United States v. Flynn
| Citation | 131 F. Supp. 742 |
| Parties | UNITED STATES of America v. Elizabeth Gurley FLYNN, Pettis Perry, Claudia Jones, Alexander Bittelman, Alexander Trachtenberg, Victor Jeremy Jerome, Albert Francis Lannon, Louis Weinstock, Arnold Samuel Johnson, Betty Gannett, Jacob Mindel, William Wolf Weinstone and George Blake Charney, Defendants. |
| Decision Date | 26 May 1955 |
| Court | U.S. District Court — Southern District of New York |
J. Edward Lumbard, U. S. Atty., for the Southern Dist. of N. Y., New York City, for United States.
Mary M. Kaufman, New York City, for defendants, Harry Sacher, New York City, of counsel.
Two of the thirteen defendants convicted in this case have been granted new trials upon the ground that the jury might have reached a different conclusion but for the false testimony of the witness Matusow. The motions of the other eleven have been denied, D.C., 130 F.Supp. 412. These eleven now move to reargue their motions, alleging that the court erred in denying them. Their motions were denied on the ground that defendants did not meet requirement (c) of the rule of Larrison v. United States, 7 Cir., 24 F.2d 82, 87-88, "that the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial." The moving defendants say that this so-called requirement is nonexistent and that, if it does exist, it was here met.
In support of their position that requirement (c) of the Larrison rule is non-existent, defendants cite Gordon v. United States, 6 Cir., 178 F.2d 896 and United States v. Johnson, 7 Cir., 149 F.2d 31. Neither of these cases repudiates the requirement. Moreover the rule has been quoted in its entirety with approval in this circuit in United States v. Hiss, D.C.S.D.N.Y., 107 F.Supp. 128, 136, affirmed on opinion below, 2 Cir., 201 F.2d 372. I thus see no reason for ignoring requirement (c).
In reaching my original decision denying the motion of these eleven defendants for a new trial made on the ground that false testimony had been given, I held that they had not satisfied the requirement that a defendant so moving must show that he "was unable to meet" the false testimony. I apprehend that rule to mean that the defendant must show that he produced all of the contradicting evidence within his control. If the jury nevertheless believes the false testimony and returns a verdict against the defendant he is in a position to insist upon another chance when he obtains evidence of the falsity. In other words, the moving defendant must show that he was unable successfully to meet the false testimony in spite of its falsity.
Here defendants say that, in spite of the falsity of Matusow's testimony, they could not have successfully met it. They say that success was...
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...there is no need to try the case anew before a jury. In United States v. Flynn, D.C., 130 F.Supp. 412, reargument denied, 131 F.Supp. 742 (S.D.N.Y.1955), Judge Dimock assessed the plausibility of an alleged recantation before deciding whether to grant a new trial, and we approve that proced......
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Mesarosh v. United States
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