# Petition — Mirkin v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1982
- **Citation:** 459 U.S. 865

## Text

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

-28-

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0555%3A1. Public record. Not legal advice.