1. Where, on an appeal from a denial of a motion for a new trial
on the ground of newly discovered evidence under Rule II(3) of the
Criminal Appeals Rules, it appears that the only objection is to
the trial court's findings on conflicting evidence, and that there
was evidence to support its findings, the appeal does not present a
reviewable issue of law, and the circuit court of appeals should,
on its own motion, dismiss the appeal as frivolous under Rule IV,
which gives the circuit courts of appeals power to supervise and
control all proceedings on appeal. P. 327 U. S.
2. It is important for the orderly administration of criminal
justice that findings on conflicting evidence by trial courts on
motions for new trial based on newly discovered evidence remain
undisturbed, except in most extraordinary circumstances. P.
327 U. S.
3. It is not the province of this Court or the circuit courts of
appeals to review orders granting or denying motions for a new
trial when such review is sought on the ground that the trial court
made erroneous findings of fact and it does not clearly appear that
the findings are not supported by any evidence. P. 327 U. S.
Page 327 U. S. 107
4. While a defendant should be afforded the full benefit of a
motion for a new trial on the ground of newly discovered evidence
under Rule II(3) of the Criminal Appeals Rules, courts should be on
the alert to see that the privilege is not abused, and one of the
most effective methods of preventing abuse is to refrain from
reviewing findings of fact which have evidence to support them. P.
327 U. S.
149 F.2d 31 reversed.
Respondents in both cases were convicted of violations of penal
provisions of the Revenue Acts, and for conspiracy. The circuit
court of appeals reversed. 123 F.2d 111, 142. After granting
certiorari, 315 U.S. 790, this Court reversed and remanded the case
to the circuit court of appeals. 319 U. S. 319
503. That court remanded the case to the district court to permit a
motion for a new trial on the ground of newly discovered evidence.
That motion was made and denied. The circuit court of appeals
affirmed. 142 F.2d 588. Respondents petitioned this Court for
certiorari, but the petition was dismissed on motion of their
counsel. 323 U.S. 806. After obtaining a second remand from the
circuit court of appeals on the ground of still further newly
discovered evidence, respondents filed in the district court an
amended motion for a new trial. That motion was denied. The circuit
court of appeals reversed. 149 F.2d 31. This Court granted
certiorari. 326 U.S. 702. Reversed and remanded
district court to enforce the judgment. P. 327 U. S.
Page 327 U. S. 108
MR. JUSTICE BLACK delivered the opinion of the Court.
On October 12, 1940, after a federal district court trial
lasting more than six weeks, a jury found respondent Johnson guilty
of willfully attempting to defeat and evade a large part of his
income taxes for the calendar years 1936-1939 and of conspiring to
do so; the other respondents were convicted and sentenced for
conspiring with and aiding and abetting him. [Footnote 1
] From the time of these convictions
until now, enforcement of the sentences was delayed by persistent
efforts to obtain a new trial. Though there has been no second
trial, the case is here for the third time.
September 21, 1941, was the date when the Circuit Court of
Appeals first reversed the conviction, one judge dissenting. 123
F.2d 111. June 7, 1943, we reversed and remanded the case to the
Circuit Court of Appeals, 319 U. S. 319
503. Respondents then asked that Court to remand the case to the
trial court to permit a motion for a new trial on the ground of
newly discovered evidence. [Footnote 2
] The Circuit Court. acting pursuant to Rule
II(3) of the Criminal Appeals rules, [Footnote 3
] remanded the case, and, on October
Page 327 U. S. 109
29, 1943, respondents, with leave of the trial court, filed a
motion for a new trial. The respondents alleged that the newly
discovered evidence proved that Goldstein, a government witness at
the trial, was unworthy of belief, and had committed perjury in
testifying that certain properties were purchased by him on behalf
of Johnson and with money supplied by Johnson. To support their
charges against Goldstein, respondents offered numerous affidavits.
The Government filed an answer to the motion and a number of
counteraffidavits. And among the papers before the court were
affidavits by Goldstein reaffirming his testimony at the trial. The
trial judge, in a carefully prepared opinion covering fifty-six
pages of the record, gave thoughtful consideration to each
affidavit, reached the conclusion that none of them showed that
Goldstein had perjured himself, and found both from the new
affidavits and his own knowledge of the original six-weeks trial,
that Goldstein's testimony was true. The motion for a new trial was
The Circuit Court of Appeals affirmed. 142 F.2d 588, 592. It
unanimously held that it could not substitute its judgment on the
facts for that of the trial judge; that it did not have power to
try these facts de novo;
that it could review the record
for errors of law to determine, among other things, whether the
trial judge had abused his discretion; that a review of the new
evidence in the record did not inevitably lead to the conclusion
that Goldstein had testified falsely; that the trial judge had not
reached his conclusion "arbitrarily, capriciously, or in the
misapplication of any rule of law," and hence had not abused his
discretion. The respondents thereupon filed a second petition for
certiorari in this Court. While this petition was pending,
respondents presented papers informing us that they had discovered
still more new evidence tending to discredit Goldstein's original
testimony. We deferred consideration of their case, which we later
dismissed, 323 U.S.
Page 327 U. S. 110
806, and they, after obtaining a second remand from the Circuit
Court of Appeals, filed an amended motion for new trial in the
District Court. The trial court again wrote an opinion analyzing
each new affidavit in detail. These additional affidavits contained
statements which, had they been offered as testimony at the
original trial, would have been admissible and relevant to
discredit Goldstein's and buttress Johnson's testimony. At least
some of the facts set out in the affidavits had not been discovered
until shortly before the amended motion was made. But the trial
court concluded that the new affidavits failed to prove that
Goldstein had committed perjury, and that, consequently, the basic
ground for the motion -- that there was new evidence showing that
Goldstein had perjured himself -- was without foundation. [Footnote 4
] That court found again that
the new and old evidence, taken together, affirmatively showed that
Goldstein had been a truthful witness. This time, however, the
Circuit Court of Appeals reversed with one judge dissenting. 149
F.2d 31. The reversal rested basically on the Court's belief that
the trial judge had erroneously found that Goldstein did not permit
perjury. The majority of the Court reviewed parts of the affidavits
and concluded from them that the trial judge's finding that
Goldstein did not commit perjury was illogical and unreasonable.
The majority substituted its own finding that Goldstein's original
testimony was "unerringly false," and held that the trial judge's
Page 327 U. S. 111
conclusion amounted to an abuse of discretion. Since we think it
important for the orderly administration of criminal justice that
findings on conflicting evidence by trial courts on motions for new
trial based on newly discovered evidence remain undisturbed except
for most extraordinary circumstances, we granted certiorari.
In our opinion, the Circuit Court of Appeals erred. The appeal
to that court was so devoid of merit that it should have been
dismissed. The crucial question before the trial court was one of
fact: did the new evidence show that Goldstein's original testimony
was false. [Footnote 5
trial judge, after carefully studying all the evidence, found that
there was nothing to show perjury on the part of Goldstein, that
Goldstein had, in fact, told the truth, and concluded that a new
trial was not warranted. The trial court thus answered the above
question in the negative. Two judges of the Circuit Court of
Appeals thought that the evidence compelled an affirmative answer.
But it is not the province of this Court or the Circuit Court of
Appeals to review orders granting or denying motions for a new
trial when such review is sought on the alleged ground that the
trial court made erroneous findings of fact. Holmgren v. United
States, 217 U. S. 509
Holt v. United States, 218 U. S. 245
Fairmount Glass Works v. Coal Co., 287 U.
, 287 U. S. 481
While the appellate court might intervene when the findings of fact
are wholly unsupported by evidence, cf. 310 U.
S. Socony-Vacuum Oil Co.,
Page 327 U. S. 112
310 U. S. 150
310 U. S. 247
Glasser v. United States, 315 U. S.
, 315 U. S. 87
should never do so where it does not clearly appear that the
findings are not supported by any evidence.
The trial judge's findings were supported by evidence. He had
conducted the original trial and had watched the case against
Johnson and the other respondents unfold from day to day.
Consequently, the trial judge was exceptionally qualified to pass
on the affidavits. The record of both the original trial and the
proceedings on the motions for a new trial shows clearly that the
trial judge gave the numerous elements of the controversy careful
and honest consideration. We think that even a casual perusal of
this record should have revealed to the Circuit Court of Appeals
that here nothing more was involved than an effort to upset a trial
court's findings of fact.
Determination of guilt or innocence as a result of a fair trial,
and prompt enforcement of sentences in the event of conviction, are
objectives of criminal law. In the interest of promptness, Rule
II(2) of the Criminal Appeals Rules requires that motions for new
trial generally must be made within three days after verdict or
finding of guilt, and Rule III requires appeals to be taken within
five days. But motions for new trial on the ground of newly
discovered evidence have been more liberally treated. They can,
under Rule II(3), be made at any time within sixty days after
judgment, and, in the event of an appeal, at any time before final
disposition by the Appellate Court. This extraordinary length of
time within which this type of motion can be made is designed to
afford relief where, despite the fair conduct of the trial, it
later clearly appears to the trial judge that, because of facts
unknown at the time of trial, substantial justice was not done. It
is obvious, however, that this privilege might lend itself for use
as a method of delaying enforcement of just sentences. Especially
is this true where delay is extended by appeals lacking in merit.
This case will illustrates this possibility.
Page 327 U. S. 113
While a defendant should be afforded the full benefit of this
type of rectifying motion, courts should be on the alert to see
that the privilege of its use is not abused. One of the most
effective methods of preventing this abuse is for appellate courts
to refrain from reviewing findings of fact which have evidence to
support them. The Circuit Court of Appeals was right in the first
instance, when it declared that it did not sit to try de
motions for a new trial. It was wrong in the second
instance, when it did review the facts de novo
the judgment set aside.
The appeal to the Circuit Court of Appeals was instituted by
notice of appeal under Rule III of the Criminal Appeals Rules. Rule
IV gives the Circuit Court of Appeals power to supervise and
control all proceedings on the appeal, and to expedite such
proceedings by, among other things, entertaining motions to
dismiss. Ray v. United States, 301 U.
, 301 U. S. 164
Mortensen v. United States, 322 U.
. Under that Rule, the Circuit Court of Appeals
here, after studying the issues raised and upon determining that
the only objection was to the trial court's findings on conflicting
evidence, should have decided that this does not present a
reviewable issue of law and, on its own motion, have dismissed the
appeal as frivolous. [Footnote
The judgment of the Circuit Court of Appeals is reversed, and
the cause is remanded to the District Court to enforce the
judgments against the petitioners.
It is so ordered.
MR. JUSTICE JACKSON and MR. JUSTICE MURPHY took no part in the
consideration or decision of this case.
* Together with No. 116, United States v. Sommers et
on certiorari to the same court. Argued and decided on
the same dates.
The respondent Brown was found guilty only on the conspiracy
count and counts 3 and 4, the substantive counts for 1938-1939.
Previously respondents had applied to MR. JUSTICE FRANKFURTER
for a stay of mandate pending petition for rehearing. MR. JUSTICE
FRANKFURTER's denial of the motion specifically stated that it was
"without prejudice, however, to the consideration and
disposition by the United States Circuit Court of Appeals for the
Seventh Circuit of any motion filed under Rule 2(3) of the Criminal
"* * * *"
"(3) Except in capital cases, a motion for a new trial solely
upon the ground of newly discovered evidence may be made within
sixty (60) days after final judgment, without regard to the
expiration of the term at which judgment was rendered, unless an
appeal has been taken, and in that event, the trial court may
entertain the motion only on remand of the case by the appellate
court for that purpose, and such remand may be made at any time
before final judgment. . . ."
An alternative ground for the Court's denial of the motion need
not be considered here. For, as will be seen, we think that the
trial court's findings that the so-called new evidence failed to
show Goldstein's perjury should not have been upset. The
alternative ground was that all the so-called newly discovered
evidence was either not newly discovered or merely cumulative or
impeaching, and, in any event, would probably not produce a
different result. In this aspect of the case, the trial court, as
did the Circuit Court of Appeals in its first opinion, relied on
the frequently quoted and followed rule announced in Berry v.
10 Ga. 511.
In addition to questions involving the merely impeaching or
cumulative effect of the evidence, which we have already indicated
need not be considered here, see note 2 supra,
we also need not consider what
criteria should have guided the court in passing on the motion had
respondents actually shown that Goldstein recanted his testimony or
that he committed perjury. Compare Larrison v. United
24 F.2d 82, with Berry v. Georgia, supra,
For, as later appears,
we consider the District Court's finding, that Goldstein's
testimony was not shown to have been false, not reviewable. That
was sufficient to warrant a denial of the motion.
Alberts v. United States,
21 F.2d 968; Corrigan v.
Buckley, 271 U. S. 323
271 U. S. 329
Avent v. United States, 266 U. S. 127
266 U. S. 131
Sugarman v. United States, 249 U.
, 249 U. S. 184
Zucht v. King, 260 U. S. 174
260 U. S. 176
Campbell v. Olney, 262 U. S. 352
Seaboard Airline Ry. Co. v. Watson, 287 U. S.
, 287 U. S. 90
287 U. S. 92
Salinger v. United States, 272 U.
, 272 U. S. 544
Kryder v. Indiana,
305 U.S. 570; Cady v. Georgia,
323 U.S. 676.