United States v. George Clark Beebe

1. Following bench trial, in opposing appellant’s motion for acquittal, the Government attached to its memorandum an affidavit by one of its trial witnesses in effect expanding the trial testimony of that witness. The memorandum, referring to the affidavit, requested leave to reopen trial so that testimony could be introduced in accordance with the affidavit “if the court deems the point to be material.” Appellant moved to strike the affidavit and all reference to its subject in the Government’s memorandum. No action was taken on this motion. Subsequently the court entered findings of fact, conclusions of law and judgment of conviction. Appellant assigns as error the court’s failure to order the affidavit stricken.

It does not appear, however, that the court in its findings of fact relied on the affidavit or gave it any consideration beyond that invited by the Government. The court neither granted the motion to strike the affidavit nor ordered a reopening to permit the Government to offer testimony on the subject matter of the affidavit. It seems apparent that it simply paid no attention to it. Its findings make no reference to the specific subject of the affidavit. In finding…