On June 21, 1976, defendants Neil Byrne and Daniel Cahalane were convicted by a jury of conspiracy and aiding and abetting the exportation of weapons without a license in violation of 18 U.S.C. § 371 and 22 U.S.C. § 1934. After hearing argument on their post-trial motions, the Court entered judgment of acquittal on the aiding and abetting counts. Our entry of judgment of acquittal on these counts was vacated by the Court of Appeals on August 11, 1977; however, the judgment of guilty in connection with the conspiracy count was affirmed.
At trial, many hours were spent in the cross-examination of Jack Nigro, a key Government witness, concerning among other things the fact that while he was a paid ATF informant he had gone unprosecuted by the Federal government for possession of a firearm with an unlawful silencer and that while he was a paid ATF informant, he was under a state court indictment which was later discharged. The defendants were not permitted, however, to cross-examine Mr. Nigro concerning some of his checks written in the two month period following the return of the indictments, which "bounced". See United States v. Byrne, 422 F. Supp. 147, 166-67 (E.D. Pa. 1976). The Court's rulings in connection with the cross-examination of Mr. Nigro were affirmed by the Third Circuit, United States v. Cahalane, 560 F.2d 601, 607 (1977), cert. denied 434 U.S. 1045, 98 S. Ct. 890, 54 L. Ed. 2d 796, 22 Cr.L.Rpt. 4158 (1978).
Defendants now move, pursuant to Fed.R.Crim.P. 33
for a new trial based upon allegedly newly discovered evidence; contending that an undisclosed arrangement existed between Mr. Nigro and the Government. For the reasons hereinafter set forth, we have denied defendants' motion without a hearing.
In their motion, defendants contend that on April 14, 1977, an investigator employed by the defendants had a chance meeting with Mr. Nigro in a "7-11" grocery store. The investigator, in an affidavit, claims as follows:
I, Ronald Christopher, do hereby depose and say that on the evening of April 14, 1977, at 11:00 P.M., I had a meeting with Jack Nigro at a 7-11 store on Easton Road, Willow Grove. Mr. Nigro, who had previously testified as a government informant in the matter of the United States v. Neil Byrne, Et al. Mr. Nigro discussed with me his testimony during that trial and my investigation of his background. He stated that he had been confronted by agents of the government, after these agents had become aware of certain information pertaining to him, which had been developed by me during my investigation. He indicated that this information was damaging in itself and because of it he had to come clean with the government, tell them everything and make a deal. He stated that he was concerned that the defense would bring out this evidence against him during trial. He was not only concerned because he would be discredited, but was specifically concerned because his immunity did not extend to this area. He did not state what kind of deal he made, but said he was thankful that the agency that he made the deal with would not pass on the information to other government agencies. He stated that he and the government agents finally concluded that the defense was unable to analyze the evidence we had accumulated against him, because if we had we would have surely been able to get it admitted into evidence. He indicated that the government, however, was more aware of what the evidence meant and therefore forced him to "come clean". He further advised that it was fortunate that the defense team was unable to evaluate the evidence because if they had, he and I may have been fitted for cement shoes.
The granting of a Rule 33 motion is entrusted to the sound discretion of the trial court. United States v. Plum, 558 F.2d 568, 576 (10th Cir. 1977); United States v. Iannelli, 528 F.2d 1290, 1292 (3d Cir. 1976). Before granting such a motion the trial court must be satisfied: (1) that the evidence is in fact newly discovered, i.e., discovered since the trial; (2) that facts are alleged from which the court may infer diligence on the part of the defendants; (3) that the newly discovered evidence is not merely cumulative or impeaching; (4) that the newly discovered evidence is material to the issues involved; and (5) that the evidence is of such a nature that at a new trial it would probably acquit the defendants. United States v. Iannelli, id.
For the purpose of discussing the Rule 33 motion filed in this case, we are willing to assume that the first and second requirements enumerated above have been satisfied.
We are convinced, however, that the remaining three requirements have not been satisfied.
As to the third requirement, we find that this "newly discovered evidence" is both cumulative and impeaching. Assuming the truth of the allegations contained in the affidavit, the most one can infer from it is that Mr. Nigro was involved in some illegal activity, and that Government agents agreed that they "would not pass on the information to other government agencies." At best this would amount to a cumulative attempt to impeach the witness' credibility. In no way, however, does the affidavit allege a contradiction of the testimony of Mr. Nigro concerning the illegal activity of the defendants.
Mr. Nigro had been given a use immunity in connection with his testimony. He was subjected to a searching cross-examination in connection with any understanding that he had with the Government in connection therewith.
Defendants' contentions are somewhat similar to those presented in Casey v. United States, 522 F.2d 206, 207 (5th Cir. 1975), cert. denied, 426 U.S. 909, 48 L. Ed. 2d 835, 96 S. Ct. 2233 (1976), in which the defendant in a Rule 33 motion contended that a Government witness who at trial denied having made any agreement with the Government in connection with his testimony, was alleged by affidavit to have told another witness that he had made a deal with the Government for probation in exchange for his testimony. The court stated:
The motion for a new trial is no more than an effort to impeach the testimony of [the witness], and newly discovered impeachment evidence is not sufficient to justify a new trial.
Accord United States v. Solimine, 536 F.2d 703, 709 (6th Cir.), judgment vacated on other grounds, 429 U.S. 990, 97 S. Ct. 517, 50 L. Ed. 2d 603 (1976).
The fourth requirement which the defendants must satisfy before the Court should grant a Rule 33 motion is that the "newly discovered evidence" is material to the issues involved. Defendants in their brief contend that the investigator's affidavit establishes that at the time of trial Government agents were aware of the following information neither known nor disclosed to the defense:
(a) That Nigro had been involved in criminal conduct serious enough to get him "fitted in cement shoes" if its extent became known to the defense;
(b) That the defense knew that Nigro had trafficked in bad checks, but did not know about the underlying scheme;
(c) That Government investigators had learned of the Nigro bad checks discovered by the defense and had "confronted" Nigro with this information;
(d) That as a result of this confrontation, Nigro had to "come clean" and "make a deal" with the Government agents;
(e) That Nigro was "thankful" to them for protecting him; and
(f) That both Nigro and they had concluded "that the defense was unable to analyze the evidence we had accumulated against him, because if we had we would have surely been able to get it admitted into evidence."
Although this "newly discovered evidence" infers some alleged criminal conduct engaged in by the witness, it would not be admissible since there is no allegation that the witness was convicted of such alleged conduct or that it in any way concerns the illegal activities for which the defendants were being tried. We point this out because under Fed.R.Evid. 608(b):
Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. . . .