The opinion of the court was delivered by: KIRKLAND
In this particular case, counsel for the defendant, Marie Lucinda Richardson, has filed a motion for a new trial on January 7, 1953, opposed by points and authorities filed by the Government and the Court has had the benefit of extended argument by counsel.
The Court, based upon our local practice, especially the rules as set forth in the Federal Rules of Criminal Procedure and local case law, wherein the Court observes, first, and finds that this particular motion was filed within the two years provided for newly discovered evidence under Rule 33 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., and the local case law, especially Thompson v. United States, 88 U.S.App.D.C. 235, 188 F.2d 652, 653, that with especial regard to local case law and that particular case, the rule locally is as follows:
"The trial court has a broad discretion as to whether a new trial should be granted because of newly discovered evidence, and its action will not be disturbed on appeal unless an abuse of that discretion appears.' To obtain a new trial because of newly discovered evidence
'(1) the evidence must have been discovered since the trial; (2) the party seeking the new trial must show diligence in the attempt to procure the newly discovered evidence; (3) the evidence relied upon must not be merely cumulative or impeaching; (4) it must be material to the issues involved; and (5) of such nature that in a new trial it would probably produce an acquittal.'
The Trial Court has preserved his trial notes and the Court recalls that this case consumed the days of February 19, 20, 21, 25, 26, 27, and 28, being a total of seven days and that this particular witness, Mary Stalcup Markward, was on the stand three full days.
The Court recalls that she lived at Chesterbrook, Virginia, throughout the period, which was approximately 15 miles to the heart of the city, and that in her activity for the F.B.I., she was a secretary of a local cell of the Communist group that was housed first in the central portions of the city and was afterwards changed to the Stanton Park area at 3rd and H Street, Northeast. The Court points to that fact because of the element of transportation which figured in the means of getting the witness to and from her home daily, to where she served as such secretary, as well as going on to New York City and to Baltimore.
There was, in addition, testimony by her that she paid dues; the amount is not clearly shown, but it is of record that the defendant Marie Lucinda Richardson, although unemployed for a period of time, had to pay 10 cents a week to keep eligible, so it is a fair assumption the dues must have been greater than that.
Her activities extended from the early part of 1943 until 1952, when she was before the Court testifying.
In addition to dues and transportation, there was also evidence before the Court that frequent contributions were made by members; on one occasion, to send this defendant, as the Court recalls, to New York City to attend a school.
Now, before the Court begins to make its findings of fact, the Court wants to notice the exhibit which has been filed to the motion for a new trial. I think it is important to notice, as against the amounts which are listed as having been paid to Mary Stalcup Markward, that in the ten years' time, there is listed but $ 147 as expenses. Now that, obviously, is not complete. Transportation alone in ten years' driving of an automobile would consume more oil and gas than that, and one doesn't travel to New York and back on the train for fare alone, unless he pays close to $ 20 to $ 22, or if he goes to Baltimore, even, or makes a few trips, so it is perfectly apparent that among the other sums of $ 23,879.45, there must be expenses, expenses apart from the $ 147 listed.
Now, in paragraph 2 of the exhibit attached to the motion, there is this statement:
'That the prosecution represents that such data which was incorporated in the figures hereinafter set forth accurately state the facts concerning all the payments'- and the Court emphasizes the word 'payments'- 'up to and including September 10, 1952.'
On the second page of the exhibit under the paragraph designated I, down near the bottom and about six lines up from the ...