In addition to all of that, this was the type of case where a witness could not keep the exact amounts that were involved because the revelation of those amounts in her records would immediately disclose the very purpose for which she was working.
Also, the Court finds as a fact that in the trial it was testified in the Government case that she was being paid and there was considerable cross-examination concerning that fact, so the fact of payment was known to the jury.
Now, getting back to the things which are required that a person must do in order to be entitled to obtain a new trial for newly discovered evidence, the first requirement is that the evidence must have been discovered since the trial. With regard to that, the Court finds as a fact that this defendant and her counsel, who are among the very best at our Bar, men of long experience in criminal cases, were acquainted on the first day of her testimony, to wit, the day of February 21, 1952, that she was being paid. That is now found against the movant here; it is found as a fact that the evidence has not been discovered since the trial.
At this point, I shall touch upon the fact that the document which is offered as Exhibit A attached to the motion for a new trial contains so many elements which bear upon witness fees, transportation, per diem charges, contributions, dues, miscellaneous expenses, and where even a casual notice of the listed $ 147 as expenses is so inadequate as to be on its face demonstrative of the fact that it does not include all of the facts.
Secondly, it is required the party seeking the new trial must show diligence in an attempt to procure the newly discovered evidence. This local case contrasts sharply with the case in New York entitled United States v. Elizabeth Gurley Flynn, apparently Criminal No. 136-7, because the counsel there had put in a subpoena duces tecum on the Government to produce the records which are revealed by the stipulation. Here in the District of Columbia, the central headquarters of the F.B.I. is five blocks from the court house; as a matter of fact, it was six blocks from the Municipal Court Building, Criminal Division, in which this case was being heard and a deputy walking at a casual pace could have reached it in five minutes with a subpoena duces tecum and in less than two hours, to say nothing of the seven days of trial, the information could have been produced in court.
The New York attorney sought those means and caused a subpoena duces tecum to be filed and, as a result, the stipulation was entered. So, accordingly, on the second point, that the party seeking a new trial must show diligence in an attempt to procure the newly discovered evidence, this Court finds as a fact that was not done and diligence has not been shown.
Third, the evidence relied upon must not be merely cumulative or impeaching. From what the Court has said, it is quite obvious that the Court now finds as a fact that this is merely cumulative of what was divulged at the trial, what was argued to the Court, what was argued to the jury; certainly, it is cumulative of what we have already been over and the rule says it must not be merely cumulative or impeaching and it is that.
Fourth, it is required that it be material to the issues involved. If this was a suit for accounting, or an action in debt, or one to determine value or the determination of the amount of money involved under a charge or petit or grand larceny, then it might be material. However, no materiality is shown here.
There was evidence before this jury that this witness did receive money over and above her expenses which might have constituted a salary, might have constituted a wage; whatever the amount is, it is not clear from the record. It appears to be very, very little; if one averages, over the entire 10 years approximately $ 24,000 paid, or to wit, the exact amount $ 23,879.45, it amounts to $ 45 a week. If one has to spend the large sums indicated by the Court for court attendance, gasoline, per diem, mileage, and the rest, it is obvious that there is no variance from what this lady testified.
The Court notices that what she may have said in another case, be it in New York or an administrative hearing, is not the matter we are concerned with, but rather what did she testify in the open court from the witness stand and before the jury which sat in judgment and what was represented by her.
The last point is it must be shown that the newly discovered matter is of such a nature that in a new trial it would probably produce an acquittal. The Court finds as a fact that if everything were conceded as represented, that it would not produce an acquittal in this particular case, since it was not a matter of how much the witness got as against the over-all picture of whether or not this defendant, not once, but twice, had said that she had not been or ever had been a member of the Communist Party.
Accordingly, for the reason that the motion has not prevailed either in fact or in law and in the discretion allowed by the Court, the Court will now formally overrule the motion for new trial subject to the objection of the defendant.
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