United States v. Gordon

• Decision Date: 22 October 1965
• Docket Number: Crim. No. 1115-64.
• Parties: UNITED STATES v. Morris W. GORDON.
• Court: U.S. District Court — District of Columbia

246 F. Supp. 522

UNITED STATES v. Morris W. GORDON.

Crim. No. 1115-64.

United States District Court District of Columbia.

October 22, 1965.

Carol Garfiel, Asst. U. S. Atty., Washington, D. C., for the United States.

John A. Briley, Jr., Washington, D. C., for defendant.

PINE, District Judge.

This is a Motion for a New Trial under Rule 33, Fed.R.Crim.P. The grounds for the motion as set forth therein are (1) that the sole Government witness against defendant at the trial was Horace Lafayette Logan, also known as Leroy Logan, Jr., (2) that on proper cross examination at trial Logan denied that he had ever been convicted of larceny, (3) that in fact Logan had been duly convicted of larceny in the District of Columbia Court of General Sessions on the 12th day of November, 1962, (4) that counsel for the defendant at trial exercised all due diligence to prove this conviction, and was surprised at Logan's denial of that conviction.

Evidence has been received, and the motion has been fully argued. Although the motion is not expressly worded as being based on the ground of newly discovered evidence, that is what essentially it is. In such case Rule 33 provides that "If an appeal is pending the court may grant the motion only on remand of the case." The case is now on appeal. There being no remand, this court would appear to be without jurisdiction to "grant" the motion. However, in Smith v. Pollin, 90 U.S.App.D.C. 178, 179, 194 F.2d 349, 350, a civil case, the Court of Appeals stated that in criminal cases when a new trial is sought because of newly discovered evidence in a case pending in the appellate court, and a motion for a new trial is made in the District Court, the District Court may either deny the motion or "indicate that it will grant the motion." The Court of Appeals further stated that, "if that court indicates that it is inclined to grant the motion, a motion for remand is made in the appellate court."

I shall follow the procedure outlined in the Smith case, supra.

I shall now take up seriatim the grounds for the motion hereinabove set forth, as follows:

As to ground (1), it appears that the complaint filed in the District of Columbia Court of General Sessions was signed by "Horace Leroy Logan, Jr." The indictment charges in the first count that defendant took from the person of "Horace L. Logan" certain money in violation of the robbery statute, and in the second count that defendant assaulted "Horace L. Logan" with a dangerous weapon. At the trial the complaining witness identified himself as "Horace Leroy Logan." Therefore the allegation in ground number one that the sole Government witness against the defendant was "Horace Lafayette Logan, also known as Leroy Logan, Jr." is not sustained.

As to ground (2), namely, "that on proper cross examination at trial Logan denied that he had ever been convicted of larceny," the transcript discloses that the complaining witness, Logan, testified that he was not "the same Horace Logan who pled guilty to larceny on February 20, 1963," that he had never used the name "Lafayette," and that his brother was named Horace Lafayette Logan. At no time did the defendant deny that he had ever been convicted of larceny. The second ground for the motion is likewise not sustained.

Ground (3) alleges that Logan had been duly convicted of larceny in the District of Columbia Court of General Sessions on the 12th day of November, 1963. It now appears from the evidence before me that the complaining witness under the name of "Leroy Logan, Jr." was convicted of petty larceny in the Court of General Sessions on the date mentioned. If this information had been known to defendant's counsel, the complainant's credibility could have been impeached by evidence of this conviction. This is the information now known to defendant's counsel, on which he bases his motion for new trial, and the question before me is whether or not it is "newly discovered evidence" justifying a new trial.

In Thompson v. United States, 88 U.S.App.D.C. 235, 188 F.2d 652, the requirements for obtaining a new trial on this ground are set forth. They are five in number, as follows:

The first requirement is that the evidence must have been discovered since the trial. I find that it was discovered since the trial.

The second requirement is that the party seeking a new trial on this ground must show diligence in attempting to procure the newly discovered evidence. I find from the evidence, now before me, that defense counsel made an examination of the dockets of the Court of General Sessions and the District Court to ascertain whether there was a conviction of Horace Leroy Logan, Jr., or Horace L. Logan, and on that basis found only the conviction of Horace Lafayette Logan of the same address as the complaining witness who was convicted of petty larceny in 1963. He did not search the records for a conviction of Leroy Logan, Jr., as the complaining witness now identifies himself. It appears from the trial transcript that defendant's counsel did refer to...