To put the matter in proper focus, the Court instructed the jury: Cf. United States v. Munchak, 338 F. Supp. 1283, 1292-1293 (S.D.N.Y.), aff'd, 460 F.2d 1407 (2d Cir.), cert. denied, 409 U.S. 915, 93 S.Ct. 236, 34 L.Ed.2d 177 (1972). "There has been much evidence and discussion as to whether Nieves cheated — a charge he denies.
A defendant may not obtain a new trial on the basis of evidence which he could have discovered by reasonable diligence. United States v. Marquez, 363 F.Supp. 802, 808 (S.D.N. Y. 1973), aff'd mem., 490 F.2d 1383 (2d Cir. 1974); United States v. Munchak, 338 F.Supp. 1283, 1293-1294 (S.D.N.Y.), aff'd, 460 F.2d 1407 (2d Cir.), cert. denied, 409 U.S. 915, 93 S.Ct. 236, 34 L.Ed.2d 177 (1972); United States v. Edwards, 366 F.2d 853, 873-874 (2d Cir. 1966), cert. denied, 386 U.S. 908, 919, 87 S.Ct. 852, 17 L.Ed.2d 782 (1967). Second, this case arises in a procedural setting very different from Giglio.
Thus, knowledge of the Aguiluz-Nunziata taps would not have had the slightest bearing on the issue of petitioner's guilt or innocence. Its use by skilled counsel, whether for trial preparation, trial strategy or impeachment purposes, would have been of inconsequential value in negating the essential elements of the crime. See United States v. Munchak, 338 F. Supp. 1283, 1293 (S.D.N.Y. 1972), aff'd on opinion below, 460 F.2d 1407 (2d Cir.), cert. denied, 409 U.S. 915, 93 S.Ct. 236, 34 L.Ed.2d 177 (1973). If the Assistant United States Attorney knew at the time of trial that a government witness was testifying falsely, his duty was to correct the false testimony.
See United States v. Johnson, 142 F.2d 588, 592 (7th Cir. 1944), rev'd on other grounds, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 567 (1946). In United States v. Munchak, 338 F. Supp. 1283 (S.D. N.Y.), aff'd, 460 F.2d 1407 (2d Cir.), cert. denied, 409 U.S. 915, 93 S.Ct. 236, 34 L.Ed.2d 177 (1972), the court discussed this precise issue, reasoning: The determination of this issue — whether [the government witness'] answer was erroneous but inadvertent, or intentional and perjurious — gives direction to the standard to be applied in the motion for a new trial.