FILED
NOT FOR PUBLICATION
MAR 29 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10274
Plaintiff-Appellee, D.C. No. 3:10-cr-00547-CRB-1
v.
MEMORANDUM*
SAMUEL COHEN, a.k.a. MOULI
COHEN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted January 10, 2017**
San Francisco, California
Before: WALLACE and M. SMITH, Circuit Judges, and ERICKSON,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. R. 34(a)(2).
***
The Honorable Ralph R. Erickson, United States District Judge for the
District of North Dakota, sitting by designation.
Samuel Cohen appeals from the district court’s order denying his motion for
a new trial pursuant to Federal Rule of Criminal Procedure 33 and the order
denying his third motion to continue the evidentiary hearing to allow him further
time to uncover “newly discovered” evidence. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
The district court did not abuse its discretion in denying Cohen’s motion for
a new trial, based on an allegation of newly discovered evidence. The trial court
correctly identified and applied the controlling law in analyzing the questions
presented. United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009). There
is no abuse of discretion in the district court’s finding that Cohen failed to produce
any admissible newly discovered evidence. United States v. Kenny, 645 F.2d
1323, 1343 (9th Cir. 1981).
Moreover, the newly discovered evidence upon which Cohen bases his
motion consists of merely cumulative impeaching evidence that was neither
sufficient to create a likelihood of a different trial outcome nor substantial enough
to undermine confidence in the outcome of the original trial. Smith v. Cain, 132 S.
Ct. 627, 630 (2012) (citing Kyles v. Whitley, 514 U.S. 419, 434 (1995)); accord
United States v. Davis, 960 F.2d 820, 826 (9th Cir. 1992) (“There was sufficient
evidence to convict Davis, without Duran’s testimony.”).
2
Cohen also challenges the district court’s denial of his third motion to
continue the evidentiary hearing on the motion for a new trial. The denial was not
arbitrary or unreasonable, United States v. Flynt, 756 F.2d 1352, 1358 (9th Cir.
1985), or prejudicial. United States v. Rivera-Guerrero, 426 F.3d 1130, 1139 (9th
Cir. 2005). The district court correctly determined that even if Cohen were to
uncover the “newly discovered” evidence he was seeking, it would still be
cumulative in nature, merely impeaching, and likely inadmissible.
Cohen’s two motions for leave to supplement the record on appeal are also
denied. The evidence, consisting of a report by Professor Sterling Harwood, and
declarations made subsequent to the district court’s hearing on the motion for a
new trial, is cumulative and, at best, impeaching. Cohen has not provided this
court with sufficient reasons for deviating from the requirements of Federal Rule
of Appellate Procedure 10(a). See United States v. Boulware, 558 F.3d 971, 976
(9th Cir. 2009) (recognizing that “except in extraordinary circumstances” the court
“will not allow parties to supplement the record on appeal”); Lowry v. Barnhart,
329 F.3d 1019, 1024 (9th Cir. 2003) (“Save in unusual circumstances, we consider
only the district court record on appeal.”). The Government’s motions to strike are
denied as moot.
AFFIRMED.
3