U.S. v. Wright

• Decision Date: 27 March 1980
• Docket Number: No. 79-1187,79-1187
• Citation: 625 F.2d 1017
• Parties: UNITED STATES of America, Appellee, v. Henry James WRIGHT, Jr., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1017

625 F.2d 1017

UNITED STATES of America, Appellee, v. Henry James WRIGHT, Jr., Defendant, Appellant.

No. 79-1187.

United States Court of Appeals, First Circuit.

Submitted Jan. 11, 1980.

Decided March 27, 1980.

Stephen J. Rappaport and Rachlin, Rappaport & Shechtman, Boston, Mass., on brief, for defendant, appellant; Henry James Wright, Jr., on brief pro se.

Edward F. Harrington, U. S. Atty., and Elliot D. Lobel, Asst. U. S. Atty., Boston, Mass., on brief for appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

The appellant in this case, Henry J. Wright, Jr., was found guilty by a jury on December 15, 1976, of violations of 18 U.S.C. §§ 2421 and 2422 (transporting or causing to be transported a woman in interstate commerce for the purpose of prostitution) and sentenced to three years imprisonment. On appeal, this court affirmed Wright's conviction. United States v. Wright, 573 F.2d 681 (1st Cir. 1978). On July 19, 1978, appellant filed two motions for new trial on the basis of newly discovered evidence ^* pursuant to Rule 33 of the Federal Rules of Criminal Procedure. The district judge who had presided at trial denied both motions without holding a hearing and without issuing a written opinion. Wright has appealed the denial of these motions.

At trial, the government's case against appellant consisted primarily of the testimony of Elizabeth Sault. She testified that she met appellant in the summer of 1975 through one Diane Carney, that appellant offered her a job as a prostitute during a trip to Connecticut with Diane Carney in July of 1975, that on various occasions during July and August of 1975 Diane Carney, using a rented Mercury Comet, drove her from Providence, Rhode Island, to Fall River, Massachusetts, where she performed acts of prostitution, and that she paid the proceeds of her prostitution to appellant. To corroborate Sault's testimony, the government introduced tapes of conversations recorded during an encounter between appellant and Sault after she had left his employ. The government also introduced business records of the agency from which Carney had rented the Comet allegedly used to transport Sault to Massachusetts. The recordkeeper for the rental agency testified that one receipt showed appellant had made one of the payments for rental of the Comet. Appellant took the stand at trial and denied offering Sault employment as a prostitute and denied that either he or Diane Carney had transported Sault across state lines for the purpose of prostitution. Diane Carney did not testify at the trial.

The new evidence appellant seeks to introduce at his requested new trial consists of the testimony of Diane Carney and receipts in Carney's possession pertaining to the rental of the Comet. Appellant alleges that this evidence is "newly discovered" because Carney moved before the trial without leaving a forwarding address, and appellant was therefore unable to locate her to testify at his trial. One of Carney's two affidavits submitted in support of appellant's motion states that she did not know Elizabeth Sault during June and July of 1975, that she never transported Sault to Fall River for the purpose of prostitution and that Sault's only relationship to the appellant was that of tenant-landlord. Carney's second affidavit states that she, and not appellant, made all the payments on the Comet allegedly used to drive Sault to Fall River. In support of this assertion, Carney offers to produce receipts demonstrating that the rental agency recordkeeper's testimony at trial was false.

A motion for new trial on the basis of newly discovered evidence will ordinarily not be granted unless the moving party can demonstrate that: (1) the evidence was unknown or unavailable to the defendant at the time of trial; (2) failure to learn of the evidence was not due to lack of diligence by the defendant; (3) the evidence is material, and not merely cumulative or impeaching; and (4) it will probably result in an acquittal upon retrial of the defendant. See Pelegrina v. United States, 601 F.2d 18, 20-21 (1st Cir. 1979); In re United States, 565 F.2d 173, 177 (1st Cir. 1977); Johnson v. United States, 32 F.2d 127, 129 (8th Cir. 1929); C. Wright & A. Miller, Federal Practice and Procedure § 557 at 515 (1969).

Motions for new trial are directed to the discretion of the trial court. In considering such a motion, the court has broad power to weigh the evidence and assess the credibility of both the witnesses who testified at trial and those whose testimony constitutes "new" evidence. See United States v. Zannino, 468 F.2d 1299, 1303 (1st Cir. 1972), cert. denied, 410 U.S. 954, 93 S.Ct. 1419, 35 L.Ed.2d 687 (1973); United States v. Leach, 427 F.2d 1107, 1111 (1st Cir. 1970). Ordinarily we will affirm the trial court's denial of a new trial unless the court has manifestly abused its discretion; the court's findings of fact will not be overturned unless they are without any support in the record. C. Wright & A. Miller, Federal Practice and Procedure § 559 at 541-42 (1969). In the case of a motion for new trial based upon newly discovered evidence, the trial court may deny the motion if it finds that any one of the requirements set out above is lacking.

Because the district court denied appellant's motion for new trial without issuing an opinion, we do not know the precise basis for its decision. Our examination of the record convinces us, however, that there was ample basis for the district court to deny appellant's motion.

First, although we have no basis for doubting that the testimony of Diane Carney was "newly discovered", it is far from clear that appellant exercised due diligence in seeking to locate her to testify at his trial. The record reveals that through pretrial discovery both appellant and his counsel had access to the grand jury minutes, which make clear the role that Diane Carney was to play in the prosecution's case. Nevertheless, appellant's trial counsel made no motion for a continuance in order to attempt to locate her to testify on appellant's behalf. See In re United States, supra, 565 F.2d at 176-77. The only support for appellant's contention that he made a concerted effort to locate Carney is the affidavit of Carolyn Bland, in which she states that on December 15, 1975, appellant was conducting an "investigation" to locate Diane Carney. Even if credible, however, Bland's affidavit establishes at most that on two occasions, once one year before trial and once during the trial, appellant asked Bland if she knew the whereabouts of Diane Carney. This evidence alone would not preclude the district court from finding a lack of due diligence on appellant's part.

Even if we were satisfied that appellant had exercised due diligence in trying to locate Carney, her proffered testimony fails to meet the other...