United States v. Beauchamps

488 F. App'x 509

• Court: Court of Appeals for the Second Circuit
• Decided: November 9, 2012
• Docket: 11-4216
• Status: Unpublished

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment and order of the United States District Court for the District of Vermont are AFFIRMED. Defendant-Appellant Jean Verdiner appeals from a final judgment of conviction entered on February 12, 2009 in the United States District Court for the District of Vermont (Sessions, /.), finding him guilty of distributing 500 grams or more of cocaine, and from an October 3, 2011 order denying his motion for a new trial. The sole issue on appeal is whether the district court erred in denying Verdi-ner’s motion for a new trial based on newly discovered evidence. See Fed.R.Crim.P. 33(b)(1). The panel has reviewed the briefs and the record in this appeal and agrees unanimously that oral argument is unnecessary because “the facts and legal arguments [have been] adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.” Fed. R.App. P. 34(a)(2)(C). We assume the parties’ familiarity -with the underlying facts and procedural history of the case.

We review a district court’s denial of a Rule 33 motion for abuse of discretion, United States v. Rigas, 583 F.3d 108, 125 (2d Cir.2009), and the factual findings in support of that decision for clear error, United States v. Imran, 964 F.2d 1313, 1318 (2d Cir.1992). District courts should exercise their Rule 33 authority only “sparingly” and in “the most extraordinary circumstances.” United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir.1992). We afford particular deference to the district court because “its vantage point as to the determinative factor — whether newly discovered evidence would have influenced the jury — has been informed by the trial over which it presided.” United States v. Stewart, 433 F.3d 273, 296 (2d Cir.2006).

The district court did not abuse its discretion in denying Verdiner’s Rule 33 motion. The newly discovered evidence was, at best, cumulative of other evidence impeaching the confidential informant. United States v. Avellino, 136 F.3d 249, 256-57 (2d Cir.1998). Moreover, Verdiner has failed to establish that the “admission of the evidence would probably lead to an acquittal” in a new trial. United States v. Alessi, 638 F.2d 466, 479 (2d Cir.1980). The jury heard overwhelming and compelling evidence of Verdiner’s guilt including, inter alia, Verdiner’s own recorded statements concerning the sale of cocaine that was the basis for his conviction.

We have considered Verdiner’s remaining arguments and, after a thorough review of the record, find them to be without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.