United States v. Shelton, 71-1894.
Decision Date | 24 April 1972 |
Docket Number | No. 71-1894.,71-1894. |
Citation | 459 F.2d 1005 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. James Ronald SHELTON, Defendant-Appellant. |
Court | U.S. Court of Appeals — Ninth Circuit |
James R. Shelton, pro se.
Harry D. Steward, U. S. Atty., Donald J. Shanahan, Robert H. Filsinger, Asst. U. S. Attys., San Diego, Cal., for plaintiff-appellee.
Before CARTER and TRASK, Circuit Judges, and JAMESON, District Judge.*
Appellant was convicted, following a non-jury trial, of the illegal importation of heroin, in violation of 21 U.S.C. § 174, and on July 28, 1969 was sentenced to five years imprisonment. On August 11, 1969 an appeal was taken from the judgment of conviction.1
In June, 1970, while the appeal was pending, appellant, acting pro se, filed a motion for a new trial, claiming ineffective assistance of counsel2 and an insanity defense under an application of the test of criminal responsibility announced in Wade v. United States, 9 Cir. 1970, 426 F.2d 64, decided subsequent to appellant's conviction.3
On July 9, 1970 the district court denied the motion for a new trial, stating, inter alia, that there was "no newly discovered evidence which can form the basis of a new trial" and that any question of law which might be a basis for a new trial could not be considered while the appeal was pending. The court noted also that "all of the facts and circumstances negate the appropriateness of an insanity plea."
On August 17, 1970 appellant filed a petition for rehearing, which was denied in an order entered February 25, 1971, the court noting that the petition contained no new matter. This appeal followed.
Rule 33 of the Federal Rules of Criminal Procedure provides in pertinent part:
Under Rule 33 a district court may United States v. Frame, 9 Cir. 1972, 454 F.2d 1136. Here the motion was denied and accordingly it was unnecessary to request a remand.
Turning to the merits, we hold that the motion and petition for rehearing were properly denied. While the term "newly discovered evidence" as used in Rule 33 is often "evidence only in a loose sense", 8A Moore's Federal Practice, para. 33.03 1 p. 33-13, n. 4, it has not been extended to "discovery" of a new issue of law. United States v. Granza, 5 Cir. 1970, 427 F.2d 184, 186. A change in the legal standard for determining "insanity" does not qualify as "newly discovered evidence."4
The district court did not abuse its discretion in denying appellant's motions for a new trial. See, e. g., Wright v. United States, 9 Cir. 1965, 353 F.2d 362, 365; Evalt v. United States, 9 Cir. 1967, 382 F.2d 424, 428-429.
Affirmed.
* Honorable W. J. Jameson, United States Senior District Judge for the District of Montana, sitting by designation.
1 This appeal is still pending, No. 24,972. Following oral argument on January 6, 1971, submission of the case...
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...courts have also recognized that a change in law will not generally entitle a defendant to a new trial. In United States v. Shelton , 459 F.2d 1005, 1006–1007 (9th Cir. 1972), the court held that a change in the legal standard to determine insanity did not amount to "newly discovered eviden......
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...Cir.2010) (citation and internal quotation marks omitted). King cannot clear the first hurdle here. As we held in United States v. Shelton, 459 F.2d 1005 (9th Cir.1972), a change in the law does not constitute newly discovered evidence for purposes of Rule 33. Id. at 1006–07 (holding that a......
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