Friendly, Chief Judge, Clark, Associate Justice, Retired,*fn* and Kaufman, Circuit Judge.
A conscientious and ingenious district judge has here endeavored to provide opportunity for an appellate ruling on the nature of a trial judge's powers and responsibilities when a jury has found a defendant guilty on evidence which was facially sufficient but which the judge, for well articulated reasons, could not credit. This praiseworthy effort has presented us with problems of no little complexity.
Albert Grunberger was convicted in February, 1969, after a jury trial before Judge Mishler in the District Court for the Eastern District of New York on three counts of having concealed, sold and facilitated the transportation of Swiss watches smuggled into the United States in violation of 18 U.S.C. § 545 and one count of conspiring to do so.*fn1 On his appeal this court rejected a contention of insufficiency of the evidence for submission of the case to the jury, but reversed the conviction because of trial errors, and directed a new trial. United States v. Grunberger, 431 F.2d 1062 (1970). The opinion noted that, after the case had been argued on appeal, Grunberger had moved in the district court for a new trial on the ground that he had newly discovered evidence proving that the 2,000 watch movements which the Government had claimed he had sold to Kalman Berger, the chief government witness, already belonged to Berger. In light of the disposition of the appeal we found a remand for consideration of this motion to be unnecessary since "the way is now open for appellant to introduce his newly discovered evidence" at the retrial, 431 F.2d at 1067, n. 8.
The Government's presentation at the second trial, before Judge Weinstein and a jury, differed from that in the first in a number of respects. At the first trial the Government's theory had been one of a simple "buy" transaction arranged by Berger at its request after he was assured of leniency in the smuggling prosecution then pending against him. Berger testified that he met with Grunberger for the first time on June 28, 1967, in a restaurant, and that a meeting was set for July 2 at Berger's home, at which time Grunberger would show him samples. When they met, Berger was shown the samples, the two men agreed on a price, and Grunberger described the watches as "smuggled." Their next meeting took place on July 17 when Grunberger drove Berger to a parking lot in Brooklyn, instructed him to leave a rented car there on July 19 and then go to a restaurant nearby to meet Grunberger. Berger testified that on July 19 he left the car at the lot, met Grunberger at the restaurant, gave Grunberger the keys to the car and the parking lot ticket, waited while Grunberger went off to arrange the transfer, and upon his return wrote Grunberger a check for $12,000 for the watches. Berger then testified that he and the Customs agents examined about a half dozen of the 2000 watch movements contained in a shopping bag in the trunk of Berger's car and bearing the trade name COVA, and found these movements to be unsymboled. Berger also stated that, based upon his experience as a watch smuggler, the movements were wrapped in the way smuggled watches normally are, as opposed to the way legally imported movements would be packed. Customs agents testified that a record check of all domestic ports of entry failed to show that COVA watch movements had been legally imported. From this the jury could properly infer that these movements were illegally imported. Grunberger asserted that the movements belonged to Berger all along, although he conceded that he had been a party to the delivery to Berger of 2000 watch movements from one Herstig, a watchmaker whom Berger had hired to remove the mark *LEICA* and substitute the name COVA. See 431 F.2d at 1065.*fn2
Prior to the second trial, examination of the watch movements demonstrated that *LEICA* had originally been inscribed on their face and that COVA had been superimposed. *LEICA* was Berger's trade name at least until just prior to the transaction here at issue. Berger was apparently informed of this either by a Customs agent or by the Assistant United States Attorney who handled the first trial. It was also shown that a large quantity of the *LEICA* faces had been manufactured in Germany in 1965 -- upon whose order is unclear.
In light of the newly discovered evidence, the prosecution dismissed two counts of the indictment charging sale and conspiracy. The prosecutor's summation made plain the Government's position that even if the jury found no sale on July 19, they could find that Grunberger knowingly concealed and facilitated the transportation of illegally imported watches with knowledge that they were illegally imported.
The Government endeavored to avoid putting Berger back on the witness stand at the second trial. It called him only after the judge indicated that without his testimony the Government had failed to make a prima facie case that the movements were illegally imported and that Grunberger knew this.
The prosecutor examined Berger only briefly and most of the story came out on cross-examination. One variation was that whereas at the earlier trial Berger testified that his first meeting with Grunberger occurred on June 28, he now said that Grunberger unexpectedly showed up at his house on July 2, and, as he was on his way out, got into his car, showed him a number of samples, and asked whether Berger would be interested in purchasing a larger quantity. More important variations in Berger's story related to the watch movements themselves. Whereas at the first trial Berger testified that he simply agreed to make a swift purchase of a large quantity of movements, at the second trial, faced with the knowledge that in fact the recovered movements bore his long standing trade name *LEICA*, he now asserted that he had ordered these from Grunberger some two and one-half years earlier, and these were the watches being delivered. As to the *LEICA* inscription, Berger now said that the samples Grunberger showed him at his home had this inscription, and that the watches recovered on July 19 also were so inscribed. In fact, however, all the watches recovered on July 19 showed the inscription COVA. Apparently Berger was not aware that the *LEICA* inscription had been found only after careful scientific examination disclosed that it underlay COVA, and Berger could thus not have seen it when the movements were delivered. Berger stuck to his story that Grunberger had described the watches as smuggled. Customs agents testified somewhat inconclusively that although the earlier record check regarding COVA watches had failed to disclose their legal importation -- a fact now insufficient to support an inference of illegal importation since the movements were found to have originally had *LEICA* inscribed on their faces -- a partial record check of domestic ports of entry also failed to show the *LEICA* movements were legally imported.
Grunberger moved for acquittal under F.R.Cr.P. 29 both at the close of the Government's case and at the end of the entire case. Judge Weinstein denied both motions.*fn3 The jury, on March 29, 1971, found Grunberger guilty on the two counts for wilfully and fraudulently concealing and facilitating the transportation of 2,000 unsymboled Swiss watch movements, knowing the same to have been illegally imported into the United States.
After unsuccessfully renewing the motion for acquittal upon the bringing in of the verdict, Grunberger filed written motions for acquittal and, if that were denied, for a new trial, within the time permitted by F.R.Cr.P. 29(c) and 33. Argument was first heard on May 14, 1971. The judge then indicated an intention to adhere to his previous rulings with respect to the motion for acquittal; the hearing was adjourned so that the Government might file a brief.
On June 10 Grunberger came on for sentence. The judge began by saying:
Continuing to reserve decision on the main motions, I sentence the defendant to one year imprisonment but suspend execution of sentence and place him on probation for a three-year period. In addition I sentence him to a fine of ten thousand dollars. The execution of the fine may be stayed for thirty days from that payment.
Pursuant to this the judge at some time signed a judgment of conviction, which was duly entered by the clerk. He then continued:
Now, I will address myself to the question of the motions.
Pursuant to the authority that I have under Rule 33, I would grant a new trial to this defendant as required in the interest of justice based upon my hearing of Mr. Berger and a comparison of what he said in this trial and what he said in the other trial, and I believe that his statements were incredible, and that he is not worthy of belief. This, however, was a matter for the jury, and if that were the only reason for granting a new trial, I probably would allow the verdict to stand, but I think that his testimony plus the physical evidence in the case as determined from inspection of the records and dials and the like and the German manufacture of the dials, and the changes in the story of Mr. Berger and the inconsistencies within the story, as well as I think the strong feeling I get from the record that the government agency involved, and I do not criticize the agency for believing that this defendant is a well-known smuggler, but that agency had to a greater degree than is normally acceptable, suggested to Mr. Berger its desire to see ...