United States v. Lombardozzi
| Decision Date | 10 December 1964 |
| Docket Number | No. 63 CR 324.,63 CR 324. |
| Citation | 236 F. Supp. 957 |
| Parties | UNITED STATES of America, v. John Joseph LOMBARDOZZI, Camillo Charles Lombardozzi, George Lombardozzi, Daniel Marino and Michael Zampello, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Joseph P. Hoey, U. S. Atty., Eastern Dist. of New York, Raymond Bernhard Grunewald, Asst. U. S. Attorney, of counsel, for the United States.
Evseroff, Newman & Sonenshine, Brooklyn, N. Y., William Sonenshine, Brooklyn, N. Y., of counsel, for defendants.
The defendants move by order to show cause for an order granting a new trial upon the ground of newly discovered evidence, for the vacating and setting aside of the judgment of conviction herein, for a hearing upon the issues raised by this motion, and for the production of the medical records of Hector Mangual, during his service in the Marine Corps, from 1951 to 1955. Mangual was a Government witness in the trial of the defendants on an assault charge.
In November 1963, the defendants were tried on the said assault charge, Mangual was one of seven witnesses, produced by the Government at that trial. The record of that trial has been submitted on this motion. The jury returned a verdict of guilty. The judgment of conviction was sustained by the Court of Appeals on August 4, 1964. Its opinion is reported in 2 Cir., 335 F.2d 414. A petition for certiorari was denied by the United States Supreme Court in November 1964.
In February 1964 the defendants moved for a new trial upon the ground that Mangual recanted his trial testimony. This Court ordered a hearing. At the hearing Frederick S. Abrams, the attorney for several of the defendants, produced a tape recording of Mangual's alleged recantation. It was played back in open court. In that recording, Mangual recanted his entire trial testimony at the assault trial. Immediately after it was played back Mangual testified that the only reason he made this alleged recantation was to ease the pressure and fear of the lives of his family and himself brought about by the defendants. The defense then moved for the withdrawal of the motion for a new trial.
Abrams and the defendants excepting George Lombardozzi, were indicted and charged with conspiracy to obstruct justice. They were acquitted. It was not until that trial, held in July 1964, that it became known that Mangual allegedly suffered from mental or emotional instability some nine years prior to his appearance at the said assault trial. This alleged mental or emotional instability of Mangual while serving in the Marine Corps during the period from 1951 to 1955 is the basis for the present motion for a new trial.
It should be noted that defense counsel, during the argument of this motion for a new trial, stated that the defendants do not claim actual suppression of evidence by the Government. They assert that the Government had constructive notice of Mangual's mental condition, while in the Marine Corps, because he had been in the service of a Government agency, the Marine Corps.
It is settled law that motions for new trials are not favored and should only be granted with great caution, that such motions are always addressed to the discretion of the trial judge and that the burden of proof rests upon the defendants. See United States v. Costello, 2 Cir., 255 F.2d 876, certiorari denied, 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551; United States v. Fassoulis, 203 F. Supp. 114 and United States v. Soblen, 203 F.Supp. 542, 564.
In United States v. Costello, supra, the Court, 255 F.2d at page 879, stated:
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