Michael William STRAND, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee, 780 F.2d 1497

BARRETT, Circuit Judge. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a), Tenth Circuit R. 10(e). The cause is therefore submitted without oral argument. Michael William Strand (Strand) appeals from an order of the district court denying his habeas corpus petition filed in accordance with 28 U.S.C. § 2255 (§ 2255). Strand was convicted after a jury trial of subscribing a false income tax return in violation of 26 U.S.C. § 7206(1) and fraud in the sale of securities in violation of 15 U.S.C. §§ 77q(

a) and 77x. On appeal Strand’s conviction was affirmed. United States v. Strand, 617 F.2d 571 (10th Cir.1980), cert. denied, 449 U.S. 841, 101 S.Ct. 120, 66 L.Ed.2d 48 (1980). In United States v. Strand, supra, we held, inter alia, that Strand was not entitled to a severance, the court did not err in detailing forth the burden of proof on the charge of fraud in the sale of securities, and that the evidence was sufficient to support a conviction for fraud in the sale of securities. Thereafter, Strand filed a habeas corpus petition in accordance with § 2255 and simultaneously moved for a new trial.

Strand’s motion for a new trial was predicated upon newly discovered evidence which allegedly established the Government’s failure to disclose, prior to trial, exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and the Jencks Act, 18 U.S.C. § 3500. Specifically, Strand alleged that a memorandum of interview with one Bruce Jensen, a witness who testified for the Government at trial, and an interview with one Carl Martin, who did not testify at trial, were not turned over to him prior to trial in violation of Brady v. Maryland and the Jencks Act.

After a hearing the district court denied Strand’s § 2255 petition and his motion for a new trial. In so doing, the district court found that the memorandum of the Jensen interview was not Brady material and that Martin’s statement was neither Jencks Act nor Brady material. On appeal we affirmed the district court and held: In the instant case, it is arguable that neither Jensen’s nor Martin’s statements to Harrington are within the purview of the Jencks Act or the Brady v. Maryland rule.

Jensen’s statement to Harrington, as memorialized by Harrington, is, to us, unclear and difficult to follow and is not necessarily inconsistent with Jensen’s testimony at trial.

But when these two statements are placed in the context of the earlier trial, we agree with the district court that any possible error in this regard was harmless and would not have changed the outcome of the trial____ Here, the newly discovered evidence, which, incidentally, related primarily to the tax fraud charge contained in count one of the indictment, and had no direct relationship to the securities fraud charge contained in count two, was impeaching and cumulative in its character, and, as did the district court, we believe disclosure of the evidence would not have changed the outcome of the trial.

United States v. Strand, decided August 27, 1982, Sl.Op. at pp. 6-7. On November 23, 1982, Strand filed a petition with the district court under Fed. Rules. Cr.Proc. rule 35, 18 U.S.C. seeking a reduction of his sentence and a second petition under § 2255. Strand’s § 2255 petition was based on the Government’s alleged failure to turn over certain exculpatory evidence, a letter, prior to trial.

On either December 22, 1983, or April 21, 1983, Strand “filed with the Court a ‘green folder’ containing numerous additional exculpatory items which were in the possession of the Government prior to trial but which had never been divulged” (Appellant’s Brief at 3). The district court heard oral arguments on Strand’s petitions on May 13, 1983. On August 3, 1983, the district court entered an order denying Strand’s § 2255 petition and granting Strand’s Rule 35 petition for relief from sentence: The present

section 2255 application, filed in November, 1982, is based on the alleged failure of the government to turn over to the defense before trial a letter from Agent Ronald L. Maley to C. Evan Wride, chief of the Intelligence Division of the Internal Revenue Service. The letter contains the description of an interview conducted by the F.B.I. with Peter James Gushi, an individual supposedly involved in some of the transactions forming the basis of the government’s case against Mr. Strand at trial.

The petitioner Strand alleges that the failure of the government to turn over this letter violates both the Jenks (sic) Act, 18 U.S.C. § 3500, and Brady v. Maryland, 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (1963). After reading the memoranda and exhibits and hearing the oral arguments of the parties, the court concludes that if the letter is Jenks (sic) Act material, the government’s failure to give it to the defendant was harmless error.

Before a new trial may be granted on such newly discovered evidence, the defendant must show, inter alia, that the newly discovered evidence is not merely cumulative or impeaching in nature, but is so material and of such character that a new trial would probably produce a different result. United States v. Maestas, 523 F.2d 316, 320 (10th Cir.1975). The letter from Ronald L (sic) Maley to C. Evan Wride is not of such character that it is at all likely to produce a different result at a new trial. Accordingly, the motion pursuant to

section 2255 should be denied. Hs sH ^ sjs & Mr. Strand has multiple sclerosis. His incarceration in federal prison resulted in serious manifestations of this disease, including partial blindness. The disease had not yet been diagnosed at the time of his sentencing. Consequently, at that time basic medical facts of serious consequences were in existence but unknown to the sentencing court, which would have influenced the court against a sentence of substantial confinement. A sentence based on false information is an illegal sentence. See, Townsend v.

Burke, 334 U.S. 736 [68 S.Ct. 1252, 92 L.Ed. 1690] (1948); Baker v. United States, 388 F.2d 931 (4th Cir.1968). The sentence in this case, which is based on a material misapprehension of basic facts and which the court is fully persuaded is erroneous in view of correct facts now come to light, meets the definition of an illegal sentence. A legal sentence contemplates that basic facts of substantive importance upon which the court grounds its decision are correct.

When they are not correct or when the court is uninformed of such facts at the time of sentencing, it should not shirk the responsibility to correct the sentence if the sentence is wrong in light of those facts. * H- * * # T In view of these circumstances, the court concludes that Mr. Strand’s sentence should be reduced. R., Vol. I at pp. 125-127. Strand filed a notice of appeal from the district court’s denial of his § 2255 motion on September 1, 1983 and his appeal was docketed on September 9, 1983.

On November 17, 1983, we entered a mandate dismissing the appeal for failure to prosecute; Strand filed a motion to reinstate the appeal on December 19, 1983. On December 29, 1983, Strand filed a motion to supplement the district court record alleging that “though there had been a mass [“green folder”] of exculpatory documentary evidence attached to the original petition, the opinion of the District Court referred to only one letter” (Appellant’s Brief at 4) and that “The purpose of the motion was to determine whether or not the Court had considered the supplemental information.” Id.

The district court declined to hear Strand’s motion, since Strand had already filed his notice of appeal. We reinstated Strand’s appeal on January 10, 1984. On February 29, 1984, Strand filed a petition with this court asking us to remand to the district court to give the district court the opportunity to clearly specify whether it had considered all of the relevant data in its August 3, 1983, decision. We returned the motion unfiled noting that since the record had not been forwarded to us, there was no need to remand to the district court.

On May 14, 1984, Strand filed a renewed motion to supplement the record with the district court. The district court denied Strand’s motion on December 26, 1984, and this appeal followed. On appeal Strand contends that (1) the district court erred by failing to consider documentary evidence of Government misconduct submitted as exhibits to appellant’s petition and by supplemental addendum thereto and (2) the district court applied the wrong burden of proof in denying his § 2255 petition. I.

Strand contends that the district court erred in failing to consider documentary evidence, i.e., a “green folder” containing some 26 exhibits, submitted as exhibits to his § 2255 petition by supplemental addendum thereto. The Government, in answer, argues that none of the documents were ever offered and never received in evidence. As such, the Government argues, Strand did not meet his burden of proof under § 2255 by introducing evidence in support of his allegations.

In response, Strand argues that these documents were properly before the court as exhibits to pleadings and should have been considered by the court even if the documents were not formally admitted into evidence. Neither the “green folder” nor the 26 exhibits are in the record before us; nor for that matter, does the record contain all of Strand’s many § 2255 pleadings which we earlier chronicled. Under such circumstances we cannot consider Strand’s allegations that the district court failed to consider certain documentary evidence. A similar problem arose in Strand’s first appeal, United, States v.

Strand, supra, in which we held: Whereas Strand attacks the sufficiency of the evidence under Count II vis-a-vis the participation of Bruce Allen Jensen as an officer of Associated Underwriters, he has failed to cause to be transmitted to this Court as part of the record on appeal, a transcript of the trial proceedings. See: United States v. Hubbard, 603 F.2d 137 (10th Cir.1979). Thus, we decline to consider any sufficiency of evidence contentions “since we cannot make a meaningful evaluation of the claim of error”. Herron v. Rozelle, 480 F.2d 282, 288 (10th Cir.1973). 617 F.2d at 578. II.

Strand contends that the district court applied the wrong burden of proof in denying his § 2255 petition. Strand argues that continued reliance on United States v. Maestas, 523 F.2d 316 (10th Cir.1975) and Wion v. United States, 337 F.2d 230 (10th Cir.1964) to deny relief in cases where the newly discovered evidence did not originate from a neutral source, but is shown to have been in the possession of the Government prior to trial is improper under United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

Strand quotes Agurs for the principle that: The fact that such evidence was available to the prosecutor and not submitted to the defense places it in a different category than if it had simply been discovered from a neutral source after trial. For that reason the defendant should not have to satisfy the severe burden of demonstrating that newly discovered evidence probably would have resulted in acquittal. 427 U.S. at 111, 96 S.Ct. at 2401. The above quoted language selected by Strand is, however, incomplete.

Following the quoted language the Agurs opinion read: If the standard applied to the usual motion for a new trial based on newly discovered evidence were the same when the evidence was in the State’s possession as when it was found in a neutral source, there would be no special significance to the prosecutor’s obligation to serve the cause of justice. On the other hand, since we have rejected the suggestion that the prosecutor has a constitutional duty routinely to deliver his entire file to defense counsel, we cannot consistently treat every nondisclosure as though it were error.

It necessarily follows that the judge should not order a new trial every time he is unable to characterize a nondisclosure as harmless under the customary harmless-error standard. Under that standard when error is present in the record, the reviewing judge must set aside the verdict and judgment unless his “conviction is sure that the error did not influence the jury, or had but very slight effect.” Kotteakos v. United States, 328 U.S. 750, 764 [66 S.Ct. 1239, 1247, 90 L.Ed. 1557 (1946) ].

Unless every nondisclosure is regarded as automatic error, the constitutional standard of materiality must impose a higher burden on the defendant. The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record.

If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt. 427 U.S. at 111-113, 96 S.Ct. at 2401-2402 (footnotes omitted) (emphasis added). Aqurs was recently clarified in United States v.

Bagley, — U.S.-, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) in which the court opined that in “cases of prosecutorial failure to disclose evidence favorable to the accused: the evidence is rational only if there is reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. At-, 105 S.Ct. at 3384. In Bagley the court defined a “reasonable probability” as a “probability sufficient to undermine confidence in the outcome.” Id.

Applying this standard to the facts herein, we hold that even if the district court did limit its consideration of Strand’s petition to our decisions in United States v. Maestas and Wion v. United States, error, if present, was harmless. The omitted letter from Agent Maley to C. Evan Wride, supra, did not “create a reasonable doubt that did not otherwise exist” in violation of Agurs. See also United States v. Sutton, 767 F.2d 726 (10th Cir.1985). AFFIRMED. . The briefs set forth conflicting dates.