U.S. v. Krasny

• Decision Date: 27 September 1979
• Docket Number: No. 78-3303,78-3303
• Citation: 607 F.2d 840
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lawrence KRASNY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 840

607 F.2d 840

59 A.L.R.Fed. 645

UNITED STATES of America, Plaintiff-Appellee, v. Lawrence KRASNY, Defendant-Appellant.

No. 78-3303.

United States Court of Appeals Ninth Circuit.

Sept. 27, 1979.

Rehearing Denied Nov. 20, 1979.

Brian J. O'Neill, Manatt, Phelps, Rothenberg, Manley & Tunney, Los Angeles, Cal., for defendant-appellant.

Mark S. Geraghty, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before CHAMBERS, ELY and WALLACE, Circuit Judges.

WALLACE, Circuit Judge:

Krasny appeals from a district court judgment denying his motion for a new trial. He based his motion upon newly discovered evidence which purportedly demonstrates that a government witness committed perjury during his trial. Krasny argues that the district court applied an incorrect legal standard and failed to make necessary findings in ruling on his motion for a new trial. We conclude that the district judge did not apply a test that requires us to reverse. However, because his findings are insufficient to allow us to determine whether he abused his discretion, we vacate the judgment denying Krasny's motion and remand for further proceedings.

I

We earlier affirmed Krasny's conviction on charges of conspiracy to import heroin into the United States, and to possess heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 846, 952, 963. His conviction arose out of an alleged agreement between him and two others, Bennett and Worley, to import heroin from Bangkok into the United States. Bennett first traveled to Bangkok to obtain the heroin. Worley followed Bennett, secured the heroin, and was arrested when she attempted to smuggle it into the United States.

After her arrest, Worley cooperated with the government and consented to the taping of conversations between her and Krasny. The government's case against Krasny rested on these conversations and the testimony of Worley. She testified that Krasny was a principal in the conspiracy, while she merely acted as his agent, traveling to Bangkok at his behest. Worley also claimed that before the trip she had never discussed the subject of narcotics with Bennett. She admitted traveling to Mexico on two occasions with Bennett, who told her that the trips were for the purpose of acquiring narcotics. However, she denied taking part in any of these narcotics transactions, and testified that only Bennett had been involved, while she just went as his companion.

The taped conversations revealed, among other things, that Krasny had been at the airport in Honolulu to meet Worley upon her return from Bangkok, that his sole purpose in going to Honolulu may well have been to meet her, that he later planned to send someone else to meet her in Honolulu, that he had been a "nervous wreck" because Worley did not leave customs when he expected her to, that he was familiar with the customs area in Honolulu, that he had people who were "dying" to get the "stuff," and that he could pay Worley in two days, after he sold it.

Krasny's version of the events and his explanation of the phone calls differed from those of Worley. He testified that he had never before had anything to do with Worley's and Bennett's dealings in heroin. Krasny did not deny participation in the taped phone calls. He claimed, however, that he had been coerced by threats against him and his family into agreeing to assist Worley in the delivery of the heroin. The jury obviously did not believe this defense, as it convicted Krasny for his involvement in the conspiracy.

Subsequent to Krasny's conviction, the government, with commendable candor, advised his attorney of new developments concerning Worley's trial testimony. The government discovered that Worley had, in fact, assisted Bennett to some degree in prior narcotics transactions, despite her earlier testimony to the contrary. Specifically, Worley admitted that she had mailed some packages containing cocaine on Bennett's behalf. She also stated that she had participated in a number of conversations with Bennett regarding narcotics, some in the presence of Krasny.

Worley first explained that she failed to admit, during cross-examination, her prior narcotics involvement with Bennett because it was none of Krasny's counsel's business. Subsequently, however, she apparently indicated that she did not really mean that that was the reason for her initial denial of this involvement, but the record does not reveal any other reason for her apparently erroneous testimony. In any event, the parties agree that neither the government nor Krasny knew or had reason to know of Worley's more extended involvement with Bennett in narcotics trafficking.

The district judge did not rule specifically whether he believed that Worley had perjured herself. In denying Krasny's motion for a new trial, however, he did rule that "the suggested new evidence is at best cumulative and would not be of sufficient import to alter the jury's determination in this matter in terms of guilt or innocence."

II

Krasny's challenge to the judge's ruling on his motion raises a question of apparent first impression in this circuit. We must decide the correct standard for granting a new trial when newly discovered evidence reveals that a government witness may have committed perjury during the trial. ¹

In general, a defendant seeking a new trial on the basis of newly discovered evidence must meet the following requirements "(1) It must appear from the motion that the evidence relied on is, in fact, newly discovered, i. e., discovered after the trial; (2) the motion must allege facts from which the court may infer diligence on the part of the movant; (3) the evidence relied on must not be merely cumulative or impeaching; (4) must be material to the issues involved; and (5) must be such as, on a new trial, would Probably produce an acquittal."

United States v. Cervantes, 542 F.2d 773, 779 (9th Cir. 1976) (emphasis supplied) (quoting Pitts v. United States, 263 F.2d 808, 810 (9th Cir.), Cert. denied, 360 U.S. 919, 79 S.Ct. 1438, 3 L.Ed.2d 1535 (1959)); Accord, e. g., United States v. Brashier, 548 F.2d 1315, 1327 (9th Cir. 1976), Cert. denied, 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 565 (1977); United States v. Craft, 421 F.2d 693, 695 (9th Cir. 1970). A majority of circuits that have considered the question, however, have applied, or implied that they would apply, a modified standard when the newly discovered evidence indicates that a government witness committed perjury at trial. Rather than requiring a defendant to show that an acquittal Probably would result, these courts require only that the defendant demonstrate that an acquittal Might or Possibly would result upon a new trial. See, e. g., United States v. Wallace, 528 F.2d 863, 866 (4th Cir. 1976) (witness recantation); United States v. Anderson, 165 U.S.App.D.C. 390, 405, 509 F.2d 312, 327 n.105 (D.C.Cir.1974) (dictum), Cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 672 (1975); United States v. Smith, 433 F.2d 149, 151 (5th Cir. 1970) (per curiam); Gordon v. United States, 178 F.2d 896, 900 (6th Cir. 1949), Cert. denied, 339 U.S. 935, 70 S.Ct. 664, 94 L.Ed. 1353 (1950); Larrison v. United States, 24 F.2d 82, 87 (7th Cir. 1928). See generally 2 C. Wright, Federal Practice and Procedure § 557, at n.24 (1969 & Supp. 1979). The "possibility" standard is often referred to as the "Larrison rule" because of its apparent origin in Larrison v. United States, supra. ²

At times, courts have not completely endorsed this rule. Thus, courts may cite the Larrison rule with tacit approval, but decide that the defendant has failed to demonstrate the necessity of a new trial as judged by Either standard, United States v. Hamilton, 559 F.2d 1370, 1372-73, 1374 & n.8 (5th Cir. 1977), or that the evidence merits a new trial pursuant to Either rule, United States v. Meyers, 484 F.2d 113, 117 (3d Cir. 1973).

Recently, the Second Circuit severely criticized the Larrison standard, observing:

(T)he test, if literally applied, should require reversal in cases of perjury with respect to even minor matters, especially in light of the standard jury instruction that upon finding that a witness had deliberately proffered false testimony in part, the jury may disregard his entire testimony. Thus, once it is shown that a material witness has intentionally lied with respect to any matter, it is difficult to deny that the jury, had it known of the lie, "might" have acquitted.

United States v. Stofsky, 527 F.2d 237, 245-46 (2d Cir. 1975), Cert. denied, 429 U.S. 819, 97 S.Ct. 65, 50 L.Ed.2d 80 (1976). Stofsky Further stated that courts following the Larrison approach were not troubled by its "speculative nature," and in many cases "have not hesitated to deny new trials in cases where they have purported to apply it." Id. at 246 (footnote omitted). The court concluded:

(R)ather than adopt the Larrison test and violate it in application, we believe, for the reasons indicated, that the time-honored "probability" standard is the more appropriate one for determining whether perjury calls for a new trial. In addition to its other virtues the rule enables a court to act forthrightly in making its determination.

Id.

We are of the opinion that the court in Stofsky has taken the correct path, and we agree with its reasoning. We are unpersuaded, on the other hand, by the reasoning used in justification of the Larrison rule. For example, the court in Larrison relied only upon Martin v. United States, 17 F.2d 973 (5th Cir.), Cert. denied, 275 U.S. 527, 48 S.Ct. 20, 72 L.Ed. 408 (1927), which held that the cumulative nature of perjured testimony alone should not be determinative of whether a new trial is to be granted. 24 F.2d at 87. That court reasoned:

There is no way for a court to determine that the perjured testimony did not have controlling weight with the jury, and,...