called by the defense, if they so chose. The Court of Appeals also found that Tony Wong "the witness whom the defendant claims should have been called by his counsel had previously submitted an affidavit which indicated that he was likely to inculpate the defendant. Defendant's counsel was surely justified in not calling him."
On December 21, 1994, the Court of Appeals denied petitioner's Petition for Rehearing and Suggestion for Rehearing In Banc.
This motion to set aside judgment and for a new trial was filed on June 21, 1995. Oral argument was heard on August 23, 1995 at which time the motion was considered fully submitted.
Yu asserts that information discovered only at oral argument before the Court of Appeals, entitles him to new trial. The "newly discovered evidence" on which Yu bases his motion consists of the Assistant U.S. Attorney's statement at the appellate argument that Wong's testimony at trial would have added nothing to the evidence provided by the Government at trial: "The link is all there, Davies Yu provides the link in his testimony. I think the focus has been on page 206 and 207 [of the trial transcript], but if you go to page 200 and a few pages beyond 207, you will see that the complete link is there. So Tony Wong would not have added more to that."
Motions for a new trial based on newly discovered evidence are not favored and should be granted only with great caution, and in "the most extraordinary of circumstances." United States v. Spencer, 4 F.3d 115, 118 (2d Cir. 1993) (quoting United States v. Imran, 964 F.2d 1313, 1318 (2d Cir.) (in turn quoting United States v. DiPaolo, 835 F.2d 46, 49 (2d Cir. 1987)), cert. denied, 113 S. Ct. 1953 (1993); United States v. Stofsky, 527 F.2d 237, 243 (2d Cir. 1975), cert. denied, 429 U.S. 819 (1976). To obtain a new trial based on newly discovered evidence, the defendant must show (1) that the evidence is truly newly discovered, i.e., discovered after trial; (2) that it could not, with due diligence, have been discovered prior to or during trial; (3) that the evidence is material and not cumulative or impeaching, and (4) that the evidence would probably lead to acquittal. United States v. Underwood, 932 F.2d 1049, 1052 (2d Cir.), cert. denied, 502 U.S. 942, 112 S. Ct. 382, 116 L. Ed. 2d 333 (1991); United States v. Diaz, 922 F.2d 998, 1006-07 (2d Cir. 1990) ("new" evidence must create "a reasonable doubt that did not otherwise exist"), cert. denied, 500 U.S. 925, 111 S. Ct. 2035, 114 L. Ed. 2d 119 (1991); United States v. Tutino, 883 F.2d 1125, 1140 (2d Cir. 1989), cert. denied, 493 U.S. 1081 & 1082, 110 S. Ct. 1139, 107 L. Ed. 2d 1044 (1990); DiPaolo, 835 F.2d at 49; United States v. Gilbert, 668 F.2d 94, 96 (2d Cir. 1981), cert. denied, 456 U.S. 946, 102 S. Ct. 2014, 72 L. Ed. 2d 469 (1982); United States v. Alessi, 638 F.2d 466, 479 (2d Cir. 1980); United States v. Castano, 756 F. Supp. 820, 823 (S.D.N.Y. 1991).
Thus where a defendant had before the trial the very information he claims is new evidence, he is not entitled to a new trial. See United States v. Slutsky, 514 F.2d 1222, 1225 (2d Cir. 1975). Yu must demonstrate that the "new" evidence could not have been discovered through due diligence before or during the trial. United States v. Siddiqi, 959 F.2d 1167, 1173 (2d Cir. 1992).
The "new evidence" offered by Yu, focusses on the prosecutor's admission that Wong's testimony would have added nothing new, that it would have been cumulative. The strongest case that Yu can make is that the conviction was based on an impermissible inference that Wong would have provided a stronger link between the heroin and Yu. But the sufficiency of the evidence in the absence of Wong's testimony has been tested at four points in the life of this case: in the denial of two Rule 29 motions by the jury in convicting Yu on the Texaco count and by the Court of Appeals in affirming the conviction. Confirmation that Wong has nothing more to offer does not effect the strength of the underlying factual record. Furthermore, there is no assertion that Wong would testify or what he would be likely to say that would address the connection between Yu and the heroin seized at the Texaco station.
This new evidence also fails to meet the requirements for invoking the exception on several fronts.
First, the potential testimony is not "newly discovered." A number of courts have held that the testimony of a co-defendant who chose not to testify at the trial or who previously asserted his right against self-incrimination is not newly discovered evidence. United States v. Persinger, 587 F. Supp. 899, 901 (W.D.Pa. 1984); see, e.g., United States v. Jacobs, 475 F.2d 270, 286 (2d Cir.), cert. denied sub nom., Lavelle v. United States, 414 U.S. 821, 94 S. Ct. 116, 38 L. Ed. 2d 53, 94 S. Ct. 131 (1973); Castano, 756 F. Supp. at 823 (citing cases).
At the time of trial, Yu knew that Wong was an alleged co-conspirator. Thus, Yu knew that he may have "possessed relevant information which could exonerate him" if he might have testified that he did not deliver the heroin seized by the DEA agent at the Texaco station or perhaps that Yu had not supplied the heroin. See Castano, 756 F. Supp. at 823. Given the circumstances, the potential testimony of Wong "can at best be characterized as 'newly available,' which is not 'synonymous with newly discovered evidence on a Rule 33 motion.'" Id. at 823-24 (quoting United States v. DiBernardo, 880 F.2d 1216, 1225 (11th Cir. 1989)).
Concededly, Yu did not know exactly what Wong would say on the stand. Nevertheless, as the Court of Appeals for the Fifth Circuit has written:
The precise testimony of any potential witness cannot be known until it is had .... The decision not to interview [the witnesses], and not to call either witness, whether wise or not, was a deliberate and strategic one. The defendant is not entitled to a new trial so that he may employ a different strategy. Because the proffered testimony was readily available at the time of trial, there is no newly discovered evidence within the meaning of Rule 33.
United States v. Beasley, 582 F.2d 337, 339 (5th Cir. 1978); see also United States ex rel. Regina v. LaVallee, 504 F.2d 580, 583 (2d Cir. 1974) (defendant may not obtain new trial on basis of "new evidence" in form of testimony of witness available but not called at trial), cert. denied, 420 U.S. 947, 95 S. Ct. 1330, 43 L. Ed. 2d 425 (1975).
For these reasons, Wong's testimony or the admission that it would not strengthen the nexus between Yu and the Texaco heroin, which Yu claims would have cleared the record that there was no connection between Yu and the heroin cannot be considered newly discovered evidence simply because Yu chose not to call Wong because he "didn't know what he would say."
Moreover, Yu has failed to establish that he could not with due diligence have discovered this evidence prior to trial. In light of this Court's denial of a missing witness charge on the grounds that efforts had not been made to subpoena Wong, and the Court of Appeal's affirmance of same, Yu has produced no evidence of any attempts to subpoena Wong before or during trial, see United States v. Cruz, 602 F. Supp. 825, 833 (S.D.N.Y. 1985), or to request that the Government grant them immunity. Castano, 756 F. Supp. at 824 (citing Cruz, 602 F. Supp. at 830); United States v. La Duca, 447 F. Supp. 779, 786-88 (D.N.J.), aff'd, 587 F.2d 144 (3d Cir. 1978), cert. denied, 440 U.S. 972, 99 S. Ct. 1537, 59 L. Ed. 2d 789 (1979).
Finally, contrary to his claim that the fact that Wong could not add anything to the case, supports Yu's theory of no nexus, it simply adds nothing to the record. Between Davies' testimony and that of agent Nargas, it is possible that the jury could have found conspirator liability on the part of Yu for the sale at the Texaco station. The charge allowing such a finding was given.
It is not clear that the absence of a more concrete connection by Wong would "probably lead to acquittal." The potential testimony of Wong or a stipulation that Wong presents no stronger testimony on the nexus between Yu and the Texaco heroin, does not compromise the evidence adduced at trial: that DEA agents arrested Wong at the Texaco station contemporaneous with the seizure of narcotics; that the agent testified that Wong had gone into the car where the bag was; that Davies had picked up heroin from Yu and delivered it to Wong; and that Yu may have told Wong that the defendant was the potential source of the heroin. Yu maintains, nevertheless, that the fact of the government's admission that Wong would have added nothing more undermines the jury's crucial inference from the Davies Yu testimony, that the heroin given from the defendant to Davies Yu and from Davies Yu to Wong was the same heroin involved at the Texaco gas station. While the connection may be tangential and based on inference, the jury found it sufficient to link Yu to the Texaco count through his co-conspirator liability. It is not logical, however, that the additional fact that Wong could not have added more, would create the necessary element that this fact would "probably" lead to acquittal.
The Government did not rest its case on the fact that Wong knew who the original supplier of the heroin was. It is not critical to the Government's case that Wong could not identify the heroin at the Texaco station as Yu's. It appears from the extradition affidavit that Wong might state definitively that the heroin involved at the Texaco station was that which he had obtained from Davies. Since Yu has no case stronger than the Government's statement that Wong's testimony was unnecessary and cumulative, the petition must be dismissed.
For the foregoing reasons, Yu's motion for a new trial is denied.
It is so ordered.
New York, N. Y.
October 25, 1995
ROBERT W. SWEET