The opinion of the court was delivered by: DUFFY
After a fourteen day trial without a jury, defendant William C. Sherr was found guilty on one count of perjury and not guilty on six counts of aiding and abetting perjury. The defendant now moves for reconsideration of my verdict of guilty on the grounds that the evidence was insufficient to convict as a matter of law.
In the alternative, defendant requests that his case be reopened pursuant to Rules 33 and 12.2(b) of the Federal Rules of Criminal Procedure in order to permit the presentation of newly discovered evidence of a mental condition which purportedly negates the specific intent required to commit the crime of perjury. Defendant's counsel has presented forceful arguments in favor of reconsideration of my verdict of guilty. Nevertheless, upon a review of the record and my own very distinct memory of the trial, I must stand by my earlier determination. In addition, I do not believe the newly discovered evidence proffered by the defendant warrants a new trial. Hence, for these reasons and those that follow, defendant's motion is in all respects denied.
The defendant came before this court originally charged with six counts of aiding and abetting a former client, Stephen Easton, in the commission of perjury. Subsequently, a superceding indictment was brought charging the defendant himself with an additional count of perjury. The defendant Sherr was found to have committed perjury by submitting an affidavit to this court on November 19, 1980 which stated that certain documents had been stolen by Easton from the file of Sherr's law firm Bandler & Kass. The evidence at trial showed, and defendant's counsel now readily admits, that the entire file in question was, in fact, given to Easton for use during Easton's appeal from a perjury conviction. Sherr's defense to the perjury charge was that he honestly believed that Easton had wrongfully taken the documents. The evidence at trial demonstrated, however, that the information contained in the affidavit was not only false but also that Mr. Sherr knew it was false.
The facts leading to the charge of perjury against Sherr first surfaced on September 3, 1980, when he filed a motion seeking an order "suppressing all documentary or physical evidence obtained by the government, directly or indirectly, from the files of Bandler & Kass." At that time, Mr. Sherr's attorney, Paul Bergman, submitted an affidavit with the suppression motion of September 3, 1980 which identified certain of these documents as the ones which Lans, Feinberg & Cohen, Easton's appellate law firm, had turned over to the United States Attorney's office pursuant to a May 26, 1978, grand jury subpoena. The Bergman affidavit further described the stolen documents as follows:
11. ... the Gold memorandum (GX 33B) ..., the Easton memorandum (GX 35) ... and other documents which are now in the hands of the government, were stolen by Easton from either the Bandler & Kass file room or storage warehouse sometime between June, 1977 and April, 1978. They were taken by Easton who, thereafter, destroyed portions of the files' contents and, in other instances, delivered portions to the government. When this theft was first discovered in May, 1978, and Easton was confronted with it, he admitted that he had taken the files but claimed that he had returned them to a warehouse jointly utilized by himself and Bandler & Kass in April, 1978, a month before ....
12. Among others, the documents missing included the two documents which are so prominently mentioned in paragraphs 7 and 8 of the indictment; that is, Gold's memorandum of November 5, 1976 (Exhibit D) (GX 33b) and Easton's memorandum to Sherr in late November, early December (Exhibit E) (GX 35).
14. ... As shown from item 2 of the attached inventory prepared by the Lans, Feinberg & Cohen firm (Exhibit F, annexed hereto) (GX 62), Gold's November memorandum appears to have come into the government's hands not from Easton directly, but rather, through his current attorney (Lans, Feinberg & Cohen).
Bergman also described other missing documents as including "handwritten notes which were prepared by Sherr and Gold based upon conversations with Easton" and notes on witnesses prepared by Easton for Sherr.
In November, 1980, Sherr submitted his own affidavit in support of this motion to suppress after the United States Attorney requested that someone with first-hand knowledge describe the circumstances providing the basis for the motion. On or about November 14, 1980, one of Sherr's defense attorneys drafted in Sherr's presence the affidavit which became the subject of Count 7. The affidavit reads in its entirety as follows:
1. I am an attorney duly admitted to practice law before this Court. I am also the defendant in this action. I submit this affidavit in connection with a motion to supress (sic) certain evidence enumerated in a motion, made on my behalf, dated September 9, 1980. Specifically, that motion to suppress deals with the allegation that numerous documents now in the government's possession were unlawfully taken by Stephen K. Easton from the files of my law firm, Bandler & Kass.
2. I have been advised by my counsel that the government considers counsel's affidavit to be inadequate because it does not present any "firsthand information". (Aff. of James Moss, Esq., at Para. 25). In order to lay to rest that claim without embroiling the Court in unnecessary legalities, I have attached to this affidavit a copy of a memorandum (Exhibit A) which I prepared on May 26, 1978, four days after I learned that Mr. Easton had, in fact, taken the files without my authorization nor the authorization of anyone at my firm. I hereby incorporate the contents of that memorandum. In addition, I have attached hereto as Exhibit B a copy of the May 26th memorandum which contains my handwritten notations as well as the signatures of Richard Gold and William Werner. The contents of those documents speaks for themselves.
3. Neither Exhibits A nor B specifically mention the removal by Mr. Easton of certain documents, including handwritten notes by Mr. Easton as to each of the various corporations. Those documents were also missing as of May 26th and, in fact, when the government counsel recently made available a group of documents which had recently been obtained from Mr. Easton, those handwritten notes were not among them except in one instance.
The memorandum incorporated into the affidavit was written by Sherr to his defense attorneys on May 26, 1978. This memorandum purportedly sets forth the basis for Sherr's belief that certain documents were stolen. The memorandum reads as follows:
RE: LIST OF MATERIAL MISSING FROM BANDLER & KASS FILE ENTITLED U. S. A. V. STEPHEN K. EASTON
On May 22, 1978 I instituted a search for the above mentioned file. Much to my dismay I found that the entire file had been taken from our office by Mr. Easton some time in April or May, 1977. He admitted this to William J. Werner when questioned and advised that he had returned the file to a warehouse utilized jointly by Bandler & Kass and Stephen K. Easton approximately three weeks ago, i.e., the middle of April, 1978.
The file, when located, was reviewed by our office and following is a partial list of material that is missing therefrom that we were able to ascertain:
1. Stephen K. Easton memo to Bandler & Kass re history of involvement.
2. Stephen K. Easton memo prior to trial as to each company and financials thereof. (GX 35)
3. Stephen K. Easton summary by category as to financials prior to taking stand. (GX 47)
4. Stephen K. Easton summary of facts as bearing on testimony of other witnesses.
5. William C. Sherr trial notes and outline of questions and subject matter for direct examination of Stephen K. Easton (entire subfolder).
6. Miscellaneous William C. Sherr handwritten notes from certain of the files on many of the companies.
7. Receipt for storage of fur coat dated prior to event.
8. Notes on Bandler & Kass investigation of Buffalo flight.
9. Photostat of stock certificate.
10. Miscellaneous memos prepared by Richard L. Gold as to facts.
11. Pre-trial motion file.
NOTE : Immediately upon discovering that portions of said file were missing, I telephoned Miss Lans of Mr. Cohen's office, 421-0700 on May 22, 1978. She admitted to me that she had portions of our file which her firm had removed therefrom and retained, and agreed to permit me to examine same, but not before 4:00 p.m. on Wednesday, May 24, 1978. She also stated that she had a transcript of Mr. Easton's testimony.
We attempted to reach her all during the day on May 23, 1978 to see if we could pick up the file, but our calls remained unanswered. Pursuant to my conference with Mr. LaRossa on May 23, 1978, it was agreed that the May 24, 1978 appointment would be adjourned and that the followup on this matter would be handled by his office.
NOTE : We have also been unable to locate our file 4085(1) which is the matter of Chemical Bank v. ...