United States v. Miller

• Decision Date: 21 November 1967
• Docket Number: Cr. No. 11191.
• Citation: 277 F. Supp. 200
• Parties: UNITED STATES of America v. James MILLER.
• Court: U.S. District Court — District of Connecticut

277 F. Supp. 200

UNITED STATES of America v. James MILLER.

Cr. No. 11191.

United States District Court D. Connecticut.

November 21, 1967.

Jon O. Newman, U. S. Atty., Hartford, Conn., for the United States.

W. Paul Flynn, Steven B. Duke, New Haven, Conn., Richard H. Simons, Gerald I. Stevens, Milford, Conn., Percy Foreman, Houston, Tex., for defendant.

RULING ON MOTION FOR NEW TRIAL

BLUMENFELD, District Judge.

The defendant moves for a new trial on the ground that newly discovered evidence reveals that the government witness Michael Caron made a mistaken identification. At the trial, only obliquely did the defense question the fact that two separate loads of narcotics had been delivered to a man in Bridgeport. The dominant issue was whether that man was the defendant James Miller. His defenses were an alibi and mistaken identification. After hearing extensive evidence, the jury resolved both factual issues against him and found him guilty of conspiracy to smuggle heroin into the United States in violation of 21 U.S.C. § 174. The case was vigorously defended at trial and exhaustively prospected for error on appeal. The conviction was affirmed. United States v. Miller, 381 F.2d 529 (2d Cir. 1967).

The defendant now comes forward with evidence that one Mario Natalizio has confessed to being the man to whom the deliveries of heroin were made. As indicated, the identification of that man as Miller at the trial did not go unchallenged. A substantial portion of the trial which extended through every trial day of May 1966 was devoted to undermining the identification of Miller by Caron, the courier who delivered the heroin at Bridgeport, and by his wife, who accompanied him to Bridgeport on both trips. The defense in a cross-examination of Caron which lasted seven days resorted to all of the generally used methods for attacking Caron's credibility in great detail. He was questioned about his prior criminal conduct;¹ his making of knowingly false statements; the existence of bias on account of promises by the government to assist him in obtaining a pardon (he had been sentenced to ten years imprisonment in Texas), because of money paid by the government toward the support of his wife and young children in this country, and the government's grant to him of admission to the United States as a permanent resident; and more. The circumstances under which he made his pre-trial identification of Miller were thoroughly probed. See United States v. Miller, 381 F.2d at 537-538. It was also suggested that a Connecticut state policeman had contrived to have Miller identified to satisfy a personal grudge against him.

From another aspect at trial, the defense suggested that Caron was mistaken; that the "Frank" to whom he said he made the deliveries was some other Frank. They suggested it was Frank LeChien (Tr. 690-695) or Frank Musial (Tr. 3242-3256). It introduced a mug shot and police record of the latter into evidence, but on rebuttal the prosecution proved that Musial was safely in jail when the deliveries were made. This brief exposition of the extent to which the identification issue was litigated at the trial will serve as a background against which the defendant's motion for a new trial should be considered.

The rule is that when a motion for a new trial is based on newly discovered evidence, the moving party must satisfy the court that the evidence is newly discovered, that it was unknown to the defendant at the trial and that such absence of knowledge was not due to any lack of diligence on the part of the defendant. Being "new" as so tested is not enough. The evidence must also be material, not merely cumulative or impeaching—such that it will probably produce an acquittal. Berry v. State, 10 Ga. 511, 527 (1851); cf. United States v. Costello, 255 F.2d 876, 879 (2d Cir. 1958). Motions for new trials are not favored and should be granted only with great caution. United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562 (1946).

These several aspects from which the evidence should be considered must be examined more fully.

The principal item of evidence offered is a written confession in the handwriting of Mario Natalizio.² In fact, there are two different versions of a confession, each on two sheets of paper, and each sheet dated July 12th. Three pages were signed by Natalizio. These were mailed from Miami, Florida, on July 14, 1967, in a plain envelope addressed: "Webb Manuturing sic, Box 510, Milford, Conn."³ They were received at that address by Mr. Richard H. Simons, who is the president of Webb Mfg. Co. He is also the defendant's attorney and has been acting as such throughout this entire criminal proceeding.

Is the confession newly discovered?

Before considering the content of the confession with respect to its materiality or its likely effect in the event of a new trial, the question is whether it is newly discovered, i. e., since the trial.

Obviously, the written statement signed by Natalizio in July 1967 stating that he was the man who received the narcotics in Bridgeport on August 22nd and September 21st in 1963 from Caron is new in its present form. But the substance of it, that Natalizio and not Miller was the Bridgeport member of the conspiracy to whom the deliveries were made, is not new. So far as that may be accurate information, both Miller and his attorneys knew about it in 1965, long before the trial.

The affidavit of Mr. Simons states that on January 8, 1965, he again informed the Chief Assistant United States Attorney for the Southern District of Texas "of the facts pointing to Natalizio's guilt and Miller's innocence. . . ." More to the point, his affidavit continues: "On August 6, 1965, I caused James Miller, under the direct supervision of three private investigators, to confront Natalizio with knowledge of his participation in the transactions at the Bridgeport Motor Inn in August and September, 1963, and to demand that Natalizio provide the defense with the times on which the meetings with Caron occurred . . .. Miller also asked Natalizio for money for the defense. . . ."

At the hearing on the present motion, the defendant offered a purported transcription of a taped recording of this Miller-Natalizio confrontation.⁴ Reading it without reference to the stage business interjected into the script, Miller, wearing a concealed transmitter strapped to his thigh, introduced himself: "My name is Jimmie Miller, you hear—Jimmie Miller. . . . I'm Jimmie Miller the guy who got pinched in place of you in Bridgeport. Do you know now?" Natalizio to Miller: "You're innocent of the whole rap." Then Miller, aware of the fact that Caron had already identified him and had told the authorities the time and surrounding circumstances of the deliveries of narcotics at Bridgeport, informed Natalizio of this. Miller asked him: "Now think. What time? Just give me the time.⁵ That's all I need. And money. Now if you're in trouble, or whatever you're saying, I'm in worse trouble." Natalizio said: "I'm glad you come. Between you and I, I don't sleep. I got you on my mind more than you got yourself on your mind. Whether you realize it or not. Whether you realize it or not, I've got you on my mind until this thing is straightened out. I can't do nothing until I see this thing through."

Thus, as of August 6, 1965, Miller and his attorney admittedly knew and urged the prosecuting authorities to believe that there was evidence that Natalizio should have been cast in the role filled by Miller at the trial. Realizing that this is not newly discovered evidence, the defense argues that a confession made to the defendant is quite a different thing from a written confession. While a written statement may be different in form from an oral one evidencing the same facts, its probative force is not necessarily greater. If anything, the tape record of the conversation between them prior to Miller's conviction, monitored as claimed by a reliable investigative agency, would have carried greater weight at the trial than the written confession given after Miller's conviction when there is little likelihood that Natalizio could be convicted.

As further support for his argument that newness should be tested by the probative value of the later found evidence, rather than by its subject matter, the defendant's motion alleges several other items to corroborate Natalizio's confession. While the corroborative merit of these items are open to serious question, these too are not newly discovered. One item is a written statement signed by Natalizio taken by government investigators on March 26, 1965, in which Natalizio denies that he was in Bridgeport between May 1962 and Christmas 1963. The defendant alleges that this "statement is demonstrably false." Quite apart from the fact that the attack upon the truth of Natalizio's statement rests primarily on hearsay statements made by Louis and Charles Schnee, the disbelief of the statement would provide no basis for concluding that the opposite is true. See Dyer v. MacDougall, 201 F.2d 265 (2d Cir. 1952). As Chief Judge Aldrich observed in Janigan v. Taylor, 344 F.2d 781, 784-785 (1st Cir. 1965), "were the rule otherwise a case could be made for any proposition in the world by the simple process of calling one's adversary and arguing to the jury that he was not to be believed." Still, the criticism having been made, by using the same standards the defendant himself sets, Natalizio's written confession would not be worthy of belief. But even if that self-contradiction could be regarded as confirmation, cf. United States v. Nuccio, 373 F.2d 168 (2d Cir.), cert. denied, 387 U.S. 906, 87 S.Ct. 1688, 18 L.Ed.2d 623 (1967), it too was not newly discovered.

The motion further alleges that in August of 1967 Natalizio twice orally confirmed the written confessions to two private investigators in the employ of the defense attorney. This bolstering of the confession does not make it any...