Full opinion text
ORDER HAWKINS, District Judge. This matter is before the court on motions to dismiss the superseding indictment against defendants LUTHER LANGFORD TAYLOR, LARRY BLANDING and BENJAMIN J. GORDON, JR., and the indictments against defendants PAUL WAYNE DERRICK and JEFFERSON MARION LONG, JR., on the grounds of prosecutorial, agency and/or investigative misconduct. Each defendant in these cases has joined in the motions of the other defendants. All of these defendants are back before this court for retrials on remand from the Fourth Circuit Court of Appeals. The court has reviewed each of the motions, the memorandums in support of and in opposition thereto, the transcripts of the various hearings, and the numerous exhibits attached to the memorandums and filed with the court in support of oral arguments. The court is convinced that the totality of the government’s actions in these matters rises to the level of egregious prosecutorial misconduct, and that this is a sufficient finding on which the court can exercise its supervisory power. A tedious analysis of the case law has not provided any clear standards or guidelines for the dismissal of indictments when the government has been found guilty of misconduct. It does appear to be clearly established that the dismissal of an indictment is a drastic step; however, the court believes it has the discretion under the doctrine of the court’s supervisory power to dismiss should it find the government’s actions so outrageous as to offend the sensibilities of the court. The government would argue that in using its supervisory power the court must find pattern and prejudice, and that the defendants have proven neither. The court agrees that the circuits are in disarray on this subject, but believes there is sufficient precedent to dismiss the subject indictments without addressing these issues. A fuller discussion of its authority under the supervisory power doctrine will be found at the conclusion of this order. I have wrestled with some sanction short of dismissal, but find that the only remedy available to these defendants that would be commensurate with the misconduct of the government is in the dismissal of these indictments. I am of the opinion that the nature and breadth of its misconduct is indicative of the drastic steps the prosecution took to win these cases, and that the resultant injustice to these defendants cannot be fully remedied by new trials. Therefore, the court must take the equally drastic step of invoking its supervisory power to dismiss these indictments with prejudice. I. PROCEDURAL HISTORY These eases arise from an FBI investigation of drugs and corruption in the South Carolina State House, code-named “OPERATION LOST TRUST,” that eventually involved some twenty-eight State legislators, lobbyists and others. In early 1988, Special Agent Michael S. Clemens of the Federal Bureau of Investigation’s Columbia, South Carolina, office, commenced an investigation of drug violations by members of the South Carolina State Legislature. On April 28, 1989, a registered South Carolina lobbyist, Ronald L. Cobb, was apprehended by the FBI after attempting to invest in a drug deal with an undercover agent. When approached by Clemens and other FBI agents, Cobb, realizing he had been caught in the commission of a felony, told the agents he could help them with a far more serious problem — political corruption in the State House. The FBI was in possession of some historical evidence of political corruption in the State House at that time, but had never developed sufficient evidence to indict any legislators or lobbyists. Cobb was given the opportunity to avoid prosecution for the drug deal in exchange for becoming a paid confidential informant. Over the next several months, the details of a sting operation were developed with Cobb’s assistance. It was ultimately determined to utilize a pari-mutuel betting bill then before the legislature; to set Cobb up as the lobbyist for a bogus corporation known as The Alpha Group, and to have Cobb let it be known that he had funds available for those legislators who would assist him in the passage of this legislation. The resulting corruption charges of Conspiracy to Commit Extortion under Color of Official Right and Extortion under Color of Official Right against these and some of the other defendants were brought pursuant to the Hobbs Act, Title 18, United States Code Section 1951. Other defendants were indicted on drug charges pursuant to various sections of Title 21, United States Code. On August 24, 1990, the first of the criminal indictments, No. 3:90-339, was returned against defendant LUTHER LANGFORD TAYLOR, a member of the S.C. House of Representatives, charging him with one count of conspiracy to commit extortion and five substantive counts of extortion, and ROBERT ALFRED KOHN, also a member of the S.C. House, charging him in the conspiracy count. Kohn pled guilty on September 26,1990. On September 19, 1990, Taylor filed a motion to dismiss the indictment on the grounds of prosecutorial, agency and/or investigative misconduct, which was heard and taken under advisement on September 24, 1990. A supporting memorandum was filed on October 1, 1990; the government filed its opposition on October 4th, and the motion was denied by this court on October 9, 1990. On October 15, 1990, the trial of Taylor commenced, and on October 25th he was found guilty on all six counts of the indictment. Taylor’s post-trial motions were denied, and he was sentenced to seventy-eight months on each of the six counts, the said sentences to run concurrently. Taylor appealed his conviction. Bond pending appeal, vigorously opposed by the government, was denied. During this time, on September 21,1990, a six-count indictment, No. 3:90-434, was returned against Ennis Maurice Fant, Larry Blanding and Benjamin J. Gordon, also members of the State House of Representatives. These defendants, likewise, filed a joint motion to dismiss for prosecutorial misconduct on November 7, 1990, to which the government responded on November 15,1990. The motion was denied at a hearing on November 19, 1990. Fant pled guilty to the conspiracy count of the indictment on February 22, 1991, and trial proceeded as to Blanding. and Gordon on February 25, 1991. On the first day of trial Gordon filed another motion to dismiss for prosecutorial misconduct, which was denied. Guilty verdicts as to both defendants were returned on March 7, 1991. After two hearings, their motions for acquittal and new trial were denied on August 7,1991. Blanding was sentenced the following month to thirty-seven months each on the conspiracy count and two substantive counts of extortion, said sentences to run concurrently, and remained on bond until he commenced serving his sentence upon designation by the Bureau of Prisons. Defendant Gordon’s sentencing on one count of conspiracy and one substantive count of extortion was postponed as the result of contested legal issues relating to sentencing and, subsequently, the defendant’s health. Both defendants appealed their convictions. Defendant Paul Wayne Derrick was indicted on February 20, 1991, by a two-count criminal indictment charging conspiracy to commit extortion and extortion under color of official right, # 3:91-0091, and went to trial on May 1, 1991. On May Ilth he was found guilty on both counts and was sentenced to thirty-four months on each count, said sentences to run concurrently. Derrick appealed this conviction and has remained free on bond. Defendant Jefferson Marión Long, Jr. was a member of the South Carolina Senate who was indicted in a two-count Indictment, # 3:91-0394, charging conspiracy to commit extortion and extortion under color of official right, on August 20, 1991. Trial commenced on November 12th; his motion for a directed verdict was granted as to Count 1 on November 22nd, and the jury returned a guilty verdict as to Count 2 on November 23, 1991. On March 26, 1992, this court granted this defendant’s motion for a new trial, which order was appealed by the government. Long has since remained free on bond. The Fourth Circuit Court of Appeals found that the jury charge given in the Taylor, Blanding and Gordon, and Derrick cases, to be in conflict with the subsequent holdings in McCormick v. United States, 500 U.S. 257, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991) (on the issue of quid pro quo), and Evans v. United States, 504 U.S. 255, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992) (on the issue of inducement), and remanded these three cases for re-trial. See, USA v. Taylor, 966 F.2d 830 (4th Cir.1992), aff'd on reh’g, 993 F.2d 382 (1993), and cert. denied, 510 U.S. 891, 114 S.Ct. 249, 126 L.Ed.2d 202 (1993); USA v. Blanding, No. 91-5871; 1992 WL 138353 (4th Cir. June 22, 1992); and USA v. Derrick, No. 92-5084; 1994 WL 34691 (4th Cir. Feb. 7, 1994). In another unpublished opinion, the Fourth Circuit Court of Appeals affirmed this court’s decision granting a new trial in USA v. Long, No. 92-6799; 1994 WL 56993 (4th Cir. Feb. 25, 1994). Following remand, both Taylor and Blanding were released on bond. This court then granted Gordon a new trial on August 6,1993. On July 1, 1993, this court issued an order for a statewide jury to be selected on August 16, 1993, in the retrial of Taylor. By order of August 2, 1993, trial was continued to November 8, 1993. On August 18, 1993, the government filed a Superseding Indictment which consolidated the Taylor ease with the Gordon and Blanding case. Taylor filed on September 29, 1993, the motion now still pending before this court to dismiss the superseding indictment on grounds of double jeopardy, claiming prose-cutorial and/or agency misconduct, which motion the government opposed on October 6, 1993. On October 19, 1998, the trial of the three defendants was continued to December 6, 1993, principally due to Gordon’s health. Again on October 26, 1993, the trial was continued to the first available term following January 1, 1994. On November 29, 1993,. however, the defendants received volumes of discovery material not previously furnished them by the government. As a result, Taylor filed several supplemental Brady motions, and on February 20, 1994, he filed a supplemental memorandum in further support of his dismissal motion. Gordon filed his motion to dismiss on February 22,1994. At this' point, the United States Attorney for the District of South Carolina sought an order of continuance and requested an investigation by the Department of Justice’s Office of Professional Responsibility (DOJ/OPR). On October 19, 1994, the U.S. Attorney for South Carolina recused his office from any further involvement in the cases, and attorneys from the Public Integrity Section of the Department of Justice were assigned as substitute counsel for the government. On October 20, 1994, a status conference was held on the within cases. Each defendant joined in the motions of the others, and discovery was consolidated with regard to the motions only. The court established an “Evidence Room” wherein the government was ordered to place all discovery materials and make them available to these defendants. The defendants continued to file motions for additional discovery, and a hearing on Taylor’s and Gordon’s discovery motions filed March 15 and 17,1995, was held in Columbia on April 19, 1995. This hearing resulted in the court issuing an order filed April 20, 1995, which stated in part: To avoid any further confusion as to what material should and should not be turned over by the government to the above defendants, it is ORDERED, that all documents and/or materials in possession of the government dealing with these cases and not presently available to the defendants in the “evidence room” be produced by the government directly to the court at Charleston, South Carolina, not later than Monday, May 8, 1995, for in camera inspection by the court.... [Order, 4/20/95, pp. 2-3]. Following an extensive inspection of the documents submitted to the court, the court issued its order on July 25,1995; and, following later submissions by the government, discovery orders were filed September 7 and October 6,1995. On October 18 through 20, 1995, the court held another hearing in Columbia. At this hearing, additional government files came to light and the defendants argued with specificity for reconsideration of portions of the court’s order of July 25, 1995. They further requested FBI computer-generated printouts of the inventories of the FBI’s entire “Lost Trust” and “Capital Gains” investigatory files, which resulted in Taylor filing an additional motion on January 19, 1996. Following a second lengthy in camera inspection by the court, and in response to Taylor’s January 1996 motion, the court issued an order on February 6, 1996. At that time, the court ordered that the hearing held in recess since the previous October be reconvened on March 11, 1996, at which time all parties were to “be prepared to present and complete testimony and arguments with regard to the motions to dismiss now pending before this court.” The government subsequently moved on February 14,1996, for reconsideration of the February 6th order, to which the defendant Taylor filed an objection, and the court ruled on this motion by order of February 23,1996. The health of defendant Gordon continued to be an issue, and his counsel sought a continuance of the March 11, 1996, hearing date. The continuance was granted; however, on May 24, 1996, the court, following a telephone conference with all parties, conditionally severed the defendant Gordon and reset oral arguments on the dismissal motions for May 29, 1996. On the day prior to that scheduled hearing, May 28th, the undersigned judicial officer suffered a heart attack and underwent angioplastic surgery on that date, and again on June 28th and August 19th. Thus, the hearing was not reconvened until October 3,1996. Following a full day’s hearing on October 3rd, the parties were given the opportunity to submit in writing any additional argument on matters in evidence on or before October 18th. The court received a letter under date of October 8, 1996, from the attorney for Taylor, and the government filed a memorandum on October 18, 1996, to which were attached Affidavits from former U.S. Attorney E. Bart Daniel, former Assistant U.S. Attorney Dale L. Du-Tremble, and Assistant U.S. Attorney John M. Barton, the chief prosecutors in these cases. By letter under date of October 24, 1996, to the court, Derrick’s attorney-lodged a protest to the filing of the three Affidavits as an attempt by the government to add to the record after the close of the hearing, and the court ruled that the Affidavits would not be considered. The joint motions of the above defendants to dismiss the superseding indictment as to Taylor, Blanding and Gordon and the indictments as to Derrick and Long on the grounds of double jeopardy and prosecutorial, agency and/or investigative misconduct are now ready for a ruling by this court. II. DEFENDANTS’MOTIONS TO DISMISS Some three to four weeks prior to the commencement of his trial, Taylor filed his first motion to dismiss on the grounds of investigative agency and prosecutorial misconduct in which he charged (1) that the government’s presentation to the Grand Jury was legally insufficient and exculpatory evidence was withheld, (2) that the conduct of the U.S. Attorney with regard to pretrial publicity had been improper, and (3) that the government engaged in fundamentally unfair investigative practices. Following a hearing and additional memorandums, this court denied his motion. [Order, 10/9/90]. Likewise, a joint motion was filed prior to trial by defendants Fant, Blanding and Gordon to dismiss for prosecutorial misconduct or, in the alternative, for sanctions, on the grounds (1) that the government violated an order of the court concerning pre-trial publicity, and (2) that the government violated the Code of Federal Regulations governing the release of information in criminal actions by personnel of the Department of Justice. The motion was denied at a hearing on November 19,1990. On the day jury selection commenced in the Blanding/Gordon case, February 25, 1991, the defendant Gordon filed a motion to dismiss for prosecutorial misconduct on the ground that Brady material furnished by the government only three days earlier would show that the government’s key witness had perjured himself both at the Taylor trial and before the Grand Jury and that the government had taken -no steps to correct the matter. The motion was denied by this court at a hearing on March 1, 1991. The cases proceeded to trial, conviction, and remand on appeal. Prior to retrial, however, on September 29, 1993, Taylor filed a motion to dismiss on the grounds (1) that the government had withheld evidence both exculpatory in nature and favorable to Taylor in violation - of the letter and spirit of the Brady case, and (2) that during the original trial proceedings the government generated extensive, prejudicial pre-trial publicity, thus denying defendant a fair trial in violation of the double jeopardy clause of the Fifth Amendment to the United States Constitution. At a hearing on October 12, 1993, the court took the motion under advisement. On February 12, 1994, Taylor filed a supplemental memorandum which informed the court that he had received from the government under date of November 29, 1993, a substantial number of documents and tapes never seen before. In the memorandum, Taylor identifies recently received materials which he claims overwhelmingly establish the extent and scope of the government’s violations of its responsibilities under Brady at the time of his first trial. He cites to specific pre-trial discovery sought via five Brady motions. Additionally, he claims that the theories of his defense were disclosed prior to trial so that the government cannot claim that it failed to see the exculpatory nature of the evidence sought but not disclosed; that defendant made an ample, if not overwhelming, record of his Brady requests; that rather than disclose the evidence it had which could be used to impeach its witnesses, the government sought to preclude the issue, and that during the trial defendant made further requests for Brady material to which the government attorneys made deceitful responses, thereby breaching their duty as officers of the court. On February 22, 1994, defendant Gordon filed his motion to dismiss the superseding indictment on the grounds (1) that the government intentionally withheld certain Brady material during his first trial, (2) that the government lied to the court about the existence of the Brady material, and (3) that the government allowed perjured testimony to be presented to the court. Derrick filed his motion claiming prosecu-torial misconduct in the withholding of Brady materials on April 19, 1995, and supplemented this motion on September 5,1995. Taylor filed a Second Supplemental Memorandum to his motion to dismiss on August 25, 1995, in which he expands his argument that the government was guilty of outrageous misconduct in that, among other things, it failed to supervise adequately a paid government informer, disregarded FBI regulations by questioning a target without Miranda warnings, delayed in transcribing interviews of witnesses, allowed false declarations before the Grand Jury and false testimony at trial which it did not correct, communicated with the defendant after trial without prior notice to his counsel, participated in prejudicial pretrial publicity, engaged in a pattern of conduct calculated to infringe on the Grand Jury’s ability to exercise independent judgment; misrepresented facts proven false by documents later found in the government’s file, failed to present exculpatory evidence to the Grand Jury, withheld prior exculpatory testimony and misrepresented to the court and the defense that the prior testimony existed; tainted the proceedings by misrepresentations and indiscretions of government agents, faded to provide proper warning to a Grand Jury target prior to his testifying before the Grand Jury, and perjury by a government agent. A Third Supplemental Memorandum was filed by Taylor on March 28, 1996, following access to discovery materials furnished by direction of this court’s order of February 6, 1996, as amended by order filed February 23, 1996. Taylor argues here that the new materials prove (1) that throughout this sting operation the government violated its own representations, the instructions it was required to follow, and the rules designed to insure fairness; (2) the perjury of Ron Cobb and Agent Clemens, as well as the false statements and arguments of the government attorneys, and (3) willful Brady violations. He further contends that this material contains new Brady material of which defendants had no prior knowledge. The defendants previously have taken issue with the handling of the investigation by the Department of Justice Office of Professional Responsibility (DOJ/OPR) and the Federal Bureau of Investigation Office of Professional Responsibility (FBI/OPR) after the OPR reports were furnished to the defendants in January of 1995. Taylor’s letter submission of October 8, 1996, includes a summary of his allegations that the pattern of misconduct extends beyond the local FBI and U.S. Attorney’s offices to a pattern of dissembling by FBI Headquarters and the Department of Justice as well. III. GOVERNMENT’S RESPONSES TO MOTIONS TO DISMISS The government responded on October 6, 1993, to Taylor’s motion to dismiss of September 29, 1993. These documents were filed following remand but prior to recusal by the U.S. Attorney for the District of South Carolina and prior to the government furnishing additional discovery materials to the defendant on November 29, 1993. The government’s response was prepared by AUSA Barton, who states therein: The United States not only vehemently denies these allegations but also maintains that even if true, neither these allegations nor the Fifth Amendment provide any basis for dismissal of the Superseding Indictment in this case. [Gov’s. Response to Def. Taylor’s Motion to Dismiss Indictment, 10/6/93, p. 1], In its argument against the allegation of the suppression of exculpatory evidence being material to the outcome of the trial, the government states that the defendant Taylor failed to show that there was a reasonable probability that the result of the trial would have been different had the evidence been disclosed; and, further, that defendant did not make full use of the information available to him, and thus no Brady violation occurred. The government also argues that Taylor has “abjectly failed to support his ‘extensive, prejudicial publicity’ assertion.” As to defendant’s Fifth Amendment double jeopardy claim, the government relies on the finding in United States v. Borokinni, 748 F.2d 236 (4th Cir.1984), and concludes that, even if Taylor’s alleged Brady violations were accurately stated and that the information was willfully withheld by the government, the Fifth Amendment’s double jeopardy would not provide a basis for the dismissal of the indictment. Following the receipt by defendant of additional discovery on November 29, 1993, as mentioned above, Taylor filed a supplemental memorandum on February 10, 1994, and Gordon filed his motion to dismiss on February 22, 1994; the matter was referred to the DOJ/OPR for investigation and attorneys from the Public Integrity Section, Criminal Division, of the DOJ were substituted for the U.S. Attorney’s Office in South Carolina. In opposition to both Taylor’s and Gordon’s motions and memorandums, an extensive memorandum was filed on the government’s behalf on October 31, 1994, by Daniel J. Butler, Senior Trial Attorney, and other DOJ attorneys. The Butler memorandum reiterates the government’s previous argument that there has been no showing of intentional government misconduct or longstanding pattern of misconduct. The government argues that the defendants’ contentions primarily relate to the non-production of two FBI FD-302s, and cites to the Fourth Circuit’s ruling in USA v. Taylor, 966 F.2d at 837, where the court, in response to the defendant’s claim that the government did not produce all evidence bearing on witness Cobb’s credibility, held that . [Taylor] is now aware of this evidence and may use it as the Rules of Evidence may provide at his retrial.” The government claims that other Brady violation claims by the defendants, such as Cobb’s use of cocaine, witness Robert Kohn’s use and sale of cocaine, other video- and audiotapes of Kohn and other taped interviews of co-conspirators, can also be remedied by a new trial. In response to other defense allegations, the government denies that there was any intentional misleading of the court or the defendant and no knowing presentation of perjured testimony. The government also makes its argument as to the requirement that the defendants must show prejudice, which it claims they have not done, and presents an argument against defendants’ exclusive reliance on the case of United States v. Shafer, 987 F.2d 1054 (4th Cir.1993), for dismissal of the superseding indictment on double jeopardy grounds and against defendants’ argument for dismissal based on the court’s supervisory powers. Subsequent to the above filings and as a result of a hearing on October 20, 1994, the “evidence room” was established as of December 1,1994, in which the government was directed to make all discovery available to the defendants. Numerous discovery disputes arose; the court conducted in camera inspections of documents which the government sought to have excluded, and another discovery hearing was held on April 19,1995. Defendant Derrick then filed on that date his separate motion to dismiss. On August 25, 1995, Taylor filed his Second Supplemental Memorandum in which he detailed various other allegations of government misconduct he claims came to light only as a result of the additional discovery at his disposal. Derrick also filed a supplement to his motion on September 5,1995. On September 25, 1995, the government responded to Taylor’s August (Second Supplemental) memorandum. It summarizes Taylor’s arguments for dismissal as (1) nondisclosure of Brady material, (2) misstatements to the court regarding the existence of discovery material, and (3) the knowing presentation of false testimony. It incorporates its earlier response that “under either an ‘outrageous’ conduct theory or the Court’s supervisory power, a motion to dismiss requires the defendant to prove both intentional governmental misconduct and demonstrable prejudice.” [Footnote omitted]. Again, the government summarizes the defendants’ contentions into three subject areas: (1) Taylor’s response to the government’s memorandum in opposition to the motions to dismiss; (2) the discovery produced since December 1, 1994, and (3) the capital gains tax matter. The government argues specifically with regard to defendant Taylor that, although he now has many more items of discovery which he did not have at his first trial, this is due in large part to the fact that he now has all of the Lost Trust discovery, whether it relates specifically to him or not. The government again argues that “the remedy for a significant Brady violation is a new trial, not dismissal of an indictment.” As to Taylor’s allegations of misstatements by the government to the court or the knowing use of false testimony, the government contends that defendant has completely failed to show bad faith on the part of the government and has not even “begun to refute the conclusions of the Offices of Professional Responsibility ... for the Department of Justice ... and the FBI which failed to find merit in [his] allegations.” The government also puts forth the argument here that defendant Taylor lacks standing to challenge the alleged misconduct in trials of other Lost Trust defendants and there is no longstanding pattern of government misconduct. In this memorandum the government also refutes Taylor’s allegations as to various items of evidence he claims were withheld. These items will be dealt with with specificity later in this order. In its response to defendant Derrick’s motion, the government also contends that this defendant has failed to show any intentional misconduct or a longstanding pattern of misconduct or any prejudice which would warrant dismissal of the indictment against him, and that any remedy to which he is entitled has been granted in his impending retrial. After Taylor filed his Second Supplemental Memorandum in August 1995, this court, in October 1995, held a three-day hearing, which resulted in a second extensive in camera inspection and orders filed February 6 and February 23, 1996. The oral arguments by defendants in October 1995 were sufficient to convince the court that the volumes of material that continued to surface and their possible significance to the defendants warranted the issuance of an order directing the government to grant access to the defendants to many documents previously denied to the defendants by the court. Upon review of these documents, Taylor filed his Third Supplemental Memorandum on March 28, 1996, to which the government responded on April 16,1996. In its opposition, the government refers to its previous opposition briefs to show that Taylor has failed to carry his burden of proving any intentional government misconduct, let alone a longstanding pattern of misconduct---- Nor has the defendant demonstrated any prejudice to his rights that would affect the outcome of his retrial before this Court. Defendant’s Memorandum merely cobbles together a voluminous stew of quotations from the government’s administrative files together with unwarranted speculation and erroneous legal conclusions, all to support his theory that this Court should take the drastic and disfavored step of dismissing an indictment. [United States’ Opposition to Def. Taylor’s Third Supp. Memo, 4/16/96, p. 1]. The government further responded to Taylor’s argument — that the new materials prove that throughout this sting operation the government violated its own representations, the instructions it was required to follow, and the rules designed to insure fairness — by affirmatively stating that the government did not violate its internal policies and by citing to a disclaimer in the privately-published “DOJ Manual” to which the defendant’s memorandum referred. It defends its use of the pari-mutuel betting bill for its “sting” operation and its payments to its primary witness, Ronald L. Cobb. As to defendant’s charge of perjury by Cobb and SA Clemens, as well as false statements and arguments by government attorneys, the government argues that no document in the government’s files, no document quoted by the defendants, and none of the recently disclosed materials prove that Cobb testified falsely, but only that the government agents and prosecutors did not agree with certain of his interpretations. In addition, as to the third general charge by defendants of willful Brady violations, the government again denies that any documents were willfully withheld or that the defendants are in any way prejudiced since the remedy of retrial is available. In its Posb-Hearing Memorandum in Opposition to Defendants’ Motions to Dismiss, filed October 18," 1996, the government, in addition to its legal arguments as to the defendants’ burden of proof, sets out the general denial that there was no intentional effort by the government to withhold discovery; that the discovery errors were, at most, inadvertent and immaterial, and that the government did not intentionally mislead the court about discoverable materials. This memorandum also addresses the defendants’ claims of government-sanctioned perjury by Cobb and misconduct in the investigation of the capital gains tax matter. It also touches on several other defense allegations as will be more fully shown hereafter. IV. THE OPEN FILE POLICY From the outset, these cases were to be tried under what is referred to in this district as an “open file policy.” During its tenure on the bench, this court has conducted numerous criminal trials under this policy and never before has its interpretation been so challenged as in the government’s present arguments. As a lawyer and a judge, this court’s experience has been that “open file” meant that the government’s entire discovery file would be made available to the defendants for their examination. There are, of course, certain documents excluded from this policy under the government’s internal administrative and work product privilege. It has long been established that when an “open file” policy is declared, the dictates of Brady and Giglio as well as Bills of Particular, become extraneous; all discovery material, except as limited to privileged work product, is made available to the defendants. This would have come as no surprise to USA Daniel or his assistants, most of whom had prosecuted cases before this court on numerous occasions. As shown above, motions to dismiss for prosecutorial misconduct had been filed by one or another of these defendants during the preparation and pendency of their original trials in 1990 and 1991. One of the primary grounds on which those motions and the more recent motions are based is the willful withholding of Brady and other exculpatory material. The defendants have persisted in their allegations that the government had to be withholding evidence critical to their defense and specifically requested some of this evidence in their discovery motions. Where it felt appropriate, the court instructed the government to turn over requested materials, if they existed, to the defendant. But the government would respond by either declaring that disclosure or unredacting of the requested documents would jeopardize ongoing investigations or by affirmatively asserting, without any qualification, that it had complied with its discovery obligations. The existence of several specific documents sought by the defendants was denied in open court by the prosecutors and by SA Clemens under oath. Y. DISCUSSION OF THE ISSUES The instant cases first came before the court over six years ago with the indictment of Taylor in August 1990. The evidence as it relates to the retrials of these defendants is in and of itself voluminous. Together with the additional materials that relate to the charges of prosecutorial misconduct, the record now before the court is so vast as to make it virtually impossible to cite to all of the allegations and counter-arguments in detail. The strongest arguments the defendants make as to the significance of the withholding of Brady materials and other exculpatory evidence are found in the arguments relating to several of the issues to be addressed by the court at this time. In addition, defendants’ allegations of perjury by certain witnesses and the government’s knowledge thereof, as well as alleged misrepresentations to the defendants, the Grand Jury and the court, rising to the level of fraud upon the court, as revealed by the post-remand disclosure of evidence, must also be addressed. 1. The Withholding of Evidence as to Cobb’s Characterization of the Payments Made to Legislators. Cobb consistently testified that he considered the monies he gave four of these defendants to be bribes. These defendants have consistently argued that the monies they received were considered by them to be campaign contributions and contend that certain withheld 302s would have served to impeach Cobb’s “bribery” testimony. On June 14, 1989, an FD-302 of a Cobb debriefing was prepared by SA Clemens. This 302, which was not turned over to the defendants until November 29,1993, states on page 2: COBB related that in regards to giving money to State Legislators, he routinely gives two or three hundred dollars to some just to keep them friendly toward him.... COBB stated that TEE FERGUSON, CHARLES A. HARVIN, III and DONNA MOSS were among those who he would give money. COBB indicated this money was not paid for any specific return benefit other than having someone friendly to him on whom he could call. [Taylor’s Supp.Memo, 2/10/94, Exh. 4, p. 2], Again, on June 22,1989, Clemens prepared another Cobb FD-302, which did not surface until the Derrick trial. This 302 states in pertinent part: RONALD L. COBB provided a 1989 South Carolina Legislative Manual in which he had checked off all those legislators to whom he had paid money. When asked if these were bribe type payments or campaign contributions COBB replied, “That’s a hard question to answer.” COBB was then asked if those cheeked off were persons he had given two, three, or four hundred dollars to for no specific reason other than to maintain favorable contact with COBB. COBB indicated that this was the case, and indicated he would give the money to the legislator and that was it. If the individual then wanted to claim it as a campaign contribution and report it or just stick it in his pocket, that was of no concern to COBB. [Emphasis added]. [Taylor’s Supp.Memo 2/10/94, Exh. 1] The names of each of the within defendants are shown as “checked off’ in the Legislative Manual; however, the listing of names with check marks next to them includes the names of numerous other legislators who were never targeted or indicted by the government in the Lost Trust investigation. On July 26, 1989, another Cobb FD-302 was prepared by Clemens and was only turned over to the defendants after the issuance of this court’s November 8, 1994, order. The following information is contained therein: COBB was asked about the manner in which he would pay legislators several hundred dollars. COBB stated that this was sometimes accomplishéd with cash, and sometimes by check, either from his business or personal account. COBB advised that sometimes payments were made at official fund raisers and sometimes in a social setting as a token of appreciation for support on something. COBB stated that sometimes a legislator will drop a hint that money is tight and that they could use some cash. COBB added that if it was someone who was friendly toward his interests he would take care of them with a few hundred dollars. COBB emphasized that he did not know and did not care how they handled or reported the money. COBB’s sole interest was to gain friends and supporters of his interests. [Hearing, 10/18-20/95, Taylor-Exh. 3]. This language from these three FD-302s is used by the FBI-Columbia Office almost verbatim in its Undercover Operation Proposal (UCO) dated September 5, 1989 [Taylor’s Third Supp. Memo, 3/28/96, Exh. 1, p. 13], seeking authorization for this undercover operation. The government, therefore, was totally familiar with the existence of these 302s, yet it did not turn them over to the defendants for use at trial. Reference in the above-quoted FD-302 of July 26, 1989, to payments being made to legislators “sometimes by check, either from his business or personal account,” prompted requests from the defendants for Cobb’s financial records. At the final hearing on the instant motions on October 3,1996, testimony was elicited on direct examination of Mrs. Rhonda Collins that the defendants were furnished with the records of Cobb’s business account — Government Business Associates, Inc. — in or about May 1995. She stated that copies of nine (9) checks payable to various legislators in amounts between $100 and $650 have been found in these records. Mrs. Collins further stated that the defendants had never been furnished copies of Cobb’s personal financial records. The defendants argue that the nine checks in increments of $100 to $650 corroborate the information quoted above from the FD-302s of June 14, 1989, June 22, 1989, and July 26, 1989, and that this information would have served to refute Cobb’s testimony at the trials that the payments he made to these defendants were definitely known by them to be bribes. [See Hearing Tr., 10/18-20/95, pp. 56-66], In its Posb-Remand Memorandum, the government argues that the financial records of Government Business Associates were submitted to the court for in camera inspection and that the court’s order of July 25, 1995, held that the government need not provide these records to the defendants, but that upon resubmission the court ordered that the records be provided to the defendants on September 7, 1995. It is the government’s contention that this reflects the “less than clear nature of the discoverability of certain documents in this matter, especially these checks.” A reading of this court’s September 7th order, however, simply shows an admission by the court that it did not properly identify the photostatic copies of bank statements and canceled checks on this account in the first in camera submission of eleven file boxes of material under review. More importantly, however, the question is not why these records were not furnished in 1994 or 1995, but why they were not furnished to the defendants prior to their initial trials in 1990 and 1991. In addition to the above, defendants cite to the withholding of 302s on James Faber, Frank Earl McBride, and Ennis Maurice Fant, all dated July 18,1990, in which each of them stated they believed the monies they received from Cobb to be campaign contributions. [Taylor’s Motion to Dismiss, 9/23/93, Exhs. 13-15]. These 302s were derived from interviews conducted by the FBI simultaneously with the FBI’s initial interview of defendant Taylor. All four of these defendants (Taylor, Faber, McBride and Fant), as well as others, were approached in a “sweep” by the FBI of targets of the Lost Trust investigation and must have been considered all part of the same case. Even had the defendants not been able to utilize these 302s at trial as statements of unavailable witnesses, as argued by the government in its Post-Hearing Memorandum, it is the opinion of the court that these 302s should have been provided as relevant discovery material. Cobb testified that after he had been set up by the FBI as a lobbyist for the bogus Alpha Group in order to catch legislators accepting bribes for their support of the parimutuel bill, he sought the help of defendant Taylor in recruiting black legislators and the help of Kohn in recruiting white legislators. Taylor argues in his memorandum of February 10, 1994, that taped conversations between Cobb and Kohn go to the vital issue of whether or not the government was running a sting to catch crooked legislators or whether, on the other hand, Cobb was trying to make it appear that he could buy votes from legislators other than Senator Lindsay in an effort to save himself from the consequences of numerous illegal acts for which he could be prosecuted. [Taylor’s Supp. Memo, 2/10/94, p. 9]. Taylor was a co-sponsor of the pending pari-mutuel bill and sat on both the Labor, Commerce & Industry Committee of the House of Representatives and the Banking and Consumer Affairs Sub-Committee. Pri- or to the institution of the sting operation, the pari-mutuel bill had successfully passed these committees. Taylor contends that his continued support of the bill was not an explicit quid pro quo. He argues that this is corroborated on a tape recorded conversation of January 16, 1990 (Tape # 14), on which Kohn is heard to remark: “... we got the thing out of committee with no one. doing anything..... No money, and you know, just, just doin’ for the issue.” [Taylor’s Supp. Memo, 2/10/94, Exh. 9, p. 2], Taylor further argues that this same tape shows that, in spite of FBI instructions to Cobb to be explicit about the quid pro quo aspect of his payments to legislators, Cobb felt the need to be far more subtle in his approach. In encouraging Kohn to bring supporters to him, Cobb instructed Kohn: You know how to, I mean you know how to work it and cover us, I mean, we don’t want come over there and .say well, here, they’re gonna buy the damn thing. [Id. at p. 4] On an audio tape of April 5, 1990 (Tape # 75), Kohn tells Cobb: (Ul)I’m not trying to hold back, I mean I realize (UI) I ain’t trying to play that game. (Ul)I’ve been asked for gold coins. If it doesn’t look like money should be brought up, I don’t do it to hold back money, I just don’t think it’s good to bring it up (UI). I use (UI) some of them I just casual comment about a contribution to their campaign ‘cause see if you have to do that I can write a check and tell them I think their [sic] a good spirited citizen (UI). [Id., Exh. 12, p. 13]. The transcript of this tape is made a part of an FD-302, which states that this audiotape is of a telephone conversation Cobb has with a Wade “Ronnie” Crow, followed by a meeting with Faber, McBride, Kohn, Taylor and one Rachel Harper. Taylor is shown to speak only once, and it is impossible for the court to ascertain whether he was present at the time the above statement was made by Kohn. His name, however, does appear in the cover FD-302, yet he was not furnished this tape or the FD-302 and transcription prior to his trial. These tapes, as well as the numerous other audio and video tapes furnished to the defendants on November 29, 1993, certainly must be viewed as exculpatory evidence which could have been used to further the defense put forth by these defendants that they considered the monies they received from Cobb to be campaign contributions. In this order the court cites allegations primarily from the arguments, memorandums and exhibits of defendants Taylor, Blanding and Gordon. In fact, with regard to the timing of their trials and evidence not furnished to them for their defenses, their positions are closely related. Derrick was the defendant in the third Lost Trust trial, and some, although by no means all, of the previously withheld evidence was available to him and defendant Long for their trials. Defendant Derrick also presented additional testimony at his trial that the monies he received from Cobb were used to produce a semi-annual newsletter to his constituents. The government objected to the admission into evidence of a copy of the newsletter he had published in the spring prior to his indictment on the grounds that it had never received a copy of that newsletter, that it was hearsay, and that it was irrelevant. Paul Derrick affirmatively stated at trial that he had given a copy to the government. At a hearing on April 19, 1995, Derrick disclosed that “we have just recently discovered in the most recent documents an FBI 302. Guess what is attached to it? That news letter. They had it.... We didn’t get to get that in during the trial.” [Hearing Tr., 4/19/95, p. 37]. Defendant Long is presently before this court for a new trial granted him by this court, which decision was upheld on appeal. At the conclusion of the Long trial, this court dismissed one count against Long; however, tapes ruled pertinent only to the dismissed count inadvertently had been allowed to go to the jury room. Long, however, has joined in the motions for dismissal on the grounds of prosecutorial misconduct as the motions may relate to him. At the motions’ hearing in October 1995, Long cross-examined Cobb concerning his testimony at Long’s trial that when Cobb gave Long the money in question in this case, Long had no idea that it was a bribe. The transcript from October 19, 1995, reads: Q. That he would have thought that you were simply helping him out of his financial difficulties, and it was not related to any legislation pending in the South Carolina Legislature; is that correct? A. That’s correct, yes, sir. Q. Specifically the pari-mutuel bill? A. Yes, sir. Q. And the pari-mutuel bill, as a matter of fact, was something that Bud Long had always supported; is that correct? A. Yes, sir. Q. As I understand it, it is your position that Bud Long never had the intent to accept a bribe? A. That’s correct. Q. And that you led him to believe, or did not lead him to believe other than it was just some money from a friend to help him out of his financial difficulties? A. He was in a tight, [sic] and he had been very valuable in assisting me in getting clients, and I had given Bud money from time to time, and he could very easily have thought that this was one of those situations. As a matter of fact, I think he even told me to make sure — I think he may have looked at it as a contribution, because he told me one time to make sure that I thank my people for the contribution. Q. Now, let me ask you this, which I was not able to ask at the trial, because I did not know about that until the trial, prior to the meeting ever being arranged or your discussion with Bud Long concerning this money, did you communicate to the F.B.I. that it was unfair to put Bud Long in that position, because of, number one, his financial difficulties; and, number two, because of your unique relationship with him, he would not understand and not realize it was a bribe? A. Yes, sir, I did; also, to the U.S. Attorney’s Office. Q. This is prior to it ever coming about? A. That’s correct. [Hearing Tr., 10/19/95, Vol. II, pp. 32-3]. Cobb further testified that in the time frame prior to the exchange of money with Long, he voiced the same concern to AUSA Alfred W. (Buddy) Bethea, SA Clemens, USA Daniel, and AUSA Barton; but, in spite of his protestations on more than one occasion, SA Clemens instructed him to go ahead and meet with Long. [Id. at p. 34]. He further testified that he repeatedly told AUSA Bethea, who was to be the lead prosecutor for the Long trial, that Long would have had no reason to believe that the money he was accepting from Cobb was bribe money. When asked for AUSA Bethea’s reaction, he stated: His reaction was one of he had made up his mind that Bud Long was guilty, he wanted to tiy him, he hadn’t participated in any of the trials, and he was more gung ho, I think, about trying the case than anything else. We had a very strong disagreement in this regard. [Id. at pp. 40-1], When Cobb testified to the above on direct examination by AUSA John W. McIntosh at Long’s trial, McIntosh personally refused to proceed with the prosecution; and USA Daniel, who had not been part of the trial prose-eution team, replaced him for the balance of the trial. 2. The Capital Gains Tax Investigation and Ronald L. Cobb. Cobb has been previously identified in this order as the government’s key confidential informant employed in the sting operation. Cobb was a former member of the South Carolina State Legislature and a licensed lobbyist. He maintained throughout these eases that he was a close personal friend of Lindsay, who was undisputedly one of the most powerful men in State government. Lindsay was a member of the Senate Conference Committee appointed to negotiate the differences between the Senate and House versions of the 1988 Appropriations Bill, in which a capital gains tax “rollback” provision had been included as a “proviso.” Prior to his trial, Taylor had received a substantially redacted FD-302 of an interview of lobbyist J. Randal Lee by SA Clemens and SA Thomas J. Davis conducted August 14 — 21, 1990. [Hearing, 10/18-20/95, Gordon Exh. G]. Taylor argued that he was entitled to place Cobb’s credibility before the jury and that to do so he would need to review documents he believed to be in the government’s possession, and to be furnished the identity, which had been redacted from the documents furnished, of various elected officials to whom Cobb had made payoffs. A transcript of a pre-trial motions hearing on October 11, 1990, reveals Taylor’s argument that “nothing is more relevant to this whole case than the credibility of Mr. Ron Cobb.” [Hearing Tr., 10/11/90, pp. 37-42]. Apparently, the Fourth Circuit Court of Appeals agrees. Some six days prior to the Blanding/Gor-don trial, the government turned over to those defendants the unredacted FD-302 dated August 14-21, 1990 [Taylor’s Supp. Memo, 2/10/94, Exh. 7], which disclosed that Lindsay’s name had been redacted in the version furnished Taylor. This 302 discusses at length the South Carolina Capital Gains Tax bill initiated in 1988 (the “proviso”), and puts the government on notice of alleged bribe payment arrangements involving Richard E. Greer, Chairman of the South Carolina State Development Board, Lindsay, Cobb, and various other persons. Also during the Blanding/Gordon trial, on February 22, 1991, as the result of a court order of February 14, 1991, the government furnished the Blanding/Gordon defendants with an unredacted FD-302 of an interview of Cobb by FBI SA Arthur Richards dated May 1, 1989, which revealed Lindsay’s involvement in payoffs regarding legislation known as the Oil Jobbers bill. At a hearing on Blanding and Gordon’s motions to dismiss for prosecutorial misconduct filed on February 25, 1991, and heard February 28, 1991, Richards confirmed under oath Cobb’s understanding that the debriefing on May 1, 1989, concerned “payoffs and kickbacks and extortion. We were talking about payoffs.” [Gordon’s Motion to Dismiss, 2/22/93, Exh. C, p. 120]. Richards testified that he debriefed Cobb prior to and after he administered a polygraph examination. On direct examination by Gordon, Richards related that Cobb initially failed the polygraph test he was administering to him concerning the Oil Jobbers bill, testifying as follows: A.....He [Cobb] said that through an intermediary, that he initially would not identify, he paid Representative Mangum [sic] $10,000 in order to get his vote. That was the first issue that I polygraphed. Q. Okay. Now the issue that you polygraphed him on was whether or not he in fact paid representative Mangum the $10,-000 through the intermediary. A. That’s correct. Q. All right, sir. And he tested truthful on that? A. He did not. He failed that polygraph examination. Q. What happened after that? A. Then after he failed it, he was confronted with the fact that he had failed it. And he said that he had — that there was another person involved, this intermediary, and that that intermediary also got some money. But he would not at that point, without certain assurances, would not disclose the identity of the intermediary. Q. And because he hadn’t divulged to you that there was another party involved, Senator Lindsay— A. Exactly. Q. —he showed deception? A. He showed deception. At that point, I put him on the telephone with Agent Clemens, and together they worked out an arrangement where the government, if he gave us the identity of the intermediary, where the government would not use his statement against that intermediary,.... A. Okay. After it was worked out and it was agreeable to Agent Clemens and agreeable to Mr. Cobb, at that point he wrote down “Jack Lindsay” on a sheet of paper. I’m talking about Mr. Cobb— showed it to me, and then crumpled the piece of paper up and threw it in the trash can. Q. And when you tested him about the payoff to Representative Mangum, after he divulged to you that Senator Lindsay was the intermediary, how did Mr. Cobb do? A. He passed the second test. [Id. at pp. 111-19]. This testimony alone refutes the government’s argument that “Cobb has consistently adhered to his subjective view of the facts during the investigation ... [Gov’s Post-Hearing Memo, 10/18/96, p. 23], and that “the defendants do not and cannot show perjury by Cobb as to his subjective beliefs, ... [Id. at p. 26]. At this same hearing on February 28, 1991, Gordon furthered the argument that, if the government had any 302 regarding Cobb’s payoffs to Lindsay, the defendants were entitled “to know if they have talked to Mr. Cobb and he’s indicated these illegal payoffs.” To this, the government replied: “... if he’s looking for the secret 302 of Ron Cobb where this is discussed, it does not exist. There is no such 302 concerning that____ But there are no 302’s or statements from Cobb concerning this particular instance involving capital gains tax.” [Id. at p. 11-2]. At this hearing, SA Clemens was also examined under oath by Gordon as to the existence of any FD-302s Clemens might have prepared concerning Cobb’s involvement with capital gains. The record reads as follows: Q. Mr. Clemens, I know you said you only briefly discussed it, but apparently y’all had some discussion about Ron Cobb’s involvement with the capital gains tax legislation. Did you do a 302 or anything concerning that debriefing of Mr. Cobb? A. No. Q. Do you have any rough notes of it? A. No.... [Id., Exh. D, p. 36-7], Mr. Barton concluded on this subject with the statement: “There are three 302’s and two volumes of Grand Jury testimony, that is the only thing that the government has from Mr. Cobb.” [Id., Exh. C, p. 18]. As mentioned elsewhere in this order, copies of checks from Cobb’s business account payable to Lindsay were also in possession of the government, but they were not furnished to the defendants at that time. Although Cobb testified that he sometimes wrote checks to legislators from his personal account, there is no evidence the government ever sought to obtain these records. On November 29, 1993, following remand of these cases for retrial, the government furnished for the first time an FD-302 of an interview of Cobb by SA Clemens dated September 25, 1989, in which the payments to Lindsay by Cobb with regard to the capital gains tax bill were characterized as “payoffs.” This is the “secret” FD-302 that’s existence was previously denied by the government. This 302 was found by defendants in the November 29, 1993, discovery in a file marked “KOHN 1” and is one of the two undisclosed 302s on which the Office of Professional Responsibility (OPR) Report focused. The defendants take the position that SA Clemens’ testimony that he had never prepared such a 302 was perjury and that the prosecutors were fully aware of the existence of that 302 and allowéd the testimony to. stand. SA Clemens explained to OPR investigators that he “forgot it ever existed”, calling it a “garbage 302,” [Hearing, 4/19/95, Defs. Exh. 45, pp. 32-3] and the government argues that this testimony should be excused inasmuch as this was Mr. Clemens’ first time to testify at a trial. This is refuted by the defendants’ argument that every witness is expected to tell the truth, regardless of whether or not it is their first time to testify. During the OPR investigation, it was disclosed that rough notes of the interview which led to the 302 of September 25, 1989, had been taken by SA Clemens to his home in the Washington, D.C., area when he was promoted and transferred to FBI Headquarters from Columbia, S.C. These notes were eventually provided by Clemens to the OPR in 1994 during its investigation. For this and several other infractions of FBI regulations, SA Clemens , received a letter of censure, a five-calendar-day suspension, and six months’ probation. At the Taylor trial, Cobb was asked on cross-examination: Mr. Cobb, I want you to tell me right now whether or not you have ever given bribes or illegal money to Senator Lindsay? Answer: No, sir, I have not given Senator Lindsay any bribes or illegal money. [Taylor Trial Tr., Vol. 3, p. 56]. The defendants argue that the government knew at that point in time that Cobb was committing perjury and they allowed this perjurious testimony to stand and to continue throughout the subsequent trials. The government responds that, although it may have believed the payments of monies by Cobb to Lindsay were illegal, that Cobb’s testimony could not be considered perjury because Cobb, himself, did not believe the monies to be illegal. The evidence now shows, however, that Cobb not only discussed payoffs in connection with the capital gains tax bill with SA Clemens, with Greer, and in the presence of Randy Lee, all of whom knew that the Cobb payments to