Full opinion text
MEMORANDUM OPINION AND ORDER HAIGHT, Senior District Judge. Mutulu Shakur and Marilyn Jean Buck petition this Court, pursuant to 28 U.S.C. § 2255, for a writ of habeas corpus setting aside their prior conviction, and under Rule 33, Fed.R.Crim.P., for a new trial. Petitioners couple these demands with a request for an evidentiary hearing. The government resists Shakur’s and Buck’s petitions in their entirety and asks that they be dismissed without an evidentiary hearing. BACKGROUND Procedural History of the Case In separate indictments returned by grand juries of this District, Shakur and Buck each were charged with conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (“RICO”), participation in a racketeering enterprise, bank robbery, armed bank robbery, and bank robbery murder, in violation of 18 U.S.C. §§ 1961, 1962(d), 1962(c), 2113(a), 2113(d), 2113(e), and 2. The indictments were consolidated for trial. On May 11, 1988, after a six-month trial, the jury convicted Shakur and Buck on all charges. Following unsuccessful post-trial motions, on August 2, 1988 this Court imposed prison sentences on both defendants. Shakur and Buck appealed from their convictions. The Second Circuit affirmed. 888 F.2d 234 (2d Cir.1989). The Supreme Court denied certiorari. 493 U.S. 1087, 110 S.Ct. 1152, 107 L.Ed.2d 1056 (1990). On April 23, 1997, Shakur filed his present petition for habeas relief, under docket number 97 Civ. 2908. Buck filed her petition on May 5, 1997, under docket number 97 Civ. 3247. The petitions are for the most part based on the same grounds. This Opinion resolves both of them. Timeliness of the Petitions Before considering the merits of these petitions, the Court raised sua sponte their timeliness, in light of the statute of limitations contained in the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AED-PA”), effective April 24, 1996. The parties were directed to brief the issue, with particular reference to Peterson v. Demskie, 107 F.3d 92 (2d Cir.1997). Counsel for petitioners contended that the petitions were not time barred by the AED-PA. The government contended that they were. However, the government conceded during oral argument on June 26, 1998, that the Second Circuit’s subsequent decision in Mickens v. United States, 148 F.3d 145 (2d Cir.1998), resolved the timeliness issue under the AEDPA in petitioners’ favor. Accordingly, I turn to the grounds upon which petitioners assert a right to habeas corpus relief. The Grounds for the Petitions Shakur’s petition, filed first, sets forth the asserted grounds for relief in detail. Buck’s petition, with one exception, essentially echoes those grounds. The Shakur petition originally asserted four grounds: (1) the government’s failure to disclose to defendant evidence favorable to the defendant, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny; (2) the government’s knowing use of perjured trial testimony to obtain defendant’s conviction; (3) the government’s deprivation of defendant’s constitutional right to confront the principal witness against him; and (4) the obtaining of defendant’s conviction “by use of evidence which was based upon unscientific, unreliable and improper examination, testing and conclusions at the Federal Bureau of Investigation (‘FBI’) Laboratory.” Buck’s petition adopts these grounds, and adds the claim that the government’s principal witness gave perjured testimony to the grand jury. Shakur’s fourth claim, challenging the quality of the scientific work performed by the FBI laboratory, has not been further pursued. That claim was based on an April 1997 report by the FBI Inspector General that was critical of the analyses performed by certain specialized sections of the agency’s laboratory. At trial, an FBI laboratory employee gave fingerprint testimony with respect to Shakur. The government points out in its answering papers that the performance of the fingerprint section was not implicated by or criticized in the Inspector General’s report. Shakur’s briefs and affidavits say no more on the subject. The briefs for Buck are equally silent with respect to the FBI laboratory. I regard the claim as having been abandoned by both petitioners. As will be seen, the petitioners’ remaining claims all arise out of two written statements furnished to counsel for Shakur by an individual named Claude Strickland. I will consider the Strickland statements in detail. First, however, it will be necessary to place them within the context of the trial evidence elicited by the government and the defendants-petitioners. The Case for the Government The government’s trial theory, which it proved to the jury’s satisfaction, is summarized by the Second Circuit, 888 F.2d at 236: Shakur and Buck were participants in a group known as the “family”, organized in mid-1970s to further its conception of the Black struggle in America. Although the “family’s” goals were largely political, their means of attaining those goals were violently criminal. From December 1976 to October 1981, the “family” committed a succession of robberies and attempted robberies of armored trucks in the Northeast. Shakur was one of the leaders of a small circle of men who planned an executed the robberies, while Buck was a member of the so-called “secondary team”, a group consisting mostly of women who assisted in the robberies by driving get-away cars, planning escape routes, and renting “safe houses”. The “family’s” final and most notorious crime, the “Brinks robbery” of October 20, 1981, resulted in the shooting deaths of a Brinks guard and two officers in Nanuet and Nyack, New York. That summary may usefully be expanded by giving the dates of the several acts of violence charged against Shakur and Buck in the separate indictments against them. The pattern of racketeering activity-charged against Shakur included: the attempted armed robbery of an armored truck in Pittsburgh, Pennsylvania, on December 6, 1976; the kidnapping of two prison employees in the course of breaking inmate Joanne Chesimard, a/k/a/ “Cleo,” a/k/a “Assata .Shakur,” out of the Clinton, New Jersey Correctional Facility on November 2, 1979; the armed robbery of. approximately $521,000 from an armored truck in Inwood, New York, on April 22, 1980; three attempted armed robberies of an armored truck in Danbury, Connecticut, the last of which occurred on March 23,1981; the robbery of approximately $292,000 from an armored truck in the Bronx, New York, on June 2, 1981, and the murder of an armored truck driver during the course of that armed robbery; three attempted armed robberies of an armored truck at the Chemical Bank in Nanuet, New York, from approximately the summer of 1980 through the spring of 1981; the armed robbery of approximately $1.6 million from an armored truck and the murder of an armored truck driver at a shopping mall in Nanuet, New York, on October 20, 1981, and the murders of two police officers during the course of the ensuing shoot-oút with police in Nyaek, New York, on the same day. The. pattern of racketeering activity charged against Buck included: the kidnapping of two prison employees in the course of the Chesimard prison break-out on November 2, 1979; the armed robbery of the armored truck in Inwood, New York, on April 22, 1981; the armed robbery of the armored truck in the Bronx, New York, and the murder of the armored truck driver, both occurring on June 2,1981; and the armed robbery of an armored truck and the murder of the armored truck driver in Nanuet, New York, and the later murders of two police officers during the shoot-out in Nyaek, New York, all occurring on October 20,1981. The principal fact witness for the government was Tyrone Rison. Rison, who had entered into a cooperation agreement with the government, testified that he was a member of the “family” and participated in most of the crimes charged in the indictments. The exceptions were the first of these, the December 6,1976 attempted bank robbery in Pittsburgh (Rison had not yet joined the group), and the last, the Nanuei/Nyack episode (Rison having declined to participate in it). Rison gave evidence describing Shakur and Buck (who, he testified, joined the group in 1978) as participants in a number of crimes charged in the indictments. The Case for Shakur Shakur’s defense had at its core the proposition that while his political goals were to further the fortunes of African-Americans, his means were peaceful and law-abiding, rather than violent and criminal. While Shakur did not testify in his defense, he called 26 witnesses, the majority of whom testified about Shakur’s public, political, and non-violent activities, extending over a number of years, and the concerns about governmental persecution that Shakur harbored as a result. In addition to calling fact and expert witnesses to challenge certain aspects of the government’s proof against Shakur, his attorneys vigorously attacked the credibility of Rison. The Case for Buck In a similar vein, Buck called witnesses who sought to portray her as a political activist, most, recently concerned with what she perceived as the African-American liberation struggle, but not a participant in violent crimes in aid of that struggle. Fact and expert witnesses were also called in an effort to meet some of the government’s proof with respect to particular incidents. Buck’s counsel also assailed Rison’s credibility. Buck did not take the stand. The Strickland Declarations Claude Strickland gave two written declarations, made under penalty of perjury, to counsel for Shakur in connection with the present petition. .Counsel for Shakur say that they used the New York Freedom of Information Law, an Article 78 proceeding, and private investigators, who eventually led counsel to Strickland in January 1997. Affidavit of Michael W. Warner, Esq., co-counsel for Shakur, verified March 11,1998, at ¶¶ 2-4. Strickland’s first declaration is dated April 18, 1997 and was submitted with Shakur’s initial papers. His second declaration is dated December 16, 1997, and was included in Shakur’s reply to the government’s answering papers. I shall refer to these two documents as “CS1” and “CS2” respectively. Strickland says that he is a retired police officer, having served on the New York City Police Department (“NYPD”) for 25 years, and in the NYPD’s Intelligence Division during the period covered by his statements. CS1, ¶ 1. Between 1967 and 1979, Strickland was working undercover, joining groups and submitting written reports to the Intelligence Division on the activities of those groups and its members. In 1967, Strickland was a member of the Brooklyn Congress of Racial Equality (“CORE”). In 1968, he joined an organization called the Republic of New Afrika [sic ] (“RNA”), where he met Mutulu Shakur and Tyrone Rison. CS1, ¶2. While working undercover with a number of organizations, Strickland “was known on the street by the name Ky Farm or Claud Farm. A number of the people who were involved in the RNA and other Black militant organizations knew me as Claud.” CS2, ¶ 6. Rison and Strickland served together on “Security” for the RNA during the course of many public events, both carrying firearms. Strickland says that Rison appeared to him “to be anxious to do more militant action,” and “would talk about violence,” but Shakur “tried to calm him down and was concerned that the people involved in security not get involved with anything else.” CS1, ¶ 3. RNA Security “was a defensive group and certainly not a military force,” involved in providing protection against any disturbances at RNA events. CS1, ¶ 4. This security force, called “the Black Legion” of the RNA, “was not involved in organizing any violent or criminal activities.” On the contrary, Strickland concluded from his participation and observation that “the Black Legion was involved in trying to prevent any violence.” CS2, ¶ 5. During his undercover activities, Strickland knew Mutulu Shakur by his given name, Jeral Williams, as well as by his African name. During the early years of his undercover work Strickland often referred to Shakur as “Brother Jeral.” CS2, ¶ 9. Expanding upon Strickland’s observation of and associations with Shakur, typewritten ¶ 7 of CS1 reads as follows: I believe I first met Dr. Shakur in 1968. I first saw him at the CORE office in Brooklyn. I also saw him at RNA meetings, events and activities. I saw him also at the Lincoln Detox Center at Lincoln hospital. During this entire period I reported on Dr. Shakur — what he was doing, saying and participating in. It is my best recollection that I never saw him with an automatic or semi-automatic rifle. I never heard him participate in a discussion that I believed to be a plan to do a criminal act and I never saw him do a criminal act. What I observed and heard concerning Mutulu Shakur showed him to be an active participant in the militant part of the Black Nationalist movement but not someone engaged in criminal or violent behavior. For example, Dr. Shakur and I were both at an RNA Convention at the' New Bethel Church in Detroit, Michigan in 1969 when there was a shoot out resulting in the death of one police officer and serious injury to another. Dr. Shakur did not engage in any of the shooting or violence. That language is followed by a handwritten notation, initialed by Strickland: I was outside of the church when the shooting took place and did not observe anyone shooting. I cannot say that I never heard him talk about a criminal act. It has been so long ago that I don’t recall. I cannot remember any criminal acts that he was involved in or if he had any kind of weapon. ¶ 8 of CS1 reads as follows: During this entire period, Dr. Shakur actively participated in supporting cases involving RNA, Black Panther members and other Black militants who had been charged with criminal activity. He was involved in building public support and in obtaining information that might be helpful to the defense lawyers. He also served as a line of communication between the attorneys and the defendants who were put in jail. I know he would go to the court when some of these cases were on trial. He would participate in demonstrations on some of these cases and worked on getting out propaganda concerning defendants in these cases. I reported on all these activities although I do not recall thinking that any of this activity violated the law. In their discussions- of Rison the Strickland statements focus upon a rifle. CS1, ¶¶ 5 and 6 read as follows: 5. Mr. Rison had a rifle with a magazine. He showed us how to use it. He told me that he had got it off the base at Fort Bragg. He said that was when he was in Wilmington, N.C. The only person I ever saw with this weapon was Mr. Rison. I never saw Dr. Shakur with this weapon. 6. I reported about Mr. Rison and the automatic weapon to the Intelligence Division. I also reported that he said he had gotten the weapon from Fort Bragg: Dealing further with that subject, Strickland says in CS2, ¶ 3: When Mr. Rison told me that he had gotten the rifle off the base at Fort Bragg he did not say that he had gotten it from anyone else who had taken it from the base at Fort Bragg. In the way that Mr. Rison spoke I understood him to say that it was he who took the rifle off the base at Fort Bragg and that he had actually stolen it. He may not have used the word “steal”, but because of what he did say and his not describing anyone else involved in his getting the rifle I understood that what he was saying was that he had actually stolen the rifle which was at Fort Bragg. Strickland estimates that during his undercover work, he furnished the Intelligence Division with about 500 typewritten reports, concerning the RNA, Shakur, Rison, and other individuals. He further estimates “200 or more mentioned Mutulu Shakur’s name and 200 or more mentioned Tyron Rison’s name.” CSX, ¶ 9. With respect to these reports, and the question of Rison and the rifle, Strickland says in CS1, ¶ 10: There is no doubt that from the reports I handed in, the Intelligence Division knew of Mutulu Shakur from 1968 forward. Those reports associated him with the Black Nationalist movement in general and the RNA and militant Black activists, in particular. There is also no doubt that from my reports the Intelligence Division knew that Tyron Rison had gotten the automatic weapon from the base at Fort Bragg, that he was the only one who had this weapon and that I never' saw Dr. Shakur with that weapon. Strickland concludes CS1 by saying at ¶ 11: Some time prior to the federal trial of Dr. Shakur one of my chiefs at the Intelligence Division asked me what I knew about Dr. Shakur. They wanted me to write notes about Dr. Shakur — everything I knew, but not put my name on it. I refused to write notes without putting my name on them. I believe this information was asked of me for the Federal Government. Expanding on that ' subject in CS2, ¶ 4, Strickland reasons that the request from “someone at the Intelligence Division” for his notes about Shakur was made after the Nyack/Nanuet incident, “and the trial of Dr. Shakur was going to occur.” DISCUSSION Shakur and Buck petition to vacate their convictions and for a new trial on constitutional grounds and pursuant to Rule 33, Fed.R.Crim.P. They contend that the substance of Strickland’s declarations entitle them to habeas relief for-two reasons. First, petitioners argue that the government failed to disclose to them prior to trial the identity of Strickland, the nature of his undercover police activities, and his reports to the NYPD generated by those activities. Petitioners regard this non-disclosure as violative of Brady. Second, petitioners'argue that the Strickland declarations show that at trial the government made knowing use of perjured testimony by Rison. I will consider those contentions in order. A. Brady 1. General Principles “In order to establish a Brady violation, a defendant must show, inter alia, (1) that the government failed to disclose favorable evidence, and (2) that the evidence it suppressed was material.” United States v. Payne, 63 F.3d 1200, 1208 (2d Cir.1995), cert. denied, 516 U.S. 1165, 116 S.Ct. 1056, 134 L.Ed.2d 201 (1996) (internal quotation marks and citations omitted). As appears from the Second Circuit’s discussion at 63 F.3d at 1208-11, the second element articulated in Payne contains has two separate components: suppression of evidence by the government, and the materiality of the evidence suppressed. Furthermore, I think it evident that nondisclosed evidence must have been admissible at trial if known to the defense. Evidence cannot be material, as that element is construed, if it was not admissible, and so could not have come before the jury. Before further considering those components, one should note that evidence “favorable” to the defendant is defined broadly. “The government’s Brady obligation to disclose material evidence favorable to a criminal defendant applies not only to exculpatory evidence, but also to evidence that could be used to impeach government witnesses.” United States v. Orena, 145 F.3d 551, 557 (2d Cir.1998) (footnote and citations omitted). The government has a duty to disclose favorable evidence, “even if no specific request is made by the defense.” Payne, 63 F.3d at 1208 (citations omitted). Evidence favorable to the defendant must have been known to the government to implicate Brady, since “[t]he Brady obligation extends only to material evidence that is known to the prosecutor.” United States v. Avellino, 136 F.3d 249, 255 (2d Cir.1998) (citation omitted). See also Payne, 63 F.3d at 1208 (the government has “an affirmative duty to disclose favorable evidence knoum to it ”) (emphasis added). Absent prosecutorial knowledge, by definition there can have been no governmental suppression of evidence. But the boundaries of the government’s knowledge — actual or constructive, real or presumed, direct or imputed — are not drawn with precision. It is well settled that those boundaries extend beyond the individual prosecutor or prosecutors who obtain the indictment and conduct the trial. “[T]he individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government’s behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). “The individual prosecutor is presumed to have knowledge of all information gathered in connection with the government’s investigation.” Payne, 63 F.3d at 1208 (citing Kyles v. Whitley). But the court of appeals cautioned in Avellino, 136 F.3d at 255: Nonetheless, knowledge ón the part of persons employed by a different office of the government does not in all instances warrant the imputation of knowledge to the prosecutor, for the imposition of an unlimited duty on a prosecutor to inquire of other offices not working with the prosecutor’s office on the case in question would inappropriately require us to adopt a monolithic view of government that would condemn the prosecution of criminal cases to a state of paralysis. (internal quotation marks and citations omitted). In United States v. Zagari, 111 F.3d 307, 320 n. 13 (2d Cir.1997), the Second Circuit observed that “[t]he extent to which knowledge may be imputed from one federal agency to another for Brady purposes is as yet unclear;” it avoided the issue in that case, stating that “it is clear to us that Brady was not violated because of the lack of materiality and the defendant’s ability to access” the information in question “with due diligence.” Id. Evidence favorable to the defendant but not disclosed to him is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,” Kyles v. Whitley, 514 U.S. at 433, 115 S.Ct. 1555 (internal quotation marks and citations omitted). In other words, evidence is material if it “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Id. at 435, 115 S.Ct. 1555. See also Orena, 145 F.3d at 557; Payne, 63 F.3d at 1209. 2. Petitioners’Brady Contentions Petitioners perceive in the Strickland declarations violations of both prongs of Brady: exculpation and impeachment. Petitioners characterize those declarations as exculpatory of Shakur because Strickland’s descriptions of Shakur’s activities are consistent with Shakur’s theory of the case, namely, that he was an activist but not a criminal or violent one. Arguably that aspect of the Strickland declarations also exculpates Buck, who the government contended was a second-tier member of the organization that Shakur headed. Petitioners also view the Strickland declarations as impeaching Rison on the subject of how Rison obtained a rifle. As noted, Strickland understood Rison to be saying that he, Rison, had stolen an automatic rifle and magazine from the Army base at Fort Bragg. To place this Brady claim in context, it is necessary to recall that during Rison’s cross-examination at trial by Chokwe Lumumba, Esq., co-trial counsel for Shakur, Rison gave this testimony: Q. And what you did is you snuck into some place and stole an M-16, didn’t you? A. No, sir. Q. You remember talking to the Reverend Ben Chavis, don’t you? A. Yes, sir. Q. And in his presence admitting that you had stolen an M-16, right? A. No, sir. Q. So if you don’t remember that, then you wouldn’t remember them putting you out of the defense ministry because of that, would you? MS. MARTIN: Objection. THE COURT: Sustained as to form. It’s argument. Q. You don’t remember being put out because of that? A. The event never happened that you just described. Tr. 2513. Petitioners claim that if Strickland’s declarations about Rison’s theft of the rifle had been disclosed, defense counsel could have attacked Rison’s credibility more effectively, a significant circumstance given the centrality of Rison’s testimony to the government’s case. 3. The Government’s Responses to the Brady Claims The government makes three principal responses to petitioners’ Brady claims. First, the government contends that because it had no knowledge, actual or imputed, of Strickland’s status as an NYPD undercover agent, or of the existence or substance of his reports to the NYPD, the government did not “suppress” that information or otherwise fail to disclose it to the defense, so that no Brady violation arises. Second, the government contends that even if the defense had known all about Strickland and his declarations at the time of trial, the rules of evidence would have precluded defense counsel from making any use of that information. Third, the government contends that the evidence relating to Strickland and his declarations was not material for Brady purposes. I will analyze these issues in turn. 4. Analysis (i) The Government’s Knowledge The attorneys who prepared and presented the government’s case against petitioners were AUSA EUiott B. Jacobson and former AUSA Kerri Martin Bartlett (“Martin”). Jacobson and Martin were assisted by FBI agents assigned to the case, the two lead case agents being Leo E. Herman and David Mitchell. The trial of Shakur and Buck before this Court was the second of two federal trials involving the Brinks armored truck hold-up which occurred in October, 1981. Another group of defendants were tried some years earlier before Judge Duffy of this Court and a jury. The FBI lead case agents assigned to assist the prosecutors in that case were Robert Cordier, Kenneth Maxwell, and Louis Vizi. At the time of these trials, these FBI agents were assigned to the Domestic Terrorist Task Force of the FBI (“DTTF”). In May 1980, the FBI formed the Joining Terrorist Task Force (“JTTF”). At the time of the trial of Shakur. and Buck in 1987-1988, the JTTF consisted of the DTTF, and two other squads which confined their efforts to international terrorism. The JTTF was and is compromised of special agents of the FBI and New York City police officers who have been assigned to the JTTF. After the World Trade Center bombing, law enforcement officers from other federal and local agencies became part of the JTTF, but that did not occur until after the trial of Shakur and Buck. The JTTF was operated under the command and control of the FBI. New York City police officers assigned to the JTTF are sworn in as Deputy United States Marshals. Special agents of the FBI on the JTTF are not sworn in as members of the police force. In opposition to the present petitions, Jacobson, Martin, and Herman have submitted sworn affirmations which discuss their knowledge, or to be more precise their lack of knowledge, of anyone named Claude Strickland, or Claud or Ky Farm. Jacobson says at ¶¶ 6 and 7 of his affirmation: 6. I have no recollection of ever having heard or seen the name of Claude Strickland utitil reading it in Shakur’s instant habeas petition. Furthermore, outside of the allegations made in Shakur’s papers and the supporting affidavit thereto, I have never had any knowledge that anyone named Claude Strickland was an undercover police officer in the Intelligence Division of the New York City Police Department. 7. Likewise, outside of hearing and reading the assertions made during the testimony of defense witness Sekou Owusu, I have no knowledge or nor have I ever been aware of any undercover agent or undercover police officer using the undercover identity of Claud or Ky Farm. Martin’s affirmation at ¶¶ 6 and 7 contains identically worded disclaimers. Herman says in his affirmation at ¶¶ 10 and 11: 10. Until reading the name Claude Strickland in Shakur’s instant habeas petition, I had never heard of this individual, nor have I ever been aware that an individual by that name was an undercover police officer in the Intelligence Division of the New York City Police Department. 11. Likewise, outside of reading the assertions made during the testimony of defense witness Sekou Owusu, I have no knowledge of nor I have ever been aware of any undercover agent or undercover police officer using the undercover identity of Claude or Ky Farm. Each of these affirmations refers to assertions made during the testimony of a witness named Sekou Owusu. Owusu, a member of the RNA, was called by Shakur as a defense witness. Under direct examination by Shakur’s attorney, Chokwe Lumumba,. Owusu testified with respect to an individual he had known as “Ky Parin’’: A. He ceased functioning after a meeting that myself and Dr. Shakur had with him. It was initiated by Dr. Shakur where Dr. Shakur the first time to my knowledge, I guess, told Ky Farin that he felt that he was an agent of the United States Government or some government vehicle. Q. Did you ever see Mr. Farin again? A. After that point, that was about the last time we saw Mr. Farin. Q. Did you ever see him depicted in any picture again? A. Yes, I did. Q. Showing you Shakur DD. MR. JACOBSON: Could we have a side bar? Trial Tr. 11,405. At sidebar, the government questioned the relevance of Shakur Exhibit DD, a newspaper photograph depicting Mayor Koch, and another individual, presumably “Ky Farin,” standing next to the Mayor. AUSA Jacobson stated at sidebar: I assume they want to put in — this is, for the record, Shakur’s DD for identification, it’s Daily News article — paper, and I assume Mr. Lumumba from what he has shown me wants to put in the front page which shows a photograph of an individual standing next to Mayor Koch. Now, I don’t know if that is Mr. Farin, I don’t know if Mr. Farin was an FBI informant or not or someone who was in the RNA got pissed off because he was falsely accused and — I don’t know what it is. Seems to me they are getting far afield now... Id. Counsel for Shakur was allowed to put these follow-up questions: Q. We are showing you DD. Who is the gentlemen who appears in that photograph? A. Claude Farin as I knew him. Q. Do you know the person who appears next to him? A. Yes, Mayor Koch. Tr. 11,409. Further colloquy of counsel then ensued. Mr. Lumumba said of the prosecutors: This man Ky Farin, they know he works for them, has been working for them for years, and that’s probably one of the reasons why they put in that provision in the jury voir dire in case that kind of stuff had to come up. I mean, let them just tell you “we deny it, we deny that Ky Farin is an informant or that he has been an informant either for the City of New York or for the FBI over a period of years with the RNA.” Let them deny it. Tr. 11,429. That prompted the following response from AUSA Martin: Your Honor, again, this is exactly back to what I am arguing. Mr. Lumumba is again arguing this all for its truth. That’s the argument he made to you, Judge, ‘You have to let in, it’s true, it’s true.” And if this proceeding is about the rules of evidence, the only way this stuff comes in anyway would be for state of mind and, again, the truth is not relevant. I can say quite honestly that there are three people sitting at the government’s table, until Mr. Lumumba cross-examined Tyrone Rison about this individual, I never even heard the name before and I am supposed to be the lead government prosecutor on this case. It just shows you how far afield from this case we have gotten. Tr. 430. Reverting to the affirmations submitted on these petitions by the government, Jacobson says at ¶ 8: I never asked or directed anyone else to ask Claude Strickland to take notes about Mutulu Shakur or anyone else for any purpose whatsoever. I am aware of no request of such a nature. And, I have never seen or read any notes or reports which might have been prepared by Claude Strickland, if indeed there are any such notes or reports. Martin’s affirmation at ¶ 8 contains an identically worded disclaimer, as does the affirmation of FBI Agent Herman at ¶ 12. The Herman affirmation recites at ¶ 14: I have been informed by Agents Mitchell, Maxwell, Cordier and Vizi that none of them have any knowledge whatsoever of any undercover police officer or anyone else named Ky or Claud Farm or Claude Strickland and that they never asked or directed anyone else to ask anyone named Claude Strickland to take notes about Mutulu Shakur or anyone else for any purpose whatsoever. Further, none of them is aware of any request of such a nature. And, none of them ever saw or read any notes or reports which might have been prepared by Claude Strickland, if indeed there are any such notes or reports. Herman prefaced those statements by observing that while a number of New York City Police Department detectives assigned to the JTTF worked on both Brinks cases, “they did not play any supervisory role, but rather carried out various tasks assigned to them by the lead case agents and other FBI agents assigned to this matter.” Id. at ¶ 13. The affirmations of Jacobson and Herman describe the efforts made by the FBI, in response to the present petitions and at Jacobson’s direction, to retrieve all of the records of the United States Attorney for this District “pertaining to Shakur and Buck, including all investigative files and all files related to the indictments, trial and appeals in this case as well as the files related to the investigation and trial before Judge Duffy of Shakur’s co-indictees.” Jacobson affirmation at ¶ 9. When retrieved, that considerable quantity of documents was searched by AUSA David Greenwald, who advised Jacobson that the files contained “no notes or reports or summaries of any notes or reports of an undercover police officer named Claude Strickland, or of an informant or undercover police officer or agent’s named Ky or Claud Farm.” Id. In short, the government’s prosecution team (AUSAs and lead FBI agents) deny any knowledge of the factual circumstances upon which Shakur ánd Buck base their present petitions, namely, Strickland/Farin’s status as an NYPD undercover police officer and reports he made to the police about his activities. Nor, according to the government affirmations in opposition to those petitions, do the files of the United States Attorney’s Office generated by the two Brinks prosecutions contain any information pertinent to the petitioner’s assertions. On the subject of files, it is appropriate to note that at Jacobson’s direction, FBI Agent Herman conducted a search for “all FBI records referring to and/or relating to Claude Strickland and Ky/Claude Farm.” Second Jacobson affirmation at ¶ 4. The government submitted that file to the Court for in camera inspection. My examination reveals no document indicating that an individual under such name or names was acting as an undercover agent for the New York City Police Department or any other law enforcement agency, or was generating written reports in that capacity. Shakur and Buck offer no concrete or specific proof to contradict the assertions of the federal prosecutors and agents involved in the case that prior to the present petitions, they had no knowledge of Claude Strickland, his NYPD undercover activities (under that name or the Farin name), or the existence or contents of written reports generated by those activities. While Strickland himself might logically be regarded as a potential source of such proof, the fact is that his two declarations negate, rather than demonstrate, federal knowledge. Strickland’s first declaration says that he rejected the request of a superior at the Intelligence Division to write notes about what Strickland knew about Shakur, but not put his name on them. (“I refused to write notes without putting my name on it.” CS1, at ¶ 11). Strickland expressed his belief that “this information was asked of me for the Federal Government,” id:, a belief based upon the timing of the request, “after the armored car robbery in Westchester County and a trial of Dr. Shakur was going to occur,” CS2 at ¶ 4. But whatever the force of Strickland’s reasoning as to the author of this request, the fact is that he refused to comply with it, so that, on Strickland’s own account, the “Federal Government” acquired no knowledge relevant to Shakur from Strickland. Lacking any direct evidence of knowledge on the part of the federal prosecution team, petitioners undertake to demonstrate circumstances from which such knowledge should be imputed or inferred. First, petitioners point to an FBI document the government submitted as an exhibit to the affirmations of Jacobson and Martin. It is a directive dated January 2, 1970 from the Director of the FBI (the late J. Edgar Hoover) to the Special Agent in Charge (“SAC”) of the New York Office. The captioned “subject” of that directive was “Jeral Wayne Williams” (the American name of Shakur). “Claudie Strickland” is also referred to in the body of the directive. Because of references to these individuals in other FBI documents (Strickland being identified as “the Commander of the Black Legion in Manhattan, New York”), the New York Office is instructed with respect to Williams that the case on him “should be reopened and appropriate investigation conducted.” The directive continues: A case should be opened on Claudie Strickland. Background data regarding him should be developed and the extent of his involvement with the Republic of New Africa should be determined. Results of your investigations concerning the subject [ie., Williams] and Strickland should be submitted in a form suitable for dissemination accompanied by Security Index and/or Agitator Index recommendations if warranted. Shakur, who had obtained a redacted version of this document in response to an FOIA request, points to differences in certain notations on the two copies, and to the fact that the FOIA copy had a second page, whereas the copy submitted on these petitions does not, leading Shakur to conclude that “the FBI maintained 2 sets of records concerning defendant.” Reply Brief at 5. Moreover, while Shakur’s FOIA request unearthed the New York Office’s report on him, his brief states that “there is no document revealing any investigation on Strickland,” which leads Shakur to conclude that “after 1/2/70 when the investigation was conducted the FBI must have found out that Strickland was an agent for the New York police and, therefore, no investigation report was going to be memorialized nor was it needed.” Id. at 6. There is less to all this than meets the eye. The seeming discrepancies in the notations on the two copies of the January 20, 1970 memorandum are satisfactorily explained by the affirmation dated February 5, 1998 of Rick M.T. Sabel, a supervisory FBI paralegal, whose entirely plausible averments I need not recount in detail. As for the New York Office’s investigation of Strickland, that office reported the results to the Director in a memorandum dated April 29, 1970. Shakur’s FOIA request did not turn that document up because he is not mentioned in it. The report on Strickland, which is included in the FBI file examined by the Court in camera, states: NYO [New York Office of the FBI] indices reflect no pertinent information re subject. Inasmuch as no information has been developed pertaining to subject’s background as well as the fact that subject’s alleged association with the RNA has been limited to one instance reported by a source from outside of New York City, no further investigation of this matter will be conducted by the NYO, UACB. There is ho indication in the FBI file that the FBI conducted any further investigation of Strickland. The FBI file also contains a number of documents generated in the 1970’s which contain references to “Ky Farm.” The substance of those references is that Farm on occasion was among the attendees at meetings or functions of the RNA or affiliated groups. There is no indication in the file that Farm ever acted as a NYPD undercover agent. All these documents show is that, during the times Strickland says he was an NYPD undercover acting out the role of an RNA member, using his own name or that of Ky Farm, he came to the attention of the New York Office — as an RNA member. Strickland appears to have played his role with sufficient conviction to fool those observing him, including the FBI and that agency’s own informants. The contemporaneous documents show that the FBI expended no fur-, ther investigatory resources on Strickland, not because (as Shakur contends in a wholly speculative argument) the federal government had learned Strickland was an NYPD undercover, but because he was not regarded as a sufficiently important player in the RNA. Petitioners also rely upon a number of other documents Shakur obtained from the FBI in response to his FOIA request. See Shakur Reply Brief at 8-13 for a discussion of those documents. They show, Shakur argues, “the connections between the investigatory activities of the NYPD and its Intelligence Division and the individuals and subjects involved in this case,” id. at 9, as well as “the conveying of this information (and its accessibility) to the FBI,” id. at 10. In general terms, these are accurate characterizations of the documents in question. They show that beginning in the late 1960’s, and continuing thereafter, the NYPD and its intelligence arms were interested in the activities of groups such as the Black Liberation Army, the Black Panther Party, and the RNA, and individuals connected with them, such as Joanne Chesimard and Anthony LaBorde (both of whom had been or became involved in violent crimes). The documents also reflect FBI activities in these areas, and make it plain that on occasion the NYPD and FBI exchanged information on such subjects in a cooperative manner. It may first be observed that these local and federal law-enforcement activities and communications are not particularly surprising. The political climate of the times, of which Director Hoover was a catalyst in what was far from his finest hour, brought federal and local forces together for surveillance and intelligence-gathering purposes. As previously noted, the JTTF was itself a joint operation, directed by the FBI, but including NYPD officers who were sworn in as deputy United States Marshals for the purpose. Moreover, the crimes of violence involved in the case at bar, and others typical of the times, offended both federal and local law, so that some cooperation between these concurrent jurisdictions could only be expected. But these general considerations fall far short of justifying an inference that the AUSAs prosecuting Shakur and Buck, and the FBI lead agents on the case, knew about Claude Strickland, who he was, and what he said and did. The leap from generalized cooperation in matters of common concern to specific knowledge of a particular case is too great. Petitioners’ final effort in this regard is to stress the belief Strickland formed, previously noted, that an NYPD superior’s request that he prepare unsigned notes about Shakur was made “for the Federal Government.” Assuming arguendo that the government had something to do with this request (which Strickland in any event refused), the fact that the request was made at all is inconsistent with the notion that the NYPD was keeping federal authorities advised on a contemporaneous basis of everything an NYPD officer was doing or reporting about everyone that officer came to observe during undercover operations. It follows that petitioners have failed to sustain their burden of proving that the government had actual knowledge of the existence of Strickland (or “Ky Farin’’), his status and activities as an NYPD undercover agent, and the reports he made to his superiors in that capacity. It remains to consider whether, on the facts of the case, such knowledge should be imputed to the government. The most that can be said for petitioners on the present record is that between 1967 and 1979, Claude Strickland worked in an undercover capacity for the Intelligence Division of the NYPD, and forwarded to his superiors hundreds of written reports which mentioned either Shakur or Tyrone Rison. The record does not support any finding with respect to what these unknown superiors did with Strickland’s reports. Accordingly, ’ to visit awareness of Strickland and his reports upon the federal prosecution team on the basis of imputed knowledge, the knowledge of those NYPD superiors must be imputed to AUSAs Jacobson and Martin and FBI agents Herman and Mitchell, the federal officers in charge of the investigation and prosecution of the case against petitioners. This is not the stuff of which imputed knowledge is made. The imputation of the knowledge of Strickland’s superiors to the federal prosecution team would, as a practical matter, impose “an unlimited duty on a prosecutor to inquire of other offices not working with the prosecutor’s office on the case,” contrary to the Second Circuit’s caution in Avellino, 136 F.3d at 255. A contrary rule “would inappropriately require us to adopt ‘a monolithic view of government’ that would ‘condemn the prosecution of criminal cases to a state of paralysis.’ ” Id. (citing and quoting United States v. Gambino, 835 F.Supp. 74, 95 (E.D.N.Y.1993), aff'd, 59 F.3d 353 (2d Cir.1995), cert. denied, 517 U.S. 1187, 116 S.Ct. 1671, 134 L.Ed.2d 776 (1996)). The Second Circuit has repeatedly refused to impute knowledge of another branch of the federal government to the particular federal prosecutors in charge of the case in question. See United States v. Locascio, 6 F.3d 924, 949 (2d Cir.1993), cert. denied, 511 U.S. 1070, 114 S.Ct. 1645, 128 L.Ed.2d 365 (1994) (refusal to impute to the AUSAs prosecuting the action knowledge of reports prepared by FBI agents who were uninvolved in the investigation or trial of the defendants); United States v. Stofsky, 527 F.2d 237, 244 n. 7 (2d Cir.1975), cert. denied, 429 U.S. 819, 97 S.Ct. 65, 50 L.Ed.2d 80 (1976) (refusal to impute to the prosecution knowledge of information contained in a government witness’s tax return on file with the IRS); United States v. Quinn, 445 F.2d 940, 944 (2d Cir.), cert. denied, 404 U.S. 850, 92 S.Ct. 87, 30 L.Ed.2d 90 (1971) (refusal to impute to the New York AUSA prosecuting the case the knowledge of a Florida AUSA that a grand jury in his district had returned a sealed indictment against a cooperating witness, the court of appeals “rejecting as completely untenable [the] position that knowledge of any part of the government is' equivalent to knowledge on the part of this prosecutor”) (internal quotation marks omitted). The Second Circuit’s holdings in habeas cases involving the knowledge of state prosecutors are to the same effect. See Pina v. Henderson, 752 F.2d 47 (2d Cir.1985) (state prosecutor did not violate Brady by failing to produce an exculpatory statement made to a state parole officer where that officer “did not work in conjunction with either the police or the prosecutor”); Morgan v. Salamack, 735 F.2d 354, 358 (2d Cir.1984) (refusal to impute to state prosecutor information in NYPD’s files that might have been used to impeach complaining witness, where the evidence in question “was not probative of appellant’s innocence” and “was not in the prosecutor’s file”). Since in the case at bar the knowledge imputed to the federal prosecutors would be that of local police officers, these all-federal and all-state cases apply a fortiori. I conclude that under the governing law of this circuit, whatever knowledge Strickland and his NYPD superiors gained about Shakur and Rison during Strickland’s undercover activities between 1967 and 1979 may not be imputed to the federal prosecution team that brought Shakur and Buck to trial in 1987. To hold otherwise would require the government to ask non-federal offices about possible inquiries made eight years or longer before trial, on pain of violating Brady. That proposition cannot be reconciled with Second Circuit authority. Petitioners’ citations from other circuits do not require a different result. In Smith v. Secretary of New Mexico Dept. of Corrections, 50 F.3d 801 (10th Cir.), cert.denied, 516 U.S. 905, 116 S.Ct. 272, 133 L.Ed.2d 193 (1995), the bodies of two murdered women were found in a county other than the county in which they lived. The police departments of both counties investigated the crime. The district attorney of the county of residence prosecuted it, and failed to disclose exculpatory evidence generated by the police department of the county where the bodies were found. That failure violated Brady, the Tenth Circuit held, because the concept of “prosecution” for Brady purposes extended to “law enforcement personnel and other arms of the state involved in investigative aspects of a particular criminal venture.” 50 F.3d at 824. I am not sure that Smith conforms to the limitations imposed by the cited Second Circuit cases on imputed knowledge; and to the extent that the Tenth Circuit expands those limitations, I am bound by the law of this circuit. In any event, Smith is distinguishable on its facts, because both county police departments were investigating the crimes of prosecution and conviction. In the case at bar, not only is there no evidence that Claude Strickland or the NYPD Investigations Department to which he reported had anything to do with investigating the crimes of which petitioners were convicted, the proof is to the contrary. Strickland had ceased his NYPD undercover activities- before those crimes were committed; and the JTTF, which investigated them, was directed by the FBI. That a number of NYPD officers, sworn in as deputy U.S. Marshals, belonged to the JTTF does not bring this case within the rationale of Smith. United States v. Zuno-Arce, 44 F.3d 1420 (9th Cir.), cert. denied, 516 U.S. 945, 116 S.Ct. 383, 133 L.Ed.2d 306 (1995), is distinguishable on the same ground. The Ninth Circuit reasoned: “[i]f all agencies involved in the case were instructed to turn over witness interviews bearing on the Camerena murder case, these reports would have been referenced ... [T]he prosecutor is deemed to have knowledge of and access to anything in the custody or control of any federal agency participating in the same investigation of the defendant.” 44 F.3d at 1427 (emphasis supplied) (internal quotation marks and citation omitted). On that basis, the Ninth Circuit in Zuno-Arce imputed to a Central District of California AUSA knowledge of evidence amassed by a Phoenix, Arizona FBI office not a member of the prosection team. Again, I am not sure that this result may be squared with Second Circuit authority, but the case is distinguishable from the one at bar for the reason given in distinguishing Smith, supra. Petitioners do cite a Second Circuit ease, United States v. Morell, 524 F.2d 550 (2d Cir.1975), but it is entirely inapposite. In Morell, a narcotics case, the prosection failed to turn over the DEA case agent’s file on the government’s principal witness, an informant, which contained impeachment material, despite a specific defense request for such documents. Morell furnishes no guidance in the case at bar. Petitioners at bar say that the inquiry should not be limited to “the few documents that have been produced to [petitioners] by the NYPD and particular documents produced in other cases,” Shakur Reply Brief at 9 n. 8. They demand far-ranging discovery of documents and the depositions of law enforcement officers, federal and local. Specifically, counsel for Shakur submit a “Summary of Proposed Discovery” which includes the following: I. Depositions Kerri Martin Bartlett, Esq. James Brophy, FBI Special Agent Edwin Cooper, NYPD John Finnegan, NYPD Sergeant Fonlet, Queens Area Task Force Neil E. Herman Harold Hess, NYPD Robert J. Howe, Deputy Inspector, NYPD Intelligence Division Police Officer to whom Strickland gave his reports John J. Kearney, Supervisor, FBI Mitchell Lustgarten J. Kevin O’Brien, FBI-FOIA Chief H. O’Connell, FBI SA Tyrone Rison Kevin W. Rohan, Inspector NYPD John K. Vaughan, Lt. NYPD Charles J. Wells, Lt. NYPD Michael Willis, NYPD II. Document Request — The Strickland Reports — All NYPD documents referring to Claudie Strickland or any of his reports — All documents in the 29,000 pages not produced by the FBI consisting of or referring to communications between NYPD and the FBI, or U.S. Attorney’s Office concerning or involving Claudie Strickland, Mutulu Shakur — All FBI documents consisting of an investigation of Claudie Strickland or referring to Claudie Strickland — All FBI investigative reports referring to or relating to someone named Ky Ferrin, Kenneth Farm and Claudie Strickland. Petitioners base those demands upon a prediction: There can be no doubt that a full disclosure of the documents pertaining to the NYPD investigatory activities concerning [Shakur] and the subjects of the criminal case, communications between the NYPD and its Intelligence Division and the FBI and activities of the NYPD/ID in this case, will reveal significant facts of the knowledge and constructive knowledge of the FBI and U.S. Attorney’s Office. Id. A habeas petitioner is not entitled to discovery unless the court grants leave. See Rule 6(a) of the Rules Governing § 2255 Proceedings. Thus the question is committed to the district court’s discretion. Petitioners’ proposed discovery is far too broad. See n. 9, infra. However, assuming that following discovery it should appear that knowledge of the contents of Strickland’s undercover reports should be imputed to the federal prosecution team, petitioners’ Brady contentions fail because they can satisfy neither'the requirements of admissibility nor those of materiality. (ii) Admissibility The substance of Strickland’s declarations with respect to his observations of Shakur’s conduct is that at those times, Shakur did not engage in any shooting or violence, or otherwise violate the law. Petitioners now contend that such testimony by Strickland, if known to them, would have been exculpatory: as to Shakur directly, as portraying a man not given to violence; and as to Buck derivatively, as a person whom the evidence showed was closély associated with Shakur in his activities. The admissibility of Strickland’s testimony at trial, if offered by petitioners, is problematic. Strickland does not claim to have personal knowledge of any of the criminal acts charged in the indictment and upon which petitioners were convicted. Indeed, Strickland had left the NYPD in 1979, before most of those acts (including the Brinks robberies and murders) had occurred. In these circumstances, the relevance of Strickland’s evidence is questionable. Rule 401, Fed. R.Evid., defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Strickland was not in a position to say anything bearing directly upon the petitioners’ guilt or innocence of the crimes charged. Petitioners do not contend that Strickland had direct knowledge of their participation vel non in the crimes charged. Rather, petitioners argue that Strickland’s description of prior non-violent conduct on the part of Shakur would form the basis for an inference that he did not act violently in the manners charged in the indictment. That testimony would assume particular force in the eyes of the jury, petitioners contend, because Strickland was a law enforcement officer. Thus petitioners view Strickland’s evidence of Shakur’s conduct as establishing Shakur’s non-violent character, for the purpose of suggesting that with respect to the violent crimes described in the indictment, Shakur acted in a manner consistent with that character, that is to say, he did not participate in them. This approach encounters difficulties under the rules of evidence. Rule 404(a)(1) permits “[ejvidence of a pertinent trait of character offered by an accused ...” Rule 405 provides: (a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. (b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct. While these rules provide that certain character evidence is admissible, they also serve as limitations on the nature of admissible character evidence and the methods by which character evidence may be proved. Rule 404(a)(1) requires that the trait of character be “pertinent,” a concept which Rule 405(b) further defines as “an essential element of the charge, claim, or defense.” The Advisory Committee Notes to the 1972 Proposed Rules distinguish between traits of character that fall within those definitions and traits that do not. A trait of character is “pertinent” to the case where: Character may itself be an element of a crime, claim, or defense. A situation of this kind is commonly referred to as “character in issue.” Illustrations are: the chastity of the victim under a statute specifying her chastity as an element of the crime of seduction, or the competency of the driver in an action for negligently entrusting a motor vehicle to an incompetent driver. These examples may be contrasted with cases where character evidence is susceptible of being used for the purpose of suggesting an inference that the person acted on the occasion in question consistently with his character. This use of character is often described as “circumstantial.” Illustrations are: evidence of a violent disposition to prove that the person was the aggressor in an affray, or evidence of honesty in disproof of a charge of theft. This circumstantial use of character evidence raises questions of relevancy as well as questions of allowable methods of proof. The Advisory Committee Notes go on to observe that: “[i]n most jurisdictions today, the circumstantial use of character is rejected but with important exceptions” (which the Notes then set forth, none of which is germane to the case at bar). The same limitation applies to Rule 405(b), allowing proof of specific instances of a person’s conduct in cases where “character or a trait of character of a person is an essential element of a charge, claim or defense.” Weinstein’s Treatise on Evidence says of that limitation: “Evidence of specific acts is permissible to prove character when the character of a person is an essential element of a charge, claim or defense. This permissive use of evidence of specific acts is regularly misinterpreted by trial lawyers. It is allowed only when character itself is an issue under substantive law .... When character is used circumstantially to prove a consequential fact, proof by specific instances is not permitted for practical reasons.” J. Weinstein, M. Berger & J. McLauglin, 2 Weinstein’s Federal Evidence § 405.05[4] at 405-41-42 (2d ed.1997). This distinction is illustrated by cases such as United States v. Wilson, 586 F.Supp. 1011 (S.D.N.Y.1983) (Weinfeld, J.), aff'd 750 F.2d 7 (2d Cir.1984). The defendant was indicted of plotting to assassinate witnesses, prosecutors, and others involved in several federal prosecutions. Prior to trial, the government sought a ruling limiting proof that defendant wished to make with respect to certain covert activities of the United States in which he claimed to have participated during the years in which his alleged felonies took place. Such proof, defendant argued, warranted his belief that federal authorities would not sentence and imprison him, a belief which negated his alleged motive for tampering with witnesses. Defendant also contended that “the evidence would have showed the