United States v. Troche, 233

• Decision Date: 26 May 1954
• Docket Number: No. 233,Docket 23025.,233
• Citation: 213 F.2d 401
• Parties: UNITED STATES v. TROCHE.
• Court: U.S. Court of Appeals — Second Circuit

213 F.2d 401 (1954)

UNITED STATES v. TROCHE.

No. 233, Docket 23025.

United States Court of Appeals, Second Circuit.

Argued April 9, 1954.

Decided May 26, 1954.

Before CHASE, Chief Judge, and SWAN and FRANK, Circuit Judges.

James J. Hanrahan, John P. Sweeny, New York City, for appellant.

J. Edward Lumbard, U. S. Atty., New York City, Howard A. Heffron, Assistant U. S. Atty., Brooklyn, N. Y., of counsel, for appellee.

SWAN, Circuit Judge.

The appellant was brought to trial upon an indictment charging him in separate counts with having made two unlawful sales of marihuana cigarettes to Robert Challenger. The jury acquitted on count 1 but convicted on count 2. The appellant was sontenced to a mandatory term of five years and a fine of one dollar, which was remitted. Bail pending appeal was fixed by the trial judge but was not posted. The appellant is presently serving his sentence.

The appeal raises no question as to the conduct of the trial or the sufficiency of the evidence for submission to the jury of the issue of guilt. The error asserted is denial of a motion for a new trial on the ground of newly discovered evidence, namely, perjury committed by a witness for the prosecution.

At the trial Robert Challenger, a "special employee" of the Bureau of Narcotics, testified to having made the purchase at about 7 p. m. on October 8, 1952 in front of the building where the appellant resided. He was corroborated by two government agents who watched the transaction. They identified the appellant as the man with whom they saw Challenger talking and to whom he apparently handed over money with which they had supplied him. When he rejoined the agents he gave them a package of marihuana cigarettes. The appellant testified that he did not make the sale and that he had never seen Challenger until a few days before the trial. It is obvious from the jury's verdict that they did not believe this testimony but credited that of the witnesses for the government. Two days after the verdict and before the date set for sentence, Challenger made an affidavit which recanted his testimony at the trial, asserted that his transactions were with another man, and expressed his belief in the appellant's innocence. On the basis of this affidavit and others made by persons to whom Challenger had talked before making his affidavit, the appellant's attorney filed the motion for a new trial. Shortly thereafter the attorney attempted to withdraw the motion because a day after the motion had been placed on the calendar Challenger had come to his office and stated that he wanted his affidavit back and that he positively identified the appellant as the man with whom he had dealt. However, Judge Dimock, sua sponte, ordered a hearing. At the hearing the affiants, other than Challenger, gave testimony substantially repeating what their affidavits had stated. Challenger was not present; he had disappeared. He was finally located in California and his deposition was taken at the office of an Assistant United States Attorney. This deposition was presented to Judge Dimock at the hearing. It completely repudiated the appellant's recanting affidavit which he said was signed under duress because the Irizarrys, foster parents of the appellant, had threatened to harm him and members of his family unless he signed. Their story was that Challenger had told Mrs. Irizarry that he was in love with her, was jealous of the appellant and had testified against him in order to eliminate him as a rival for her affections.

Before sentencing the appellant Judge Dimock denied the motion for a new trial. In colloquy during argument on the motion, the Judge stated that he regarded "the witness Camacho" (the name which Challenger swore in his deposition was his real name) as "completely irresponsible"; that he had "no reason to believe that on one occasion more than another he was telling the truth"; and that under the law as he understood it he "must be reasonably well satisfied that the testimony given by the witness was false." Later he said: "Well, if I could make the law I would have the case retried, but since I am bound by this rule I cannot say that I am reasonably well satisfied that Challenger's testimony was false. * * * Your motion is denied."

The appellant contends that the District Judge committed an abuse of discretion (1) in denying the motion for a new trial and (2) in failing to compel the attendance of Challenger for examination and cross-examination at the hearing. The latter claim is plainly an afterthought. No objection was raised to use of the deposition and no request made to bring Challenger back from California to testify at the hearing. A motion for a new trial may be decided on affidavits without the calling of witnesses. United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562; United States v. On Lee, 2 Cir., 201 F. 2d 722, certiorari denied 345 U.S. 936, 73 S.Ct. 798, 97 L.Ed. 1364; Ewing v. United States, 77 U.S.App.D.C. 14, 135 F.2d 633, 638, certiorari denied 318 U.S. 776, 63 S.Ct. 829, 87 L.Ed. 1145. Since the movant made no request that Challenger be brought on to testify the claim that the court abused its discretion in failing to do so sua sponte seems frivolous.

It is important for the orderly administration of criminal justice that findings on conflicting evidence by the trial court on a motion for a new trial based on newly discovered evidence should remain undisturbed except for most extraordinary circumstances. See United States v. Johnson, 327 U.S. 106, 111, 66 S.Ct. 464, 90 L.Ed. 562. Where the newly discovered evidence consists of recantation of testimony given at the trial, such recantation is "looked upon with the utmost suspicion," as this court pointed out in Harrison v. United States, 2 Cir., 7 F.2d 259, 262. The motion should be granted only when "the court is reasonably well satisfied that the testimony given by a material witness is false," and particularly is this true when the recantation has itself been repudiated. Larrison v. United States, 7 Cir., 24 F.2d 82, 87; Gordon v. United States, 6 Cir., 178 F.2d 896, 900. Judge Dimock applied this rule, although he expressed his personal disapproval of it. We do not share his disapproval. The record well justified application of the rule. It disclosed Challenger's reluctance to sign his recanting affidavit, his effort promptly to regain possession of it, and his repudiation of it in his deposition. The reasons he asserted for having signed the recanting affidavit are at least as plausible as those asserted by the...