Full opinion text
MEMORANDUM OF DECISION DUPREE, Senior District Judge. Serving three consecutive life sentences imposed by the court following his conviction by a jury in 1979 of three counts of murder, the defendant, Jeffrey R. MacDonald, filed post-trial motions on April 5, 1984 seeking either to have his convictions set aside or a new trial on the charges. The motions, one for a new trial under Rule 33, F.R.Crim.P., and two for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, came on for an evidentiary hearing on September 19-20, 1984. The government vigorously contested the motions, filing seven volumes of affidavits in response. Final arguments on the motions having been heard on January 14, 1985, the court now enters its findings of fact and conclusions of law. The facts of the case have been previously reported, see, e.g., United States v. MacDonald, 456 U.S. 1, 3-6, 102 S.Ct. 1497, 1499-1501, 71 L.Ed.2d 696 (1982); United States v. MacDonald, 531 F.2d 196, 200-02 (4th Cir.1976), rev’d, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978), but for purposes of this decision they must be retold. In the early morning of February 17, 1970, MacDonald’s pregnant wife, Colette, and his two daughters, Kristen and Kimberly, two and five years old, were clubbed and stabbed to death in their apartment at Fort Bragg, North Carolina. When military police arrived at the crime scene following a telephone call from MacDonald, they found MacDonald, a physician and Captain in the Army Medical Corps, unconscious and lying partially across his wife’s body in the master bedroom. The bodies of Kristen and Kimberly MacDonald were found in their bedrooms. Although MacDonald had sustained a number of stab wounds, one of which partially collapsed a lung, he was treated at the Womack Army Hospital Emergency Room and released after a brief hospitalization. On the morning and afternoon of the murders and in subsequent interviews, MacDonald told investigators that the murders had been committed by four drug-crazed intruders. He said that upon retiring at approximately 2:00 a.m. to 2:30 a.m., he found that his youngest daughter, Kristen, had crawled into bed with his wife and had wet his side of the bed. He picked her up and returned her to her own room and then went into the living room to lay down on the sofa where he fell asleep. Sometime later, he was awakened by his wife and oldest daughter’s screams and looked up to see a woman with blonde hair wearing a floppy hat, boots and a short skirt carrying a lighted candle and chanting “acid is groovy; kill the pigs.” He said that three men, two white and one black, standing near the couch then attacked him, pulling or tearing his pajama top over his head which he then used to ward off their blows. The three attackers continued to club and stab him until he lost consciousness. When he awoke on the hall steps to the living room, MacDonald stated that he got up and went to the master bedroom where he found his wife dead. He said that he pulled a Geneva Forge knife out of her body and covered her with his pajama top and a bathmat. He then went to his children’s rooms and unsuccessfully tried to revive them. After going to the bathroom to wash himself and calling the military police, he again lost consciousness. The military police, the Army’s Criminal Investigation Division (CID), the FBI and the Fayetteville, North Carolina Police Department initially accepted MacDonald’s account of the murders and immediately began searching for four people fitting his descriptions. At the same time, they continued to examine the crime scene and began to discover evidence which cast doubt on MacDonald’s story. Although MacDonald had said that his pajama top was torn during his struggle with the three assailants in the living room, no fibers from the pajama top were found in that room. Fibers were found, however, inside and outside the body outline of Colette MacDonald in the master bedroom and in the rooms of Kristen and Kimberly MacDonald. A piece of a plastic surgeon’s glove, stained with Colette’s MacDonald’s blood, was found inside a sheet in a pile of bedding at the foot of the master bed. Moreover, although there were numerous unidentified fingerprints in the apartment, no direct evidence of the alleged intruders was found to support MacDonald’s version as to what happened on the night of the murders. From this and similar evidence, investigators became convinced that MacDonald had killed his family and staged the crime scene to cover up the murders. The Army eventually charged MacDonald with the murders and a formal precourt martial investigation was conducted and hearings held pursuant to Article 32 of the Uniform Code of Military Justice. At the close of the Article 32 proceedings, the investigating officer recommended that all charges against MacDonald be dismissed and that civilian authorities investigate Helena Stoeckley, a young woman resembling MacDonald’s description of the female assailant, as a possible suspect. MacDonald was subsequently discharged from the Army but investigation of the case continued into the early 1970’s. Over six hundred witnesses were interviewed and a thirteen-volume report, twice supplemented, was prepared by the CID. Based upon this report and other evidence gathered by civilian and military authorities and testimony by witnesses, one of which was MacDonald, on January 24, 1975 the grand jury indicted MacDonald for the murder of his family. A series of pre-trial motions and interlocutory appeals delayed trial of the case until July of 1979. During the seven-week trial of the case, the government presented extensive physical and circumstantial evidence supported by expert and lay testimony. Physical evidence ranging from the amounts of MacDonald’s pajama top fibers found in various rooms in the MacDonald residence to the pattern of blood spatterings on the victims and in the rooms of the apartment was offered. The government also pointed to the absence of evidence in the apartment linking Helena Stoeckley or anyone else to the crimes, apparent contradictions in MacDonald’s numerous accounts of what transpired that morning, and the marital difficulties MacDonald and his wife were allegedly having prior to February 17, 1970. MacDonald’s defense consisted primarily of his own testimony, character witnesses, and impeachment of the integrity of the crime scene and evidence offered by the prosecution. Although Helena Stoeckley was located during the trial and offered as an exculpatory witness, she testified before the jury that she was not involved in the murders but that because of her drug-crazed condition and bizarre behavior following the murders, she at least had come to wonder whether she was in fact involved. The jury apparently believed that she was not, for after six hours of deliberation MacDonald was found guilty of two counts of second-degree murder and one count of first-degree murder. MacDonald’s convictions were affirmed on appeal by the Fourth Circuit Court of Appeals and the Supreme Court denied his application for a writ of certiorari. United States v. MacDonald, 688 F.2d 224 (4th Cir.1982), cert. denied, 459 U.S. 1103, 103 S.Ct. 726, 74 L.Ed.2d 951 (1983). After the Supreme Court denied certiorari, MacDonald retained private investigators to interview witnesses, primarily Helena Stoeckley, and review documents in an attempt to either have his convictions set aside or be granted a new trial. This effort culminated in the present motions. The government seeks to have all of the motions dismissed at the outset claiming that MacDonald knew of the evidence underlying the motions either before or shortly after trial and that he should have raised the issues at trial or on appeal of his convictions. Since he did not, the government argues, he is now procedurally defaulted from pursuing the motions unless he is able to demonstrate cause and actual prejudice for failing to have raised the issues earlier. It is well settled that “to obtain collateral relief based on trial errors [not objected to at trial nor argued on appeal], a convicted defendant must show both (1) ‘cause’ excusing his double procedural default, and (2) ‘actual prejudice’ resulting from the errors of which he complains.” United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982); see Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977); Francis v. Henderson, 425 U.S. 536, 542, 96 S.Ct. 1708, 1711, 48 L.Ed.2d 149 (1976). The reason behind the “cause and actual prejudice” rule lies in the intent of Congress when it enacted 28 U.S.C. § 2255 to simplify “the procedure for making a collateral attack on a final judgment entered in a federal criminal case, but ... not to ... modify the basic distinction between direct review and collateral review.” Frady, 456 U.S. at 165, 102 S.Ct. at 1593. Once a criminal defendant has been convicted and his chance to appeal has been waived or exhausted, “[the public is] entitled to presume he stands fairly and finally convicted____” Id. All three of MacDonald’s motions have at their foundation evidence which he alleges was not discovered until after trial. Part of the newly discovered evidence, he concedes, was known shortly after trial when his convictions were pending on appeal, but the evidence was so undeveloped that it would have been of little use to him had he requested that the appellate courts remand the case to this court for consideration of the new evidence. See Rule 33, F.R. Crim.P.; United States v. Atkinson, 512 F.2d 1235, 1239-40 (4th Cir.1975); United States v. Guthrie, 387 F.2d 569, 572 (4th Cir.1967), cert. denied, 392 U.S. 927, 88 S.Ct. 2284, 20 L.Ed.2d 1386 (1968). The government replies that MacDonald had sufficient knowledge of the grounds of the motion when the case was on appeal but chose not to seek a remand for tactical reasons — that by not presenting the evidence before his conviction became final, he assured himself of yet another chance at having the conviction set aside through habeas corpus and new trial motions. The government’s position is not without some merit but procedural default rules are ill-suited to cases as complex and protracted as the present one. The court also has substantial doubt as to whether the cause and actual prejudice test can ever be applied to a case having as its basis newly discovered evidence. Procedural default has traditionally only been applied where a criminal defendant has failed to comply with an established “contemporaneous objection” rule requiring objection during trial. See Brien v. United States, 695 F.2d 10, 13-14 (1st Cir.1982); Norris v. United States, 687 F.2d 899, 906-07 (7th Cir.1982) (Cudahy, J., concurring); United States v. Corsentino, 685 F.2d 48, 50-51 (2d Cir. 1982); Pacelli v. United States, 588 F.2d 360, 363 n. 8 (2d Cir.), cert. denied, 441 U.S. 908, 99 S.Ct. 2001, 60 L.Ed.2d 378 (1979). Of course there is no rule requiring contemporaneous objection to evidence the existence of which is not known at trial. Furthermore, the justification for the cause and actual prejudice rule, to preserve the integrity of the initial trial and appellate process, is served by the accepted rules in new trial cases requiring a criminal defendant to prove that the newly discovered evidence was discovered after trial, due diligence was used to discover it, and the new evidence would probably produce a different result on retrial. United States v. Mesa, 660 F.2d 1070, 1077 (5th Cir.1981). In any event, if the motions are decided against MacDonald on the merits, it will make little difference whether he should have raised the issues at trial or when his convictions were on appeal. Thus, although the cause and actual prejudice test would indeed present a formidable barrier to MacDonald’s motions, the court prefers in this instance to address the motions on their merits. I. The Motion to Vacate Sentence In his first motion, MacDonald seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2255 on the ground that a government psychiatrist, Dr. James A. Brussel, now deceased, obtained information from him in violation of his Fifth and Sixth Amendment rights and that this information was used by the government as a basis for his cross-examination during trial. The government denies any impropriety or that any of the information provided by MacDonald to Dr. Brussel ever served as a basis for questions asked during cross-examination. Dr. Brussel, a forensic psychiatrist, first became involved in the case when he was contacted by CID Agent Peter E. Kearns in February of 1971 during the reinvestigation of the case upon conclusion of the Article 32 proceedings. On February 7, 1971, Agent Kearns and CID Agent William F. Ivory met with Dr. Brussel at his home in New York City to discuss the case. After receiving a briefing on the crime scene and reviewing statements of MacDonald, autopsy reports and other background and investigative information, Dr. Brussel told the investigators that it was his opinion that MacDonald may have committed the murders. Motion to Vacate Sentence, Declaration of Karen R. Davidson at Ex. A. He suggested that MacDonald could have killed his wife in a fight, touched off by a disagreement over bed-wetting, and then killed his two daughters because they were witnesses to the wife’s murder. Dr. Brussel further stated that there were other inconsistencies between the crime scene and MacDonald’s version of what happened. For example, if, as the physical evidence seemed to show, Kimberly MacDonald had been injured in the master bedroom and then carried back to her own bedroom, such behavior would be inconsistent with “hippie” involvement. Further, if there had been intruders in the apartment under the influence of LSD, Dr. Brussel believed that there would certainly have been evidence of their presence and MacDonald’s claim that the female intruder had chanted “acid is groovy; kill the pigs” rang false. Nothing more appears about Dr. Brussel in the record until the case came on for trial in July of 1979. Prior to trial, the government filed a motion in limine seeking to limit the extent to which expert testimony from another psychiatrist, Dr. Robert L. Sadoff, could be used to support the credibility of MacDonald’s account of the attack on his family. Dr. Sadoff proposed to testify that someone with MacDonald’s personality configuration was incapable of committing such a murderous assault on his wife and children. The court initially deferred ruling on the issue, waiting until it arose in the context of the trial, and later ordered that MacDonald submit to an examination by psychiatrists chosen by the government before ruling on the admissibility of Sadoff’s testimony. See Trial Tr. at 4766-69, 4839-45. The government chose Dr. Brussel and Dr. Hirsch L. Silverman and it is their interview of MacDonald on the evening of August 13, 1979 which is the subject of the present motion. The examination of MacDonald by Drs. Brussel and Silverman took place in the office of his defense counsel in Raleigh, North Carolina. Defense counsel were excluded from the interview which began with Dr. Silverman, a psychologist, administering various psychological tests to MacDonald over a two-hour period. At the conclusion of the testing, Dr. Brussel began a question-and-answer session which lasted approximately twenty minutes. According to MacDonald, the examination focused primarily upon the physical evidence in the case and his explanation of discrepancies between the evidence and his account of the murders. He alleges that Dr. Brussel asked him questions from a list which the psychiatrist told him had been provided by the prosecution and that he responded to the questions as follows: Dr. Brussel: How do you explain the baby’s (Kimberly’s) blood spot(s) [on the pajama top]? MacDonald: I have no idea and I doubt the Army was accurate anyway. Dr. Brussel: Why wasn’t the scene disturbed if you had a violent fight? MacDonald: It was. And the fight didn’t last too long — I was hit in the head. Dr. Brussel: Who tore your pajamas? MacDonald: It must have happened in the struggle. I never heard ripping. It could have been torn in the struggle or when I took it off my wrists — I have no idea. Dr. Brussel: Why would you wrap the baby in your pajamas? MacDonald: (No response. Asked him to rephrase the question.) Dr. Brussel: Who wiped clean the weapon? MacDonald: I presume the assailants. Dr. Brussel: Who wrote on the mirror? MacDonald: If you mean the headboard, I presume one of the assailants did. Dr. Brussel: Did you ever wear gloves that night? MacDonald: Yes, I told the CID I probably wore gloves doing dishes. Dr. Brussel: Did you have a blanket on the couch, and a pillow: MacDonald: I believe I had a blanket (I may have said afghan) and the pillow would have been a throw pillow from the couch. Dr. Brussel: What happened to the blanket and the pillow? MacDonald: I have no idea. Dr. Brussel: Why was there no evidence of intruders? MacDonald: There was plenty, all ignored or screwed up by the CID. Dr. Brussel: Like what? MacDonald: Mud and debris seen by the MP’s; hair in my wife’s hand they ignored; the neighbors having been awakened by the dog; others who saw strange people; the lost fingerprints from the back door; writing on the headboard. Dr. Brussel: Who, if not you, put those fibers all over the house? MacDonald: Contamination from fibers on me, my arms could account for it or from the intruder’s weapons or hands, or from the rescuers (MP’s, etc.). Dr. Brussel: Was your pajama top on when you saw your babies? MacDonald: I was not wearing a top to the best of my recollection — I first went to Colette, but anything was possible. Dr. Brussel: So you bled all over? MacDonald: All I could remember was blood everywhere. My memory was of a very bloody scene and I had no idea I was bleeding until I saw it on my chest. When I looked in the bathroom mirror I saw it on my face and chest (I believe). Dr. Brussel: Was your blood in the sink? MacDonald: So the Army says. I have no way of knowing whose blood was on the sink and I’m not surprised mine was there. I was at the sink and everyone knows that. Dr. Brussel: Who wiped the scene? MacDonald: (I replied that I didn’t know what he was talking about. If he meant the fingerprints, the critical ones were destroyed by the CID. If he meant the phones, the MP’s said they used the phones and their fingerprints are not on them, so I presume they wiped them once they realized they shouldn’t have used them.) Dr. Brussel: How do you account for the lack of footprints under the windows? MacDonald: There were no footprints found of MP’s who went up to the windows. I have no answer to that. Brussel: Why [did you], as a physician, put [your] daughter to bed with wet diapers on? MacDonald: In most cases a single wet diaper or pair of underwear is not enough to harm anyone and I had in fact known that I was putting Kristen to bed with a wet pair of pants but did not change her for fear of waking her. Dr. Brussel: [Were you] ever footprinted on February 17th? MacDonald: No, I was not. Dr. Brussel: How could [your] wife and children have been overkilled and [you] have suffered ... just one laceration “% of an inch deep?” MacDonald: This information is incorrect. I had multiple puncture wounds, stab wounds, several blows to the head and was found unconscious by the MP’s. Dr. Brussel: How could [you] possibly have seen four people in the house when [you were] knocked unconscious? MacDonald: I saw these people before I was knocked unconscious. Dr. Brussel: How many of [your] friends and neighbors saw these people enter the apartment? MacDonald: Several. Dr. Brussel: Why [were you] sleeping on the couch on the night of the crime? MacDonald: Kristy had wet the bed. Motion to Vacate Sentence, Declaration of Jeffrey R. MacDonald. Dr. Brussel was never called upon to testify at trial because the court eventually excluded the testimony of Dr. Sadoff and there was therefore no reason for the government to call Dr. Brussel or Dr. Silverman in rebuttal. See United States v. MacDonald, 485 F.Supp. 1087, 1094-97 (E.D.N.C.1979), aff'd, 688 F.2d at 227-28. Despite this, MacDonald argues that the prosecution used Dr. Brussel as an agent to obtain a preview of his answers to questions about the physical evidence at the crime scene, and that this information prompted the following questions, inter alia, on cross-examination: Prosecution: Suppose the jury should find ... that Type AB blood, the same as that of your daughter Kimberly, was found on the blue pajama top; and that you were not wearing that pajama top when you went to see Kimberly. Do you have any explanation for that? MacDonald: Pure conjecture. (Trial Tr. at 6862.) Prosecution: You did not hear any ripping [of the pajama top] at that time; is that correct? MacDonald: No. I do not recall hearing ripping sounds. (Trial Tr. at 6885.) Prosecution: Can you tell us how that [pajama] pocket (which was torn off the pajamas) got there [on the overturned portion of the throw rug]? MacDonald: It could have fallen from the pajama top when I took it off my wrists. It could have been moved when they moved myself or Colette ... I have no idea how it got there. I think there are a lot of possibilities. (Trial Tr. at 6847-48.) Prosecution: Can you tell us how you fell off the sofa and the afghan that was on the sofa stayed on the sofa even though you went off of it? MacDonald: I am. not aware that the afghan stayed on the sofa. (Trial Tr. at 6827.) Prosecution: Are you saying that you don’t know whether it stayed on or off? MacDonald: That is correct. (Trial Tr. at 6827.) Prosecution: [S]uppose the Jury should find from the evidence that the blood in the bathroom sink is that of Type B, your blood; and assuming further or supposing further that the jury should find that it was not Type A, Type AB or Type O: do you have an explanation for that? MacDonald: No. (Trial Tr. at 6881.) Prosecution: [S]uppose the jury should find from the evidence that there is no blood or was no blood that was sufficient to be typed — sufficient quantities to be typed — on either the telephone in the master bedroom or the kitchen and that they should find from the evidence that you went there and used the phone as you have indicated: do you have any explanation for why there would be no blood? MacDonald: No. There was blood on my hands. I used the phone. I have no explanation for that lack of finding. (Trial Tr. at 6884.) Prosecution: [S]uppose the jury should find from the evidence that Type B blood, the same type as yours, is found in only one place on the blue pajama top belonging to you. Do you have any explanation for that, sir? MacDonald: No. Just pure conjecture. (Trial Tr. at 6891.) The core of MacDonald’s motion to vacate sentence under 28 U.S.C. § 2255 is that the government retained Dr. Brussel who was, unknown to the defendants, an investigative agent directed to surreptitiously gather information from MacDonald for cross-examination. This, argues MacDonald, violated his right to effective assistance of counsel under the Sixth Amendment and his due process rights and privilege against self-incrimination under the Fifth Amendment to the Constitution. See Estelle v. Smith, 451 U.S. 454, 461-74, 101 S.Ct. 1866, 1872-79, 68 L.Ed.2d 359 (1981); United States v. Wade, 388 U.S. 218, 221-27, 87 S.Ct. 1926, 1929-32, 18 L.Ed.2d 1149 (1967); Massiah v. United States, 377 U.S. 201, 204-07, 84 S.Ct. 1199, 1201-04, 12 L.Ed.2d 246 (1964). MacDonald principally relies upon two Supreme Court decisions, Massiah v. United States and Estelle v. United States, in support of his motion. In Massiah, federal law enforcement officers obtained incriminating statements from a criminal defendant, Massiah, who had retained a lawyer and was free on bail following his indictment by installing a radio transmitter in the car of a co-defendant who had decided to cooperate with the government. 377 U.S. at 202-203, 84 S.Ct. at 1200-1201. The statements were subsequently used against Massiah over his objection at trial and he was convicted of violating federal narcotics laws. Id. at 203, 84 S.Ct. at 1201. Reversing Massiah’s conviction, the Supreme Court held that he “was denied the basic protections of [the Sixth Amendment right to effective assistance of counsel] ... when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” Id. at 206, 84 S.Ct. at 1203. The Court’s decision in Massiah thus prevents the prosecution from using an investigative agent to secretly obtain incriminating statements from a criminal defendant in the absence of his attorney and from using these statements against the defendant at trial. Following its decision in Massiah, the Court rendered its opinion in Estelle v. Smith, a case more factually similar to MacDonald’s. The criminal defendant in Estelle was indicted for murder and the state decided to seek the death penalty in a bifurcated proceeding. The trial judge, sua sponte, ordered that Smith be examined by Dr. Grigson, a court-appointed psychiatrist, to determine whether he was competent to stand trial. 451 U.S. at 456-57, 101 S.Ct. at 1869-70. Dr. Grigson found Smith competent to stand trial and so informed the court. Smith was subsequently convicted of murder following the guilt phase of his trial. During the penalty phase of Smith’s trial, Dr. Grigson was called by the state to testify as to Smith’s future dangerousness. Dr. Grigson had concluded from the competency examination, conducted without the permission of Smith’s defense counsel, that Smith was a danger to society and had discussed his findings with the state’s attorney and agreed to testify on behalf of the state. Id. at 459, 101 S.Ct. at 1871. He was the only witness for the state and testified that Smith was “a severe sociopath” who had no “regard for another human being’s property or ... life____” Id. The jury imposed the death penalty and Smith appealed, arguing that the death penalty had been imposed upon him in violation of his Fifth and Fourteenth Amendment rights to due process and freedom from compelled self-incrimination and his Sixth Amendment right to the effective assistance of counsel Id. at 460, 101 S.Ct. at 1871. Addressing Smith’s Fifth Amendment argument first, the Court noted that although the trial judge had “ordered a psychiatric evaluation of respondent [to determine] his competency to stand trial ... the results of that inquiry were used by the State for a much broader objective that was plainly adverse to respondent.” Id. at 465, 101 S.Ct. at 1874. Under these circumstances, the Court found that “[w]hen Dr. Grigson went beyond simply reporting to the court on the issue of competence and testified for the prosecution at the penalty phase ... his role changed and became essentially like that of an agent of the State recounting unwarned statements made in a postarrest custodial setting.” Id. The Court went on to conclude that the failure of the state to inform Smith of his rights under Miranda v. Arizona, 384 U.S. 436, 467-73, 86 S.Ct. 1602, 1624-27, 16 L.Ed.2d 694 (1966), deprived him of the procedural safeguards guaranteed to him by the Fifth Amendment. Based upon similar reasoning and relying upon its earlier decision in Massiah v. United States, the Supreme Court also held that Smith’s Sixth Amendment right to the effective assistance of counsel was abridged because he was not given the opportunity to consult with his attorney about his participation in the psychiatric examination. Estelle, 451 U.S. at 469-73, 101 S.Ct. at 1876-78. Arising from Massiah and Estelle is the general principle that the prosecution cannot use incriminating information gained from the examination of a defendant by a psychiatrist who is, in fact or in effect, an agent of the prosecution without first informing the defendant of, inter alia, his right to remain silent and to consult with his attorney. This principle is of little use to MacDonald here, however, because there is no evidence that the prosecution enlisted Dr. Brussel as an investigative agent, gave him questions to ask MacDonald, debriefed him following the examination, or used any information from the examination against MacDonald during trial. There is evidence in the record that the defense knew of Dr. Brussel’s participation in the case as early as April of 1971. Agent Peter E. Kearns met with chief defense counsel, Bernard Segal, on April 29, 1971 between 11:40 a.m. and 1:30 p.m. at the Americana Hotel in New York City. At that meeting, Kearns told Segal that he would furnish him with names of doctors who would review MacDonald’s psychological tests on behalf of the government. Government’s Response to Motion to Vacate Sentence, Appendix Vol. II, Ex. L at 1-2 and Attachment 1. Pursuant to their discussion, Kearns sent a letter to Segal on May 17, 1971 and included a Xerox copy of both Doctors Brussel and Silverman’s resumes. From this, it seems beyond doubt that the defense, through Attorney Segal, knew that Dr. Brussel was somehow involved in the case. True, it is likely that defense counsel was unaware of the specifics of the February 6, 1971 interview between Brussel and Agents Kearns and Ivory, but it was certainly on notice that Dr. Brussel had been consulted before trial. When the issue of psychiatric testimony came up at trial, the court ruled that before Dr. Sadoff could be called by the defense, the court would allow the prosecution to have MacDonald examined by one of its psychiatrists. Trial Tr. at 4768-69; 4839-45. The government, understandably, chose Dr. Brussel because he, like Dr. Sadoff, had been consulted earlier and was familiar with the case. Although the defense was on notice that Dr. Brussel had participated in the early stages of the case, the record does not reflect any objection at trial or after trial on this ground. In fact, there would have been no ground for objection since Dr. Brussel had only a very limited role in the case prior to August 13, 1979. He had been consulted only once eight years earlier and had given only preliminary conclusions based upon documentary evidence. Ironically, his ultimate opinion was that “MacDonald is not telling the truth but this fact alone does not mean he is the murderer.” Motion to Vacate Sentence, Declaration of Karen R. Davidson, Ex. A at 2. This is hardly sufficient to show that the government had a duty to tell MacDonald or his lawyers of the details of the February 6, 1971 meeting, but even if it were, the evidence shows that the government never used Dr. Brussel as an investigative agent. The only direct evidence supporting MacDonald’s assertion that the prosecution enlisted Dr. Brussel as an investigative agent is contained in MacDonald’s own affidavit. See id. at Declaration of Jeffrey R. MacDonald. Contradicting this affidavit are the affidavits of two attorneys for the prosecution, Brian M. Murtagh and James L. Blackburn, and the affidavit of Dr. Hirsch L. Silverman, the psychologist who examined MacDonald with Dr. Brussel. Government’s Response to Motion to Vacate Sentence, Appendix Vol. II at Ex. F, H and K. Trial counsel for the prosecution unequivocally deny that any overtures were ever made to Dr. Brussel to bring him into their camp and Dr. Silverman states that neither he nor Dr. Brussel were furnished with a list of questions to ask MacDonald. Weighed against these affidavits, MacDonald’s argument that Dr. Brussel was an investigative agent falls short of the mark. That the government’s lawyers were not guilty of such misconduct is further reinforced by the court’s recollection that in all stages of the case, counsel for both sides conducted themselves in utmost good faith. Similarly without merit is MacDonald’s supposition that Dr. Brussel was debriefed by government lawyers following the August 13, 1979 examination. There is no direct evidence of this but MacDonald contends that it must have happened because questions similar to those asked during the interview with Dr. Brussel were asked during his cross-examination and it would be illogical to conclude that the government did not debrief its own expert. Such theories are refuted by the affidavits of Murtagh and Silverman. As Murtagh candidly admits, corroborated by Dr. Silverman, he asked the two doctors while driving back from the examination “how the examination had gone, and what their opinion was about MacDonald’s makeup, and credibility.” Government’s Response to Motion to Vacate Sentence, Appendix Vol. II, Ex. F at 7, H at 1-2. Although Dr. Brussel spontaneously stated that he had no doubt that MacDonald had committed the murders, was lying about it, and was a psychotic, no specific information on questions and answers was volunteered to Murtagh or elicited by him. Thus, the court finds that no debriefing took place. In light of the foregoing, it is readily apparent that Dr. Brussel was never drafted into service by the prosecution to obtain information which was later used during MacDonald’s cross-examination. This conclusion is amply supported by the affidavits of Murtagh, Blackburn and Laura Lipsitz, an attorney who helped prepare cross-examination notebooks during her tenure as a legal intern in the United States Attorney’s Office in the summer of 1979. See id., Ex. F at 1-3, K at 1-3, G. As these affidavits indicate, the eight years of investigative work which went into the case prior to its trial in 1979 yielded a more than ample independent basis for the questions asked during cross-examination. There was no reason for the government to rely upon Dr. Brussel as an investigative agent because the government already knew that MacDonald was unable to explain certain physical evidence at the crime scene. For example, CID Agent Shaw and MacDonald had the following exchange on April 6, 1970: MacDonald: I’m sure I took this thing [the pajama top] off the first time. I don’t — I didn’t make a circuit with this jacket on, I don’t think. I came down the hallway — I know that — and I went in, and I took it off to get my hands free— Agent Shaw: Yeah. MacDonald: — Basically— Agent Shaw: Okay. MacDonald: — And sometime while I was in there the first time, I — you know, I put it over my wife. Government’s Trial Exhibit 1135 at 74. Thus, the government knew that as early as April of 1970, MacDonald had been unable to explain how Kimberly MacDonald's blood had come to be on his pajama top for he had said that he took it off before going to her room. Similarly, the government was aware that MacDonald could not explain how his pajama top came to be ripped since during grand jury testimony on January 21, 1975 the following colloquy took place between him and Attorney Victor Woerheide who was handling the case for the government at that time: Woerheide: Now, somewhere in the fight the pajamas were ripped over the. I think you used the term ripped over your head. I was reading something this morning, I thought it was this particular one. But — how would you describe what happened so far as your pajamas tops were concerned during the course of the struggle? MacDonald: I don’t know how they got around my hands sir, you keep telling me I said they were ripped. I never said that I know of. Worheide: Well, I saw it in something that I was just read— MacDonald: (Interposing) They were either pulled over my — over my head or was ripped from around my back. I don’t know which. I have no idea. Woerheide: Well, during what phase of the struggle was this. Right at the very end, sort of before you went down and hit the floor? MacDonald: No, it seemed earlier than that because I remember my hands were bound up. Woerheide: Oh, did you hear a ripping sound or tearing sound at that time? MacDonald: No. Woerheide: Well, do you know in what manner they were torn or— MacDonald: I have no idea. Woerheide: All that you knew was they got around your hands and wrists and they hampered you in your struggle? MacDonald: That’s right. Government’s Trial Exhibit 1141 at 4. The government also knew that MacDonald could not explain why fibers from his pajama top were found throughout the house. This knowledge was gained in early 1970 when CID Agents confronted MacDonald with this evidence in the following series of questions and answers: AGENT SHAW: Q: ... Now, again, your jacket. A: Pajama top? Q: Pajama top. Now, we’ve taken this thing and we’ve examined it under laboratory conditions. We know what it’s made of. We know what kind of fiber is in it. We know what kind of threads are in it. We know how — that it’s old. A: Right. Q: It’s been around a long time. We know that it hasn’t been repaired to the extent that there are foreign threads in it. That’s— A: Right. Q: Okay, now, we have found fibers and threads in various places in the house. And one of the most puzzling things to me, personally, is that we found fibers from this jacket under Colette’s body — strung out under her body — and I’m interested in how they came to be there. A: Shaken off. I don’t know. Mayb— do these things shed? Are they laying all around the house? I mean I don’t know. Q: No, it doesn’t— A: You mean they’re big fibers? Q: Yeah. A: Not— Q: Not microscopic. AGENT IVORY: Q: Not a fuzz. A: Not a fuzz? Q: No. It would be fibers and threads. A: I don’t know. AGENT SHAW: Q: Okay. A. I can’t answer that. Government’s Trial Exhibit 1135 at 67-69. As these examples illustrate, the government was well aware of MacDonald’s inability to explain certain physical evidence before August 13, 1979. It would be casting at shadows to conclude, as MacDonald does, that the basis of the government’s cross-examination was information gained from Dr. Brussel when so much was known about the crimes before trial. After studying the record and MacDonald’s contentions in this motion, the court concludes that the motion is without merit and must be denied. Dr. Brussel was obviously chosen by the government as an expert because of his reputation as a criminologist and knowledge of the case, and not because of his willingness to serve as an investigative agent. There was, therefore, no violation of MacDonald’s Sixth Amendment right to counsel or his privilege against self-incrimination and due process rights under the Fifth Amendment. Although Dr. Brussel may have personally believed that MacDonald murdered his family and even had been zealous in his questioning, the government in no way encouraged him or used him as an agent and its actions during this period of the trial are beyond reproach. II. Motion to Set Aside Judgment of Conviction The Basis of the Motion Turning to the second motion brought under 28 U.S.C. § 2255, MacDonald claims that his conviction should be set aside because the government suppressed exculpatory evidence which, had it been introduced at trial, would have caused the jury to acquit him of the murders. The allegedly suppressed evidence includes (1) a half-filled bloody syringe; (2) bloody clothes and boots claimed to have belonged to either Helena Stoeckley or Cathy Perry Williams; (3) skin found under Colette MacDonald’s fingernail; and (4) photographs of the letter “G” printed on the wall of Helena Stoeckley’s apartment in Nashville, Tennessee. The government responds that it did not suppress any evidence, and that, regardless, the allegedly suppressed evidence is so immaterial that it could not have affected the outcome of the trial. In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” From this brief passage, the court left no doubt that once a criminal defendant requests material, exculpatory evidence, the prosecution is under a duty to supply the evidence. Left open by the Brady decision was whether this duty existed when the defendant failed to request exculpatory evidence from the prosecution. The question left open in Brady was answered by the Court in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), which held that the Brady rule applied in three different situations distinguished by the specificity of the criminal defendant’s request for the information and the materiality of the evidence requested. In the first situation, the Brady rule requires disclosure of evidence which “demonstrates that the prosecution’s case include[d] perjured testimony and that the prosecution knew, or should have known, of the penury.” Agurs, 427 U.S. at 103, 96 S.Ct. at 2397; see Mooney v. Holohan, 294 U.S. 103, 110-13, 55 S.Ct. 340, 340-42, 79 L.Ed. 791 (1935). A conviction under such circumstances “must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Agurs, 427 U.S. at 103, 96 S.Ct. at 2397; see Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). The Brady rule also applies when the defense has made a specific request for evidence; that is, a request so clear that it gives “the prosecutor notice of exactly what the defense desire[s].” Agurs, 427 U.S. at 106, 96 S.Ct. at 2399. Failure by the government to supply the requested information in this second situation will result in a new trial if the suppressed evidence “might have affected the outcome of the trial.” Id. at 104, 96 S.Ct. at 2398. The Agurs court also found that the Brady rule imposes a duty upon the prosecutor to disclose material, exculpatory evidence even though the defense has made only a general request for exculpatory evidence or had made no request. The prosecutor commits constitutional error in such cases if he fails to disclose exculpatory evidence which would “createf ] a reasonable doubt that did not otherwise exist____” Id. at 112, 96 S.Ct. at 2402. In pleadings filed with the court and during oral argument, counsel for MacDonald has insisted that either the “any reasonable likelihood” or “might have affected the outcome of the trial” test should be applied to the facts of the case. Not surprisingly, the government takes the opposite view, arguing that assuming there has been a suppression of evidence, the court should apply the last Brady test and set aside the convictions and order a new trial only if suppressed evidence is found to “create a reasonable doubt which did not otherwise exist.” Settlement of this disagreement only becomes necessary, of course, if it is first found that (1) the items were suppressed and (2) the evidence would have been favorable to the defense. Moore v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 2562, 2567-68, 33 L.Ed.2d 706 (1972); United States v. Anderson, 574 F.2d 1347, 1353 (5th Cir.1978). After reviewing the evidence and arguments on both sides, the court concludes that the government did not suppress evidence and, in any event, there has been an insufficient showing that the four items would have been favorable to the defense if introduced at trial. 1. The Half-Filled Bloody Syringe MacDonald first contends that the government suppressed the existence of a half-filled bloody syringe which could have proved that he did not commit the murders. During the investigation of the crime scene at 544 Castle Drive, Fort Bragg, North Carolina, investigators found a variety of medical supplies in a hall linen closet. Among the supplies were seventy medications, at least fourteen disposable hypodermic syringes and eight boxes of hypodermic needles each containing twelve needles. Government’s Response to Motion to Set Aside Conviction at Ex. B, Government’s Trial Exhibits 1147-48. The closet also contained linen, and the sliding door to the closet was stained with the blood of Jeffrey MacDonald. Government’s Trial Exhibit 344. Hilyard O. Medlin was in charge of a group of technicians dispatched by the Army from its Fort Gordon, Georgia, Criminal Investigation Laboratory to assist CID investigators in processing the MacDonald crime scene. On February 21, 1970, the last day that investigators were at the MacDonald apartment, Medlin was debriefed by Special Agent Tool during the course of which he stated “that a half filled syringe that contained an as yet unknown fluid was located in a hall closet, which also contained some evidence of blood.” Motion to Set Aside Judgment of Conviction, Declaration of Brian O’Neill at Ex. A. He also said that it “appeared that someone with a bloody hand had reached into this cabinet containing medical supplies for some purpose.” Id. The record is thereafter devoid of any further reference to this specific syringe. MacDonald asserts that despite his request on several occasions for statements made by Medlin, the government failed to furnish him with the February 21, 1970 statement in which Medlin refers to the “half-filled bloody syringe.” According to MacDonald, this non-disclosure by the government was a deliberate suppression of exculpatory evidence which violated his due process rights. The evidence is exculpatory, he argues, because the mere presence of a half-filled syringe with blood on it in the linen closet would substantiate his explanation that the murders had been committed by drug-seeking intruders. Furthermore, the blood on the syringe could have been typed and fingerprints processed, thereby possibly providing evidence which would have completely exonerated him of the crimes. The government replies to MacDonald’s assertions by providing a number of affidavits offered to show that no “half-filled bloody syringe” was found at the crime scene and that either MacDonald or his defense lawyers were aware of Medlin’s statement to Special Agent Tool. The government goes on to argue that even if the syringe did exist and its existence was suppressed, it is pure speculation to suggest that the evidence was of itself exculpatory or could have yielded exculpatory evidence. It is not necessary for the court to decide whether MacDonald or his attorneys knew of Medlin’s statement prior to trial for there is insufficient evidence in the case from which the court could conclude that a “half-filled bloody syringe” ever existed. There is also insufficient evidence to support the conclusion that if such a syringe did exist, it would have provided exculpatory evidence to the benefit of MacDonald. The only evidence that a “half-filled bloody syringe” ever existed is contained in Medlin’s somewhat ambiguous statement • to Agent Tool. As Medlin’s affidavit indicates, when he made his statement to Agent Tool he was only summarizing the information provided to him by other members of the crime scene processing team. Government’s Response to Motion to Set Aside Conviction, Ex. B at 2. He had no first-hand knowledge of the contents of the closet and denies ever seeing a half-filled syringe which bore blood stains. The implication of his statement and its secondhand nature is that Medlin misunderstood what the other investigators told him about the contents of the closet. In fact this is what must have occurred, for investigative agents having firsthand knowledge of the contents of the hall closet state, or would state if called to testify at trial, that no “bloody half-filled syringe” or other half-filled syringe was found in the closet. Id., Ex. D at 2; see Evidentiary Hearing Tr., Vol. 2 at 105. Moreover, the chemist who processed the hall closet for blood stains, Craig Chamberlain, and the agent who inventoried the medical supplies in the closet, Hagan Rossi, state without reservation that no half-filled syringe of any kind was found during the crime scene investigation. See id. at 105. Measured against these statements by four witnesses having firsthand knowledge of the evidence gathered from the crime scene, MacDonald’s argument, based as it is upon the statement of one witness summarizing information conveyed to him by others, that the government has suppressed evidence of a “half-filled bloody syringe” is simply not plausible. Even if the syringe had existed, MacDonald’s arguments would yet fail because he has not shown that the evidence would be favorable to him. See Moore v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 2562, 2567-68, 33 L.Ed.2d 706 (1972); United States v. Barshov, 733 F.2d 842, 848 (11th Cir.1984). The “mere possibility that [discovery of the syringe] might have helped [MacDonald], or might have affected the outcome of the trial, does not establish [materiality] in the constitutional sense.” United States v. Agurs, 427 U.S. 97, 109-10, 96 S.Ct. 2392, 2400-01, 49 L.Ed.2d 342 (1976); see United States v. Jackson, 579 F.2d 553, 560 (10th Cir.1978); Mixon v. Attorney General of State of South Carolina, 538 F.Supp. 190, 193 (D.S.C.1982). As counsel for MacDonald conceded at oral argument, the evidence may have well been unfavorable to MacDonald at trial. MacDonald has therefore failed to offer enough evidence from which the court could find that the syringe, assuming its existence, or evidence derived therefrom, would have been of value to him either before or during his trial. Similarly, even if the government suppressed Medlin’s statements to Agent Tool concerning the syringe, an assumption which the evidence also does not support, knowledge of Medlin’s statements would have been to no avail to MacDonald since the underlying evidence did not exist. MacDonald’s argument that he could have used Agent Medlin’s statement to impeach the integrity of the crime scene and attack Medlin’s credibility is also unconvincing in view of the fact that these tactics were used extensively at trial and to the extent that Medlin’s statement tended to prove these issues it would only be cumulative. See Agurs, 427 U.S. at 109-10, 96 S.Ct. at 2400-01; Giles v. Maryland, 386 U.S. 66, 98, 87 S.Ct. 793, 809, 17 L.Ed.2d 737 (1967) (Fortas, J., concurring in judgment). 2. The Bloody Clothes and Boots MacDonald has consistently claimed that Helena Stoeckley, more about whom will be said later, participated in the murder of his family on February 17, 1970 and was wearing a floppy hat, short skirt and boots on that night. MacDonald now claims that in early 1971, the CID came into possession of bloody clothes and boots belonging either to Helena Stoeckley or to Cathy Perry Williams, a friend of Stoeckley. The boots were later returned by the CID to a friend of Williams and MacDonald now alleges that despite a June 13, 1979 pre-trial discovery request in which he sought “all information in the Government’s possession which is of an exculpatory nature, including, but not limited to, recent reports by citizens of possible suspects, police and other investigatory files of possible suspects” and the CID’s thirteen-volume investigation report on the crimes, the government never disclosed any information regarding the bloody clothes and boots to the defense team. The government concedes that the CID did have possession of the boots in 1971 but denies that there was any blood on the boots or that any clothes were ever turned over to the CID. The government also contends that MacDonald, through two of his former attorneys, knew that the CID once had possession of the boots and that the boots were properly returned to the woman who gave them to the CID because they did not match MacDonald’s description of those worn by the female assailant and a laboratory analysis of the boots yielded no evidence connecting the boots to the crimes. The history of how the “bloody clothes and boots” fell into the hands of the CID is as bizarre as other aspects of the case. Jackie Don Wolverton, a soldier stationed at Fort Bragg, North Carolina, awoke on the morning of December 29, 1970 to find that he was being stabbed by his roommate, Cathy Perry (now Cathy Perry Williams). Government’s Response to Motion to Set Aside Conviction, Ex. J at 5-8 and Attachment 6. For obvious reasons, Wolverton threw Williams out of the apartment and gathered some of her belongings which he took to Mrs. Betty J. Garcia, another friend of Williams’. Mrs. Garcia accepted the items and Cathy Perry WilHams moved in with her for a few days sometime shortly after the stabbing. After living with her a short time Mrs. Garcia concluded that Williams was suffering from severe mental problems created by drug addiction because she suffered from hallucinations and wore the same clothes every day for as long as she stayed with Mrs. Garcia. See Government’s Response to Motion for New Trial, Appendix Vol. I, Ex. L at 5-7. This conclusion was reinforced by the fact that Williams had previously stabbed her own puppy to death while under the influence of drugs and had attempted to stab Mrs. Garcia’s son shortly after the stabbing incident involving Wolverton. After attempting unsuccessfully to help Williams, Mrs. Garcia contacted her uncle who picked her up and took her to a mental hospital in Raleigh, North Carolina. Mrs. Garcia then asked Jackie Don Wolverton to help her collect the remainder of Williams’ belongings and Wolverton went around to various places Williams had stayed gathering things which he thought belonged to her but possibly could have belonged to other people. While going through the clothing, Mrs. Garcia found a pair of beige boots and some other items which led her to believe that Williams was involved in the MacDonald case. Id. Through a newspaper reporter, Mrs. Garcia then contacted FBI Special Agent Lacy M. Walthall for assistance. Affidavit of Lacy M. Walthall, Jr., at 1, June 12, 1984. Special Agent Walthall attempted to interview Mrs. Garcia on January 5, 1971, but she refused to open her door and told him that she had given all of Cathy Perry Williams’ possessions to her lawyer, Charles Kirkman. Id. Kirkman in turn turned over the items to an associate, James R. Nance, who had represented MacDonald in a civil action before Chief Judge Algernon L. Butler of this court following the dismissal of charges against him by the military. Nance went to the office of Captain James Douthat, MacDonald’s appointed military counsel at the Article 32 proceedings, the afternoon of January 6, 1971 and released Williams’ belongings to CID agents William Ivory and Peter Kearns. In return Agent Ivory prepared a Military Police Receipt for Property listing the articles received from Nance, and signed by Ivory, Nance and Douthat. Included among the items turned over to the CID for evidence evaluation was a “Pair of Woman’s boots, beige, w/tag THE GREAT BOOTS by GOLD SEAL.” Government’s Response to Motion to Set Aside Conviction, Exhibit N. There were no clothes listed on the receipt nor was there any indication that the boots or any of the items were blood-stained. Routine laboratory analysis failed to provide any link between the boots and the MacDonald case and no blood or debris was found from which a comparison could be made to evidence gathered from the crime scene. Government’s Response to Motion to Set Aside Conviction, Ex. J at 4-5 and Attachment 2. The boots also did not match the description that MacDonald had given to CID investigators on April 6, 1970 because he said that he “never saw white, muddy boots ... they were brown____” Government’s Trial Exhibit 1135 at 6. Having failed to find any connection between the boots and the murders, the CID on February 2,1971 returned the boots and other articles to Mrs. Garcia who signed the same receipt indicating that she had received the items. Copies of this receipt apparently languished in the files of both Douthat and the government, since the record does not show any further mention of the receipt or the “bloody clothes and boots” until the issue was presented in the present motion. There is no evidence from which the court can find that any items other than those listed on the military property receipt were given to CID Agents Ivory and Kearns. The receipt is unquestionably authentic and was signed by representatives of both sides of the case, further evidencing its accuracy. Although the declarations of Douthat and James R. Nance both refer to clothes and boots, the property receipt does not list any clothes as having been received by the CID and both Agents Ivory and Kearns state that all items offered by Nance were taken for analysis but that no clothes were provided. Furthermore, there is no evidence in the record to support the argument that property other than that listed on the military property receipt was given to the CID investigators but not listed on the receipt. The court therefore finds that while a pair of beige boots was given to the CID by Nance, he did not deliver any articles of clothing to the agents. The evidence is also conflicting as to whether there were any stains on the beige boots when they came into the hands of the CID. Nance recalls a brownish stain on one of the boots and Mrs. Garcia thinks that there “may have been some kind of a stain on the boots,” but she is not sure. Government’s Response to Motion for New Trial, Appendix Vol. I, Ex. L at 2, 8. This less than concrete evidence that the boots were blood-stained is contradicted by the affidavits of CID Agents Kearns and Ivory and Kerns’ sworn statement of April 5, 1972 concerning the boots. Government’s Response to Motion to Set Aside Conviction, Ex. D at 3, J at 4-5 and Attachment 2. Thus, while the recollections of two individuals of an event which occurred almost fifteen years ago suggest that the boots may have been blood-stained, the physical evidence in the form of the military property receipt, a sworn statement by one of the receiving agents made just over a year following the incident, and the present recollections of both of the receiving CID agents are to the contrary. Based upon this evidence, the court finds that the boots were not blood-stained. Furthermore, since the boots bore no stains, mud, or other debris connecting them to the MacDonald murders and they did not meet the description of the boots MacDonald said the female assailant was wearing on the night of the murders, the CID did not act improperly in returning the boots to Mrs. Garcia. The court further finds that either MacDonald or his lawyers should have known about the existence of the boots and their receipt by the CID because both Douthat and Nance had represented MacDonald at some point in the case and Douthat had until recently a copy of the military property receipt in his files. MacDonald argues that knowledge on the part of Douthat and Nance should not be imputed to him, however, because Douthat’s involvement in the case ended in December of 1970 and Nance’s involvement was limited and ended prior to the close of the Article 32 proceedings in late 1970. In any event, so the argument goes, neither Nance nor Douthat were under any duty to pass the information to the defense and both deny having done so. The court has difficulty believing that these two lawyers, particularly Douthat, were so removed from the defense team in January of 1971 that they would have failed to bring the boots to the attention of MacDonald’s lawyers, especially when it was well known that MacDonald had claimed a woman wearing boots had participated in the crimes. Even assuming they did not do so because they were unaware of the possible evidentiary value of the boots, this only underscores the fact that the prosecution was acting in good faith when it returned the boots to Mrs. Garcia simply because there was no reason to suspect that they were involved in the murders. The court is unwilling to go so far as to find that Nance and Douthat told MacDonald’s lawyers abou