Lindsey v. United States

• Decision Date: 18 January 1967
• Docket Number: No. 21034.,21034.
• Citation: 368 F.2d 633
• Parties: James Arthur LINDSEY, also known as James Arthur Lindsay, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

368 F.2d 633 (1966)

James Arthur LINDSEY, also known as James Arthur Lindsay, Appellant, v. UNITED STATES of America, Appellee.

No. 21034.

United States Court of Appeals Ninth Circuit.

November 10, 1966.

Rehearing Denied January 18, 1967.

James A. Schmiesing of Boyko & Simmons, Los Angeles, Cal., for appellant.

Joseph L. Ward, U. S. Atty., Robert S. Linnell, Michael DeFeo, Asst. U. S. Attys., Las Vegas, Nev., for appellee.

Before HAMLEY, HAMLIN and BROWNING, Circuit Judges.

HAMLEY, Circuit Judge.

On May 26, 1964, we affirmed the conviction of James Arthur Lindsey on six counts of "committing fraud by wire," in violation of 18 U.S.C. § 1343 (1964). Lindsey v. United States, 9 Cir., 332 F.2d 688. Thereafter, on July 30, 1964, the district court denied Lindsey's first motion for a new trial, which had been made on the ground of newly discovered evidence pursuant to Rule 33, Federal Rules of Criminal Procedure. No appeal was taken from that order. On November 17, 1965, Lindsey filed a second such motion. This motion was denied on March 8, 1966, and Lindsey appeals.

The trial court did not indicate why it denied the second motion for a new trial, but presumably it was because, in the court's view, Lindsey failed to meet one or more of the five requirements for such relief. These are: (1) the evidence relied upon must in fact be newly discovered; (2) the movant must have exercised due diligence in discovering the new evidence; (3) the new evidence must not be merely cumulative or impeaching; (4) the new evidence must be material; and (5) the new evidence must be such that, on a new trial, it would probably produce an acquittal. See Wright v. United States, 9 Cir., 353 F.2d 362, 365.

The motion for a new trial now before us, made on the ground of newly discovered evidence, is supported by the affidavits of Mary P. Strantz, Robert M. Coffey, J. Robert Bluemlein, Richard H. Wyse, Vernon Loveall, A. Park Smoot, James A. Schmiesing, and two affidavits of Lindsey. Lindsey argues that these affidavits, considered together, meet the five requirements for a new trial referred to above, and the trial court should therefore have granted the motion.

Mrs. Strantz was the complaining witness and asserted victim of the fraud. At the time of the trial, in 1963, she was seventy-five years old. The trial evidence is undisputed that Mrs. Strantz made six payments to Lindsey aggregating more than $14,000 during a twelve-day period from September 26 to October 8, 1962. It is also undisputed that it was Lindsey's idea that these transactions between him and Mrs. Strantz be kept secret "so as not to emotionally disturb" Mrs. Jo Ann Wyse, the niece of Mrs. Strantz, who was living with Lindsey.

In addition, as we pointed out on Lindsey's appeal from the conviction the trial evidence was undisputed that Lindsey represented to Mrs. Strantz, among other things, that he proposed to use this money (a) to pay bills of Mrs. Jo Ann Wyse, (b) to reimburse himself in the sum of $11,000 for his alleged payment of Mrs. Wyse's bills, (c) to make certain repairs and improvements on a bowling alley Lindsey allegedly owned in Cincinnati, Ohio, which was also allegedly "in escrow" to be sold — one-half of the proceeds thereof to be paid to Lindsey, (d) to make a payment due on Mrs. Wyse's house and thus "save it." (332 F.2d at 689-690) We further noted, at that point in our opinion, that all these representations by Lindsey were admittedly false.

Mrs. Strantz gave testimony at the trial substantiating most of the circumstances surrounding her 1962 transactions with Lindsey, as described above. However, on March 2, 1964, Mrs. Strantz, then seventy-six years of age, made an affidavit recanting her trial testimony. This affidavit was used by Lindsey as a basis for his first new trial motion on the ground of newly discovered evidence.

However, before that motion was acted upon, Mrs. Strantz made a second affidavit, dated April 17, 1964, recanting her first affidavit of March 2, 1964. In this second affidavit she reiterated, in substance, the testimony she had given at the trial concerning her 1962 transactions with Lindsey. In this second affidavit, Mrs. Strantz also stated that she had given her first affidavit of March 2, 1964, recanting her trial testimony, because she had been led to believe that Lindsey was a reformed man, that he would not "pull a con game such as this appears to be" on any person, that he was now leading a normal, pure and clean life, and that he had become a respectable citizen. Mrs. Strantz further stated in her second affidavit that she desired to recant her first affidavit, because Lindsey had "repeated the offense."

As noted earlier in this opinion, Lindsey took no appeal from the July 30, 1964 denial of his first motion for a new trial. The second motion for a new trial, filed November 17, 1965, and now before us, is supported by Mrs. Strantz's third affidavit, dated September 16, 1965. She was then seventy-eight years old. In this affidavit, Mrs. Strantz stated her belief that Lindsey was convicted on evidence which did not fully disclose all significant aspects of her transactions with him, and that a full disclosure of such transactions would result in an acquittal.

Mrs. Strantz then proceeded to state, in this third affidavit, certain facts which, in her opinion, were not revealed or were inadequately revealed, at Lindsey's trial. Among other things, she stated that she lent the money to Lindsey for her own reasons, independent of any representations made to her by Lindsey. She further stated that the idea for the loan, and the idea of keeping the loan secret from her niece, Mrs. Wyse, originated with her and not with Lindsey. Mrs. Strantz stated that she believed, at the time of the 1962 transactions, that Lindsey was providing a much-needed stabilizing influence upon her niece's family, and that in 1962 she had wished to preserve that influence.

In her third affidavit of September 16, 1965, Mrs. Strantz...