United States v. Curry
| Decision Date | 15 July 1974 |
| Docket Number | No. 74-1089 Summary Calendar.,74-1089 Summary Calendar. |
| Citation | 497 F.2d 99 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Otis Thurmond CURRY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Theodore Klein, Miami, Fla. (Court-appointed), for defendant-appellant.
Robert W. Rust, U. S. Atty., Miami, Fla., for plaintiff-appellee.
Before GEWIN, GODBOLD and CLARK, Circuit Judges.
:
After a jury trial a judgment of conviction was entered against Otis Thurmond Curry on several counterfeiting charges.1 A co-defendant, Julian Wilkerson, testified that in exchange for his favorable testimony the prosecution only agreed to make his cooperation known to the sentencing judge. In his motion for a new trial the appellant Curry has alleged that newly discovered evidence indicates that Wilkerson was not only promised that his cooperation would be made known, but that he was, in fact, promised a sentence not to exceed two years.2 Mr. Wilkerson did indeed receive a sentence of two years imprisonment; Curry, in contrast, was sentenced to eight years.3 The motion for a new trial was denied without an evidentiary hearing by the same district judge who presided during the entire case and sentenced all the defendants. We affirm.
If the appellant Curry was convicted on testimony known to the Government to be perjured a new trial would be required. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) ; Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). By denying the motion for a new trial the district court has necessarily determined that Wilkerson's testimony was truthful and that he was not promised a sentence not to exceed two years. The question arises, however, as to whether it is necessary to hold an evidentiary hearing before arriving at this determination.
The law of this circuit has previously been well established that a motion for new trial may ordinarily be decided upon affidavits without an evidentiary hearing. United States v. Dara, 429 F.2d 513, 514 (5th Cir. 1970) ; Gurleski v. United States, 405 F.2d 253, 267 (5th Cir. 1968), cert. denied 395 U.S. 981, 89 S.Ct. 2140, 23 L.Ed.2d 769 (1969). As in Gurleski the appellant here has not offered an affidavit from the challenged witness. He did not present affidavits from the other persons mentioned in his affidavit as the source of his factual claims. One of the parties was his trial counsel who also represented him on direct appeal. Essentially this is an attack on a witness whose credibility has already been weighed by the jury. Speaking for the court in Gurleski Judge Goldberg stated:
The new evidence bore solely on the question of the credibility of the witness. Appellate courts are particularly cautious about reversing denials of motions for new trial on the ground of newly discovered evidence where such evidence relates solely to matters of credibility of witnesses against the accused. (Citation omitted) 405 F.2d 253, n. 12.
Furthermore, the insights gained by the presiding judge during the course of the trial make him exceptionally qualified to pass on affidavits supporting a new trial motion. United States v. Johnson, 327 U.S. 106, 112, 66 S.Ct. 464, 90 L.Ed. 562 (1945).
Quite recently, however, in DeMarco v. United States, 415 U.S. 449, 450, 94 S.Ct. 1185, 1186, 39 L.Ed.2d 501, 503 (1974) the Supreme Court suggested that an evidentiary hearing would be appropriate when the veracity of a co-defendant prosecution witness is challenged concerning his plea bargaining agreement. Nevertheless, the unusual procedural posture of DeMarco leads us to believe that an evidentiary hearing is not required in the present case. In DeMarco the alleged concealed plea bargain and false testimony were discovered at the co-defendant's sentencing hearing. It was clear that there was a plea agreement between the witness and the Government; the remarks of the United States Attorney arguably indicated that the agreement may have been reached prior to the witness' testimony in DeMarco's trial.
Without presenting the matter to the district court DeMarco pressed the issue in the Court of Appeals. The latter court accepted the tendered issue and after examining the record concluded that no promises had been made by the...
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