The opinion of the court was delivered by: GODDARD
Motion by defendant for a new trial on the ground of newly discovered evidence under Rule 33 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. was filed in the United States District Court for this District on January 24, 1952. The time for filing supplemental affidavits, and for the argument, was extended at request of both counsel to June 4, 1952.
The defendant, Alger Hiss, was indicted by the Grand Jury on December 15, 1948 on two counts of perjury allegedly committed in December, 1948 before the Grand Jury impanelled and sworn in the United States District Court for this District. The first count charged him with perjury when he testified under oath that he had never, nor had his wife in his presence, turned over any documents of the State Department or of any other Government organization, or copies of such documents, to Whittaker Chambers or to any other unauthorized person. The second count charged him with perjury when he testified that he thought he could definitely say that he did not see Chambers after January 1, 1937.
Hiss pleaded not guilty to each count of the indictment on December 16, 1948. He had two trials -- the first, before a Judge of this court, lasted from May 31, 1949 to July 8, 1949 and resulted in a disagreement of the jury. The trial before me began on November 17, 1949 and lasted until January 21, 1950 and the jury found the defendant guilty on both counts. He was sentenced on January 25, 1950 to five years on each count of the indictment, the sentences to run concurrently. The conviction was affirmed by the Court of Appeals for this Circuit on December 7, 1950. 185 F.2d 822. A petition for rehearing was denied by the Court of Appeals on January 3, 1951, and the Supreme Court of the United States denied a petition for a writ of certiorari on March 12, 1951. 340 U.S. 948, 71 S. Ct. 532, 95 L. Ed. 683. The defendant surrendered to the United States Marshal on March 22, 1951 and was committed.
The Government argues that this motion was not made within two years as required by Rule 33 of the Federal Rules of Criminal Procedure. The notice of motion was served and filed on January 24, 1952 for hearing on February 4, 1952. Whether March 16, 1951 -- the date of the mandate of affirmance by the Court of Appeals -- or January 25, 1950 -- the date when the judgment of conviction and sentence was entered, be regarded as the date of 'final judgment', I think the motion should be treated as being timely. See Marion v. United States, 9 Cir., 171 F.2d 185. Moreover, it is highly desirable that the merit or lack of merit of the matters presented by a motion of the character of the one at bar should be carefully and fully considered without being restricted by any technical defect in the timing of the motion.
Counsel for Hiss now asserts that the Woodstock typewriter No. 230,099 (Defendant's Exhibit UUU), offered in evidence by Hiss at the trial, is not the Hiss machine but is a forgery made to duplicate the work of the Hiss typewriter and used by Chambers to type the Baltimore Documents produced by him. In an effort to substantiate this charge defendant has submitted the affidavits of the following:
Martin Tytell, a typewriter engineer, in his affidavit states that in 1950 he was asked by the attorney for Hiss '* * * if it would be possible to construct a typewriter whose product would so nearly match the product of another typewriter in type defects, alignment and all other respects that a document expert comparing typed samples from the two machines would be led to believe that they had all been typed on the same machine. I told him that I thought this was entirely possible, particularly if I could have access to the machine which he wanted duplicated. He said he was more interested in finding out whether a duplicate machine could be constructed solely on the basis of samples taken from the machine to be duplicated. I said I believed this could be done, and undertook to try it. I have constructed a machine which I believe meets Mr. Lane's [defense counsel] specifications. Neither I nor any of my associates in the work have had nay access whatsoever to the original machine during the course of the experiment. The duplicate machine has taken longer to construct than I originally expected. This is due in part to the fact that it was many months before a qualified impartial document examiner could be found who was able and willing to examine my results as I went along and check me on my progress'. Evelyn S. Ehrlich, an alleged document expert, was consulted in December 1951 and the first samples were sent to her on December 14, 1951. Other samples were sent to her on December 31, 1951, and on January 7, 1952, as the construction of the typewriter progressed, which indicates that it had taken Tytell upwards of one year to construct his alleged duplicate machine. Mrs. Ehrlich, who describes herself as a detector of spurious prints, compared the work of Tytell with samples typed on No. 230,099. In her first affidavit she says -- 'When I examined them I was struck by the extraordinary degree of similarity which had been achieved in the typeface of these two machines. However, when I examined the samples more carefully under a microscope (magnification 30X) I found a few consistent details of difference which appeared to make it possible to separate these samples into two groups'. Of the second set of samples given her on December 31, 1951, she says she reached the same conclusion. 'Again I felt that I had successfully differentiated the typing of the two machines, but only on the basis of a few specific characteristics'. After these experiments, '* * * Mr. Lane informed me which specimens were typed by one machine and which from the other (confirming the conclusions I had already reached), * * *'. Concerning the testimony of Mr. Feehan, the Government expert from the laboratory of the Federal Bureau of Investigation [FBI], she says 'Mr. Feehan took ten separate characters appearing both in the Baltimore Documents and in the Hiss standards and pointed out similar deviations [from the normal] in the two groups of documents. On this evidence he concluded that a single machine had been used. It is my opinion that Mr. Lane's two machines contain many more similar deviations [from the normal] than the ten which Mr. Feehan described to justify his testimony at the trial'. She made a comparison of specimens of No. 230,099 with photocopies of some of the Baltimore Documents and photocopies of the Hiss standards. She had difficulty working from the copies and she will only say '* * * that it is entirely possible that the so-called Hiss machine now in Mr. Lane's possession is not the machine which was used to type the Hiss standard'. [Standard No. 46-B]
In her second affidavit, on comparing the original Baltimore Documents, the original Hiss standards (Nos. 34, 37, 39 and 46-B, and Defendant's Exhibit TT), and the work of No. 230,099, she again had difficulty working with the papers and she says only that 'In my opinion, # N230099 cannot be the same machine that typed Government Exhibits 37 and 46-B and Defendant's Exhibit TT'. She also states 'On the other hand, I have not found it possible to form a definite opinion as to whether the Baltimore Documents were typed on # N230099'.
Elizabeth McCarthy, an examiner of questioned documents, in her first affidavit on January 22, 1952 says -- 'The experiment has now been completed to the greatest extent possible in the time allowed. I am not prepared to say that the duplication between the two machines is even yet complete to the highest degree of accuracy, and in fact I know that there are still a small number of characters sufficiently dissimilar so that in the light of the careful observation I have had occasion to give to samples from the two machines during the progress of the experiment I should myself find it possible to distinguish between the products of the two machines'. She states that an expert '* * * would find it difficult if not impossible to distinguish * * *' between them and says 'In particular, the success of the experiment shows that any such testimony as that given by the Government's expert, Mr. Feehan, at the second trial, basing his conclusion of identity of machines on the identity of only ten characters in the two sets of documents, is absolutely worthless'.
In her second affidavit, McCarthy, on comparing the original Baltimore Documents, Hiss standards and specimens of No. 230,099, says -- 'I have made my examination of the three sets of documents in the light of my knowledge of Dr. Norman's findings, * * *. Without considering the possibility of forgery, I should have concluded, by all standard tests ordinarily applied by questioned document examiners, that all three sets of documents were typed on the same machine. I should not have based this conclusion merely upon an inconsequential number of relatively identical peculiarities [referring to Feehan's testimony], but upon the more convincing fact that I find no substantial consistent deviations in type impressions as among the three sets of documents'. She further says '* * * while I cannot say definitely that all three sets of documents were not typed on the same machine, I believe it just as possible, in the light of the observable facts, that the Baltimore Documents were typed on a machine which was not the original Hiss machine used for the standards, * * *'.
It is evident that McCarthy, Ehrlich, and defense counsel have proceeded on an erroneous elementary assumption when they say that Mr. Feehan based his opinion, that the Baltimore Documents and the Hiss standards were typed on the same machine, solely upon a comparison of ten characters and his examination was therefore inadequate. For in Feehan's affidavit he states that 'I examined and compared each typewritten character [emphasis added] appearing on the Baltimore Documents #5 through #9 and #11 through #47 with the known standards, taking into consideration style of type, alignment, horizontal and vertical spacing, footing, variations and defects'. At the trial Feehan was asked, after he had stated his opinion, to '* * * point out to the jury some [emphasis added] of the evidence which you discovered which made you come to that conclusion'. Feehan was not cross-examined regarding this testimony, and counsel for defense in his summation said:
'The Government expert said that in his opinion these Baltimore Documents were typed on the Woodstock typewriter. Undoubtedly that is a good opinion. As I told you in the opening, we consulted experts, and in their opinion they thought so too'.
The typewriter No. 230,099, now challenged by the defense, was produced upon the trial by the defense and definitely identified by Hiss, Mrs. Hiss and several of the defendant's witnesses as the Hiss typewriter.
Daniel Norman, who describes himself as a consulting industrial chemist, in his first affidavit, states that he was consulted by defense counsel, who requested Norman to examine the machine No. 230,099. Norman says 'My examination of Woodstock N230099 and comparison of it with the comparison machines [several old Woodstock typewriters furnished by defense counsel] point definitely to the conclusion that Woodstock N230099 is not a machine which has worn normally since leaving the factory, but shows positive signs of having been deliberately altered, in that many of its types are replacements of the originals and have been deliberately shaped'. He says '* * * that the ends of the type on N230099 are covered with large irregular blobs of solder, which in general (29 out of 42 keys) have not been filed flat, while on the comparison machines the type-typebar joint is frequently evident and the solder has been filed flat'. He states that he found a greater nickel content in heavy solder encrustations on type of No. 230,099 than in solder that 'appeared normal', and 'The appearance of the solder on N230099 definitely suggests that the soldering was not done at the Woodstock plant or by a professional repair man'. He says he found that the typefaces on No. 230,099 differ in metal content and apparently 'were not all made from the same batch of metal'; that he noted 'abnormal tool marks' on letters A, Y, and T on No. 230,099. In his second affidavit he states he examined the Baltimore Documents and in his opinion the stains on some and absence of similar stains on others and the different conditions of the documents indicate that they were not stored together in the dumbwaiter shaft, or in the envelope produced by Chambers.
The affidavits, submitted by the Government, of Conrad Youngberg, assistant superintendent of the Woodstock plant for several years prior to 1930, thereafter superintendent; Otto Hokanson, superintendent of the plant until Youngberg took over; and Joseph Schmitt, the factory manager and employed by the plant from 1920 until date, state that after typefaces were attached to typebars the solder was filed and then they were nickel-plated; that repairmen who work on typeface usually don't re-nickel them; that the amount of solder on machines varied; that, in Schmitt's opinion, based upon Norman's photographs, the amount of solder on No. 230,099 is not abnormal and resembles Woodstock work; that the typefaces come from a stockpile which might be composed from different batches of steel; and that the markings on some of the typeface as shown in Norman's photographs are not the result of deliberate alterations but of rough wear and the typefaces striking the metal heels of other type in motion. These affidavits indicate that the presence of nickel arises from the plating process and that if there were changes in type, there would probably be less nickel present than on type which had not been altered.
James Cadigan of the FBI laboratory, in his affidavit submitted by the Government referring to the condition of the documents, states 'The inference that papers of the same general class will show the same aging characteristics is without foundation. Far more important are variations in such constituents as rosin (sizing material), iron, lignin and bleaching. Rosinsized paper is particularly susceptible to yellowing and aging and these changes are accelerated by heat and light. Consequently, whether or not they are of the same class, they cannot be expected to show the same aging characteristics if they are not identical in composition'. The affidavit of William Magee, of the ...