United States v. Lawrence Krasny

Krasny appeals from a district court judgment denying his motion for a new trial. He based his motion upon newly discovered evidence which purportedly demonstrates that a government witness committed perjury during his trial. Krasny argues that the district court applied an incorrect legal standard and failed to make necessary findings in ruling on his motion for a new trial. We conclude that the district judge did not apply a test that requires us to reverse. However, because his findings are insufficient to allow us to determine whether he abused his discretion, we vacate the judgment denying Krasny’s motion and remand for further proceedings.

I

We earlier affirmed Krasny’s conviction on charges of conspiracy to import heroin into the United States, and to possess heroin with intent to distribute, in violation of 21 U.S.C. §§ 841 (a)(1), 846, 952, 963. His conviction arose out of an alleged agreement between him and two others, Bennett and Worley, to import heroin from Bangkok into the United States. Bennett first trav *842 eled to Bangkok to obtain the heroin. Worley followed Bennett, secured the heroin, and was arrested when she attempted to smuggle it into the United…

(dissenting):

I respectfully dissent. Unlike my Brothers, I am not prepared to reject the time-honored “Larrison ” rule in favor of the more stringent test enunciated by the Second Circuit in United States v. Stofsky, 527 F.2d 237 (2d Cir. 1975), cert. denied, 429 U.S. 819 , 97 S.Ct. 65 , 50 L.Ed.2d 80 (1976). This disagreement is based upon my conviction that newly discovered evidence of trial perjury by a material government witness should not be treated in the same manner as other post-conviction revelations. See 8A Moore’s Federal Practice ¶ 33.03[1] and ¶ 33.06[1] (2d ed. 1978).

*847 Not only do I believe that the “might” or “possibility” standard applied by the Larrison line of cases 1 is the more appropriate standard when, as here, the chief prosecution witness recants material portions of her trial testimony, but I consider the application of such a test required by the teaching of Mesarosh v. United States, 352 U.S. 1 , 77 S.Ct. 1 , 1 L.Ed.2d 1 (1956). There, Chief Justice Warren wrote for the Court:

Id. at 14 , 77 S.Ct. at 8 . See Williams v. United States, 500 F.2d 105, 107-08 (9th Cir. 1974). Cf. Communist Party of United States v. Subversive Activities Control…

607 F.2d 840 59 A.L.R.Fed. 645 UNITED STATES of America, Plaintiff-Appellee, v. Lawrence KRASNY, Defendant-Appellant. No. 78-3303. United States Court of Appeals, Ninth Circuit. Sept. 27, 1979. Rehearing Denied Nov. 20, 1979. Brian J. O'Neill, Manatt, Phelps, Rothenberg, Manley & Tunney, Los Angeles, Cal., for defendant-appellant. Mark S. Geraghty, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before CHAMBERS, ELY and WALLACE, Circuit Judges. WALLACE, Circuit Judge: 1 Krasny appeals from a district court judgment denying his motion for a new trial. He based his motion upon newly discovered evidence which purportedly demonstrates that a government witness committed perjury during his trial. Krasny argues that the district court applied an incorrect legal standard and failed to make necessary findings in ruling on his motion for a new trial. We conclude that the district judge did not apply a test that requires us to reverse. However, because his findings are insufficient to allow us to determine whether he abused his discretion, we vacate the judgment denying Krasny's motion and…