United States v. DePalma, 71-2544.

• Decision Date: 04 May 1972
• Docket Number: No. 71-2544.,71-2544.
• Citation: United States v. DePalma, 461 F.2d 240 (9th Cir. 1972)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William DePALMA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

461 F.2d 240 (1972)

UNITED STATES of America, Plaintiff-Appellee, v.William DePALMA, Defendant-Appellant.

No. 71-2544.

United States Court of Appeals, Ninth Circuit.

May 4, 1972.

Laurence F. Jay(argued), Joseph A. Ball, Long Beach, Cal., for defendant-appellant.

William R. Hawes, Asst. U.S. Atty. (argued), Darrell W. MacIntyre, Asst. U.S. Atty., Robert L. Meyer, William D. Keller, U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before KOELSCH, KILKENNY and TRASK, Circuit Judges.

PER CURIAM:

William DePalma was convicted by a jury of violating 18 U.S.C. § 2113(a) and (d) for the robbery of a Savings & Loan Association in Buena Park, California.The conviction was affirmed by this court on appeal, United States v. DePalma, 414 F.2d 394(9th Cir.1969), and the Supreme Court denied certiorari, DePalma v. United States, 396 U.S. 1046, 90 S.Ct. 697, 24 L.Ed.2d 690(1970).Thereafter he sought a new trial upon the grounds of newly discovered evidence known to the prosecutor but not disclosed by him at the trial.After an evidentiary hearing, the motion was denied because the evidence offered in support of the motion was "insufficient to warrant the granting of a motion for new trial."This appeal followed.We affirm the order of the district judge.

The first item of newly discovered evidence was the testimony of appellant's employer who had been out of the country at the time of trial.This witness would have testified that he had been with the appellant overseeing appellant's food catering route some 18 miles away from the scene of the crime about a half hour before the robbery.Appellant had produced other witnesses at his trial who testified to the same effect.The jury did not believe these alibi witnesses.The offered testimony was cumulative and it is highly questionable if it was "newly discovered."Evalt v. United States, 382 F.2d 424, 429(9th Cir.1967).No request had been made at the time of trial for a continuance on the ground of the absence of a critical witness.

As to the rest of the proposed evidence, the appellant argues that it was favorable to the appellant at time of trial, known by the prosecution and material on the issue of guilt.This evidence, continues the appellant, was suppressed in violation of the constitutional protection afforded by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L. Ed.2d 215(1963), andLee v. United States, 388 F.2d 737(9th Cir.1968).It was contained in a Buena Park police report which was read prior to trial by the prosecutor and not made known to the appellant.The report disclosed that Mrs. Cazares, the teller who had been robbed, had been unable to identify the appellant as the man who had robbed her when she was shown his photograph by a Buena Park officer about ten days after the robbery.Yet, Mrs. Cazares identified the appellant at trial.

It is doubtful that this evidence is within the rule proscribing non-disclosure.The witness did identify appellant at the trial and from another photo-spread prior to trial.The use which might have been made of the information would have been for possible impeachment.Here, the appellant was represented by competent and experienced trial counsel who had interviewed Mrs. Cazares before trial.The Polaroid photograph, according to affidavits in the file, was not of the clarity of...