Before Lumbard, Chief Judge, and Magruder*fn* and Friendly, Circuit Judges.
The principal question on this appeal is whether the district court should have granted a new trial to Anthony Passero where his counsel has belatedly become aware of the contents of a government agent's sworn complaint for Passero's arrest, which complaint contained statements contrary to the agent's testimony at trial, although Passero and his counsel knew of the existence of the complaint for more than five months before trial.
We conclude that the district court acted within its discretion in denying the motion for a new trial as it is clear from the record that both Passero and his counsel knew of the existence of the complaint for many months before trial. Under such circumstances the defendant will not be heard to contend, after his conviction, that he could have used the complaint to examine the government agent at the trial, and to argue that his failure to use it is excused by the fact that he was unaware of its contents. Accordingly, as we find no error in the conduct of the trial, we affirm the conviction and the denial of the motion for a new trial.
Anthony Passero was tried in March 1960 on charges of selling and concealing narcotic drugs on two occasions in August 1958. He was convicted on four counts of the indictment and sentenced to six years' imprisonment. After notice of appeal had been filed, his counsel moved this court to remand the case to the district court for consideration of a motion for a new trial. The basis for this motion was counsel's allegation that, in the course of preparing to file the record on appeal, he had discovered a complaint, sworn to before the United States Commissioner by Narcotic Agent Fred Dick, upon which complaint warrants had issued for the arrest of Passero and one Vincent Charles Papa. In this complaint, dated May 8, 1959, and set forth in the margin,*fn1 Dick swore that on August 27, 1958 he had personally observed Passero deliver narcotics to William Newkirk, a narcotic agent, and had seen him receive money from Newkirk. However, at Passero's trial, Agent Dick, on cross-examination, swore that he had not personally observed Passero deliver narcotics to Newkirk. On direct examination Dick had testified that he had seen Passero and Papa standing on a street corner - where Agent Newkirk had testified that the sale was made that same night - and that, after going around the block, Dick returned and saw Passero and Papa drive away together.
We remanded the case on June 13, 1960 to permit the district court to consider a motion for a new trial. Judge Bartels heard the matter on affidavits and denied the motion, 185 F.Supp. 665. Passero now seeks review of the order denying him a new trial as well as reversal of his conviction for alleged errors in his trial.
Passero urges that he is entitled to a new trial on two grounds both related to the discrepancy between Dick's complaint and his trial testimony. First, he asserts that the newly discovered evidence casts sufficient doubt upon his guilt so that the trial court, acting under Rule 33 of the Federal Rules of Criminal Procedure, 18 U.S.C., should have granted him a new trial "in the interest of justice." Second, he urges that whether or not the evidence met the standards that have been developed to determine whether a new trial should follow the discovery of new evidence, the government's failure to inform his counsel of the affidavit deprived him of a fair trial and therefore vitiated his conviction.
Consideration of Passero's contentions requires us to summarize the trial proceedings in order to evaluate the importance of Dick's testimony and the opportunities available to Passero and his counsel for the discovery of Dick's sworn complaint.
Passero was tried together with one Lillian Vashti Moore as both were charged in Count VI of the indictment with concealing hereoin on September 8, 1959, but at the conclusion of the trial Count VI was dismissed as to Passero.Although the jury convicted Passero on four other counts for sales and possession of heroin on August 15 and 27, 1958, it reported a disagreement as to the defendant Moore.*fn2
Events of August 14-15, 1958
On the government's case, Agent Newkirk testified to the negotiations which he and an informer, Charlie Williams, had with Passero in August 1958 which he said resulted in sales of heroin on August 15 and 27. Shortly before midnight of August 14, Newkirk had Williams telephone Passero and arrange a meeting. The three men met at Charlie's Tavern in Long Island City and for $250 Passero agreed to sell two ounces of heroin which he said could be found in an outdoor telephone booth near a gas station. Some five minutes later - early on August 15 - the witness and Williams drove to the booth and there, taped to a shelf, he found a white package containing envelopes filed with a white powder which he later delivered to Agent Dick in Manhattan.
Agent Dick testified that on the evening of August 14 he had given $250 in government funds to Newkirk and received from him a white powder which tests showed to be an opium derivative. He further stated that from his car parked outside Charlie's Tavern, he saw Newkirk and Williams and, shortly thereafter, Passero entered the tavern. He followed Passero from the tavern to the nearby Cocoanut Inn and thereafter, while driving along, saw Newkirk standing in the telephone booth near the gas station.
Agent Arthur Fluhr testified that he was sitting in another car outside Charlie's Tavern and saw Newkirk, Williams and Passero enter and leave the tavern in the order testified to by Newkirk. He then followed Newkirk and Williams and saw ...