Moore, Smith and Hays, Circuit Judges. Moore, Circuit Judge (dissenting and concurring).
J. JOSEPH SMITH, Circuit Judge:
This is an appeal from an order of the United States District Court for the Eastern District of New York, entered April 8, 1968, Walter Bruchhausen, Judge, denying the motion of appellants Anthony and Salvatore Polisi for a new trial on the grounds of newly discovered evidence, Rule 33, Fed.R.Crim.Proc. We find error as to appellant Anthony Polisi and reverse for a new trial. We find no error as to Salvatore Polisi, and as to him affirm the order.
On October 8, 1965 an indictment was filed in the District Court charging the appellants and four others -- Cordero, Smith, Parks and Zaher -- with the July 7, 1965 armed robbery of the Central Queens Savings and Loan Association, and with conspiracy to effectuate this robbery and that of the Queens County Federal Savings and Loan Association on July 30, 1965. On January 10, 1966, the first day of trial, the four additionally mentioned defendants withdrew their prior not guilty pleas, and entered pleas of guilty. In the ensuing trial, the government's case against the Polisis relied upon the testimony of three of the four confessed participants, Smith, Parks and Zaher, who described Anthony Polisi as the mastermind of a nationwide bank robbery business. Cordero was not called as a witness against the Polisis, although he was available. On January 26, 1966, a jury found Anthony Polisi guilty of the Central Queens robbery count, and found both appellants guilty of the conspiracy counts. Anthony and Salvatore Polisi were sentenced to fifteen and three year terms respectively.
The newly discovered evidence alleged in the instant case arises from a subsequent trial and conviction, which will be referred to as the Franzese trial, upon an indictment in the Eastern District of New York charging Anthony Polisi, and Cordero, Smith and Parks, together with six others (Franzese, Potere, Florio, Messineo, Matera and Crabbe), for the robbery of the Queens County Federal Savings and Loan Association on July 30, 1965 (for which the Polisis had already been convicted of conspiracy to rob), and the robbery of the United Savings and Loan Association on August 13, 1965. Appellant Salvatore Polisi was not named in these counts. At the Franzese trial, Smith, Parks, Cordero and Zaher again pleaded guilty and all testified for the government, this time, however, relegating the appellant Anthony Polisi to a relatively minor role in their description of the bank robbery operation; and instead testifying that the leadership belonged to Franzese, Potere and Florio:
The Government's case against them rested almost entirely on the testimony of four confessed participants -- Smith, Parks, Cordero and Zaher -- who cast defendants in the role of behind-the-scenes operators of a nationwide bank robbery business. Franzese was the general manager; Potere was the procurer and explicator of plans of the banks and took general charge of logistics; Florio assisted in these operations; * * *.
What is more troubling is that three of the Government witnesses -- Smith, Parks and Zaher -- had previously depicted Anthony Polisi, owner of the Aqueduct Motor Inn in Queens, as the master-mind of the same enterprise and had so testified in a trial in January, 1966, wherein Anthony and his son Salvatore were convicted, in contrast to the testimony of Smith, Parks and Cordero at the instant trial that Anthony's services after mid-July, 1965, were in storing weapons and furnishing a meeting place. This was substantially what Cordero, who had not been called as a witness against the Polisis, had said in statements to the FBI shortly after his arrest on September 30, 1965. United States v. Franzese, 392 F.2d 954, at 957. [emphasis added]
On appeal from the convictions in the Franzese case, this discrepancy between the testimony of Smith and Parks at the Polisi and Franzese trials was raised, on the issue of the extent to which the government was allowed to rehabilitate its witnesses after attempted impeachment based on their failure to mention the Franzese trial defendants in their testimony at the Polisi trial. In United States v. Franzese, 392 F.2d 954, 957 (2 Cir. 1968), we stated:
In fact the inconsistency was not quite so great as the appellants argue. * * The quartet, dissatisfied with Anthony Polisi's management, were summoned to a meeting at the Aqueduct Motor Inn on an evening in late July, 1965, attended by all five appellants. [Franzese, Crabbe, Matera, Potere and Florio] Franzese announced that he was taking over, on a 50-50 basis, and that work orders would be issued by his four associates from time to time. The testimony at the Polisi trial as to the robberies of July 7 and 13, both antedating a meeting * * * where Franzese is alleged to have taken over, is consistent with the story told by the Government's witnesses in this case; the conflict comes with the robbery of the Queens County Federal Savings & Loan Ass'n on July 30. This court affirmed the Polisis' conviction from the bench in November, 1966; the Government did not disclose its new information as to Anthony's less significant role in the Queens County Savings & Loan robbery. [emphasis added]
We further noted that in their Franzese grand jury and trial testimony, Smith, Cordero and Parks testified that their failure to mention the Franzese defendants at the Polisi trial was due to fear for their lives, safety and families if they informed. 392 F.2d at 957-958.
Appellants argue that the shifting testimony of the four accomplices was in fact due to the government's promising special consideration which, combined with their fear of the Franzese defendants, led them to perjure themselves. In addition, appellants maintain that their conviction was also based upon the government's misconduct in suppressing or failing to disclose the favorable statements by Cordero indicating the complicity of Franzese and the minor role played by Anthony Polisi. In support of this "conspiracy" theory, appellants rely upon admissions by Smith and Parks that they agreed with Cordero to omit Cordero's name as a participant in the robbery of the Mount Holyoke National Bank, and instead state that Salvatore Polisi went into the bank when in fact he waited outside in the "get away" car. They also rely upon a statement by Zaher that to his knowledge on October 11, 1965, Franzese had been the "boss" of the bank robberies on July 7 and 13, 1965.
The District Court rejected appellants' arguments and denied their motion for a new trial, stating that the standards established by the court in United States v. Lombardozzi, 236 F. Supp. 957 (E.D.N.Y.1964), aff'd 343 F.2d 127 (2 Cir. 1965) were not satisfied:
The Court * * * is firmly convinced that the testimony of Cordero would only tend to impeach his own credibility and the credibility of the three named accomplices. Furthermore, the evidence produced during the trial of the defendants overwhelmingly supported the verdicts. His testimony, if called as a witness, probably would not have produced a different verdict. It would merely be cumulative.
Furthermore, the motion must fail under the Larrison test, recited in the Lombardozzi case, supra, for the reason that the Court is not satisfied that the testimony of the accomplices was false in its material aspects and, to repeat, the evidence overwhelmingly established the guilt of the defendants.
The scope of review of the denial of a motion for a new trial based on newly discovered evidence is narrow. Once the trial court has made a factual determination -- as to whether there has been suppression or perjury, for example -- the appellate court may not intervene except "when the findings of fact are wholly unsupported by evidence; * * * it should never do so where it does not clearly appear that the findings are not ...