Cummings, Pell and Sprecher, Circuit Judges.
The record on this appeal is abbreviated. However, the issue is a narrow one and there is adequate documentation before us upon which to lodge our decision.
The factual background of this litigation is amply set forth in United States v. Kahn, 381 F.2d 824 (7th Cir. 1967), cert. denied, 389 U.S. 1015, 88 S. Ct. 591, 19 L. Ed. 2d 661, and need not be repeated here.
Kahn, who was the client of Curran, the appellant here, and Sachs, attorneys, upon reaching the end of the appellate road, furnished an affidavit to the lawyers which stated in part the following:
"In the trial of the case, I exercised my constitutional privilege not to testify. Had I elected to testify, there is much evidence I could have given which would have negated the guilt of my co-defendants, Arthur B. Sachs and M. Prial Curran. I make this affidavit, at their request and for such use as they or their attorneys may make of it, for the purpose of indicating the nature of the testimony which I could have given and which I would now give if I should be called upon as a witness in an appropriate proceeding. Neither Mr. Sachs nor Mr. Curran, nor any other person has given me anything of value, promise or other consideration for making this affidavit."
The affidavit was promptly made the subject, as newly discovered evidence, of a motion for a new trial. It is not clear from the record whether Curran knew, prior to the receipt of the affidavit, the matters set forth in the affidavit or whether, knowing at least some of the matters, he was unable to bring them out via Kahn at the trial because of Kahn's disinclination to take the witness stand. While conceivably this might reflect upon whether the assertions in the affidavit were "newly discovered" as opposed to being known but not available*fn1 and might further have a place in the overall diligence picture, because of the result we reach, we do not need to pursue these particular aspects of the case.
The district court, being the judge who had tried the case, heard oral argument on the motion for new trial and overruled it. Both Curran and Sachs initiated appeals from the denial. Bail pending appeal having been denied, Curran has completed the part of the sentence he was required to serve but is now seeking to clear his name of the charges on which he was convicted. Sachs failed to present himself for imprisonment and was subsequently found dead, apparently a suicide.
The mention of Sachs is occasioned because of the suggestion during oral argument that the principal attorney for Kahn was Sachs, who headed Arthur Sachs and Associates, and that Curran was in effect only a salaried minion. We can give no weight to this approach as the affidavit makes no differentiation between the two lawyers and insofar as it is exculpatory of them, they are treated equally.
At the outset, we note the apt words of Professor Wright, "although defendants are tireless in seeking new trials on the ground of newly discovered evidence, motions on this ground are not favored by the courts and are viewed with great caution." 2 C. Wright, Federal Practice and Procedure: Criminal § 557, at 515 (1969). This, of course, as the Wright text indicates, does not mean that the motions will not be granted in the proper case, and whether this is a proper case must be our inquiry here. The thrust of our inquiry is whether the broad discretion, which the trial judge wisely has in this situation, has been abused. United States v. Maddox, supra.
The district court made no findings in this case. The judge at the conclusion of the argument did observe, inter alia, that there must in the course of events be an end to litigation of this type and that there had been a long road in this case. The second part of the observation is undoubtedly true. The trial commenced on December 7, 1965, and was concluded on January 6, 1966, occupying in the interim some 19 days of court time. Reference appears in the record to 18 volumes of transcript and numerous exhibits. None of this material was brought to us in the present appeal. In the original appeal, a unanimous panel of this court speaking through then Chief Judge Hastings in a carefully considered opinion concluded in affirming the convictions, that all of the defendants had been afforded a fair trial. United States v. Kahn, supra, 381 F.2d at 842. Certiorari was denied.
We do not deem, however, that the length of the road is per se a basis for finding that the terminal has been reached. As Judge Grant in speaking for this court stated in an analogous situation, "[The proceedings there involved] however desirable from the point of view of efficient and expeditious criminal adjudication, may not be had at the expense of a defendant's right to a fundamentally fair trial." United States v. Echeles, 352 F.2d 892, 896 (7th Cir. 1965).
The district court here, however, was of the opinion, after seeing the affidavit and hearing argument, that a fair trial had been had. Although we have no findings as such regarding the scope or applicability of the affidavit, we may determine from the record whether the trial judge might reasonably have reached the conclusion he did in overruling the motion for a new trial. We do so not on a de novo basis but only to determine whether, in reaching the conclusion the district court did, discretion was abused. United States v. Johnson, 142 F.2d 588, 591 (7th Cir. 1944), appeal dismissed, 323 U.S. 806, 65 S. Ct. 264, 89 L. Ed. 643.
We therefore turn to the affidavit, for on this document Curran's appeal must prevail or fail. We are not at this juncture impressed by the fact that if Kahn had testified the jury might have had a more complete and well-rounded picture of Curran's involvement or lack thereof than was put forward in the affidavit. Direct or cross-examination might have adduced additional exculpatory facts not thought of at the time of the preparation of the affidavit. To consider this, however, would be to launch ourselves on the perilous path of speculation as it could be as ...