Pitts v. United States

Decision Date12 March 1959
Docket NumberNo. 15549.,15549.
PartiesAndrew PITTS, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

T. N. Gore, Jr., Warren William Taylor, Fairbanks, Alaska, Edgar Paul Boyko, Los Angeles, Cal., for appellant.

George M. Yeager, U. S. Atty., Jay A. Rabinowitz, Asst. U. S. Atty., Fairbanks, Alaska, for appellee.

Before MATHEWS, HEALY and POPE, Circuit Judges.

MATHEWS, Circuit Judge.

On December 2, 1955, in the District Court for the Territory of Alaska, Fourth Division, appellant (Andrew Pitts) and Pauline Kay Simon were indicted in six counts. On December 21, 1955, appellant and Simon were arraigned and pleaded not guilty. On January 28, 1957, Simon withdrew her plea of not guilty and pleaded guilty. Thereafter, on January 28-31, 1957, appellant had a jury trial. At the close of all the evidence, appellant moved for a judgment of acquittal on counts 5 and 6 of the indictment. That motion was granted. Appellant then moved for a judgment of acquittal on counts 1-4.1 That motion was denied. Thereafter the case was argued, the jury was charged, and on January 31, 1957, a verdict was rendered finding appellant guilty as charged in counts 1-4. On February 5, 1957, within the 5-day period prescribed in Rule 33 of the Federal Rules of Criminal Procedure, 18 U.S.C.A.,2 appellant made a motion for a new trial based on grounds other than newly discovered evidence. On February 20, 1957, after the expiration of the 5-day period, appellant made a motion for a new trial purportedly based on the ground of newly discovered evidence. Both motions were heard and denied on February 20, 1957. On February 21, 1957, a judgment was entered sentencing appellant to be imprisoned for five years on count 1, five years on count 2, ten years on count 3 and ten years on count 4,3 the sentences to run concurrently. From that judgment appellant has appealed.

Appellant has specified one alleged error,4 and only one, namely, the denial of the motion of February 20, 1957 — the motion for a new trial purportedly based on the ground of newly discovered evidence.

A motion for a new trial based on the ground of newly discovered evidence has to meet the following requirements: (1) It must appear from the motion that the evidence relied on is, in fact, newly discovered, i. e., discovered after the trial; (2) the motion must allege facts from which the court may infer diligence on the part of the movant; (3) the evidence relied on must not be merely cumulative or impeaching; (4) must be material to the issues involved; and (5) must be such as, on a new trial, would probably produce an acquittal.5 The motion of February 20, 1957, hereafter called the motion, did not meet these requirements.

First. It did not appear from the motion that the evidence relied on was discovered after the trial of this case. It therefore did not appear from the motion that the evidence relied on was, in fact, newly discovered.

Second. The motion did not state facts from which diligence on the part of appellant could be inferred.

Third. It appeared from the motion that the evidence relied on was intended by appellant to show the falsity of testimony given by Simon6 and to corroborate testimony given by appellant at the trial of this case. Such evidence would have been merely cumulative and impeaching.

Fourth. The motion did not set out the evidence relied on or state the substance thereof.7 It therefore did not appear from the motion that the evidence relied on was material to the issues involved.

Fifth. Since the motion did not set out the evidence relied on or state the substance thereof, it did not appear from the motion that the evidence relied on was such as, on a new trial, would probably produce an acquittal.

We conclude that the motion was not, properly speaking, a motion for a new trial based on the ground of newly discovered evidence,8 and that, having been made after the expiration of the 5-day period prescribed in Rule 33, it was not a timely motion.

Even if, contrary to our view, the motion was, properly speaking, a motion for a new trial based on the ground of newly discovered evidence and was a timely motion, it was addressed to the District Court's discretion, the exercise of which, in the absence of abuse, is not reviewable.9 The record shows no abuse of that discretion.

Judgment affirmed.

POPE, Circuit Judge (concurring).

The final paragraph of the court's opinion gives an adequate and unanswerable reason for affirming the action of the trial court. The trial judge set forth at length why the so-called newly discovered evidence that the appellant's courtesan and accomplice was ready to change her story again and absolve appellant was insufficient to persuade the court to take it seriously. He referred to this witness' "utter unreliability", her changes of her story again and again, and the fact that the verdict could not be said to be based on her testimony.

I am not quite prepared to say that the many technical defects in the motion for new trial were such that the court could not have granted it, had the judge been impressed by the offered new evidence. In recent years Criminal Rule 52(a)1 has been given a very broad application.2

For this reason I would prefer to base my concurrence on this single ground.

1 Count 1 charged defendants (appellant and Simon) with possessing and having under their control, on or about February 11, 1955, in the Fourth Division of the Territory of Alaska, three cigarettes containing marijuana (cannabis...

To continue reading

Request your trial
42 cases
  • U.S. v. Brashier
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • December 29, 1976
    ...as, on a new trial, would probably produce an acquittal. United States v. Cervantes, 542 F.2d 773 (9th Cir. 1976); Pitts v. United States, 263 F.2d 808, 810 (9th Cir.), cert. denied, 360 U.S. 919, 79 S.Ct. 1438, 3 L.Ed.2d 1535 Brashier's expected testimony was known at the time of trial and......
  • Elkins v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 28, 1959
    ...States, 9 Cir., 229 F.2d 745; Bloch v. United States, 9 Cir., 238 F.2d 631; Pool v. United States, 9 Cir., 260 F.2d 57; Pitts v. United States, 9 Cir., 263 F.2d 808; Straight v. United States, 9 Cir., 263 F.2d ...
  • Ramirez v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 23, 1961
    ...nothing in the record from which we may infer diligence in discovery of the "new evidence" on the part of appellant. Pitts v. United States, 9 Cir., 1959, 263 F.2d 808, 810, certiorari denied 1959, 360 U.S. 919, 79 S.Ct. 1438, 3 L.Ed.2d 1535. Furthermore, the only value of the evidence woul......
  • Ashe v. United States
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • April 10, 1961
    ...on a new trial such evidence would probably produce an acquittal. United States v. West, D.C., 170 F.Supp. 200, 208; Pitts v. United States, 9 Cir., 1959, 263 F.2d 808; United States v. Rutkin, 3 Cir., 1953, 208 F.2d The testimony of Barker would corroborate that of the defendant in most re......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT