547 F.2d 50 (8th Cir. 1976), 76-1450, United States v. Vanmaanen

Docket Nº:76-1450.
Citation:547 F.2d 50
Party Name:UNITED STATES of America, Appellee, v. Albert Leon VanMAANEN, Appellant.
Case Date:December 15, 1976
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 50

547 F.2d 50 (8th Cir. 1976)

UNITED STATES of America, Appellee,

v.

Albert Leon VanMAANEN, Appellant.

No. 76-1450.

United States Court of Appeals, Eighth Circuit

December 15, 1976

Submitted Nov. 22, 1976.

Page 51

[Copyrighted Material Omitted]

Page 52

P. D. Furlong, Sioux City, Iowa, filed brief for appellant.

Evan L. Hultman, U. S. Atty., and Daniel T. Cutler, Asst. U. S. Atty., Sioux City, Iowa, and Rosemary Sheehan, Legal Intern, filed brief for appellee; Kieth Van Doren, Asst. U. S. Atty., Sioux City, Iowa, filed appearance.

Before HEANEY, STEPHENSON and HENLEY, Circuit Judges.

HEANEY, Circuit Judge.

Albert VanMaanen, and three other defendants, were convicted of conspiracy under 18 U.S.C. § 371, and possession of beef stolen from an interstate shipment under 18 U.S.C. § 659. These convictions 1 were affirmed on appeal. United States v. Verdoorn, 528 F.2d 103 (8th Cir. 1976). Subsequently, VanMaanen and two of the defendants filed a motion for a new trial based on newly discovered evidence, but failed to support this motion with affidavits or other documents alleging new facts. This motion was denied on February 12, 1976. A motion to reconsider that order was made on April 13, 1976, and supported by an in camera submission of the deposition of a newly discovered police informant. After that document was made available to government attorneys, the motion was denied. VanMaanen now appeals from the denial of his motion for reconsideration.

VanMaanen raises two issues on appeal: first, that a new trial should have been granted because of newly discovered evidence relating to the legal sufficiency of the Sioux City Police Officers' probable cause arrest of one of VanMaanen's codefendants and the search and seizure incident thereto; and second, that government misconduct throughout the investigation and trial of his case deprived him of due process of law and requires the granting of his new trial motion. We conclude that neither of appellant's contentions has merit and affirm the decision of the District Court.

A motion for new trial on the ground of newly discovered evidence must fail unless each of five conditions is satisfied: (1) the evidence must be discovered since trial; (2) facts must be alleged showing that the evidence would not have been discovered earlier had the movant been more diligent; (3) the evidence must not be merely cumulative or...

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