655 F.2d 813 (7th Cir. 1981), 81-1128, United States v. Hedman

Docket Nº:81-1128.
Citation:655 F.2d 813
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John HEDMAN, Michael Jercich, Thomas Karnick and Henry Larsen, Defendants-Appellants.
Case Date:August 03, 1981
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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655 F.2d 813 (7th Cir. 1981)

UNITED STATES of America, Plaintiff-Appellee,

v.

John HEDMAN, Michael Jercich, Thomas Karnick and Henry

Larsen, Defendants-Appellants.

No. 81-1128.

United States Court of Appeals, Seventh Circuit

August 3, 1981

Argued May 15, 1981.

Rehearing Denied Sept. 9, 1981.

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

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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.

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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...

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