U.S. v. Leibowitz
| Decision Date | 04 December 1990 |
| Docket Number | No. 90-1975,90-1975 |
| Citation | 919 F.2d 482 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Carl LEIBOWITZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
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. *
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 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 Waeyenberghe.
Wrobel's testimony was corroborated by Van Waeyenberghe; by phone company records which revealed that calls from Leibowitz's phone had indeed been made to the phone booths to which, Wrobel testified, Leibowitz had directed Van Waeyeberghe in order to set him up for the assassination attempts, including a call to the roadside phone booth at 10:00 p.m. on September 21; and by tape-recorded conversations between Wrobel and Leibowitz that allude unmistakably to the existence of the murder-for-hire scheme. 857 F.2d at 381. The recantation occurred as follows. Wrobel had pleaded guilty to his part in the scheme and had been imprisoned, and by a regrettable mischance the Bureau of Prisons, inadvertently violating its own policies, had after our affirmance of Leibowitz's conviction transferred Leibowitz from the prison to which he had been originally assigned upon his conviction to the prison in which Wrobel was serving his sentence. The two met, and after several discussions Wrobel signed affidavits prepared by Leibowitz in which Wrobel recanted his trial testimony.
The affidavits are not worthy of belief. Apart from the questionable circumstances in which they were prepared, they contain fantastic assertions such as that the district judge conducted a mock trial of Wrobel in camera to persuade him to testify against Leibowitz, and they wholly fail to explain why Leibowitz lured Van Waeyenberghe to the phone booths. The "theory" propounded in the affidavits is that Leibowitz had hired Wrobel merely to trail Van Waeyenberghe. It fails to explain why, if that was the purpose, Leibowitz kept ordering Van Waeyenberghe to go to pay phones to receive calls from him with an armed Wrobel skulking in the bushes nearby.
It would create awful incentives to accept a recantation obtained by the defendant himself--a lawyer by training and former occupation--in face-to-face communication with another prisoner. Who knows what promises or threats Leibowitz made to Wrobel, whose psychological weaknesses were, in fact, a major defense theme at Leibowitz's trial?
The district judge conducted an evidentiary hearing before denying the motion for a new trial. Leibowitz's able counsel argues that the hearing was unduly truncated because the judge would not permit evidence related not to the truth or falsity of the recantation but to other questions bearing on Leibowitz's guilt, such as whether the glass in the phone booth would have shattered under the impact of a mere .22 caliber bullet, as Van Waeyenberghe testified it did, and whether a weather report showing that there were thunderstorms the night of September 21 was consistent with Wrobel's testimony. But all that was evidence that could have been discovered back in 1987, when Leibowitz was tried; the only newly discovered evidence fresh enough to warrant a...
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