Mario Balestreri v. United States

This case arises on Balestreri’s appeal from the order of the district court deny ing his motion, made after his conviction had become final for a new trial on the ground of newly discovered evidence, under Rule 33, Rules of Criminal Procedure, Title 18 U.S.C.A.

The defendant, Mario Balestreri, was indicted on March 7, 1952. Appellant was charged in the ninth count of the indictment with the violation of the Jones-Miller Act, 21 U.S.C.A. § 174 , concealment and transportation of heroin, and in the twenty-fourth count of conspiring, 18 U.S.C.A. § 371 , to violate the narcotic laws of the United States. Appellant was found guilty by jury verdict on both counts, and was sentenced to a term of three years imprisonment on each count, the sentences to run concurrently., Judgment was rendered September 4, 1953. No appeal was taken and the judgment became final.

On March 11, 1954, six months after the rendition of the judgment, appellant moved the district court for a new trial, on the ground of newly discovered evidence. The motion of appellant was supported by an affidavit of appellant’s attorney, James E. Burns, stating that he had, “since the * * * trial, verdict and sentence' * * *…