United States v. Malfetti, 11271.

• Decision Date: 10 June 1954
• Docket Number: No. 11271.,11271.
• Citation: United States v. Malfetti, 213 F.2d 728 (3rd Cir. 1954)
• Parties: UNITED STATES v. MALFETTI.
• Court: U.S. Court of Appeals — Third Circuit

213 F.2d 728 (1954)

UNITED STATES v. MALFETTI.

No. 11271.

United States Court of Appeals Third Circuit.

Argued May 17, 1954.

Decided June 10, 1954.

Salvatore Malfetti, pro se.

William F. Tompkins, I. Edward Amada, Asst. U. S. Attys., Newark, N. J., for appellee.

Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges.

PER CURIAM.

This is an appeal from the denial of a motion for a new trial in a criminal case wherein appellant was convicted of the theft of merchandise in the course of interstate shipment.

The verdict of the jury was returned on September 17, 1952. Two days after that, on September 19, 1952, a motion for a new trial was filed. The stated grounds for the motion were that: (1) the verdict was contrary to the weight of the evidence; (2) the verdict was not supported by substantial evidence; (3) the defendant was substantially prejudiced and deprived of a fair trial because: (a) the attorney for the Government in cross examination of defendant, made references to other charges or cases pending against him in addition to prior convictions; (b) the attorney for the Government made improper and abusive characterizations and references with respect to the defendant during his summation. The motion was denied September 24, 1952. Judgment of conviction and commitment was filed October 3, 1952. No appeal was taken from that judgment.

On July 28, 1953 this motion was filed. It was specifically based on the grounds of newly discovered evidence under Rule 33 of the Rules of Criminal Procedure, 18 U.S.C. It was titled "Motion For New Trial On Grounds Of Newly Discovered Evidence." The motion was heard and testimony taken regarding the alleged evidence October 1, 2 and 5, 1953. Decision was reserved. On January 7, 1954, in a carefully considered opinion, 117 F.Supp. 468, Judge Smith, who had presided at the trial, denied the motion. The court held that the evidence offered failed to meet the basic requirements for "newly discovered" evidence. That conclusion is completely justified by the record.

Appellant attempts to reargue the question of the trial proof of his guilt which is not before us. He also contends that in view of the dismissal of the State's charges against him the trial in the district court constituted double jeopardy and a violation of 18 U.S.C. § 659. What occurred is evident from the trial transcript and from defendant's own testimony on this motion. He was arrested the night of the theft (November 21, 1951) by the police of...