John Michael Fiorito v. United States

Fiorito was indicted for sale of narcotics and tried before a jury, and was found guilty as charged. He appeals from the judgment of conviction.

First, it was claimed there was not sufficient evidence to support the conviction. An officer of the Los Angeles Police Department made a purchase of 105 grains of heroin from Fiorito, according to his testimony which was quite detailed. The officer handed Fiorito $100.00 at an arranged meeting, and appellant pointed to a telephone pole and said that the stuff was at the bottom of the pole in an M and M wrapper. Subsequently, the officer had another conversation with appellant concerning narcotics. At a later date, appellant was arrested and told the officers at that time that he had just swallowed two caps of heroin. Fiorito denied any traffic in narcotics. The evidence above outlined was substantial, and conviction could properly be based thereon.

Fiorito moved for new trial on the ground of newly discovered evidence. One affidavit of a third party states that Fiorito left his residence at 5:30 p. m. on the day in question and returned there accompanied by his mother at approximately 7:00 p. m. The affidavit of the employer of the…