Before SWAN, Chief Judge, and CLARK and FRANK, Circuit Judges.
This is an appeal by the movant from the denial of a motion pursuant to Rule 33 of the Rules of Criminal Procedure, 18 U.S.C.A., for a new trial on the ground of newly discovered evidence. The appellant was convicted after a jury trial on a two count indictment.*fn1 His conviction as affirmed by both this court and the Supreme Court.*fn2 Familiarity with the facts set forth in those opinions will be assumed.
The motion for a new trial was heard upon affidavits. The new evidence relied upon is directed at impeaching the testimony of Lawrence Lee, an agent of the Bureau of Narcotics, who testified to damaging admissions of guilt made by On Lee to Chin Poy, another undercover agent of the Bureau. Chin Poy was not a witness at the trial. His affidavit submitted in support of the motion denies that On Lee made the admissions which agent Lee testified he had overheard by means of a radio microphone. A further attack on agent Lee's credibility is made by the affidavit of attorney Rosenthal who asserts on information and belief that since the trial agent Lee had been forced to resign from the Bureau of Narcotics because of "improper acts" in other matters, and consequently the United States Attorney has dismissed several pending indictments which required the testimony of agent Lee, thereby evidencing unwillingness to vouch for his testimony.
A motion for a new trial on the ground of newly discovered evidence is addressed to the discretion of the trial judge.*fn3 In deciding it he may utilize the knowledge he gained from presiding at the trial as well as the showing made on the motion.*fn4 On an appeal from denial of the motion decision must turn on whether there has been an abuse of discretion in denying it.*fn5 And the order will not be reversed unless the new material tends to "furnish evidence of defendant's innocence," and is such as would probably produce an acquittal.*fn6
In the light of these elementary principles, Judge Bondy's denial of the motion was correct. Chin Poy's affidavit is in effect a recantation of a signed statement made by him before the trial.*fn7 To credit his present assertions that he had no discussion with On Lee concerning narcotics and did not know the purpose of the "box" agent Lee put in "my overcoat pocket" strains credulity. He does not deny that he himself was an undercover agent of the Bureau. He was instructed by agents of the Bureau to engage appellant in conversation; it is absurd to assert that such conversation did not relate to narcotics and that he did not know that the "box" in his pocket was a microphonic device. His own prior signed statement to the agents, attached to the opposing affidavit, refutes his present contention. His affidavit admits fifteen convictions for possession and use of narcotics. His credibility, to say the least, is doubtful.*fn8 Were Chin Poy to testify at a new trial, his testimony would at best serve only to impeach that of agent Lee; but, in view of his conflicting statements, and his fifteen prior convictions, it is doubtful that the jury would give much credence to his story.*fn9 Moreover, appellant himself took the stand and disputed agent Lee's story; thus the jury heard conflicting versions and chose not to believe that of appellant.
The other attack upon agent Lee's testimony is based on his subsequent discharge from the service of the Bureau of Narcotics and the dismissal of indictments in cases where he was needed as a witness. As noted above these charges are made on information and belief but we will assume them to be true since the one affidavit submitted in opposition to the motion is silent on this subject. The fact of agent Lee's discharge for "improper acts," whatever they may have been can do no more than lessen his credibility.*fn10 But even without his testimony the other evidence at the trial was sufficient to sustain the conviction. There was positive testimony as to appellant's guilt by his co-defendant, Gong Len Ying; and the testimony of an accomplice need not be corroborated in the federal courts.*fn11 Moreover, agent Gin testified to the sale and this was corroborated by Officer Monahan.
Accordingly, we conclude that were a second trial awarded, the newly discovered evidence offered by appellant's motion would not probably produce an acquittal. There was no abuse of discretion in the denial of the motion. Judgment affirmed.
FRANK, Circuit Judge (dissenting).
I wholly agree with my colleagues that he new affidavit by Chin Poy is no ground for granting a new trial. For, as my colleagues say, were there a new trial, "it is doubtful that the jury would give much credence to his testimony" because his "credibility, to say the least, is doubtful," in the light of the facts of his "fifteen convictions for possession and use of narcotics." As the prosecutor stated in his affidavit in opposition to defendant's new trial motion, "Obviously, he [Chin Poy] is a person whom a jury would disbelieve." Doubtless that is why the government did not call him at the trial; and doubtless, for the same reason, the government would not call him if there were a new trial.
Consequently, were there such a trial, the sole evidence - if any - of the conversation between Chin Poy and defendant, in which defendant made alleged admissions of his guilt, would be the testimony of Narcotics Agent Lee. But newly discovered evidence - not discoverable until after the trial - makes it clear that either (a) the government would not again use him as a witness, or (b) if it did, his testimony would be so seriously damaged that very probably no jury would believe him. For an affidavit filed in support of the new trial motion contains the following statement which the government does not deny (but in effect admits) and which we must therefore take as true and provable (if necessary) at a new trial: "Since the trial of this case, Agent Lawrence Lee has been forced to and permitted to resign from the service of the Narcotics Bureau of the Treasury Department because of some improper act or acts of Agent Lee in another matter or matters. As a result of this, the Office of the United States Attorney for the Southern District has dismissed several pending indictments which required the services and testimony of Agent Lawrence Lee, being unwilling, apparently, to vouch for the testimony of Lawrence Lee."
I repeat that, as a consequence, at a new trial either there would be no evidence of the conversation between defendant and Chin Poy or it would consist of Agent Lee's testimony which would be so discredited that in all probability the jury would not believe it. In short, either there would be no evidence whatever of defendant's alleged admissions in his talk with Chin Poy or it would be most unlikely that a new jury would believe that evidence (i.e., Agent Lee's testimony).
My colleagues suggest, however, that the foregoing has no significance, because, even without any evidence as to those admissions, the record contains sufficient evidence to sustain the verdict against defendant. But that fact will not justify denial of a new trial if Agent Lee's testimony may well have been the factor which induced the verdict - i.e., if, absent that testimony, the balance of the evidence was of such character that defendant might well have been acquitted. And the opinion of the Supreme Court in this case, 343 U.S. 747, 72 S. Ct. 967, 96 L. Ed. 1270, demonstrates that that Court so thought. For if the Supreme Court had thought the other evidence so convincing that the absence of Agent Lee's testimony would probably have had no substantial effect on the verdict, i.e., if the Court had thought the jury probably found defendant guilty without regard to that testimony, then of course the Supreme Court would not have granted certiorari to consider, and would not have devoted its entire opinion to considering, whether there was error in receiving this testimony, but would have held merely that if there was error it was harmless.*fn1
So here we have testimony which the Supreme Court regarded as very likely having led to a verdict adverse to defendant. Surely we should grant a new trial when at such a trial that very testimony, because of newly discovered material, would not be offered by the government or, if offered, almost certainly would not be believed by ...