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United States v. Clark

decided: February 2, 1972.

UNITED STATES OF AMERICA
v.
CALVIN CLARK, APPELLANT



Adams, Ganey and Max Rosenn, Circuit Judges.

Author: Ganey

Opinion OF THE COURT

GANEY, Circuit Judge.

This is an appeal from the denial of appellant's motion pursuant to Rule 33 of the Federal Rules of Criminal Procedure, based on grounds of newly discovered evidence. Appellant claims this evidence shows that the prosecutor, knowing that it was false, failed to challenge or correct certain testimony of a police officer.*fn1 The prior motions for judgment of acquittal and a new trial after a jury found him guilty of narcotic violations were affirmed by this court. 425 F.2d 827 (C.A.3, 1970), cert. denied 400 U.S. 820, 91 S. Ct. 38, 27 L. Ed. 2d 48.

The testimony on which the prosecution relied in proving appellant guilty came mainly from two Pittsburgh, Pennsylvania police officers, William J. Seifer and John Robert Williams. They testified to having encountered appellant on the cold night of March 15, 1967, in a deserted, unlighted and debris-strewn area of Pittsburgh, and their subsequent involvement with two wax cartons containing a large supply of heroin. These cartons were inside a paper bag which they had seen in the appellant's possession. Immediately before the encounter these officers were cruising in a patrol car. Seifer was driving the car while Williams was sitting alongside him in the front seat.

At the trial of the case Officer Williams, on direct examination, testified that Officer Seifer and he had stopped appellant in this deserted area of Pittsburgh, in order to question him. Later, when he was confronted with his grand jury testimony which defense counsel secured as a result of his request to the court, he then stated that the appellant had stopped the patrol car in which he and Seifer were riding on that night, which statement conformed to his testimony before the grand jury. He further testified that while he reviewed his testimony before the grand jury with Assistant United States Attorney Zurawsky, he also testified he did not go over other testimony with Mr. Zurawsky in preparation for trial.

The pertinent parts of his testimony are as follows:

Q. You never discussed this case, then, and what you would testify to with anyone, is that correct?

A. I discussed it only to the extent of reading what I had said in the grand jury.

Q. Then you have read a transcript of some other testimony that you gave, is that correct?

A. Some other testimony that I gave?

Q. Yes.

A. No. This is the first time.

Counsel for the appellant never pursued this line of questioning as to what exactly was said in other testimony by way of discussion with Mr. Zurawsky, but ...


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