UNITED STATES of America, Plaintiff-Appellee, v. Emil SCHOEPFLIN, Defendant-Appellant, 442 F.2d 407

PER CURIAM: This appeal is taken from the District Court’s order denying appellant’s motion for new trial upon the ground of newly discovered evidence. Appellant, in 1965, was convicted of bank robbery and his conviction was affirmed. Schoepflin v. United States, 391 F.2d 390 (9th Cir. 1968). He claims to have discovered the “true robber” among the inmates of Leavenworth Penitentiary and to have three witnesses to swear the “true robber” had confessed. The District Court granted a hearing upon appellant’s motion and the alleged true robber, one Nix, was produced as witness.

The court’s denial of appellant’s motion was based on its rejection of Nix’s testimony as unworthy of belief. Its refusal to subpoena the three witnesses to Nix’s confession was upon the ground that anything Nix had said to them would be equally unworthy of belief. We find neither error nor abuse of discretion. Lindsey v. United States, 368 F.2d 633 (9th Cir. 1966). Affirmed.