         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




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