247 F.Supp. 692 (E.D.Tenn. 1965), CR. 11989, United States v. Hoffa
|Docket Nº:||CR. 11989|
|Citation:||247 F.Supp. 692|
|Party Name:||United States v. Hoffa|
|Case Date:||April 15, 1965|
|Court:||United States District Courts, 6th Circuit, Eastern District of Tennessee|
On Subsequent Motion for New Trial Nov. 12, 1965
[Copyrighted Material Omitted]
J. H. Reddy, Chattanooga, Tenn., James F. Neal, John J. Hooker, Sr., Special Atty., Nashville, Tenn., Charles W. Shaffer, Jr., Dept. of Justice, Washington, D.C., for the United States.
James E. Haggerty, Sr., Detroit, Mich., and Harold E. Brown, Chattanooga, Tenn., for James R. Hoffa.
Cecil D. Branstetter, Nashville, Tenn., for Larry Campbell.
Harold E. Brown, Chattanooga, Tenn., for Ewing King.
Jacques M. Schiffer, New York City, for Thomas Ewing Parks.
FRANK W. WILSON, District Judge.
This case is before the Court upon a motion for new trial filed December 18, 1964, on behalf of the defendant, James R. Hoffa. The motion was duly adopted by the defendants, Thomas Ewing Parks, Larry Campbell, and Ewing King. After response by the Government, the motion was supplemented and thereupon a supplemental response was filed by the Government.
The present motion purports to be based upon newly discovered evidence. The trial of this case commenced upon January 20, 1964, and a verdict was returned by the jury upon March 4, 1964, finding each of the said defendants guilty upon one or more counts. Thereafter a motion for new trial was duly filed and upon consideration was overruled. The case is at this time upon appeal. Prior to the filing of the present motion for new trial in this court, a similar motion was filed in the Court of Appeals with a request that the case be remanded to this court for hearing upon the motion and that the hearing upon appeal be stayed pending the disposition of the motion in this court. The motion to remand and to stay the appeal was denied. Thereupon the present motion was filed in this court.
As stated above, the motion purports to be based upon newly discovered evidence and is made in accordance with Rule 33 of the Federal Rules of Criminal Procedure. In support of the motion the defendants have filed the affidavits of William E. Buffalino, Sidney Simpson, Rena Mae Booth, Lester Bloomenstiel, and Z. T. Osborne, Jr., together with portions of the testimony of Robert D. Vick and exhibits relating to his testimony in a trial in the United States District Court at Nashville, Tennessee, involving Z. T. Osborne, Jr. as the defendant. It is the contention of the defendants that matters set forth in the affidavits and exhibits constitute newly discovered evidence and that the matters therein set forth establish a violation of the defendant's constitutional right to due process, right to assistance of
counsel, right to protection from unreasonable searches and seizures, right against self-incrimination, and the right to effective compulsory process. In response to the defendant's motion, the Government has denied the matters set forth in support of the defendants' motion constitute newly discovered evidence, has denied that they set forth evidence legally sufficient to entitle the defendants to a new trial, and has filed the affidavits of Walter J. Sherridan, Edward Grady Partin, and William Hawk Daniels in denial of the matters set forth in the defendants' affidavits.
Under Rule 33 of the Federal Rules of Criminal Procedure this Court is without jurisdiction to grant the motion for new trial pending the appeal except upon remand of the case. However, a trial court does have jurisdiction to hear the motion and determine whether a request for remand should be made.
The defendants have set forth two principal grounds in support of their motion. It is first contended that the defendants have obtained newly discovered evidence of the activities of one Robert D. Vick which would establish that he acted as a secret agent of the Government while working for Z. T. Osborne, Jr., an attorney for the defendant, James R. Hoffa, during the period of time when the case was being prepared for trial. It is contended that this newly discovered evidence would establish a violation of the constitutional rights of the defendants under the Fourth, Fifth, and Sixth Amendments warranting the granting of a new trial. The affidavits of Z. T. Osborne, Jr. and portions of the record of the Osborne trial relating to Robert D. Vick are filed in support of this ground of the motion. The Government has filed the affidavit of Walter J. Sherridan in opposition to this ground in the motion.
The second principal ground in the defendants' motion is the contention that the defendants have obtained newly discovered evidence of the activities of Edward Grady Partin, a principal Government witness, in concealing witnesses and suppressing testimony, thereby denying the defendants due process and the effective right to compulsory process under the Fifth and Sixth Amendments of the Constitution. The affidavits of Sidney Simpson, William E. Buffalino, Lester Bloomenstiel, and Rena Mae Booth are filed in support of this contention. The Government has filed the affidavits of Grady Partin and William Daniels in opposition to this ground in the motion.
The law with respect to the granting of a new trial upon the ground of newly discovered evidence is well established. In general, the criteria ordinarily required for the granting of a new trial for newly discovered evidence are that (1) it must appear from the motion that the evidence relied upon is, in fact, 'newly discovered evidence,' that is, discovered after the trial; (2) the motion must allege facts from which the Court may infer diligence on the part of the movant; (3) the evidence relied upon must not be merely cumulative or impeaching; (4) the evidence relied upon must be material to the principal issues involved; and (5) the evidence must be such as, on a new trial, will probably produce an acquittal. Pitts v. United States, (C.A.Alaska, 1959) 263 F.2d 808, cert. den. 360 U.S. 919, 79 S.Ct. 1438, 3 L.Ed.2d 1535, rehearing denied 361 U.S. 857, 80 S.Ct. 48, 4 L.Ed.2d 97. See also cases cited in note 28, Rule 33, Federal Rules of Criminal Procedure, Title 18 U.S.C.A.
With respect to the first ground in the defendants' motion, relating to the alleged denial of the defendants' constitutional rights by reason of the activities of Robert D. Vick in reporting to the Government information obtained in the course of his employment as an investigator for Z. T. Osborne, who was an attorney at the time for the defendant, James R. Hoffa, it is represented that this is newly discovered evidence which was not discovered by Mr. Osborne until he date of his own trial in May of 1964, some two months after the trial of the principal case, and that the legal significance to the defendants of the evidence was not appreciated until November
of 1964. The Government contends that this is not newly discovered evidence, but cites only matters outside the record in support of this contention. The record, however, is almost completely devoid of any showing of due diligence upon the part of the defendants in obtaining this evidence. Nothing appears in the defendants' motion as to why, with reasonable diligence, this information could not have been discovered and presented prior to the trial in this case. All that appears is that the full extent of Mr. Vick's reporting to the Government was not known to the defendants until the time of Mr. Osborne's trial in May of 1964 and the theory as to the legal significance of his having reported was not conceived until November of 1964. A newly discovered legal theory does not of course constitute newly discovered evidence. 66 C.J.S. New Trial § 101. There is no showing that the fact of Mr. Vick's having reported to the Government was not known to the defendants prior to the trial of this case. On the contrary, the fact that it was known by the defendants that Mr. Vick had reported to the Government upon the activities of Mr Osborne is established in the motions filed by the defendants prior to the trial seeking a continuance and change of venue due to Mr. Osborne's withdrawal as counsel for the defendant, James R. Hoffa, following revelations by Mr. Vick and following publicity incident...
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