U.S. v. Hedman, 81-1128

Citation655 F.2d 813
Decision Date09 September 1981
Docket NumberNo. 81-1128,81-1128
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John HEDMAN, Michael Jercich, Thomas Karnick and Henry Larsen, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Anna R. Lavin, Calihan & Lavin, Chicago, Ill., for defendants-appellants.

James R. Ferguson, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before BAUER, Circuit Judge, NICHOLS, Judge, * and WOOD, Circuit Judge.

HARLINGTON WOOD, Jr., Circuit Judge.

Defendants Hedman, Jercich, Karnick and Larsen appeal from the district court's action denying without a hearing their request for a new trial on the basis of newly discovered evidence. Defendants are former Chicago building inspection supervisors. In 1978, following a joint trial, a jury found them guilty of violating various federal statutes by extorting money from city building contractors and failing to report the illegal gains on their federal income tax returns. 1 The convictions were upheld on appeal, 630 F.2d 1184 (7th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981). Defendants asked the district court for a new trial because they say new evidence shows the prosecution introduced a falsified document in its case against them, and coerced a witness to testify falsely on behalf of the government. Judge Bua, who presided at the original trial, denied the request for a new trial after receiving from the government an answer to the request. 2 We affirm.

Defendants first contend that they are entitled to a hearing on their claim that the government used a falsified document to support its case. The document is a business diary kept by one of the building contractors who made illegal payments to defendants. The diary details the amount and recipient of each payment. Prior to trial, the prosecution submitted for chemical analysis two pages of the diary about which there was some question as to authenticity. One of the pages appeared to be a hand copied duplicate of the other, with certain changes. The analysis revealed that some of the ink used to obliterate a name on one of the pages was a type first manufactured well after the date on which the diary entries purportedly were made.

Upon learning the results of the analysis, the prosecution immediately contacted defense counsel. This occurred on a Thursday, five days before trial. On the day of trial defendants sought a continuance to allow chemical analysis of the entire diary, claiming the document was a fraud. The district judge denied the motion for continuance. 3 The diary was received in evidence during the trial.

Defendants now assert that facial discrepancies in the diary and statements made after trial by a government agent and the person who kept the diary lend credence to their claim that the ink analysis shows the diary is fraudulent, and thus its admission amounted to the use of perjured testimony. They seek a new trial under Rule 33 of the Federal Rules of Criminal Procedure, or upon a writ of error coram nobis, and claim the district court erred in failing to hold a hearing on their request.

It is within the sound discretion of the district court to decide whether or not a hearing is necessary to a determination on a request for a new trial. Eaton v. United States, 458 F.2d 704 (7th Cir.), cert. denied, 409 U.S. 880, 93 S.Ct. 208, 34 L.Ed.2d 135 (1972); United States v. Williams, 615 F.2d 585 (3d Cir. 1980). In order to establish that a new trial is warranted on the basis of new evidence under Rule 33 of the Federal Rules of Criminal Procedure, defendants must show that the evidence (1) came to their knowledge only after trial; (2) could not have been discovered sooner had defendants exercised due diligence; (3) is material, and not merely impeaching or cumulative; and (4) would probably lead to an acquittal in the event of a retrial. United States v. Robinson, 585 F.2d 274, 277 n.4 (7th Cir. 1978) (en banc). The showing necessary for a new trial upon a writ of error coram nobis is "of the same general character as one under 28 U.S.C. § 2255." United States v. Keogh, 391 F.2d 138, 140 (2d Cir. 1968). See Robinson, 585 F.2d at 279. Relief thus is available only if the asserted error is jurisdictional or constitutional, involves an error of law that results in a complete miscarriage of justice and presents exceptional circumstances where a remedy in the nature of a writ of habeas corpus or error coram nobis will lie. See Robinson, 585 F.2d at 278 n.5. In addition, to the extent that their claimed entitlement to relief through a writ of error coram nobis is based on newly discovered evidence, the defendants must show that due diligence on their part could not have revealed the evidence prior to trial. Robinson, 585 F.2d at 279. Judge Bua concluded that defendants had not met the "due diligence" requirement.

Defendants' argument begins with the assertion that post-trial statements by a government agent and the man who kept the diary cast doubt on the diary's integrity, in particular suggesting that some pages were removed or altered to help perfect the government's case. The post-trial statements, say defendants, caused them to take a new look at the diary. The newer, closer examination revealed "facial discrepancies," namely that the diary does not list extortion payments in one quarter of Chicago's building inspection jurisdictions, suggesting, it is claimed, that someone tampered with the pages to remove evidence of payments in those jurisdictions.

Considering first the "discrepancies" that purportedly impugn the diary's integrity, we have no hesitation in concluding, as did Judge Bua, that the information could have been discovered with due diligence by defendants before trial, and that no hearing was necessary to consider the request for a new trial. To begin with, defendants received a photocopy of the diary well in advance of trial. Even before being alerted to the ink analysis results, defendants had taken it upon themselves to search for errors in the diary, as is clear from their argument at the pre-trial motion for continuance that the diary appeared to be a loose leaf binder, susceptible to fraudulent shifting of pages. And, as is apparent from defendant Hedman's post-trial "memorandum" on the alleged discrepancies, 4 the defense searched the diary for errors before trial, but simply overlooked the things to which they now draw our attention.

It is clear that the "discrepancies" could have been found had defendants exercised proper diligence before trial. 5 To hold that this inattentiveness on defendants' part entitles them to a new trial would reward their dilatory actions. This would be especially inappropriate here since, as discussed below, there is no indication that defendants were incorrectly named in the diary as accepting bribes. The district court properly exercised its discretion to resolve defendants' contentions without a hearing.

The ink analysis likewise provides these defendants no succor. They were aware of the analysis in advance of trial. The analysis itself revealed only that a single name had been crossed off the page sometime after the page purportedly was penned. Defendants do not claim that the same ink used to obliterate the name appears on other pages of the diary, but only vaguely suggest that one other page displays some ink of the same color. And only now do defendants claim that the district court's denial of a continuance on the first day of trial prevented them from adequately pursuing their forgery and alteration theories at trial. Defendants, moreover, fail to explain why, if the results of the ink analysis were so important to them, they did not conduct their own analysis immediately after trial, at least on the pages about which they had the greatest doubt. Defendants offer no new evidence about the import of the ink analysis, but only new suspicions. The existence of some new evidence is a prerequisite to granting a new trial on the basis of newly discovered evidence. In this posture, the district court's denial of the new trial motion did not require a hearing.

Defendants claim that certain statements made after trial by Harry Weitzman, the person who kept the diary, entitle them to a hearing on their request for a new trial. Defendant Karnick submitted an affidavit quoting Weitzman as saying, "I did not want to hurt you boys, but they made me do it"; "They said we would lose the business.... They would take it away from us." The affidavit also quotes Weitzman as saying, "I can't understand why more than four were not involved. There were so many more names in the book, I don't understand why they just took your names." Defendants have not submitted a supporting affidavit from Weitzman.

Defendant Karnick's self-serving affidavit would not have affected the jury's verdict, and, as the district court concluded in denying the new trial motion, reflects an absence of due diligence on defendants' part. In regard to the affidavit's probative value, we note that Weitzman's remorse at testifying against those he considered friends is understandable. There is, however, no doubt from the rest of Weitzman's statements that defendants' names in fact appear in his diary as those to whom bribes were paid, which if anything reinforces rather than diminishes support for the jury's finding that defendants are guilty of receiving bribes. Nothing in defendant Karnick's affidavit suggests that Weitzman was coerced into saying anything false. Rather, as the prosecution made clear at trial, Weitzman traded immunity for his testimony, the truth of which has not been shaken.

Nor are defendants aided by Weitzman's reference to other, unindicted inspection supervisors whose names he said he entered in the diary. The United States Attorney's Office acknowledged to defendants before trial that two of those names were people who...

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