United States v. Chagra (735 F.2d 870, 1984)

TATE, Circuit Judge:

The defendant Chagra is currently serving the sentence imposed on his conviction in a jury trial on charges of aiding and abetting the possession of cocaine by another, 21 U.S.C. § 841(a)(1), and of operating a continuing criminal enterprise, 21 U.S.C. § 848. Chagra moved in the district court for a new trial, Fed.R.Crim.P. 33, on the basis of the government’s allegedly knowing use of purportedly perjured testimony at Chagra’s trial. Without conducting a scheduled evidentiary hearing, the district court denied Chagra’s motion. Chagra appeals, and the government challenges the timeliness of that appeal, We find the appeal to be timely, but nonetheless affirm.

I.

Chagra’s jury trial lasted over two weeks. Testimony was heard from several dozen witnesses. The evidence introduced at trial was to the effect that Chagra “had supervised several large scale narcotics importation and distribution operations.” Chagra was found guilty on the two above-noted counts in a four count indictment, with the jury not considering the two other lesser-ineluded-offense counts.

This dispute essentially involves the alleged misidentification by several government witnesses of an individual whose likeness, along with that of the defendant, was captured in a photograph that was introduced into evidence by the government. The witnesses identified the individual in the photograph as one Robert Piccolo, allegedly an important underling in the continuing criminal enterprise headed by the defendant Chagra. Chagra asserts that newly discovered evidence proves this mis-identification and also that the evidence indicates the government’s knowing use of the purportedly “perjured” testimony.

Chagra also asserts that he was prejudiced by the trial court’s refusal to grant an evidentiary hearing on his motion for a new trial. Chagra filed his motion for a new trial on August 4, 1983. The trial court on September 19, 1983 scheduled a hearing for October 21, 1983 on the motion, Chagra contends that, without any prior warning, the trial court on October 18, 1983, without an evidentiary hearing, denied the motion for a new trial, prejudicing Chagra’s right to present by affidavit in support of his motion, evidence that he had prepared for introduction at the scheduled hearing.

Also in dispute herein is the timeliness of Chagra's appeal. The district court on October 18,1983 denied Chagra’s motion for a new trial. The government contends that on that same date Chagra was given notice by court personnel of the denial. The or-