United States v. Calderon

United States Court of Appeals
For the First Circuit

No. 15-1652

UNITED STATES OF AMERICA,

Appellee,

v.

MANUEL CALDERÓN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Lynch, Selya, and Lipez,
Circuit Judges.

George J. Vila for appellant.
John-Alex Romano, Criminal Division, Appellate Section, U.S.
Department of Justice, with whom Rosa Emilia Rodríguez-Vélez,
United States Attorney, Nelson Pérez-Sosa, Chief, Appellate
Division, United States Attorney's Office, Leslie R. Caldwell,
Assistant Attorney General, Sung-Hee Suh, Deputy Assistant
Attorney General, and Robert A. Parker, Criminal Division,
Appellate Section, U.S. Department of Justice, were on brief, for
appellee.

July 15, 2016
 LIPEZ, Circuit Judge. Appellant Manuel Calderón,

convicted for making a false statement to a federal grand jury

investigating a money laundering scheme, argues that the district

court abused its discretion in refusing to grant him a new trial

based on the government's now-acknowledged improper withholding of

impeachment evidence and its failure to disclose other information

that Calderón claims tainted his indictment and prosecution. He

also challenges the court's refusal to order release of a grand

jury transcript. Finding his claims unavailing, we affirm.

I.

A. Factual Background

The facts underlying this appeal, as the jury could have found

them, are as follows. Appellant Calderón was a sales

representative and manager of two related businesses in Florida

that law enforcement authorities targeted in an investigation into

money laundering. The businesses, GSM City and GSM City

Supercenter ("Supercenter"), were wholesalers of cellular phones

and cellphone accessories. GSM City was established first, and

its employees, including Calderón, transferred to Supercenter when

it subsequently was opened by the same owners in a nearby location.

In effect, the business that previously had been known as GSM City

became Supercenter.1

1
In his opening statement at trial, the prosecutor said that
GSM City was "reincorporated" as GSM City Supercenter, and a

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 In 2010, undercover officers working for the United States

Drug Enforcement Administration ("DEA") went to GSM City on

multiple occasions and gave large amounts of cash to Calderón.

Each time, Calderón would take the cash and count it, and the

officers would then leave without receiving any merchandise. Two

DEA officers, Steve Díaz and Peter Guevara, participated in a

combined total of five such transactions between March and November

2010.

The DEA also engaged an employee of GSM City, Angel

Delguercio, as a confidential informant. Delguercio testified

that it was "common practice" for GSM City customers to come into

the store with $5,000 to $80,000 in cash, which Calderón would

count with a machine or by hand. Delguercio testified that those

transactions occurred weekly. He also reported that it was

similarly common for employees at Supercenter to receive cash

payments from customers. During his direct examination,

Delguercio testified that he saw Calderón counting cash at

Supercenter weekly. However, he changed his account during

government witness who worked at both stores testified that the
business "moved from one building to another building, and they
merged or changed their legal name." The government presented
evidence that Calderón was listed as one of the "managing members"
in Supercenter's articles of incorporation, along with Shamin Azad
and Amjad Azad. With respect to GSM City, the government witness
testified that "[t]o me [Calderón] was one of the owners, he ran
the business," but he also identified the Azads as the owners of
both businesses.

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questioning in cross-examination and on redirect, stating that he

had not seen -- or did not remember seeing -- Calderón himself

receive or count the cash payments received at that store, although

"it was a big chance, a possibility."

In 2012, Calderón appeared before a federal grand jury in

Puerto Rico investigating the money laundering scheme. During his

testimony, in which he initially explained how GSM City operated,

Calderón answered the questions posed to him as follows:2

Q. [A]nd that is how GSM City worked?
A. [Y]es.
Q. [W]hen you were working there?
A. [Y]es.
Q. [S]o a customer would call in and say, I
want to buy a hundred phones.
A. [Y]es.
Q. [A]nd you would give them 30 days to pay?
A. 30 days to pay or if the customer in less
than 30 days they would need more merchandise
and let's say they already have their limit
already filled up, then they had to pay what
they owe in order to take the new order.
Q. [O]kay. So you would receive wires only
from customers that had gone through that
process?
A. [Y]es, or they were registered with the
company already.
Q. [O]kay, and what would happen if the
company received payment from another source

2 We reproduce the grand jury testimony from the trial
transcript as it was read into the record, with emphasis supplied
for the questions and answers that were the basis for Calderón's
prosecution. At trial, the prosecutor read the questions, and the
court reporter who had transcribed the grand jury testimony as it
was given read Calderón's answers. We have omitted from each line
the introductory words read at trial -- either "Question" or
"Answer" -- and have therefore used brackets to capitalize the new
"first" word on each line.

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 that is not registered, is it accepted or what
would happen?
A. [N]o, it would not be accepted.
Q. [N]o?
A. [N]o, we always dealt with the customer
that wire us when we were working with them.
Who ever wanted to buy from us they had to
register as a company.
Q. [A]s far as you understand that is how GSM
City operated?
A. [S]upposedly, yes.
Q. GSM City?
A. GSM City and GSM City Supercenter.
Q. [A]nd then would anybody go in with cash?
A. [W]e have people coming from overseas that
they use to declare the cash in Customs at the
airport and they use to pay so we use to report
them.
Q. [H]ow?
A. [W]ith the IRS form and we take their
passport.
Q. [D]id you ever personally receive cash for
a purchase?
A. [T]hat was account.
Q. [Y]ou did?
A. [A]ccount, account, account department, we
had departments.
Q. [B]ut my question is did any customer ever
come to you and say listen, here is $50,000 or
here is $10,000 for these phones that I wanted
to order.
A. [N]o, because account had to deal with that
department.
Q. [N]ot the sales person?
A. [N]ot the sales person.
Q. [Y]ou never had to count any money or
anything?
A. [N]o. Count money just to pay that we had
to pay somebody that we owe, but that is about
it, but not like received money.

In August 2013, Calderón was indicted on one count of making

a false declaration before a federal grand jury, in violation of

18 U.S.C. § 1623. The indictment alleged that he knowingly

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testified falsely that he never received cash when, in fact, he

had received approximately $181,000 in cash payments between March

and June 2010 "from various individuals at GSM City, a.k.a. GSM

City Supercenter."

A two-day trial was held in February 2014. Calderón's defense

was that the grand jury questions at issue were ambiguous because

they sometimes referred to "GSM City" and sometimes to "GSM City

Supercenter." Highlighting Delguercio's testimony on cross-

examination that he did not remember seeing Calderón handle cash

at Supercenter, defense counsel argued to the jury that the

government had produced no evidence that Calderón had received or

counted cash there, and "[i]f [Calderón] was thinking that the

question was referring to Supercenter, then his answer was true."

Hence, counsel asserted, Calderón could not be convicted for making

a false statement if the jury found that he reasonably believed

the questions were focused solely on Supercenter. The jury,

however, found Calderón guilty.

B. Post-Trial Proceedings

Less than a week after the verdict, Calderón filed a motion

seeking a new trial, in which he asserted multiple flaws in his

trial. In the original motion, which was later supplemented, he

challenged statements made by a government witness and the

prosecutor and asserted that the evidence presented was

insufficient to support the verdict. Calderón has not appealed

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the court's denial of his new trial request based on those grounds,

and we do not further address them.

In the first supplement, Calderón claimed that newly

discovered evidence revealed that the government had withheld

impeachment evidence in violation of the disclosure requirements

of Giglio v. United States, 405 U.S. 150 (1972).3 Specifically,

he argued that the government had improperly failed to disclose

that Delguercio had been charged with stealing cell phones from

Supercenter while employed there, information suggesting a "motive

to be untruthful in his trial testimony" -- i.e., to retaliate

against store management, including Calderón. This credibility-

related evidence was significant to his defense, Calderón claimed,

because Delguercio was the only witness who referred to Calderón's

handling of cash while at Supercenter. If the jury found that

Calderón could have construed the question about handling cash to

refer only to Supercenter, the retaliatory motive of the sole

witness who cast doubt on Calderón's "no" answer would have been

favorable impeachment material.

3 Under Brady v. Maryland, 373 U.S. 83 (1963), the
"suppression of favorable evidence violates due process if the
evidence is material to guilt or punishment." United States v.
Misla-Aldarondo, 478 F.3d 52, 63 (1st Cir. 2007). In Giglio, the
Supreme Court applied Brady's disclosure obligation to
"information potentially useful in impeaching government
witnesses." Id.

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 The second supplemental filing focused on proceedings in a

related Florida criminal case, in which Calderón and the Azad

brothers (the owners of GSM City and Supercenter) were charged

with evading federal reporting requirements for cash transactions.

Calderón informed the court that the Florida prosecutor had alerted

the judge in that case to the government's intention to seek a

superseding indictment because of two problems affecting the

original Florida indictment. First, a law enforcement officer who

had made undercover cash drops for the DEA at GSM City had pleaded

guilty in an unrelated case to credit-card fraud and extortion.

As a result, the government decided not to pursue the counts in

the original Florida indictment that depended on the testimony of

that officer, Richard Muñoz. Second, the original indictment

contained a factual inaccuracy. It listed several cash deliveries

that investigators had told the grand jury were made by undercover

officers, but they were in fact made by confidential informants.

Calderón asserted that the Puerto Rico grand jury proceedings

were tainted by the same problems -- i.e., the "rogue-agent's

criminal conduct" and the factual inaccuracies -- that affected

the Florida prosecution. In addition, he argued that the

government violated its Brady/Giglio obligations by failing to

disclose Muñoz's indictment and plea negotiations, asserting that

the government must have known of those events when his trial

began. Calderón subsequently moved for production of the Puerto

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Rico grand jury transcript so that he could substantiate his

claims.

In response to the new trial motion, the government argued,

inter alia, that neither Delguercio's arrest nor Muñoz's

conviction was impeachment evidence within the scope of Giglio,

and that Muñoz's prosecution was in any event irrelevant to

Calderón's case. With respect to Muñoz, the government stated

that he was not involved in the grand jury proceedings in Puerto

Rico, and the DEA agent who presented information to that grand

jury did not directly rely on evidence obtained by Muñoz. In

addition, the government said it had not used evidence related to

the cash deliveries made by Muñoz against Calderón at trial. As

for the factual mistake in the Florida testimony concerning two

deliveries made by confidential informants, rather than undercover

agents, the government stated that no such inaccurate information

was provided in the Puerto Rico proceedings.

The district court ruled that Delguercio's arrest should have

been disclosed under Giglio.4 United States v. Calderón, No. 13-

cr-00515, slip op. at 27 (D.P.R. Feb. 27, 2015). The court noted

that it would be "natural" to conclude that Delguercio was biased

against Calderón because Supercenter -- which Calderón managed --

4 In its appellate brief, the government "concedes that, in
retrospect, it should have disclosed Delguercio's arrest on state
theft charges to Calderón prior to trial." Appellee's Br. at 11.

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had reported Delguercio's alleged theft of phones. The court

observed: "Such a conclusion, if drawn, clearly aims at

Delguercio's credibility, and thus, at the very least, may have

been useful in impeaching him." The court added that the

undisclosed material may have been particularly useful in light of

Delguercio's testimony that he cooperated with the government

"because he had been told it was the right thing to do and he had

not been accused of doing anything wrong." The court nonetheless

concluded that Calderón had not shown a reasonable probability

that disclosure of the withheld evidence about Delguercio would

have produced a different outcome at trial and, hence, the court

rejected the need for a new trial on that basis.

With respect to the undisclosed Florida information, the

court concluded that no Brady/Giglio violation occurred. The court

noted that the material about Muñoz's arrest and plea was not

useful for impeachment, as Muñoz did not testify at Calderón's

trial, and it found no relevance in Muñoz's unrelated conviction

to the defendant's guilt or innocence. The court also saw no

potential value to Calderón's defense from the inaccuracy in the

Florida grand jury testimony, which "pertain[ed] to whether money

was delivered by a police officer or a confidential source." The

court further rejected any implied challenge to the propriety of

the indictment, stating that Calderón "provides no legal basis to

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do so at this stage in proceedings." The court denied as moot

Calderón's motion to produce the grand jury transcript.

On appeal, Calderón reiterates his Brady/Giglio claims. He

argues that the district court abused its discretion in failing to

order a new trial based on the government's withholding of evidence

and the "tainted" indictment that resulted from reliance on Muñoz's

testimony and the factual inaccuracy about deliveries. He also

challenges the court's refusal to order release of the Puerto Rico

grand jury transcript.

II.

To obtain a new trial based on newly discovered evidence under

Federal Rule of Criminal Procedure 33, the defendant is ordinarily

required to show that (1) the evidence at issue was either unknown

or unavailable to him at the time of trial, (2) his failure to

discover the evidence was not due to his own lack of diligence,

(3) the evidence was material, and (4) access to it "will probably

result in an acquittal upon retrial." United States v. Flores-

Rivera, 787 F.3d 1, 15 (1st Cir. 2015) (quoting United States v.

González-González, 258 F.3d 16, 20 (1st Cir. 2001)).

In the context of a Brady/Giglio claim, however, a "more

defendant-friendly" standard applies to the prejudice inquiry

encompassed by the third and fourth prongs. Id. (citing Kyles v.

Whitley, 514 U.S. 419, 434 (1995)). Rather than showing that "an

acquittal would have 'probably' resulted," the defendant must

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establish only a "reasonable probability" of a different outcome

if the government had disclosed the evidence prior to trial. Id.

at 15-16 (quoting González-González, 258 F.3d at 20). We have

explained that, under this latter approach, a defendant can prevail

"when the government's evidentiary suppression undermines

confidence in the outcome of the trial." United States v. Avilés-

Colón, 536 F.3d 1, 20 (1st Cir. 2008) (quoting Kyles, 514 U.S. at

434). That is to say, a "reasonable probability" of a different

outcome does not exist if the trial, despite the absence of the

improperly withheld evidence, "can produce 'a verdict worthy of

confidence.'" Flores-Rivera, 787 F.3d at 16 (quoting González-

González, 258 F.3d at 20).

Absent legal error, the district court's ruling on a motion

for new trial based on alleged Brady/Giglio violations is

reversible only for "manifest abuse of discretion." United States

v. Alverio-Meléndez, 640 F.3d 412, 423 (1st Cir. 2011) (quoting

United States v. Brandao, 539 F.3d 44, 64 (1st Cir. 2008)); see

also González-González, 258 F.3d at 20. Calderón complains that

the district court improperly rejected both Brady/Giglio claims

asserted in his supplemental filings. We consider each in turn.

A. Delguercio's Arrest

As a threshold matter, Calderón contends that the district

court improperly used a sufficiency-of-the-evidence analysis to

assess the impact of the government's failure to disclose

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Delguercio's arrest. We reject this assertion. Indeed, the court

expressly recognized that "[t]he undermine-confidence inquiry

. . . is not a sufficiency of the evidence test." Calderón, slip

op. at 8. It examined sufficiency solely as a starting point for

its Giglio analysis and, after finding ample evidence of guilt,

stated that "[t]his . . . is not the battle to be waged for purposes

of analyzing suppressed Giglio material." Id. at 9. The court

then proceeded to carefully consider the potential impact of the

evidence of Delguercio's arrest in light of the defense theory,

guided by factors we have previously identified for assessing

materiality: "(1) [the] evidentiary strength [of the suppressed

information]; (2) whether it was cumulative of other evidence

offered at trial; (3) whether the matters on which it would have

allowed impeachment were collateral; and (4) whether the matters

on which impeachment would have been made possible were otherwise

corroborated." Id. at 8 (quoting United States v. Paladin, 748

F.3d 438, 444 (1st Cir. 2014)).

The court noted that Calderón's depiction of the Delguercio

evidence as highly significant was linked to his theory that the

questions posed to him by the grand jury were ambiguous, meaning

that the jury could have found that his response denying the

receipt of cash referred only to his time at Supercenter.

Confining his "no" answer to Supercenter was necessary for the

defense because the two law enforcement officers, Díaz and Guevara,

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had testified to giving Calderón cash at GSM City, and photographs

of the cash Calderón received from them were introduced into the

record. Indeed, defense counsel conceded the GSM City transactions

in his closing argument. Delguercio, however, was the only witness

whose testimony supported a finding that Calderón also had received

and counted cash at Supercenter.

The district court nonetheless identified multiple reasons

why Calderón had not shown a reasonable probability of a different

verdict even if he had known about Delguercio's arrest. First,

the court noted "the detailed cross-examination of Delguercio's

testimony that actually occurred," pointing out that Delguercio

was "thoroughly questioned" about his cooperation with the

government and the financial benefits he received. Id. at 11-12.

The court also highlighted defense counsel's closing argument,

which urged the jury not to credit Delguercio's testimony because

his motive to testify was that he was "getting paid to set people

up." Id. at 12. Hence, while the arrest evidence would have

enhanced that credibility challenge by potentially introducing an

issue of bias distinct from self-interest, "it still would have

addressed a subject that had already been brought to the jury's

attention -- Delguercio's motivation for testifying." Id.; see,

e.g., Paladin, 748 F.3d at 447 (noting that the undisclosed

evidence was cumulative because "the principal focus of the defense

on cross-examination sought to undermine [the witness's]

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credibility by suggesting to the jury that [he] . . . was willing

to lie to serve his own interests," and, hence, that evidence would

have only "permitted one additional avenue to accomplish this same

objective").

Second, the court observed that the importance of the

undisclosed evidence depended on two jury findings: that Calderón

construed the grand jury questions to address only Supercenter,

and -- based on Delguercio's testimony -- Calderón lied when he

said he had not handled cash at that store. The court found it

not reasonably probable that the jury had accepted Calderón's

theory that the questions were ambiguous -- causing him to

reasonably believe the inquiry was only about Supercenter -- but

then found him guilty beyond a reasonable doubt based on

Delguercio's equivocal testimony that there was "a possibility"

that Calderón handled cash there. The court found it "far more

likely" that the jury applied the "clear instruction" it gave on

the issue of ambiguity,5 and found the grand jury questions to be

unambiguous. The court then stated its view of the jury's ultimate

finding: "Specifically, when defendant was asked whether he

"[]ever" had to count any money, that ever meant ever, and thus,

5
In part, the jury was instructed: "If you should find a
particular question was ambiguous and that the defendant
truthfully answered one reasonable interpretation of the question
under the circumstances presented, then such answer would not be
false."

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included the time that he worked at GSM City Inc." Calderón, slip

op. at 13 (footnote omitted).

We find the district court's reasoning supportable. A series

of questions posed to Calderón during the grand jury proceeding

had focused on the business methods of GSM City before Calderón

was asked: "[A]s far as you understand that is how GSM City

operated?" His answer, along with the next question and response,

reported that the business methods also applied to Supercenter:

A. [S]upposedly, yes.
Q. GSM City?
A. GSM City and GSM City Supercenter.
Q. [A]nd then would anybody go in with cash?
A. [W]e have people coming from overseas that
they use to declare the cash in Customs at the
airport and they use to pay so we use to report
them.

A few questions later, Calderón was asked if he "ever personally

receive[d] cash for a purchase," to which he replied, "[T]hat was

account." After a few more questions about cash from customers,

he was asked, "[Y]ou never had to count any money or anything?"

He replied, "no," explaining that he counted money to pay debts,

"but not like received money." In context, we think it unlikely

that the jury would have construed Calderón's responses -- saying,

in effect, that it was not his job to count money -- as intended

to refer exclusively to Supercenter. Hence, with direct evidence

that Calderón had received cash at GSM City, evidence of his

activity at Supercenter would have been cumulative. Accordingly,

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we think it highly unlikely that Delguercio's testimony had

decisive impact on the jury's finding that Calderón gave a false

statement to the grand jury.6

We thus find no abuse of discretion in the district court's

rejection of Calderón's new-trial request based on a finding that

it was not reasonably probable that timely disclosure of

Delguercio's arrest would have produced a different result at

trial.

B. Proceedings in the Florida Case

Calderón argues that the district court erred in determining

that the information the prosecutor revealed in the Florida case

-- Officer Muñoz's conviction and the faulty attribution of some

cash deliveries at GSM City -- did not constitute Brady/Giglio

material for his Puerto Rico prosecution. We disagree.

We note first that Muñoz's guilty plea pursuant to a plea

agreement was entered on March 13, 2014, more than a month after

the conclusion of Calderón's trial, and the record contains no

evidence indicating that the Puerto Rico prosecutors knew about

6Indeed, the timing of the pertinent events -- a factor the
court did not mention -- diminishes the likelihood that the arrest
would have played a significant role, to Calderón's advantage, in
the jury's assessment of Delguercio's credibility. Delguercio
agreed to cooperate with the government in 2010, but he was not
charged with the theft until 2013. He therefore assisted the
government before he had reason to retaliate against Calderón.
Nonetheless, although the earlier decision to cooperate might have
lessened the bias theory, the possibility of retaliatory
motivation would have been useful in the 2014 trial.

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that unrelated criminal case during the trial. Indeed, the

superseding information charging Muñoz, and to which he pled, was

filed on March 7, 2014 -- also after Calderón's trial -- and the

Florida prosecutor's email alerting the judge in the Florida GSM

City case to concerns about the Florida indictment is dated March

21. Although Calderón speculates that the Puerto Rico prosecutors

must have known about Muñoz's plea negotiations by the time his

(Calderón's) trial started in early February, the record provides

scant support for that hypothesis.7 The government cannot be

faulted for failing to turn over information it did not have. See,

e.g., United States v. Hall, 434 F.3d 42, 55 (1st Cir. 2006);

United States v. Rosario-Díaz, 202 F.3d 54, 66 (1st Cir. 2000).

Moreover, as the district court concluded, the information

of concern in Florida was not significant for Calderón's defense

in the Puerto Rico trial. Muñoz did not testify and, hence, his

unrelated criminal activity could not constitute impeachment

evidence.8 In addition, we share the district court's view that

Muñoz's crime was not exculpatory as to Calderón. See Calderón,

7Calderón notes that Muñoz's prosecution bears a 2013 case
number. Although one co-defendant was indicted in October 2013,
and a superseding indictment charging a second co-defendant was
filed in January 2014, the superseding information naming Muñoz
was not filed until March 2014.

8By contrast, the Florida prosecutor's email to the Florida
court explained that Muñoz's testimony would have been the
government's evidence for four of the counts in that indictment.

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slip op. at 15 ("[T]he Court cannot discern how this information

is relevant in any[]way to defendant's guilt or innocence."). The

jury heard direct testimony from Díaz and Guevara about their own

cash deliveries at GSM City, and no reference was made to Muñoz.

Accordingly, Muñoz's role in the undercover operation, even if

tainted by his criminal activity, was tangential -- at best -- to

the jury's deliberations.

We likewise reject any suggestion by Calderón that the mistake

in the Florida proceedings concerning several cash deliveries --

i.e., that they were made by confidential informants rather than

undercover officers -- was pertinent to his guilt or innocence.

Indeed, other than the deliveries Díaz and Guevara testified that

they made themselves, there was no evidence introduced at trial

here linking particular cash drops to specific individuals.9

Hence, even if a jury might view criminal conduct reported by

confidential informants differently from activity reported by

police officers, that distinction was simply not relevant in the

Puerto Rico trial. We thus agree with the district court that the

mistaken attribution of a few deliveries in testimony given before

the Florida grand jury was immaterial to the jury's verdict.10

9
Delguercio did not identify any of the people he saw
delivering cash to Calderón as either police officers or
confidential informants.

10
Indeed, Calderón conceded as much before the district
court, although he continues to invoke precedent on appeal (i.e.,

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 Accordingly, we find no abuse of discretion in the district

court's rejection of the Brady/Giglio claim linked to the

information that came to light in the Florida prosecution.

III.

Calderón argues that the inaccurate information presented to

the Florida grand jury also tainted the Puerto Rico grand jury

proceedings and denied him "fundamental due process." This

contention is a non-starter. "[T]he petit jury's verdict of guilty

beyond a reasonable doubt demonstrates a fortiori that there was

probable cause to charge the defendant[] with the offense[] for

which [he] was convicted," and, hence, "any error in the grand

jury proceeding connected with the charging decision [i]s harmless

beyond a reasonable doubt." United States v. Mechanik, 475 U.S.

66, 67, 70 (1986); see also United States v. Reyes-Echevarría, 345

F.3d 1, 4 (1st Cir. 2003) ("All but the most serious errors before

the grand jury are rendered harmless by a conviction at trial.");

United States v. Ortiz de Jesús, 230 F.3d 1, 4 (1st Cir. 2000)

Brady/Giglio) that addresses the impact of improperly withheld
evidence on the outcome of a defendant's trial. Specifically, in
replying to the government's response to his second supplemental
motion, Calderón accused the government of "divert[ing] the
reader's attention to the evidence presented at trial." Calderón
then continued: "This is not the issue. It should be abundantly
clear that Defendant in his second supplement to the motion for
new trial does not object to the evidence presented at trial,
however does object to the tainted evidence that the Government
presented to the grand jury to obtain the Indictment." We address
the grand jury issue in the next section.

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("Usually, the trial jury's verdict provides an adequate safeguard

against the failings of the grand jury process."). The exception

to this harmless error rule -- prosecutorial misconduct "so grave

that it calls into doubt the fundamental fairness of the judicial

process," Ortiz de Jesus, 230 F.3d at 4 -- is plainly inapplicable

here.

In any event, the nature of the problematic information

revealed in the Florida case belies Calderón's assertion of

prejudicial taint. Muñoz's conviction for crimes unrelated to the

GSM City and Supercenter investigation does not undermine the

government's report to the Puerto Rico grand jury that Calderón

received ten cash deliveries during the course of the

investigation. Likewise, the misattribution of one or more of the

money drops to a police officer rather than a confidential

informant in the Florida grand jury proceeding does not call into

question the integrity of the Puerto Rico indictment, which charged

Calderón with falsely stating that he had never received cash. In

sum, the grand jury proceedings provide no basis for upending

Calderón's prosecution and conviction.

Given the lack of merit in Calderón's challenge to the

indictment, the district court did not err in refusing to order

production of a transcript of the sealed grand jury proceedings.

See United States v. Sells Eng'g, Inc., 463 U.S. 418, 424 (1983)

(recognizing the "long-established policy that maintains the

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secrecy of the grand jury proceedings in the federal courts"

(quoting United States v. Proctor & Gamble Co., 356 U.S. 677, 681

(1958))); United States v. Capozzi, 486 F.3d 711, 727 (1st Cir.

2007) (holding that "[t]he 'indispensable secrecy of grand jury

proceedings' must not be broken except where there is a compelling

necessity[,]" and stating that the defendant bears the burden of

showing "particularized need" (quoting Proctor & Gamble Co., 356

U.S. at 682)).11

For the foregoing reasons, the judgment of the district court

is affirmed.

So ordered.

11 The government provided an unsealed summary of the Puerto
Rico grand jury proceedings and offered to make the full transcript
available to the court for in camera inspection. The court did
not request such an inspection.

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