The opinion of the court was delivered by: BARTELS
Defendant Harold Wapnick, having been found guilty of sixteen substantive violations of 18 U.S.C.A. § 2312 (transporting motor vehicles in interstate commerce knowing the same to have been stolen) and also of conspiracy to transport such vehicles, after a jury trial, moves for a new trial on the basis of 'newly discovered evidence', pursuant to Rule 33, Fed.Rules Crim.Proc., 18 U.S.C.A.
The two basic tests for measuring the substantiality of newly discovered evidence are those set forth respectively in Berry v. State,
requiring, among other things, that such evidence 'is so material that it would probably produce a different verdict, if the new trial were granted', and the less rigorous test of Larrison v. United States,
which would permit a new trial if the evidence 'might' have produced a different verdict assuming it meets the other qualifications. These rules have been discussed and analyzed in United States v. Costello, 2 Cir., 1958, 255 F.2d 876. The Larrison test has been stated to be limited to cases of 'recantation or where it has been proved that false testimony was given at the trial'. United States v. Hiss, D.C.N.Y., 1952, 107 F.Supp. 128, 136.
With regard to the application of the Larrison test, the Court of Appeals has recently stated that might 'means something more than an outside chance although much less than the 'would probably' of the Berry rule'.
Apparently, neither test is adopted for all purposes but which test is to be applied will depend upon the circumstances of the individual case.
The basis for the instant motion is that Wapnick has discovered new evidence since the trial which seriously impugns the credibility of the Government's witness Irving Solkoff, and evidence which establishes that the testimony of the Government's witness Jose Monteiro was, at least in one respect, false.
Defendant Wapnick took the stand on his own behalf and testified that he had financed Roy and Monteiro in purchasing and repairing wrecked cars, had no knowledge that Roy and Monteiro were substituting stolen cars for wrecks, knew nothing about the 'hot car racket' and did not know any of the car thieves, including one Vito Cappola, with respect to whom Wapnick testified as follows (Transcript, K.268):
'Q How long have you known Vito Cappola?
'A Never knew Vito Cappola.
'Q Never met Vito Cappola?
'A I might have seen him at Phil Roy's place, but I never had any conversation with him.'
Subsequently at the close of defendant's case the Government called Irving Solkoff as a rebuttal witness. Solkoff stated that Wapnick was the husband of his wife's cousin and further testified as follows (Transcript, L.142):
'Q Did you ever have occasion to introduce the defendant Harold Wapnick to Vito Cappola?
Solkoff explained that he had gone to a basketball game with defendant Wapnick in '1958, approximately around the Thanksgiving or Christmas, or holiday' (Transcript, L.142), and that after the game he and Wapnick travelled to Brooklyn to get Solkoff's car which had been loaned to Vito Cappola. Solkoff added that Wapnick, after the introduction, had a ten or fifteen minute conversation with Cappola in Solkoff's presence. The testimony of Solkoff was restricted to the issue of the credibility of Wapnick's prior statement and by objection by defense counsel the nature of the conversation between Wapnick and Cappola was barred.
Wapnick now says that he has made two new discoveries since the trial with respect to Solkoff, one is that he never went to a basketball game with Solkoff until March of 1959, at which time he was introduced by Solkoff to one Jim Martin, and the ...