United States v. Bernard Leavitt Durgin, Iii, United States of America v. Connie Lee Fallang

These two cases, combined on appeal, present only one legal issue: was there error in the denial by the district court of defendants’ joint motion for a new trial based solely on the ground of newly discovered evidence? Thus, we do not here pass on the merits of the judgment of conviction. Each was appealed and each affirmed. ( 439 F.2d 685 , decided March 11, 1971.)

The alleged newly discovered evidence was the fact that the paper wrapped about the marijuana (which was brought across the United States-Mexican border by defendants inside a suitcase in an automobile) had one latent finger print and two latent palm prints capable of being identified. Such finger prints were not of the defendants “or of any identifiable person”.

The scope of our review in an appeal from an order denying a motion for a new trial as set out in United States v. Johnson, 327 U.S. 106 , 66 S.Ct. 464 , 90 L.Ed. 562 (1946) is quite narrow. We may not try the facts de novo. Only an abuse of discretion such as findings of fact wholly unsupported by evidence or an error of law provides a basis for overruling a trial court in these cases. Because we find no such abuse upon the record, we are bound by the…