The opinion of the court was delivered by: PRATT
On grounds of newly discovered evidence, defendants in both of these cases move for a new trial pursuant to FRCrP 33. Alternatively, they move to reopen the evidentiary hearing on the "due process" issues that were disposed of as to the Myers defendants by this court's memorandum and order dated July 24, 1981, and as to the Williams defendants by memorandum and order dated December 21, 1981. In addition, defendant Williams reasserts his motion to suppress all of the tape recordings made by Melvin Weinberg. Familiarity with the prior proceedings and with this court's prior decisions in these matters is assumed.
In connection with the motions the parties have submitted and the court has considered the affidavit of Harry C. Batchelder, Jr., Esq., sworn to February 2, 1982, and attached exhibits; the affidavit of Cynthia Marie Weinberg, sworn to January 16, 1982; the affidavit of Indy Badhwar, sworn to January 18, 1982; the affidavit of Richard Ben-Veniste, Esq., sworn to February 25, 1982, with annexed exhibits; the transcript of portions of telephone interviews by Indy Badhwar of Marie Cynthia Weinberg; and the opposing affidavits of the following special agents of the Federal Bureau of Investigation, all sworn to February 22, 1982: John Good, Anthony Amoroso, Gunnar A. Askeland, John M. McCarthy, Thomas M. McShane, and Carol A. Kaczmarek, together with the affidavit of special agent William L. Deaton, sworn to March 22, 1982. In addition, the court has reviewed and considered the memorandum of law submitted on behalf of the Myers defendants, the memorandum submitted on behalf of defendant Feinberg, the three memoranda submitted on behalf of defendant Williams, and the government's two memoranda in opposition to the motions.
The newly discovered evidence claimed by defendants to require reopening of these proceedings comes from Cynthia Marie Weinberg, who at the relevant times was the wife of Melvin Weinberg. As appears from the moving papers, Mrs. Weinberg was approached by Indy Badhwar, an associate of a newspaper columnist. Badhwar spoke to her on several occasions both over the telephone and in personal interviews. He recorded some of his telephone conversations with her, and transcripts of portions of those recorded conversations are submitted with the motion papers. Mrs. Weinberg also executed an affidavit sworn to January 16, 1982 that was prepared for the District Court for the District of Columbia in connection with U. S. A. v. Richard Kelly et al., another Abscam case. Ten days after Mrs. Weinberg supplied her affidavit in the Washington, D.C. proceeding, she committed suicide, leaving a note which is attached to the Ben-Veniste affidavit as Exhibit D.
In general terms, defendants argue that Mrs. Weinberg's statements in the transcripts and affidavit tend to establish five points: (1) that Melvin Weinberg lied at the Myers trial when on cross-examination he denied having received gifts from defendant Angelo Errichetti of television sets, a video cassette recorder, a stereo set and a microwave oven; (2) that government agents knew that Weinberg lied at the Myers trial about the gifts and did nothing about it; (3) that the reliability of the audio tape recordings done by Weinberg is now substantially undermined; (4) that Weinberg sold or gave various items of personal property to FBI agents; and (5) that during the course of the investigation, Weinberg "covered" for certain FBI agents when they were engaged in amorous activities.
The primary ground for all defendants' motions is the newly discovered evidence supplied by Mrs. Weinberg with respect to possible gifts by defendant Errichetti to Weinberg.
Defendants argue that this evidence tends to establish that Weinberg lied at the trial when he denied receiving such gifts, and that the prosecutor and certain FBI agents lied at the due process hearing when they denied knowledge of the gifts.
As Judge Newman stated in U. S. A. v. Gilbert, 668 F.2d 94 (CA2 1981):
This Circuit's standard for granting Rule 33 motions (for a new trial on grounds of newly discovered evidence) is clear. Most pertinently, the new evidence must be such that it would probably lead to an acquittal. * * * The motion is not favored * * *. At 96.
Such motions are viewed with great caution. U. S. A. v. Lombardozzi, 343 F.2d 127 (CA2 1965); U. S. A. v. Costello, 255 F.2d 876, 884 (CA2), cert. denied, 357 U.S. 937, 78 S. Ct. 1385, 2 L. Ed. 2d 1551 (1958). To require a new trial the newly discovered evidence must be material, not merely cumulative, and must be of such a nature that it would probably produce an acquittal. U. S. A. v. Mentesana, 305 F.2d 214 (CA2 1962); U. S. A. v. Soblen, 301 F.2d 236, 241-42 (CA2 1962). Newly discovered evidence that merely goes to impeach the credibility of a prosecution witness is ordinarily not sufficient to justify a new trial, Mesarosh v. U. S., 352 U.S. 1, 77 S. Ct. 1, 1 L. Ed. 2d 1 (1956), particularly when the newly discovered evidence would be "only an additional part of a cumulative attack on a witness' credibility". U. S. A. v. Gilbert, supra at p. 97.
As applied to defendants Williams and Feinberg, the evidence with respect to possible gifts to Weinberg is unrelated to any issue before the jury at the trial. Since there was no testimony about gifts in that case, whether or not the gifts were actually made could not affect the verdicts against them.
In Myers, on the other hand, there was considerable evidence on the subject of gifts by Errichetti to Weinberg, and defendants argue that the newly discovered evidence from Mrs. Weinberg is significant because it could affect the credibility of her husband at the trial, an issue that defendants claim to have been vital.
To understand the proper context of Weinberg's credibility, it is necessary to review briefly the circumstances of the Myers trial. Myers was recorded on videotape crudely accepting $ 50,000 from undercover agent Anthony Amoroso, and promising to lend his assistance as a United States Congressman to Amoroso's "employer", a fictitious Arab sheik, in his efforts to immigrate to this country.
Caught so blatantly red-handed, Myers had little with which to defend himself on the factual issues at trial. Myers' defense was that he was only "play acting", that he never intended to help the sheik, that he was in fact only swindling the sheik out of the money, and that he had been told by defendant Errichetti before the meeting with undercover agent Amoroso that his promises had no meaning and that he would never be called upon to do anything. Myers testified that Errichetti had told him that Weinberg had told Errichetti that Myers' promises to the "sheik's" representative would mean nothing.
At trial, Weinberg denied having had such a conversation with Errichetti, and it is upon this denial that defendants focus the issue of Weinberg's credibility. From defendants' point of view, therefore, if the jury could have learned that Weinberg in fact had received gifts from Errichetti after having denied that on his cross-examination, they might have evaluated his credibility differently and then in turn might have ...