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United States v. Cozzetti

United States Court of Appeals, Ninth Circuit
Nov 13, 1972
469 F.2d 684 (9th Cir. 1972)

Opinion

No. 72-1831.

November 13, 1972.

Anthony Carlo Cozzetti, in pro. per.

Joseph L. Ward, U.S. Atty., Raymond B. Little, Asst. U.S. Atty., Las Vegas, Nev., for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before ELY and HUFSTEDLER, Circuit Judges, and TALBOT SMITH, District Judge.

The Honorable Talbot Smith, United States District Judge, Detroit Michigan, sitting by designation.


Cozzetti was convicted of having violated 18 U.S.C. § 1952. On his direct appeal to this court, the judgment of conviction was affirmed. United States v. Cozzetti, 441 F.2d 344 (9th Cir. 1971).

Subsequently, Cozzetti filed a motion for a new trial pursuant to Rule 33, Fed.R.Crim.P. The ground of his motion, essentially, was that he had discovered new evidence which, if introduced, would reflect adversely upon the credibility of the principal prosecuting witness in the original trial. The District Court denied the motion, and Cozzetti appeals.

A decision as to whether to grant a new trial upon the ground of alleged newly discovered evidence, which is merely cumulative or impeaching, generally rests within the sound discretion of the trial court.

"Such an allegation by the defense ordinarily will not support a motion for a new trial, because new evidence which is `merely cumulative or impeaching' is not, according to the often-repeated statement of the courts, an adequate basis for the grant of a new trial."

Mesarosh v. United States, 352 U.S. 1, 9, 77 S.Ct. 1, 5, 1 L.Ed.2d 1 (1956) (footnote omitted). See also Shotwell Mfg. Co. v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357 (1963), and our court's decision in Wilke v. United States, 422 F.2d 1298 (9th Cir. 1970).

The District Court also denied Cozzetti's belated request for a disclosure of any electronic or other surveillance which had been conducted by the prosecution. This motion was properly denied, since Cozzetti offered no adequate confirmation, by affidavit or otherwise, that any such surveillance had, in fact, been conducted.

The District Court did not abuse its discretion; hence, neither of the contentions that Cozzetti now advances has merit.

Affirmed.


Summaries of

United States v. Cozzetti

United States Court of Appeals, Ninth Circuit
Nov 13, 1972
469 F.2d 684 (9th Cir. 1972)
Case details for

United States v. Cozzetti

Case Details

Full title:UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. ANTHONY CARLO COZZETTI…

Court:United States Court of Appeals, Ninth Circuit

Date published: Nov 13, 1972

Citations

469 F.2d 684 (9th Cir. 1972)

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