Appellant-defendant Anthony Michael Carlone appeals from his conviction1 by jury of three counts of assault on a federal officer, 18 U.S.C. §§ 111 & 1114, primarily contending that the district court2 erred in denying his motion for a new trial based on newly discovered evidence. We affirm the district court.

On August 14 and 16, 1978, Carlone was under surveillance by the F.B.I. On August 14, Carlone was at his home and noticed a light blue vehicle being driven slowly past the house a couple of times. In the vehicle were Dag Sohlberg and Ben Patty, F.B.I. agents. Testimony at trial established that Carlone followed the agents for a short time in his vehicle; later the agents drove by Carlone's house again and Carlone ran after the car, yelling and asking the agents who they were. Carlone then jumped in his car and pursued the agents. The agents testified that Carlone followed them at a high rate of speed, swerving his vehicle toward the agents' car; the agents testified that in order to avoid being hit, it was necessary to brake their car and swerve, causing their car to leave the road. Carlone then apparently returned home.

On August 16, Sohlberg and agent Michael Neville resumed surveillance of Carlone's home and again drove by the house several times. The third time the car passed, Carlone placed himself in the street causing the agents to stop their car. The agents testified that Carlone yelled, approached the car, grabbed the door on the side of the car in which Sohlberg sat, raised a hammer Carlone had been using earlier, and yelled at the agents. Agent Neville testified that Neville then got out of the car and that Carlone ran around the car, confronting Neville with the hammer. Carlone only put the hammer down when faced with a drawn gun and verbal admonitions from Neville. Sohlberg testified that Carlone, then unarmed, asked who Neville was and was informed that Neville was an F.B.I. agent.

Carlone's description of the confrontation was different than that of the agents, but the jury verdict indicates that the jury chose to believe the F.B.I. agents' testimony. Basically, Carlone testified that Carlone never displayed the hammer in an assaultive manner; that the hammer was in Carlone's pocket at all times until one of the agents ordered him to remove it; that Carlone did not cause the agents' car to swerve to avoid a collision; and that it was never Carlone's intention to harm or assault the agents, but merely to identify them and the purpose for their presence.3

The primary basis for Carlone's motion for a new trial based on newly discovered evidence is the content of an affidavit submitted by William E. Sorg, brother-in-law of Carlone's brother Salvatore. In substance, Sorg maintains in his affidavit that two F.B.I. agents, Michael Hudak and David Keller, had employed Sorg as a paid informant for the F.B.I. Sorg states that he was asked to "plant" weapons on Carlone, plant narcotics on Carlone, and that the F.B.I. was doing a surveillance on Carlone "with the knowledge that Carlone had a quick temper and with the hope that * * * the F.B.I. * * * could provoke him into doing something that would ultimately allow an arrest." Sorg also stated that agent Hudak told Sorg that the F.B.I. "had been successful in getting Mr. Carlone on 'a trumped-up charge', but that it was something anyway." The only time frame referred to in the affidavit was that Sorg was employed as a paid informant for the F.B.I. "from approximately September of 1977 until the present time."4

Agents Hudak and Keller admit in their affidavits that Sorg was a paid informant of the F.B.I., but basically deny the other statements Sorg attributes to them.

Joseph S. Friedberg, counsel for the defendant Carlone, states in his affidavit that he was not aware of the existence of William E. Sorg prior to the trial, nor was he aware of any of the information contained in Sorg's affidavit prior to trial. Friedberg states that the information was not discoverable by the use of due diligence prior to trial and that had such information been communicated to the jury during the trial, "it is probable that the jury would have reached a different verdict."

Carlone's first contention on appeal is that the trial court erred in using the standards set out in United States v. Ward, 544 F.2d 975, 977 (8th Cir. 1976) as the test in considering the motion for the new trial based on newly discovered evidence. Carlone contends that the proper standard to be used for this set of facts is that set out in United States v. Runge, 593 F.2d 66, 73 (8th Cir. 1979), a standard which places less of a burden on a defendant.

Carlone argues that had Sorg's statements been known at the time of trial, Carlone, who has maintained his innocence at all times by denying that he assaulted the agents, and who has, in essence, alleged that the charge on which he was brought to trial was a "trumped-up charge," would not have signed a stipulation which became part of the record. Carlone concedes in the stipulation that the F.B.I., at the time of the incidents, was surveilling Carlone "for lawful reasons." Carlone's rationale at the time of trial was that such stipulation would be less damaging to Carlone than would be the government's response to any defense that Carlone might raise which would involve a defense of harassment by the F.B.I. agents.5

Carlone now contends that had Sorg's statements been known prior to trial, Sorg's testimony could have been used to cast direct doubts on the credibility of the government's main witnesses, agents Sohlberg and Neville.6 Because credibility was a significant issue in the case and because Carlone's defense was, in essence, that the charge was "trumped-up," there is a "reasonable likelihood" that the evidence would have affected the judgment of the jury. See United States v. Runge, supra, 593 F.2d at 73.

We initially note that the standard for motions for a new trial based on newly discovered evidence as articulated in Ward :

(1) the evidence must be in fact newly discovered, that is, discovered since the trial; (2) facts must be alleged from which the court may infer diligence on the part of the movant; (3) the evidence relied upon must not be merely cumulative or impeaching; (4) it must be material to the issues involved, and (5) it must be of such nature that, on a new trial, the newly discovered evidence would probably produce an acquittal.

United States v. Ward, supra, 544 F.2d at 977 Quoting from United States v. McColgin, 535 F.2d 471, 476 (8th Cir.), Cert. denied, 429 U.S. 853, 97 S. Ct. 145, 50 L. Ed. 2d 128 (1976). This is not the same as the standard articulated in United States v. Runge, supra. In Runge we noted that:

Unlike the stricter standard of materiality used in new trial motions based on discovery of new evidence or failure of the prosecution to disclose favorable evidence, knowing use of perjured testimony requires that a conviction be set aside "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury."

United States v. Runge, supra, 593 F.2d at 73, Quoting from United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976).

Assuming arguendo that the newly discovered evidence Might affect the credibility of the agents' testimony, and consequently might have made Carlone's defense of harassment more believable, leading him not to make the stipulation, such newly discovered evidence does not create a factual situation that falls within the Runge standard. The line of cases from which the Runge standard, adopted by this court, arose includes United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976); Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); and Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959). These cases all involve specific instances of prosecutorial misconduct, such as the use of "known perjured testimony," or other governmental corruption of the truth finding process resulting in a deprivation of fundamental due process. The newly discovered evidence in this case does not establish any specific claim that the F.B.I. agents who testified at Carlone's trial perjured themselves, nor does it establish any specific claim of governmental corruption concerning Carlone's trial and the incidents involved therein.

Thus, the trial court did not err in using the Ward standards considering the facts in this case. Further, we cannot say that the trial court erred in its determination that the possible effect on credibility was not of such a nature that, on a new trial, it would "probably produce an acquittal." United States v. Ward, supra. Finally, we cannot say that the trial court abused its discretion in denying the motion without an evidentiary hearing.7 In this regard, we note that the newly discovered evidence also failed to hold up to other standards expressed in Ward ; the trial court found (1) although the affidavit might arguably indicate that the evidence was newly discovered as to counsel for the defendant, there was no showing that the evidence was newly discovered as to the defendant personally; (2) nothing was alleged in the affidavit from which the trial court could infer diligence on the part of the defendant specifically or on the part of defendant's counsel in attempting to obtain the evidence; (3) the affidavit indicates no specificity as to time or place; and (4) further, the allegations are made against two agents of the F.B.I., neither of whom was involved in the episode giving rise to this action and neither of whom testified at trial. Moreover, in regard to the issue of relevancy, the trial court found that even if the testimony of the agents involved in the newly discovered evidence was relevant, the probative value would be outweighed by the danger of confusion of the issues and misleading of the jury and hence, would not be admissible under Fed.R.Evid. 403.

Carlone made the choice of entering into the stipulation concerning the legitimacy of the F.B.I. surveillance based upon well-reasoned motives to avoid the prejudicial effect of F.B.I. testimony as to why Carlone was being surveilled. See note 5 Supra. Carlone attempts now, based upon the affidavit of Sorg, to gain a new trial and try a different approach to his defense. In order to do this, Carlone must meet the Ward standards; he has not.

The trial court is affirmed.

AFFIRMED.