United States v. On Lee

201 F.2d 722

• Court: Court of Appeals for the Second Circuit
• Decided: April 13, 1953
• Docket: 140, Docket 22541
• Status: Published

Opinions

SWAN, Chief Judge.

This is an appeal by the movant from the denial of a motion pursuant to Rule 33 of the Rules of Criminal Procedure, 18 U.S.C.A., for a new trial on the ground of newly discovered evidence. The appellant was convicted after a jury trial on a two count indictment.^{1 2}His conviction was affirmed by both this court and the Supreme Court.* Familiarity with the facts set forth in those opinions will be assumed.

The motion for a new trial was heard upon affidavits. The new evidence relied upon is directed at impeaching the testimony of Lawrence Lee, an agent of the Bureau of Narcotics, who testified to damaging admissions of guilt made by On Lee to Chin Poy, another undercover agent of the Bureau. Chin Poy was not a witness at the trial. His affidavit submitted in support of the motion denies that On Lee made the admissions which agent Lee testified he had overheard by means of a radio microphone. A further attack on agent Lee’s credibility is made by the affidavit of attorney Rosenthal who asserts on information and belief that since the trial agent Lee had been forced to resign from the Bureau of Narcotics because of “improper acts” in other matters, and consequently the United States Attorney has dismissed several pending indictments which required the testimony of agent Lee, thereby evidencing unwillingness to vouch for his testimony.

A motion for a new trial on the ground of newly discovered evidence is addressed to the discretion of the trial judge.³ In deciding it 'he may utilize the knowledge he gained from presiding at the trial as well as the showing made on the motion.⁴ On an appeal from denial of the motion decision must turn on whether there has been an abuse of discretion in denying it.⁵ And the order will not be reversed unless the new material tends to “furnish evidence of defendant’s innocence,” and is such as would probably produce an acquittal.⁶

In the light of these elementary principles, Judge Bondy’s denial of the motion was correct. Chin Poy’s affidavit is in effect a recantation of a signed statement made by him before the trial.⁷ To credit his present assertions that he had no discussion with On Lee concerning narcotics and did not know the purpose of the “box” agent Lee put in “my overcoat pocket” strains credulity. He does not deny that he himself was an undercover agent of the Bureau. He was instructed by agents of the Bureau to engage appellant in conversation ; it is absurd to assert that such conversation did not relate to narcotics and that he did hot know that the “box” in his pocket was a microphonic device. His own prior signed statement to the agents, attached to the opposing affidavit, refutes his present contention. His affidavit admits fifteen convictions for possession and use of narcotics. His credibility, to say the least, is doubtful.⁸ Were Chin Poy to testify at a new trial, his testimony would at best serve only to impeach that of agent Lee; but, in view of his conflicting statements, and his fifteen prior convictions, it is doubtful that the jury would give much credence to his story.⁹ Moreover, appellant himself took the stand and disputed agent Lee’s story; thus the jury heard conflicting versions and chose not to believe that of appellant.

The other attack upon agent Lee’s testimony is based on his subsequent discharge from the service of the Bureau of Narcotics and the dismissal of indictments in cases where he was needed as a witness. As noted above these charges are made on information and belief but we will assume them to be true since the one affidavit submitted in opposition to the motion is silent on this subject. The fact of agent Lee’s discharge for “improper acts,” whatever they may have been, can do no more than lessen his credibility.¹⁰ But even without his testimony the other evidence at the trial was sufficient to sustain the conviction. There was positive testimony as to appellant’s guilt by his co-defendant, Gong Len Ying; and the testimony of an accomplice need not be corroborated in the federal courts.¹¹ Moreover, agent Gin testified to the sale and this was corroborated by Officer Monahan.

Accordingly, we conclude that were a second trial awarded, the newly discovered evidence offered by appellant’s motion would not probably produce an acquittal. There was no abuse of discretion in the denial of the motion. Judgment affirmed.

1 . Count one charged the sale of a pound of opium contrary to 21 U.S.C.A. §§ 173, 174; count two charged a conspiracy, 18 U.S.C.A. § 371, to violate 26 U.S.C.A. §§ 2553(a) and 2554(a), as well as 21 U.S.C.A. §§ 173, 174.

2 . United States v. On Lee, 2 Cir., 193 F.2d 306; On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270.

3 . It is generally said that five requirements should be met before a new trial will be awarded on grounds of newly discovered evidence. See the statement of Johnson v. United States, 8 Cir.) 32 F.2d 127, 130, quoted in Brandon v. United States, 9 Cir., 190 F.2d 175, 178: “* * * (a) The evidence must be in fact, newly discovered, i.e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on, must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.”

4 . United States v. Johnson, 327 U.S. 106, 112, 66 S.Ct. 464, 90 L.Ed. 562; Harrison v. United States, 5 Cir., 191 F.2d 874, 876.

5 . Weiss v. United States, 5 Cir., 122 F.2d 675, 691-692, certiorari denied 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed. 550.

6 . United States v. Forzano, 2 Cir., 190 F. 2d 687, 689; Brandon v. United States, 9 Cir., 190 F.2d 175, 178; Long v. United States, 10 Cir., 139 F.2d 652, 654; Harrison v. United States, 5 Cir., 191 F.2d 874, 876.

7 . In a signed statement given on April 14, 1950, and witnessed by three Bureau of Narcotics agents, he recounts his conversations with On Lee which were overheard by agent Lee and subsequently repeated by that agent on trial. The signed statement supported in all respects agent Lee’s testimony.

8 . Cf. United States v. Cordo, 2 Cir., 186 F.2d 144, 148, certiorari denied sub nom. Minkoff v. United States, 340 U.S. 952, 71 S.Ct. 572, 95 L.Ed. 686.

9 . Cf. Mr. Justice Jackson’s remarks in On Lee v. United States, 343 U.S. 747, at page 756, 72 S.Ct. 967, on page 973, 96 L. Ed. 1270: “It seems a not unlikely assumption that the very defects of character and blemishes of record which made On Lee trust him I'Chin Poy] with confidences would make a jury distrust his testimony.”

10 . Cf. Kramer v. United States, 9 Cir., 147 F.2d 202, 204.

11 . Catrino v. United States, 9 Cir., 176 F.2d 884, 889; United States v. Moran, 2 Cir., 151 F.2d 661, 662, 167 A.L.R.. 403; United States v. Schwartz, 2 Cir., 150 F.2d 627, 628, certiorari denied 326 U. S. 757, 66 S.Ct. 97, 90 L.Ed. 454.