Record and brief — DiGilio v. United States

Supreme Court brief1981

Ask Donna

What actually matters in this document.

Text

— UONN8d

,«,, s

rt, US.

8 1 - 3 9 4 we on “. »

Oo.

AUG 18 198!

In The ALEXANDER L. STENAS,

“CLERK

Supreme Court of the Wni

OCTOBER TERM, 1981

JOHN DI GILIO,

Petitioner.

-Vs-

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

STEVEN H. GIFIS

ALAN DEXTER BOWMAN

Attorneys for Petitioner

One Palmer Square

Princeton, New Jersey 08540

(609) 921-0335

THE SUPERIOR APPELLATE PRINTING COMPANY

P.O. BOX 363 AREA CODE 609

CRANBURY, N.J. 08512 443-4202

Questions Presented

Whether the construction of Fed.R.Crim.Proc. 33

as preciuding the grant of a new trial on the

basis of newly discovered evidence where the

proffered evidence is of the impeachment variety

is violative of the fifth amendment right to due

process and the fourteenth amendment right to

equal protection?

Whether the District Court misclassified the

newly discovered evidence proffered by peti-

tioner as impeachment evidence since as opposed

to merely detracting from the witness' account

it indicated that the witness testified falsely?

Whether a finding of false testimony by govern-

ment witnesses respecting material issues at

trial mandates the grant of a new trial?

Whether a hearing must be conducted in circum-

stances where a court is informed that newly

discovered evidence placed under seal and de-

posited in its chambers has disappeared?

TABLE OF CONTENTS

Questions Presented .sccccccsececcscceceees

Table of ComtentS ceccccccccccccsccccsscece

Table of Authorities ..ccccccccccccccsccees

Opinion Below cesecesevcccscccccccsesseces

JSUPISKICLION ceccccccccccsccccccccsccccccces

Constitutional, Statutory and Rule

Provisions Involved .ecsccccccscecsseces

Order Extending Time to File Petition

for Certiorari eeeeeeeeeeeee eee eeeeeeeenene

Seatemant GF Wee GOSS cecececccoceoceocess

i. Procedural! Background eeeeoeeeeeeeeenee

ii. Factual Background e*eeeeeeeeeeee *e

A. The Alleged Instigation By Petitioner

Of Thefts Of Documents Maintained By

The Federal Bureau Of Investigation

And The Clear Evidence To The

Contrary cccccccccccccccccccccccccce

B. Receipt Of A Tape By Weingartner

Marked F.B.!. and Dated April 2,

1974 eeeeeoeeeeo eee eeeeeeeeeeeeeeeeeeene

Cc. Rediscovery Of The Missing Piece Of

Paper And Its Disappearance While

In The Custody Of The Court. ......

D. The Successful Hearing Of The Tape

And Its Contents eeeeeveeeeeeeeeeeeene

E. Petitioner's Motion For A New Trial

And The District Court's Denial Of

It Without An Evidentiary Hearing.

iii

CONTENTS

The Jurisprudential Significance Of

The ArugumentsTo Be Raised Before

This Court eeeeeoeeeea eee eeeeeeeeeeeee

Preciusion Of A New Trial Because

The Evidence Is Merely Impeaching .

Mischaracterization Of The Evidence

Below As Being Merely Impeachment

Evidence eeeeeeoeeeeeeeeeeeeeeeeeeeeene

The Failure To Conduct An Evidentiary

Hearing eeeeeeeeeeeeeeeeeeeeeeeeeeee

Reasons For Granting The Writ .eccceseees

POINT | CERTIORARI SHOULD BE

GRANTED FOR THE PUR-

POSE OF ISSUING A

STATEMENT THAT CON-

STRUCTION OF FED.R.

CRIM.PROC. 33 TO PRE-

CLUDE A NEW TRIAL ON

THE GROUND OF NEWLY

DISCOVERED EVIDENCE

WHERE THE NEW EVI-

DENCE IS MERELY IM-

PEACHING IS VIOLATIVE

OF THE FIFTH AMEND-

MENT RIGHT TO DUE

PROCESS AND THE FOUR-

TEENTH AMENDMENT

RIGHT TO EQUAL PRO-

TECTION. SINCE IM-

PEACHMENT EVIDENCE

MAY HAVE AS GREAT AN

IMPACT ON THE OUTCOME

OF THE TRIAL AS ANY

OTHER FORM OF EVIDENCE

THERE !S NO RATIONAL

BASIS FOR THE HERETO-

FORE ACCEPTED RESTRIC-

PAGE

CONTENTS

PAGE

TION UPON THE SCOPE OF

THE RULE eeeeeeeeeeeeee 17

Prevailing Law As Presently

Constituted eeeeeeeeeeeeeeeeeeeeeeeene 19

A Cogent Minority Of Opinions Have

Recognized The Fallacious Premise

Of Such A Limitation eeeeeeeeeeeeee 21

The Instant Case eeeeeeeeaeeeeeeen eee 23

POINT |! CERTIORARI SHOULD’ BE

GRANTED TO CLARIFY THE

MISCLASSIFICATION BY

THE DISTRICT COURT OF

PETITIONER'S EVIDENCE

AS IMPEACHMENT EVI-

DENCE. THE EVIDENCE

PROFFERED BY PETITION-

ER INDICATED THAT GOV-

ERNMENT WITNESSES

TESTIFIED FALSELY AND

WOULD HAVE SUBSTANT-

1VELY IMPACTED UPON

THE JURY'S FINDINGS

RESPECTING PETITION-

ER'S CULPABILITY = .seeeeees 25

The Larrison Test And Its Applica-

bility To The Instant Case) .....6.- 26

False Testimony Respecting Material

Issues Constitutionally Mandates The

Grant Of A New Trial cecececececess 28

Summary eeeeeeeeeeeeeeeeeeeeeeeeeee 29

CONTENTS

POINT II! CERTIORARI SHOULD’ BE

GRANTED TO ESTABLISH

THE RULE OF LAW THAT

A COURT HAS NO DISCRE-

TION WITH RESPECT TO

WHETHER TO CONDUCT A

HEARING WHERE IT IS

INFORMED THAT NEWLY

DISCOVERED EVIDENCE

WAS LOST, STOLEN OR

DESTROYED WHILE UNDER

SEAL AND IN THE

COURT'S POSSESSION) ose wees

Conclusion eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee

APPENDIX:

Appendix A - Order Extending Time To

File Petition for Writ of Certiorari

dated July 21, 1981 eeeeeeeeeeeeeeeeeeeee

Appendix B - Judgment Order from the

United States Court of Appeals for the

Third Circuit at No. 80-2840 dated

May 20, 1981 eeeeeeeeeeeeeeeeeeeeeeeeeeee

Appendix C - Order of the United States

District Court For The District of New

Jersey filed November 17, 1980 .sscccsees

Appendix D - Constitution-Amendment 5-

Amendment V-Capital Crimes; Double

Jeopardy; Self-iIncrimination; Due Process;

Compensation For Property .sscccecscecees

Appendix E - Constitution-Amendment 14-

Amendment XIV-Citizenship; Privileges and

Immunities; Due Process; Equal Protection;

of Representation; Disqual-

ification of ; Public Debt;

Enforcement eoeeeeeeeeveeeeeeeeeeeeeeeeeeeee

CONTENTS

PAGE

Appendix F - Rule 33 New Trial .esssees 10a

vii

TABLE OF AUTHORITIES

Brach v. United States, 542 F.2d 4

(2 Cir. 1976) o#eeeeeeeev eevee eeeeeeeeeeene

Carran v. Delaware, 259 F.2d 707

(3 Cir. 1958) eeeeoeeeeeeeeeeeeeeeeeeeeeee

Johnson v. United States, 207 F.2d 314,

322 5th Cir. 1953) eeeneeeeceeeeeeeeeeeee

Larrison v. United States, 24 F.2d 82,

87 (7 Cir. 1928) eeeeeeeeeeeeeeeeeeeeeeenee

Lyles v. United States, 272 F.2d 910, 912

(5th Cir. 1959) eeeeeeeeeeeeeeeeeeeeeeeee

Mesarosh v. United States, 352 U.S. 1, 14

(1956) — cocvcccccccccccccccccccccccccccece

Remmer v. United States, 347 U.S. 227,

229-230 (1953) "“ @@eeeeeeeoeeeeeeeeeeeeeeeee

Shortino v. Wheeler, 531 F.2d 938 (8 Cir.

1976) eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee

United States v. Allen, 554 F.2d 398 (10

Cir. 1977), cert. den. 434 U.S. 836

SURED cccdveccccccedséoecaccatosensdoesece

United States v. Atkinson, 429 F.Supp.

880, 887 (E.0.N.C. 1977) eeeeeeeeeeeeeee

United States v. Barrett, 505 F.2d 1091

(7 Cir. 1974) oooeweoeeeeeeeeeeeeeeeeeneenee

United States v. Cardareila, 588 F.2d 1204

(8 Cir. 1978) eeeeeoeeeeeeeeuneeeeeeeeeeeee

United States v. Cozzetti, 469 F.2d 684

(9 Cir. 1972) eeeeeeeeeeeeeeeeeeeeeeeeeee

United States v. DiGilio, 538 F.2d 972 (3

Cir. 1976), cert. den. 429 U.S. 1038

CGEFED- cdcecacesecécccscctesccoesocosoess

PAGE

26, 27

1,3

viii

AUTHORITIES

United States v. Eldred, 588 F.2d 746

(9 Cir. 1978) eeseeeeseeeeeeeeereeeeeeeeene

United States v. Ellison, 557 F.2d 128

(7 Cir. 1977) cert. den. 434 U.S. 965

CRUE. UbBecbedocdsesecdscescbécosoeoeccs

United States v. Frye, 548 F.2d 765 (8

Cir. 1977) s@eseeseeeeeecee eee eeeee eee eee ee eee

United States v. Hagerty, 561 F.2d 1197

(5 Cir. 1977) oseeeeeoeeeeoeeweeeeeeeeeenveee

United States v. Harris, 462 F.2d 1033

(9 Cir. 1972) eoeeeeeeeeeeeeveeeeeeeeeeeeennve

United States v. Herman, 614 F.2d 369,

371 (3 Cir. 1980) seeeeeeeeeeeeeeeeeeeeee

United States v. Jackson, 579 F.2d 553

(10 Cir. 1978), cert. den. 439 U.S.

981 (1979) *seeseeeeeoeeeeeeeeeeeeeeeeeeeeeene

United States v. Johnson, 596 F.2d 147

(5 Cir. 1979) *®eeeeeoeeeeeeeeeeeeeeeeeeeene

United States v. Krasny, 607 F.2d 840

(9 Cir. 1979), cert. den. 100 S.Ct.

1337 (1980) oseveeoeoeoeeweweeeweweeeeeeeeeeeeenee

United States v. Lee, 513 F.2d 423 (D.C.

Cir. 1975) seseeeeeoeaoe eee eee eeeeeeeeeeeeeene

United States v. Librach, 520 F.2d 550

(9 Cir. 1975) eeeeeeeeeee eee eee eeeeeeeeee

United States v. Lipowski, 423 F.Supp.

864 (D.N.J. 1976) eo#eeeeeeeweeeeeeeeeeeeeee

United States v. Maestas, 523 F.2d 316

(10 Cir. 1975) eeeeeeeeeeeeeeeeeeeeeeeeene

United States v. Miller, 411 F.2d 825, 832

(2 Cir. 1969) eeeeeeeveeeeeeveeeeeeeneeeeeeve

PAGE

AUTHORITIES

United States v. Myers, 484 F.2d 113, 118

(3d Cir. 1973) eeeeeeeeeeeeeeeeeeeeeeeeene

United States v. Pellegrino, 470 F.2d 1205

(2 Cir. 1972), cert. den. 411 U.S. 918

(1972) OP Pee eee eee eee eee ee eee eee eee

United States v. Persico, 339 F.Supp. 1077

(E.0.N.Y. 1972) *o#oeeeeceoeo eve eeoeweeevveeenveeee

United States v. Plum, 558 F.2d 568 (10

Cir. 1977) eeeeeeeeeeeeeeeeseeeeeeneeeeeeee

United States v. Rocco, 587 F.2d 144, 146

(3 Cir. 1978) e*eeeecoeeeeceev eee ee - ea eeeeeeveve

United States v. Wallace, 578 F.2d 735

(8 Cir. 1978), cert. den. Mitchell v.

United States, 439 U.S. 898 (1979) .....

United States v. Zicree, 605 F.2d 1381

(5 Cir. 1979), cert. den. Kaufman v.

United States, 100 S.Ct. 1656 (1980) ...

Rules Cited:

PAGE

19,20

Fed.R.Crim.Proc. 33 seeseeceeeeceeeseeseeel dy 17,19

Statutes Cited:

18 4.8.6 ofic Sec. 641 o#eeeveeeweweeeeeeeeeneee

18 6.6.6 Ae Sec. 371 eoenenoweeeeeeeeeeneeeeee

28 U.S.C. Sec. 1254(1) eeeoeeeeeeeeeeeeeeee

Opinion Below

The Judgment Order of the United States Court

of Appeals for the Third Circuit is appended to this

Petition as Appendix A.

Jurisdiction

The jurisdiction of the Supreme Court to re-

view the Final Judgment of the United States Court

of Appeals for the Third Circuit is based on 28

U.S.C. Sec. 1254(1).

Constitutional, Statu and

Rule Brovisions lnvolved

Petitioner seeks review of issues of law

arising under the Fifth and Fourteenth Amendments

to the United States Constitution and Fed.R.Crim.

Proc. 33. They are appended to this Petition as

Appendix B.

Order Extending Time To File

etition for tiorari

An application was made to Associate Justice

William Brennan, Jr. seeking an extension of time

within which petitioner could timely file the within

petition for certiorari. On July 21, 198! Justice

Brennen issued an order extending the time until

August 1/8, 1981. Justice Brennan's order is appended

as Exhibit C.

xii

No.

in The

Supreme Court of the United States

OCTOBER TERM, 1981

JOHN DI GILIO,

Petitioner.

-vs-

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

Petitioner prays that a writ of certiorari

issue to review the judgment of the United States

Court of Appeals for the Third Circuit entered in

this proceeding on May 20, 1981.

Statement Of The Case

Procedural Background

On August 6, 1974 United States District Court,

District of New Jersey Indictment No. 74-314 was

filed. That indictment charged petitioner with: con-

spiracy in violation of 18 U.S.C.A. Sec. 37! (Count

One) and conversion of records of the United States

valued in excess of $100.00 in violation of I8

U.S.C.A. Sec. 641 (Count Two). Trial of the offenses

was conducted before the Honorable H. Curtis Meanor

and a jury in June and July of 1975. On July 30,

1975 petitioner was convicted of both offenses. On

September !2, 1975 Judge Meanor imposed a sentence

upon petitioner of nine years imprisonment and a

$10,000 fine on Count Two and a concurrent term of

five years imprisonment on Count One. On appeal to

the Third Circuit, petitioner's conviction on Count

Two was reduced to conversion of property valued

at less than $100.00, a misdemeanor. See United

States v. DiGilio, 538 F.2d 972 (3 Cir. 1976), cert.

den. 429 U.S. 1038 (1977). Thereafter, om December

14, 1979 Judge Meanor sentenced petitioner to a term

of imprisonment of nine months and a $1,000 fine on

Count Two (conversion) and to a $1,000 fine on

Count One (conspiracy).* On October 30, 1!980 peti-

tioner moved before Judge Meanor for a new trial

on the ground of newly discovered evidence. On

November 10, 1980 petitioner's motion was denied.

On May 20, 198! the Third Circuit affirmed the deci-

sion of the district court.

ii.

Factual Background

A. The Alleged Instigation By Petitioner Of Thefts

Of Documents Maintained Federal Bureau

Of Investigation And lear Evidence to the

Contrary.

In March of 1971 George Kuczynski began to

offer for sale confidential documents prepared and

maintained by the Newark office of the Federal

Bureau of Investigation (hereinafter "F.B.1.").

(T1 663-59). The documents were photostated copies

of original materials maintained by the F.B.!.

Kuczy nski at the time that he commenced marketing

F.B.1. documents was romantically involved with a

Petitioner has served that sentence and been re-

leased.

-3-

clerical employee of that agency, Irene Klimansky.

Prior to trial Kuczynski and Klimansky formalized

their relationship into a marriage. During their

courtship, Klimansky was convinced by Kuczynski

to steal F.B.!. documents for his use. Kuczyski ap-

proached Klimansky because he had been unsuccess-

ful in his attempts to break into the F.B.!. office.

The form of persuasion which motivated Klimansky's

ultimate participation was infliction by Kuczynski

of savage beatings upon her. (T318, 321, 384).*

Klimansky's subsequent consent to marriage, after

the form of treatment accorded her by Kuczynski,

is evidentiary of her weak character.

Klimansky was instructed to purloin specific

documents embodying information compiled on peti-

tioner and others. Although the evidence indicated

that "the documents were being peddied around town

and that others besides [petitioner] had been

approached by Kuczysnki about purchasing them",

it was the government's theory at trial that peti-

tioner instigated Kuczysnki's actions. See, United

States v. DiGilio, 538 F.2d 972, 979 (3 Cir. 1976),

cert. den. 429 U.S. 1038 (1976). In this context, it

r—

T = Transcript of Trial.

ale

is interesting to note that Kuczynski allegedly

maintained an inventory of documents relating to

petitioner which he separated into components to

proliferate the number of transactions and thereby

multiply his opportunities for profit. Stated some-

what differently, Kuczysnki did not provide docu-

ments to petitioner as he received them. Kuczynski

stockpiled his wares and parceled them out. Peti-

tioner allegediy paid a total of $1,000 to Kuczysnki

for the various deliveries of documents.

Several witnesses testified at trial that

Kuczynski approached them to market the documents.

(T1890 to 1990). The testimony of these witnesses

with respect to the temporal posture of _ the

approaches clearly undermined the credibility of

Kuczysnki particularly regarding the claim

that petitioner instigated the conduct. The alleged

instigation of the conduct was the gravamen of the

offense. Therefore, any dimunition of the value of

Kuczynski's conduct was highly probative to the

point of being exculpatory. Kuczysnki and Kliman-

sky testified that they opened shop in the Fall of

1971 and terminat.. the business in the Spring of

1972. Prior statements provided by Kuczynski and

-5-

Klimansky to the F.B.!. were inconsistent with the

testimony both with respect to the time span of the

operation and the number of actual thefts. Kliman-

sky and Kuczynski had previously stated that the

initial theft occurred in January of 1972 and the

last theft occurred in June of 1972. (TI5i; 1159; 418;

421; 431; 432). Defense witnesses testified that

Kuczysnki began his approaches to them as early

as November of 197! and the approaches continued

through April of 1974.

The testimony at trial of George ..eingartner

was of critical relevance to any determination of

the nature of petitioner's involvement. Weingartner

was approached by Kuczysnki in March of 1971.

Kuczynski displayed F.B.!. documents to Weingart-

ner. (TI658-59). Kuczynski approached Weingartner

again in April of 1974. Kuczynski informed Wein-

gartner at the April 1974 meeting, as part of his

demonstration that he continued to be privy to

F.B.1. files, that F.B.I. agents operating a white

panel truck with the name "Rizzo Caterers" appear-

ing on its side were assigned to surveil both him

(Weingartner) and petitioner. (TI704; I8l0-I!I).

Kuczynski even provided to Weingartner the license

«G=

plate number of the truck. However, prior to trial

Weingartner misplaced the piece of paper and was

unable to produce it for use at trial. (TI704). The

relevance of the piece of paper, other than to cor-

roborate Weingartner's account of his meeting with

Kuczynski, was to counteract the testimony of F.B.!.

agent Wayne Comer and Kuczynski. Agent Comer

stated that the F.B.!I. did utilize a white panel

truck with "Rizzo Caterers" appearing on the side

as a subterfuge. (T2093). The agent, however,

denied that the truck was utilized in April of 1974.

(T8093-95). Comer also testified that the F.B.I. had

no relationship with Kuczynski in April of 1974 when

Kuczynski provided the information concerning the

truck to Weingartner. As noted, Kuczynski testified

that he terminated his activities in the Spring of

1972 and that he had not received information at

any time as part of a favorable relationship with

the F.B.!. All information which he _ generated,

claimed Kuczynski was the result of the _ thefts

during 1972. That testimony is contrary to his ap-

proach of Weingartner in 1974 with informa-

tion concerning a currently operative

surveillance vehicle. Kuczynski and Comer,

therefore, testified adversely to Weingartner and the

«Je

jury believed their testimony. Petitioner was con-

victed exclusively on the basis of this testimony.

Had Weingartner been believed, the jury at most

could have concluded that petitioner purchased

documents. Contradiction of Comer and Kuczynski

would have preciuded any finding that he instigated

the thefts. Indeed, the jury may have totally dis-

believed Comer and Kuczynski and found that de-

fendant had no involvement whatsoever.

B. Receipt Of A Tape B Weingartner Marked

F.8.1. and Dated April > 1974

Subsequent to petitioner's trial, Weingartner

was given a tape recording marked F.B.!I. and

dated April 2, 1974. The tape was given to Wein-

gartner by the late Vincent Capone. As part of his

delivery of the tape, Capone stated to Weingartner

that the contents of it might be helpful to petition-

er with respect to a pending motion for new trial.

Weingartner listened to the tape but could not de-

cipher its contents. The listening equipment which

Weingartner possessed was too unsophisticated to

overcome the poor audibility of the tape. Weingart-

ner, thereafter, put the tape in storage in his home

-8-

with no knowledge as to its contents.

C. Rediscovery Of The Missing Piece Of Paper And

Its Disappearance e in Custody Of The

Court.

In July of 1978, F.B.1. agents searched the

residence of Weingartner and seized various items.

As part of their thorough search of the premises,

the F.B.!. found the piece of paper upon which

Weingartner previously recorded the license plate num-

ber related to him by Kuczynski pertaining to the

F.B.1. surveillance vehicle. The F.B.!. seized in-

ter alia the piece of paper and the tape which

Weingartner previously received from Capone. The

items seized from Weingartner's home were placed

under seal by Magistrate Serena Paretti pending

disposition of a challenge to the search raised by

Weingartner. On May 7, !980 Weingartner, as part

of the challenge, successfully secured an order of

the court for return of the piece of paper. Wein-

gartner, thereafter, traveled to the District Court

Clerk's Office to retrieve this item. The Clerk did

not have the item in his possession. A subsequent

visit to Judge Meanor's chambers revealed that he

was in custody of the expansion folders in which

-9-

the document was previously sealed and stored. An

examination of the folders indicated that the docu-

ment was missing. Succinctly stated, the piece of

paper, seized by the F.B.!. and placed under seal

by the Court, had disappeared from within Judge

Meanor's chambers. Thus, it is a fair assumption

that the item placed under seal by the Court was

either misplaced, stolen or destroyed.

D. The Successful Hearing Of The Tape And its

Contents

In July of 1980, the court ordered that the

tape be returned to Weingartner. Subsequently,

Weingartner renewed his attempts to decipher the

tape. He secured sophisticated listening equipment

and played the tape. The tape embodied recordings

of transmissions from the F.B.!i. undercover van on

April 2, 1974. The tape revealed that notwithstand-

ing F.B.!. Agent Comer's statements under oath to

the contrary, the truck was operated in April of

1974 with the specific purpose to surveil petitioner.

-10-

E. Petitioner's Motion For A New Trial And The

District Court's Denial Of It Without An Eviden-

tiary Hearing.

In October of 1980, petitioner moved for a new

trial on the ground that newly discovered evidence

would have a substantial impact on the outcome of

trial. Specifically, petitioner argued that ‘the

materials embodied in the tape and the piece of

paper prepared by Weingartner would have permitted

his trial counsel to present to the jury credible

evidence indicating that Agent Comer was an unreli-

able if not perjurious witness whose testimony

should be disbelieved in its entirety, particularly,

those portions pertaining to the relationship which

he had with Kuczynski. So too, argued petitioner,

Kuczynski's testimony was unreliable because he

also denied any significant personal relationship

between himself and the F.B.!I. during the period

of time covered by the indictment. Since the only

evidence that petitioner instigated any thefts came

from Kuczynski, impeachment of him had the effect

of adducement of substantive exculpatory evidence.

In denying the motion without an evidentiary hear-

ing, the District Court stated:

| have been on this bench for a

little over six years. | think for

five and a half of them | have

dealt with [petitioner]. 1! hope

that this is the last time | as a

judge have to deal with [petition-

er]...We do not grant new trials

on newly discovered evidence

where the evidence is only col-

lateral, is merely impeaching or

corroborating...it goes only to

credibility and it involves a com-

pletely collateral matter. [TM24

to 50]*

The District Court, thus, denied the motion stating

that the newly discovered evidence was merely im-

peaching. We emphasize that the Court was wholly

unconcerned that items of evidence previously placed

under seal disappeared while being stored within

its chambers. It would seem that any court would

be startled and dismayed at such an occurrence and

be constrained to immediately order a full inquiry.

The District Court, however, since it did not per-

ceive the relevance of the missing piece of paper

was wholly uninterested in investigating its dis-

appearance.

in a judgment order, the Third Circuit

affirmed the decision of the District Court.

™ = Transcript of Motion.

iii.

The Jurisprudential Significance Of The

Arguments To Be Raised Before This Court

Petitioner has selected three issues to be

raised before this Court. These issues relate to: (1!)

the principle of law that a motion for a new trial

on the ground of newly discovered evidence must be

denied if the evidence is merely impeaching; (2)

mischaracterization by the district court of the new-

ly discovered evidence in this case as being merely

impeaching and (3) the failure of the district court

to conduct a hearing in circumstances where it was

informed that a portion of the evidence disappeared

while in the custody of the court pursuant to an

order placing it under seal. We believe that each

of these issues has national significance in the con-

text of development of fair and uniform application

of the law in a manner designed to ensure the con-

Stitutional integrity of verdicts in criminal cases.

These claims are outlined below and detailed in the

reasons for granting the writ.

-|3-

a. Preciusion Of A New Trial Because The Evidence

Is Merely impeaching.

The law respecting newly discovered evidence,

as presently constituted, is violative of the Fifth

Amendment right to due process and the Fourteenth

Amendment right to equal protection of the law. The

rule of law in the majority of federal circuits is

that a motion for new trial on the ground of newly

discovered evidence must be denied if the evidence

consists entirely of impeachment material. The Dis-

trict Court and the Third Circuit relied on this

axiom in denying relief to petitioner. The prevail-

ing view, relied on below, is inconsistent with ex-

perience and reality. Impeachment evidence, depend-

ing upon the circumstances of a particular case,

has the capacity to determine the outcome of a

trial. Stated somewhat differently, guilt or inno-

cence is often determined on the basis of the be-

lievability of a particular witness. To that extent,

impeachment evidence in terms of its importance and

impact may not be rationally distinguished from

other forms of evidence. It is our position that any

construction of Fed.R.Crim.Proc. 33 which precludes

a new trial on the basis of newly discovered evi-

-I4-

dence if such evidence is impeachment evidence is

violative of both due process and equa! protection,

since it denies a new tria! to certain defendants on

the basis of the classification of evidence as

opposed to any determination of its impact. Defend-

ants who are able to have a court include their

new evidence within the classification of substantive

evidence qualify for consideration for a new trial

although the actual impact of the evidence may be

no more substantial than impeachment evidence

offered by another defendant. This Court must issue

a firm statement of law forbidding this irra-

tional and arbitrary classification which dispenses

justice in disparate fashion.

b. Mischaracterization Of The Evidence Below As

Being Merely Impeachment Evidence.

The District Court mischaracterized the newly

discovered evidence in this case as "merely im-

peaching." The evidence offered by petitioner re-

lated to the government's proofs respecting his role

in the theft of F.B.1. documents. It was the govern

ment's theory that petitioner instigated the thefts.

Adoption of this theory was essential to a jury

firdirg that petitimer was quiltyof theft ad camgirag. The

-15-

newly discovered evidence, viz. the missing piece

of paper and the tape, tended to demonstrate that

there existed a collusive relationship between the

F.B.1. and the thief (Kuczynski). The existence of

such a relationship indicated that Kuczynski initi-

ated all approaches and that petitioner was at most

@ mere purchaser with no further involvement. A mere pur-

chaser is not liable in the fashion of a thief nor

as a conspirator. The newly discovered evidence,

therefore, was substantive proof that petitioner did

not conspire with Kuczynski nor instigate the thefts

to any degree. The characterization of the evidence

as merely impeaching was clearly erroneous.

c. The Failure To Conduct An Evidentiary Hearing

The failure to conduct a hearing in this case

was antithetical to the notion that the criminal pro-

cess is a continuing search for truth. The District

Court was required to conduct a hearing to judge

the demeanor of agent Comer when confronted with

the newly discovered evidence and to ascertain

whether the evidence in this context would result

in the revelation that a collusive relationship

existed between Comer and Kuczynski. The existence

| -16-

of such a relationship was exculpatory with respect

to petitioner because it negated testimony by

Kuczynski that petitioner instigated the thefts. As

importantly, a court as a rule should conduct a

hearing when it is informed that newly discovered

evidence has disappeared from within its chambers

where it had been placed under seal. This Court

should fashion a rule which requires a hearing in

this circumstance to assure that there are no lapses

in the vigilance which is necessary to maintain the

appearance of integrity respecting all judicial acts.

It should be noted in this regard that we do not

question the integrity of the jurist from whose

chambers the piece of paper disappeared. The sole

issue is with respect to reasons why others might

have surreptiously removed the piece of paper. We

believe that the District Court's indifference stems

exclusively from its view that the evidence was

merely impeaching and therefore insufficient to war-

rant a new trial.

~~ *

Reasons For Granting The Writ

Point |

CERTIORAR! SHOULD BE GRANTED

FOR THE PURPOSE OF ISSUING A

STATEMENT THAT CONSTRUCTION OF

FED.R.CRIM.PROC. 33 TO PRECLUDE

A NEW TRIAL ON THE GROUND OF

NEWLY DISCOVERED EVIDENCE

WHERE THE NEW EVIDENCE IS

MERELY IMPEACHING IS VIOLATIVE ;

OF THE FIFTH AMENDMENT RIGHT

TO DUE PROCESS AND THE FOUR-

TEENTH AMENDMENT RIGHT TO

EQUAL PROTECTION. SINCE IM-

PEACHMENT EVIDENCE MAY HAVE

AS GREAT AN IMPACT ON THE OUT-

COME OF TRIAL AS ANY OTHER

FORM OF. EVIDENCE THERE !S NO

RATIONAL BASIS FOR THE HERETO-

FORE ACCEPTED RESTRICTION UPON

THE SCOPE OF THE RULE.

The majority of federal circuits, including the

Third Circuit in which this case was decided, have

adopted an irrational construction of Fed.R.Crim.

Proc. 33 which preciudes a new trial on the ground

of newly discovered evidence where the evidence

profferred by the movant consists exclusively of im-

peachment evidence. This rule is apparently

premised upon the principle that impeachment evi-

dence is of a lesser quality than other forms of

evidence. The rule preciudes a new trial due to

discovery of such evidence without regard to the

-/8-

probative value of the evidence. The premise for

this construction of the rule is faulty at best and

clearly specious when viewed in light of common ex-

perience. Impeachment evidence may under appropri-

ate circumstances determine the outcome of the trial

just as any other form of evidence. Therefore, any

construction of the rule which excludes impeachment

evidence has the potential to deny a particular de-

fendant due process and to cause unequal applica-

tions of the law. Succinctly stated, there is no

basis, consistent with due process and equal protec-

tion, to deny new trials to defendants solely on the

basis of the generic classification of the form of

newly discovered evidence which is proffered. The

Constitution requires that the evidence be analyzed

and a determination made as to its impact without

regard to its generic classification. Since the end

sought is a reliable verdict, any evidence which

impacts on that ultimate interest must be scruti-

nized. The lower court's denial of petitioner's mo-

tion for a new trial exclusively on the ground that

the evidence is impeaching violated petitioner's

rights to equal protection of the law and to due

process. This Court must terminate the arbitrary

-|9-

and irrational limitation placed on Fed.R.Crim.

Proc. 33. Justice demands no liess.

Prevailing Law As Presently Constituted

Pursuant to Fed.R.Crim.Proc. 33, a defendant

may move for a new trial on the ground of newly

discovered evidence. To prevail on such a motion,

the majority of the federal circuits require that the

defendant establish five requirements: (a) the evi-

dence must in fact be newly discovered; (b) facts

must be alleged from which the court may infer

diligence on the part of the movant; (c) the evi-

dence relied on must not be merely cumulative or

impeaching; (d) it must be material to the issues

involved and (e) it must be such that on a new

trial, the newly discovered evidence would probably

produce an acquittal. United States v. Herman, 614

F.2d 369, 37! (3 Cir. 1980); United States v. Rocco,

587 F.2d 144, 146 (3 Cir. 1978) (emphasis added).

Cf. United States v. Lee, 513 F.2d 423 (D.C. Cir.

1975); United States v. Eldred, 588 F.2d 746 (9 Cir.

1978); United States v. Wallace, 578 F.2d 735 (8

Cir. 1978), cert. den. Mitchell v. United States, 439

-20-

U.S. 898 (1979); United States v. Krasny, 607 F.2d

840 (9 Cir. 1979), cert. den. 100 S.Ct. 1337 (1980);

United States v. Jackson, 579 F.2d 553 (10 Cir.

1978), cert. den. 439 U.S. 98! (1979); United States

v. Zicree, 605 F.2d 138! (5 Cir. 1979), cert. den.

Kaufman v. United States, 1!00 S.Ct. i656 (1980);

United States v. Ellison, 557 F.2d 128 (7 Cir. 1977),

cert. den. 434 U.S. 965 (1978); United States v.

Frye, 548 F.2d 765 (8 Cir. 1977); United States v.

Hagerty, 561 F.2d 1197 (5 Cir. 1977); United States

v. Cardarella, 588 F.2d 1204 (8 Cir. 1978); United

States v. Alien, 554 F.2d 398 (10 Cir. 1977), cert.

den. 434 U.S. 836 (1978); Brach v. United States,

542 F.2d 4 (2 Cir. 1976); United States v. Johnson,

596 F.2d i47 (5 Cir. 1979); United States v. Plum,

558 F.2d 568 (10 Cir. 1977); United States v.

Pellegrino, 470 F.2d 1205 (2 Cir. 1972), cert. den.

411 U.S. 9186 (1972); United States v. Barrett, 505

F.2d 1091 (7 Cir. 1974); United States v. Harris, 462

F.2d 1033 (9 Cir. 1972); United States v. Cozzetti,

469 F.2d 684 (9 Cir. 1972); United States v.

Maestas, 523 F.2d 316 (10 Cir. 1975).

Thus, the majority of federal jurisdictions re-

quire that to qualify for a new trial on the ground

«Ble

of newly discovered evidence a defendant must

proffer evidence other than impeaching evidence.

There is absolutely no basis for this artificial re-

striction. It is, however, currentiy the law of the

land.

A Cogent Minority Of Opinions Have Recognized

The Fallacious Premise Of Such A

Limitation

In United States v. Librach, 520 F.2d 550 (9

Cir. 1975), the Court acknowledged the critical im-

pact which credibility has on the outcome of a

trial. In Librach, the defendant subsequent to trial

discovered evidence which disclosed that a favorable

relationship existed between the government and a

witness. The Librach Court stated:

[There is] a need for reversal if

the balance of the evidence...

might reasonably have affected

the jury's judgment on some

material point...Applying this test

to the instant facts it is signifi-

cant that Fowler's credibility was

crucial to the case against

Librach and [the newly discovered

evidence] might reasonably have

affected the jury's judgment of

his credibility. [520 F.2d supra

at 554].

~~, =

The Librach Court reversed the convictions due to

its evaluation of the new evidence as having the

capacity to materially impact upon the verdict ren-

dered by the jury.

Similarly, in United States v. Miller, 41! F.2d

825, 832 (2 Cir. 1969), the court reversed the de-

fendant's convictions on the ground that the newly

discovered evidence "could and very likely would

have [been] the capstone of the [defense] attack on

the crucial witness for the prosecution." Id. The

Miller Court reversed even though it could not "con-

fidently" predict the effect of the attack on the

witness' credibility. The Miller Court was most con-

cerned about the impact upon “one of the most vail-

uable protections accorded the defendant by the

Sixth Amendment - the possibility that the sanctity

of the oath and effective cross-examination might

iead [the witness] to recant...or least to admit

doubt." Id. Cf. United States v. Atkinson, 429 F.

Supp. 880, 887 (E.D.N.C. 1977) (Where truthfulness

of testimony is essential to a finding of guilt and

newly discovered evidence might have induced a

reasonable doubt, a new trial must be granted).

-23-

iii.

The Instant Case

The newly discovered evidence in the instant

case, similar to that in United States v. Librach,

supra, had the capacity to impart to the jury that

the government's key witnesses, viz. Comer and

Kuczynski, had not testified truthfully respecting

their knowledge and involvement in matters material

to petitioner's guilt or innocence. Specifically,

Kuczynski clearly lied with respect to the nature

and extent of his involvement in procurement of

F.B.1. documents. The newly discovered evidence

would have revealed that he was privy to documents

over a much greater time span then he claimed at

trial. That evidence, viewed in light of the fact

that Klimansky's employment at the F.B.!. termina-

ted in 1972, also indicated that Kuczynski had yet

another source of information. Comer falsely stated

that the F.B.I|. van was not operative in 1974 when

Kuczysnki told Weingartner of its use. That de-

nial raises the spectre that Comer testified falsely

to guard against disclosure that Kuczynski was not

a private operator instigated to steal documents but

was an undercover operative whose function was to

lure petitioner and others into the alleged scheme.

-24-

At a minimum, proof that Kuczynski was_ in

business in 1974 destroyed the theory that petitioner

instigated the thefts. The newly discovered evi-

dence, therefore, had the capacity to place the

facts as adduced at trial into a perspective which

was exculpatory of petitioner.

Significantly, the District Court conceded that

the evidence proffered by petitioner had probative

value. The Court stated:

|! think it is agreed that the

existence of the piece of paper

corroborating Weingartner detrac-

ting from the testimony of Comer

and Kuczynski is corroborative of

Weingartner and impeaching of the

other two. The tape would essen-

tially be the same thing. [TM29].

However, since the Court viewed the evidence as

“merely impeaching", it denied the motion. We sub-

mit that the Court was required to review the newly

discovered evidence to determine whether it would

have altered the outcome of trial. The Court was

not at liberty to base its decision on the generic

classification of the evidence. Its decision to do

such denied petitioner due process and equa! pro-

tection of the law. Evidence of a lesser quality

which is classified in a different generic context

would have entitied another defendant to a fair

-25-

consideration of his cause. This result is unfair

and antithetical to constitutional norms. See

Shortino v. Wheeler, 531 F.2d 938 (8 Cir. 1976).

Point II

CERTIORARI SHOULD BE GRANTED

TO CLARIFY THE MISCLASSIFICA-

TION BY THE DISTRICT COURT OF

PETITIONER'S EVIDENCE AS IM-

PEACHMENT EVIDENCE. THE EVI-

DENCE PROFFERED BY PETITIONER

INDICATED THAT GOVERNMENT WIT-

NESSES TESTIFIED FALSELY AND

WOULD HAVE SUBSTANTIVELY IM-

PACTED UPON THE JURY'S FINDINGS

RESPECTING PETITIONER'S CULPA-

BILITY.

The District Court misclassified the evidence

proffered by petitioner as "mere" impeachment evi-

dence. The newly discovered evidence submitted to

the court substantively impacted upon petitioner's

culpability for the offense and extended in its pro-

bative value far beyond the scope of mere impeach-

ment. The government's theory was that defendant

instigated thefts of F.B.1. documents. The evidence

proffered by petitioner indicated both that the

government's witnesses testified in perjurious

fashion and that there may have existed some

favorable relationship between Kuczynski and the

F.B.1. during the period of time when Kuczynski

-26-

was peddiing documents. These facts do not merely

contradict the government's witnesses but tend to

negate any hypothesis as to petitioner's culpability.

The Larrison Test And its Applicability

To The Instant Case

When newly discovered evidence indicates that

government witnesses have testified falsely, a

secondary test is applicable to the determination as

to whether a new trial is warranted in addition to

the general test respecting such evidence. See

Point |, Part i. This standard, embodied in

Lerrisen v. United States, 24 F.2d 82, 87 (7 Cir.

1928), has three components: (1) a determination as

to the truthfulness of the testimony; (2) a determin-

ation as to whether its exclusion would result in a

different verdict and (3) a determination as to

whether the party seeking the new trial was taken

by surprise when the false testimony was given and

was unable to meet it or did not know of its falsity

until after the trial. The Larrison Test was

applicable below and should have led to the grant

of a new trial to petitioner.

The newly discovered evidence in the instant

case indicated that Comer and Kuczynski testified

faisely with respect to issues critical to a finding

of guilt at trial, viz. Kuczynski's ability to pro-

cure F.B.!1. documents and the nature of his rela-

tionship to that agency. Kuczynski's relationship to

the F.B.!|. was of pivotal significance to any

characterization of petitioner's involvement.

Accordingly, the falsity of such testimony cleariy

would have affected the outcome of trial. At this

juncture, we note that since the District Court mis-

classified the evidence proffered by petitioner, it

made no findings under the Larrison Test. For the

purposes of this petition, we assume the falsity of

the testimony. Moreover, since the evidence relates

to the government's two key witnesses, we must also

assume that without it the jury would have reached

a different conclusion. Further, it is also a fair

assumption that without the newly discovered evi-

dence petitioner was unable to meet the false testi-

mony. In this context, we note that the falsity of

Comer's testimony was absolutely established by the

tape which was not deciphered until four years

after trial.

-28-

ii.

False Testimony Respecting Material Issues

Constitutionally Mandates The Grant Of

A New Trial

in United States v. Lipowski, 423 F.Supp. 864

(D.N.J. 1976), the defendants were granted a new

trial on the gramndofnewly discovered evidence where

it was demonstrated that the evidence would have

impeached the government's major witness' credi-

bility in a manner which was likely to have re-

sulted in a different verdict. The Lipowski Court

stated that "newly discovered evidence which proves

the key witnesses' perjury [must result in a new

trial to prevent] a mockc. -’

of justice and a denial

of the fundamental fairness of our judicial system."

id. at 867. Similarly, in Carran v. Delaware, 259

F.2d 707 (3 Cir. 1958), the Court stated that "the

faise testimony of a detective [such as that in the

instant case] is sufficient to cause a defendant's

trial to pass the line of tolerable imperfection and

fall into the field o! fundamental unfairness." Id.

at 710.* Cf. United States v. Myers, 484 F.2d 113,

We espouse the view that with respect to the false

testimony of a government agent, the falsity of such

testimony may never be dismissed as harmiess on

the ground that it is collateral.

-29-

118 (3d Cir. 1973) (A new trial should be ordered

so that the government may present its case free of

erroneous testimony).

iii.

Summa ry

There is a subtle distinction between evidence

which merely impeaches and evidence which indi-

cates that a witness has testified falsely. Impeach-

ment evidence detracts from the credibility of a wit-

ness' account, either with respect to the sufficiency

of his recollection or his ability to perceive events.

The evidence proffered by defendant, particularly

the tape, indicated that testimony given by the

government's witnesses was false. The _ testimony

counteracted by the newly discovered tape and the

piece of paper was essentially the government's

entire case. Therefore, absent proper classification

and consideration of the evidence lead’ng to a new

trial, defendant will have been denied both funda-

mental fairness and basic justice.

-x-

Point Ili

CERTIORARI SHOULD BE GRANTED

TO ESTABLISH THE RULE OF LAW

THAT A COURT HAS NO DISCRETION

WITH RESPECT TO WHETHER TO

CONDUCT A HEARING WHERE IT IS

INFORMED THAT NEWLY DISCOVERED

EVIDENCE WAS LOST, STOLEN OR

DESTROYED WHILE UNDER SEAL AND

IN THE COURT'S POSSESSION.

Even under ordinary circumstances, in de-

ciding whether to grant a new trial, a court is re-

quired to conduct a thorough inquiry. See United

States v. Persico, 339 F.Supp. 1077 (E.D.N.Y. 1972).

Cf. Johnson v. United States, 207 F.2d 314, 322 (5th

Cir. 1953). In this case, the court confronted the

extraordinary circumstance of evidence having dis-

appeared which was previously placed under seal

and deposited in the court's chambers. In such a

case, a court has no discretion with respect to whe-

ther it should conduct a hearing. The court and the

integrity of its chambers must be absolved of any

doubts as to the innocent nature of the dis-

appearance. in this context, we observe that we do

not doubt that the court did all that was required

of it to safeguard the documents. Nevertheless, the

evidence was lost from within the court's chambers.

afta

The court's vigilant safekeeping of the evidence

notwithstanding, the high regard which the general

populace holds for the judiciary and its integrity

requires that the court do all that it can to ensure

that others have not invaded the sanctity of its

chambers with the specific purpose to sabatoge

petitioner's cause of action. The sole means to

accomplish this end is to conduct a hearing wherein

the probative value of the evidence is fully ex-

plored by examination of the witnesses to whom the

evidence relates. In short, a hearing would explore

the circumstances surrounding the disappearance of

the evidence and would “show more clearly whether

there is or is not credible evidence discovered since

trial which should call for the granting of the peti-

tioner's motion for a new trial." See Lyles v.

United States, 272 F.2d 910, 912 (5th Cir. 1959). Cf.

Remmer v. United States, 347 U.S. 227, 229-230

(1953).

We submit that the court was without discre-

tion in regard to the holding of a hearing. The

disappearance of the evidence "poisoned the water

in this reservoir and the reservoir cannot be

cleansed without first draining it of all impurity...

-32-

[courts] must see that the waters of justice are

not polluted." Mesarosh v. United States, 352

U.S. 1, 14 (1956). In this context, we emphasize

that "the untainted administration of justice [must]

remain] one of the most cherished aspects of our

institutions" and the doing of justice [must] be

made so manisfest that only irrational or perver-

se claims of its disregard can be asserted." id.

To ensure that the doing of justice was manifest

in this case, the District Court was required to

conduct a hearing.

-33-

Conclusion

For all the foregoing reasons, the writ of

certiorari should be granted to review the final

judgment of the United States Court of Appeals for

the Third Circuit.

Respectfully submitted,

ONS AS

STEVEN H. GIFIS

Attorney for Petitioner -

John DiGilio

Of Counsel And On The Petition

Steven H. Gifis

Alan Dexter Bowman

DATED: August 18, 198!

APPENDIX

APPENDIX A

Supreme Court of the United States

No.A-57

JOHN’ DIGILIO,

Petitioner

UNITED STATES

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

UPON CONSIDERATION of the application of coun-

se! for petitioner.

1T tS ORDERED that the time for filing a

petition for writ of certiorari in the above-

entitled cause be, and the same is hereby, ex-

tended to and including August 18, 1981

/s/William J. Brennan, Jr.

Associate Justice of the

Supreme Court of the

United States

Dated this 21st

day of July ,1981

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 80-2840

UNITED STATES OF AMERICA

Appellee

JOHN DI GILIO, JOHN GRILLO, HARRY LUPO,

PETER SZWANDRAK, GEORGE KUCZYNSK!, IRENE

(KLIMANSKY) KUCZYNSK!

JOHN DI GILIO, Appellant

Appeal! From the United States District Court

For the District of New Jersey

D.C. Criminal No. 74-00314-01

Submitted Under Third Circuit Rule 12(6)

April 21, 1981

Before: HUNTER, SLOVITER, Circuit Judges, and

STAPLETON,* District Judge

*Honorable Walter K. Stapleton, United States

District Judge for the District of Delaware,

sitting by designation

APPENDIX B

JUDGMENT ORDER

After considering the contentions raised by

appellant, to-wit, that the court erred:

1) in failing to require a new trial

where newly discovered evidence

revealed the false testimony of key

government witnesses on material

facts; and

._._2) by abusing its discretion in failing

to conduct a full evidentiary hearing

on the disappearance of defense

evidence while in the court's custody,

It is ADJUDGED AND ORDERED that the judgment

of the district court be and is hereby affirmed.

BY THE COURT,

s/J.HI11

JAMES HUNTER, III,

Circuit Judge

Attest:

s/S.M.

Sally Mrvos, Clerk

Dated: May 20, 1981

APPENDIX C

ORDER OF THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(Filed November 17, 1980)

UNITED STATES DISTRICT

COURT DISTRICT OF NEW

JERSEY

UNITED STATES OF AMERICA :

Criminal No. 74-314

Vv. :

JOHN DIGILIO, et al. $ ORDER

This matter having been opened to the

Court on the motion of John DiIGilio, through

counsel John Noonan appearing for an Order

granting a new trial on the ground of newly dis-

covered evidence pursuant to Fed.R.Cr.Proc. 33,

in the presence of the United States Attorney for

the District of New Jersey (Samuel Rosenthal,

Assistant U.S. Attorney, appearing) and the Court

having considered (1) the briefs of the parties;

(2) the affidavits and certifications of Larry

Bronson, John R. Schwartz, Roger Lowenstein and

George Weingartner, and (3) the arguments of

counsel, and for good cause shown:

IT 1S on this 17th day of November, 1980,

ORDERED that the motion for a new trial

is hereby denied.

APPENDIX C

s/H.C.M.

H. CURTIS MEANOR

Judge, U.S. District Court

FILED

NOV 17 1980

8:30 s/A.W.L.

ANGELO W. LOCASCIO

APPENDIX D

CONST! TUTION

Amend. 5

AMENDMENT V-CAPITAL CRIMES; DOUBLE

JEOPARDY; SELF-INCRIMINATION; DUE PROCESS;

COMPENSATION FOR PROPERTY

No person shall be held to answer for a

capital, or otherwise infamous crime, unless on

@ presentment or indictment of a Grand Jury, ex-

cept in cases arising in the ltand or naval! for-

ces, or in the Militia, when in actual service in

time of War or public danger; nor shall any per-

son be subject for the same offense to be twice

put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty,

or property, without due process of law; nor

shall private property be taken for public use,

without just compensation.

APPENDIX E

CONST! TUTION

Amend. 14

AMENDMENT XIV-CITIZENSHIP; PRIVILEGES

AND IMMUNITIES; DUE PROCESS;

EQUAL PROTECTION; APPORTIONMENT

OF REPRESENTATION; DISQUALIFICATION

OF OFFICERS; PUBLIC DEBT;

ENFORCEMENT

Section 1. All persons born or natural-

ized in the United States, and subject to the jur-

isdiction thereof, are citizens of the United States

and of the State wherein they reside. No State

shall make or enforce any law which shall a-

bridge the privileges or immunities of citizens of

the United States; nor shall any State deprive

any person of life, liberty,or property, without

due process of law; nor deny to any person with-

in its jurisdiction the equal protection of the

laws.

Section 2, Representatives shall be ap-

portioned among the several States according to

their respective numbers, counting the whole

number of persons in each State, excluding In-

dians not taxed. But when the right to vote at

APPENDIX E

any election for the choice of electors for Presid-

ent and Vice President of the United States, Re-

presentatives in Congress, the Executive and Jud-

icial officers of a State, or the members of the

Legislature thereof, is denied to any of the male

inhabitants of such State, being twenty-one years

of age, and citizens of the United States, or in

any way abridged, except for participation in

rebellion, or other crime, the basis of representa-

tion therein shall be reduced in the proportion

which the number of such male citizens shall bear

to the whole number of male citizens twenty-one

years of age in such State.

Section 3. No persen shall be a Senator

or Representative in Congress, or elector of Pres-

ident and Vice President, or hold any office,

civil or military, under the United States, or un-

der any State, who, having previously taken an

oath, as a member of Congress, or as an officer

of the United States, or as a member of any State

legislature, or as an executive or judicial officer

of any State, to support the Constitution of the

United States, shall have engaged in insurrection

or rebellion against the same, or given aid or

APPENDIX E

comfort to the enemies thereof. But Congress may

by a vote of two-thirds of each House, remove

such disability.

Section 4. The validity of the public debt

of the United States, authorized by law, including

debts incurred for payment of pensions and boun-

ties for services in suppressing insurrection or re-

bellion, shall not be questioned. But neither the

United States nor any State shall assume or pay

any debt or obligation incurred in aid of insur-

rection or rebellion against the United States, or

ary claim for the loss or emancipation of any

slave; but all such debts, obligations and claims

shall be held illegal and void.

Section 5. The Congress shall have power

to enforce, by appropriate legislation, the pro-

visions of this article.

10a

APPENDIX F

Rule 33. New Trial

The court on motion of a defendant may

grant a new trial to him if required in the inter-

est of justice. If trial was by the court without

a jury the court on motion of a defendant for a

new trial may vacate the judgment if entered,

take additional testimony and direct the entry of

a new judgment. <A motion for a new trial based

on the ground of newly discovered evidence may

be made only befcere or within two years after

final judgment, but if an appeal! is pending the

court may grant the motion only on remand of the

case. A motion for a new trial based on any

other grounds shall be made within 7 days after

verdict or finding of guilty or within such fur-

ther time as the court may fix during the 7-day

period.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.