal of an indictment was an inappropriate remedy
for an alleged Sixth Amendment violation that did not prejudice the
defendant, even though the conduct of the government agents was
"egregious"); id. at 365 ("[A]bsent demonstrable prejudice or substan-
_________________________________________________________________
7 The district court in this case made no findings of prosecutorial mis-
conduct before the indicting grand jury. See Appellees' Brief at 93.

                    12
tial threat thereof, dismissal of the indictment is plainly inappropriate,
even though the violation may have been deliberate." (footnote omit-
ted)); cf. United States v. Payner, 447 U.S. 727, 733 (1980) (holding
that district court cannot invoke its supervisory power to circumvent
the Fourth Amendment standing rules by excluding evidence seized
illegally and in bad faith by the government in violation of a third
party's -- but not the defendant's -- constitutional rights).

We, too, have consistently recognized that an indictment may not
be dismissed for prosecutorial misconduct absent a showing that the
misconduct prejudiced the defendant. See, e.g., United States v.
McDonald, 61 F.3d 248, 253 (4th Cir. 1995) (holding that indictment
should not be dismissed for alleged prosecutorial misconduct before
the grand jury that did not prejudice the defendant because "[t]he
United States Supreme Court has recognized . . . that an indictment
may be quashed on the basis of prosecutorial misconduct, but only
where the government's misdeeds `substantially influenced the grand
jury's decision to indict, or if there is grave doubt that the decision
to indict was free from the substantial influence of such violations'"
(quoting Nova Scotia, 487 U.S. at 256) (internal quotation marks
omitted)); United States v. Lee, 906 F.2d 117, 120 (4th Cir. 1990)
("[T]he district court erred in dismissing the indictment [based on the
prosecution's failure to produce a defense witness, who was allegedly
"within government control,"] because, as the Supreme Court has
explained, `absent demonstrable prejudice, or substantial threat
thereof, dismissal of the indictment is plainly inappropriate, even
though the violation may have been deliberate.'" (quoting Morrison,
449 U.S. at 365; citing Nova Scotia, 487 U.S. at 254)); United States
v. Hastings, 126 F.3d 310, 317 (1997) (holding that, although the
government's improper refusal to comply with a discovery order war-
ranted sanctions, dismissal of the indictment was"an extreme and
inappropriate sanction" where the only prejudice to defendant was
"inconvenience and slight expense of delays").

And virtually every other circuit to consider the issue post-Hasting
and Nova Scotia has also held that an indictment may not be dis-
missed based on prosecutorial misconduct, absent a showing of preju-
dice to the defendant. See, e.g., United States v. Van Engel, 15 F.3d
623, 631-32 (7th Cir. 1993) ("A federal judge is not authorized to
punish the misconduct of a prosecutor by letting the defendant walk,

                     13
unless the misconduct not only violated the defendant's rights but also
prejudiced his defense, and neither condition is satisfied here.");
United States v. Santana, 6 F.3d 1, 11 (1st Cir. 1993) ("[T]aken
together, Payner, Hasting, and Bank of Nova Scotia form a trilogy
admonishing federal courts to refrain from using the supervisory
power to conform executive conduct to judicially preferred norms by
dismissing charges, absent cognizable prejudice to a particular defen-
dant."); United States v. Isgro, 974 F.2d 1091, 1097 (9th Cir. 1992)
("In its recent jurisprudence . . . the Supreme Court has moved . . .
toward a rule that a court should not use its supervisory powers to
mete out punishment absent prejudice to a defendant."); id. ("Hasting
thus unequivocally rejects the idea that a court may sanction the gov-
ernment for its misconduct without considering first the actual preju-
dice suffered by the defendant.").

The district court ignored entirely this impressive body of estab-
lished Supreme Court and appellate court caselaw, failing even to cite
to a single one of the cases discussed above. Instead, the district court
relied on a number of district court cases -- all of which predated
Hasting or Nova Scotia or both, and most of which are easily distin-
guishable from the present case in any event. See 956 F. Supp. at 657-
59, citing to United States v. Omni Intern Corp., 634 F. Supp. 1414
(D. Md. 1986) (dismissing indictment without prejudice); United
States v. Fischbach & Moore, Inc., 576 F. Supp. 1384, 1396 (W.D.
Pa. 1983) (denying defendant's motion for release of grand jury tran-
scripts because there was no evidence that the government abused the
grand jury process and "no indication of actual prejudice to defen-
dant"); United States v. Lawson, 502 F. Supp. 158, 172 (D. Md. 1980)
(dismissing indictment without prejudice); United States v. DeMarco,
407 F. Supp. 107 (C.D. Cal. 1975); United States v. Banks, 383 F.
Supp. 389 (D.S.D. 1974). Additionally, the district court relied on
three circuit court cases. Two of these predated Nova Scotia, see 956
F. Supp. at 658, citing United States v. Serubo, 604 F.2d 807 (3d Cir.
1979), and United States v. Hogan, 712 F.2d 757 (2d Cir. 1983),8 and
the other failed even to cite Nova Scotia or Hasting, see United States
_________________________________________________________________
8 Hogan is also easily distinguishable from the case at hand, because
the court in that case found that the error was not harmless: "If not for
the clear prejudice resulting from the AUSA's misconduct, appellants
might not have been indicted." 712 F.2d at 762 n.2.

                    14
v. Kojayan, 8 F.3d 1315 (9th Cir. 1993). 9 Obviously, none of the
cases cited by the district court can overcome the force of the control-
ling Supreme Court authority requiring the district court to find preju-
dice to the defendants before dismissing indictments based on
prosecutorial misconduct.

It is hardly surprising, however, that even in the face of these pre-
cedents, the district court declined to make any findings that the
defendants were, in fact, prejudiced. As the district court itself noted,
the bulk of the misconduct it identified related to discovery violations,
and the defendants now have all of the discovery materials to which
they could possibly be entitled -- and considerably more -- available
to them for use at their retrials. Thus, any prejudice that arguably
existed as a consequence of discovery violations is fully remedied by
this court's orders of new trials. See United States v. Borakinni, 748
F.2d 236, 237 (4th Cir. 1984) (rejecting defendant's claim that his
indictment should have been dismissed because the government failed
to produce exculpatory material at his first trial because, even "assum-
ing [defendant] was entitled to the materials at his first trial, his rem-
edy for the government's failure to furnish them was a new trial, not
an acquittal"). Similarly, any prejudice to defendants at their original
_________________________________________________________________
9 The district court also cited to McNabb v. United States, 318 U.S. 332
(1943), for the proposition that the "government's misconduct `need not
be so unfair or imprudent as to offend "due process" before exercise of
this [court's] supervisory power is appropriate.'" 956 F. Supp. at 658.
(Although the district court's citation suggests that it was quoting
McNabb, the quoted phrase does not appear in McNabb). In McNabb, the
Supreme Court exercised its "supervisory authority over the administra-
tion of criminal justice in the federal courts," McNabb, 318 U.S. at 341,
to exclude confessions obtained under oppressive circumstances in "fla-
grant disregard" of the statutory duty imposed by Congress on law
enforcement officers promptly to take a person arrested before a judicial
officer who can determine the sufficiency of the justification for deten-
tion, id. at 344-45. McNabb provides no support for the district court and
defendants' contention that the supervisory power can be exercised gen-
erally (much less exercised to dismiss indictments) to discipline the gov-
ernment in the absence of prejudice to the defendants, for the Court
clearly viewed the government tactics employed in McNabb as both prej-
udicial to the defendants and in clear "violation of [their] legal rights."
Id. at 346.

                    15
trials that might have resulted from the other alleged misconduct of
the government would also be fully cured by retrial.

Defendants contend, nonetheless, that the district court's dismissal
of the indictments was proper because, although the district court
found it unnecessary to address whether there was a"pattern" of pro-
secutorial misconduct, see 956 F. Supp. at 623, it in fact found a pat-
tern of misconduct, cf. id. at 657 (finding that the government's
discovery errors "amounted to a pattern of conduct"), and such a pat-
tern is sufficient alone to justify dismissal of the indictments even
without a finding of prejudice to the specific defendants before the
court. For this contention, the defendants presumably rely upon the
Court's statement in Nova Scotia that it was

          not faced with a history of prosecutorial misconduct, span-
          ning several cases, that is so systematic and pervasive as to
          raise a substantial and serious question about the fundamen-
          tal fairness of the process which resulted in the indictment.

487 U.S. at 259; see also Morrison, 449 U.S. at 365 n.2 ("[W]e note
that the record before us does not reveal a pattern of recurring viola-
tions by investigative officers that might warrant the imposition of a
more extreme remedy in order to deter future lawlessness."); Santana,
6 F.3d at 11 (noting that the Court may have left open the possibility
that the requirement of prejudice is qualified if the misconduct "is
plainly improper, indisputably outrageous, and not redressable
through the utilization of less drastic disciplinary tools"). This lan-
guage may suggest that, despite the Court's broad language and rea-
soning in Hasting and Nova Scotia, the Court has not entirely
foreclosed the possibility that a pattern of prosecutorial misconduct
could be so entrenched and pervasive that it would justify dismissal
of indictments without a finding of prejudice to defendants.10 Even if
_________________________________________________________________
10 The Supreme Court did not explicitly suggest in Nova Scotia, how-
ever, that a finding of systematic prosecutorial misconduct was an alter-
native to finding prejudice as a justification for dismissing indictments.
Rather, the Court made its statement in the context of "review[ing] the
record to set forth the basis of [its conclusion] that prejudice has not been
established," Nova Scotia, 487 U.S. at 257, suggesting that it might con-
sider, as a subset of the prejudice inquiry, whether a history of prosecu-

                    16
such an exception to the requirement of prejudice exists, however, we
doubt that the Court would apply it where, as here, alternative sanc-
tions -- including publicly chastising the attorneys and recommend-
ing them for disciplinary proceedings -- were available to the court
and were not employed prior to dismissal of the indictments. Cf.
Hasting, 461 U.S. at 506 n.5 (noting that the court should select
"more narrowly tailored" means to deter objectionable prosecutorial
misconduct). However, because the district court's findings can be
read to suggest a pattern of serious prosecutorial misconduct that
spans at least these several related cases, we have, at the urging of the
United States and of the defendants, undertaken a painstaking review
of those findings. And, as we explain more fully below, the record
does not even support the district court's individual "findings" of pro-
secutorial misconduct, much less that there has been an established
pattern of prosecutorial misconduct in these cases that would justify
the extraordinary sanction of the dismissal of the defendants' indict-
ments.

III.

A careful parsing of the district court's lengthy opinion reveals that
the district court relied for its scores of conclusions as to wrongful
withholding of material exculpatory information and other prosecu-
torial misconduct largely upon only the defense claims of intentional
wrongdoing, rather than upon an independent analysis of the record
evidence. That is, the district court often merely recites that the defen-
dants contended that certain materials should have been produced,
_________________________________________________________________
torial misconduct had jeopardized grand jury independence, id. at 257-
59. And, indeed, Hasting suggests that even a longstanding and perva-
sive pattern of prosecutorial misconduct does not justify dismissing
indictments without a finding of prejudice to the defendants. See 461
U.S. at 504 (rejecting the Seventh Circuit's attempt to discipline the
prosecutors in its jurisdiction by dismissing indictments despite the Sev-
enth Circuit's findings that the circuit's prosecutors generally "failed to
heed the court's prior admonitions" and engaged in the charged miscon-
duct with "disturbing frequency"); see also Morrison, 449 U.S. at 367
(characterizing the government conduct, which was insufficient to justify
dismissing the indictments without a finding of prejudice, as "egre-
gious").

                     17
without itself drawing conclusions as to whether, as a matter of law,
the production was required. For example, the district court does not
even purport to determine whether any of the assertedly withheld
information was material to the defense, cumulative of information
already provided, or readily available to the defendants -- all of
which are necessary inquiries under Brady and Giglio v. United
States, 405 U.S. 150 (1972). In fact, the district court only infre-
quently makes factual "findings" at all; its opinion rests mostly on
implication and innuendo, and much of this is as to matters either
extraneous to the proceedings pending before the court or beyond the
purview of the federal courts in general. And, when the court does
make such findings -- none of which are based upon credibility
assessments -- they are, almost without exception, wholly conclu-
sory: The court either does not explain the basis for the findings or
offers what can best be characterized as only a superficial and incom-
plete analysis of the record evidence. Indeed, in a number of
instances, as we explain, the district court simply erred in its assertion
that material was not produced and, in still others, contradicted its
own findings and assessments earlier in the proceedings as to whether
production was required. The same shortcomings appear in those por-
tions of the district court's opinion in which it charges the govern-
ment with misconduct other than the wrongful disclosure of
information. As with the document disclosure portions of its opinion,
the district court often did not even make factual"findings" as that
term is conventionally understood, employing mere inference and
innuendo instead.11 When the court did make findings, almost never
_________________________________________________________________
11 We discuss these instances fully below, but, for example, rather than
explicitly "finding" that Special Agent Clemens and Assistant United
States Attorney Barton perjured themselves by denying the existence of
an FBI 302 discussing the capital gains matter, the district court merely
implies such perjury by observing that the subjects of the 302 in question
were "big fish" whose mention in a 302 "would certainly have been
noticed." 956 F. Supp. at 640-41. In like fashion, the district court never
made a finding that SA Clemens perjured himself concerning the late-
night visit by him and Cobb to Smith's house; rather, the court said only
that Smith's testimony "indicate[d] that SA Clemens . . . was not entirely
truthful in his testimony." 956 F. Supp. at 648 (emphasis added). So also
did the court imply but not actually find that the government's investiga-
tion into the capital gains matter was inadequate, noting only that the
government's actions "suggest a total avoidance of pursuing information

                  18
are they adequately supported. And, oftentimes, the district court
itself, earlier in the litigation, had specifically rejected the claims of
prosecutorial wrongdoing that it ultimately recited as a basis for its
decision to dismiss defendants' indictments.

No doubt many of these errors may be ascribed to the simple fact
that the district court became overwhelmed by the sheer volume of
documents (and other evidence) in this dispute and by the countless
individual claims of entitlement that had to be adjudicated in the
course of these decade-long proceedings. Even the government and
the defendants themselves were overwhelmed by the magnitude of the
litigation. That the district court may have become overwhelmed by
this protracted litigation, however, did not relieve that court of the
ultimate obligation to fully support its conclusions with evidence
_________________________________________________________________

that might have proved adverse to Greer." 956 F. Supp. at 660 (emphasis
added). And, although the district court seemed convinced that Greer had
perjured himself, it was apparently unprepared to make a specific finding
to that effect, noting instead that Greer's testimony "would have to be
perjured" unless, "[a]lternatively, . . . the government . . . lied to the
court" at Greer's sentencing hearing." Id . Finally, in some instances,
although implying findings, the district court actually expressly declined
to make "specific findings" at all, as it did with regard to Cobb's truthful-
ness in testifying that United States Attorney Daniel authorized Cobb to
characterize a $10,000 payment to Senator Lindsay as attorney's fees. Id.
at 649.

When, on the infrequent occasions the court did make a factual finding
and it is possible to identify the finding as such, it is often impossible to
ascertain as to whom or to what conduct the finding was made, see, e.g.,
id. at 660 (seemingly finding that the government had suborned perjury
"in several instances," but without identifying whether the referenced
perjury was committed by Cobb only or also by Greer and Clemens);
compare id. (characterizing Cobb's testimony as"perjurious several
times over") with id. (stating that Clemens "apparently, felt he had to
play out the scenario to the end", but without characterizing testimony as
"perjurious") (emphasis added), id. (stating that Greer either perjured
himself or the government lied to court), and id . (finding that the govern-
ment "allow[ed] testimony from Cobb, Clemens and Greer that it knew
to be untrue to stand uncorrected" but without characterizing testimony
by three as "perjurious") (emphasis added).

                      19
from the record before it. That obligation is always incumbent upon
the court and is heaviest where, as here, the court charges a party liti-
gant with intentional wrongdoing. Upon careful review of the district
court's opinion, and of the individual charges of misconduct recited
therein, we are convinced that this obligation simply was not properly
discharged by the district court.12
_________________________________________________________________
12 At oral argument before this court, we asked defense counsel and
counsel for the government whether they would agree that the nine cate-
gories of misconduct recited by the United States at page 25 of its princi-
pal brief comprised the bulk of the district court's"findings" of
prosecutorial misconduct. Both counsel agreed that virtually all of the
misconduct grounds addressed by the district court were included within
these categories, a fact confirmed by our own exhaustive review of the
record. Accordingly, the court has generally addressed itself only to these
categories and the individual assertions of misconduct incorporated
within these categories. These categories, as they appear on page 25 of
the government's brief, are as follows:

         (1) Failing to disclose FBI 302 reports in which Cobb indicated
         that he had made payments to other legislators to keep them
         friendly and expressed uncertainty about whether such payments
         were "bribes." J.A. 234-36.

         (2) Failing to disclose other exculpatory evidence, including
         tape recorded conversations. J.A. 236-40, 274-77.

         (3) Allowing Cobb to commit perjury by testifying, without cor-
         rection, that he had never given Senator Lindsay any"bribes or
         illegal money." J.A. 244-54.

         (4) Presenting testimony from an FBI agent who falsely denied
         that he had prepared a report relating to Cobb's payoffs to Lind-
         say in connection with the Capital Gains tax, and having an
         AUSA falsely represent to the court that no report of this inter-
         view existed. J.A. 247-49.

         (5) Placing a 2:00 a.m. telephone call to Senator Lindsay, and
         then falsely testifying that the purpose of this call was merely to
         warn Lindsay of upcoming negative publicity. J.A. 261-71.

         (6) Permitting Richard Greer, the former head of the South Car-
         olina State Development Board, falsely to deny his knowledge of
         the capital gains bribery scheme to the grand jury investigating
         that matter. J.A. 254-61.

         (7) Failing adequately to investigate the capital gains matter,
         and avoiding the pursuit of any information that could prove
         adverse to Greer. J.A. 254-61, 294-95.

                   20
A.

The district court ultimately concluded that "much of the govern-
ment's misconduct actually stem[med] from its failure to disclose evi-
dence to the defendants." 956 F. Supp. at 659. Said the court:

          The withholding of such a voluminous array of discovery
          which the government had to know was exculpatory and rel-
          evant to the defenses of these defendants is unprecedented
          before this court. The court finds that these violations are
          too numerous and too specific to certain issues to be consid-
          ered simply unintentional or the result of neglect.

Id. at 658-59; see also id. at 657 (rejecting the Office of Professional
Responsibility's finding that "incremental mistakes and misjudg-
ments" by the FBI and prosecutors, and not "intentional and wrongful
decisions to conceal," caused the discovery failures).13
_________________________________________________________________
          (8) Withholding evidence of Cobb's drug usage both before and
          after his employment by the government. J.A. 271-74.

          (9) Allowing Cobb to take control of the sting operation and to
          target particular legislators in violation of regulations that
          required him to act more passively. J.A. 277-80.

Br. of United States at 25.
13 Apparently to emphasize exactly how numerous the violations were,
the district court noted that "[i]n undisputed testimony . . . the court was
informed that prior to his trial Taylor received only 66 of the 550-plus-
or-minus 302s and 26 of the 227-plus-or minus tapes that are now in
defendants' possession. The number of 302s and tapes received pretrial
by the other defendants would vary only slightly." 956 F. Supp. at 657.
What the district court failed to acknowledge, however, was that -- by
its own admission -- the vast majority of the documents the government
has produced to the defendants on remand are completely and indisputa-
bly irrelevant to the defendants' cases. See J.A. at 1520 (district court
noting that "at least 90 percent" of the documents produced in camera
and later provided to the defendants "really has no relevance as to what
we are here about now"). The government's failure to produce, prior to
defendants' trials, "volumes" of irrelevant documents to which the defen-
dants were not legally entitled certainly cannot be viewed as error, much
less "egregious prosecutorial misconduct."

                     21
1.

Underlying much of the district court's reasoning that the govern-
ment had wrongfully withheld material exculpatory information was
the court's apparent belief that the case was tried under a so-called
"open file policy," pursuant to which the government agreed to turn
over essentially all of its documents to the defendants in return for the
comfort of knowing that neither Brady nor Giglio would be relevant
throughout the protracted proceedings. Thus, the district court began
its entire opinion detailing what it perceived to be the "egregious pro-
secutorial misconduct" as follows:

          From the outset, these cases were to be tried under what is
          referred to in this district as an "open file policy." During its
          tenure on the bench, this court has conducted numerous
          criminal trials under this policy and never before has its
          interpretation been so challenged as in the government's
          present arguments. As a lawyer and a judge, this court's
          experience has been that "open file" meant that the govern-
          ment's entire discovery file would be made available to the
          defendants for their examination. . . . It has long been estab-
          lished that when an "open file" policy is declared, the dic-
          tates of Brady and Giglio as well as Bills of Particular,
          become extraneous; all discovery material, except as limited
          to privileged work product, is made available to the defen-
          dants. This would have come as no surprise to USA Daniel
          or his assistants, most of whom had prosecuted cases before
          this court on numerous occasions.

          [M]otions to dismiss for prosecutorial misconduct had been
          filed by one or another of these defendants during the prepa-
          ration and pendency of their original trials in 1990 and
          1991. One of the primary grounds on which those motions
          and the more recent motions are based is the wilful with-
          holding of Brady and other exculpatory material.

956 F. Supp. at 632.

Notwithstanding these statements in the district court's order, it is
evident from the record that the government never agreed to conduct

                     22
these prosecutions under an "open file policy" in the sense that the
district court suggested in its order of dismissal. Not only did the
defendants each file numerous discovery requests under Brady, and
motions for bills of particular, but the district court closely supervised
the discovery, meticulously and painstakingly hearing, considering,
and adjudicating each individual dispute. Indeed, as the government
notes, the defendants themselves "essentially abandon[ ] the district
court's theory about the `open file' policy." Reply Br. of United
States at 16; see also Reply Br. of Prosecutors Amici at 4; Br. of
Appellees at 20 ("Whether or not there was an`open file policy,' the
government had clear obligations to comply with Brady v. Maryland,
Rule 16, Federal Rules of Criminal Procedure and 18 U.S.C. § 3500
(the Jencks Act).").

Both the prosecution and the defense proceeded on the understand-
ing throughout the pretrial and trial proceedings that the government
had not opened its files in the manner suggested by the district court.
The prosecution made clear early on, in September of 1990, that it
only intended to provide those materials required by rule and statute:

          The Defendant's "motion for Bill of Particulars" is tanta-
          mount to a general discovery request and the majority of the
          matters inquired about are not properly requested by way of
          a bill of particulars. However, the United States does recog-
          nize its obligations to provide the Defendant with certain
          information pursuant to Rule 16 of the Federal Rules of
          Evidence and 18 U.S.C. 3500, and the United States intends
          to conduct discovery in this case in an `open file' manner to
          the extent that all matters discoverable pursuant to Rule 16
          [of the Federal Rules of Criminal Procedure] and 18 U.S.C.
          § 3500 will be provided to the Defendant prior to trial.

J.A. at 317 (United States Response to Taylor's Motion for Bill of
Particulars); see also J.A. at 415-17 (reading same into record at
court's request at October 1990 hearing). At the Blanding hearing on
November 19, 1990, the government again repeated its position that
it was not proceeding generally under an open file policy:

          COURT: Do you have an open file policy here?

                     23
          [PROSECUTION]: Well, your honor, I'm always hesitant
          to say that, in view of the discovery motions that I see com-
          ing forward. Everything that they are entitled to discover
          under Rule 16, everything under 18 U.S.C. 3500, and any-
          thing the government intends to use at trial, I have produced
          for them.

J.A. at 531-32. And, as late as April 1991, during the Derrick trial,
the government continued to assert that it was conducting discovery
in the case in an open file manner only "to the extent that all matters
discoverable under Rule 16 and Title 18, United States Code, Section
3500 will be provided to the defendant," J.A. at 887 (United States
Response to Defendant's Motion for Discovery and Inspection), with-
holding documents which it believed were not producible under either
the rule or the statute, id. at 888-94 (United States Response to Defen-
dant's Supplemental Motion for Discovery and Inspection).

The defense, through defendant Taylor's counsel, likewise stated
repeatedly that it did not believe that the government had opened its
files in the manner believed by the district court. During the court's
October 19, 1990, hearing, in response to the court's observation that
the defense could not have both an open file policy and a bill of par-
ticulars, Taylor's counsel, Joel Collins, stated:

          I think I understand what you are saying by that, Your
          Honor. Let me just say I have never believed that we were
          operating under an open file policy.

J.A. at 420; see also id. at 419 (Taylor's counsel stating his under-
standing that the case was being tried under bills of particular). And,
again in October of 1994, Taylor's counsel repeated his view that
there was no open file policy:

          MR. COLLINS: I have never operated on the assumption
          that there was an open file policy after some time in October
          of 1990 --

          THE COURT: But you talked like you think it's one.

                    24
          MR. COLLINS: We think there ought to be one now, Your
          Honor.

J.A. at 1321.

Finally, it is clear from the district court's own statements and
actions that -- even if it mistakenly believed such initially -- not
even the court believed throughout the proceedings that the govern-
ment had an open file policy, or, at least an open file policy of the
kind suggested in its 1997 order. As early as 1990, after extended dis-
cussion of the issue on the record with counsel, the district court con-
cluded that, although it had been confused to that date, the parties in
fact had not agreed to an open file policy:

          THE COURT: Skip on down there to where you get to the
          part you are telling me that you all are having an open door
          like policy and that you are not responding to his bill of par-
          ticulars. What I guess I am trying to say if they have been
          laboring certainly we haven't in 100 percent kept up-- we
          have been kind of treating it like it was open file policy
          when he keeps saying he didn't get this and that, and I have
          been making you all give it to him. With a bill of particulars
          we don't get involved in any of that.

          MR. DANIEL (reading from prior submission by govern-
          ment): . . . "[T]he United States does recognize its obliga-
          tions to provide the defendant with certain information
          pursuant to Rule 16 of the Federal Rules of Evidence and 18
          U.S.C. Section 3500. And the United States intends to con-
          duct discovery in this case in an `open file' manner to the
          extent that all matters discoverable pursuant to Rules 16 and
          18 U.S.C. 3500 will be provided to the defendant prior to
          trial."

          ...

          THE COURT: I guess what I am trying to get to, Mr. Col-
          lins, if we are operating under a bill of particulars case, we
          are doing things one way. I thought we were operating

                    25
under an open file case. Once you get the responses to that
bill of particulars, then you are stuck, he is stuck, everybody
is stuck. That is what the case is all about.

...

I am becoming more and more in favor of bill of particulars
myself. I know the U.S. Attorney's Office and most defen-
dant's lawyers become more and more opposed to them
because it closes out a lot of things that could come to light
with an open file policy. I guess my question to you right
now is, is it your understanding this case is being tried under
this bill of particulars?

MR. COLLINS: Yes, sir, it sure is. The government--

THE COURT: You don't have to tell me anymore.

MR. COLLINS: May I make a further response to what the
U.S. Attorney said?

THE COURT: You can make another response. I am just
trying to close it on down and narrow up what we are doing.
I wanted you to make sure you are aware as to what you
might be narrowing yourself down to. An open file, as you
know, is completely different from trying a case under a bill
of particulars.

...

THE COURT: What I am telling you is that by them
responding to the bill of particulars and what they told you
that is the only obligation they have in this case from their
own. That is why you have to be very particular about the
questions that you ask in your request for the bill of particu-
lars, that you just can't -- I guess you can't have an open
file policy and a bill of particulars.

MR. COLLINS: I think I understand what you are saying by
that, your Honor. Let me just say I have never believed that
we were operating under an open file policy. . . .

          26
THE COURT: What I am getting at is I don't know whether
that came about as a result of me laboring under the theory
you all were working under an open file policy or whether
in the bill of particulars you particularly asked what tapes
they were going to use.

...

THE COURT: I guess what I am trying to tell you. I don't
know because I stopped fooling with the bill of particulars
and started treating it like it was an open file policy. They
might not have to give you those tapes. I don't know
whether they do or not. I have to go back to the bill of par-
ticulars and see what kind of parameters have been set up,
and bound to be set up for the trial of this case. That is what
the bill of particulars is all about. You asked the questions
and they give you the answers, and both sides are stuck with
that and the case goes to trial.

...

THE COURT: . . . I was kind of putting you on notice if
in fact some of these other things, and I don't know how
protected or unprotected they are, if we are operating under
the bill of particulars, then the court's rulings up to this
point might not necessarily have confined the government to
the bill of particulars. I may have gone outside of what they
had to do because I thought, and I guess through an error
of mine, that we were operating under an open file policy.
That is about it.

...

THE COURT: I may have to do some backtracking now
because I was under the opinion we were operating under
the open file policy. From here on forward I am going to
this bill of particulars. I don't think anything I ruled earlier
could have prejudiced the defendant, and I don't know what
might be coming in the future. You heard me say this more

          27
          than one time in other cases. I have about come to the con-
          clusion it is a lot better for the court to make a case operate
          under a bill of particulars rather than fool around with so
          called open file policies. That way we can eliminate a lot of
          Brady problems. A lot of problems we can eliminate. That
          is all. I just want to know how we are going to run from here
          on because this case has got to end sometime.

          ...

          THE COURT: . . . My only question to you is are we oper-
          ating on an open file policy or this bill of particulars which
          was filed, responses to them, September 19th. It is your indi-
          cation that is what we are operating on so I will operate on
          that throughout the rest of the case. The government better
          be prepared to have done what they said. I don't have to
          worry about anymore open file questions.

J.A. at 410-27 (emphases added).

And the district court seems to have carried this understanding --
that the case was not being conducted pursuant to an open file policy
-- through the remainder of the proceedings until the time when it
entered its final order of dismissal. Said the district court at the Octo-
ber 20, 1995, hearing, for example:

           Now, at the very outset of this matter, and I don't want
          to get involved with who it might -- but I had suggested
          way back with members of the U.S. Attorney's Office that
          I had the highest respect, as much as anybody I know, and
          we both were of the opinion that we ought to just have
          what's an open file. That's different to you than me, but we
          ought to put everything out and let the defendants get what-
          ever they wanted out of it and then let's get on with the case.

           Well, the U.S. Attorney's Office wasn't willing to do that,
          and I'm sure they had their reasons, and I wasn't going to
          order them to do such a thing, because, you know, I have
          never ordered anybody to have an open file. It seems to me

                     28
          if they want to file bills of particulars and fool around with
          them all for months at a time, but it looks like we're work-
          ing more and more towards me having to do some sort of
          thing of that nature.

J.A. at 1935-36 (emphasis added).

Accordingly, the record -- indeed, the court's own statements --
simply does not support the district court's inexplicable conclusion
that the parties had proceeded under a full open file policy from the
outset of the case.

2.

The first specific example of egregious prosecutorial misconduct
cited by the district court was the alleged improper withholding of
three FBI 302s prepared by Special Agent Clemens and dated June
14, 1989, June 22, 1989, and July 26, 1989, in which Cobb said that
he had made payments to many South Carolina legislators over the
years other than defendants Taylor, Blanding, Gordon, Derrick and
Long, but refused to characterize those payments as"bribes." 956 F.
Supp. at 632-34. The June 14, 1989, FBI 302 states:

          COBB related that in regards to giving money to State Leg-
          islators, he routinely gives two or three hundred dollars to
          some just to keep them friendly toward him. . . . COBB
          stated that TEE FERGUSON, CHARLES A. HARVIN, III
          and DONNA MOSS were among those who he would give
          money. COBB indicated this money was not paid for any
          specific return benefit other than having someone friendly to
          him on whom he could call.

The June 22, 1989, FBI 302 states in pertinent part:

          RONALD L. COBB provided a 1989 South Carolina Legis-
          lative Manual in which he had checked off all those legisla-
          tors to whom he had paid money. When asked if these were
          bribe type payments or campaign contributions COBB
          replied, "That's a hard question to answer." COBB was then

                    29
          asked if those checked off were persons he had given two,
          three, or four hundred dollars to for no specific reason other
          than to maintain favorable contact with COBB. COBB indi-
          cated that this was the case, and indicated he would give the
          money to the legislator and that was it. If the individual then
          wanted to claim it as a campaign contribution and report it
          or just stick it in his pocket, that was of no concern to
          COBB.

Finally, the July 26, 1989, FBI 302 similarly reads:

          COBB was asked about the manner in which he would pay
          legislators several hundred dollars. COBB stated that this
          was sometimes accomplished with cash, and sometimes by
          check, either from his business or personal account. COBB
          advised that sometimes payments were made at official fund
          raisers and sometimes in a social setting as a token of appre-
          ciation for support on something. COBB stated that some-
          times a legislator will drop a hint that money is tight and
          that they could use some cash. COBB added that if it was
          someone who was friendly toward his interests he would
          take care of them with a few hundred dollars. COBB
          emphasized that he did not know and did not care how they
          handled or reported the money. COBB's sole interest was to
          gain friends and supporters of his interests.

The district court noted that the language from these three FBI 302s
was included in the FBI Columbia Office's 1989 prosecution authori-
zation proposal, which confirmed to the court that the government
"was totally familiar with the existence of these 302s," but "yet [the
government] did not turn [these 302s] over to the defendants for use
at trial." 956 F. Supp. at 634. The district court concluded that these
FBI 302s could have been used by the defendants to impeach Cobb's
testimony that his payments to them were bribes, and thus to support
their defense that the payments were in fact campaign contributions:

          Evidence of how Cobb often paid various legislators a few
          hundred dollars to "keep them friendly" and that it was no
          concern of his how the recipients handled the monies, was
          not furnished by the government so as to allow the defen-

                    30
          dants to attempt to impeach Cobb's testimony that the pay-
          ments he made to these defendants (excluding Long) were
          known by him and by them to be bribes.

956 F. Supp. at 660.

At least defendant Long -- and apparently defendant Derrick, as
well14 -- received both the June 14 and the June 22 FBI 302s prior
to trial, a fact not noted by the district court in its opinion. See Br. of
Appellees at 40 (acknowledging that Long had access to the June 14
and June 22 FBI 302s). Apparently, the only one of the FBI 302s that
these two defendants did not receive was that of July 26. Thus, of the
defendants now before the court (Derrick, Long and Blanding), it
appears that only defendant Blanding failed to receive all three of
these FBI 302s.

It is doubtful whether these three FBI 302s -- which the Depart-
ment of Justice's Office of Professional Responsibility concluded
were not intentionally withheld by the prosecution but rather were not
produced by the FBI to the United States Attorney's Office -- were
even "exculpatory," or, if so, "material," and thus producible pursuant
to the requirements of Brady v. Maryland , 373 U.S. 83 (1963). The
premise of the suggestion that these documents were exculpatory
appears to be that campaign contributions cannot, as a matter of law,
be the subject of a Hobbs Act prosecution. Therefore, the argument
goes, if the defendants could -- by analogy to the payments made by
Cobb to other legislators -- show that Cobb's payments to them were
campaign contributions, their Hobbs Act prosecutions could not
stand.

However, as the Supreme Court has held, campaign contributions
may be the subject of a Hobbs Act violation, no less than any other
payments,
_________________________________________________________________
14 The government has in its files"a letter to Derrick's counsel trans-
mitting this document [the June 22, 1989 FBI-302] before his trial," and
it moved in the district court to have this letter included in the record
before this court. Reply Br. of United States at 20 n.14. The district court
has now granted that motion and, accordingly, we grant the consent
motion of the United States to supplement the joint appendix.

                     31
          if the payments are made in return for an explicit promise
          or undertaking by the official to perform or not to perform
          an official act. In such situations the official asserts that his
          official conduct will be controlled by the terms of the prom-
          ise or undertaking. This is the receipt of money by an
          elected official under color of official right within the mean-
          ing of the Hobbs Act.

McCormick, 500 U.S. at 273; see also Evans, 504 U.S. at 268 ("We
hold today that the Government need only show that a public official
has obtained a payment to which he was not entitled, knowing that the
payment was made in return for official acts."); United States v.
Montoya, 945 F.2d 1068, 1074 n.2 (9th Cir. 1991) (noting in prosecu-
tion for receipt of illegal honoraria, not campaign contributions, that
"[t]he critical question is whether the payments were induced and
whether a quid pro quo exists, not how an official labels the payments
in his defense to a charge that the payments were extorted"). Because
the mere characterization of a payment as a campaign contribution
does not insulate that payment from Hobbs Act prosecution, it is diffi-
cult to discern even how the FBI 302s, reciting the frequency with
which Cobb made payments to legislators and Cobb's refusal to char-
acterize the payments he made to other legislators as either campaign
contributions or bribes, could be considered exculpatory. It is less
clear still how these documents could be considered"material," given
that they related to individuals other than the defendants, and the pay-
ments received by the defendants as quid pro quo in return for their
official votes were recorded on both videotape and audiotape.

In any event, the substance of Cobb's testimony was well known
to the defendants. Thus, the defendants were free to question Cobb as
to which individual legislators he made payments and the circum-
stances under which the payments were made.

First, each of the defendants was provided a copy of Cobb's grand
jury testimony, in which he both stated that, over the years, he had
routinely made $200-$300 payments to a number of legislators, and
declined to characterize the payments as either campaign contribu-
tions or bribes. Cobb testified before the grand jury on July 17, 1990,
for example, that he had often made payments to legislators:

                     32
          [O]ver the years, its been very customary and not unusual
          at all to give a guy a couple of hundred bucks, $300 bucks
          along, because he has helped you. And sometimes he'll
          come and say, look man, I'm going out. I want to do this.
          Can you help me out a little bit. So that's not unusual at all.

J.A. at 2400. And during the same grand jury appearance, in response
to a question from a grand juror, he likewise declined to characterize
these payments as either campaign contributions or bribes:

          Q: Is this -- do you consider that when you give [the cash]
          to [the legislators], do you consider that a political contribu-
          tion or a bribe when you give it to them? In other words,
          when you state your case or whatever and hand them
          money, do you say, this is a political contribution or a cam-
          paign contribution or is this something for you?

          A: In a situation like that, it's kind of understood if I pull
          cash out of my pocket and give it to, Mr. Legislator, and you
          put it in you pocket, then I don't know nothing and you
          don't know nothing.

Id. at 2401.

In addition to receiving Cobb's grand jury testimony, the defen-
dants also received a copy of a May 1, 1989, FBI 302 in which Cobb
was reported to have said that he "ha[d] made many contributions in
the $300 to $500 range to elected officials over the years," and that
"most of these contributions would be legal in the strict sense of the
word, but his reason for making them was for favorable consideration
of his lobbying efforts." J.A. at 2177.15 Thus, it is plain that the defen-
dants were fully aware of the very same information included within
_________________________________________________________________
15 Additionally, at the February 28, 1991, evidentiary hearing on the
motions to dismiss indictments -- which was held during the Bland-
ing/Gordon trial -- Special Agent Clemens testified that he had prepared
from the legislative manual an FBI 302 listing the names of all of the leg-
islators to whom Cobb remembered making payments over the years.
J.A. at 835-36. Blanding and Gordon were therefore clearly aware of that
information prior to the conclusion of their trial.

                    33
the FBI 302s from a number of other sources. Indeed, that Cobb had
frequently made payments to other legislators in the past appears to
have been a fact well known to all from the inception of the prosecu-
tion.

The Supreme Court has said that "[t]he mere possibility that an
item of undisclosed information might have helped the defense, or
might have affected the outcome of the trial, does not establish `mate-
riality' in the constitutional sense." United States v. Agurs, 427 U.S.
97, 1109-110 (1976); rather, "[t]he evidence is material only if there
is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different."
United States v. Bagley, 473 U.S. 667, 678 (1985). From the forego-
ing, it is apparent that, in no sense at all, can it be said that the pro-
ceeding below would have been different had the defendants been
provided the three FBI 302s discussed.

Accordingly, because Brady did not require production of these
three FBI 302s, the prosecution's failure to produce the documents to
defendants was not error -- much less intentional misconduct.

3.

As another example of egregious prosecutorial misconduct, the dis-
trict court cited to the government's failure to produce the July 18,
1990, FBI 302s of defendant-legislators James Faber, Frank Earl
McBride, and Ennis Maurice Fant, in which each legislator character-
ized as "campaign contributions" the payments he received from
Cobb in connection with the parimutuel betting legislation. 956 F.
Supp. at 634. In a single sentence, the district court stated, without
substantive explanation, that "[e]ven had the defendants not been able
to utilize these 302s at trial as statements of unavailable witnesses . . .
it is the opinion of the court that these 302s should have been pro-
vided as relevant discovery material." Id.

As with the FBI 302s of Cobb, in which Cobb admitted making
payments to many different South Carolina legislators but refused to
characterize the payments as either campaign contributions or bribes,
it is difficult as a threshold matter even to discern the relevancy of the
Faber, McBride, and Fant 302s to defendants' Hobbs Act prosecu-

                     34
tions. That these three legislators regarded the payments they received
as campaign contributions, rather than bribes, would appear to be nei-
ther exculpatory nor material for the same reasons that Cobb's FBI
302s would not have been exculpatory or material. The exculpatory
and material character of these FBI 302s is diminished even further,
if not eliminated altogether, by the fact that each of the three legisla-
tors were either unindicted targets or had actually been indicted and
pled guilty at the times of the defendants' trials; thus, their testimony
that they regarded the payments they received, not as bribes, but as
campaign contributions, could hardly be considered exculpatory.
Moreover, as the district court recognized, the statements by the legis-
lators in these FBI 302s likely would not even have been admissible
at trial because they are hearsay.

4.

The district court additionally admonished the government for not
producing to the defense certain video and audio recorded conversa-
tions dated January 16, 1990, and April 5, 1990, between Cobb and
state legislator Robert Kohn, whom Cobb paid to recruit other legisla-
tors to support the parimutuel betting legislation. During the January
16 conversation, the following exchange took place between Kohn
and Cobb:

          COBB: And if we make a showin' and you're gonna see
          what they do, I mean, they, and they're willin' to do, they'll
          do whatever I ask 'em to do.

          KOHN: See, I, I think that they, we got the thing out of
          committee with no one doing anything.

          COBB: Yeah, yeah.

          KOHN: No money, and you know, just, just doin' for the
          issue. Now the Baptist Courier sent their note out last week,
          I mean, and its gonna be, they're, they're gonna follow it.
          So people that are under the control of Baptist Courier are
          gonna run.

                     35
         COBB: How many people do you think that we can, that
         we can get the one-on-one situation with and where we give
         them the right motivation, like I say, we gotta, you know,
         we gotta do a good showin'.

         KOHN: I'm sure we can, no, we, no I think we can do well
         on that.

         ...

         KOHN: Let me start, I'll start first thing in the, well hell,
         I might even start tonight.

         COBB: Right.

         KOHN: (Unintelligible)

         COBB: You know how to, I mean you know how to work
         it and cover us, I mean, we don't want come [sic] over there
         and say well, here, they're gonna buy the damn thing.

         KOHN: No I understand.

J.A. at 2337-2340. And during the April 5 conversation, Kohn tells
Cobb:

         I'm not trying to hold back, I mean I realize (unintelligible)
         I ain't trying to play that game. (Unintelligible) I've been
         asked for gold coins. If it doesn't look like money should be
         brought up, I don't do it to hold back money, I just don't
         think it's good to bring it up (unintelligible). I use (unintelli-
         gible) some of them I just casual comment about a contribu-
         tion to their campaign 'cause see if you have to do that I can
         write a check and tell them I think their [sic] a good spirited
         citizen (unintelligible).

956 F. Supp. at 635. Again without any explanation, and in a single
conclusory sentence, the district court recited merely that,

                    36
          [t]hese tapes, as well as the numerous other audio and video
          tapes furnished to the defendants on November 29, 1993,
          certainly must be viewed as exculpatory evidence which
          could have been used to further the defense put forth by
          these defendants that they considered the monies they
          received from Cobb to be campaign contributions.

Id. at 636. Presumably the district court concluded that, as legislator
Taylor had argued, the January 16 tape established that the payments
he received were not a quid pro quo for his support of the parimutuel
betting legislation because this bill had been voted out of his commit-
tees prior even to institution of the sting operation. See id. at 635. It
cannot be determined what underlay the district court's conclusion
that the April 5 tape of the telephone conversation between Kohn and
Cobb should have been produced, except that Taylor's name appeared
in the FBI 302 that reproduced the transcript of the telephone conver-
sation and it "[was] impossible for the court to ascertain whether
[Taylor] was present at the time the [quoted] statement was made to
Kohn." Id. at 635. Because Taylor's name"[did] appear in the cover
FD-302, yet he was not furnished this tape or the FD-302 and tran-
scription prior to his trial," the district court reasoned that the tape
was wrongfully withheld.16

With respect to the January 16 tape, it appears that the district court
was simply incorrect that it had not been produced by the govern-
ment. In fact, as Taylor's counsel Joel Collins candidly acknowledged
in open court, J.A. at 420, the tape had been produced for inspection
pursuant to the district court's order, but he simply had not had an
opportunity to view it.

Apart from the fact that defense counsel was provided access to the
January 16 tape, it is hard to imagine, as with the FBI 302s of Cobb
and of the three co-conspirator legislators, how this tape is exculpa-
tory or material. Even assuming that Taylor supported the parimutuel
_________________________________________________________________
16 The district court explained that it was reasoning primarily from the
submissions made by Taylor, Blanding, and Gordon, and that "some,
although by no means all, of the previously withheld evidence was avail-
able to [Derrick] and defendant Long for their trials." 956 F. Supp. at 636
(footnote omitted).

                     37
betting legislation in committee the previous spring, see J.A. at 2338
(statement of Kohn that "nobody's really done anything since the
committee last spring voted on the thing"), it was still possible that
he violated the Hobbs Act by receiving money in return for his con-
tinued support of the legislation on the floor of the Statehouse. The
receipt of money, even for official action that would have been taken
anyway, violates the Hobbs Act, as we held in United States v.
Paschall, 772 F.2d 68 (4th Cir. 1985), cert . denied, 475 U.S. 119
(1986).

It is unclear whether the April 6 tape, in particular, was produced
to the defense, but, in any event, it was neither discoverable nor
ordered produced by the district court. Not only is the conversation
recorded on this tape not (at least not evidently) exculpatory, describ-
ing only the care with which Kohn decided whether or not to raise
with legislators the question of money in return for their votes, but the
record establishes clearly that, at the October 11, 1990, evidentiary
hearing conducted by the court, the government offered to provide
this and all other tapes to the court for its review and determination
of whether exculpatory information was included, an offer which
Taylor's counsel rejected. See J.A. at 353 (statement of Mr. DuTrem-
ble that "I am willing to provide the court with all tapes. And the gov-
ernment's position is let the court make an independent
determination, that is, as to what is or is not exculpatory"); id. at 343
(statement by Joel Collins that "I would like the record to show that
we would like to withdraw our consent to the in camera review of
potentially exculpatory evidence."). Furthermore, the order entered by
the district court at the conclusion of its full evidentiary hearing on
October 11, 1990, during which this and the other tapes were dis-
cussed, required only that the government produce for defense inspec-
tion "videotapes" in the government's possession, and thus did not
cover the April 6 tape, which was an audiotape. See J.A. at 395-97
(district court order).

5.

The district court also relied in part for its dismissal of the defen-
dants' indictments on the nonproduction of copies of nine checks
written by Cobb to various South Carolina legislators in amounts
ranging from $100-$650. The district court noted that the defendants

                     38
argued that copies of these checks would have "corroborate[d] the
information . . . from the FD-302s of June 14, 1989, June 22, 1989,
and July 26, 1989, and that this information would have served to
refute Cobb's testimony at the trials that the payments he made to
these defendants were definitely known by them to be bribes." 956 F.
Supp. at 634 (citation omitted).

Again, the district court offered no analysis or reasoning in support
of its conclusion that these documents should have been produced.
The court simply repeated that the defendants argued that copies of
these checks would have aided them in their defense.

We are unable to divine how these checks written by Cobb to legis-
lators other than the defendants would be exculpatory or material.
"Corroboration" of the fact that Cobb had made many payments over
the years to other legislators was unnecessary, as there was ample evi-
dence of this fact and the fact was not disputed; nor is it apparent how
these checks would have served to refute any suggestion by Cobb that
his payments to the defendants were bribes. Even the district court did
not initially order production of these checks when, in 1995, they, and
other materials, were provided to the court for in camera inspection.
When, upon subsequent motion, the court concluded that these docu-
ments "were not properly identified by the court in its original in
camera review," J.A. at 1112, 1443 n.1 (district court order of Sept.
7, 1995), and should be produced, id. at 1444, 1455, the district court
stated only that "[a]t this point, . . . the court simply states that it is
of the opinion that these documents should now be turned over to the
defendants." Id. at 1444.

6.

The district court rested its dismissal of defendants' indictments
also upon the government's failure to produce all of its files bearing
on Cobb's drug use from 1988, forward:

          The full scope of Cobb's drug usage was often sought by the
          defendants in their quest for discovery materials which
          might impeach Cobb's testimony at defendants' trials. On
          November 29, 1993, the defendants received a minimum of
          six FBI documents which revealed that Cobb had been

                     39
          under investigation by the FBI for drug violations since
          early 1988, and that he had used cocaine on at least two
          other previously unknown occasions in May of 1989, after
          he went to work for the FBI. Several of these documents
          indicate that Cobb was reputed to be a cocaine "trafficker"
          and implicated others, such as Greer and Kohn.

          In contrast to representations by the government on the
          record in open court that they had given the defendants each
          and every tape they had, some 50 audiotapes and 118 FD-
          302s, which contain evidence bearing on Cobb's drug usage
          and trafficking, were received by defendants in February of
          1995.

956 F. Supp. at 650 (district court op.; citations omitted). As a conse-
quence of the nondisclosure of these documents, the district court
concluded,

          [a]ll of the defendants . . . were unable to impeach Cobb's
          testimony and confront him with the fact that he had been
          involved in drugs on more occasions and over a longer
          period of time than disclosed, and that his involvement in
          drugs was so deep that he had earned the reputation of a
          "trafficker."

Id. at 651.

These documents were, as the district court noted, not produced to
the defendants prior to their trials. Additionally, it appears that the
defense also did not receive, prior to trial, the information relating to
Cobb's drug use in May of 1989. However, each of the defendants did
receive copies of Cobb's grand jury testimony in which he detailed
his drug purchases from and for South Carolina legislators and his
personal use of cocaine during 1987-88, including his personal use of
cocaine with the individual legislators. See J.A. at 2402-16 (grand
jury testimony). Before the grand jury, Cobb testified essentially that
he had gotten together with a group of individuals every week or so
during 1987-88 to do drugs. See, e.g. , J.A. at 2414; see also id. at
2407 (statement by Cobb that "you would have a little get together
with people who use cocaine. And certainly I would use it, and I did

                     40
it, too."). Cobb also testified before the grand jury that he had actually
used cocaine in 1989, and as late as the latter part of 1989. J.A. at
2414-16.

As the district court noted, in addition to Cobb's substantial grand
jury testimony concerning his cocaine purchases and use, "Cobb's
drug usage on the dates of October 13, October 18 and November 18,
1989, was disclosed at the [defendants'] trials," Cobb's "indictment
for possession of cocaine on February 2, 1990, and January 11, 1991,
was returned a few days prior to the Blanding/Gordon trial," and
Cobb "pled guilty to these incidents prior to the Derrick and Long tri-
als." 956 F. Supp. at 649-50. Moreover, as the Department of Justice
explains, each defendant was also apprised of Cobb's"drug-related
arrest in 1989, including the fact that it occurred while Cobb was
attempting to purchase a kilogram of cocaine." Br. for the United
States at 65. Additionally, Cobb testified during the Blanding and
Gordon trial that he had used or provided cocaine to South Carolina
legislators 50-60 times.

Against the backdrop of the considerable amount of evidence
known by or provided to the defendants about Cobb's personal
cocaine use and distribution over the years, including use in 1989
after his employment with the government began, it is impossible to
conclude that the investigatory documents generated in 1988, prior
even to the initiation of the Lost Trust investigation, and the docu-
ments revealing only a handful of previously unknown personal uses
in May of 1989 and in 1990 and 1991, were anything but cumulative
and immaterial.

7.

The district court also concluded that the government had wrong-
fully failed to produce to defendant Taylor a December 6, 1989, vid-
eotape of legislator Kohn selling Cobb $500 worth of cocaine and
using cocaine. The district court said that it had referenced this issue
"to show the cumulative effect on the defense of potentially impeach-
able material not being fully or timely disclosed." 956 F. Supp. at
651.

Again, we are at a loss to understand the reason for the district
court's inclusion of this incident as an example of "egregious pro-

                     41
secutorial misconduct," because the district court itself, in its own
opinion, recognized that the prosecution had apprised Taylor's coun-
sel of the tape by letter before trial and that, as with the other video
tapes, see discussion supra, Taylor's counsel, simply had not had time
to view the tape:

          Taylor concedes that he received a letter from the govern-
          ment very shortly before trial telling him that the govern-
          ment had evidence of Kohn giving cocaine to Cobb. He
          argues that he was deeply involved in preparing for trial;
          and that since this is all that he was told, he did not take the
          time to pursue it.

956 F. Supp. at 651. The district court even noted that "[a]lthough it
is the government's responsibility to disclose evidence to the defen-
dants in a timely and honest manner, it is also the responsibility of the
defense to review that evidence when it is disclosed." Id. In any event,
it is doubtful whether the tape would have been admissible at trial,
given that Kohn testified at trial to his extensive drug and alcohol use.
Id. (district court noting that "Kohn's involvement in the extensive
use of cocaine and alcohol was admitted by him during the trials").

B.

Through innuendo only, and without any explanation as to any
conclusions it drew, the district court also suggested in its order that
FBI Special Agent Clemens and Ron Cobb perjured themselves con-
cerning an October 18, 1990, early-morning visit by Clemens and
Cobb to the home of Steven H. Smith, a close friend of Senator Lind-
say, and a telephone call that morning to Lindsay by Clemens and
Cobb, during which the issue of Cobb's payment of $10,000 to Sena-
tor Magnum and Senator Lindsay in connection with the Oil Jobber's
Bill was discussed. (All of the defendants knew of this visit and call
before their trials; accordingly, the issue is not disclosure, but, rather,
possible wrongdoing by the prosecution and the FBI agent involved.)
The district court intimated that Clemens lied when he testified that
the purpose of the telephone call was to inform Lindsay that Cobb
was going to testify as to the $10,000 payment the following day at
the Luther Taylor trial, and that Cobb similarly lied (at least initially)
that this was the purpose of the telephone call.

                     42
Clemens testified at the district court's February 28, 1991, eviden-
tiary hearing that the purpose of the visit and the telephone call was
to enable Cobb to tell Lindsay of Cobb's expected testimony about
the payment the next day so that Lindsay, Cobb's close friend, would
not first learn of the testimony through the media. J.A. at 823-25.
Clemens testified that when Cobb became too emotional to carry on
the telephone call with Senator Lindsay, he (Clemens) informed Lind-
say of Cobb's impending testimony as to the Lindsay payment. J.A.
at 839-40.

Cobb likewise testified that the purpose of the telephone call was
so that he could tell Lindsay that he was going to testify about the
payment before Lindsay learned of the testimony from the media. J.A.
at 812-14 (testimony of Cobb). Cobb denied that the purpose of the
telephone call was to determine, with Lindsay, how to characterize
the $10,000 payment. J.A. at 814-15 (testimony of Cobb).

Following this testimony by both Clemens and Cobb in February
of 1991, the district court denied Blanding's and Gordon's motion to
dismiss their indictments on the ground that Clemens and Cobb had
perjured themselves and that the purpose of the telephone call was to
coordinate witness testimony.

In April of 1991, after the Blanding and Gordon trial, when Taylor
was seeking bail pending appeal, Smith also testified to the October
18 events. He detailed his understanding that Cobb wanted to charac-
terize the $10,000 payment as a legal fee, but that Agent Clemens
insisted that he could not do so because the payment was not for legal
services. J.A. at 911-12, 917 (testimony of Smith).

This was the state of the record until four and a half years later, in
October of 1995, when Smith testified to the events again. At this
hearing, without explaining its omission from his testimony years ear-
lier, Smith testified repeatedly that Cobb had been authorized by the
United States Attorney to characterize the $10,000 payment as an
attorney's fee. J.A. at 1563-64, 1569, 1582-83 (testimony of Smith).
He also testified repeatedly that Cobb was refusing to characterize the
payment truthfully absent permission to do so from Lindsay. J.A. at
1565-66, 1569, 1583 (testimony of Smith). Cobb, too, in his testi-
mony during the same hearing, suggested that someone in the United

                    43
States Attorney's Office had told him that he could characterize the
payment as a legal fee. J.A. at 1617-19, 1637-41.

Based upon the latter testimony of Smith, which the district court
viewed as consistent with Smith's February 1991 testimony, and of
Cobb, the district court stated that Smith's testimony:

          indicates that SA Clemens, himself was not entirely truthful
          in his testimony at the hearing on February 27, 1991, when
          he described the purpose of the visit [of October 18] as one
          only to give information to Lindsay. Further, it indicates that
          Cobb also was not truthful in his testimony at the February
          1991 hearing.

956 F. Supp. at 648. The court characterized as"shocking" both the
involvement of Clemens in the early morning visit and the October
1995 testimony by Cobb that the United States Attorney had autho-
rized him to call the $10,000 payment an "attorney's fee." Id.

As to Cobb's 1995 testimony about the payment characterization,
the district court expressly declined to "make a specific finding as to
Cobb's truthfulness," and therefore a finding as to whether United
States Attorney Daniel authorized Cobb to term the payment an "at-
torney's fee." In fact, the district court said that it was "loath to give
credence to Cobb's testimony over the statements of these prosecu-
tors." Id. at 649. And, of course, not only did Smith repeatedly testify
that Clemens had insisted that Cobb tell the truth about the payment,
but Cobb never testified in any proceeding that the payment was an
"attorney's fee." Therefore, there is no basis for concluding that the
United States Attorney engaged in any wrongdoing in connection
with Cobb's characterization of the $10,000 payment to Senator Lind-
say.

                     44
Volume 2 of 2

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.

PAUL WAYNE DERRICK,
Defendant-Appellee.

                                    No. 97-4230
DALE L. DUTREMBLE; E. BART
DANIEL; RICHARD GREER,
Amici Curiae,

and

CHARLESTON POST AND COURIER,
Movant.

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.

JEFFERSON MARION LONG, JR., a/k/a
Bud,
                                    No. 97-4231
Defendant-Appellee.

DALE L. DUTREMBLE; E. BART
DANIEL; RICHARD GREER; ALVA
TAYLOR BROWN, Personal
Representative of the Estate of
LUTHER LANGFORD TAYLOR;
NATIONAL ASSOCIATION OF CRIMINAL
DEFENSE LAWYERS,
Amici Curiae,
and

CHARLESTON POST AND COURIER,
Movant.

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.

LARRY BLANDING,
Defendant-Appellee.

DALE L. DUTREMBLE; E. BART
DANIEL; RICHARD GREER; ESTATE OF
BENJAMIN J. GORDON, JR., a/k/a B. J.
                                                   No. 97-4232
Gordon; ALVA TAYLOR BROWN,
Personal Representative of the
Estate of LUTHER LANGFORD TAYLOR;
NATIONAL ASSOCIATION OF CRIMINAL
DEFENSE LAWYERS,
Amici Curiae,

and

CHARLESTON POST AND COURIER,
Movant.

Appeals from the United States District Court
for the District of South Carolina, at Columbia.
Falcon B. Hawkins, Chief District Judge.
(CR-91-91-FBH, CR-91-384-FBH, CR-90-434-FBH)

Argued: May 7, 1998

Decided: November 23, 1998

                  46
Before WIDENER, NIEMEYER, and LUTTIG, Circuit Judges.

_________________________________________________________________

Vacated and remanded by published opinion. Judge Luttig wrote the
opinion, in which Judges Widener and Niemeyer joined. Judge Wid-
ener wrote a separate concurring opinion.

_________________________________________________________________

COUNSEL

ARGUED: Elizabeth Dorsey Collery, Appellate Section, Criminal
Division, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C., for Appellant. Dale L. DuTremble, Charleston, South
Carolina; Gedney Main Howe, III, Charleston, South Carolina, for
Amici Curiae DuTremble, Daniel and Greer. Joel Wyman Collins, Jr.,
COLLINS & LACY, P.C., Columbia, South Carolina; Jack Bruce
Swerling, Columbia, South Carolina, for Appellees. Marvin David
Miller, Alexandria, Virginia; Lionel S. Lofton, Charleston, South Car-
olina; Joel W. Collins, Jr., COLLINS & LACY, P.C., Columbia,
South Carolina, for Amici Curiae Association, Gordon, and Estate of
Taylor. ON BRIEF: John C. Keeney, Acting Assistant Attorney Gen-
eral, Criminal Division, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellant. James E. Bell, III, BELL &
MOORE, Sumter, South Carolina, for Appellee Blanding. Lisa B.
Kemler, ZWERLING & KEMLER, Alexandria, Virginia, for Amicus
Curiae Association.

_________________________________________________________________

As to Clemens' participation in the early morning visit to Smith's
house and the telephone call to Senator Lindsay, the government
admits that such was "unorthodox and, in retrospect, ill-advised." Br.
of United States at 96. But there is nothing to suggest that Clemens
engaged in wrongdoing. Indeed, to the contrary, Smith, upon whose
testimony the district court relied for the suggestion of wrongdoing,
repeatedly testified that Clemens and Cobb had been arguing over
whether Cobb would tell the truth -- as Clemens insisted -- or char-
acterize the payment as a legal fee, and that Clemens, throughout the

                    47
evening, had insisted that Cobb tell the full truth. J.A. at 912, 1583,
1588. Smith even said the following of Clemens:

          Q: Did you see Mike Clemens in any way at all that night
          act in an inappropriate way?

          A: No. I saw Mr. Clemens trying to perform in the most
          appropriate way.

          Q: And I believe that your opinion of Mike Clemens'
          actions on that night were all above -- everything he was
          doing was aboveboard?

          A: My opinion of Mike Clemens that night and on every
          occasion I have ever met him are very high. He was trying
          -- he was trying to set -- and he was trying to make things
          the truth and right in the day's following testimony.

J.A. at 1589.

The district court did not even say what purpose Cobb's telephone
call to Lindsay served other than the one identified by Cobb and
Clemens. And there is clearly insufficient evidence from which to
infer a purpose for Cobb's telephone call to Lindsay other than that
to which Cobb and Clemens initially testified. Both Cobb and Clem-
ens testified that the purpose was not to obtain permission from Lind-
say to characterize the payment in a particular way, and, of course,
Smith was not a party to the telephone call, but only present in the
room when the call occurred. See, e.g. , J.A. at 1569 (Smith noting that
when Cobb was on the telephone with Lindsay "I was then talking to
Agent Clemens over on the other side, so it was kind of out one ear
and the other . . . ."). And obviously there is no basis for concluding
that Clemens' testimony was necessarily false based upon Smith's
1995 testimony as to the purpose of the telephone call, because that
testimony was based (if not upon the partial conversations he heard
contemporaneously) upon Cobb's statements to Smith, not on the call
itself. As the government notes, "if Smith's testimony was based on
his conversation with Cobb, it does not show that Clemens testified
falsely when he stated his own understanding regarding the `purpose'
of the call." Br. of United States at 97.

                     48
The only other possible basis for concluding that there was more
to the telephone call than Clemens and Cobb testified is the district
court's observation that "Lindsay was no stranger to publicity, and a
notice to him that his name might appear in the media as a result of
Cobb's testimony would certainly not warrant a telephone call to a
dying man in the middle of the night." 956 F. Supp. at 648. However,
not only is this the rawest of speculation, but we disagree with the dis-
trict court that a call for the purpose stated by Clemens and Cobb
would be out of the ordinary, given the close friendship between
Cobb and Lindsay, the imminence of the public testimony, and the
conceded condition of Senator Lindsay at the time.

C.

The district court inexplicably devoted a considerable portion of its
order dismissing the indictments to its perception that the government
had inadequately investigated allegations of bribery with respect to
the State's capital gains legislation and had suborned grand jury per-
jury by Richard Greer, the former Chairman of the South Carolina
Development Board, about the capital gains matter. These comments
by the district court about the capital gains investigation were entirely
gratuitous, because that investigation was wholly unrelated to the Lost
Trust investigation that led to the prosecution of the defendants in this
case. Moreover, the court's conclusions as to both the adequacy of the
Executive Branch's investigation into the capital gains bribery allega-
tions and the alleged perjury were wholly without support in the
record.

Upon receipt of information concerning corruption surrounding the
State's capital gains deduction rollback, see J.A. at 2183 (5/1/89 FBI
302 recording Cobb's statement regarding "payoff" to Senator Jack
Rogers through lobbyist Ken Kinard), J.A. at 2198 (9/25/89 FBI 302
stating that "Cobb advised that he had to pay off both JACK LIND-
SAY on the Senate side and JACK ROGERS on the House side"),
J.A. at 2485 (9/11/90 FBI 302 reporting lobbyist Randy Lee's state-
ment that he was "privy" to these efforts), the government began an
investigation, headed by Agent Michael Morehart, a white collar
crime specialist, into the allegations of bribery with respect to the cap-
ital gains legislation.17 Greer and Senators Lindsay and Rogers were
_________________________________________________________________
17 At the same time that the State was attempting to rollback the deduc-
tion so as not to deprive taxpayers of a deduction for capital gains real-

                    49
the subjects of the investigation. Greer subsequently cooperated with
the government, eventually testifying, on May 23, 1991, before a fed-
eral grand jury investigating the capital gains matter.

The district court volunteered the following as to the federal gov-
ernment's investigation of Greer in connection with the capital gains
matter:

          The government's actions as outlined in this order suggest
          a total avoidance of pursuing information that might have
          proved adverse to Greer. . . . The government's failure to
          fully investigate Greer might be excused as falling within
          the province of the government's prosecutorial discretion if
          his alleged involvement was isolated. The fact that it sur-
          faced in an investigation resulting in the convictions of these
          defendants and may have had an impact on the fairness of
          their trials puts the government's handling of Greer's
          involvement in an entirely different light.

956 F. Supp. at 660.

As an initial matter, the district court was without authority to com-
ment upon the government's capital gains investigation. The caselaw
is legend from the Supreme Court and the courts of appeals that the
investigatory and prosecutorial function rests exclusively with the
Executive. See, e.g., Wayte v. United States, 470 U.S. 598, 607 (1985)
("Such factors as the strength of the case, the prosecution's general
_________________________________________________________________

ized in the first half of 1987, the State was also considering whether to
lower South Carolina's capital gains tax, which was one of the highest
in the country. In contrast to the "rollback" legislation discussed above,
this prospective reduction was a priority of then-Governor Campbell and,
as a consequence, of Greer, as chairman of the South Carolina Develop-
ment Board. As discussed below, the only allegations of capital gains
corruption were in connection with the retroactive"rollback" legislation
-- not with the prospective legislation -- and there is no record evidence
to support the district court's suggestion that either Greer or Governor
Campbell was involved in that corruption or that the matter was inade-
quately investigated.

                    50
deterrence value, the Government's enforcement priorities, and the
case's relationship to the Government's overall enforcement plan are
not readily susceptible to the kind of analysis the courts are competent
to undertake."); Heckler v. Cheney , 470 U.S. 821, 832 (1985) (noting
that a prosecutor's decision not to indict "has long been regarded as
the special province of the executive Branch, inasmuch as it is the
Executive who is charged by the Constitution to`take Care that the
Laws be faithfully executed.'"); United States v. Giannattasio, 979
F.2d 98, 100 (7th Cir. 1992) ("[a] judge in our system does not have
the authority to tell prosecutors which crimes to prosecute or when to
prosecute them"). As the Ninth Circuit has said,

          [i]t would raise serious separation of powers questions -- as
          well as a host of virtually insurmountable practical problems
          -- for the district court to inquire into and supervise the
          inner workings of the United States Attorney's Office.

United States v. Redondo-Lemos, 955 F.2d 1296, 1299 (9th Cir.
1992). But in this instance, judicial intrusion into the investigatory
function of the Executive was even less defensible because the capital
gains matter had absolutely nothing whatsoever to do with the Lost
Trust investigations and trials that were pending before the district
court. And certainly Richard Greer had nothing to do with the Lost
Trust investigation or trials. The capital gains matter was a separate
investigation of events that occurred two years earlier, which was
supervised by different personnel than those assigned to the Lost
Trust investigation. The district court's comments, thus, were gratu-
itous to the cases before it, and its unsupported suggestion that the
government's failure to adequately investigate the capital gains matter
"may have had an impact on the fairness of [defendants'] trials," 956
F. Supp. at 660, was without basis.

Even so, the district court was clearly in error that Greer had not
been investigated. Although the district court noted none of the fol-
lowing, authority was sought from the outset of the federal govern-
ment's investigation into the capital gains matter to surreptitiously
record Greer's conversations with cooperating witnesses. J.A. at
2505. Agent Morehart interviewed numerous individuals, including
Gary Turner, Executive Director of the South Carolina Tax Commis-
sion, J.A. at 1691-92; Gail Kinard, Senator Rogers' secretary, J.A. at

                    51
1692; Senator Passailaigue, J.A. at 1693; Hunter Howard, Chairman
of the South Carolina Tax Commission, J.A. at 1695; Senator John
Mathews; Senator James Waddell, Jr.; Thomas Roe; Walter Brashier;
and Otis Rawl, Director of Tax Research for the South Carolina Tax
Commission, and Morehart received information from more persons
still. Morehart analyzed bank records of Cobb and traced the money
that was paid to Ken Kinard & Associates. J.A. at 1701-02.18 A num-
ber of persons appeared before the federal grand jury, see J.A. at
2525-2641, including Morehart, J.A. at 1709, 2632-41, and, of course,
Greer himself was interviewed several times and appeared before the
grand jury, J.A. at 2583-2604. At the end of his investigation, and
unmentioned by the district court, Morehart testified as follows:

         Q: Did you want to do more with the investigation?

         A: No, sir. I think I did a pretty comprehensive investiga-
         tion.

         Q: Do you remember that there were any leads you wanted
         to pursue that you couldn't?

         A: No, sir, none.

         Q: Were there any resources you wanted that you couldn't
         get?

           A: I was adequately supplied.
_________________________________________________________________
18 A number of witnesses testified that Greer never took money in con-
nection with the capital gains legislation, and the district court noted that
the government strenuously asserted as much. 956 F. Supp. at 644. The
district court nonetheless stated that "[t]here is nothing in the record to
show that the government's `active pursuit' of Greer included a review
of Greer's financial records." Id. However, as the United States points
out, "no one ever suggested that Greer profited personally from the capi-
tal gains matter . . . [and thus] it is unclear what basis the government
would have had to undertake such a review." Br. of United States at 105
n.53; see also J.A. at 2111 (statement of defense witness Rhonda Collins
that, to her knowledge, Greer did not receive any money in connection
with the capital gains matter).

                   52
          Q: Did anyone ever ask you to keep the capital gains inves-
          tigation away from the knowledge of other people?

          A: No, sir.

J.A. at 1778. And, as a result of the investigation, Senator Rogers pled
guilty, and the government planned, until his death, to prosecute Sen-
ator Lindsay. See, e.g., Reply Br. of Prosecutors Amici at 12 (noting
that "Lindsay's attorney had a plea agreement in hand at the time of
Lindsay's death.").

Clearly, the district court overstepped its bounds, and in so doing
erred, when it stated conclusorily that Greer had not been adequately
investigated by the government.

Equally without record support is the district court's related asser-
tion, without any citation whatsoever, that "the record is replete with
implications that Greer was heavily involved in payoffs related to the
capital gains tax bill," 956 F. Supp. at 660. In making this unsup-
ported allegation, the district court appears simply to have accepted
as true the initial allegations made by Randy Lee that prompted the
investigation into Greer, despite the fact that the investigation that fol-
lowed disclosed nothing to suggest that Greer was, in fact, involved
in any alleged payoffs. Indeed, Lee -- whose initial allegations
against Greer are the only suggestion in the record that Greer might
have engaged in wrongdoing in connection with the capital gains mat-
ter -- subsequently testified under oath post-trial that he was unaware
of any wrongdoing by Greer regarding the capital gains legislation.
As Lee himself explained, Lee knew only what Cobb had told him,
which was that he (Cobb) had paid money to Rogers and Lindsay and
that no one else, other than Ken Kinard, was involved. J.A. at 1878-
79 (testimony of Lee).

Moreover, this later testimony by Lee also makes clear that the dis-
trict court's concomitant intimation that Governor Campbell was
involved in wrongdoing in connection with the capital gains legisla-
tion, see 956 F. Supp. at 640, 642, is likewise lacking in record sup-
port. As was the case with Greer, Lee was the only person whose
testimony might even arguably be read as implicating Governor
Campbell in the alleged capital gains bribery. And the only allega-

                     53
tions of capital gains corruption of which Lee was aware were Cobb's
allegations of payments to Lindsay and Rogers in connection with the
retroactive legislation. See, e.g., J.A. at 2183 (Cobb's description of
his payments to Lindsay and Rogers in connection with the "capital
gains tax credit," i.e., the retroactive"rollback" bill). Cobb never sug-
gested any wrongdoing by Governor Campbell. And Lee explained in
his subsequent testimony that he had mistakenly implicated Campbell
in the capital gains wrongdoing because, at the time when he had
originally spoken with the FBI, he had not been aware that there were
two different bills in the legislature concerning the capital gains mat-
ter -- the prospective legislation, which was a priority for the Camp-
bell administration, and the retroactive legislation, which was not.
J.A. at 1878-81 (testimony of Lee).19

D.

No more supportable were the district court's suggestions that
Richard Greer perjured himself before the grand jury and that the
prosecutors suborned that perjury. Indeed, a simple reading of the
grand jury testimony itself reveals that it is not even arguable that
Greer was intentionally misleading the grand jurors.

As the district court noted, 956 F. Supp. at 643-44, Greer testified
before the grand jury on May 23, 1991. During that testimony the fol-
lowing exchange occurred between Assistant United States Attorney
Barton and Greer:
_________________________________________________________________
19 Likewise unsupported by the record is the district court's suggestion
that Senator William Richard Lee's December 3, 1990, statement,
through counsel, that he was present at a meeting in the spring or sum-
mer of 1988 with Governor Campbell and his staff where he was told
that the capital gains legislation was "the most important legislation to
the governor's office for this legislative year[and] [i]f anybody raises a
question about it, you are to sweep it under the rug," 956 F. Supp. at 644,
implicated Governor Campbell and Greer in wrongdoing. Senator Lee
testified under oath post-trial that he did not know of or have any infor-
mation as to any illegality by Governor Campbell with respect to the cap-
ital gains legislation. J.A. at 1666. In fact, Senator Lee testified that he
never "had any information as to any illegal conduct by anybody regard-
ing the capital gains bill." J.A. at 1666.

                     54
          Q: Were you aware of any monies paid to any legislators in
          effort (sic) to influence their vote in connection with the
          capital gains rollback bill?

          A: No.

          Q: How about in connection with the Governor's change,
          the bill that was his priority?

          A: Absolutely not.

J.A. at 2596-97. The district court seemed to believe that this testi-
mony was perjurious because,

          [i]t is obvious from the government's argument for a down-
          ward departure for Greer that Greer had knowledge as early
          as December of 1990 that payoffs had been made by Cobb
          to Lindsay and Rogers. USA Daniel, who was present at the
          Christmas 1990 meeting, and who was, or should have been,
          privy to information given at other debriefings of Greer, was
          also present when AUSA Barton questioned Greer before
          the Grand Jury. Daniel did nothing to correct Greer's testi-
          mony that he was not aware of any illegal payoffs to legisla-
          tors.

956 F. Supp. at 643; see also id. at 660 ("[Greer's] testimony before
the Grand Jury would have to be perjured if the arguments advanced
by the government at Greer's sentencing are true."); id. ("The court
further finds that the government did, in fact, allow testimony from
. . . Greer that it knew to be untrue to stand uncorrected.").

Again, as with the district court's remarks concerning the govern-
ment's investigation of the unrelated capital gains matter, we are at
a loss even to understand why the district court was addressing itself
to Greer's testimony before the grand jury investigating the capital
gains matter. That matter, and Greer's testimony in connection with
that matter, were peculiarly irrelevant to the Lost Trust matter which
was pending before the district court.

                     55
In any event, it is painfully clear that the district court simply, and
clearly, erred in its charge of perjury against Greer, and therefore also
in its related charge of subornation of perjury by prosecutors Daniel
and Barton. Greer was not asked by Barton "Are you aware of any
monies paid to any legislators in effort (sic) to influence their vote in
connection with the capital gains rollback bill?" Rather, he was asked
"Were you aware of any monies paid to any legislators . . . ." The
question, in context, if not also by its terms, elicited a response from
Greer as to whether he knew of any such payments at or about the
time they were made in 1988, not whether, as of the time of his testi-
mony in 1991, he knew of such payments. This is not a "play with
semantics," as the district court characterized it, id. at 643-44; these
are different questions -- and self-evidently so.

By the time of his grand jury testimony, Greer obviously knew of
the payoffs to Rogers and Lindsay and was not in any way attempting
to deceive the grand jury as to this knowledge. This is clear from his
testimony only moments later in response to a question from a grand
juror -- testimony not mentioned by the district court -- in which
Greer explicitly distinguishes between his knowledge at the time of
the payments and his later understanding:

          GRAND JUROR: Would you be surprised if you were told
          that several legislators were paid large sums of money out
          of the monies received from Mr. Roe and Mr. Brashier?

          GREER: Well, I think it -- I would have been surprised at
          the time. Certainly in retrospect it would be kind of foolish
          not to be surprised.

J.A at 2603. As Greer subsequently explained under oath in October
of 1995 when specifically asked about his grand jury testimony by
defense counsel Lofton, and in response to further questioning in the
same hearing, he answered the question put to him before the grand
jury, which was whether, at the time of the bribes of Rogers and Lind-
say, he was aware of any illegal payments of money in connection
with the capital gains bill. J.A. at 1812-14, 1849-50, 1854-55. At the
same time, he made clear to the grand jurors in the very same testi-
mony that, although he was not aware of any bribes at or about the
time that they occurred, he subsequently became aware of these ille-

                     56
gal payments, as did everyone else in the community. 20 In conclusion,
the district court clearly erred in its "findings" of perjury by Richard
Greer and subornation of that misperceived perjury by Daniel and
Barton.

E.

In addition to suggesting that the government had suborned perjury
by Greer, the district court also suggested in its order dismissing the
indictments that the government had suborned perjury by Cobb and
that Special Agent Clemens -- and perhaps AUSA Barton -- had
themselves committed perjury before the court. Like the district
court's suggestion that Greer perjured himself, these suggestions are
without support in the record.

The district court relied on the defendants' allegation that the gov-
ernment allowed Cobb to commit perjury at Taylor's trial when he
testified, without correction, that he had never given Senator Lindsay
_________________________________________________________________
20 Greer's testimony is fully consistent with that of Special Agent Davis
on July 31, 1991, at Greer's sentencing hearing. At that hearing, Davis
testified:

          Your Honor, last Christmas the FBI approached Dick Greer for
          the first time in connection with our drug investigation of Mr.
          Greer. This was prior to the Jack Rogers' indictment. At that
          time, Mr. Greer provided us with information concerning the
          capital gains tax investigation. Mr. Greer essentially told us that
          lobbyist Ron Cobb had approached him and told him that he
          needed more money to payoff both Jack Rogers and Senator Jack
          Lindsay in connection with the capital gains tax bill. He told us
          this is the first time that he knew what Ron Cobb-- what he was
          doing was illegal.

J.A. at 1074. The fact that the defendants omit the final italicized sen-
tence from this testimony when they discuss the issue of Greer's alleged
perjury, see Br. of Appellees at 70; compare 956 F. Supp. at 642-43 (dis-
trict court quoting Davis' statement), all but confirms that even they
understand that Greer's grand jury testimony, Davis' testimony, and the
government's representations were all consistent. See also Br. of Appel-
lees at 70 (conceding that Greer's testimony, if parsed, can be "plausibly
characteriz[ed] . . . as literally true and therefore not perjurious").

                     57
any "bribes or illegal money." 956 F. Supp. at 639-40. An examina-
tion of the record reveals, however, that Cobb consistently maintained
that, although he had given money to Lindsay over the years, he did
not believe those payments were bribes or were otherwise illegal
because he did not think they were made in exchange for specific
votes. Thus, while the FBI disagreed with Cobb's conclusion about
the legality of his payments to Lindsay, and repeatedly told him and
the court as much, it had no basis to question his (Cobb's) subjective
belief concerning the payments or their legality.

During the Taylor trial, Cobb was asked on cross-examination
whether he "had ever given bribes or illegal money to Senator Lind-
say," and Cobb replied, "No, sir, I have not given Senator Lindsay
any bribes or illegal money." Id. at 640. Cobb did not deny having
made payments to Lindsay, but insisted that, in his view, the pay-
ments were not illegal bribes. Indeed, he admitted giving Lindsay
"$10,000 all at one time," Br. of United States at 72 (quoting Taylor
N.169 at 58), but denied that he thought, or had ever said, that the
money was given "in exchange for [Lindsay's] vote or support for a
bill for the South Carolina Oil Jobbers Association in 1985 or 1986."
J.A. at 439.

This testimony by Cobb was perjurious only if he was misrepre-
senting his subjective belief as to the purpose and legality of the pay-
ments he made to Lindsay. It is, of course, difficult to prove that
someone is lying about their subjective beliefs and perceptions. See
United States v. Ellis, 121 F.3d 908 (4th Cir. 1997) (noting that an
allegation of perjury as to a "matter of perception" fails "absen[t] con-
clusive proof" that the witness testified falsely as to her belief, rather
than that she was merely mistaken in her subjective assessment of the
facts). Moreover, the prosecutors in this case suborned perjury only
if they actually knew that Cobb was testifying falsely about his sub-
jective beliefs; absent such actual knowledge, the prosecutors did not
suborn perjury, even if they suspected or had reason to suspect that
Cobb was lying about his view of the payments' legality. Hoke v.
Netherland, 92 F.3d 1350, 1360 (4th Cir. 1996).

Because Cobb consistently represented that his payments to Lind-
say were not bribes, the prosecutors had no basis for questioning the
veracity of Cobb's belief as to the payments' legality. Cobb's

                     58
response to the questioning at Taylor's trial was fully consistent with
his position throughout the Lost Trust investigation and trials. Cobb
always acknowledged that, over the years, he paid Lindsay money in
connection with Lindsay's position as a member of the South Caro-
lina Senate. See J.A. at 792 (Cobb testifying that Lindsay had "helped
me throughout my entire career, and any time I could make some
money and put some money his way, I did").

However, Cobb also adamantly and invariably maintained from the
outset of the investigation that he never gave Lindsay money in
exchange for a specific vote or any other specific official act. As
Cobb explained: "I gave Senator Lindsay money at different intervals,
I never gave Senator Lindsay any money for a specific vote. Because
he helped me on anything that I was doing. When I was making
money, is when I would pass some to him." J.A. at 802. Because
Cobb did not believe that the money was given in exchange for a spe-
cific quid pro quo, Cobb consistently maintained that it was not a
bribe. See, e.g., J.A. at 804 ("[The money paid to Lindsay] was not
a bribe, and at no time did I ever buy Senator Lindsay's vote, at no
time did I ever bribe Senator Lindsay."); J.A. at 810 ("[Y]ou can quiz
me until the Indians come home, but I'm not going to say I bought
Senator Lindsay's vote, it didn't happen."). 21

Cobb thus consistently refused to implicate Lindsay in any wrong-
doing, and he made it a condition of his cooperation with the FBI that
his testimony not be used to incriminate Lindsay. The FBI and prose-
cutors, in contrast, made clear to Cobb -- and to the district court --
from the outset that they disagreed with Cobb's characterization of
the payments to Lindsay, and that they intended to investigate Lind-
_________________________________________________________________
21 After being accused of perjuring himself in the Taylor trial, Cobb
took care in the later trials to make clear that he did not believe the pay-
ments were bribes, but that the government disagreed. See, e.g., J.A. at
881 ("I have been informed that from my vantage point that I -- I didn't
consider it a bribe, from the prosecutor's vantage point, it could be
labeled a bribe." (emphasis added)); J.A. at 989 ("I didn't label [the
$10,000 payment to Lindsay] a bribe . . . . I gave Senator Lindsay money
at different times. I am informed that it is a bribe, but to me it was not
a bribe.") (emphasis added). He never wavered from his position that he
did not believe that the payments he made were bribes.

                    59
say fully. See, e.g., J.A. at 846, 881, 989-90. That investigation was
ongoing when Lindsay died.

The government's disagreement with Cobb about the ultimate
legality of the payments, of course, demonstrates neither that Cobb
was, in fact, lying about his own view of the payments nor even that
the government believed that he was lying. Certainly, that disagree-
ment is not evidence that the government knew that Cobb was testify-
ing untruthfully about his subjective belief as to the payments'
legality. As Barton explained to the district court in 1991,

          Could I prosecute Jack Lindsay for that payment to Tom
          Magnum? I certainly could. I'm comfortable that I could do
          that. That doesn't mean that because I am convinced there
          is a case against Jack Lindsay that Ron Cobb has any under-
          standing as to the illegality of what he did.

J.A. at 846; see also 956 F. Supp. at 640 (quoting affidavit of Special
Agent Ronald L. Dick, which states that "Cobb would never allow the
payments [he made] to state senator Jack Lindsay to be characterized
as bribes. My position on this matter was similar to the old saying that
if it walks like a duck, talks like a duck, and looks like a duck, then
it must be a duck. After listening to Cobb try to characterize the pay-
ments made to Lindsay as anything other than bribery, I remain
unconvinced. As an FBI agent, it was clear to me that the monies paid
to Lindsay by Cobb were in violation of the Hobbs Act. Cobb, how-
ever, would never allow these transactions to be characterized as
bribes.").22 The district court itself recognized in a 1991 hearing that
even if everyone involved in the case other than Cobb believed that
his payments to Lindsay were bribes, that did not indicate that Cobb
_________________________________________________________________
22 The district court cites to this affidavit as confirming "the defen-
dants' allegations that the government was totally aware of the nature of
the Cobb payments to Lindsay." 956 F. Supp. at 640. The district court's
reliance on the affidavit as suggesting that the prosecutor suborned per-
jury merely underscores that the court's 1997 order failed to focus on the
critical difference between the government's objective disagreement with
Cobb's assessment of the legality of the payments and the government's
knowledge as to whether Cobb was misrepresenting his subjective
beliefs about those payments.

                    60
himself believed as much. In response to defense counsel's allegation
that Cobb had perjured himself, the court stated:

          THE COURT: Mr. Collins, that is what I am trying to tell
          you from the outset here when we got involved in this. You
          might think they are bribes and illegal money or whatever
          it is and I might think they are bribes and illegal money or
          whatever it was but Mr. Cobb stuck by the story from the
          outset. . . . [W]hat I am trying to tell you[is that Cobb] has
          always been consistent, they were gifts. He never denied
          that he didn't give [Lindsay] money . . . .

J.A. at 925.

Nevertheless, the district court concluded in its February 1997
order dismissing the indictments that Cobb had perjured himself. J.A.
at 63-40, 660. And, while the district court failed to make a specific
finding that the government knew that Cobb thought the payments
were illegal, it apparently concluded that the government had sub-
orned that perjury.23

Curiously, the arguments relied on by the district court in conclud-
ing that Cobb's testimony at the Taylor trial was, in fact, perjurious,
_________________________________________________________________
23 The district court concluded that the prosecution "was totally aware
of the nature of the Cobb payments to Lindsay," 956 F. Supp. at 634, but
allowed this perjured testimony to stand uncorrected. As discussed
above, the fact that the prosecution was aware of the facts surrounding
Cobb's payments to Lindsay and believed that the payments were proba-
bly illegal, is not a sufficient basis for concluding that the prosecution
suborned perjury. In the final section of its opinion, the district court also
included a conclusory statement that "[t]he court further finds that the
government did, in fact, allow testimony from Cobb, Clemens and Greer
that it knew to be untrue to stand uncorrected." Id. at 660. This general
statement -- made without any record support and without identifying
which alleged perjury was being referenced -- cannot fairly be viewed
as a finding that the government knew that Cobb was misrepresenting his
subjective belief about the nature of his payments to Lindsay, particularly
in light of the court's manifest failure in its 1997 order to appreciate the
crucial difference between the objective legality of Cobb's payments and
his subjective view of their legality.

                    61
were essentially the same arguments that it heard, considered, and
apparently rejected in February of 1991, when the allegation of
Cobb's perjury first surfaced. J.A. at 877 (denying defendants'
motion to dismiss). During their trial, Blanding and Gordon moved to
dismiss their indictment, alleging, in part, that Cobb had perjured
himself at Taylor's trial when he denied paying"bribes or illegal
money" to Lindsay. J.A. at 606-10. The district court held a detailed
and lengthy evidentiary hearing on that motion, and, the following
day, denied the motion to dismiss and rejected the defendants' request
that Cobb be precluded from testifying at their trials because of his
alleged "perjury" at Taylor's trial. 956 F. Supp. at 628.24

The district court abruptly reversed course in its February 1997
order. In that order, the district court concluded that Cobb had per-
jured himself and that the government had suborned that perjury
because "[t]he evidence now shows" that 1) Cobb "discussed payoffs
in connection with the capital gains tax bill with SA Clemens, with
Greer, and in the presence of Randy Lee, all of whom knew that the
Cobb payments to Lindsay were, in fact, illegal;" and 2) that Cobb
"admitted to SA Richards on May 1, 1989, that he paid $20,000 in
illegal monies to Lindsay and Magnum for their influence in passing
the oil jobbers bill," and that Richards' polygraph of Cobb confirmed
as much. 956 F. Supp. at 640. Despite the district court's intimation
that the state of the evidence had changed substantially since its Feb-
ruary 1991 hearing on the issue, the basic arguments on which its
1997 ruling were based were rejected by the district court in 1991 and
properly so.

The district court's first observation in its 1997 opinion that Cobb
discussed "payoffs" to Lindsay with Special Agent Clemens (and oth-
ers outside the United States government such as Greer) who knew
of the payments' illegality demonstrates only that the government
knew that Cobb had made payments to Lindsay and that the govern-
ment believed that those payments were illegal under the Hobbs Act.
The government has never contested either of these conclusions. As
discussed above, that belief by the government demonstrates neither
_________________________________________________________________
24 Two months later, the district court again rejected the defendants'
claims of perjury because "[Cobb] sticks by the same story everywhere
he goes." J.A. at 919.

                    62
that Cobb was lying about his subjective belief about the payments
nor that the government believed that he was.

The district court also appears to have concluded that Cobb actu-
ally characterized his payments to Lindsay as illegal payoffs when he
described the payments to Special Agent Clemens. In support of that
conclusion, the district court cites to a September 25, 1989, FBI 302
of an interview of Cobb by Special Agent Clemens,"in which the
payments to Lindsay by Cobb . . . were characterized as `payoffs.'"
Id. at 639. However, the fact that the FBI 302 characterizes the pay-
ments to Lindsay as "payoffs" does not mean that Cobb himself so
characterized the payments. The words recorded in the FBI 302 are
the FBI agent's characterization of what Cobb said, not the words that
Cobb actually spoke. FBI 302s are "routinely prepared" merely as
"the agent's personal summary of the interview to serve to refresh his
memory in later preparing a written report of the investigation,"
United States v. Peterson, 524 F.2d 167, 175 & n.11 (4th Cir. 1975),
and are not intended to be verbatim recitations of the interviewee's
statements.

Nothing in the Clemens 302 of Cobb indicates that Clemens was
attempting to recite verbatim the words that Cobb himself spoke.
Rather, Special Agent Clemens -- who believed that the money Cobb
gave to Lindsay was an illegal payoff regardless of Cobb's character-
ization of the payments -- recorded Cobb's statements from his own
perspective and thus used the word "payoffs"-- with its attendant
connotations of illegality -- to characterize Cobb's payments to Lind-
say. Indeed, when interviewed by OPR, Clemens explained that he
thought the term "payoff" in the 302 was "more my [Clemens'] term."
J.A. at 2739.25 Even more significantly, the district court itself earlier
recognized the crucial distinction between an agent's characterization
of what Cobb said and what Cobb actually said and rejected the
defense argument that Cobb had necessarily spoken words recorded
in the 302s. J.A. at 927; see also J.A. at 757 (district court at the 1991
evidentiary hearing describing the defense perjury argument as resting
on the apparent "conflict in [Cobb's] testimony, and what he told
_________________________________________________________________
25 Additionally, Clemens' rough notes for this 302 do not contain the
word "pay-off" in the portion dealing with Lindsay's involvement in the
capital gains matter. J.A. at 2740 n.20.

                    63
these agents, or what these agents reduced to writing in these 302's"
(emphasis added)). This same logic makes clear that Special Agent
Clemens' use of the term "payoff" in his September 25, 1989, FBI
302 does not demonstrate that Cobb called the Lindsay payments a
payoff or otherwise believed that they were illegal. 26

The district court also relied on an interview and polygraph of
Cobb, which was conducted by Special Agent Richards, in conclud-
ing that Cobb's testimony was perjurious. According to Richards'
notes of that May 1, 1989, interview, Cobb "asked Senator Lindsay
what it would take to obtain Representative Magnum's vote, and Sen-
ator Lindsay told him $20,000, $10,000 of which would be for Repre-
sentative Magnum and $10,000 for him (Senator Lindsay)." J.A. at
2181 (May 1, 1989, FBI 302 of Ron Cobb). As with the FBI 302s dis-
cussed above, however, these notes reflect Agent Richards' character-
ization of Cobb's testimony, rather than Cobb's own view about the
purpose of the payment to Lindsay. No one disputes that Cobb told
Richards during the interview and polygraph that he had paid $10,000
to Representative Magnum in exchange for Magnum's vote on the Oil
Jobbers Bill, that Senator Lindsay acted as an intermediary for that
payment, and that, at the same time that he gave Lindsay $10,000 to
give to Magnum, he gave Lindsay $10,000 to keep. However, when
Special Agent Richards was specifically questioned at the February
1991 evidentiary hearing about how Cobb had described the purpose
of the $10,000 payment to Lindsay, Richards admitted that although
he understood that the $10,000 payment to Lindsay was for "getting
Representative Magnum's vote," J.A. at 781, Cobb did not indicate to
Richard that that was the purpose of the payment, id. And, in fact,
Richard testified that the purpose of the payment to Lindsay was not
discussed at all. Id. Indeed, when asked whether he believed that
Cobb knew he was making illegal payoffs to Lindsay, Richard replied
that, while he had explained the Hobbs Act to Cobb at the beginning
of the interview and he and Cobb were "talking about payoffs" in the
_________________________________________________________________

26 The identical analysis also applies to the other documents -- mainly
FBI internal teletypes -- cited by defendants in their brief. See Appel-
lees' Brief at 59-60. These documents did not purport to recite verbatim
Cobb's own description of the payments he made to Lindsay, but rather
reflected the FBI's assessment of those payments.

                    64
interview generally, J.A. at 787, he "obviously .. . c[ould]n't say what
is in a guy's mind," id.

In his testimony at the February 1991 evidentiary hearing Cobb
denied that the $10,000 payment was in exchange for Lindsay's
securing Magnum's vote and confirmed that he and Richards had not
discussed the purpose of the payment to Lindsay. J.A. at 791-92.
When pressed about how he would characterize his payment to Lind-
say, Cobb described it as a "gift," J.A. at 793, and contrasted it with
the $10,000 payment he made to Magnum to buy Magnum's vote,
J.A. at 794.

After receiving all of this testimony and hearing argument from the
defense, the district court itself was unable to conclude that Cobb had
perjured himself, stating that while "it would be farfetched to believe
all that we have heard here this afternoon, . . . I don't know that it's
that crime of perjury that we are talking about." J.A. at 843. Thus, the
district court correctly concluded that while Cobb's testimony was,
without any question, "farfetched," there is simply no evidence in the
record that he was lying about his subjective belief as to the legality
and purpose of his payments to Lindsay. The district court's February
1997 opinion fails to explain why, at that late date, the court con-
cluded otherwise -- and the record does not support the conclusion
ultimately reached by the court.27
_________________________________________________________________
27 At the 1991 evidentiary hearing the court also heard and considered
the fact that Cobb initially failed a polygraph examination given by Rich-
ards during the interview regarding the Oil Jobbers bill. In that examina-
tion, Cobb was asked whether he had paid Senator Magnum $10,000
through an intermediary. Cobb failed the polygraph until he revealed that
Lindsay was the intermediary for the payment to Magnum. 956 F. Supp.
at 638. In its order dismissing the indictments, the district court con-
cluded, contrary to its implicit conclusion in 1991, that "[t]his [fact]
alone refutes the government's argument that `Cobb has consistently
adhered to his subjective view of the facts during the investigation.'" Id.

The fact that Cobb failed the polygraph test when he was concealing
the fact that Lindsay served as his intermediary in paying Senator Mag-
num does not establish, however, that Cobb believed that he had bribed
Lindsay. Cobb was not asked during the polygraph whether he had made
an illegal payment or bribe to Lindsay; "[t]he issue that [Richard] poly-

                     65
F.

In addition to the allegations that the government had suborned
perjury by Cobb about Lindsay's involvement in the capital gains
matter, the district court also suggested that Special Agent Clemens,
and perhaps Assistant United States Attorney Barton, had perjured
themselves by denying the existence of an FBI 302 of Cobb discuss-
ing the capital gains matter. 956 F. Supp. at 639-40. At the time of
the Gordon/Blanding trial, defense counsel asked the government for
any 302 about Cobb's involvement in the capital gains matter. Special
Agent Clemens testified at the 1991 evidentiary hearing that he did
not do an FBI 302 of any interview with Cobb about the capital gains
matter and that he did not have any rough notes of such a discussion.
J.A. at 836-37. AUSA Barton also told the court that no secret Cobb
302 discussing Lindsay's involvement in the capital gains matter
existed that had not been turned over to the defense. J.A. at 657 ("[I]f
he's looking for the secret 302 of Ron Cobb where this is discussed,
it does not exist. There is no such 302 concerning that . . ."). The gov-
ernment concedes that these statements by Clemens and Barton were,
in fact, incorrect. Br. of United States at 81-82. The September 25,
1989, Clemens FBI 302 of Cobb, discussed above, included one para-
graph addressing the capital gains matter, and that 302 was not made
available to defendants until 1993, after the cases were remanded for
retrial. The government contends, however, that neither Clemens nor
Barton intentionally misled the court.

The district court did not specifically find that either Clemens or
Barton intentionally misrepresented that the FBI 302 did not exist,
and we believe that the record does not support the defendants'
charges of deliberate misconduct. Instead, the evidence suggests that
_________________________________________________________________

graphed [Cobb] on was whether or not he in fact paid Representative
Mangum [sic] the $10,000 through the intermediary." J.A. at 778. As
Richard explained, Cobb initially failed the polygraph ("showed decep-
tion"), not because he refused to admit that he had paid Lindsay an ille-
gal bribe, but because he failed to divulge that Lindsay had acted as an
intermediary in the payment to Magnum, and that withholding of infor-
mation registered on the polygraph.

J.A. at 779.

                     66
the misstatements by Clemens were the result of oversight, disorgani-
zation, and forgetfulness and that Barton never saw the FBI 302 at the
time of the original trials. Our conclusion is bolstered by the report
of the internal investigation by the Office of Professional Responsibil-
ity, which also found that there was no evidence that either Clemens
or Barton intentionally misled the court. J.A. at 2742 ("On the central
allegation of intentional concealment by the prosecutors, we find the
evidence insufficient to support it."); J.A. at 2749 ("[O]ur investiga-
tion has developed no evidence that there was any intentional mis-
leading of the court or of the defendant . . . .").

Agent Clemens explained in his OPR interview that he never
viewed the FBI 302 as having "any particular significance," J.A. at
2734, and that he "forgot it ever existed," J.A. at 2737. Moreover,
Clemens indicated that he was "shocked" when he learned of the
302's existence and that his misstatements to the court were "extraor-
dinarily embarrassing" to him. J.A. at 2738. The district court was
apparently skeptical of Clemens' explanation for his misstatements
because Lindsay was a "big fish" in South Carolina politics and any
suggestion that he was involved in corruption was"explosive" and not
likely to be forgotten. 956 F. Supp. at 640. However, as Clemens
explained, he knew of Cobb's allegations about Lindsay's involve-
ment in the capital gains matter well before September of 1989 and
thus the few isolated statements about the matter in the September 25,
1989, FBI 302 (which focused largely on other matters) could reason-
ably have slipped his mind. Clemens did not claim that he forgot
about Lindsay's alleged involvement in the capital gains matter alto-
gether, but rather only that he forgot that there was a September 1989
FBI 302 that mentioned Lindsay's involvement. Moreover, Clemens
indicated that in September of 1989 he was preoccupied with the
logistics of the sting operation, J.A. at 2734, and that he did not con-
sider his conversation with Cobb about the capital gains investigation
important because the information Cobb provided about Lindsay's
connection to the capital gains matter related "only [to] a historical
case that we would look at eventually." J.A. at 2738.

As to AUSA Barton, the district court stated only that "AUSA Bar-
ton was handling the discovery for the Taylor trial, and any FBI 302
mentioning [inter alia, the capital gains related payment to Senator
Lindsay] would certainly have been noticed by him, yet he denied the

                    67
existence of the `secret 302.'" 956 F. Supp. at 641. Obviously, how-
ever, Barton would only have noticed the FBI 302 if it was provided
to the prosecutors, and thus any finding of deliberate concealment is
necessarily predicated on the assumption that Clemens transmitted the
FBI 302 to the prosecutors. Such an assumption cannot be sustained
on this record. All record evidence indicates that Clemens did not pro-
vide the FBI 302 to the prosecutors until after the trials in question.
Clemens himself indicated that he probably was not passing along to
the AUSAs what Cobb was saying in the Fall of 1989 because Clem-
ens was so busy with the details of the undercover operation. J.A. at
2734. And none of the prosecutors recalls having seen the FBI 302
at the time of the original trials. J.A. at 2742. As the OPR report sum-
marized the evidence:

          Neither SA Clemens nor anyone else from the FBI claimed
          to have transmitted [the September 25, 1989, 302 or the
          June 22, 1989, 302] to the USAO, and no one in the USAO
          remembers having seen [the 302s] during the time that dis-
          covery was being given in the Taylor and Bland-
          ing/Gordon/Derrick cases. In particular, as for the
          September 25, 1989 302, none of the prosecutors involved
          -- AUSA Barton, DuTremble, Daniel, Lydon and Schools
          -- recalled having see it at least while the first several Lost
          Trust cases were being tried.

J.A. at 2742.

The district court never specifically addressed whether AUSA Bar-
ton (or any of the other prosecutors) had received the FBI 302 prior
to the trials. The district court does cite to an August 28, 1990, FBI
internal teletype, which the court apparently believed suggests that
AUSA Barton knew of the FBI 302 in question. The teletype, sent
from FBI-Columbia to FBI-Headquarters, requested authority for lob-
byist Randy Lee to use electronic recording devices to monitor his
conversations with Greer and stated, in part:

          Three CWs hereafter referred to as CW-1 [Lobbyist Lee],
          CW-2 [Senator Lee] and CW-3 [Cobb] have provided infor-
          mation that bribe payments were made to South Carolina
          State Representative John Irby Rogers, III, and South Caro-

                    68
          lina State Senator John Charles Lindsay, in order to ensure
          the passage of certain capital gains tax legislation in the
          State of S.C. during the 1988-89 legislative session.

J.A. at 2505. The last page of the teletype also recited that

          ASSISTANT UNITED STATES ATTORNEY John Barton
          is aware of the facts of this case and fully concurs with the
          use of consensual monitoring. Entrapment is not an issue
          based upon the facts obtained thusfar.

J.A. at 2508. Of course, one cannot reasonably infer from the fact that
AUSA Barton was aware of the "facts" of the capital gains matter that
he also knew of the existence of a particular FBI 302 discussing that
matter.28 See OPR Report, J.A. at 2745 ("[W]e find that there is insuf-
ficient evidence to show that any prosecutor even knew that [the 302]
existed at the time discovery was provided in the first two trials.");29
_________________________________________________________________
28 Defendants also cite to two other documents, not relied on by the dis-
trict court, which they claim indicate that Barton knew of the existence
of the FBI 302. See Appellees' Brief at 75. However, both of these docu-
ments -- like the FBI teletype discussed above-- indicate, at most, that
Barton was aware of Lindsay's involvement in the capital gains matter.
Nothing in either document suggests an awareness of a particular FBI
document discussing the matter.
29 The district court also criticizes the government for providing Taylor
with redacted versions of the May 1, 1989, Cobb 302 and the August 14-
21, 1990, Lee 302. 956 F. Supp. at 640. This criticism is particularly
unconvincing in light of the fact that the government redacted the FBI
302s with the knowledge and express approval of the district court. Tay-
lor specifically challenged the redactions to the May 1, 1989, Cobb FBI
302 prior to his trial, and the district court sustained the government's
decision to redact the 302. J.A. at 384. After the conclusion of Taylor's
trial, the court again rejected counsel's claim that the redaction of the
FBI 302 violated Brady. The court explained:

           You have to take that argument somewhere else because I
          don't buy that. They have been redacting things. You probably
          did when you were an Assistant U.S. Attorney. Nobody ever
          turned ongoing investigations over to the other lawyer or to the
          jury or to the public or anybody. I have and I protect innocent
          people, too, if they are out there.

J.A. at 936. The court's February 1997 order dismissing the indictments
does not even attempt to explain the court's about-face on this issue.

                     69
cf. Appellees' Brief at 77 (arguing not that Barton had personal
knowledge of the FBI 302 at issue, but only that"[h]e knew all about
capital gains and had a duty as an officer of the Court to be honest"
(emphasis added)).

***

We are, as we intimated at the outset of our discussion, reluctant
to criticize the district court for its errors, even though we consider
them numerous. For, we appreciate well that the countless proceed-
ings leading up to this appeal have spanned the better part of a
decade, that the documents generated in connection with this sprawl-
ing, multiple-defendant litigation are massive in number, and that the
discovery process was oppressive and time-consuming for the court,
and would have been so even if the court had confined discovery to
that evidence to which defendants were legally entitled. This kind of
protracted, zealously prosecuted and defended, record-intensive litiga-
tion would challenge the most encyclopedic of minds and try the
patience of even the most tolerant. Indeed, both the prosecutors and
the defense counsel themselves have had difficulty achieving a com-
mand of the voluminous documents generated and produced and
reigning in their own understandable frustrations. This said, however,
it still falls to this court to ensure that the law is respected. And, for
the specific reasons articulated, we find ourselves of the firm convic-
tion that the district court's assertions of intentional misconduct by
the government and its prosecutors are simply unsupported by the
record before the court, and, accordingly, that the district court clearly
erred in its conclusion that the United States engaged in "egregious
misconduct" in the trials of these defendants.

IV.

The order of the district court dismissing defendants' indictments
is vacated and the case is remanded with instructions to the district
court to reinstate the indictments and allow retrial of the defendants
by the United States.

VACATED AND REMANDED

                     70
WIDENER, Circuit Judge, concurring:

I concur in the opinion of the panel.

I concur in that opinion because I think it is of some consequence
that there be an opinion of the court instead of merely majority and
concurring opinions, and more especially because the parties have
requested our review of the record.

I would add a word, however. Left to my own devices, I am of
opinion that the action of the district court, in its examination and crit-
icism in this case of the government's handling of the similar but
unrelated investigation of the capital gains tax legislation, was so far
beyond its warrant that I would have vacated all of those findings for
that reason without further consideration.

                     71
