APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX, CHRISTIANSTED JURISDICTION (D.C. Crim. No. 97-72).
Van Dusen, Rosenn and Weis, Circuit Judges.
VAN DUSEN, Circuit Judge.
Defendants-appellants contend that the District Court of the Virgin Islands, Division of St. Croix, erred in denying their motion for a new trial.*fn1 Rejecting this contention, we affirm the district court.
On August 13, 1973, defendants were found guilty of first degree murder, first degree assault, and robbery.*fn2 The jury which returned the guilty verdicts had deliberated for nine days.*fn3 The jurors were polled individually and each acknowledged the verdict as his own. Two days later, defendants filed a motion requesting a new trial on the ground that the verdict had not been freely assented to by all the jurors. The motion was supported by the affidavits of two jurors, Rodgers and Allick, who represented that their verdict was the result of certain "pressures,"*fn4 but the trial judge found that these affidavits were "involuntarily made out of fear" engendered by the President of the Virgin Islands Senate (formerly related by marriage to Allick and "friendly with all of the defendants, save Raphael Joseph" - p. 24 of opinion cited at note 1), Mario Moorhead and John Ross, who were "sympathizers of the defendants." See I-B at page 8 below, and page 26 of Memorandum Opinion cited at note 1 above. These same two affidavits were presented to Chief District Judge Almeric Christian, who ordered a post-trial hearing to inquire into the allegations that the verdict was influenced by "unauthorized communications with the jury during its sequestration and deliberation." Report of the Special Master, Crim. No. 97/1972 at 1. Since neither the trial judge nor Chief Judge Christian was available to conduct the hearing,*fn5 the parties consented to the appointment of a special master.*fn6 Upon conclusion of the hearing,*fn7 the master submitted to the trial judge a report containing both findings of fact and conclusions of law. On September 24, 1973, the trial judge, determining that the special master's findings were not clearly erroneous, entered an order denying the motion for a new trial. The September 24, 1973, order was appealed, along with the judgments of conviction. Government of the Virgin Islands v. Gereau, et al., 502 F.2d 914 (3d Cir. 1974). This court then vacated the order denying a new trial and remanded so that the trial judge could review the record of the hearing de novo "and enter findings without reliance on those made by" the special master. Id. at 937. Pursuant to the mandate of this court, the trial judge proceeded to make his own findings from the record compiled at the hearing before the special master. No additional hearing was had.*fn8 On the basis of his de novo review, the trial judge entered an opinion and order which set forth his factual findings and again denied defendants' motion for a new trial. This appeal followed.
Defendants press two arguments in seeking to persuade us that the trial court's refusal to grant a new trial was an abuse of "its sound discretion."*fn9 First they attack certain of the trial judge's fact findings as unsupported by the evidence adduced before the special master.*fn10 Second they contend that the Government had the burden of proving that none of the incidents which formed the basis of the new trial motion was prejudicial to the defendants. This burden, they claim, was not sustained.
I. FINDINGS OF THE TRIAL JUDGE
Where, as here, the findings of the trial court are based on non-demeanor evidence, there is a diversity of views as to the proper scope of appellate review. Some adopt the position that the "clearly erroneous" standard of F.R. Civ. P. 52(a) should apply to all findings of fact; others espouse the practice of de novo review on the theory that the trial court has no advantage over the appeals court in assessing inanimate evidence. Compare 9 C. Wright & A. Miller, Federal Practice and Procedure, §§ 2585-2587 (1971), with 5A J. Moore, Federal Practice, para. 52.04 (2d ed. 1974). Our circuit has not, however, taken either of these approaches.
Some of the past decisions of this court have reviewed cases tried solely on papers, without oral testimony, differently, depending on whether the facts set forth in the papers are stipulated or disputed. In the former circumstance, it was recognized that "the Court of Appeals may, within certain limits, substitute its factual conclusions and inferences for those of the" trial court. Demirjian v. C.I.R., 457 F.2d 1, 4 (3d Cir. 1972). See also Consolidated Sun Ray, Inc. v. Lea, 401 F.2d 650, 659 n.34 (3d Cir. 1968), cert. denied, 393 U.S. 1050, 21 L. Ed. 2d 692, 89 S. Ct. 688 (1969). In the latter situation, the court has scrutinized facts not dependent on demeanor evidence according to the clearly erroneous standard. United States v. United Steelworkers of America, 271 F.2d 676, 685 & 688 (3d Cir.), aff'd, 361 U.S. 39, 4 L. Ed. 2d 12, 80 S. Ct. 1 (1959).*fn11
The present case is sufficiently distinct from both Demirjian and United Steelworkers that neither case is necessarily controlling.*fn12 Cf. Orient Mid-East Lines, Inc. v. A Shipment of Rice, 496 F.2d 1032, 1037-38 and n.8 (5th Cir. 1974); Gulf Shores Leasing Corp. v. Avis Rent-A-Car System Inc., 441 F.2d 1385, 1388 n.1 (5th Cir. 1971). On the basis of Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir. 1975), and Congoleum Industries, Inc. v. Armstrong Cork Co., 510 F.2d 334, 336 at n.3 (3d Cir. 1975), which are our two most recent decisions on this issue, we affirm all the challenged findings of the trial judge except two*fn13 on the ground that we are "in as good a position to determine the question as is the district court."*fn14
B. Affidavits of Allick and Rodgers
After careful review of the record, we have concluded that these findings of the trial judge are fully supported by the evidence:
"It is my findings that jurors Allick and Rodgers were coerced by Messrs. Ross and Moorhead into making the affidavits, that the affidavits were involuntarily made out of fear by which both Allick and Rodgers were possessed."
See trial judge at 26 and notes 4 and 13 above.
In evaluating the testimony of Allick, the trial judge made these comments, inter alia, concerning pressures on Allick to change his verdict and his fears about returning to the community at the end of the trial:
(1) ". . . I give considerable importance to Allick's post-verdict contacts with friends of the defendants. I find, as will be more fully discussed below, that Allick was subjected to pressures to change his verdict. His testimony must therefore be scrutinized, and I give considerable weight to his recently acquired interest to have the verdict changed."
(2) ". . . I find that Allick also had fears about returning to the community and particularly to his friends in Frederiksted."*fn15
With reference to Rodgers' credibility, the trial judge stated:
(1) "Throughout the hearing for a new trial, juror Rodgers displayed a poor power of recollection, and much of his testimony was either vague, incomprehensible, or inconsistent. For that reason plus the suspicious circumstances surrounding the taking of his ...