United States v. Ferreira, 1st Cir. (1994)
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Scribd Government DocsUnited States v. Ferreira, 1st Cir. (1994)
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Scribd Government DocsUSCA1 Opinion
March 28, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 93-1591
UNITED STATES,
Appellee,
v.
WILLIAM L. FERREIRA,
Defendant, Appellant.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, U.S. District Judge]
___________________
___________________
Before
Torruella, Boudin and Stahl,
Circuit Judges.
______________
___________________
William L. Ferreira on brief pro se.
___________________
A. John Pappalardo, United States Attorney, and S. Theodore
__________________
___________
Merritt, Assistant United States Attorney, on brief for appellee.
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__________________
__________________
Per Curiam.
__________
convicted of
Defendant/appellant William L. Ferreira was
armed bank
conspiracy to commit bank
robbery, see 18
___
U.S.C.
2113(d),
robbery, see 18 U.S.C.
___
371, and
use of a firearm during a crime of violence, see
___
924(c).
Following an aborted appeal from his conviction, and
approximately two years after
a motion
for new
based on
the
evidence
is a
Burleigh,
18 U.S.C.
mandate issued, Ferreira filed
trial, pursuant to
ground of
newly
sealed affidavit
which accompanied
Fed. R.
Crim. P.
discovered evidence.
of FBI Special
the government's
33,
This
Agent James
opposition to
defendant's motion
district
to
quash a
court denied
grand
the motion
jury subpoena.
for new
The
trial, and
this
appeal followed.
Background
The
following facts
1988, the Bank
Massachusetts
are
undisputed.
was
robbed.
Shortly
Shore Shopping Plaza,
separate cars.
array,
robbery,
Police Department
an embankment in the South
these four persons
Murphy followed one of the
occupants--John
next day,
the
speak briefly, and then depart
Believing that
robbers, Lieutenant
after
of the Braintree
observed four individuals descend
The
18,
of New England on Rockdale Street, Braintree,
Lieutenant Donald Murphy
arrested its
On October
Lieutenant
and identified
Maguire and
Murphy was
Robert Hickey
were the
two cars and
Thomas
shown a
as the
in two
Kavanagh.
photographic
driver
of the
-2-
other car.
received a
Approximately
grand
jury
six
subpoena
Ferreira filed a motion to
weeks
to
later,
appear
in
Ferreira
a
lineup.
quash the subpoena, claiming that
the subpoena
was "nothing more than harassment
activities."1
The
government
filed an
for his past
opposition to
the
motion, supported by Special Agent Burleigh's affidavit.
The
affidavit was filed in camera, ex parte, and was subsequently
_________
sealed
upon motion by
the government.2
The district court
denied
the motion to quash and ordered Ferreira to appear in
the line-up.
In a
lineup conducted on December
Murphy identified Ferreira
day,
as the fourth robber.
Ferreira was indicted by
the grand jury.
Lieutenant Murphy's identification of
was later
introduced at trial.
and he appealed.
The
19, 1988, Lieutenant
That same
Evidence of
Ferreira at the lineup
Ferreira was
appeal was dismissed
found guilty,
on January
16,
1991, upon Ferreira's motion for voluntary dismissal.
On June 2, 1992, the government provided Ferreira with a
copy of Special Agent
then filed
a motion
Burleigh's sealed affidavit.
for new trial
Ferreira
contending, inter
_____
alia,
____
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1. In particular, Ferreira contended that the sole basis for
the subpoena was his previous criminal record for bank
robbery and his relationship with the other suspects.
The
other suspects
were acquaintances from
Ferreira's old
neighborhood.
One of the suspects, Hickey, is Ferreira's
brother-in-law, and had been his co-defendant in a previous
bank robbery case.
2.
Ferriera unsuccessfully sought access to the affidavit.
-3-
that the affidavit
omitted
if
contained two
material information.
the district court had
misleading statements
and
Ferreira further argued that
been made aware
of these alleged
falsehoods, the court would have granted the motion to quash,
the lineup would not have
occurred, and the government would
not have had enough evidence to make a case against him.
The
district court denied the motion for new trial on the grounds
that "the motion to quash the grand jury subpoena was without
basis
and
should
have
been
denied
regardless
of
the
affidavit."3
DISCUSSION
It is well-established that a motion for new trial based
on newly discovered evidence will be denied unless the moving
party
can establish
each facet
of the
following four-part
test:
(1) the evidence was unknown or unavailable to the
defendant at the time of trial; (2) the failure to
learn of it was not a result of the defendant's
poor diligence; (3) the new evidence is material;
and (4) the impact of the new evidence is so strong
that an acquittal would probably
result upon
retrial.
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3.
Ferreira's remaining
arguments
in his
motion
for
new
trial, which we do not detail here, were not addressed by the
district court. None of these remaining claims are based on
newly discovered evidence, and Ferreira does not attempt to
argue otherwise.
Accordingly, these claims are barred by
Fed. R. Crim. P. 33's seven day time limit, and the district
court lacked jurisdiction to consider them.
See United
___ ______
States v. Lema, 909 F.2d 561, 565 (1st Cir. 1990) (stating
______
____
that Rule 33, which provides seven days in which a motion for
new trial may be filed, unless based on newly discovered
evidence, is jurisdictional).
-4-
United States v. Slade, 980 F.2d 27, 29 (1st Cir.
_____________
_____
1992).
We
will not disturb the disposition of a new trial motion unless
the district
law.
court abused
its discretion or
misapplied the
United States v. Rothrock, 806 F.2d 318, 321
_____________
________
1986).
(1st Cir.
We find no such error here.
The investigatory powers of the grand jury, although not
unlimited, are necessarily
Enters., Inc., 498 U.S.
______________
broad.
292, 297
See
___
United States v.
_____________
(1991) (stating
R.
__
that the
function of the grand jury is to inquire into all information
that might possibly bear on its investigation); United States
_____________
v.
Dionisio, 410
________
grand jury's
U.S. 1,
15
(1973) (recognizing
investigatory powers include the
that the
right to "act
on tips, rumors, evidence offered by the prosecutor, or their
own personal knowledge").
power of the
We have explicitly recognized the
grand jury to
direct witnesses to appear
lineup.
In re Melvin,
______________
Although
a judge, acting pursuant to Fed. R. Crim. P. 17(c),
has
the power
unreasonable
to quash
550
F.2d
a subpoena
or oppressive,
"a grand
674
(1st
Cir.
in a
if compliance
jury
1977).
would be
subpoena issued
through normal channels is presumed to be reasonable, and the
burden of
showing unreasonableness must be
who seeks to avoid
compliance."
on the recipient
R. Enters., Inc.,
________________
498 U.S.
at 301.
In his motion to quash the grand jury subpoena, Ferreira
utterly
failed
to
meet
his
burden
of
showing
-5-
unreasonableness.
See In re Pantojas, 628 F.2d 701, 704 (1st
___ ______________
Cir. 1980) (ruling that appellant who claimed that grand jury
investigation
was being
failed to carry
Hickey,
by prosecutor
his burden to
not be of use to grand
the other
used
jury).
suspects and,
with whom
he had
could
Indeed, his association
with
in particular, his
once committed
associates
similar crime,
See United States v.
___ _____________
of
respectable police work to check
a suspect
people).
(suggesting
power
connection with
583 F.2d 30, 32 (1st Cir. 1978) (commenting that it
would seem to be
several
him
demonstrate why lineup
support the legitimacy of the subpoena.
Sheehan,
_______
to harass
"to
proclivities
in
to
bank
robbery committed
But cf. In re Melvin,
________ _____________
that it might be
call
an abuse of
certain
individuals
appear
repeatedly in
__________
out known
550 F.2d
by
at 677
the grand juries'
with
known
lineups")
criminal
(emphasis
added).
In sum, we agree with the district court that Ferreira's
motion
to quash
challenged
should have
affidavit.4
Since
been denied regardless
the new
of the
evidence would
not
have produced a different result below, defendant's new trial
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4. In so ruling, we refrain, as did the district court, from
making any comment on whether the challenged representations
in the affidavit were misleading.
-6-
motion fails to meet
test.
the materiality prong of the
Accordingly, the motion was properly denied.5
Affirmed.
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four part
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5. We also reject Ferreira's claim that he should have been
given a hearing on his motion for new trial. Rule 33 motions
are frequently ruled upon without hearing, see Lema, 909 F.2d
___ ____
at 568 n.10, and there was no need to conduct an evidentiary
hearing here.
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