United States Attorney physically assaulted Stephen Sokol, Maker's defense attorney, in the courtroom to the extent that Sokol was intimidated and failed to provide effective assistance through the rest of the trial. This event was supposed to have taken place in the courtroom in the presence of numerous witnesses, including other defendants, defense counsel and court personnel. The trial judge did not see any such assault, and if he was not present in the courtroom he was in the adjoining judicial chamber. Nothing of the sort was commented upon by court attendants, clerks, marshals or any other party. The defendant has failed to supply any supporting evidence of any nature concerning such an incident. The court observes that defense attorney Sokol continued to provide a vigorous defense for Maker through all stages of the trial.
We find all of defendant's allegations to be meritless and without foundation. The alleged evidence is not newly discovered, it was covered at trial. To raise these issues three years after trial does not support the requirement that defendant act with due diligence. The evidence is, if believed, merely cumulative and impeaching, and not material to the issues involved, and finally, the evidence is not of such a nature that on a new trial the alleged newly discovered evidence would probably produce an acquittal in view of the extensive evidence of guilt of the defendant. See United States v. Iannelli, 528 F.2d 1290 (3d Cir. 1976); United States v. Rocco, 587 F.2d 144 (3d Cir. 1978).
We do not find the testimony by Richard Black to be false. He was on the stand and gave his understanding of the plea agreement into which he had entered with the Huntingdon authorities. It covers all the aspects of the alleged document to which defendant refers. He was subjected to extensive direct and cross-examination on this. Defendant cannot say he was taken by surprise by the testimony. The testimony would be merely cumulative and impeaching.
One final element must be considered. On the presentation of defendant's motion on September 27, 1988, we ordered the United States to respond by October 7, 1988. On October 31, 1988, defendant filed a Motion for Default Judgment for the failure of the United States to respond by October 7, 1988. We know of no authority for a party to enter a default against the government in a criminal case because of failure to timely respond to a motion. Rule 55 is a Federal Rule of Civil Procedure and applies to a failure to plead. A court may apply sanctions for a failure to follow its orders, upon motion by the moving party or on its own motion, and thus may in severe cases result in a dismissal of an action, but such circumstances are not apparent here. Fed.R.Civ.P.55(e) provides that no judgment by default shall be entered against the United States unless the claimant establishes his claim or right to relief by evidence satisfactory to the court. There is no such evidence here.
In response to this Motion let it be noted that the Assistant United States Attorney called the court before the October 7, 1988 date and informed the court that he would require additional time to respond. The court orally told counsel that it had no objection, and it does not consider the delay significant, or in any way prejudicial to the movant. Unfortunately, the United States Attorney did not memorialize this extension of time by a document for the record, for which it is hereby reprimanded. The default is ordered stricken and the motion for default judgment is denied.
NOW, November 21, 1988, Defendant's Motion for New Trial is DENIED, and the Default entered is stricken and Default Judgment is DENIED.
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