WISDOM, Senior Circuit Judge.
Jose Domingo Malavet Rodriguez appeals his conviction on three counts of aiding and abetting four illegal aliens in making false statements with regard to their applications for United States passports in violation of sections 2 and 1542 of title 18 of the United States Code.
On the first day of trial after the jury had been impaneled, the defendant moved to dismiss the indictment for "gross misconduct" by a government witness before the grand jury. The challenged testimony was given by Edwin Rafael Rodriguez, the investigating officer assigned to the defendant's case by the United States Immigration Service. Rodriguez testified that another defendant told him that the defendant had "received information in Miami that Attorney Malavet processed hundreds of [illegal] passport cases," and that there was "a strong suspicion that ... drugs [were] involved". The prosecutor stopped this line of testimony and attempted to correct the error by instructing the jury:
Rodriguez also stated that Malavet "did not want to give a sworn statement" after being advised of his rights.
The district court denied Malavet's motion to dismiss the indictment based on this testimony. The court found that the motion was untimely under rule 12(b) of the Federal Rules of Criminal Procedure.
Fed.R.Crim.P. 12(b) (emphasis added). Thus, Malavet's motion made on the first day of trial after the jury had been sworn was untimely. See United States v. Hoffa, 6th Cir.1965, 349 F.2d 20, aff'd, 1966, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374.
Objections that are not raised in a timely fashion are deemed to be waived, unless the court chooses to grant relief from the waiver provision based on a showing of good cause.
Granting relief from the waiver provisions of rule 12(b) is within the sound discretion of the trial judge. United States v. Harrelson, 5th Cir.1983, 705 F.2d 733, 738; United States v. Wertz, 4th Cir.1980, 625 F.2d 1128, 1132, cert. denied, 1980, 449 U.S. 904, 101 S.Ct. 278, 66 L.Ed.2d 136. The decision of the trial judge will be disturbed on appeal only for clear abuse of discretion. Wertz, 625 F.2d at 1132. We hold that the district judge did not abuse her discretion in denying the motion in this case.
Malavet next contends that Rodriguez's testimony required dismissal of the indictment, because it constituted government misconduct that prejudiced his right to an unbiased grand jury.
The remedy of dismissal of an indictment based on prosecutorial or government misconduct is an extraordinary one and is generally applied to insure proper conduct by the government and its agents.
Other circuits addressing the degree of misconduct required to dismiss a valid indictment based on government misconduct have required a strong showing of prejudice before granting a motion to dismiss. In United States v. McKenzie, 5th Cir., 678 F.2d 629, cert. denied, 1982, 459 U.S. 1038, 103 S.Ct. 450, 74 L.Ed.2d 604, the court held that an indictment would be dismissed "only when [government] misconduct amounts to overbearing the will of the grand jury so that the indictment is, in effect, that of the prosecutor rather than the grand jury". Id. at 631 (emphasis added). A showing of actual prejudice to the accused is required. Id. (emphasis added). The Court of Appeals for the Ninth Circuit will dismiss an indictment for misconduct before the grand jury only if it finds that "the grand jury has been overreached or deceived in some significant way ... [by] conduct [that] significantly infringed upon the ability of the grand jury to exercise its independent judgment." United States v. Cederquist, 9th Cir.1981, 641 F.2d 1347, 1352-53 (emphasis added).
Finally, Malavet contends that the district court erred in refusing to grant a new trial after a defense witness recanted his testimony at trial and gave a new statement incriminating himself and exculpating Malavet.
The disposition of a motion for a new trial rests within the discretion of the trial judge, and will be disturbed on appeal only for abuse of discretion or misapplication of the law. United States v. Johnson, 1946, 327 U.S. 106, 111, 66 S.Ct. 464, 466, 90 L.Ed. 562. Malavet contends that the trial judge misapplied the law in this case. Because Malavet's motion for a new trial was filed within seven days of his conviction, Malavet asserts that the trial judge should have granted the motion if it was in the interest of justice to do so.
Malavet's contention that the interest-of-justice standard applies in this case is based on the decision of the District of Columbia Circuit in United States v. Anderson, D.C.Cir.1974, 509 F.2d 312, cert. denied, 1975, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 672. In Anderson, the court noted that "a new trial motion based on newly discovered evidence made within the seven-day period following verdict ... is to be measured in terms of `the interest of justice,' and not by the stricter standard applicable to motions submitted outside that time frame." Id. at 327. Malavet does not cite any authority that would indicate that the Anderson standard has been adopted by this Court.
In considering Malavet's motion, the trial judge relied on the more exacting standards adopted by this Court in Pelegrina v. United States, 1st Cir.1979, 601 F.2d 18. In that case, we held that a new trial would be granted on the basis of newly discovered evidence if (1) the evidence is in fact newly discovered, (2) the evidence would effect the outcome of the trial, (3) the evidence is material, and (4) the failure to obtain the evidence during trial is not due to a lack of diligence. Id. at 21.
We did not have the occasion in Pelegrina to consider whether the four-pronged test applied to motions brought within the seven-day period as well as to motions brought after that time. Nor must we resolve that issue here. We find that a new trial is not warranted in this case under either the interest-of-justice standard or the Pelegrina standard.
Under the interest-of-justice standard, the trial judge sits as a "thirteeth juror". Brodie v. United States, D.C.Cir.1961, 295 F.2d 157, 160. Thus, the judge has broad powers in determining whether to grant a new trial. Id. In this case, the evidence did not warrant a new trial. The testimony of other witnesses implicated Malavet in the plan to obtain United States passports for illegal aliens by unlawful
We hold that the interest-of-justice standard was satisfied by the evidentiary hearing conducted by the trial judge on Malavet's motion for a new trial. See United States v. Mitchell, 4th Cir.1979, 602 F.2d 636, 639, holding that the interest of justice is served by granting a hearing on the motion for a new trial. Because the testimony was immaterial and unreliable, it would not have affected the outcome of the case. The Pelegrina requirements, therefore, were not met.
The trial judge did not abuse her discretion in denying the defendant's motion for a new trial. The judgment of the district court is AFFIRMED.
Section 2 provides for aider and abettor liability for federal offenses.
18 U.S.C. § 2 (1979).