Petition — Mirkin v. United States

Office - Supreme Court, U.S.

‘ 2 1 6 FILED

- "0 JUL 23 1982

ALEXANDER L. STEVAS.

CLERK

IN THE SUPREME COURT OF

UNITED STATE

1982 OCTOBER TERM

GORDON S. MIRKIN

v.

THE UNITED STATES

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

POR THE FIRST CIRCUIT

PETITION FOR CERTIORARI

GORDON S. MIRKIN, PRO SE

4 BUCHANAN ROAD

MARBLEHEAD, MASSACHUSETTS

01945

(617) 631-1020

NO

IN THE SUPREME COURT OF

TE

1982 OCTOBER TERM

GORDON S. MIRKIN

Vv.

THE UNITED STATES

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

PETITION FOR CERTIORARI

GORDON S. MIRKIN, PRO SE

4 BUCHANAN ROAD

MARBLEHEAD, MASSACHUSETTS

01945

(617) 631-1020

QUESTIONS PRESENTED FOR REVIEW

1. Did the petitioner satisfy the criteria

for granting a new trial on the basis of newly

discovered evidence as set forth in United

States v. Wright, 625 F.2d 1017 (lst Cir. 1980)?

2. Should the District Court have applied the

Standard of Larrison v. United States, 24 F.2d

82, 87 (7th Cir. 1928) and granted a new trial?

3. Can this Court establish more functional

guidelines for criteria for granting a new

trial on the basis of newly discovered evidence

to afford petitioners the right to due process

under the Fifth Amendment of the United States

Constitution?

LIST OF PARTIES

All parties appear in the caption of the

case.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ......+-+5:

LIST OF PARTIES ..nccesececcccscsecsescees

TABLE OF AUTHORITIES .....eeeceeececcecees

STATEMENT OF THE CASE ...

1. PETITIONER'S MOTION FOR A NEW TRIAL

SATISFIED THE CRITERIA IN UNITED

A. THE EVIDENCE WAS UNKNOWN OP.

UNAVAILABLE TO PETITIONER AT

B. FAILURE TO LEARN OF THE EVIDENCE

WAS NOT DUE TO LACK OF DILIGENCE

C. THE EVIDENCE IS MATERIAL AND NOT

MERELY CUMULATIVE OR IMPEACHING.

IT WILL PROBABLY RESULT IN AN

III. THE MOTION FOR A NEW TRIAL SHOULD

BE REMANDED FOR AN EVIDENTIARY

ii

10

14

19

25

28

CONCLUSION ..cccccccccccesccccccscccces 30

APPENDIX:

A. Opinion of the First Circuit Court of

Appeals

B. Neuropsychological Evaluation of Chief

Government Witness, inr-d0-198D

C. March 10, 1981 Report and Evaluation of

Chief Government Witness By Chief,

Psychology Department, New England

Rehabilitation Hospital

iii

TABLE OF AUTHORITIES CITED

Amos v. United States, 278 F.2d

44 (D.C. Cir. | es

Chavis v. North Carclina, 637 F.2d

273 (4th Cir. is i> ook) be eeeeee ey Fe}

Giglio v. United States, 405 U.S.

150, 92 S.Ct. 763 (1972)......e0002--22

In re. United States, 565 F.2d

173 (lst Cir. 1977)......... Seedeerese 7

Larrison v. United States, 24 F.2d

82 (7th Cir. See eee eee 25

Nesarosh v. United States, 352 U.S.

1, 77 S.Ct. 1, 1 L.Ed. 1 (1956)......22,24

United States v. Agurs, 427, U.S.

97, 96 S.Ct. 2392 (1976)......060222-12

United States v. Anderson, 532

F.2d 1278 (9th Cir. 1976).....sceeeees 22

United States v. Atkinson, 429

F.Supp. 880 (E.D. N.C. Sei eecececoe te

United States v. Benn, 476 F.2d

1127 (D.C. Cir. So PP rrrryTTiTT: tf,

United States v. Cozzetti, 469 F.2d

684 (9th Cir. Dts babé66ocbéness 66 0eue

United States v. Davila, 428 F.2d

465 (9th Cir. Betoneneé éeeeses ec oecenn

United States v. Dean, 647 F.2d

779 (8th Cir. 1981). eee eeenee eee eeee 12

United States v. Disston, 582

P.a8 £266 (7G Che. 197B)ecccceccecere 28

-iv-

United States v. Gilbert, 668

F.2d 94 (2nd Cir. 1981)..... seccceces 19

United States v. Glickman, 604 F.2d

625 (9th Cir. | Pr TTTrTrTiTrrT? _

United States v. Gordon, 246 F. oyP-

S22 (D.D.C. 1968) ccccccccccccccscces 24

United States v. Lewis, 338 F.2d

737 (6th Cir. 1964), cert. den.

380 U.S. 978, 85 S.Ct. 1342, 14 L.Ed.

thd i. nine a edna eee 660 66 660606 Ct

United States v. Lightly, 677 F.2d

1027 (4th Cir. 1982)....cceeceeveeees 29

United States v. Lipowski, 423

F.Supp. 864 (D.N.J. |

United States v. Rhodes, 556 F.2d

599 (lst Cir. 1977)....... PTT TTYTTITT 28

United States v. Turner, 490

F.Supp. 583 (E.D. Mich. 1979)........ 26

United States v. Wright, 625 F.2d

1017 (lst Cir. 1980) *e#eeneeeeveeneneneneneaee oee7,25

Winer v. United States, 228 F.2d

944 (6th Cir. 1956), cert. den.

357 U.S. 906, 76 §.Ct. 695, 100

Dene MS 6600666 e660 660006 6 coccecoene

Ziegler v. Callahan, F.2d __

(lsc Cir. Si éneseed bees ce se ereeeeees. 20,21

-V-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

GORDON S. MIRKIN,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI TC THE

“UNITED STATES COURT OF APPEALS ==

“FOR THE FIRST CIRCUIT =—

Petitioner, GORDON S. MIRKIN, prays that

a writ of certiorari be issued to review the

judgment of the United Stutes Court of Appeals

for the First Circuit, entered in the case of

United States v. Mirkin, decided on May 24,1982.

CITATIONS TO OPINION BELOW

The first opinion of the First Circuit

Court of Appeals is reported at 649 F.2d 78

(1981). The second opinion of the First

Circuit Court of Appeals is reported at 678 F.2d

(1982). The opinion cf the District Court for

Massachusetts is not reported.

JURISDICTION

The indictment against the petitioner was

brought under 26 U.S.C. $ 7201. The second

Opinion of the First Circuit Court of Appeals

was filed on May 24, 1982. The jurisdiction of

this Court is invoked under 28 U.S.C. § 1254

and the Rules of this Court.

STATEMENT OF THE CASE

Petitioner was indicted on February 14,1980

on three counts of income tax evasion, in viol-

ation of 26 U.S.C. $7201. The indictment alleged

that the petitioner had evaded taxes by will-

fully understating his income for 1972, 1973 and

1974. At the trial the government relied upon

Gerald Meiselman, the accountant who had pre-

pared petitioner's tax returns to prove willful

evasion. Meiselman testified that he recalled

that the petitioner had instructed him not to

attribute certain bank deposits to income. The

petitioner contradicted Meiselman's testimony

and testified he had made full disclosure to

Meiselman, that the deposits were a matter of

record at his bank and he had relied on Meisel-

man to prepare accurate and complete returns.

The trial became a question of credibility-

was the jury to believe petitioner or Meiselman?

The trial judge focused his charge directly on

this issue, calling it "the critical question"

for the jury. The jury resolved the question in

favor of Meiselman's credibility, convicting

the petitioner, on all three counts. In deny-

ing petitioner's earlier motion for new trial,

the trial judge again characterized the key

issue as credibility of petitioner or Meiselman/

See United States v. Mirkin, 649 F.2d 78,81

(lst Cir. 1981).

Approximately three months after he testi-

fied, Meiselman was examined by Herbert Roth-

farb, Ph.D. for disability insurance purposes

and was found "(c)learly . . . no longer able

to function as a CPA", suffered from "striking"

memory problems, inability to “reason clearly

or interpret facts", a loss of “approximately 25

to 30 IQ points", slowed-down ability to cal-

culate, to retain, to recall, and to maintain a

sustained effort", “difficulty in storing infor-

mation","difficulty performing adequitely at a

high school level". At the same time he denys

memory damage, “insists that he can perform as

before, i.e. as a competent person", yet he can

be “friendly and cooperative . .. talkative and

quite verbal"."His memory resuits seem artific-

ially elevated ... however, it is clear he

cannot reason clearly or integrate facts", and

“in short, he has lost a great deal of his intel-

ligence,(and) memory"; he remains “embittered

. Obsessional . .. egocentric . . .schizoid

and sociopathic". Petitioner's second motion

for a new trial was principally based on Dr.

Rothfarb's extensive psychological report of

Meiselman's condition, which showed that Meisel-

man's claim during cross-examination at the trial

that his memory was not damaged by the auto

accident of 1975 was absolutely untrue. Further-

more, Meiselman's apparent ability to fool him-

self and the untrained or uninformed observer

as to his damaged memory would make it unusually

difficult for a judge or jury to go behind his

friendly, highly verbal exterior to find the

defective memory,without having the advance

knowledge of his problem. Of course,with that

advance knowledge Meiselman could be evaluated

as to credibility by the court.

The District Court, however, denied the

motion without a hearing and the First Circuit

Court of Appeals upheld the opinion of the

District Court in a Per Curium decision.

REASONS FOR GRANTING THE WRIT

I. PETITIONER'S MOTION FOR NEW TRIAL

SATISFIED THE CRITERIA FOR GRANTING

K-NEW TRIAL ON THE BASTS OF NEWLY

DISCOVERED EVIDENCE OF THE CONCEALED

DAMAGED MEMORY OF THE CHIEF GOVERNMENT

WITNESS. FAILURE OF FEDERAL TRIAL

COURT TO APPLY SUCH CRITERIA

CONSTITUTIONALLY REQUIRES REVERSAL.

The petitioner's motion for a new trial

was based on the discovery after the trial

that the chief government witness, Gerald

Meiselman, had concealed the severe damage

to his memory, based on the discovery of

a report of Herbert Rothfarb, Ph.D. pre-

pared independently for disability insur-

ance purposes. During the doctor's

examination, Meiselman was "friendly,

cooperative .. . talkative and quite

verbal". See Appendix " ". During the

course of the trial, Meiselman presented

the same attributes, thereby concealing

the damage to his memory to a degree that

it was not discovered by the judge, jury,

or counsel for government or defense.

The severity of the damage to the chief

witness of the government was sufficiently

severe to warrant petitioner's motion for a

new trial. The petitioner's motion satisfied

the criteria for granting a new trial on the

basis of newly discovered evidence as set

forth in United States v. Wright, 623 F.2d

1017, 1019 (lst Cir. 1980):

A motion for new trial on the basis

of newly discovered evidence will ordi-

narily not be granted unless the moving

party can demonstrate that: (1) the

evidence was unknown or unavailable to

the defendant at the time of trial; (2)

failure to learn of the evidence was not

due to lack of diligence by the defend-

ant; (3) the evidence is material, and

not merely cumulative or impeaching;

and (4) it will probably result in an

acquittal upon the retrial of the def-

endant. See Pelegrina v. United States,

601 F.2d 18, 20-21 (1st Cir. 1979);

In re United States, 565 F.2d

173, 177 (lst Cir. 1977); John v. United

States, 32 F. 2d 127, 129 (8th Cir. 1929);

C. Wright §& A. Miller, Federal Practice

and Procedure § 557 at 515 (1969).

The District Judge denied the petitioner's

motion on the ground that it failed to meet any

of these four criteria. That decision was

manifestly erroneous as the motion did, in fact,

satisfy all of the Wright criteria.

A. "The evidence was unknown or

unavailable to the defendant at the

time of trial.”

The evidence in question, the report of Dr.

Rothfarb, was not even in existence at the time

of trial. His examination did not commence until

some three months after Meiselman had testified.

His report was not completed until approximately

six months after the trial, and was not

received by the petitioner's appellate counsel

until almost a year after the trial. By its

very nature, the report itself must be con-

sidered to be "newly discovered" since it was

not in existence or capable of discovery at the

time of trial. Furthermore, the chief government

witness, Meiselman, actually concealed his lack

of effective memory and actively denied under

cross-examination that he had this defect. The

truth of the inability of Meiselman to meet the

basic capacity of memory needed to be a competent

witness never would have come to light, but for

Dr. Rothfarb's report after the trial.

If the issue in the instant case had been

whether a traffic light had been red or green

at a particular time and Meiselman had testified

that his memory was that the light had been red

and later a doctor had examined him and found

him to be color-blind; the court would have to

reopen the case because if would be unable to

rely on the testimony of a color-blind person as

to color, if color were the issue in the case.

Here the situation is that Meiselman's testimony

on the issue in the case was based on a memory

that was damaged and unreliable, but that defect

was not only unseen by the court and the jury

but, according to Dr. Rothfarb, Meiselman him-

self was not consciously aware of it at the time

of the trial. Therefore, the District Court

-9-

erred in holding implicitly that the evidence

was not "newly discovered". C.f. United States

v. Glickman, 604 F.2d 625, 632-3 (9th Cir. 1979)

(Post-trial psychiatric reports newly discovered

evidence but insufficient to warrant new trial.)

B. “Failure to learn of the evidence was

not due to lack of diligence by the

defendant."

The facts underlying Dr. Rothfarb's post-

trial report certainly existed at the time of

trial. However, neither the defense nor the

Government was aware of the extent of

Meiselman's disability at the time of his

testimony. The defense asked Meiselman on

cross-examination whether the accident had

impaired his memory. Meiselman responded that

it had not.

Similarly, in United States v. Atkinson,

429 F. Supp. 880 (E.D.N.C. 1977), a critical

government witness falsely denied prior con-

victions on cross-examination. Post-trial

discovery of his record was held to be newly

discovered evidence warranting a new trial

without any mention of counsel's diligence.

-10-

This is not a case, as previously

stated, of the k..owing and intentional use

of perjured testimony by the prosecution.

Rather, it is a case, in which evidence

newly discovered, after trial, previously

unknown to the prosecution and the defense,

reveals that the government witness

Pennington, whose credibility was essential

to sustain petitioner's conviction, testi-

fied falsely in denying prior criminal

convictions. Rule 33, Federal Rules of

Criminal Procedure, provides: "The court

on motion of a defendant may grant a new

trial to him if required in the interest

of justice..." Where, as in this case,

the Government's case must stand or fall

on the jury's belief or disbelief of one

witness, his credibility is subject to

close scrutiny. Gordon v. U.S., 343 U.S.

414, 417, 73 S.Ct. 369, 372, 97 L.Ed 447

(1953). Id. at 844.

Defense counsel in the instant case may have

been suspicious of some memory damage resulting

-11-

from the accident, just as Atkinson's defense

counsel may have suspected a stronger motive for

the witness's testimony. However, once the

witness denied the matter, counsel could do no

more. There was plainly no lack of diligence

in either case. Cé¢. United States v. Dean,

647 F.2d 779, 782-S (8th Cir. 1981) (While

condemning defense counsel's delay in not bring-

ing rumors of juror bias to the attention of the

court during trial, Court of Appeals noted that

he had no direct proof until after the verdict,

and reversed denial of the motion for a new

trial.)

Also, if the government had been aware

that Meiselman's memory had been damaged, it

had an affirmative dury to correct his false

denial. C.f. Giglio v. United States, 405 U.S.

150, 92 S. Ct. 763 (1972). It may also have

had a duty to disclose this knowledge to the

defense as exculpatory evidence. United States

v. Agurs, 427 U.S. 97, 96 S.Ct. 2392 (1976).

Meiselman's concealment was the cause of the

non-disclosure, not lack of diligence by the

petitioner.

-12-

By the term "concealment" the petitioner

does not mean to impart intent on the part of

the witness to mislead the court. However,

due to the unusual nature of the damage to

the head of the witness and to his memory,

it is not apparent that he has the difficulty

unless one had the opportunity to verify the

"alleged facts"stated by the witness from his

faulty memory with reality, in order to find

that the witness was not telling the truth,

even though the words were spoken with great

conviction and in a “friendly, talkative...

quite verbal" manner, according to Dr.

Rothfarb. In point of fact, Dr. Rothfarb

indicates emphatically that Meiselman has

completely convinced himself that his memory

is intact and accurate.

By refusing tc question Dr. Rothfarb,

to order an examination of Meiselman, or even

to conduct a hearing on the issue the District

Court Judge implies that he is still convinced

of the credibility of the testimony of the wit-

ness, including his memory; despite any degree

of diligence on the part of petitioner's counsel.

-13-

C. “The evidence is material and not

Mercly cumulative or impeaching."

As noted above, Meiselman's testimony

formed the very heart of the Government's case

against the petitioner. His testimony, based

on his memory, was that the petitioner had

instructed him not to attribute some depusits

to income was not corroborated by other evidence

and was contradicted by the petitioner's own

testimony. However, Meiselman's credibility

was not otherwise attacked.

It is difficult to imagine evidence more

material in these circumstances than Dr.

Rothfarb's impartial findings as to Meiselman's

incapacity. The findings raise questions as to

whether Meiselman should have been allowed to

testify at all. As the Court of Appeals noted

in United States v. Benn, 476 F.2d 1127 (D.C.

Cir. 1973), the competency of brain damaged or

retarded witnesses presents a particularly

difficult problem for both the judge and the

jury, fn which psychiatric examinations may be

of assistance.

The competency of the witness to

-14-

testify before the jury is a threshold

question of law committed to ‘he trial

court's discretion. It remains for the

jury, of course, to assess the credibility

of the witness and the weight to be given

her testimony. Competency depends upon

the witness' capacity to observe,

remember,and narrate as well as an

understanding of the duty to tell the

truth. It also requires an assessment

of the potential prejudicial effects of

allowing the jury to hear the testimony.

Mental retardation may be so severe,

capabilities so impaired, and the

testimony so potentially prejudicial

that it should be barred completely

by the judge. Or there may be sufficient

indications of a witness’ capacity and

of the reliability of her testimony

that it should be heard and assessed

by the jury, albeit with a cautionary

instruction.

The dangers which must be consid-

-15-

ered in determining whether a mentally

retarded (witness) is a competent

witness must also be considered by the

jury in assessing her credibility,

particularly since “the jury's estimate

of the truthfulness and reliability of

a given witness may well be determin-

ative of guilt or inmocence. .. ."

The jury may be aided in its task by

the results of a psychiatric examination,

even when such an examination is not

necessary to the judge's determination

of competency. When an examination

should be ordered to aid the jury is

also a judgment, involving a balancing

of need against dangers, which is

committed to the discretion of the

trial judge. Here, the strong

indications of reliability of the

(witness') testimony weigh heavily

against the need for an examination.

Also, the jury was not left to make

its credibility decision without

information as to the witness' defect;

-16-

it had the frank and comprehensive

testimony of the girl's father to

assist it. In these circumstances,

we cannot say that the trial judge

erred in failing to order a

psychiatric examination of the

witness to aid the jury. Id.at

1130-1 (footnotes omitted).

Here, in contrast, neither the judge nor

the jury was afforded the opportunity at the

petitioner's trial to consider the impact of .

Meiselman's disability on his ability to

remember or to testify truthfully.

Nor can the evidence be said to be

cumulative or merely impeaching. In Amos v.

United States, 218 F. 2d 44 (D.C. Cir. 1954),

the defendant moved for a new trial based upon

the testimony of a previously unavailable

witness who would have supported the defendant's

trial testimony that he had acted in self-

defense. The Circuit Court reversed the denial

of his motion for a new trial.

We think a new trial should have

been granted. We have held that newly

-17-

discovered evidence which is merely

cumulative does not require a new trial.

Thompson v. United States, 88 U.S. App.

D.C. 235, 188 F.2d 652. But that

principleshould not be applied where,

as here, a disinterested witness

becomes available who can surply

evidence of vital importance and the

only similar evidence at the trial was

that of the defendant himself.

The same analysis applies here. Dr. Rothfarb

was a disinterested witness whose testimony

was of vital importance to the defense and

was not available at trial.

The credibility of the chief witness had

not been seriously attacked during the trial

because the damage to his brain was not ap-

parent as has been noted previously. There-

fore an attack on the witnesses credibility in

the motion for a new trial would be fresh and

most damaging to the entire foundation of the

government case and not merely an “additional

part of a cumulative attack on a witnesses's

-18-

credibility". See United States vy. Gilbert,

668 F.2d 94 (2nd Cir. 1981).

Accordingly, the District Court erred

in holding that the evidence was not

material.

D. “It will probably result in

an ac Giteal upon retrial of

the Terendant

As noted in the previous section, Dr.

Rothfarb's findings might have led a

trial judge to disqualify Meiselman as a

witness. United States v. Benn, supra.

If Meiselman were disqualified as a wit-

ness, the Government would have no proof

whatsoever that the petitioner had

willfully attempted to evade his income

taxes in the years 1972, 1973 and 1974.

Exclusion of the testimony of the chief

government witness, Meiselman, would

surely have led to the acquittal of the

petitioner. Inclusion of Meiselman's

testimony along with the doctor's would

greatly shift the weight of credible evidence

to favor the petitioner. It may be useful

-19-

to compare Zeigler v. Callahan, _F.2d_ (ist

Cir. 1981) (No. 81-1015, September 22, 1981)

with Chavis v. North Carolina, 637 F.2d 213

(4th Cir. 1980) as both are concerned with the

likely impact of psychiatric evidence on the

jury. In Chavis, as in the instant case, the

report concerned the veracity of the government's

principal witness. The Fourth Circuit found a

due process violation in the non-disclosure and

reversed.

We do not doubt that Hall's

psychiatric report if it had been made

available to defense counsel might

have had a substantial impact on the

outcome of the case. If the jury had

known that Hall lacked the ability to

recall accurately events, about which

he testified with such exquisite detail,

that had occurred at least one and one-

half years prior to the time that he

was testifying. That Hall possessed

limited intelligence was a fact which

the jury could properly have known for

its effect on his credibility. See

-20-

United States v. Society of Independent

Gasoline Marketers of America, 624 F.2d

461, 469 (4th Cir. 1980). Nor do we

doubt that his statement in the report

that he did not participate, although

present on the scene, in the burning

of the store when he testified to the

contrary at trial would surely shake

his credibility. Id. at 224.

In Zeigler, however, unlike the instant case and

unlike Chavis, the Government's case did not

stand or fall on Lincoln's credibility and thus

the psychiatric report did not create a reason-

able doubt which did not otherwise exist.

Zeigler, supra, _- F.2d at __—§s- (Slip Op. at 26).

It must be emphasized that Dr. Rothfarb's

testimony would go directly to the truth and

veracity of Meiselman and the accuracy of his

memory. Even if it is viewed in this light as

"merely impeaching", it is so vital to the truth

finding function of the jury as to mandate a new

trial.

It is generally within the sound

-21-

discretion of the trial court to grant

or deny a new trial on the ground of

alleged newly discovered evidence

which is merely cumulative or impeach-

ing. United States v. Anderson, 532

F.2d 1218, 1230 (9th Cir. 1976); United

States v. Cozzetti, 469 F.2d 684 (9th

Cir. 1972). Ordinarily, newly dis-

covered evidence affecting a witness's

credibility at trial "will not support

a motion for a new trial, because new

evidence which is'merely cumulative

or impeaching' is not, according to

the often-repeated statement of the

courts, an adequate basis for the

grant of a new trial". Mesarosh v.

United States, 352 U.S. 1, 9, 77 S.Ct.

1, 5, 1 L. Ed. 2d 1, S (1956).

However, it is within the Court's

power to grant a new trial if it appears

that, had the impeaching evidence been

introduced, it is likely that the jury

would have reached a different verdict.

-22-

United States v. Davila, 428 F. 2d 465

(9th Cir. 1970); United States v. Lewis,

338 F.2d 137 (6th Cir. 1964); cert.

denied, 380 U.S. 978, 85 S.Ct. 1342,

14 L.Ed.2d 272, Winer v. United States,

228 F.2d 944 (6th Cir. 1956), cert.

denied, 351 U.S. 906, 76 S.Ct. 695,

100 L.Ed. 1442.

The newly discovered evidence

herein is certainly not of a cumulative

nature, but it is definitely impeaching.

However, under the circumstances of

this case, it is impeaching evidence

with serious implications regarding

the truth and veracity of Rapisardi's

testimony, a factor which had to weigh

heavily on the minds of the jurors

during their deliberation. This Court

feels very strongly that the additional

piece of impeaching evidence could have

been the proverbial "straw that broke

the camel's back" with respect to

Rapisardi's credibility, which would

-23-

have almost assuredly resulted in a

different verdict by the jury. Thus it

is my firm belief that under the facts of

the instant case, the ordinary rule, as

espoused in Mesarosh v. United States,

supra, for not granting a new trial is

inapplicable, and that "the evidence

here does not come within the general

interdiction that the newly discovered

evidence which is merely impeaching is

ordinarily insufficient to warrant a

new trial". United States v. Gordon,

246 F. Supp. 522 (D.D.C. 1965).

United States v. Lipowski, 423 F. Supp.

864, 867 (D.N.J. 1976)

Thus, in the circumstances of the petition-

er's case, the district court erred in under-

estimating the probable effect of the proferred

evidence, and in denying the motion for a

new trial.

-24-

II. The District Court Should Have Applied The

Standard of Larrison V. United States,

t ir. ') And Granted A

New Trial.

As has veen demonstrated, Meiselman

testified falsely when he denied memory damage.

In Larrison v. United States, 24 F. 2d 82, 87

(7th Cir. 1928), a less stringent burden of

proof is required where a material witness

testifies falsely. The First Circuit had

recognized the applicability of the Larrison

standard in United States v. Wright, supra,

625 F.2d at 1020.

In Larrison, the Seventh Circuit stated

that when the motion for new trial is

based on an allegation that a material

witness testified falsely at trial,

a new trial should be granted if: (1)

the court is “reasonably well satisfied"

that the testimony was false, and (2)

without the false testimony the jury

“might have reached a different

conclusion.” Id. at 87. Although

dicta in at least one of our opinions

sugguests that this circuit has not

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or from intending to testify falsely.

decided whether to apply the Larrison

rule, see In re United States, supra, >,

565 F.2d at 173 nu 3, we have suggested

that the rule is applicable in cases

in which the new evidence demonstrates

that the testimony in question was

deliberately false. See Pelegrina v.

United States, supra, 601 F. 2d at 21,

United States v. Street, 570 F.2d 1, 4

(lst Cir. 1977); United States v. Strauss,

443 F. 2d 986, 989-90 (1st Cir.), cert.

denied, 404 U.S. 851, 92 S.Ct. 87, 30

L.Ed.2d 90 (1971).

The petitioner concedes that Meiselman's

false denial might not have been perjurious per

se as his disability presumably prevented him

from realizing that he was testifying falsely

However,

the ignorance of the witness that he was

testifying false.y should not be fatal to a

claim for a new trial where, as here, the

testimony was both critical to the government's

case and was actually false. C.f. United States

o26-

v. Turner, 490 F.Supp. 583, 602-3 (E.D. Mich.

1979) (witness' ignorance of bargain communicated

only to counsel was not fatal to motion for a

new trial).

Here Meiselman's denial of damage to his

memory was actually false; and his other testi-

mony which was based upon his damaged memory

at the very least might have been false.

Clearly, without his false denial of disability,

the jury most assuredly might have reached a

different result. Furthermore, if his testimony

as to his allegedly exact memory of the

petitioner's instructions to him was excluded

either as false or as being too unreliable, a

different verdict surely would have been reached

and the petitioner would not have been incarcer-

ated in the Federal Prison at Lewisburg,

Pennsylvania.

Hence, under the Larrison standard, the

District Judge erred in denying the motion for

a new trial.

°97-

III. The Motion For A New Trial Should Be

Remanded For An Evidentiary Hearing.

The summary denial of the motion for a new

trial makes it difficult for counsel and for the

reviewing court to determine why the District

Judge denied the motion or whether that decision

was appropriate.

Indeed, a hearing would have assisted the

trial judge in assessing the materiality and the

probable impact of Dr. Rothfarb's testimony on

anew jury. United States v. Disston, 582 F.2d

1108, 1112 (7th Cir. 1978); United States v.

Rhodes, 556 F.2d 599, 601-2 (1st Cir. 1977).

It has been assumed that Meiselman had no

knowledge of his memory defect and testified

without harmful intent. However, if the

District Court had granted a new trial or at

least an evidentiary hearing an entirely new

attack on the credibility of the chief govern-

ment witness would be unavoidable - and it

would go to the heart of the characterization

of Meiselman,by the government as a witness

without a reason for testifying against the

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petitioner, except to tell the unbiased

"truth".

This unavoidable attack would be required

by Dr. Rothfarb's report, in which the

doctor analyzes Meiselman and describes him

as “embittered ... obsessional ... ego-

centric .. . schizoid and sociopathic”.

Accordingly, at a minimum, this impartial

and independent report raises questions that

require that the case be remanded for an

evidentiary hearing on the mental capacity and

stability of the chief government witness.

To fail to do so, would be to deny the

petitioner his right to due process of law,

as guaranteed under the Fifth Amendment of

the United States Constitution.

By the most elementary consideration of

Meiselman's damages capacity to recall, he

cannot be presumed competent to testify. See

United States v. Lightly, 677 F.2d 1027 (4th

Cir. 1982), Fed. Rules Evid., Rule 601.

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IV. This Court Must Establish More Clearl

Defined Parameters To Guide The Sistrict

Courts As To What Will Constitute

Sufficient Evidence to Satisty The

Requirements Of United States v. Wrigh .

upra.

In the petitioner's case the chief

government witness is shown for the first

time to be mentally defective on post-trial

examination by an independent doctor. This

evidence was rejected by the court without

a hearing - raising the issue of whether

there is any set of facts that cannot be

ignored in a motion for a new trial based

upon newly discovered evidence.

CONCLUSION

For all of the above reasons, petitioner,

Gordon S. Mirkin, respectfully requests this

Court to grant a Writ of Certiorari to the First

Circuit Court of Appeals.

Respectfully submitted,

GORDON S. MIRKIN, Pro Se

4 Buchanan Road

Marbleheed, MA 01945

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