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February 28, 1972

Andrew MUNCHAK, Jr., Defendant

Edward Weinfeld, District Judge.

The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, District Judge.

This second motion for a new trial, based upon alleged perjury by a government witness and alleged newly discovered evidence, is made after the Court of Appeals affirmed the defendant's judgment of conviction, *fn1" as well as the denial of the prior motion for a new trial, based also upon alleged perjury of other witnesses, employees of the defendant.

 Defendant was found guilty on December 30, 1969, after a seven-day jury trial on one count of a four-count indictment charging mail fraud violations. *fn2" Two counts, which concerned transistors labelled "JAN CGO 2N 1722," were dismissed by the court at the close of the government's case. The remaining two counts related to transistors labelled "2N 1225 RCA"; the jury acquitted on one count and found the defendant guilty on the other. The indictment charged that the defendant made false representations that the labelled 2N 1225 RCA transistors (1) "were manufactured by firms which did not manufacture them"; (2) "were newer than they in fact were"; (3) "were in containers received from the manufacturer when this was not in fact the case"; and (4) "were of higher quality than was in fact the case."

 With respect to defendant's present motion, neither party requested an evidentiary hearing, and after argument it was submitted for decision on the moving and opposing affidavits. *fn3" The court, in its consideration of the motion, in addition to its recollection of events at the trial, of witnesses and their demeanor, has read the entire trial transcript. *fn4"

 In order to put the defendant's motion in proper focus, it is desirable at the outset to outline the substance of testimony. The evidence abundantly established that soon after defendant had received an order for a shipment of 2N 1225 transistors, he ordered five peg stamps bearing the insignia "RCA" circled by "2N 1225" and letter designations "D" and "H7", *fn5" and that the casings of transistors shipped by defendant's firm were marked with the symbols from the peg stamps. The defendant's version of his purpose in ordering the stamps and the use to which they were put was a central issue at trial.

 On his present motion, the defendant asserts that newly discovered evidence from RCA's files shows that Albert Kick, chief security officer for RCA Electronic Components, did not tell the truth when he testified at trial that RCA had not performed any tests on the transistors in evidence; the defendant contends that these tests show the transistors were manufactured by RCA and were of good quality. *fn6" The charge must be considered against the totality of the evidence.

 The defendant Andrew Munchak, Jr. is the president and owner of Astronetics, Inc., a dealer in the buying and selling of surplus transistors and other electronic parts. In August 1967, F.G. Mason Engineering Company, a manufacturer of radio surveillance equipment, placed an order for 5000 "RCA2N 1225" transistors. After passing through intermediate distributors, Astronetics, Inc. received an order on August 31 for "2N 1225" transistors. Two days thereafter, the defendant ordered from Patterson Stamp Company five "peg stamps" bearing the mark "RCA", circled by the designation "2N 1225", "H7" and "D". A peg stamp is a rubber dye at the end of a pencil-like shaft used for marking purposes. Several days after receiving the peg stamps, Astronetics shipped, in partial fulfillment of the order, approximately 2100 transistors which, after passing through intermediate distributors, finally were delivered to Mason Engineering. The casings of the 2100 transistors bore an RCA symbol similar to that appearing on the stamps Munchak had ordered. Collins, president of Patterson Stamp Company, testified that in his opinion the impressions on the tops of those transistors, nine of which were received in evidence at the trial, had been made by the peg stamps purchased by Munchak. A production supervisor of the Mason company testified that the transistors received by it failed to perform in the manner of prior "RCA1225's"; they would regenerate or oscillate; they drew too much current and had a very short life span. *fn7" The deficiencies resulted in Mason company officials complaining to RCA, and the delivery by them to RCA in December 1967 of about fifteen of the transistors, with the bulk of the shipment returned to the intermediate company from which it had been purchased. Eventually these were returned to Astronetics.

 A postal inspector testified to Munchak's statements that the transistors sold to Mason were part of a salvage lot Astronetics had purchased about three years previously; that when received they were placed on shelves in old and dirty boxes with old dates on them; that to make them more saleable they were repackaged in new small boxes imprinted with peg stamps purchased for that purpose; that the stamping was done by Willard McElwain and Gloria and Anne Smith, employees of Astronetics. However, each employee denied having stamped any boxes with the peg stamp. Mason and each intermediary distributor through whom the shipment passed testified that the transistors were not in individual boxes, but were bulk packaged in large plastic boxes and in a plastic bag.

 We now consider the testimony of Albert Kick upon which the defendant bases his claim for a new trial on the ground of alleged perjury and newly discovered evidence. Kick had been with RCA for twenty-seven years. In December 1967, he initiated an investigation following receipt by RCA of the fifteen transistors *fn8" from Mason upon its complaint as to the performance of the transistors contained in the Astronetics shipment. Kick's direct testimony concerned two major subjects -- the stamping on the RCA transistors in evidence and conversations with Munchak during the course of the investigation. He also discussed when the transistors in question would have been produced were they of RCA manufacture. Kick testified that the markings on the transistors were not made by RCA; that in his opinion the peg stamps purchased by Munchak were used to stamp those transistors in evidence which had been sold to Mason. As already noted, Collins of the Patterson Stamp Company had previously testified to the same effect. Kick explained, on the basis of RCA's internal code system, why the casings of the transistors delivered to Mason could not have been stamped by RCA -- the markings "D", "7" and "H" were not the style or type used by RCA; the letter showing the plant of manufacture was missing; the letter for the manufacturing date was in the wrong position; the number for the shipment date was upside down. According to RCA's code system, the number on the nine transistors in evidence indicated a shipment date of August 1967 and recent manufacture. Kick testified that while he could not state with certainty whether or not RCA had manufactured the casings on which the stamp appeared, if RCA had manufactured them, it was no later than 1964, because in that year the company had changed the construction of the casing and the transistors sent to Mason were of the old type. *fn9"

 Kick then testified to matters which the government urged as false exculpatory statements by Munchak. He called upon Munchak in January 1968 and told him he was tracing counterfeit transistors and had information that they had originated with Astronetics; when he handed Munchak samples of those shipped to Mason, the defendant, upon looking at them, stated, "anyone can see these are counterfeit or over-stamped, that they didn't come from here."

 Under cross-examination, Kick adhered to the substance of his direct testimony that the transistors had been counterfeited with the RCA symbol and that Munchak had denied his firm had shipped them. Kick again acknowledged that the transistors in evidence could be genuine RCA parts, but asserted that they would have been manufactured prior to 1964. *fn10"

 We now come to that portion of Kick's testimony which the defendant alleges is perjurious. At the very conclusion of his cross-examination, he testified:

"Q You have told his Honor and the jury about your activities in connection with this investigation and the preparation of various photographs which had been shown to you.
"Will you tell his Honor and the jury whether RCA ran or conducted any tests on these allegedly non-RCA components, indicating Government's Exhibits 3A through 3 'i'?
. . .
"A There were no tests made on these Exhibits 3A through 'i'." *fn11"

 It is observed that counsel's question referred to the nine transistors in evidence and the witness responded in kind. It now appears that RCA at Kick's instigation, had conducted tests on two transistors of the Mason shipment.

 Before considering defendant's charge that Kick's testimony was perjurious, the trial testimony should be rounded out. Munchak testified in his own behalf. He denied that he or anyone else in Astronetics' employ stamped the casings of the transistors shipped to Mason. He acknowledged he had made statements that the transistors had been obtained by lot purchase three years before and that they could have been obtained in lots during the last eight or ten years. He testified he had ordered the peg stamps, but only to stamp, as was Astronetics' practice, the outer lids of white boxes in which the units were shipped, thus contradicting the testimony of government witnesses that the shipments had been in large plastic containers. His testimony was also in contradiction of that of employees who denied they had ever stamped either the transistors or boxes. Munchak claimed that he had thrown away the peg stamps because they could no longer be used, *fn12" but there was evidence that an individual stamp could make up to 100,000 impressions. Munchak ...

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