The opinion of the court was delivered by: WHIPPLE
The defendant Nelson Gross moves this Court for a judgment of acquittal pursuant to Fed. R. Crim. P. 29(c) alleging that the evidence presented in the case was insufficient to sustain his conviction for the offenses charged in the indictment or in the alternative, the defendant moves this Court for a new trial in the interests of justice pursuant to Fed. R. Crim. P. 33.
In ruling on a motion for a judgment of acquittal, the test that ought to be applied by the trial judge is that laid down by Judge Prettyman in Curley v. United States, 81 U.S. App. D.C. 389, 160 F.2d 229 (1947):
. . . a trial judge, in passing upon a motion for a directed verdict of acquittal, must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion; or, to state it in another way, if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt, the motion must be granted. If he concludes that either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, he must let the jury decide the matter. Id. 232-233.
In the instant matter, the jury has decided upon the defendant's guilt to what it believed to be beyond a reasonable doubt. The renewal of the defendant's motion for acquittal now is premised on his belief that the jury could not have reached this conclusion rationally on the state of the evidence presented in the case and for this reason the jury's verdict must be overturned, as against the weight of the evidence and as a product of passion and prejudice demanding that a judgment of acquittal be now entered for the defendant.
In deciding whether the reasonable juror would have had to have a reasonable doubt concerning the defendant's guilt, the trial court must view the evidence in a light most favorable to the government and give it the benefit of all legitimate inferences. United States v. Hopkins, 354 F. Supp. 634 (E.D. Pa. 1973); Powell v. United States, 135 U.S. App. D.C. 254, 418 F.2d 470 (1969). In the instant case, the defendant bases his motion for a judgment of acquittal on the incredibility of the government's chief witnesses, Leonard Wolfram and William H. Preis, which the defendant believes was established by the thorough cross-examination of Wolfram and by the direct examination of Wolfram's secretary, Ruth Smith, and the Stop and Save Comptroller, Urinyi. In my review of this testimony, I do not consider it inconceivable nor highly improbable that the jury could have rationally believed the testimony of Preis and Wolfram. Further, it is not within the Court's power when ruling on a judgment of acquittal to assess the credibility of the government's witnesses. Its function on this motion is to ponder probabilities, not to reach actual conclusions; the final decision concerning the believability of the government's witnesses rests with the jury. United States v. Allard, 240 F.2d 840 (3rd Cir. 1957); United States v. Morris, 308 F. Supp. 1348 (E.D. Pa. 1970). What the Court does in ruling on the judgment of acquittal is to decide whether a rational juror could find on the state of the evidence that the defendant was guilty beyond a reasonable doubt. This the jury has done and I cannot find its conclusion irrational.
The credibility of witnesses comes within the purview of the trial court however, when it rules on the motion for a new trial after the jury has rendered its verdict. At that time, it is incumbent on the Court to evaluate and weigh the evidence in order to decide whether the jury's verdict is against the weight of the evidence and whether a miscarriage of justice has occurred. This motion is directed to the conscience of the Court and it must set the jury's verdict aside, when in its review of the facts, the conviction is contrary to the weight of the evidence. United States v. Wilson, 178 F. Supp. 881 (D.D.C. 1959).
Motions for new trial are directed to the trial court's discretion. Under its broad power, the court may weigh the evidence and consider the credibility of witnesses. The remedy is sparingly used, the courts usually couching their decisions in terms of "exceptional cases," United States v. Pepe, 209 F. Supp. 592, 595 (D. Del. 1962), affirmed 339 F.2d 264 (3rd Cir. 1964), "Miscarriage of justice", United States v. Parelius, 83 F. Supp. 617, 618 (D. Haw. 1949), and where "the evidence preponderates heavily against the verdict", United States v. Robinson, 71 F. Supp. 9, 10-11 (D.D.C. 1947) . . . . Id. 1111
In reviewing the instant matter, the defendant directs the Court to ten alternative bases for the grant of a new trial. The defendant alleges: (1) that the United States attorney knowingly utilized the perjured testimony of Leonard Wolfram in his case in chief (2) that the Court's admission of Joseph McCrane's Fifth Amendment testimony before a Federal Grand Jury was so prejudicial that it rises to reversible error (3) that the Court erred in allowing the United States Attorney to elicit testimony concerning the defendant's economic status (4) that the Court erred in allowing testimony concerning defendant's compliance or failure thereof with the 1925 Federal Corrupt Practices Act, 2 U.S.C. § 241 et seq. (5) that the United States Attorney engaged in conduct throughout the course of the trial which necessitates prophylactic relief by way of granting the defendant a new trial (6) that the plan for petit jury selection in this District is unconstitutional in that it systematically excludes attorneys, public officials and other persons of economic means (7) that the Court erred in charging the jury to ignore the tax deductibility of certain items listed on Grand Union's Federal Tax Returns (8) that the verdict is clearly against the weight of the evidence (9) that the Court erred in admitting the hearsay testimony of Bernard Striar and Suzanne Phillips Miller concerning their respective conversations with co-conspirators Anthony Statile and Joseph McCrane and (10) that the Court erred in allowing the naming of Anthony Statile in Count I and Joseph McCrane in Count III of the indictment on the eve of trial. These ten bases for a new trial raised by the defendant may be grouped into four categories. The first of these concerns alleged errors committed by the Court in its rulings on evidence in the course of the trial (Nos. 2, 3, 4 and 9) in its charge to the jury at the close of the case (No. 7) and in its ruling on a pre-trial motion (No. 10). Category two consists of assessing the credibility of Leonard Wolfram and whether his testimony, apparently believed by the jury, is so infirm as to characterize the jury's verdict as substantially contrary to the weight of the evidence (Nos. 1 and 8). Category three charges prosecutorial misconduct by the United States Attorney and his bad faith reliance on perjured testimony (Nos. 1 and 5). Finally, Category four alleges the unconstitutionality of this District's jury selection plan (No. 6).
The issues raised in Category one of the defendant's motion essentially ask this Court to reconsider its rulings rendered during the course of the trial. The burden rests on the defendant to demonstrate that these previous rulings vitiated the essential fairness of his trial and resulted in a denial of due process. United States ex rel. Darcy v. Handy, 351 U.S. 454, 76 S. Ct. 965, 100 L. Ed. 1331 (1956). The defendant previously objected to these rulings when the issues were originally raised and this Court rejected the defendant's arguments then. At this juncture of the case, wherein the burden which the defendant must sustain is much heavier, he has advanced no new arguments and this Court must therefore reaffirm its previous rulings and deny defendant's motion for a new trial based on these grounds.
In Category two, the defendant properly requests this Court to assess the credibility of the government's witnesses and to determine whether the jury's verdict is contrary to the weight of the evidence. United States v. Zannino, 468 F.2d 1299 (1st Cir. 1972); United States v. Joines, 327 F. Supp. 253 (D. Del. 1971). The major thrust of defendant's motion is directed to the credibility of Leonard Wolfram. His demeanor on the witness stand and his responses to the expert cross examination by the defendant's counsel proved him to be a confused and befuddled witness. His memory was confined to the general sequence of events in February and April of 1973 and frequently failed to recall specific dates, specific documents, and the specific words of conversations. The defendant alleges that the witness had a memory of convenience which remembered only these events which would implicate the defendant in a plot to suborn the perjury of William H. Preis and failed to recollect any event which might indicate his own personal participation in this attempted subornation plot. This Court, however, does not go so far. Assuredly Leonard Wolfram was not a strong witness for the government, his lapses of memory and recall of detail, were a frustrating and faltering aspect of the government's case. His testimony was severely neutralized by the defendant's cross-examination.
Leonard Wolfram, however, was not the only government witness nor was he necessarily believed fully and confidently by the jury in order for it to justify its guilty verdict. The testimony of Bernard Striar and William Preis along with other government witnesses was sufficient to justify the jury's verdict and, for this reason, the defendant's motion for a new trial based on Category two must also be denied.
Appended to the defendant's attack on the testimony of Leonard Wolfram, there is a technical argument concerning the legal sufficiency of Count V of that indictment. Count V alleges that the defendant suborned the perjury of William Preis before a United States Grand Jury as that perjury is described in 18 U.S.C. § ...