IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD ...

Received and FileCdase: 07-1933 Document: 003146904 Page: 1 Date Filed: 02/13/2008
07-1933

02/13/08 No. 07-1933

Marcia M. Waldron,(Consolidated with Case Nos. 06-1287 and 06-2230)

Clerk

IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

UNITED STATES OF AMERICA,
Appellee

v.

MICHAEL ZOMBER,
Appellant

APPEAL FROM THE DECISION OF THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA DENYING DEFENDANT’S PETITION
UNDER 28 U.S.C. § 2255

BRIEF FOR APPELLEE UNITED STATES OF AMERICA

PATRICK L. MEEHAN
United States Attorney

ROBERT A. ZAUZMER
Assistant United States Attorney
Chief of Appeals

SETH WEBER
Assistant United States Attorney

JOSEPH F. MINNI
Assistant United States Attorney

615 Chestnut Street
Suite 1250
Philadelphia, PA 19106-4476
(215) 861-8200

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TABLE OF CONTENTS
Page

STATEMENT OF SUBJECT MATTER JURISDICTION. . . . . . . . . 1
STATEMENT OF APPELLATE JURISDICTION.. . . . . . . . . . . 2
STATEMENT OF ISSUES.. . . . . . . . . . . . . . . . . . . 3
STATEMENT OF THE CASE.. . . . . . . . . . . . . . . . . . 4
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . 6
STATEMENT OF RELATED CASES. . . . . . . . . . . . . . . . 7
SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . 8
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . 10

I. THE DISTRICT COURT PROPERLY CONCLUDED THAT
TRIAL COUNSEL WAS NOT INEFFECTIVE FOR FAILING
TO USE THE SETTLEMENT AGREEMENT AT TRIAL. . . . 10

II. THE DISTRICT COURT PROPERLY CONCLUDED
THAT THERE WAS NO VIOLATION UNDER BRADY IN
FAILING TO INFORM ZOMBER OF ELLIS’ CONTINUED
STATEMENTS DENYING THAT HE ACTED AS AGENT
FOR THE VICTIM, JOSEPH MURPHY. . . . . . . . . . 22

III. THE ALLEGED FAILURE TO DISCLOSE THE GATES
LETTERS DID NOT CONSTITUTE A VIOLATION UNDER
BRADY OR THE JENCKS ACT. . . . . . . . . . . . . 25

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . 26

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TABLE OF AUTHORITIES
CASES

Affinito v. Hendricks,
366 F.3d 252 (3d Cir. 2004).. . . . . . . . . . 20

Albrecht v. Horn,
471 F.3d 435 (3d Cir. 2006).. . . . . . . . . . 19

Brady v. Maryland,
373 U.S. 83 (1963). . . . . . . . . . . . . passim

Douglas v. Cathel,
456 F.3d 403 (3d Cir. 2006).. . . . . . . . . . 13

Government of Virgin Islands v. Fahie,
419 F.3d 249 (3d Cir. 2005).. . . . . . . . . . 22

Government of Virgin Islands v. Weatherwax,
77 F.3d 1425 (3d Cir. 1996).. . . . . . . . . . 10

Lockhart v. Fretwell,
506 U.S. 364 (1993).. . . . . . . . . . . . . . 14

McAleese v. Mazurkiewicz,
1 F.3d 159 (3d Cir. 1993).. . . . . . . . . . . 20

Medina v. DiGuglielmo,
461 F.3d 417 (3d Cir. 2006).. . . . . . . . . . 19

Reese v. Fulcomer,
946 F.2d 247 (3d Cir. 1991).. . . . . . . . . . 20

Strickland v. Washington,
466 U.S. 668 (1984).. . . . . . . . . . . . passim

United States v. Cepero,
224 F.3d 256 (3d Cir. 2000).. . . . . . . . . . 10

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United States v. McLaughlin,
89 F. Supp. 2d 617 (E.D. Pa. 2000). . . . . 23, 24

United States v. Pelullo,
14 F.3d 881 (3d Cir. 1994). . . . . . . . . . . 25

United States v. Pelullo,
399 F.3d 197 (3d Cir. 2005).. . . . . . . . . . 22

United States v. Perdomo,
929 F.2d 967 (3d Cir. 1991).. . . . . . . . . . 22

United States v. Thornton,
1 F.3d 149 (3d Cir. 1993).. . . . . . . . . . . 25

STATUTES AND RULES
18 U.S.C. § 3231. . . . . . . . . . . . . . . . . . . . . 1
18 U.S.C. § 3500. . . . . . . . . . . . . . . . . . . . . 9
28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . 2
28 U.S.C. § 2253. . . . . . . . . . . . . . . . . . . . . 2
28 U.S.C. § 2255. . . . . . . . . . . . . . . . . . 1, 3-4

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STATEMENT OF SUBJECT MATTER JURISDICTION
Because the defendant was charged in an indictment

with a violation of federal criminal law, the district court
had subject matter jurisdiction over the case pursuant to
18 U.S.C. § 3231, and had jurisdiction under 28 U.S.C. §
2255 over the defendant’s post-conviction petition.

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STATEMENT OF APPELLATE JURISDICTION

Based upon the timely filing of a notice of
appeal, and because this Court issued a certificate of
appealability under 28 U.S.C. § 2253 as to the issues of the
alleged ineffectiveness of trial counsel, and the
government’s compliance with its discovery obligations under
Brady v. Maryland, 373 U.S. 83 (1963), and the Jencks Act,
this Court has jurisdiction over this matter under 28 U.S.C.
§ 1291.

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STATEMENT OF ISSUES
1. Did the district court correctly deny the
appellant’s claim for relief in his petition pursuant to
28 U.S.C. § 2255 on the ground that his trial counsel was
not ineffective for failing to use at trial a civil
settlement agreement entered into between co-defendant
Richard Ellis and the victim, Joseph Murphy?
2. Did the district court correctly rule that the
government did not violate Brady when it did not disclose to
the appellant statements made by co-defendant Ellis in which
Ellis continued to deny that he acted as agent for victim
Murphy?
3. Did the district court correctly rule that the
government did not violate Brady or the Jencks Act when it
did not disclose to the appellant two letters written to
Microsoft Chairman Bill Gates?

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STATEMENT OF THE CASE
This case presents a lengthy and somewhat strange
procedural history.
The district court entered its judgment in the
criminal prosecution of appellant Michael Zomber on
January 11, 2006, and amended the judgment on March 27,
2006, to include a final restitution order. App. 20, 37.
Zomber filed two notices of appeal, docketed at Nos. 06-1287
and 06-2230. App. 31, 43. The entire procedural history of
the criminal prosecution is set forth in the government’s
brief filed as appellee in those appeals.
Even though these direct appeals were pending,
Zomber elected to file a petition in the district court
under 28 U.S.C. § 2255 to vacate his conviction and
sentence. Zomber further moved in this Court to stay the
appeals pending the resolution of the 2255 petition.
App. 13. This Court obliged. App. 17. On October 5, 2006,
the district court conducted a day-long evidentiary hearing
regarding Zomber’s 2255 motion. On March 19, 2007, the
district court issued a 41-page opinion and order denying
Zomber’s 2255 petition. 2255 App. 3. On March 28, 2007,
Zomber appealed the district court’s denial of the motion,

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2255 App. 1, and that appeal (No. 07-1933) is the subject of
the present brief.

On October 29, 2007, this Court issued an order
granting Zomber’s motion for a certificate of appealability
on the following claims: “(1) ineffective assistance of
defense counsel in failing to use or realize that the
government had provided in discovery the settlement
agreement between Ellis and Murphy, which contained
exculpatory information; and (2) Brady/Jencks Act violations
by the government in (a) failing to inform defense of
Ellis’s continued denials of an agency relationship with
Murphy, and (b) failing to provide the defense with letters
to Bill Gates.” This Court added: “This matter is hereby
consolidated with appellant Zomber’s pending direct appeals,
Nos. 06-1287 & 06-2230.”

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STATEMENT OF FACTS

This case presents a lengthy procedural and
factual history. The relevant facts are set forth in the
government’s earlier brief submitted in these consolidated
cases.

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STATEMENT OF RELATED CASES

With the exception of Case Nos. 06-1278 and
06-2230, the government is not aware of any other related
case or proceeding that is completed, pending, or about to
be presented before this Court or any other court or agency,
state or federal.

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SUMMARY OF ARGUMENT
Appellant Zomber unusually presented a 2255
petition at the same time that his direct appeals were
pending. Now, in briefing the district court’s denial of
his 2255 petition, Zomber essentially repeats arguments that
were already briefed in his direct appeals and responded to
there by the government. Our present response is,
accordingly, quite brief. In short:
1. The district court did not err in finding that
Zomber did not suffer prejudice resulting from trial
counsel’s failure to use at trial a civil settlement
agreement entered into between co-defendant Richard Ellis
and the victim, Joseph Murphy. The district court was not
required to first determine whether trial counsel was
ineffective in failing to recognize that the government
provided him with the settlement agreement during discovery.
The evidence amply supports the district court’s decision
that Zomber could not demonstrate the requisite prejudice
under Strickland v. Washington. The record shows that, even
if trial counsel was aware of the settlement agreement, he
would not have used the settlement agreement at trial. Nor
would trial counsel have been able effectively to use the

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settlement agreement to refute the government’s “agency
theory” or discredit Murphy’s trial testimony.

2. Contrary to Zomber’s assertion, there was no
Brady violation when the government failed to disclose to
him that his co-defendant, Richard Ellis, made statements to
the government following his guilty plea in which Ellis
continued to deny that he acted as agent for Murphy. The
record unequivocally demonstrates that Zomber received a
fair trial. The alleged failure to disclose Ellis’
statements does not implicate Brady, as it did not in any
way exonerate Zomber.

3. This argument is identical to that presented
in Zomber’s direct appeal and responded to by the
government. The district court did not err in finding that
the government did not violate Brady v. Maryland, 373 U.S.
83 (1963), or the Jencks Act, 18 U.S.C. § 3500. The
government was not required to disclose to Zomber letters
written by Murphy to Microsoft Chairman Bill Gates, which
did not contradict any testimony at trial and which would
not have resulted in a different verdict.

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ARGUMENT
I. THE DISTRICT COURT PROPERLY CONCLUDED THAT

TRIAL COUNSEL WAS NOT INEFFECTIVE FOR FAILING
TO USE THE SETTLEMENT AGREEMENT AT TRIAL.

Standard of Review
In reviewing the district court’s disposition of a
Section 2255 petition, this Court exercises plenary review
over the district court’s legal conclusions and applies the
clearly erroneous standard to the court's factual findings.
United States v. Cepero, 224 F.3d 256, 258 (3d Cir. 2000)
(en banc). With respect to an ineffectiveness claim in
particular, this Court reviews the district court’s findings
of fact for clear error. This Court makes an independent
judgment whether the facts thus found constitute
constitutionally ineffective assistance of counsel.
Government of Virgin Islands v. Weatherwax, 77 F.3d 1425,
1430-31 (3d Cir. 1996).

Discussion
Defendant/appellant Michael Zomber argues that
trial counsel was ineffective because he did not employ at
trial the December 5, 2001 civil settlement agreement

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entered into between co-defendant Richard Ellis and the
victim, Joseph Murphy, to challenge Murphy’s testimony.

The government has already responded in its
earlier brief, at pages 39-55, to Zomber’s nearly identical
claim on direct appeal that he was deprived of a fair trial
because the government allegedly did not disclose this
agreement and various other information regarding whether
Ellis had an agency relationship with the victim. That
discussion defeats Zomber’s 2255 claim as well, and, in this
brief, we merely highlight points that are pertinent to an
ineffective assistance claim.

The district court firmly rejected the testimony
of Zomber’s trial counsel, on credibility grounds, finding
that the government produced the settlement agreement to the
defense before trial. App. 79. While Zomber casts
aspersions on this factual finding in his latest brief, he
does not challenge it. Rather, he adopts the position that
trial counsel, in possession of the settlement agreement,
acted ineffectively in not using it at trial.

Zomber first chides the district court for not
determining whether counsel’s performance fell below
acceptable professional standards. Br. 35-37. However, the

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district court was not required to make such a finding. The
district court did not reach this issue because it found
that Zomber could not demonstrate prejudice. 2255 App. 28.
In Strickland, the Supreme Court followed exactly the same
course, and invited lower courts to do the same when
appropriate. See Strickland v. Washington, 466 U.S. 668,
697 (1984) (“If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course
should be followed”).

As the government explained in its earlier brief
in response to Zomber’s alleged Brady and Jencks Acts
violations, Zomber clearly was not prejudiced in this
instance. To meet the prejudice requirement, the defendant
has the burden to show that there is “[a] reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceedings would have been different. A
reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S.
at 694. Ultimately, “[t]he defendant must overcome the
presumption that under the circumstances, the challenged
action might be considered sound strategy.” Strickland, 466

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U.S. at 689 (internal quotation marks omitted). This Court
has held that “[j]udicial scrutiny of counsel's performance
must be highly deferential because ‘it is all too tempting
for a defendant to second-guess counsel’s assistance after
conviction or adverse sentence, and it is all too easy for a
court, * * * to conclude that a particular act or omission
of counsel was unreasonable.’” Douglas v. Cathel, 456 F.3d
403, 420 (3d Cir. 2006), citing Strickland, 466 U.S. at 689.

The record here amply supports the district
court’s decision that Zomber could not demonstrate
prejudice. In its decision, the district court determined
that, even if trial counsel was aware of the settlement
agreement, he would not have used it during trial.
2255 App. 28-29. During the hearing on the 2255 motion,
trial counsel testified that he was reluctant to use the
settlement agreement because it would possibly result in the
government calling co-defendant Ellis to testify.
Supp. 2255 App. 20204, 211.1 Trial counsel testified that

1 Zomber presented an appendix in this case that does
not include the transcript of the 2255 hearing. In his
previous appendix, Zomber only presented a redacted
transcript of the 2255 hearing. The government is
presenting a supplemental appendix here that includes the
entire transcript of the October 5, 2006 2255 hearing.

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this situation would have been “devastating” to Zomber’s
defense because it created the possibility that Ellis would
have testified about the conspiracy and his guilty plea.
Supp. 2255 App. 211-13. See Lockhart v. Fretwell, 506 U.S.
364, 372 (1993) (speculation as to “whether a different
trial strategy might have been more successful” is not
enough).

Further, despite Zomber’s arguments to the
contrary, the settlement agreement would have done very
little to undermine the main theory of the government’s
case, i.e., whether Zomber (along with Ellis) committed
fraud against Murphy.2 As noted by the district court, the
settlement agreement’s “potential effectiveness in refuting
the ‘agency theory’ is questionable at best,” 2255 App. 29,
in that Murphy never disavowed in the agreement his view,
emphatically stated in testimony, that Ellis was his agent.
The district court also properly observed that the issue of

2 In his statement of facts, Zomber states that the
charge in the case “involved three letters alleged to have
induced Murphy, a wealthy and sophisticated collector of
antique firearms, to purchase four extremely valuable
antique guns.” Br. 7. This is an entirely inaccurate
characterization of the evidence presented at trial, offered
in an attempt to minimize Zomber’s criminal conduct. The
government’s earlier brief set forth all of the copious
evidence of intentional fraud.

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agency, while relevant, was not a material element of the
fraud. 2255 App. 30. Furthermore, the district court
correctly noted that “the illegal scheme to defraud was not
founded on such a relationship, and * * * guilt was evident
with or without proof of the agency.” Id. The supporting
reasons were all explained in the government’s previous
brief.

While the issue of agency was part of the
government’s case, as explained by Robert Goldman, former
government counsel, the case did not “rise or fall” on the
issue. Supp. 2255 App. 62. Rather, the central issue in
the case was whether Ellis and Zomber committed fraud by
making false representations in the sale of guns to Murphy.
Id. Regardless of the language of the settlement agreement,
the evidence of fraud presented by the government at trial,
which included Zomber’s own statements, was overwhelming.
Also, the language of the settlement agreement, which
represented the terms of settlement of a separate civil
action, certainly is not dispositive of the criminal
violations charged in the indictment.

Equally availing is the fact that trial counsel
questioned, as a matter of sound trial strategy, whether he

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would have used the settlement agreement at trial. Trial
counsel believed that using the settlement agreement would
have been too high of a price to pay if it created the
possibility that the government would call Ellis as a trial
witness. Supp. 2255 App. 211. Zomber cannot ignore that
such testimony would have been “devastating” to the defense
case. Id. Clearly, trial counsel had no legitimate basis
for introducing the settlement agreement at trial, and any
attempt to do so would have been fruitless.

Zomber argues that the district court erred
because it improperly speculated how the trial would have
played out had trial counsel been aware of the settlement
agreement. Br. 38. Zomber contends that it was improper
for the district court to weigh the “hypothetical cost” of
using the settlement agreement against any “conceivable
benefit.” Id. This argument completely ignores that the
possibility that Ellis would testify was real and it was
more than mere speculation and a hypothetical situation, as
Zomber suggests. The record shows that the government was
prepared to call Ellis to testify. Supp. 2255 App. 73, 76,
84-85. The record also shows that Ellis was prepared to
testify, if necessary. Supp. 2255 App. 27-28. If called,

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Ellis surely would have testified to his and Zomber’s role
in the fraud scheme against Murphy. Supp. 2255 App. 74.
There can be no doubt that this testimony would have had a
significant impact upon the defense strategy at trial that
would outweigh any potential limited benefit.3

Furthermore, the settlement agreement would have
done very little to impeach Murphy’s credibility. The trial
record shows that trial counsel conducted a thorough cross-
examination of Murphy, even without the settlement
agreement.4 The record shows that Murphy was a credible

3 The fact that Ellis did not testify is of no
consequence. As part of Goldman’s trial strategy, the
government chose not to call Ellis in its case-in-chief.
Supp. 2255 App. 72, 75. Goldman explained that there were
strategic reasons as to why he chose not to rely on Ellis’
testimony. Supp. 2255 App. 80-83. In light of the
overwhelming evidence of fraud, the government could (and
did) prove its case without Ellis.

4 Zomber also ignores the fact that, during cross-
examination, trial counsel actually questioned Murphy about
the settlement with Ellis:

Q: Okay. And your case with Ellis
has settled, correct?

A: Yes, sir.

Q: And you have gotten, I don’t
think it was money. What was
it, basically, guns?

(continued...)

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witness, and trial counsel was limited in his ability to
discredit his testimony. Impeachment of Murphy was made
even more difficult because of Zomber’s own sworn statement
in which he acknowledged that Ellis acted as Murphy’s agent.
App. 137-43.

In his latest brief, Zomber repeatedly questions
the district court’s prerogative to evaluate the impact that
use of the settlement agreement would have had at trial,
dismissing the evaluation as mere “speculation.” His view
is that if, as the district court found, trial counsel knew
about the settlement agreement and did not use it, that
should end the matter. But that view has emphatically been
rejected in scores of decisions of this Court.

Strickland dictates that a showing of prejudice –
a demonstration that, but for counsel’s errors, there is a
likelihood that the result of the proceeding would have been
different – is an essential component of the ineffectiveness

4(...continued)
A: Yes, sir.

Q: You have gotten guns from Ellis
as part of the settlement.

A: Yes, sir.

Supp. App. 332.

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test. Cases in which an attorney’s performance is deemed
inadequate, and yet relief is denied because of the absence
of prejudice, are common. Just in recent years, in the case
law of this Circuit, such decisions include Albrecht v.
Horn, 471 F.3d 435, 456-58 (3d Cir. 2006) (trial counsel in
a capital case was ineffective in not requesting a limiting
instruction regarding evidence of spousal abuse, but,
because of the overwhelming evidence of guilt, there was no
prejudice); Medina v. DiGuglielmo, 461 F.3d 417, 430-32
(3d Cir. 2006) (although defense counsel was ineffective in
not challenging the competency to testify of a 12-year-old
witness, who said that he did not know the difference
between telling the truth and a lie, the defendant was not
prejudiced, as he had not shown a reasonable probability
that the result of the proceeding would have been different
had a competency challenge been presented, given the weight
of the evidence); Affinito v. Hendricks, 366 F.3d 252,
259-62 (3d Cir. 2004) (defense counsel was ineffective in
not providing complete information to defense expert
retained to testify regarding diminished capacity, and the
trial court gave an erroneous instruction regarding
diminished capacity, but the state court permissibly held

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that the errors were not prejudicial, because the expert’s
testimony was implausible, and even if amplified would have
been subject to strong cross-examination).

Thus, it is often the case that a court holds that
counsel’s failure to call a witness, or pursue a line of
attack, was neither ineffective nor prejudicial given the
consequences that would likely have ensued from a contrary
decision. See, e.g. McAleese v. Mazurkiewicz, 1 F.3d 159,
167-68 (3d Cir. 1993) (counsel was not ineffective in not
calling a defense witness, given that the jury would then
have learned of unrelated criminal charges pending against
the defendant and reject the image of the defendant as a
businessman and father that counsel had attempted to
create); Reese v. Fulcomer, 946 F.2d 247, 257 (3d Cir. 1991)
(where testimony of alibi witnesses could have led to
introduction of damaging testimony from another witness, the
defendant failed to show that counsel was ineffective or
that correction of any error would have produced a different
result).

These cases make clear that it is essential to
review any purported mistake in light of the entire record,
to determine whether the error affected the outcome of the

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case, and it is ordinary to conclude that had counsel acted
differently the trial would still have proceeded to a
conviction.

Here, the evidence was amply sufficient to support
the district court’s decision. The failure to use the
settlement agreement did not result in an unfair trial, nor
did it render the verdict fundamentally unfair. Under the
evidence in this case, Zomber cannot demonstrate that the
failure to use the settlement agreement caused him
sufficient prejudice. He, therefore, cannot demonstrate
prejudice under Strickland and his ineffective assistance
claim must fail.

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II. THE DISTRICT COURT PROPERLY CONCLUDED THAT THERE
WAS NO VIOLATION UNDER BRADY IN FAILING TO INFORM
ZOMBER OF ELLIS’ CONTINUED STATEMENTS DENYING THAT
HE ACTED AS AGENT FOR THE VICTIM, JOSEPH MURPHY.
Standard of Review
With respect to a Brady issue, this Court conducts

a de novo review of the district court’s conclusions of law
and a clearly erroneous review of any findings of fact.
Government of Virgin Islands v. Fahie, 419 F.3d 249, 252
(3d Cir. 2005); United States v. Pelullo, 399 F.3d 197, 202
(3d Cir. 2005); United States v. Perdomo, 929 F.2d 967, 969
(3d Cir. 1991).

Discussion
Zomber next contends that the government violated
Brady v. Maryland, 373 U.S. 83 (1963), when it purportedly
failed to disclose statements of co-defendant Ellis made to
the FBI case agent, after Ellis pleaded guilty, in which he
continued to deny that he acted as Murphy’s agent.
In his direct appeal, Zomber made the same
allegation, as part of a broader claim that the government
withheld varied information regarding Ellis’ denial of
agency. The government thoroughly responded to these
claims, at pages 39-55 of its earlier brief.

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In the current appeal, Zomber focuses only on his
claim that Ellis made statements to an FBI agent that were
not disclosed. However, as explained at pages 47-49 in our
earlier brief, the FBI Report of Interview (“302”) to which
he refers was in fact provided to Zomber during pretrial
discovery in this case, and did not focus at all on the
agency question. Rather, the 302 provides a detailed
account of the agent’s interview of Ellis regarding the
fraudulent sales of the guns to Murphy. The 302 is
consistent with the government’s theory of prosecution, that
Zomber and Ellis made fraudulent statements to Murphy in
order to sell guns to Murphy at absurdly inflated prices.

As the government has explained, the denials of
agency were consistent and well known to Zomber. Even if
that were not true, the information merely allowed
impeachment of Murphy, on a collateral point, while opening
the risk that the government would call Ellis to discuss the
fraud which Ellis admitted that he and Zomber perpetrated.

In the latest brief, Zomber cites the case of
United States v. McLaughlin, 89 F. Supp.2d 617 (E.D. Pa.
2000), in support of his position. In McLaughlin, the
district court granted the defendant’s motion for a new

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trial based on the government’s use of perjured testimony
and failure to disclose grand jury testimony and certain
documents in violation of Brady. Zomber’s reliance upon
McLaughlin is misplaced. The district court in McLaughlin
based its decision after finding that there was a reasonable
probability that, had the grand jury testimony been
disclosed and the grand jury witness called to testify for
the defense at trial, the result of the trial would have
been different. McLaughlin does not support Zomber’s
position because, as argued above, Ellis’ statements would
not have “affected the jury’s view of [the] evidence and
therefore would [not] have affected the jury’s result.”
McLaughlin, 89 F. Supp.2d at 626.

The record shows that Ellis’ additional statements
would not have contradicted the trial testimony of any key
government witnesses, including Murphy. Nor would these
statements lead this Court to conclude that the jury’s
verdict was undermined. When considering the substantial
evidence and testimony presented at trial, as explained in
the government’s earlier brief, it is apparent that the jury
would not have reached a different verdict.

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Case: 07-1933 Document: 003146904 Page: 29 Date Filed: 02/13/2008

III. THE ALLEGED FAILURE TO DISCLOSE THE GATES
LETTERS DID NOT CONSTITUTE A VIOLATION UNDER
BRADY OR THE JENCKS ACT.
Standard of Review
This Court reviews the district court's findings

of fact regarding an alleged violation of the government’s
constitutional disclosure obligations only for clear error.
United States v. Pelullo, 14 F.3d 881, 886 (3d Cir. 1994).
Although this Court conducts de novo review of the district
court’s conclusions of law, it affords substantial deference
to the district court’s determination that non-disclosed
information was not material. United States v. Thornton,
1 F.3d 149, 158 (3d Cir. 1993).

Discussion
Lastly, Zomber argues that the district court
erred when it determined that the government did not violate
Brady or the Jencks Act when it failed to disclose two
letters sent by Joseph Murphy to Microsoft Chairman Bill
Gates. This argument is identical to that presented in
Zomber’s direct appeal, and responded to by the government
at pages 50-55 of its earlier brief.

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Case: 07-1933 Document: 003146904 Page: 30 Date Filed: 02/13/2008

CONCLUSION
For the reasons stated above, the government
respectfully requests that the judgment of the district
court be affirmed.

Respectfully submitted,
PATRICK L. MEEHAN
United States Attorney

/s/ Robert A. Zauzmer
ROBERT A. ZAUZMER
Assistant United States Attorney
Chief of Appeals
Pa. Bar No. 58126

/s/ Seth Weber
SETH WEBER
Assistant United States Attorney
Pa. Bar No. 27817

/s/ Joseph F. Minni
JOSEPH F. MINNI
Assistant United States Attorney
Pa. Bar No. 53241

United States Attorney’s Office
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
(215) 861-8200

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Case: 07-1933 Document: 003146904 Page: 31 Date Filed: 02/13/2008

CERTIFICATION
IT IS HEREBY CERTIFIED that the electronic version
of this brief sent by e-mail to the Court was automatically
scanned by ScanMail Real-Time Scan Monitor, version 3.82, by
Trendmirco, and found to contain no known viruses.
I further certify that the text in the electronic copy of
the brief is identical to the text in the paper copies of
the brief filed with the Court.

JOSEPH F. MINNI
Assistant United States Attorney

Case: 07-1933 Document: 003146904 Page: 32 Date Filed: 02/13/2008

CERTIFICATE OF SERVICE
IT IS HEREBY CERTIFIED that two true and correct
copies of the Brief of Appellee United States of America
were served by first class mail, postage prepaid, upon:

Gerald B. Lefcourt, Esquire
GERALD B. LEFCOURT, P.C.
148 East 78th Street
New York, NY 10021

JOSEPH F. MINNI
Assistant United States Attorney

Date: February 13, 2008.