The opinion of the court was delivered by: POLLACK
For the second time in less than six months, Benjamin Mallah seeks a new trial on a criminal indictment for narcotics conspiracy, this time pursuant to Rule 33 Fed. R.Crim.P. The instant motion was filed on January 10, 1977. The previous attempt filed July 26, 1976 was made pursuant to 28 U.S.C. § 2255 and proved unsuccessful; it was denied on October 19, 1976 in opinion and the judgment thereon was affirmed by the Court of Appeals, Second Circuit, on February 7, 1977 on the opinion below. The ground of that application was allegedly perjurious trial testimony of Cecile Mileto, a government witness. In the present proceeding, Mallah charges that another of the trial witnesses for the government, Joseph Conforti, committed perjury on his cross-examination and that some government agents knew or should have known that his responses were perjurious.
Since there is no reasonable likelihood that the supposed perjury would have affected the judgment of the jury or brought a different verdict, in addition to the absence of an evidentiary showing that the alleged truth could not be discovered earlier in the exercise of due diligence as well as the untimeliness of this application, the motion for a new trial must, in all respects, be denied.
On January 7, 1974, Mallah was convicted by a jury after a 12 day trial of conspiring with others in respect to the distribution of narcotic drug controlled substances. 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A). The government contended that he was the money man or backer of the enterprise. On February 26, 1974 he was sentenced to a prison term of ten years with a Special Parole term to follow of three years, and was fined $25,000.00. The conviction was affirmed, United States v. Mallah, 503 F.2d 971 (2d Cir. 1974) and the mandate thereon was issued on December 11, 1974. A petition for certiorari was denied, 420 U.S. 995, 95 S. Ct. 1425, 43 L. Ed. 2d 671 (1975).
The basis for the present motion is contained in one sentence of paragraph "6" of the affidavit of Mallah's attorney in which he asserts in conclusory form that "Facts which were disclosed at a very recent trial of essentially the same conspiracy, United States v. DeSaverio, No. S 76 Cr. 195 (Frankel, J.) reveal that Conforti committed perjury at defendant Mallah's trial and, at the very least, some agents of the government knew the true facts which ultimately contradicted Conforti's testimony." The purported newly discovered evidence was that a co-conspirator, Jack Spada, was in federal prison at a time when Conforti said Spada was present at a delivery of heroin by Conforti to Jack Kaplan in his hospital room.
In the charge to the jury they were told the following:
I will now turn to the defendants, one by one, with respect to their alleged connection with the counts in which they are charged.
The defendant Benjamin Mallah is charged in Count 1 with conspiracy. The government contends that the defendant Mallah was connected in some or another manner to the alleged conspiracy by the witnesses Lipsky, Mrs. Mileto, Conforti, and by the government Agents Stromfeld, Hayward, Samuel and Wanieski, and also by Sergeant De Luca and Patrolman Lino, and by the stipulated testimony of Nancy O'Malley and by testimony from Mark Miklitsch, the fifteen-year-old boy.
Conforti's testimony, including that pertaining to Spada, was sharply attacked on summation by Mallah's attorney as incredible for a variety of reasons expressed.
The evidence at trial established that Benjamin Mallah's role in the conspiracy was to provide large sums of money for the purchase of narcotics and to share accordingly in the profits from its resale.
Conforti testified that in July 1971 Conforti went to Philadelphia with Louis Mileto* where the latter delivered a kilogram of heroin to Sperling's customers. After the delivery Mileto showed Conforti a box containing $60,000. When Conforti asked if the money was for Sperling, Mileto said, "No, its going to Bennie, one of his partners."
During the return trip to New York, Conforti asked Mileto who Bennie was. Mileto stated that "Bennie was Herbie's partner, his backup man for money problems if you needed money in the junk business, Bennie was there to give him money," and that "this money was to be delivered to Bennie." In New York Mileto picked up an additional $17,000., which was placed in the same shoe box and wrapped with the same paper. Mileto and Conforti then drove to Spring Street where Conforti remained in the car while Mileto went into Sperling's building. Some 15 or 20 minutes later Conforti saw Mallah exit the building carrying the box of money which he recognized because of the paper with which it was wrapped. When Mileto returned to the car, Conforti asked him "who is that guy carrying the money." Mileto told Conforti that "it was Ben Mallah."
In February 1972 Conforti was present at 5 Spring Street when Mallah and Sperling were in the bedroom talking to Louis Mileto following the latter's arrest. Conforti overheard Sperling berating Mileto in Mallah's presence for having extra packages of heroin which Sperling had discovered when Conforti, the day before, delivered the heroin stored by Mileto in Zelma Vance's apartment. Conforti also heard Sperling (who apparently concluded that Mileto had been stealing some of his ...