James Arthur Lindsey, Also Known as James Arthur Lindsay v. United States

On May 26, 1964, we affirmed the •conviction of James Arthur Lindsey on six counts of “committing fraud by wire,” in violation of 18 U.S.C. § 1343 (1964). Lindsey v. United States, 9 Cir., 332 F.2d 688 . Thereafter, on July 30, 1964, the district court denied Lindsey’s first motion for a new trial, which had been made on the ground of newly discovered evidence pursuant to Rule 33, Federal Rules of Criminal Procedure. No appeal was taken from that order. On November 17, 1965, Lindsey filed a .second such motion. This motion was ■ denied on March 8, 1966, and Lindsey appeals.

The trial court did not indicate -why it denied the second motion for a new trial, but presumably it was because, in the court’s view, Lindsey failed to meet one or more of the five requirements for such relief. These are: (1) the evidence relied upon must in fact be newly discovered; (2) the movant must have exercised due diligence in discovering the new evidence; (3) the new evidence must not be merely cumulative or impeaching; (4) the new evidence must be material; and (5) the new evidence must be such that, on a new trial, it would probably produce an acquittal. See Wright v. United States, 9 Cir., 353…