465 F.2d 260 (7th Cir. 1972), 17002, United States v. Curran

Docket Nº:17002.
Citation:465 F.2d 260
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. M. Prial CURRAN, Defendant-Appellant.
Case Date:July 20, 1972
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 260

465 F.2d 260 (7th Cir. 1972)

UNITED STATES of America, Plaintiff-Appellee,

v.

M. Prial CURRAN, Defendant-Appellant.

No. 17002.

United States Court of Appeals, Seventh Circuit.

July 20, 1972

Argued April 7, 1972.

Page 261

Norman J. Barry, Edward I. Rothschild, Joseph V. Karaganis, Chicago, Ill., for defendant-appellant.

James R. Thompson, U. S. Atty., Gordon Nash, Jr., John Peter Lulinski, Jeffrey Cole, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, PELL and SPRECHER, Circuit Judges.

PELL, Circuit Judge.

The record on this appeal is abbreviated. However, the issue is a narrow one and there is adequate documentation before us upon which to lodge our decision.

The factual background of this litigation is amply set forth in United States v. Kahn, 381 F.2d 824 (7th Cir. 1967), cert. denied, 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661, and need not be repeated here.

Kahn, who was the client of Curran, the appellant here, and Sachs, attorneys, upon reaching the end of the appellate road, furnished an affidavit to the lawyers which stated in part the following:

"In the trial of the case, I exercised my constitutional privilege not to testify. Had I elected to testify, there is much evidence I could have given which would have negated the guilt of my co-defendants, Arthur B. Sachs and M. Prial Curran. I make this affidavit, at their request and for such use as they or their attorneys may make of it, for the purpose of indicating the nature of the testimony which I could have given and which I would now give if I should be called upon as a witness in an appropriate proceeding. Neither Mr. Sachs nor Mr. Curran, nor any other person has given me anything of value, promise or other consideration for making this affidavit."

The affidavit was promptly made the subject, as newly discovered evidence, of a motion for a new trial. It is not clear from the record whether Curran knew, prior to the receipt of the affidavit, the matters set forth in the affidavit or whether, knowing at least some of the matters, he was unable to bring them out via Kahn at the trial because of Kahn's disinclination to take the witness stand. While conceivably this might reflect upon whether the assertions in the affidavit were "newly discovered" as opposed to being known but not available 1 and might further have a place in the overall diligence picture, because of the

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result we reach, we do not need to pursue these particular aspects of the case.

The district court, being the judge who had tried the case, heard oral argument on the motion for new trial and overruled it. Both Curran and Sachs initiated appeals from the denial. Bail pending appeal having been denied, Curran has completed the part of the sentence he was required to serve but is now seeking to clear his name of the charges on which he was convicted. Sachs failed to present himself for imprisonment and was subsequently found dead, apparently a suicide.

The mention of Sachs is occasioned because of the suggestion during oral argument that the principal attorney for Kahn was Sachs, who headed Arthur Sachs and Associates, and that Curran was in effect only a salaried minion. We can give no weight to this approach as the affidavit makes no differentiation between the two lawyers and insofar as it is exculpatory of them, they are treated equally.

At the outset, we note the apt words of Professor Wright, "[a]lthough defendants are tireless in seeking new trials on the ground of newly discovered evidence, motions on this ground are not favored by the courts and are viewed with great caution." 2 C. Wright, Federal Practice and Procedure: Criminal § 557, at 515 (1969). This, of course, as the Wright text indicates, does not mean that the motions will not be granted in the proper case, and whether this is a proper case must be our inquiry here. The thrust of our inquiry is whether the broad discretion, which the trial judge...

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