The opinion of the court was delivered by: BARTELS
MEMORANDUM DECISION and ORDER
Zali Fried moves this court, pursuant to Rule 33 of the Federal Rules of Criminal Procedure, 18 U.S.C., for an order granting a new trial based upon newly discovered evidence and upon evidence of an exculpatory nature allegedly suppressed by the prosecutor, Assistant U.S. Attorney Thomas P. Puccio. Incidental to the motion for a new trial, defendant moves this court for a post-trial discovery order for inspection of certain documents and reports allegedly in the prosecution's possession, which are likely, defendant contends, to establish the negligent suppression of exculpatory evidence. Accordingly, the court held a hearing at which Assistant U.S. Attorney Puccio was examined at length.
On March 3, 1972, following a nine-day jury trial, Zali Fried, along with her son Simon Brach, was convicted on one count of unlawful possession (18 U.S.C. § 659), and one count of unlawful sale (18 U.S.C. § 2315) of "Unisonic" AM-FM stereos, moving as part of a foreign shipment of freight. Fried was sentenced to three years in prison and a fine of $5,000 on the first count, and on the second count she was placed on probation for a two-year period following the completion of the prison sentence. Her conviction was affirmed by the Court of Appeals, Second Circuit, on July 25, 1972, and on December 11, 1972 the Supreme Court denied Fried's petition for a writ of certiorari. Bail has been continued throughout the lengthy appeal process.
It is well settled that motions for new trial are not favored, United States v. Johnson, 327 U.S. 106, 66 S. Ct. 464, 90 L. Ed. 562 (1946), and, in the interest of finality of judgments, should not be granted unless the defendant satisfies certain minimum requirements. A new trial may be granted under Rule 33 "if required in the interest of justice." In such event, the evidence must meet the following requirements: (a) It must have been discovered since the trial; (b) It could not have been discovered with due diligence before or, at the latest, at the trial; (c) It must be material and not merely cumulative or impeaching; and (d) It must be of such a nature that it would probably produce a different verdict in the event of a retrial. See United States v. Kahn and Teleprompter, 472 F.2d 272 (2d Cir., 1973); United States v. DeSapio, 456 F.2d 644 (2d Cir. 1972); United States v. Polisi, 416 F.2d 573 (2d Cir. 1969); United States v. Costello, 255 F.2d 876 (2d Cir. 1958), cert. denied, 357 U.S. 937, 78 S. Ct. 1385, 2 L. Ed. 2d 1551; Larrison v. United States, 24 F.2d 82 (7th Cir. 1928).
When, however, the newly discovered evidence was known to the Government at the time of trial but not disclosed, new dimensions are added to the rule. As we read the authorities, governmental suppression of evidence, which requires a new approach, may be classified in three categories: (1) Deliberate suppression, including failure to disclose evidence whose high value to the defense must have been obvious to the prosecutor, United States v. Keogh, 391 F.2d 138, 147-48 (2d Cir. 1968); (2) Suppression, after a request by defendant, of evidence favorable to the accused, material either to guilt or punishment, irrespective of the good or bad faith of the prosecutor. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972). The prejudice to the defendant, according to Polisi, supra, is to be measured by the effect of the suppression upon defendant's preparation for trial, rather than its effect upon the jury's verdict. But at all events it must be material and of some substantial use to the defendant. (3) Non-deliberate suppression of evidence by the prosecutor. In such event, a showing must be made that the suppressed evidence would probably have produced a different verdict. Kyle v. United States, 297 F.2d 507 (2d Cir. 1961). Placing in this category forgetfulness and failure to appreciate the use which the defense might make of the evidence, Judge Friendly said in United States v. Keogh, supra :
"To invalidate convictions in such cases because a combing of the prosecutors' files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict would create unbearable burdens and uncertainties." 391 F.2d at 148.
Application of the Standards
We turn now to the application of the above criteria to defendant Fried's motion for post-trial discovery and for a new trial. A brief description of the facts follows.
Defendant and her husband, Ishak Fried, are in the business in Brooklyn, New York, of importing and selling Japanese stereo radios under the name "Granada". On October 22d and 23d, 1970, approximately 589 cartons, each containing two sets of Japanese EightTrack Stereos ("Unisonics"), valued at over $62,000, were stolen from Pier 21 in Brooklyn, while consigned to the sole American Importer, North American Foreign Trading Corporation ("North American"). The theft was discovered soon thereafter, on October 26th, "and within weeks three separate quantities of the missing stereos were found, in the hands of a New York City retailer Joseph Levy, a Philadelphia wholesaler, William Hendler, and retailers who had purchased sets from a Pennsylvania wholesaler, Carl Beddo." United States v. Fried and Brach, 464 F.2d 983, at 984 (2d Cir., 1972). To continue the Court of Appeals summary, "Of the 85 stereo units seized from an Orchard Street loft in Manhattan from Levy, at least 82 bore serial numbers falling within the range of serial numbers for the missing units. Only one shipping carton was found at Levy's, and that in the hallway immediately outside the storeroom. Twenty-two units were seized from Hendler along with ten empty cartons; of these, 20 units and eight cartons bore stolen serial numbers. Six units were taken from purchasers from Beddo, of which five bore numbers within the indicated range. Not insignificantly, all of the units seized from Levy and Hendler, and at least half of those seized from customers of Beddo were sold by people connected with Fried Trading Co., a Brooklyn firm owned," Id., at 984, by Zali Fried and her husband.
As the Appellate Court has already noted, ample facts were adduced to support defendant Fried's conviction. According to witness Hendler, Zali Fried called him and sold him a couple of dozen of the stereos "at only $5.00 per unit above North American's cost and a full $7.00 below North American's lowest selling price to retailers." Id., at 984. Hendler received no bill or invoice from Fried before or after delivery of the units; furthermore, the shipping label on the cartons referred to "G & S Trading Co.," an altogether fictitious company. No bill or invoice was received by Levy either. Beddo purchased his stereos "over-the-tailgate," from a parked truck at the Fried place of business. Defendant Fried never adequately explained how Fried Trading Co. became seller of Unisonics in late October, 1970; and this was especially incriminating in view of the fact that neither Unisonics nor North American had ever sold stereos to the Frieds or their firm. While not all of the stereos and cartons seized from Hendler, Levy and Beddo fit the range of serial numbers from the solen stereos, most did.
In the context of the above background, we now consider defendant Fried's contentions: She contends that "the Government picked and chose from all of the evidence available, to select those items most incriminating defendant. The balance of the Government's evidence, which was exculpatory of defendant's guilt, was simply neglected and not turned over to the defendant as required under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)." In support of these charges and both of her motions, she claims that she has discovered new data which sheds new light on her culpability. She maintains that the prosecutor was guilty of suppression of evidence because:
1. Stolen Unisonic stereos from the same shipment turned up in the hands of others: Lax, Garfinckel, Chai Sales, and Lowinger, chief executive of North American, the consignee, and the prosecution never revealed ...