The opinion of the court was delivered by: COSTANTINO
COSTANTINO, District Judge.
Paul V. Oates, was charged in a two count indictment with conspiring with one Isaac Daniels to possess heroin with intent to distribute it, and with aiding and abetting Daniels to possess heroin with intent to distribute it. Defendant waived his right to a jury trial and was tried by the court.
Before reaching a decision as to defendant's guilt or innocence, there is a preliminary matter which must be disposed of.
At the first trial of this defendant, a motion was made to suppress several items of evidence, including two packages of heroin seized from the defendant and his companion at the time of their arrest. Judge Bramwell denied the motion, and that ruling was upheld by the Court of Appeals. United States v. Oates, 560 F.2d 45 (2d Cir. 1977). At the commencement of the retrial before this court, defendant moved for reconsideration of the motion to suppress on the grounds that there was newly discovered evidence not available in the hearing before Judge Bramwell and, therefore, not available to the Court of Appeals when it upheld Judge Bramwell's ruling. This court denied the motion for reconsideration, but at the close of the testimony granted the defendant leave to file a written motion. That motion is presently before the court.
In support of his motion to reconsider, defendant raises three instances of allegedly "newly discovered evidence": (1) a letter, dated March 16, 1976, from Judge Bramwell to the New York Regional Director of the Drug Enforcement Administration, commending Agent Garfield Hammonds, a case agent and a witness for the Government both at the suppression hearing and the trial before Judge Bramwell, for his investigative work in this case; (2) the testimony of William C. McMillan, a one-time informant for the Government, and a witness for the Government at the trial, who testified in his own behalf in a State Court proceeding in a manner which defendant believes tended to impeach the testimony that Agent Hammonds offered in the suppression hearing before Judge Bramwell; and (3) evidence concerning the use of metal detectors or magnetometers at LaGuardia Airport on the date defendant was arrested, which, defendant claims, impeaches the testimony of Agent Hammonds and, in so doing, shows a lack of reasonable suspicion to believe Daniels was armed and, therefore, demonstrates that there was no justification for the frisk of Daniels which uncovered the heroin involved in the case.
When the Court of Appeals affirmed Judge Bramwell's denial of the suppression motion, it established the law of the case with respect to the validity of the seizure. This court is bound by that determination, and must apply that law to this proceeding, see 1B Moore's Federal Practice, P 0.404 at 402-403 (2d Ed. 1974), notwithstanding that a claim of newly discovered evidence has been raised. United States v. Fernandez, 506 F.2d 1200, 1202-03 (2d Cir. 1974); Banco Nacional de Cuba v. Farr, 383 F.2d 166, 177 (2d Cir. 1967), cert. denied, 390 U.S. 956, 88 S. Ct. 1038, 19 L. Ed. 2d 1151 (1968). In this case, only the Court of Appeals, which established the law of the case, may alter that law, and the appropriate procedure would have been to seek an alteration by the Court of Appeals of its mandate. See United States v. Fernandez, supra. Accordingly, the motion for reconsideration of the motion to suppress must be denied.
Assuming arguendo that this court were empowered to entertain the motion to reconsider the motion to suppress, it would still have to be denied on the basis that none of the "newly discovered evidence "has any significant effect on the testimony adduced at the original hearing. The defendant argues that the letter from Judge Bramwell "suggests the possibility of bias at the time the judge entered his decision on the motion to suppress." (Tr., September 26, 1977 at 16). Such an allegation is without merit. The letter from Judge Bramwell was written after the hearing, after the jury returned its verdict, after the defendant had been sentenced, and after the conviction had been appealed. There is absolutely nothing to indicate that Judge Bramwell had pre-judged the case; indeed, his opinion as to Agent Hammonds' work could only have been formed after he had heard the testimony in the case. Accordingly, this court cannot accept defendant's claim that the letter is an indication of possible bias on the part of Judge Bramwell.
In order to justify a new hearing on the suppression motion based upon the "newly discovered" testimony of McMillan and the "newly discovered" magnetometer evidence, defendant must show four things: (1) that the evidence is newly discovered and was unknown to defendant at the time of the original hearing; (2) that the evidence is material and not merely cumulative or impeaching; (3) that the new evidence will probably produce a different result in the proceedings; and (4) that the failure to learn of the evidence previously was not the result of lack of due diligence on the part of the defendant. Wright, Federal Practice and Procedure, vol. 2 § 557, at 515; 8A Moore's Federal Practice, P 33.03.
The court finds that neither item of "newly discovered" evidence meets these standards.
With respect to McMillan's testimony, defendant claims that it would have impeached the testimony of Agent Hammonds. However, as previously stated, impeachment evidence is not sufficient to justify a new hearing on the suppression motion. Cf. Mesarosh v. United States, 352 U.S. 1, 9, 77 S. Ct. 1, 1 L. Ed. 2d 1 (1956). Moreover, defendant had been given McMillan's name prior to the suppression hearing (Tr. September 28, 1977 at 94) and could have obtained the evidence he now claims is newly discovered if he had chosen to interview McMillan prior to the hearing. He did not do so, and the court concludes that the defendant did not exercise due diligence in attempting to secure the evidence prior to the hearing. Cf. United States v. Pellegrino, 273 F.2d 570 (2d Cir. 1960). In addition, the court cannot say that McMillan's testimony would probably have produced a different ruling by Judge Bramwell. Cf. United States v. Soblen, 301 F.2d 236 (2d Cir.), cert. denied, 370 U.S. 944, 82 S. Ct. 1585, 8 L. Ed. 2d 810 (1962); United States v. Pellegrino, supra.
The claim of newly discovered evidence with respect to the existence of magnetometers at LaGuardia Airport on the day of defendant's arrest also fails to persuade the court that a rehearing of the motion to suppress is required. The question of the presence of magnetometers was in fact raised by the Government at the suppression hearing (Tr. January 5, 1976 at 108-109), but was not pursued by the defendant. There has been no showing that the testimony of Mr. Panarese, who was called at the trial before this court to testify as to the existence of magnetometers, could not have been obtained for the suppression hearing before Judge Bramwell. Indeed, the opposite appears to be the case, since Mr. Panarese was "actively involved in the preparation of security for LaGuardia Airport" on the day of defendant's arrest (Tr. October 4, 1977 at 603), and would presumably have been just as available to the defense for the suppression hearing as he was for the trial before this court. The fact that the magnetometer evidence may have impeached the testimony of other witnesses is insufficient to require reconsideration of the motion to suppress, cf. Mesarosh v. United States, supra, and the court cannot say that Judge Bramwell's determination would have been different had this evidence been presented to him, United States v. Soblen, supra.3 For the foregoing reasons, the court would deny the motion to reconsider the motion to suppress even if it were not bound by the Court of Appeals' prior affirmance of Judge Bramwell's decision.
With respect to defendant's guilt or innocence, the court makes the following findings of fact:
On April 26, 1972, defendant Paul Oates and Isaac Daniels boarded American Airlines flight 440 leaving Detroit at 7:20 p.m. bound for New York (119).
The tickets for both men had been purchased by defendant Oates, and had been paid for with his American Express card (Ex. 8, 9, Tr. 363-64, 373, 376, 388-90, 405-09, 411-13). Oates' ticket was a first class ticket (Ex. 9) and Daniels' ticket was a coach class ticket (Ex. 8, Tr. 389). Oates had also purchased return tickets for the two men on American Airlines flight 593 to Detroit leaving New York at 7:55 a.m. on April 27, 1972 (363-64, 388-90).
Prior to boarding the flight in Detroit, Oates and Daniels had been engaged in conversation (117). When they boarded the plane, Oates went to the first class section and Daniels went to the coach section (119). Daniels exhibited certain physical characteristics to indicate that he was addicted to drugs (120-121). There were no unusual bulges in his clothing (118).
The flight arrived in New York at approximately 10:00 p.m. After leaving the plane, Oates and Daniels rejoined one another (121). They began to walk down the corridor and were met by William McMillan, a one-time informant for the Government (161-62, 468-69) and an active participant in bringing buyers and sellers of illegal drugs together (469-70). The day before, April 25, 1972, Oates had telephoned McMillan from Detroit and asked McMillan to meet him at the ...