U.S. v. Carmichael, s. 83-6223

• Decision Date: 26 January 1984
• Docket Number: Nos. 83-6223,83-6250,s. 83-6223
• Parties: UNITED STATES of America, Appellee, v. Albert Eugene CARMICHAEL, Jr., Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 158

726 F.2d 158

UNITED STATES of America, Appellee, v. Albert Eugene CARMICHAEL, Jr., Appellant.

Nos. 83-6223, 83-6250.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 7, 1983.

Decided Jan. 26, 1984.

Mark F. Pomerantz, New York City (Ronald P. Fischetti, Anne C. Feigus, New York City, on brief), for appellant.

David J. Slattery, Asst. U.S. Atty., Washington, D.C. (Henry Dargan McMaster, U.S. Atty., Columbia, S.C., on brief), for appellee.

Before WIDENER, MURNAGHAN and SPROUSE, Circuit Judges.

WIDENER, Circuit Judge:

Carmichael was convicted in 1981 of charges relating to an absentee ballot vote buying scheme in the 1980 Democratic primary election in Dillon County, South Carolina, and of obstruction of justice in connection with the grand jury investigation of the election. The convictions were affirmed on appeal, United States v. Carmichael, 685 F.2d 903 (4th Cir.1982), and a petition for a writ of certiorari to the Supreme Court was denied. A motion for a new trial on the ground of after discovered evidence was filed in March 1983 and denied. It is the denial of that motion that is the subject matter of this appeal. Carmichael claims the motion should have been granted on its merits and that the trial judge should have disqualified himself. We affirm.

At a hearing on the motion for a new trial, Carmichael presented testimony which he claimed showed after discovered evidence to the effect that he had been mistakenly identified as a participant in a conversation allegedly crucial to his conviction. Sammy Lee Cato, a witness at the original trial, had testified originally that he heard Carmichael discuss vote buying with Sheriff Roy Lee (who pleaded guilty to charges of conspiracy to buy votes). At the hearing on the new trial motion, Cato testified that he presently remembered more facts about the political picnic at Carmichael's lake cabin at which he had heard talk of vote buying, and specifically recalled that Carmichael had left that party early. Cato's testimony upon the motion for a new trial was that he presently did not know who were the participants in the conversation he had earlier overheard but that it could not have been Carmichael for Carmichael was not there. Other witnesses also testified that Carmichael had left the party early. One even strongly inferred that he himself had made the overheard statement.

The district court heard all the testimony Carmichael and the government offered on the subject of Cato's recantation and found Cato had been the object of extensive persuasive efforts by Carmichael and Carmichael's associates. Beginning in November 1982, Carmichael and his friend David Taylor arranged several meetings with Cato in Washington, D.C. (Cato's then current residence) and in South Carolina. Cato was asked repeatedly to change his story at these meetings, despite his declarations that his trial testimony had been accurate. Carmichael recommended at least some, and paid for all, of the various attorneys representing Cato at these meetings and at the hearing on the motion for a new trial, and gave Cato and his sister money (for time and expenses), perhaps as much as several thousand dollars. In February 1983, Cato signed an affidavit with the new version of the facts.

The district court denied the motion for a new trial. It found that Carmichael had not met any of the three requirements of United States v. Wallace, 528 F.2d 863 (4th Cir.1976), which are that the court must be reasonably satisfied that the testimony given by the material witness in the first instance was false; that without it the jury might have reached a different conclusion; and that the defendant was taken by surprise by the false testimony and was unable to meet it or did not know of its falsity until after the trial. While we are of opinion that the district court reached the correct result in its opinion on each of the requirements of Wallace, we will dwell on only the first of them in brief detail. The failure to meet any of the requirements is fatal. United States v. Johnson, 487 F.2d 1278 (4th Cir.1973).

As stated, the district court found that it was not reasonably satisfied that the testimony given by Cato at Carmichael's trial was false. In making this factual finding, it saw the witnesses and heard them testify. It credited, for example, the testimony of one Blitzer, the first of several attorneys who represented Cato with respect to his recantation and the hearing on a motion for a new trial. Blitzer testified that, at a meeting in Washington, D.C. which went on for six hours, Carmichael and others kept suggesting to Cato, who is described by Carmichael's attorneys as semi-literate, that he (Cato) had made a mistake in his trial testimony, but Cato throughout that meeting stood fast to his position that he had told the truth at the trial, and only conceded that he might have been mistaken about the particular occasion at which he overheard Carmichael's remark. Carmichael recommended at least some, and paid for all, of the various attorneys representing Cato with respect to the motion for a new trial. Carmichael paid Cato money for expenses and time in connection with his recantation, which admittedly was in excess of $1100 and possibly was in excess of several thousand dollars. Cato admitted he received $480 on one occasion, at least $350 on two or more occasions, and that he was paid on six occasions. Additionally, Carmichael paid Cato's sister's expenses on all of the trips leading up to Cato's affidavit. Meeting after meeting was held with Cato before he agreed to recant. The witnesses called to corroborate Cato's recantation were colleagues or allies of Carmichael. For example, Gerald Turner had been convicted of participation in vote buying in the same primary, Donnie Worley had been employed by Carmichael and his family for more than twenty years, and Leon Moody had pleaded guilty to conspiracy to buy votes in the same election. Cato gave prior statements consistent with his trial testimony and had testified before the grand jury consistently with his trial testimony. On these facts, the district court was justified in its finding that Cato was intimidated, cajoled, and pressured in attempting to get him to change his trial testimony, and the district court's belief that Cato testified truthfully at the trial is amply justified by the record.

Findings of the district court made on a motion for a new trial based on newly discovered evidence should not be disturbed except for most extraordinary circumstances and unless it clearly appears they are not supported by any evidence. United States v. Johnson, 327 U.S. 106, 111, 112, 66 S.Ct. 464, 466, 467, 90 L.Ed. 562 (1946). The requirements of Wallace and Johnson are stringent, and Carmichael has failed to present any basis to reverse the...