of a local union in the Johnstown area. There was renewed inquiry about a dispute between the defendant's local and the international resulting in the suspension of the local, as the result of the expulsion, inferentially improper, of an individual from the union. While the cross-examination terminated the inquiry, the government made an offer to call witnesses present in the courtroom for the purpose of showing that if the questions asked were damaging to defendant's cause, they were not idle. If the matters touched on by government counsel would not ordinarily have been proper subjects of inquiry, they became so because the manner of the defendant's union activities had been opened by him. He could not then foreclose the interrogation to show that the impression he had created was false. Cross-examination as to whether he had employed unlawful or abusive methods was justified and relevant to the subject matter of the direct examination.
Further complaints are made regarding cross-examination concerning defendant's receipt of money from contractors other than Rider for the performance of services, his connection with the leasing of heavy construction equipment by his wife to local contractors, his private interest in other nonunion operations and the union's payment of Mrs. Stirone's traveling expenses when she accompanied her husband on a business trip for the union. Some of these topics, for instance, the defendant's business activities, were merely elaborations of matters touched upon in direct examination since the defendant had been presented as a union man and it was open to determine that he was not exclusively of that calling. Cf. Branch v. United States, 1948, 84 U.S.App.D.C. 165, 171 F.2d 337; see also Alford v. United States, 1931, 282 U.S. 687, 51 S. Ct. 218, 75 L. Ed. 624. The business trip was an important item in the defense bearing on defendant's alibi and he himself first brought out the union's payment of his wife's expenses. However, the matters were obviously developed for the additional purpose of showing the defendant had done things which a union official should not do, thus directly affecting his character, and for reasons which have been stated were proper for that purpose. Cf. United States v. Marino, 2 Cir., 1956, 234 F.2d 118, certiorari denied, 1956, 352 U.S. 836, 77 S. Ct. 54, 1 L. Ed. 2d 54.
Other errors are assigned with respect to the cross-examination as to items of income appearing in defendant's 1937 and 1938 income tax returns, his interest in a dairy farm and other matters. On these subjects, defendant was exposed to a type of detailed questioning not different from that used by his counsel in examining some of the government witnesses for the purpose as stated of testing memory. On direct examination the defendant had displayed an apparently good memory for many small, unimportant matters far removed in time from the date of the examination. The reliability of his recollection was as important in the case as was that of the government's witnesses.
The foregoing account does not exhaust the defendant's assignments of errors which he says are merely illustrative. There is no need to itemize. The court does not agree with his contention that the sole purpose and effect of the cross-examination was to humiliate and degrade the defendant and increase the probability of conviction for crimes not charged. On the contrary, the court is satisfied that the defendant was convicted of the offense laid in the indictment and that the verdict is supported by substantial, credible evidence.
There is no basis for consideration of the defendant's fifty-fourth assignment of error. On September 25, 1957, a month and three days after the expiration of the period allowed defendant for filing reasons in support of his motion for a new trial, a paper entitled 'Defendant's Amendment to Motion for New Trial' was filed setting forth the following statement:
'The distribution of a handbook containing instructions for the jurors in this case was prejudicial to the defendant. On September 24, 1957, counsel for the defendant learned that Genevieve Barr, Chief Deputy Clerk of the District Court, distributed and delivered to each juror on or about June 4, 1957 a pamphlet or handbook containing instructions for jurors. The said handbook contains numerous inaccuracies which prejudiced the right of the defendant to a fair trial. United States v. Gordon, 7th C.C.A. (Major, J), July 16, 1957.'
The caption of defendant's paper could not cause it to relate back to the time of the filing of the original motion and supporting reasons because the limitation of time provided for in Rule 33, F.R.Cr.P., 18 U.S.C.A., is mandatory. Rule 45(b)(2), F.R.Cr.P., 18 U.S.C.A. The purported amendment must therefore be treated as a motion made on the ground of newly discovered evidence since it was not presented within the period permitted by the court during the five days following the verdict. United States v. Bertone, 3 Cir., 1957, 249 F.2d 156, 159; see United States v. Smith, 1947, 331 U.S. 469, 67 S. Ct. 1330, 91 L. Ed. 1610, rehearing denied, 1947, 332 U.S. 784, 68 S. Ct. 28, 92 L. Ed. 368. Two of the conditions which must be satisfied before the court may award a new trial on the basis of newly discovered evidence are (1) that the evidence must in fact be newly discovered and (2) that there be facts alleged from which the court may infer diligence on the part of the movant in discovering such evidence. United States v. Bertone, supra; United States v. Rutkin, 3 Cir., 1953, 208 F.2d 647, 649. By the motion, the court is told that counsel for defendant first learned on September 24, 1957, of the distribution of the pamphlet to the jurors and by a stipulation that counsel would, if necessary, so testify. This court accepts these statements as sufficient compliance with the first condition mentioned above, but it is obvious from the moving papers that there has been no showing of diligence on the part of the defendant in discovering the facts which are the basis of his motion. If it was error to distribute handbooks to the jurors, it was error to do so before the handing down of the opinion in United States v. Gordon, 7 Cir., supra. The distribution of such handbooks in civil and criminal cases has been common practice in this court for seven years and chief counsel for defendant, a distinguished, experienced member of the bar of this court, is chargeable with knowledge of its customs. The argument that the court may without regard to time award a new trial 'in the interest of justice' must be rejected. United States v. Smith, supra.
Other points preserved by argument or brief do not require written analysis. The motion for arrest of judgment is denied without discussion since the sufficiency of the indictment was upheld by Judge Sorg on defendant's pre-trial motion to dismiss. TCF Film Corporation v. Gourley, 3 Cir., 1957, 240 F.2d 711. For the reasons stated in this opinion, the motion for acquittal or in the alternative for a new trial will be denied.
An appropriate order is entered.