The opinion of the court was delivered by: NEAHER
On August 18, 1978, following three weeks of trial, a jury found defendant Salvatore Lombardi and three codefendants guilty of conspiracy to manufacture and possess methaqualone in violation of 21 U.S.C. § 846. The convictions were affirmed on appeal, United States v. DiPalermo, 606 F.2d 17 (2d Cir. 1979), and certiorari was denied, 445 U.S. 915, 100 S. Ct. 1274, 63 L. Ed. 2d 599 (1980). Subsequently, defendant moved for a new trial pursuant to Rule 33, F.R.Crim.P., and 28 U.S.C. § 2255, claiming that he could present "newly discovered evidence." The Court granted a hearing on the motion and heard the argument of counsel. For the reasons indicated below, the application for a new trial is denied.
At trial, the government's evidence included the testimony of an informant who had been enlisted by co-defendant George Gillette in the spring of 1977 to assist in obtaining the chemicals Gillette's friend "Herman" desired in order to make methaqualone. "Herman," who was soon identified by the Drug Enforcement Administration (DEA) as defendant, had been experiencing difficulties establishing a manufacturing laboratory, but through the efforts of Gillette and co-defendant Joseph DiPalermo, a suitable facility was located in an isolated site on Ellis Street in Staten Island.
On the morning of October 31, 1977, agents of the DEA observed Gillette and the informant at a warehouse in New Jersey load a large quantity of chemicals in drums onto a yellow Ryder rental truck. They then drove the truck to Staten Island and parked it near defendant's home on Gower Street, Gillette explaining to the informant that it was being left there so that "Herman" could keep an eye on it. Shortly thereafter, the agents observed a man they identified at trial as defendant drive the truck directly towards the Ellis Street laboratory. At a certain point in its travels, however, the truck began to make "evasive maneuvers" and it eventually returned to Gower Street. Later that night the truck was observed at the Ellis Street site where the chemicals were unloaded and carried into the laboratory. Gillette told the informant that the successful delivery had been made by "Herman," and that they were concerned about possible surveillance by the DEA during the earlier attempted delivery.
Following his conviction and the failure of his direct appeals, defendant submitted to the Court the affidavit of his blood nephew George Lombardi, which stated that he, and not his uncle, had been the driver of the Ryder truck. George Lombardi later testified at the hearing on this motion that he had been asked by Gillette (who disappeared prior to sentence and is believed to be dead) to drive the Ryder truck on October 31, 1977, and that he was unaware of the contents of the barrels which he helped to unload from the truck. He further testified that he later returned to his uncle's house, where he had slept the night before, and spent part of the evening there at a family Halloween party attended by some thirty to forty people.
George Lombardi testified that over the past several years he has had legal and financial problems, as well as marital difficulties. Throughout this period, he received gifts of money from his uncle, and since the spring of 1977 has lived in a house in Margate, Florida, purchased for him as a favor by his uncle Salvatore.
George stated that he visited with his uncle several times after the latter's arrest. In addition, they saw each other during the three weeks of defendant's trial and discussed its progress. Throughout this period, George Lombardi testified that it did not occur to him-nor was he asked-to reveal any information that he might have had about the Ryder truck. It was not until after his uncle's imprisonment in the spring of 1980 that George came forward and contacted the United States Attorney's office and related his version of the events of October 31, 1977. It is this evidence that defendant wishes to present to a new jury at a second trial.
With regard to the standard for the granting of a motion for a new trial on a claim of newly discovered evidence, the Court of Appeals for this Circuit has recently reiterated
"our repeated instructions that such a motion "should be granted only with great caution' and only upon a showing that the evidence could not with due diligence have been discovered before or during trial, that the evidence is material, not cumulative, and that admission of the evidence would probably lead to an acquittal. United States v. Stofsky, 537 (sic 527) F.2d 237, 243 (2d Cir. 1975), cert. denied, 429 U.S. 819 (97 S. Ct. 66, 50 L. Ed. 2d 80) ... (1976); United States v. Slutsky, 514 F.2d 1222, 1225 (2d Cir. 1975); United States v. Costello, 255 F.2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 937 (78 S. Ct. 1385, 2 L. Ed. 2d 1551) ... (1958)."
Reviewing these three factors, we note first that the Court of Appeals, in affirming defendant's conviction, commented that the DEA agents' identification of him as the driver of the truck was a significant piece of evidence linking him to the conspiracy. In light of this comment, and the fact that George Lombardi's testimony, if credible, would tend to be independent exculpatory evidence, we are constrained to conclude that the proffered testimony would be material and not cumulative.
The next required showing for a new trial, that the admission of the evidence would "probably" lead to an acquittal, presents a more difficult problem for defendant. The Court of Appeals assigned significance to the identification of defendant to support its affirmance of our conclusion at trial that there was sufficient non-hearsay evidence to justify the admission against defendant of the statements of his fellow conspirators. See United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969), cert. denied, 397 U.S. 1028, 90 S. Ct. 1276, 25 L. Ed. 2d 539 (1970). Defendant now argues that George Lombardi's testimony would "nullify" that of the identifying agents and preclude the admission against him of co-conspirators' hearsay, which he further asserts would result in an acquittal.
We note, however, that the standard for connection to a conspiracy is lower than the standard of evidence sufficient to submit a charge of conspiracy to a jury, United States v. Alvarez-Porras, 643 F.2d 54, 57 (2d Cir. 1981); and may be met "by a fair preponderance" of the direct evidence. United States v. Geaney, supra, 417 F.2d at 1120. There was significant non-hearsay evidence of defendant's repeated contacts with other members of the conspiracy, as well as the use of his house as an apparent staging point for the transfer of the chemicals-even if their delivery had been made by George Lombardi.
Most importantly, however, we must be guided in this context by Judge Friendly's admonition that when assessing the sufficiency of direct evidence of connection to a conspiracy, "Judges are not required to exhibit a naivete from which ordinary citizens are free." United States v. Stanchich, 550 F.2d 1294, 1300 (2d Cir. 1977). At a new trial, the Court would have to weigh the credibility of the identifying agents against that of George Lombardi. We note that the agents' testimony at both the hearing and at the trial in 1978 was detailed, consistent and mutually corroborative. George Lombardi, on the ...