The following excerpt is from United States v. Polisi, 416 F.2d 573 (2nd Cir. 1969):
The general rule governing new trials based on newly discovered evidence, in the majority's words, is that "(1) the evidence must have been discovered since the trial; (2) it must be material to the factual issues at the trial, and not merely cumulative nor impeaching the character or credit of a witness; (3) it must be of such a nature that it would probably produce a different verdict in the event of a retrial. United States v. Costello, 255 F.2d 876 (2d Cir.), cert. denied 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958)." Using this test, the district court, below, denied appellants' motion for a new trial, see United States v. Lombardozzi, 236 F.Supp. 957 (E.D.N.Y. 1964), aff'd 343 F.2d 127 (2d Cir. 1965).
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