Opinion · Court of Appeals for the Ninth Circuit

United States v. Anthony Carlo Cozzetti

469 F.2d 684

Type
Opinion
Court
Court of Appeals for the Ninth Circuit
Jurisdiction
Federal
Date
1972-11-13
Topic
general

PER CURIAM: 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.

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UNITED STATES v. COZZETTI,469 F.2d 684(9th Cir. 1972)
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. ANTHONY CARLO COZZETTI,
DEFENDANT-APPELLANT.
No. 72-1831.
United States Court of Appeals, Ninth Circuit.
November 13, 1972.
Page 685
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.fn*
PER CURIAM:
[1] Cozzetti was convicted of having violated18 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).

[2] 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.

[3] 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."


[4] Mesarosh v. United States,352 U.S. 1, 9, 77 S.Ct. 1, 5, 1 L.Ed.2d 1 (1956) (footnote omitted).See alsoShotwell 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).

[5] 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.

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

[7] Affirmed.Page 686
  1. The Honorable Talbot Smith, United States District Judge, Detroit Michigan, sitting by designation. ↩