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UNITED STATES v. LEBOVITZ

February 29, 1984

UNITED STATES OF AMERICA
v.
ROBERT A. LEBOVITZ



The opinion of the court was delivered by: MARSH

This matter is before the court on the defendant's Motion for New Trial filed on December 1, 1983. After receiving the government's response to said motion, a hearing was held on January 24, 1984.

 The exhaustive history of this criminal litigation began with an indictment filed on September 19, 1980. Said indictment charged the defendant with one (1) count of conspiracy pursuant to 18 U.S.C. § 371 and thirteen (13) counts of mail fraud pursuant to 18 U.S.C. §§ 1341 and 2.

 A jury trial began on January 15, 1981 and it was concluded with a verdict of guilty on all counts on January 28, 1981. A judgment and commitment order dated March 5, 1981 provided that the defendant, as to count 1, was to serve a term of imprisonment of one (1) year and one (1) day and was directed to pay a fine in the amount of $ 7,500 and the costs of prosecution.

 As to counts two (2) through fourteen (14), the mail fraud counts, the defendant was sentenced to the custody of the attorney general or his authorized representative for a period of imprisonment of one (1) year and one (1) day and was to pay a fine in the amount of $ 500 on each count.

 The sentences of imprisonment at counts two (2) through fourteen (14) were to run concurrently with each other and concurrently with the sentence imposed as to count one (1). The total fine was in the amount of $ 14,000.

 The judgment and commitment order was the subject of a direct appeal filed on March 11, 1981 and was affirmed in an opinion dated January 21, 1982. See United States v. Lebovitz, 669 F.2d 894 (3d Cir. 1982), cert. denied, 456 U.S. 929, 102 S. Ct. 1979, 72 L. Ed. 2d 446 (1982).

 The facts of this somewhat complex mail fraud/conspiracy have been set forth in this court's unpublished opinion (dated November 17, 1982, Docket No. 79) and were briefly reiterated in the Court of Appeals opinion, United States v. Lebovitz, at 895. *fn1"

 Certiorari was denied on November 28, 1983 after petition to the United States Supreme Court. Thereafter, the United States Court of Appeals for the Third Circuit reissued a judgment order in lieu of a formal mandate to be treated in all respects as a mandate on December 1, 1983 affirming this court's opinion and order of November 17, 1982. Therefore, this court now has jurisdiction to dispose of the present motion for new trial.

 Defendant has set forth ten (10) grounds for relief in the motion presently before the court. Although a number of said grounds were raised in prior appeals and others are untimely as not being grounds based on newly discovered evidence, *fn4" all will be addressed to some degree in this opinion.

 Motion for New Trial

 In the first instance, it should be noted that the court has broad powers to grant motions for new trial if the court believes that a legitimate miscarriage of justice has occurred. *fn5" However, motions for new trial based on the weight (sufficiency) of the evidence are not favored and are to be granted sparingly, *fn6" and only in exceptional cases when the evidence preponderates heavily against the verdict and where a gross injustice would occur if the court failed to act. *fn7"

 Great caution should be utilized when a motion for new trial is based on newly discovered evidence. Wright, Federal Practice and Procedure : Criminal 2d § 557 (1982). Five factors must be weighed by the district court in determining a motion for new trial based on newly discovered evidence:

 
"(a) the evidence must be in fact, newly discovered, i.e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on, must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal."

 United States v. Herman, 614 F.2d 369, 371 (3d Cir. 1980), citing United States v. Ianelli, 528 F.2d 1290 (3d Cir. 1976) and United States v. Howell, 240 F.2d 149, 159 (3d Cir. 1956). Cf. 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).

 These five factors constitute what is commonly known as the "Berry Rule." *fn8" Factor five of the "Berry Rule" incorporates a probability standard. This probability standard provides that a new trial is required only where newly discovered evidence would "probably" change the result. This is the general standard usually applied to newly discovered evidence. Where there is an assertion that the evidence at the trial was perjured, however, a different test is applied.

 The Larrison Rule

 This test entails a stricter standard to be applied where there is newly discovered evidence of false testimony and is referred to as the "Larrison Rule." See Wright, Federal Practice & Procedure : Criminal 2d 557.1 (1982). The "Larrison Rule" specifically holds that when a contention has been made that a government witness testified falsely at trial, the test should be:

 
"(a) The court is reasonably well satisfied that the testimony given by a material witness is false. (b) That without it a jury "might" have reached a different conclusion. (c) That the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial."

 Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928).

 The "Larrison Rule" was specifically adopted by the United States Court of Appeals for the Third Circuit, in United States v. Meyers, 484 F.2d 113 (3d Cir. 1973).

 Factor two of the "Larrison Rule" incorporates a might or possibility standard. This "might" standard is that a new trial is required where without the false testimony the jury "might" have reached a different conclusion. See 8A Moore's Federal Practice § 33.06[1] (1980).

 The "Berry Rule" as modified by the "Larrison Rule," when applied to the case sub judice, leads us to the conclusion that defendant has not met the Larrison test. This ...


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