919 F.2d 482 (7th Cir. 1990), 90-1975, United States v. Leibowitz

Docket Nº:90-1975.
Citation:919 F.2d 482
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Carl LEIBOWITZ, Defendant-Appellant.
Case Date:December 04, 1990
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 482

919 F.2d 482 (7th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Carl LEIBOWITZ, Defendant-Appellant.

No. 90-1975.

United States Court of Appeals, Seventh Circuit

December 4, 1990

Argued Oct. 25, 1990.

Andrew B. Baker, Jr., Asst. U.S. Atty., Hammond, Ind., Thomas O. Plouff, Asst. U.S. Atty., South Bend, Ind., for plaintiff-appellee.

Linda L. Pence, Indianapolis, Ind., for defendant-appellant.

Before CUDAHY and POSNER, Circuit Judges, and WILL, Senior District Judge. [*]

POSNER, Circuit Judge.

This case is before us for the second time, and we assume familiarity with our first opinion, affirming Carl Leibowitz's conviction of a variety of crimes growing out of his efforts to procure the murder of a potential witness (his former partner in business and in crime). 857 F.2d 373 (7th Cir.1988). Leibowitz now is appealing from the district judge's refusal to grant him a

Page 483

new trial on the basis of affidavits in which the principal witness for the prosecution, Donald Wrobel, the hit man in the murder-for-hire scheme, recanted the testimony he had given at trial. The recantation occurred after our affirmance of Leibowitz's conviction. The motion for a new trial was brought under Rule 33 of the Federal Rules of Criminal Procedure, which allows two years from final judgment (following exhaustion of appellate remedies, United States v. Cook, 705 F.2d 350 (9th Cir.1983)) for the filing of the motion if the ground is newly discovered evidence, which, obviously, the recantation of a witness after trial is.

Judges view recantation dimly and this case shows why. In Leibowitz's trial Wrobel, a client of Leibowitz (Leibowitz is--or rather was--a lawyer; he has been disbarred), testified at length about the numerous efforts that he had made, upon Leibowitz's instructions, to rub out the witness, Gary Van Waeyenberghe. The most nearly successful occurred on September 21, 1986, at a roadside phone booth. Leibowitz had told Van Waeyenberghe to go to the booth at 10:00 p.m. to receive a call from him. Wrobel concealed himself at some distance from the booth, armed with both a pistol and .22 caliber rifle. Van Waeyenberghe arrived shortly before 10:00. At 10:00 the phone rang. It was Leibowitz, telling him, "I hear you've been talking to the feds." At that moment Wrobel fired the rifle. The bullet shattered the glass of the phone booth but missed Van...

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