Balestreri v. United States

• Citation: 224 F.2d 915
• Decision Date: 28 June 1955
• Docket Number: No. 14348.,14348.
• Parties: Mario BALESTRERI, Appellant, v. UNITED STATES of America, Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

224 F.2d 915 (1955)

Mario BALESTRERI, Appellant, v. UNITED STATES of America, Defendant.

No. 14348.

United States Court of Appeals Ninth Circuit.

June 28, 1955.

James E. Burns, San Francisco, Cal., for appellant.

Lloyd H. Burke, U. S. Atty., John H. Riordan, Richard H. Foster, Asst. U. S. Attys., San Francisco, Cal., for appellee.

Before POPE and FEE, Circuit Judges, and JAMES M. CARTER, District Judge.

JAMES M. CARTER, District Judge.

This case arises on Balestreri's appeal from the order of the district court denying his motion, made after his conviction had become final for a new trial on the ground of newly discovered evidence, under Rule 33, Rules of Criminal Procedure, Title 18 U.S.C.A.

The defendant, Mario Balestreri, was indicted on March 7, 1952. Appellant was charged in the ninth count of the indictment with the violation of the Jones-Miller Act, 21 U.S.C.A. § 174, concealment and transportation of heroin, and in the twenty-fourth count of conspiring, 18 U.S.C.A. § 371, to violate the narcotic laws of the United States. Appellant was found guilty by jury verdict on both counts, and was sentenced to a term of three years imprisonment on each count, the sentences to run concurrently. Judgment was rendered September 4, 1953. No appeal was taken and the judgment became final.

On March 11, 1954, six months after the rendition of the judgment, appellant moved the district court for a new trial, on the ground of newly discovered evidence. The motion of appellant was supported by an affidavit of appellant's attorney, James E. Burns, stating that he had, "since the * * * trial, verdict and sentence * * * come into possession of certain documents" which established that the "only witness testifying against the defendant" and for the government, one Harry Winkelblack, had received favorable treatment and that his testimony was induced by threats, promises, and favors. The evidence consisted of letters written between two officials of the Bureau of Prisons. The district court denied appellant's motion for a new trial and this appeal followed.

We first inquire if the order denying the motion for new trial is appealable. The broad language often used, that an order denying a motion for a new trial in a criminal case is "not assignable as error, and is not reviewable," McElheny v. U. S., 9 Cir., 1944, 146 F.2d 932, 933; Allred v. U. S., 9 Cir., 1944, 146 F. 2d 193, 196, does not apply to cases where the motion for new trial has been made, on the ground of newly discovered evidence, after the judgment of conviction has become final. Final decisions of the district courts are appealable to the courts of appeal, 28 U.S.C.A. § 1291, with certain exceptions not pertinent here. In Harrison v. U. S., 5 Cir., 1951, 191 F.2d 874, 876, the court said that it was well established "that the order overruling the motion for a new trial" made after a conviction had been affirmed on appeal, "is a final order from which an appeal will lie", and rightly so, for to reconcile Federal Rules of Criminal Procedure, Rule 33 and Rule 37, the appeal to review the order on a motion for a new trial on the ground of newly discovered evidence, must stem from the order itself. Rule 33 permits a motion based on the ground of newly discovered evidence to be made within "two years after final judgment * * *"; Rule 37 permits an appeal by defendant to be "taken within 10 days after entry of the judgment or order appealed from * * *".

In the normal situation, the order granting or denying the motion for a new trial is non-appealable but the reason for this is that "the court may consider the evidence and the rulings of the trial on appeal from the judgment itself." Hamilton v. U. S., 1944, 78 U.S. App.D.C. 316, 140 F.2d 679, 682. However, in the case of a motion for a new trial on the ground of newly discovered evidence, "the newly discovered evidence does not appear on the record supporting the judgment, and the only possibility for review of the court's ruling lies in an appeal from the denial of the motion for a new trial." Hamilton v. U. S., supra, 140 F.2d at page 682; Wright v. U. S., D.C.Cir., 1954, 215 F.2d 498.

A motion for a new trial on ground of newly discovered evidence is addressed to the sound discretion of the trial judge. Adams v. U. S., 9 Cir., 1951, 191 F.2d 206; Casey v. U. S., 9 Cir., 1927, 20 F.2d 752; U. S. v. On Lee, 2 Cir., 1953, 201 F.2d 722; U. S. v. Rutkin, 3 Cir., 1953, 208 F.2d 647.

On such a motion, the courts are in general agreement as to the factual showing necessary to move the court to exercise its judicial discretion. In Johnson v. U. S., 8 Cir., 1929, 32 F.2d 127, 130, the court said: "There must ordinarily be present and concur five verities, to wit: (a) The evidence must be in fact newly discovered, i. e. discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such a nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal." Wagner v. U. S., 9 Cir., 1941, 118 F.2d 801; Brandon v. U. S., 9 Cir., 1951, 190 F.2d 175.

The newly discovered evidence here presented does not meet these requirements. Though it appears that defendant did not know at the time of trial, of the treatment afforded the witness, Winkelblack, there is no showing in the record of any facts from which the court can infer diligence on the part of the appellant. The affidavit of appellant's counsel asserts that "such evidence was not available and could not be discovered with due diligence" R. 35 so as to be presented at the time of the trial. No showing is made as to when, or how, or under what circumstances copies of official government correspondence came within possession of appellant's counsel, nor when he first learned of such documents. Appellant's showing clearly fails to meet the test required on such a motion.¹

The new evidence was only of an impeaching nature. Such a showing is ordinarily not sufficient to cause a court to grant a new trial. U. S. v. On Lee, supra; Long v. U. S., 10 Cir., 1943, 139 F. 2d 652; Slappey v. U. S., 5 Cir., 1940, 110 F.2d 528; Gage v. U. S., 9 Cir., 1948, 167 F.2d 122; Taylor v. U. S., 8 Cir., 1927, 19 F.2d 813; U. S. v. Rutkin, 3 Cir., 1953, 208 F.2d 647, 654. The cases indicate as the basis of the decisions, that the new evidence would not, for one reason or another, "probably produce an acquittal." To deny in every case a motion for a new trial on the ground of newly discovered evidence for the sole reason that the evidence was "merely impeachment" might often lead to injustice. See U. S. v. On Lee, 2 Cir., 1953, 201 F.2d 722. Dissenting opinion at page 724.

Little factual matter, admissible at a new trial, could be culled from recitals, opinions and conclusions appearing...