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December 8, 1976.

Harry HOFFER, Defendant-Petitioner.

The opinion of the court was delivered by: POLLACK

POLLACK, District Judge.

The defendant, Harry Hoffer, moves pursuant to Rule 33 Fed.R.Crim.P. for an order setting aside his June 1973 conviction of conspiracy and fraud and for a new trial on the grounds of newly discovered evidence and denial of the effective assistance of counsel in his defense.

 In June 1973, Hoffer was found guilty by a jury of conspiracy; foreign transportation of money stolen or obtained by fraud; use of a fictitious name in carrying out a scheme to defraud by mail; and mail fraud. Each of his co-defendants at the trial, Messrs. Frank, Hemlock, and Berman, was also found guilty of some or all of these crimes.

 The Court of Appeals upheld the conviction (United States v. Frank, 494 F.2d 145 (2d Cir. 1974) (Op. per Friendly, J.) and review in the Supreme Court was denied on October 14, 1974 (Hoffer v. United States, 419 U.S. 828, 95 S. Ct. 48, 42 L. Ed. 2d 52 (1974)). Hoffer received a jail sentence, as modified, of 18 months imprisonment under which he served from September 17, 1975 to June 9, 1976 when he was paroled; the parole supervision is to end on March 16, 1977.

 Hoffer voluntarily elected not to testify at his trial. Since his conviction Hoffer has repeatedly asserted that he did not participate in the spoils of the fraud as suggested by testimony of a government witness but, in fact, only his co-defendants had shared therein. Since the trial Hoffer has obtained documentation thereof. If he had taken the stand at the trial he could have so told the jury and he could also have told the jury that although the transactions were suspect he did not know what was going on or that his role was that only of an innocent dupe. He says that he wanted to testify but that his lawyer dissuaded him from taking the witness stand in the service of the personal interests of the co-defendant Hemlock, who was deeply involved, because Hemlock had paid Hoffer's legal fees.

 Except for the current addition of charges against his trial lawyer, Hoffer has on several prior occasions asserted the same theme, that he did not share in the proceeds of the swindle. He asserted this in 1973 in connection with the sentencing proceedings, again in connection with an application made in 1974 to reduce or modify his sentence, and again on this motion for a new trial made in November 1976.

 In 1973 Hoffer told the probation officer for purposes of the presentence report the following:

 Notwithstanding, I want to state two things - I did not receive one penny, not one dime... The other thing - I was accused of various actions. Whatever I did I was employed by Mr. Hemlock and did at his instruction. He told me that the defrauded party had full knowledge... I'm a schlepp-along. I was dragged along - whether you want to call it stupidity or allegiance.

 After his unsuccessful appeal of his conviction Hoffer applied for a modification or reduction of sentence, the papers again reiterating the absence of personal profit to him from the swindle. No suggestion was made by him then that his failure to take the witness stand on his own behalf was due to tainted judgment of his counsel.

 The nub of the motion to modify the sentence, apart from claim of hardship, was summarized by Hoffer's attorney as follows:

 It is urged that in reexamining the petitioner's sentence, the Court may now take into consideration sworn statements which are uncontroverted that show conclusively he had no knowledge of any wrongdoing. For that reason, Harry Hoffer has set forth in detail, under oath, crucial facts which show that he had no knowledge of any alleged fraud perpetrated against Mrs. Dominguez. He has previously asserted to this Court that he never received any funds from this transaction, a fact never disputed by the government. In his affidavit, Harry Hoffer swears that he was never an owner of any time deposit accounts in the names of Columbia Corporation, Ltd. or Splindian Investments, Ltd., or for that matter, any other time deposit account maintained in the Bahamas. The bank records in the Bahamas will verify this.

 This motion for a modification of sentence was successful to the extent that Hoffer's prison term was reduced in August 1975 from three years to eighteen months for reasons not pertinent hereon.

 Disbarment proceedings had been instituted against Hoffer and Hemlock in 1974 and hearings were held before a State Court Referee. In those proceedings Hoffer was represented by John McGillicuddy, Esq., who had represented Berman, a co-defendant, prior to the trial and again on appeal of this case. Although McGillicuddy had been present at the joint strategy meeting of counsel with Hemlock and presumably was aware of all that occurred there, no suggestion was made in the disbarment proceedings, at which Hoffer called his trial lawyer to testify for him, that the independent integrity of the lawyer had been corrupted.

 In the present application brought by a fifth attorney Hoffer recites that in the 1974 disbarment proceedings he obtained an acknowledgment from the Nassau bank in which the spoils were deposited that Hoffer was not authorized to draw on the accounts and that this is newly discovered evidence.

 Additionally, Hoffer now accuses his trial lawyer of not having adequately cross-examined the bank personnel who testified at the trial and of not having presented any defense for Hoffer, because in Hoffer's opinion, "his trial lawyer's interest was 'in helping Alfred Hemlock in his defense'", "a clear violation of my Sixth Amendment right to counsel".

 In his affidavit in support of the present motion Hoffer recites the manner in which his lawyer was retained:

 Hemlock stated to me that since he was primarily involved and had made money on the Dominguez transactions, whereas I had not profited at all, he would assure payment for the legal services that I would require. He told me that he would approach co-defendants Steven Berman and John Frank to see if they would contribute toward the cost of my lawyer's services.

 Hemlock and I consulted with Mr. LaRossa, who indicated that his fee would be $15,000. Mr. Hemlock agreed, and told Mr. LaRossa that he would represent me. I paid no money at all for those legal services; I believe that Mr. Hemlock paid the full costs on my behalf.

 The supporting affidavit of Hoffer's present attorney expands Hoffer's affidavit with the conclusory statement that Hoffer's trial counsel

 was paid by Alfred Hemlock, and who was requested to keep Hoffer off the witness stand because Hoffer would have furnished testimony that would have buttressed the government's case against Alfred Hemlock and would have exculpated himself.

 And the present attorney concludes with the charge that

 because his attorney was paid by the codefendant, no case was put in for him at all, in a matter in which there was a substantial defense case to be made.

 At Hoffer's disbarment proceedings Mr. LaRossa, Hoffer's trial lawyer testified that

 I strongly recommended to Mr. Hoffer that he not take the stand in his own defense for a number of reasons.

 The first is I had very serious doubts about whether his implication within the conspiracy had been proved to a legal satisfaction.

 In addition to that, I believed that even if the judge did send the case to the jury, the jury would have difficulty in believing the testimony of the complainant. The third reason is that Mr. Hoffer was, in my opinion, a nervous individual, and based upon his nervousness, I did not think that he would be presented to a jury in as good a fashion as he did when he was having a conversation with two or three ...

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