United States v. Desir

United States Court of Appeals
For the First Circuit

No. 00-2423

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

DONALD PAUL DESIR,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Torruella and Selya, Circuit Judges,

and Lisi,* District Judge.

Mark J. Gardner, for appellant.
Donald C. Lockhart, Assistant U.S. Attorney, with whom Margaret
E. Curran, United States Attorney, was on brief, for appellee.

December 10, 2001

* Of the District of Rhode Island, sitting by designation.
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 TORRUELLA, Circuit Judge. Appellant Donald P. Desir was

convicted on charges of conspiracy and attempt to possess cocaine with

the intent to distribute. After sentencing, Desir filed a Rule 33

motion for a new trial based on newly discovered evidence. The

district court, after an evidentiary hearing, denied appellant's motion

for failure to satisfy the "newly discovered evidence" standard. Desir

then appealed to this Court. Because we find that the district court's

denial of the motion was not an abuse of discretion, we hereby affirm.

Background

On October 30, 1997, Desir was arrested on charges of

conspiracy and attempt to possess cocaine with the intent to

distribute. Appellant retained an experienced criminal defense

attorney, David Cicilline, as his counsel. On January 6, 1998, a jury

was impaneled before a magistrate judge. Neither appellant nor his

counsel objected to the magistrate judge conducting the impanelment.

One of the jurors selected was Bruno Sukys, who identified

himself as a Social Services Director at the International Institute of

Rhode Island, an organization that, inter alia, provides immigration

assistance to non-citizens. During voir dire, the jurors were asked

whether they knew appellant. Sukys did not indicate any prior

knowledge of or acquaintance with Desir.

The jury found Desir guilty, and he was sentenced to 240

months' imprisonment on June 5, 1998. More than a year later, in July

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of 1999, appellant, acting pro se, filed a Rule 33 motion for a new

trial based on newly discovered evidence. Appellant cited two grounds

for his motion: (1) that he was deprived of his right to a fair and

impartial jury because Sukys knew him and had knowledge of a previous

conviction, which biased him against appellant; and (2) that he was

deprived of his right to have an Article III judge, rather than a

magistrate judge, conduct voir dire.

After the district court concluded that an evidentiary

hearing would be required, Desir retained John P. Larochelle as his

counsel. At the hearing, on September 29 and October 2, 2000,

appellant claimed a prior connection with juror Sukys. Desir asserted

that Sukys had previously assisted him and his family in immigration

matters, but that he did not recognize Sukys during impanelment because

Sukys was wearing a suit and had a different haircut. The district

court determined that appellant's explanation was not credible because

Sukys identified himself in court and appellant and attorney Cicilline

had specifically discussed the desirability of having Sukys as a juror.

Moreover, appellant's sisters, Michelle Larracuente and Nadine Desir,

who both attended appellant's trial, recognized Sukys and mentioned his

presence to Desir. Therefore, the district court determined that

appellant waived any claim to a new trial because he voluntarily chose

not to challenge Sukys under the belief that Sukys would be favorably

inclined towards him.

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 The district court further determined that there was no

credible evidence to support Desir's allegation that Sukys had

knowledge of Desir's prior conviction or was predisposed to find him

guilty. As a result, the district court denied the motion for a new

trial on appellant's "newly discovered evidence" of juror misconduct or

bias.

The district court also denied appellant's motion for a new

trial on the "newly discovered evidence" that voir dire had been

conducted by a magistrate judge, as opposed to an Article III judge.

The district court denied the motion because neither appellant nor his

counsel contemporaneously objected to impanelment by the magistrate.

Desir appeals the denial of his motion for a new trial on

both grounds. He further claims that the district court abused its

discretion by ordering attorney Cicilline to testify at the evidentiary

hearing, in violation of the attorney-client privilege, as to Desir's

knowledge of the jurors.

Discussion

Rule 33 permits a defendant, in light of newly discovered

evidence, to file a motion for a new trial within three years of the

verdict. Fed. R. Crim. P. 33. A court may grant defendant's motion

"if the interests of justice so require." Id. We have held that a

defendant seeking a new trial based on newly discovered evidence must

prove four factors: (1) the newly discovered evidence was unknown or

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unavailable at the time of trial; (2) the defendant was duly diligent

in trying to discover it; (3) the evidence was material; and (4) the

evidence was such that it would probably result in an acquittal upon

retrial. See United States v. Conley, 249 F.3d 38, 45 (1st Cir. 2001);

see also United States v. Levy-Cordero, 67 F.3d 1002, 1018 (1st Cir.

1995); United States v. Wright, 625 F.2d 1017, 1019 (1st Cir. 1980).

If the defendant fails to prove any one of these four factors, the

motion must be denied. See Conley, 249 F.3d at 45 (noting that the

"remedy of a new trial must be used sparingly, and only where a

miscarriage of justice would otherwise result").

In determining whether or not the defendant has satisfied the

four-factor test, the district court "has broad power to weigh the

evidence and assess the credibility of both the witnesses . . . [and

the] 'new' evidence." Wright, 625 F.2d at 1019. Denial of a new trial

will be affirmed unless the court has "manifestly abused its

discretion." Id.

A. Juror Misconduct or Bias

Appellant claims that he was unaware that Sukys was a member

of the jury until after the trial had ended. Therefore, he asserts

that this information, which potentially supports a claim for juror

bias or misconduct because of the prior relationship between Sukys and

Desir, is "newly discovered evidence" within the meaning of Rule 33.

After an evidentiary hearing on appellant's motion, however, the

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district court determined that Desir's claim was not credible and that

he was aware of Sukys' presence on the jury.

On appeal, a trial court's "findings of fact will not be

overturned unless they are without any support in the record." Wright,

625 F.2d at 1019. The record indicates that Sukys identified himself

by name, occupation, and place of employment during jury impanelment.

In addition, Desir discussed Sukys with his attorney, and Desir's

sister Nadine testified that she told Desir of Sukys' presence. Given

this evidence, we cannot say that the district court's determination

that Desir had knowledge of Sukys' presence on the jury was "without

any support in the record."

Thus, accepting the district court's finding of fact that

Desir did recognize Sukys at impanelment, we agree that there is no

"newly discovered" evidence to support a claim for juror misconduct or

bias. Rather, if Desir recognized Sukys during jury impanelment, then

the facts supporting his potential claim for juror misconduct or bias

were known at that time. Therefore, these facts cannot constitute

"newly discovered" evidence. See United States v. Osorio-Peña, 247

F.3d 14, 19 (1st Cir. 2001) (noting that facts known at the time of

trial cannot be considered "newly discovered"). Thus, appellant has

not even satisfied the first prong of the Rule 33 standard for a new

trial.

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 Moreover, we have previously held that a defendant who has

knowledge of juror misconduct or bias at the time of trial waives such

a claim by failing to raise it until after trial. See United States v.

Costa, 890 F.2d 480, 482 (1st Cir. 1989). Otherwise, "[a]ny other rule

would allow defendants to sandbag the court by remaining silent and

gambling on a favorable verdict, knowing that if the verdict went

against them, they could always obtain a new trial by later raising the

issue of juror misconduct." Id.

In addition, Desir asserts that he has a claim for juror bias

based on Sukys' alleged knowledge of his prior conviction. This

proposed evidence of juror bias also fails the test for "newly

discovered" evidence. First, the district court noted in its opinion

that it found no evidence that Sukys had actual knowledge of Desir's

prior conviction. Second, even if Sukys did have knowledge of the

prior conviction, this aspect of potential bias was not newly

discovered. Since the district court found that Desir was aware of

Sukys' presence on the jury at the time of trial, Desir likewise must

have known that Sukys may have had knowledge of the prior conviction.

Therefore, since the predicate for a claim of juror bias was known at

the time of trial, it is not newly discovered. And, once again,

because Desir knew of this claim for juror bias at the time of trial

but did not raise it, the claim was waived.

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 Thus, since appellant has failed to satisfy even the first

prong for a Rule 33 motion based on newly discovered evidence, we

cannot say the district court abused its discretion in denying

appellant's motion on his claim of juror bias. See Conley, 249 F.3d at

45 (stating that court must deny motion for new trial if defendant

fails to prove any of the four factors).

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B. Impanelment by a Magistrate Judge

The district court also denied appellant's motion for a new

trial based on the "newly discovered" evidence that jury selection was

conducted by a magistrate judge, rather than by an Article III judge.

Appellant alleges that this new evidence, of which he was personally

unaware until post-trial, demonstrates that his trial was infected with

constitutional error, thereby requiring a new trial.

Desir's constitutional claim, however, is not based on "newly

discovered" evidence. Desir contends that he was unaware that a

magistrate judge was presiding over voir dire because the judge never

identified his status in court. Even if appellant did not understand

that the judge conducting the impanelment was a magistrate judge,

defense counsel testified as to his personal knowledge of this. For

purposes of a Rule 33 motion based on newly discovered evidence,

defense counsel's knowledge of the evidence and his or her

understanding of its legal significance are imputed to the defendant.

See Osorio-Peña, 247 F.3d at 18-19 (finding that defendant's Rule 33

challenge to a search warrant was not based on newly discovered

evidence because defense counsel knew of defects in warrant, but just

failed to raise them at trial). Therefore, defense counsel's admitted

knowledge that a magistrate judge was conducting voir dire is

attributed to Desir, thereby nullifying any allegation that this was

"newly discovered" evidence.

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 Appellant argues, though, that even if he is credited with

knowledge of the judge's magistrate status, his constitutional claim

still survives. Desir is incorrect for two reasons. First, as a

procedural matter, Desir has raised his constitutional claim in the

form of a Rule 33 motion based on newly discovered evidence. Thus, no

matter how grave the constitutional error, he is required to prove the

four factors, which include proving that the evidence is, in fact,

newly discovered. Moreover, since the district court denied Desir's

motion, appellant must now meet an even higher standard than proving

the four factors; he must prove that the district court's denial of the

motion was an abuse of discretion. Appellant has failed to do either.

Second, as a substantive matter, Desir misconstrues the case

law governing the power of magistrates to conduct jury impanelment.

Appellant argues that a defendant must affirmatively grant consent in

order for a magistrate, instead of an Article III judge, to preside

over voir dire. Since neither defense counsel nor Desir affirmatively

consented, appellant argues that this is new evidence of constitutional

error. However, we have previously held that affirmative consent is

not required. See United States v. Martínez-Torres, 944 F.2d 51, 52

(1st Cir. 1991) (rejecting the need for specific written consent to

enable a magistrate to conduct voir dire). Rather, a magistrate may

conduct jury selection unless the defendant or his attorney registers

an objection. See Peretz v. United States, 501 U.S. 923, 934-36, 937,

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940 (1991) (finding that defendant has no constitutional right to have

an Article III judge preside at jury selection unless defendant objects

to judge's absence); see also Martínez-Torres, 944 F.2d at 51-52

(same). In this case, neither Desir nor his counsel objected, so

appellant waived any constitutional entitlement to an Article III judge

at jury impanelment.1

C. Attorney-Client Privilege

During the hearing on appellant's motion for a new trial,

appellant's trial counsel, David Cicilline, was called to testify.

Appellant contemporaneously objected, claiming that some of Cicilline's

testimony was protected by the attorney-client privilege. The district

court overruled the objection and ordered Cicilline to testify, citing

two reasons. First, the district court found that appellant had waived

the privilege as to communications with his attorney about juror Sukys

because appellant had, by his motion, put at issue whether his

knowledge of Sukys' presence on the jury was newly discovered. Second,

appellant had waived the privilege as to these same communications

1 Thus, at most, defendant has an ineffective assistance of counsel
claim based on counsel's failure to inform defendant of the difference
between a magistrate and an Article III judge. An ineffective
assistance of counsel claim, though, ordinarily cannot be raised
through a Rule 33 motion based on newly discovered evidence. See
Osorio-Peña, 247 F.3d at 19 (stating that most circuits "have held that
facts giving rise to ineffective assistance claims are not newly
discovered evidence under Rule 33 if the facts were available to the
defendant at trial but he or she did not appreciate their legal
significance").

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because appellant had voluntarily testified that he did not recognize

Sukys during impanelment, in part because attorney Cicilline had

advised appellant not to look at the jurors. Desir contends that this

court-ordered testimony violated his attorney-client privilege and

therefore constituted an abuse of discretion in denying his motion for

a new trial based on juror bias.

Whether the attorney-client privilege applies is a factual

determination for the trial court which will only be reversed if it is

clearly erroneous. See Texaco P.R., Inc. v. Dep't of Consumer Affairs,

60 F.3d 867, 883 (1st Cir. 1995). In this case, the district court's

decision to order attorney Cicilline's testimony was not clearly

erroneous.

The district court's finding that the attorney-client

privilege did not apply was based upon a theory of implied waiver. See

1 McCormick on Evidence § 93 (John W. Strong, ed., 5th ed. 1999)

(noting that client's conduct, such as partial disclosure, may

constitute waiver where it would be "unfair for the client to invoke

the privilege thereafter"); see also 3 Weinstein's Federal Evidence §

503.41 (Joseph M. McLaughlin, ed., 2d ed. 1997) (waiver by implication

may occur whenever party takes a position that makes it unfair to

protect attorney-client communications, such as when a client testifies

about portions of such communications or client relies on attorney's

advice as element of claim or defense); United States v. Workman, 138

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F.3d 1261, 1263-64 (8th Cir. 1998) (implied waiver is to prevent

defendant from "selectively assert[ing] the privilege to block the

introduction of information harmful to his case after introducing other

aspects" of attorney-client communications that are beneficial;

"attorney client privilege cannot be used as both a shield and a

sword"); United States v. Rakes, 136 F.3d 1, 5 (1st Cir. 1998) (waiver

"is directed against selective disclosures by reserving protection for

only those communications that the privilege holder himself is prepared

to keep confidential"). In essence, the district court determined that

since appellant was claiming that he did not recognize Sukys during

trial, and his failure to recognize Sukys was partly based on

Cicilline's alleged advice to not look at the jurors, the government

should be allowed to examine Cicilline to determine whether appellant

was being truthful in his claim of non-recognition of Sukys.

The concept of implied waiver of the attorney-client

privilege is not well-developed in this circuit. See United States v.

Billmyer, 57 F.3d 31, 37 (1st Cir. 1995) ("Waiver doctrine has only a

few hardedged rules; as to many permutations, it is a fluid body of

precedent reflecting a variety of concerns, including an insistence on

real confidentiality and limitations based on fairness."). Even in

those circuits which have had greater opportunities to discuss the

contours of the implied waiver theory, the analysis is fact-intensive

and based on a less-than-definitive standard of fairness, see In re

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Grand Jury Proceedings, 219 F.3d 175, 183, 185 (2d Cir. 2000) (stating

that whether fairness requires a waiver of privilege is determined on

a case-by-case basis, focusing on the "specific context in which the

privilege is asserted"). Because implied waiver requires a careful

weighing of facts and "should not be applied cavalierly," id. at 186,

we decline to address the specific contours of appellant's privilege

claim, particularly since a determination on privilege is unnecessary

to affirm the district court's denial of the new trial motion.

Even if we were to assume, without deciding, that appellant's

argument concerning the attorney-client privilege has merit, his claim

for a new trial fails because the district court still would have found

that appellant failed to satisfy the four requirements for a new trial

based on newly discovered evidence. Without Cicilline's testimony,

there was abundant evidence to support a finding by the district court

that Sukys' presence on the jury was not newly discovered: Sukys

identified himself and his position at the International Institute

during impanelment and appellant's sister, Nadine Desir, testified that

she informed her brother of Sukys' presence at the trial. Thus, there

would have been no abuse of discretion for the district court to deny

the new trial motion for lack of any "newly discovered" evidence.

Conclusion

Because appellant waived his juror bias claim, the district

court properly denied appellant's motion.

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Affirmed.

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