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UNITED STATES v. OCHS

September 22, 1982

UNITED STATES OF AMERICA,
v.
GEORGE OCHS, Defendant



The opinion of the court was delivered by: COOPER

IRVING BEN COOPER, D.J.

 Movant, George W. Ochs, now seeks an order granting him a new trial based on newly discovered evidence and on certain alleged constitutional violations. *fn1" The gravamen of his motion papers, numerous supporting affidavits subsequently submitted and repetitive contentions at the hearing on the instant application *fn2" is that a key government witness who at trial testified on the extremely serious extortion charge subsequently recanted her testimony; that prosecutorial misconduct precluded exculpatory evidence from being presented to the jury regarding the false tax exemption charges; and that all of the foregoing "rendered the entire trial a hollow mockery of justice," requiring a new trial on all seven felony counts of the original indictment. *fn3" The government remains steadfast and argues that "[movant's] present excursion, conjuring up 'newly discovered' evidence and fabricating testimony of prosecutorial misconduct and recantation, is yet another attempt to obstruct justice and to frustrate the fair and just disposition of his case." *fn4" For reasons set forth below, we are compelled to deny, on the facts and the law appertaining thereto, the instant application in all respects.

 Proceedings to Date

 This motion by Ochs comes nearly four years after our first involvement with him. On October 26, 1977 a seven count indictment was filed charging him with Count 1: the use of extortionate means to collect a loan he had made to Debbie McElroy (18 U.S.C. § 894); Count 2: obstruction of justice by endeavoring to influence witnesses subpoenaed to testify before a grand jury (18 U.S.C. § 1503); Counts 3 through 5: falsely subscribing income tax returns for 1971, 1972 and 1973 by claiming personal exemptions to which defendant knew he was not entitled (26 U.S.C. § 7206 (1)); Count 6: failing to file an income tax return for 1974 (26 U.S.C. § 7203); and Count 7: evasion of his 1974 federal income taxes (26 U.S.C. § 7201). *fn5"

 The jury trial commenced on January 16, 1978. The proof adduced by the Government demonstrated that between 1974 and 1976 the defendant conducted a loansharking business while owning and operating a house of prostitution/massage parlor in New York City; that he threatened to murder Debbie McElroy, a prostitute who had worked for him, for failure to make payments on a usurious loan he had made to her. Further, the trial record revealed that defendant falsely claimed exemptions in 1971, 1972 and 1973 for a non-existent wife and children, and that in 1974 he failed to report as income on his tax return $25,000 which he derived from his prostitution and loansharking endeavors. Finally, the proof also established, to the jury's belief beyond a reasonable doubt, that Ochs had approached several witnesses subpoenaed to testify before the grand jury and instructed them either to lie regarding payments of interest on loans made by him or to assert their Fifth Amendment privilege.

 On February 6, 1978 the jury returned its verdict finding the defendant guilty on each of the seven counts.

 At sentencing on April 14, 1978 we were confronted with a man who had been arrested thirteen times from 1944 to 1977 on serious criminal charges ranging from rape and armed robbery to bribery and extortion by threat. While such sentences as were meted out to him varied, the net result was that Ochs has been imprisoned for the greater part of his adult life. As we noted before and emphasize now again, Ochs displayed "a criminal behavior pattern we regarded shocking and repugnant to an offensive degree." *fn6"

 At sentencing we talked to the defendant (as has always been our practice throughout more than four decades of judicial function) in terms that he could understand: *fn7"

 
I don't want to give you a lecture. I don't think the lecture would do you any good, and I don't think that the judge means anything to you except insofar as what he is going to, to use the vernacular, 'hand out.' I don't think that I have that capacity to influence you, and so, therefore, I don't see any purpose by a recitation of what you have done with your life. In my book, you have been in moral bankruptcy from the time you were a boy. . . . How you . . . failed to see that you weren't getting anywhere is beyond me, because you are not a fool. You have a good head. You just didn't put it to use in the right direction.

 After careful reflection, striving to do justice to the defendant and community alike, we sentenced Ochs to 23 years imprisonment: 7 years on Count 1; 5 years on Count 2; 3 years on each of Counts 3, 4 and 5; and 2 years on Count 7; the sentences to run consecutively. *fn8"

 Ochs appealed his conviction claiming numerous reversible errors. His primary position was that a police search of an automobile in which he was a passenger turned up certain loansharking and prostitution records which were illegally received at trial in violation of his rights under the Fourth Amendment; and that the imposition of a 3 year sentence on each of the three false exemption counts was so irrational that it was a "manifest abuse" of our discretion. *fn9"

 Each of Ochs' challenges was rejected by our Circuit Court of Appeals. As to the Fourth Amendment issue, the Court stated in essence that the search of an automobile which the defendant was using was a proper inventory search and as such the records which were uncovered were properly admitted into evidence. *fn10"

 Ochs' attack on the sentence was likewise rejected. The Court stated: *fn11"

 
On the undisputed record disclosed in the presentence report, the judge could reasonably have given Ochs an even higher total sentence than he did. Particularly in light of our disposition of the suppression claim, we are not concerned with how the sentence was structured.

 United States v. Ochs, supra, 595 F.2d at 1262 (emphasis ours).

 After having served two years of the twenty-three year sentence we imposed, Ochs made a motion for reduction of his sentence pursuant to Fed.R.Crim.P. 35. *fn12" In support of that application the defendant argued, in essence, that his deportment during the first two years of incarceration was "exemplary"; that he had "demonstrated a commitment to self-improvement and adjustment"; that he had "effected a complete reversal of the inertia which [grasped] him at age 16 and carried him through 32 years of lost life"; and that "it [was] . . . necessary to reassess [him] . . . in light of his new attributes." *fn13" We stated then:

 
We deal here with a person whose whole being during the greater part so far of his adult life has been saturated with criminal intent translated into almost uninterrupted lawless activity. Without a doubt, he has been a determined offender against community well-being. Apprehension concerning his motives and movements is bound to ensue. The right to move safely, unmolested, to be secure at work and home, to be protected against frauds and schemers, is paramount. For it, the community pays a huge price, and is intolerant of failure or laxity on the part of its agents and instruments. It cannot be patient with or concerned about the welfare of offenders while they threaten its security and comfort. Many such offenders are crafty professionals whose aim is to bleed the community's resources for their own pleasures, at times using the instruments of the law itself to carry out and safeguard their operations and personal safety. *fn14"

 After careful review of Ochs' criminal record, efforts at rehabilitation and deportment during his two years of imprisonment, we were constrained to deny his motion in all respects and noted the total lack of satisfactory evidence on what was needed for a thorough understanding of this defendant's "revised" moral character, capacity to rehabilitate and educability; that if we are to sentence the whole person and not the crime alone, a thorough inquiry as to the true capacity of the offender is paramount. *fn15" Indispensable is a thorough search for all details having even the slightest bearing on a defendant's character, past and present. Often such an inquiry proves rewarding, for it supplies insights into strengths and weaknesses not theretofore revealed and furnishes enlightenment as to how best to write the sentence prescription. This approach is imperative and has long been encouraged and approved. In the exercise of his discretion, the judge may " consider information about the convicted person's past life, health, habits, conduct, and mental and moral propensities. . . . Highly relevant -- if not essential -- to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics. . . . [The] modern philosophy of penology . . . [emphasizes] that the punishment should fit the offender and not merely the crime." Williams v. New York, 337 U.S. 241, 245-47, 69 S. Ct. 1079, 1082, 1083, 93 L. Ed. 1337 (1949) (emphasis supplied). See also 21 U.S.C. § 850.

 We concluded: *fn16"

 
We do not despair of the defendant's chances ultimately to achieve moral values that will enable him to climb to higher ground. In the main, that is up to him. We do not say that his industry and pleasantness while in present confinement have been solely to earn 'credits' which will support his application for parole and entitle him to other benefits; such conduct may be coupled with a strong desire to 'go straight.' We simply do not know -- so thin is the evidence before us. In view of what is known of the whole man before and since our sentence was imposed, satisfactory evidence of true rehabilitation and contrition, involving solidly embedded moral values that assure his own good moral living without danger to the community, are best left to the psychiatrists and scholars in allied fields, whose impressive testimony might well turn the tide in defendant's favor.

 Ochs challenged our Rule 35 determination and on appeal argued primarily that he was denied due process because we did not first obtain reports from behaviorists, psychiatrists or psychologists (as he had requested) prior to our decision. Our Circuit Court of Appeals rejected this challenge and all others noting that no such reports were available at the prison prior to our determination, and that no petition for reargument on that basis was made subsequent to our determination. Our decision was affirmed in all respects. *fn17"

 Against this background Ochs brought on the instant motion for a new trial.

 Extortion Charge

 Ochs offered evidence at the hearing that the testimony of Debbie Frank McElroy, the witness at trial who testified that Ochs threatened her with physical violence for failure to make payments on a loan he had made to her, *fn18" was subsequently recanted by her.

 At trial, McElroy testified as to the threats she had received from Ochs on two occasions:

 
A I received a phone call from George.
 
Q Do you remember when you received this telephone call?
 
A In July of 1975.
 
Q Did you have a conversation with him when you received this telephone call, the defendant?
 
A I did.
 
Q During the conversation did he identify himself to you on the telephone?
 
A Yes, he did.
 
Q How did he identify himself?
 
A By saying that it was George.
 
Q Did you recognize the voice on the telephone?
 
A At first I didn't.
 
Q Did you later recognize the voice?
 
A I did, yes.
 
Q Whose voice did you recognize it to be?
 
A George's voice.
 
Q In as much detail as you can remember, would you tell us what the defendant, George Ochs, said to you during that telephone conversation and what you said to him?
 
A I said that I was unable to make that amount of payment and he said, 'Well, we will figure something out, but you have been reneging and I guess you want your head broken and to be floating in the river.' *fn19" It was a threatening phone call.
 
. . .
 
Q When you heard him say those words, Mrs. McElroy, what was your reaction?
 
A I was very scared for my life.
 
. . .
 
THE COURT: Well, whatever happened on this occasion, certainly, you have a right to tell us in your own words.
 
THE WITNESS: There was a knock at my door, to my apartment, and I was a little bit afraid, your Honor, the conditions of what had passed between George and I, and also I was afraid, because usually when someone comes to my house they ring from downstairs in the lobby, because there is video security. So I didn't understand someone just knocking at my door to my apartment. And I went very quietly up to the front door of my apartment and I looked out the peephole, and I saw George, and I was very afraid. He was wearing a building maintenance suit, and it made me very suspicious and I was very afraid and I didn't say anything behind the door. And he kept on ringing and ringing the doorbell and finally said, 'I know you are in there.'
 
And I said, 'Who do you want?'
 
And he said, 'I want to talk to Debbie.'
 
And I said, 'Debbie is no longer living here. I believe she may be down South. I am subletting the apartment.'
 
And he said, 'Well, you tell her her friend George was here and if she don't pay me my money, she is going to have a broken head and be found floating in the river.'
 
Q What did you say?
 
A I said I would tell her.
 
Q Was there any further conversation?
 
A No.
 
Q What was your reaction when you heard these statements by the defendant, George Ochs?
 
A I was very afraid. *fn20"

 That defendant resorted to threats of physical violence to McElroy was also the trial testimony of Bobbi Carter, *fn21" a friend of McElroy and a prostitute who worked at the Eros "massage" parlor. She too had a telephone conversation with Ochs:

 
Q Inasmuch detail as you can remember, can you tell us what Mr. Ochs said to you during that telephone conversation and what you said to him?
 
A He said that I still owed him $260 and I told him that I didn't owe anything because I had given the $360 to Debbie to give to him because I was sick and I didn't want to leave the house. He told me that she had given him the check, but that it bounced, so that left me still liable for the $260 that bounced, and he said he had not heard from Debbie for a while and she had not been bringing her payments, so I should get in touch with her, and then he got excited and started yelling and said that if I didn't get in touch with her and she didn't get in touch with him, she would be found floating in the East River with her arms and legs broken. . . .
 
Q Did you make an attempt to find Debbie Frank?
 
A Yes.
 
Q Were you successful?
 
A Yes.
 
Q Did you have a conversation with her?
 
A Yes.
 
Q Will you tell the Court what you told Miss Frank during that conversation?
 
A I told her that she had messed me up and that George had just called me and told me that I owned [sic] him $260 and that she had to get up the money then and he wanted to hear from her.
 
Q Did you tell her anything else concerning the latter part of the conversation?
 
A I told her what he said about finding her floating in the East River. *fn22"

 Further supportive testimony at trial came from Alan Viggiano, a friend of McElroy who also managed one of Ochs' "massage" parlors. Viggiano talked to McElroy the day after Ochs tried to break into her apartment: "Well, when she came up to see me, she was very excited and she said something in reference to somebody tried to get into her apartment last night. They tried to break into the apartment and she was very upset over it and I said to her, 'What are you talking about.' She got like very hysterical, she started crying and I tried to calm her down. . . . Q. I understand that, but did she ever discuss with you a problem concerning the loan she had with George? A. The only problem she mentioned to me was that day that somebody tried to break into her apartment dressed in a maintenance uniform or something on that order and she was very upset about it. She was talking about committing suicide and she went off and was ranting and raving. *fn23"

 At the hearing on the motion for a new trial Robin Ann Davis (Robin Ann Robison or Robinson), a friend of Ochs *fn24" who had worked for him as a prostitute, testified as to the alleged recantation:

 
Q. Did you ever meet Debbie after the case?
 
A. Yes.
 
Q. Where did you meet her?
 
A. On Eighth Avenue.
 
Q. What was she doing there?
 
A. I assume working. . . .
 
Q. Did you have a conversation with her on that occasion?
 
A. Yes, I did. . . .
 
THE COURT: What did she say she was doing? Did she say anything?
 
THE WITNESS: I didn't even recognize her. She called my name, and I turned around and I looked, and she says, 'It's Debbie.' She says, 'Hello, Robin.' And I started speaking to her, and she told me that she was sorry about George getting so much time that she -- from what she understood that he was only going to be sentenced to seven years maximum.
 
Q. Did she tell you she lied or did she tell you she told the truth at George's trial?
 
A. She told me she was scared and she did not tell the truth.
 
Q. What did she tell you she was scared of?
 
A. For going to jail for a case she had pending. *fn25"

 It is clear that McElroy has no criminal record. See H.T. 677-78.

 Russell Woodward, formerly a manager at one of Ochs' "massage" parlors (as well as one owned by Jerry Schwartz) testified that he too had spoken to Debbie Frank sometime in 1978 or 1979: *fn26"

 
Q After Mr. Ochs was convicted, did you ever see Debbie Frank?
 
A Yes. I had occasion to meet her on 42nd Street.
  
Q Was anyone with you when you met her?
  
A Yes, Robin Roberts.
  
Q Will you tell us what the circumstances of that meeting were?
  
A Well, she walked up and asked us how George had made out and Robin told her, 'How the hell did you expect him to make out after what you did? He got 23 years.'
  
And she told us, 'Well, I'm hustlin' and I don't have time to talk but that ain't what I was told, I was told he was going to get about seven years. If I knew it was going to turn out like that, I wouldn't have did it.'
  
He said, 'What do you mean, you wouldn't have did it?'
  
She told us the story she had to do it because she was arrested for drugs and if she hadn't of did what she was told to do they were going to make the case bigger.
  
So we took them to -- I said, are you sure of this? So we took her to the St. James where another girl that had worked with her knew her, named Dianne Klein, and she repeated the same thing in her presence and another fellow who was supposed to be here today, named Mike, that if she had of knew that Mr. Ochs' case was going to turn out like it was she would never have testified like she did because it was all a lie.
  
Q Have you seen Debbie Frank since that occasion?
  
A Only on one time and I never got close to her and she was hustlin' on Eighth Avenue.

  Additionally, Hud Collins the self proclaimed "King of Porn" who allegedly controlled "20 or 30 or 40 massage parlors" and allegedly worked during Ochs' investigation as an undercover informant for the Department of Justice and New York City and State Departments of Investigation, testified at the hearing that McElroy told him she was being intimidated by law enforcement agencies who threatened her with prosecution for her failure to cooperate, and that Ochs never threatened her. *fn27"

  Against this backdrop, the Government produced Debbie Frank McElroy. She testified: *fn28"

  
Q Did you have a conversation with Robin Ann Robinson in November or December of 1979?
  
THE COURT: Did you have a talk with her?
  
THE WITNESS: No, I did not.
  
THE COURT: On any subject?
  
THE WITNESS: No, I did not.
  
Q Did you ever have a conversation with Russell Woodward in November or December of 1979?
  
A No, I did not.
  
Q Did you ever tell anyone in 1979 that your testimony at trial was untrue?
  
A No, I did not.
  
Q Was your testimony at trial in United States v. George Ochs the truth, the whole truth and nothing but the truth?
  
A Yes, it was.
  
Q Did you ever go to the St. James Hotel and speak with Russell Woodward or Robin Ann Robinson in November or December of 1979?
  
A No, I did not.
  
Q Did you ever do it at any other time other than November or December of 1979?
  
A No.
  
Q Did you ever tell anyone that the reason you testified in United States v. George Ochs was because you had been threatened with prosecution for heroin?
  
A No.
  
Q Did you ever state to anyone at any time, ever, that the Feds, meaning the Federal authorities, had promised you that George Ochs would receive only a seven-year jail sentence in this case?
  
A No. . . .
  
Q During the course of your work in the massage parlor, did you ever come to know a man named Russell Woodward?
  
A Not to my knowledge.
  
Q Did you ever come to know another girl who worked at the Galaxy named Dianne Klein?
  
A Not to my knowledge.
  
Q Did you ever come to know a girl who worked at the massage parlor by the name of Robin Ann Robinson?
  
A Not to my knowledge.

  Former Assistant United States Attorney Sudler who conducted the trial for the Government against Ochs unequivocally testified that he did not in anyway induce the trial testimony of McElroy or Carter: *fn29"

  
Q With respect to both Ms. Carter and Ms. McElroy, did you make it known to them during the course of the investigation that they were subject to criminal charges?
  
A Never.
  
Q Did you ever indicate to them that you could cause them difficulty with the New York City Police Department?
  
A No, I did not.
  
Q Did you ever promise them anything in connection with their testimony?
  
A No, I did not.
  
Q Was Ms. Frank, Ms. McElroy -- had she ever been charged with any crime?
  
A Not to my knowledge.
  
Q When you had her in here as a witness, not in this courtroom but in the prosecution of the case, did you check out her criminal record to verify that in fact she had or had not been charged with a criminal record?
  
A Yes.
  
Q And you are telling us that you never made any promises in connection with that, is that right?
  
A That's right.

  In addition to insisting that the devastating testimony given by McElroy at trial had been recanted by her, movant, by way of a post-hearing motion, attempted to open the record to include further affidavits assailing the character and credibility of McElroy. *fn30" The substance of these affidavits is that McElroy perjured herself (again) when she testified at the hearing that she only used cocaine on one occasion; that in fact, McElroy used this and other hard drugs frequently. *fn31"

  Applicable law

  It is beyond cavil that when considering applications of the type here sought, *fn32" the "orderly administration of justice requires finality of judgment rendered after a trial unless injustice results. The findings of the trier of the fact, whether court or jury, should not be disturbed on motions for a new trial based upon alleged newly discovered evidence except for the most extraordinary circumstances." United States v. Fassoulis, 203 F. Supp. 114, 117 (S.D.N.Y. 1962) (Weinfeld, J.) (emphasis added). See also United States v. Alessi, 638 F.2d 466, 479 (2d Cir. 1980) (motions for a new trial " should be granted only with great caution ") (emphasis added). It is equally axiomatic that "[a] motion for a new trial on the ground of newly discovered evidence is addressed to the discretion of the trial judge. In deciding it he may utilize the knowledge he gained from presiding at the trial as well as the showing made on the motion." United States v. On Lee, 201 F.2d 722, 723 (2d Cir. 1953) (emphasis added).

  Also clear and well-defined is the general standard to be applied -- the so-called Berry test *fn33" -- when newly discovered evidence is proffered:

  
"The Court must be satisfied that the evidence (1) is in fact newly discovered, i.e., discovered since the trial; (2) could not with due diligence have been discovered earlier; (3) is not merely cumulative or impeaching; (4) is material to the issues, and finally, (5) is such, and of such nature, that upon a retrial it will probably produce an acquittal. The burden of satisfying these requirements is upon the defendant." *fn34"

  United States v. Fassoulis, supra, 203 F. Supp. at 117 (emphasis added).

  The first requirement -- newly discovered evidence -- means no more than the fundamental, common sense thought in haec verba conveyed. This indispensable requirement is often fused in analysis with the second requirement that due diligence, on the part of both the defendant and his counsel, *fn35" could not have produced earlier the evidence now introduced. United States v. Mello, 469 F.2d 356, 358 (1st Cir. 1972); United States v. Edwards, 366 F.2d 853, 874 (2d Cir. 1966); United States v. Costello, 255 F.2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 937, 2 L. Ed. 2d 1551, 78 S. Ct. 1385 (1958).

  We apply these tests to the hearing evidence offered by defendant that Government witness McElroy recanted her trial testimony on the extortion charge. Notwithstanding the fact that the precise date of the alleged recantation certainly was not crystalized (it is obvious that recantation of trial testimony can only occur after such testimony has been adduced), it is clear, according to the sworn testimony of Davis and Woodward, that the alleged conversations occurred long after (particularized herein below) the jury reached its verdict. United States v. Edwards, 366 F.2d 853 (2d Cir. 1966).

  However, what is markedly deficient here (also with regard to the tax counts and the alleged incidents of sexual relations) is the utter and complete failure of due diligence by or on behalf of movant since this "new evidence" was discovered. Even assuming arguendo that this recantation occurred in October, 1980 (the latest possible date according to the totality of the proof on this score (see Affidavit, Robin Ann Robison (Davis) verified December 14, 1981, paras. 9, 11)) there is not a word of explanation as to why movant waited until November 12, 1981 to bring on the instant application. *fn36" In this context, the enormous lapse of time -- well over one year -- is fatal.

  The next element to be considered -- whether the evidence is cumulative or impeaching -- tests the quality of the proof offered. See, e.g., Beyda v. United States, 324 F.2d 526 (9th Cir. 1963). The evidence relating to McElroy's alleged recantation, in the state of equiponderance save credibility which characterizes it, requires little analysis.

  Davis testified at the hearing that McElroy stated to her she lied at the trial because of a "case she had pending." As we already have pointed out, McElroy has no criminal record. McElroy, at the hearing, testified she could not remember whether she had ever known "Robin Ann Robison" (Davis' maiden name) and unequivocally denied ever having any conversation with Davis or Woodward. (See H.T. 600-01; 617-20). Davis testified the "recanting" conversation took place in October, 1980. Woodward believed it took place in 1978 or 1979 or November or December, 1979 depending on whether one reads his sworn testimony or affidavit. Woodward testified that Davis (as well as others) was present during his conversation with McElroy. Yet Davis did not refer to any one else being present -- see her affidavits and hearing testimony. Woodward also testified that he, along with McElroy and Davis, went to the St. James Hotel, where McElroy allegedly repeated her recantation. McElroy testified she had never been to that hotel. As for Davis, she did not refer to it.

  The inconsistencies set forth above, among others, succumb so disfavorably to the indicia of reliability that decades of judicial service have engrained in us, that we are compelled to discount the veracity of the entire testimony striving to establish recantation by McElroy. *fn37"

  In sharp contrast we find McElroy's hearing testimony clear, unequivocal and forthright on this issue. *fn38" Her corroborated trial testimony remains unblemished by this disingenuous attack. United States v. Troche, 213 F.2d 401, 403 (2d Cir. 1954) (applying the so-called Larrison test); United States v. Persico, 339 F. Supp. 1077 (E.D.N.Y.), affirmed, 467 F.2d 485 (2d Cir. 1972).

  The next element to be evaluated is whether the proffered evidence is material. Without question, were the proof on recantation found convincing, it would constitute a complete destruction of the extortion charge. However, any attempt to dissuade us from giving the same imprimatur of materiality to her testimony now which the jury did at trial cannot succeed, for McElroy made a convincing witness. We entertain no hesitation whatever in concluding that there exists no alternative to a positive rejection of defendant's proof on the alleged recantation by McElroy.

  Against the weight of this evidence, movant also would have us accept the untenable position that subsequent to trial McElroy admitted lying in her testimony because she was told by F.B.I. agents Ochs would only receive seven (7) years in jail and that this testimony if offered at trial would probably have produced an acquittal; therefore Ochs should be granted a new trial. The proof on this point is ineffective in the extreme -- it fails in its purpose.

  Accordingly, we turn to the final element to be considered, and by far the most weighty: Whether the evidence is "of such nature that upon retrial, it will probably produce an acquittal." Fassoulis, supra, 203 F. Supp. at 117. Although it is clear that this "probability" test does not apply in all instances, it is appropriate in this Circuit when the newly discovered evidence is offered to support a charge of perjury committed at trial or asserts recantation of earlier testimony. *fn39"

  We have diligently applied this test to the total hearing testimony -- on each and every ground asserted by defendant in his instant application. It is beyond cavil that he has failed it completely.

  We maintain that not overcome by defendant is the unequivocal proof offered at trial which could lead to one conclusion only -- best estimated by our Court of Appeals:

  
"The argument of insufficiency of the evidence on the extortion count, also raised for the first time on appeal, borders on the frivolous. It is unnecessary to go beyond the evidence, first communicated in slightly different terms through a friend and then directly, that if McElroy did not pay up, 'she is going to have a broken head and be found floating in the river.' 13 [fn. 13:] This aquatic threat seems to be quite venerable, see United States v. Kennedy, 291 F.2d 457, 459 (2d Cir. 1961)."

  Ochs, supra, 595 F.2d at 1261.

  As we see it, that quoted estimate firmly stands as of this writing.

  False Exemption Counts

  Ochs challenges his conviction on counts 3 through 5, the false exemption counts, on the basis of newly discovered evidence. *fn40" Specifically, the defendant asserts that several persons could and would have testified that indeed he was married and had children; that these potential witnesses did not come forward because of threats and other improper conduct on the part of the Government; and that only now has the Government's alleged grossly improper conduct come to light. *fn41" Ochs couples these allegations of prosecutorial misconduct with a claim of ineffective assistance of counsel in violation of the Sixth Amendment maintaining that his trial attorney could not render proper representation because of the death of counsel's father on the morning of the fifth day of trial. *fn42"

  At trial, the measure of proof adduced impressively met the burden which the law makes imperative, so the jury found, and established that the defendant was not married, had no children and was not entitled to the income tax exemptions he claimed.

  Much of the proof involving these issues was stipulated to by Ochs and his attorney. For example, a series of stipulations received into evidence concerned marriage, divorce and dissolution records of New York State including the five boroughs of New York City. *fn43" These showed that no record existed of a marriage between the defendant and his alleged wife, Marilyn; no record of a dissolution of marriage between defendant and Marilyn; and no records whatever relating to Alexander, George and William Ochs, the alleged children of defendant. *fn44"

  Further, a stipulation (Government's Exhibit 64) was read to the jury which stated in part, ". . . that if an appropriate official of a New York State agency was called as a witness, that official would testify that during the period November 19, 1969 through May 18, 1971 the defendant was required to make a statement regarding his marital status, [and] the names of his dependents. . . . That agency had no indication that George Ochs was married or had any children during the period November 19, 1969 through May 18, 1971. The official would further testify that during this period the only known officially recorded residence for the defendant . . . was 2846 Marion Avenue, Bronx, New York where he resided with his mother and sister." *fn45"

  It was also stipulated that if the appropriate representative of the Mason Tenders' District Council Trust Funds (of which Ochs was a participant) were called as a witness he would testify that the Funds' records reflected that Ochs was neither married nor had dependent children during the period September, 1970 to August, 1974. *fn46"

  Not all of the stipulations entered into were adverse to defendant. For example, it was agreed that if a representative of Phelps Memorial Hospital were called, that person would produce a patient card (dated April 18, 1974) which reflected that the defendant had a wife named Marilyn. *fn47" However, an emergency room admission form from Montefiore Hospital and Medical Center dated December 28, 1974 reflected that his nearest relative was Catherine, and indicated the relationship as "W." *fn48"

  On the other hand, Milton Cohen, a witness for the Government, testified that he was friendly with defendant; that he saw and spoke to him almost every day during 1974-75; and that Ochs never told him he was married or had children. *fn49" At best, as Cohen testified, he saw the defendant with the same "girl friend" two or three times. *fn50"

  Likewise, Irene Uhl, who knew the defendant for twenty-two years, testified: *fn51"

  
Q. Have you known Mr. Ochs to be married?
  
A. No, I don't know if he is married. I saw him with a woman.
  
. . .
  
Q. Have you ever known Mr. Ochs to be married?
  
. . .
  
A. No, I don't know.
  
. . .
  
Q. Have you ever known him to have children?
  
A. No.
  
Q. Has he ever lived at 27 Hillcrest Avenue with a wife and children?
  
A. No.

  Jerry Schwartz, a "massage" parlor partner of defendant, testified at trial that he was a close associate of his, *fn52" but did not know he had a wife and children:

  
Q Have you ever known Mr. Ochs to be married in your entire relationship with him?
  
. . .
  
A No.
  
Q Have you ever known Mr. Ochs to have children during your entire relationship with him?
  
A No.
  
. . .
  
Q Has Mr. Ochs ever said anything to you that would lead you to believe that he had a wife and/or children?
  
A No.
  
Q Do you know if Mr. Ochs has a girl friend?
  
A I was introduced to someone.
  
Q When were you introduced to someone and whom were you introduced to?
  
A I was introduced to a woman as Ann.
  
Q When were you introduced to Ann?
  
A I could not be specific on the date.
  
Q Was it on more than one occasion?
  
A I met her a few times.
  
Q Can you remember the year that you met this woman?
  
A I could not truthfully give you a specific day.
  
. . .
  
Q Mr. Schwartz, did you have a conversation with Mr. Ochs concerning the charges contained in this indictment that he claimed a wife and four children as exemptions on his tax returns?
  
A After the article appeared in the newspaper --
  
THE COURT: No. He just asked you a simple question.
  
THE WITNESS: Yes. I answered that. . . .
  
Q Will you tell us what the conversation was? What did you say to him and what did he say to you concerning that subject?
  
A I asked him if he was referring to an article that was in the newspaper in reference to the matter that you are mentioning.
  
Q What matter was that?
  
A About his having a wife and four children. . . . I asked him about it, and he said to, 'Well, you have met my wife and children.' And that was it.
  
Q Had you, in fact, met his wife and children?
  
A No, I had not. *fn53"

  Of great significance, the mother of defendant, Katherine Ochs, (called to the stand by defendant) testified on direct examination that her son was not married:

  
Q Mrs. Ochs, did there ever come a time when your son brought a woman to your house?
  
A Yes, sir.
  
Q And introduced her as his wife?
  
A Yes, yes.
  
Q Can you tell us when ...

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