United States v. Slade

USCA1 Opinion









November 24, 1992

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT



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No. 92-1176

UNITED STATES OF AMERICA,

Appellee,

v.

FRANCES SLADE,

Defendant, Appellant.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

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

Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Evan Slavitt, with whom Hinckley, Allen, Snyder & Comen was
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on brief, for appellant.
J. Carol Williams, Attorney, Environment & Natural Resources
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Division, U.S. Department of Justice, with whom Vicki A. O'Meara,
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Acting Assistant Attorney General, Jacques B. Gelin and H. Claire
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Whitney, Attorneys, were on brief, for the United States.
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SELYA, Circuit Judge. This appeal challenges the
SELYA, Circuit Judge.
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district court's refusal to grant a new trial to a criminal

defendant on the basis of evidence that the defendant claims was

newly discovered. We affirm.

I
I

On October 4, 1989, a jury found Frances Slade, a

managerial employee of MacDonald & Watson Waste Oil Company (M &

W), guilty of two counts of knowingly causing a hazardous waste

to be transported to an unpermitted facility in violation of

section 3008(d)(1) of the Resource Conservation and Recovery Act

(RCRA), 42 U.S.C. 6928(d)(1) (1988). On appeal, we affirmed

the convictions of several defendants (including Slade) whilst

vacating the convictions of Eugene D'Allesandro (M & W's

president) and Narragansett Improvement Company (holder of the

RCRA permit under which M & W operated in Rhode Island). See
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United States v. MacDonald & Watson Waste Oil Co., 933 F.2d 35
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(1st Cir. 1991).

Phillip Lavigne, the former manager of M & W's Boston

office, did not testify at the original trial. During

D'Allesandro's retrial, however, the government called Lavigne as

a witness. In the course of his testimony, Lavigne recounted the

substance of certain conversations in which he and Slade had

participated. These conversations related to the events

underlying Slade's conviction.1 On December 11, 1991, Slade

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1On November 18, 1991, the judge presiding at D'Allesandro's
second trial granted D'Allesandro's motion for the entry of a
judgment of acquittal.

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moved for a new trial, citing this testimony as newly discovered

evidence.

The district court concluded that the evidence in

question "consist[ed] of facts that were clearly known to [Slade]

at the time of [her] trial." Hence, it denied relief. This

appeal followed.

II
II

Freshly discovered evidence is sufficiently sturdy to

warrant a new trial in a criminal case only if (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. See United States v.
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Natanel, 938 F.2d 302, 313 (1st Cir. 1991), cert. denied, 112 S.
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Ct. 986 (1992); United States v. Martin, 815 F.2d 818, 824 (1st
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Cir.), cert. denied, 484 U.S. 825 (1987); United States v.
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Wright, 625 F.2d 1017, 1019 (1st Cir. 1980). The defendant must
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shoulder the burden of establishing each facet of the four-part

test. See Natanel, 938 F.2d at 313; Wright, 625 F.2d at 1019.
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Because the district court is usually in a much better

position to judge the credibility of the witnesses and to assess

the highly nuanced relationship between the purported new

evidence, and what previously transpired at trial, we treat the

district court's handling of such motions with considerable

deference. Consequently, we will reverse a denial of a motion


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for new trial premised on newly discovered evidence only for

manifest abuse of the district court's informed discretion. See
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Natanel, 938 F.2d at 313.
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III
III

It would serve no useful purpose to rehearse the

factual predicate on which Slade's conviction rests. For one

thing, we have already discussed those facts at some length. See
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MacDonald & Watson, 933 F.2d at 39-40. For another thing, our
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resolution of this appeal hinges not so much on the factual

framework as it does on the procedural posture of the appeal.

A
A

The hazardous waste that was allegedly brought to an

improper facility at Slade's direction consisted of contaminated

soil from the so-called Master Chemical property. At

D'Allesandro's second trial, Lavigne testified that Slade

"explicitly informed the heads of MacDonald & Watson's Boston and

Rhode Island offices that MacDonald & Watson could not accept the

soil from the Master Chemical site . . . ." In her motion for a

new trial, Slade posited this bit of testimony as new evidence.

She hypothesized that, by using Lavigne's testimony to show that

she had, on earlier occasions, rejected samples from the Master

Chemical site, she would have undermined the prosecution's theory

that she knowingly permitted the illegal dumping. Although

acknowledging that a person's own conversations can rarely

constitute "new" evidence, Slade argued that these particular

conversations were the exception that proved the rule because she


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"did not remember speaking to . . . Lavigne at any time regarding

the chemical analysis for the Master Chemical cleanup . . . ."

The district court declined to buy what Slade was

selling. It denied her motion on the ground that Slade could not

satisfy the first prong of the four-part test. The court based

this ruling on its finding that the facts to which Lavigne

testified were clearly known to Slade at the time of her trial.

B
B

On appeal, Slade recasts Lavigne's testimony, this time

highlighting different aspects. She argues that the nascent fact

is Lavigne's statement that soil samples marked "CDM Dorchester"

were in fact samples from the Master Chemical site. Slade now

concedes that she did not forget about the conversations in which

she rejected the Master Chemical soil samples, but says that she

never knew the soil was from the Master Chemical site.2

Although Slade's presentation below and her presentation before

us involve the testimony of the same witness, the similarity ends

there. The two contentions one about certain conversations and

the other about the marking of soil samples pull from that

testimony distinctly different factual threads and weave them

into different legal patterns. We cannot countenance this sort

of asseverational embroidery.

As a general rule, appellate litigators should winnow

their stable of legal arguments, retaining their most effective

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2We note that this new stance seemingly contradicts the very
premise of the affidavit which Slade filed below in support of
her motion for a new trial.

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claims and putting unpromising claims to pasture before seeking

appellate review. This rule does not mean, however, that

litigants remain free to shift horses in midstream. Here, Slade

attempted just such an interstitial feat. Following the district

court's denial of her motion for a new trial, she apparently

reassessed the field, decided her old argument was lame,3 and

now seeks to ride a fresh mount in a new direction. Her attempt

fails.

It is a bedrock rule that when a party has not

presented an argument to the district court, she may not unveil

it in the court of appeals. See, e.g., Hernandez-Hernandez v.
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United States, 904 F.2d 758, 763 (1st Cir. 1990); Clauson v.
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Smith, 823 F.2d 660, 666 (1st Cir. 1987) (collecting cases);
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United States v. Figueroa, 818 F.2d 1020, 1024 (1st Cir. 1987).
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In this case, Slade's neoteric theory that her misunderstanding

about the significance of the soil-sample labels constituted new

evidence surfaced for the first time on appeal. Consequently,

it runs afoul of our well-settled rule.

C
C

Slade tries to scale this towering obstacle in two

ways. First, she suggests that a passing mention of the soil-


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3Because the defendant has neither briefed nor argued the
proposition that she advanced below, we need not consider the
district court's rejection of that proposition. After all,
theories neither briefed nor argued on appeal are deemed to have
been waived. See, e.g., United States v. St. Cyr, ___ F.2d ___,
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___ (1st Cir. 1992) [No. 92-1639; slip op. at 4]; United States
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v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S.
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1082 (1990).

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sample labels in her motion for a new trial sufficed to acquaint

the district court with the labels' validity as new evidence,

thereby warding off waiver. Second, she asserts that the raise-

or-waive rule is inapplicable since she is not introducing new

facts on appeal but simply offering a revised take on how

Lavigne's testimony constitutes new evidence. Neither point

succeeds in freeing appellant from the condign consequences of

her procedural default.

1.
1.
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Passing allusions are not adequate to preserve an

argument in either a trial or an appellate venue. See United
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States v. Zannino, 895 F.2d 1, 17 (1st Cir.) ("Judges are not
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expected to be mindreaders. Consequently, a litigant has an

obligation to spell out its arguments squarely and distinctly, or

else forever hold its peace.") (internal citations and quotation

marks omitted), cert. denied, 494 U.S. 1082 (1990); Paterson-
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Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d
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985, 990 (1st Cir. 1988) (similar). This is such a case. In her

motion for a new trial, Slade mentioned the soil-sample labels

only once. She did not discuss the importance of the labels in

the argument section of her motion nor did she portray the

labeling as especially relevant to her legal theories.

The transcript of Lavigne's testimony ran some sixty-

odd pages and covered numerous topics. It is not the district

court's responsibility either to cull post-conviction testimony

in search of promising factual scenarios or to hunt for


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attractive legal arguments not articulated in the motion papers.

A litigant cannot ignore her burden of developed pleading and

expect the district court to ferret out small needles from

diffuse haystacks. Cf., e.g., Mele v. Fitchburg Dist. Court, 850
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F.2d 817, 822 (1st Cir. 1988) (quoting Rivera-Gomez v. Adolfo de
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Castro, 843 F.2d 631, 635 (1st Cir. 1988)). In a nutshell,
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because Slade did not develop her current argument regarding the

significance of the soil-sample labels in the district court, she

cannot press it on appeal.

2.
2.
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Slade's thesis that only new facts and not new

arguments about those facts are prohibited from debuting in the

court of appeals is grounded more in hope than in precedent.

Judges are not obliged to do a movant's homework, searching sua
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sponte for issues that may be lurking in the penumbra of the
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motion papers. Thus, the raise-or-waive rule applies with full

force when an appellant tries to present a new theory about why

facts previously placed on record are determinative. See United
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States v. Dietz, 950 F.2d 50, 55 (1st Cir. 1991); Clauson, 823
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F.2d at 666. Phrased another way, a party is not at liberty to

articulate specific arguments for the first time on appeal simply

because the general issue was before the district court. See,
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e.g., Dietz, 950 F.2d at 55; United States v. Pilgrim Mkt. Corp.,
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944 F.2d 14, 21 (1st Cir. 1991); Brown v. Trustees of Boston
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Univ., 891 F.2d 337, 357 (1st Cir. 1989), cert. denied, 496 U.S.
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937 (1990); Libertyville Datsun Sales, Inc. v. Nissan Motor
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Corp., 776 F.2d 735, 737 (7th Cir. 1985). Were the rule
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otherwise, little would be resolved in the trial courts.





D
D

It is true, as appellant points out, that appellate

courts retain the power to dispense with the raise-or-waive rule

in order to avoid a gross miscarriage of justice. See Hernandez-
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Hernandez, 904 F.2d at 763; United States v. La Guardia, 902 F.2d
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1010, 1013 (1st Cir. 1990); United States v. Krynicki, 689 F.2d
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289, 291-92 (1st Cir. 1982). However, this power should be

exercised sparingly. It is reserved for "exceptional cases," La
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Guardia, 902 F.2d at 1013, in which the previously omitted ground
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is "so compelling as virtually to insure appellant's success."

Hernandez-Hernandez, 904 F.2d at 763 (citation omitted). The
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case at hand does not meet these rigorous criteria.

At bottom, Slade seeks to raise a factbound issue

which, if presented at trial, might or might not have

influenced the jury's verdict. The confusion over the labeling

of the soil samples does not appear to be overwhelmingly

exculpatory. To the contrary, the government's case against

Slade still seems substantial. After all, she negotiated the

contract with Master Chemical which specified the chemical

content of the contaminated earth and the new evidence does not

address this crucial fact. We consider it unlikely that the

additional evidence, on either of Slade's theories, would have


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been so compelling as to assure Slade's victory at trial. Hence,

the miscarriage-of-justice exception cannot be invoked.4

IV
IV

We need go no further. Slade has waived the argument

that she pressed below and, therefore, cannot be heard to

complain about the district court's rejection of that argument.

By the same token, she is estopped from pursuing at this late

date a newly emergent argument never presented to the lower

court. Because Slade, by her own devices, is caught between the

Scylla of abandonment and the Charybdis of procedural default,

her appeal founders.



Affirmed.
Affirmed.
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4At the expense of carting coal to Newcastle, we also remark
the improbability that Slade, on either of her espoused versions,


could overcome the due diligence prong of Natanel's four-part
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test. Either way, Slade was chargeable with knowledge of
Lavigne's involvement, yet made no effort to produce him at
trial.

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