United States v. Samuel Cohen, 685 F. App'x 609

Samuel Cohen appealed the district court's denial of his Rule 33 motion for a new trial claiming "newly discovered" evidence and the denial of his third motion to continue the evidentiary hearing to find that evidence.
The district court held an evidentiary hearing and found Cohen failed to produce admissible newly discovered evidence sufficient to warrant a new trial.
The court concluded the proffered material was cumulative, impeaching, and would likely be inadmissible at retrial, so it would not change the verdict or undermine confidence in it.
The district court also denied Cohen's third continuance request to further investigate or obtain additional evidence related to the Rule 33 motion.
Cohen moved to supplement the record on appeal with a report by Professor Sterling Harwood and later declarations; the Ninth Circuit denied those motions as cumulative and unnecessary for review.
The Ninth Circuit affirmed, finding no abuse of discretion in the denial of the new trial motion, the denial of the continuance, and refusing to supplement the appellate record.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether newly discovered evidence justified a new trial under Rule 33	Cohen: newly discovered evidence (reports/declarations) would impeach key testimony and likely change outcome	Government: evidence is cumulative, impeaching, and insufficient to alter verdict or be admissible	Denied — evidence was cumulative/impeaching and not likely to change outcome; no new trial
Whether denial of third continuance for evidentiary hearing was erroneous	Cohen: needed more time to locate newly discovered evidence before hearing	Government: further delay unnecessary because any additional evidence would be cumulative/impeaching and likely inadmissible	Denied — court did not abuse discretion; denial not arbitrary or prejudicial
Whether appellate record should be supplemented with post-hearing materials	Cohen: proffered Harwood report and later declarations warrant supplementation	Government: supplementation improper; materials cumulative and not fit Rule 10(a) exceptions	Denied — supplementation unjustified; materials cumulative/impeaching

United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009) (standard for reviewing district court's findings for abuse of discretion)
United States v. Kenny, 645 F.2d 1323 (9th Cir. 1981) (newly discovered evidence standard and admissibility requirement)
Smith v. Cain, 132 S. Ct. 627 (2012) (impeaching evidence insufficient when it does not create a reasonable probability of a different result)
Kyles v. Whitley, 514 U.S. 419 (1995) (materiality standard for withheld/impeaching evidence affecting confidence in outcome)
United States v. Davis, 960 F.2d 820 (9th Cir. 1992) (conviction can stand without contested witness testimony when evidence otherwise sufficient)
United States v. Flynt, 756 F.2d 1352 (9th Cir. 1985) (standard for evaluating continuance denials)
United States v. Rivera-Guerrero, 426 F.3d 1130 (9th Cir. 2005) (continuance denial must not be arbitrary or prejudicial)
United States v. Boulware, 558 F.3d 971 (9th Cir. 2009) (appellate record supplementation only in extraordinary circumstances)
Lowry v. Barnhart, 329 F.3d 1019 (9th Cir. 2003) (generally consider only district court record on appeal)