MEMORANDUM AND ORDER
Ellis William Matthews, Jr. and Jerome Artis were tried before a jury and found guilty on April 7, 1976 of all four counts of the indictment charging them in Counts I, II and III with bank robbery and larceny and in Count IV with conspiracy to commit bank robbery. Both defendants filed post-trial motions, which were denied by this Court. 417 F. Supp. 813 (E.D. Pa. 1976). Defendant Matthews has now filed a motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure
based on evidence which he alleges is newly discovered. For the reasons we will discuss in this opinion, we deny the motion.
In Matthews' motion for a new trial he alleges that on August 16, 1976 his counsel received an unsolicited signed and notarized letter from Jonathan Perry, a codefendant. Perry, who pleaded guilty to two counts of the bank robbery charge in the indictment, had not been sentenced at the time of trial. In his letter Perry states that although he had intended to testify at Matthews' trial as a witness for the defense, "some things were told to me by my attorney that sort of caused me to change my intentions for selfish reasons." Perry states that Matthews did not participate in the bank robbery. He identifies another person as the one who accompanied him, states that Matthews was mistakenly charged with the crime, and claims that the person who did participate with him in the robbery was let go by the police.
The defendant alleges that Perry's letter is newly discovered evidence which requires the grant of a new trial pursuant to Federal Rule of Criminal Procedure 33. In order to grant a Rule 33 motion, which is directed to the trial court's discretion, our Third Circuit Court of Appeals in United States v. Iannelli, 528 F.2d 1290, 1292 (3d Cir. 1976), reaffirmed the following five requisites: (1) the evidence must be, in fact, newly discovered, i.e., discovered since the trial; (2) facts must be alleged from which the court may infer diligence on the part of the movant; (3) the evidence relied on must not be merely cumulative or impeaching; (4) the evidence must be material to the issues involved; and (5) the evidence must be of such a nature that at a new trial it would probably produce an acquittal. United States v. Howell, 240 F.2d 149, 159 (3d Cir. 1956). Accord, United States v. Meyers, 484 F.2d 113 (3d Cir. 1973); United States v. Bertone, 249 F.2d 156, 160 (3d Cir. 1957); United States v. Nigro, 253 F.2d 587 (3d Cir. 1958).
With respect to the first requirement, it is clear that the allegations contained in Perry's letter do not constitute newly discovered evidence. In the defendant's Petition for Writ of Habeas Corpus Ad Testificandum and Memorandum filed on April 2, 1976, the defendant stated that Perry was an "alleged coconspirator and eyewitness whose testimony is crucial to the defense of this matter" and that "Perry will testify that Matthews was not a participant in the alleged robbery." At trial, the defendant called Perry to testify that Matthews had not participated in the bank robbery. Perry, however, took the Fifth Amendment and did not testify.
Since Perry's exculpatory testimony was actually known to the defendant at the time of trial, it cannot be considered evidence that was newly discovered. United States v. Iannelli, 528 F.2d at 1293; United States v. Bujese, 371 F.2d 120 (3d Cir. 1967). See also United States v. Granger, 504 F.2d 585 (9th Cir. 1974). In United States v. Jacobs, 475 F.2d 270, 286, n. 33 (2d Cir. 1973), the Court said:
But we fully agree with the judge's alternative ground, that a court must exercise great caution in considering evidence to be "newly discovered" when it existed all along and was unavailable only because a codefendant, since convicted, had availed himself of his privilege not to testify. This is so even if, as alleged, counsel for the codefendant making a post-trial affidavit exculpating the movant had not allowed the affiant to be interviewed prior to trial.