United States v. Beauchamps

11-4216
United States v. Verdiner
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 9th day of November, two thousand twelve.
5
6 PRESENT: RICHARD C. WESLEY,
7 DENNY CHIN,
8 Circuit Judges,
9 DAVID G. LARIMER,*
10 District Judge.
11
12
13 United States of America,
14
15 Appellee,
16
17 v. 11-4216
18
19 Shoubert Beauchamps, Paul Harvey, Linnie Harvey,
20
21 Defendants,
22
23 Jean Verdiner,
24
25 Defendant-Appellant.
26
27
28
29 FOR APPELLANT: Lawrence Gerzog, Law Offices of Lawrence
30 D. Gerzog, New York, NY.
31
*
The Honorable David G. Larimer, of the United States
District Court for the Western District of New York, sitting by
designation.
1
2 FOR APPELLEE: Christopher Nolan, William B. Darrow,
3 Gregory L. Waples, Assistant United
4 States Attorneys, for Tristram J. Coffin,
5 United States Attorney for the District
6 of Vermont, Burlington, VT.
7
8 Appeal from the United States District Court for the
9 District of Vermont (Sessions, J.).
10
11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12 AND DECREED that the judgment and order of the United States
13 District Court for the District of Vermont are AFFIRMED.
14 Defendant-Appellant Jean Verdiner appeals from a final
15 judgment of conviction entered on February 12, 2009 in the
16 United States District Court for the District of Vermont
17 (Sessions, J.), finding him guilty of distributing 500 grams
18 or more of cocaine, and from an October 3, 2011 order
19 denying his motion for a new trial. The sole issue on
20 appeal is whether the district court erred in denying
21 Verdiner’s motion for a new trial based on newly discovered
22 evidence. See Fed. R. Crim. P. 33(b)(1). The panel has
23 reviewed the briefs and the record in this appeal and agrees
24 unanimously that oral argument is unnecessary because “the
25 facts and legal arguments [have been] adequately presented
26 in the briefs and record, and the decisional process would
27 not be significantly aided by oral argument.” Fed. R. App.
28 P. 34(a)(2)(C). We assume the parties’ familiarity with the
29 underlying facts and procedural history of the case.
2
1 We review a district court's denial of a Rule 33 motion
2 for abuse of discretion, United States v. Rigas, 583 F.3d
3 108, 125 (2d Cir. 2009), and the factual findings in support
4 of that decision for clear error, United States v. Imran,
5 964 F.2d 1313, 1318 (2d Cir. 1992). District courts should
6 exercise their Rule 33 authority only “sparingly” and in
7 “the most extraordinary circumstances.” United States v.
8 Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992). We afford
9 particular deference to the district court because “its
10 vantage point as to the determinative factor—whether newly
11 discovered evidence would have influenced the jury—has been
12 informed by the trial over which it presided.” United States
13 v. Stewart, 433 F.3d 273, 296 (2d Cir. 2006).
14 The district court did not abuse its discretion in
15 denying Verdiner’s Rule 33 motion. The newly discovered
16 evidence was, at best, cumulative of other evidence
17 impeaching the confidential informant. United States v.
18 Avellino, 136 F.3d 249, 256-57 (2d Cir. 1998). Moreover,
19 Verdiner has failed to establish that the “admission of the
20 evidence would probably lead to an acquittal” in a new
21 trial. United States v. Alessi, 638 F.2d 466, 479 (2d Cir.
22 1980). The jury heard overwhelming and compelling evidence
23 of Verdiner’s guilt including, inter alia, Verdiner’s own
3
1 recorded statements concerning the sale of cocaine that was
2 the basis for his conviction.
3 We have considered Verdiner’s remaining arguments and,
4 after a thorough review of the record, find them to be
5 without merit. For the foregoing reasons, the judgment of
6 the district court is hereby AFFIRMED.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
4