United States v. Ponzo

United States Court of Appeals
For the First Circuit

Nos. 17-2153, 17-2154, 17-2188

UNITED STATES OF AMERICA,

Appellee,

v.

ENRICO M. PONZO, a/k/a HENRY PONZO, a/k/a MICHAEL P. PETRILLO,
a/k/a RICO, a/k/a JOEY, a/k/a JEFFREY JOHN SHAW, a/k/a JAY SHAW,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Lynch, Stahl, and Barron,
Circuit Judges.

Allison Koury, on brief for appellant.
Andrew E. Lelling, United States Attorney, Dustin M. Chao,
Assistant U.S. Attorney, Brian A. Benczkowski, Assistant Attorney
General, Matthew S. Miner, Deputy Assistant Attorney General,
William A. Glaser, Attorney, Appellate Section, Criminal Division
on brief for appellee.

January 9, 2019
 BARRON, Circuit Judge. In 2014, Enrico Ponzo was

convicted on twelve federal criminal counts -- including

conspiracy to commit murder in aid of racketeering, in violation

of 18 U.S.C. § 1959(a)(5) -- in the District of Massachusetts.

The convictions arose from his role in the late 1980s and early

1990s in a large criminal organization called "La Cosa Nostra."

The District Court imposed a lengthy prison sentence and also

entered a $2.25 million money judgment forfeiture. Ponzo appealed

the convictions, his sentence, and the money judgment forfeiture.

We affirmed. See United States v. Ponzo, 853 F.3d 558 (1st Cir.

2017).

On November 28, 2016, Ponzo moved for a new trial under

Federal Rule of Criminal Procedure 33 on the basis of evidence

that he claims is newly discovered. He also moved for an

evidentiary hearing to support this motion. The District Court

denied both motions without issuing an opinion. Then, in 2017,

the District Court ordered the forfeiture of a gold ring in partial

satisfaction of the previously ordered money judgment forfeiture.

In the consolidated appeals that are now before us, Ponzo

challenges all three of these orders by the District Court. None

of his challenges have merit. We thus affirm.1

1
With respect to Ponzo's appeal from the District Court's
denial of his motion for an evidentiary hearing on his motion for
a new trial, we affirm the denial of that motion without further

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 I.

Under Rule 33, a defendant who has been convicted of a

federal offense may move for a new trial within three years on the

basis of newly discovered evidence. Fed. R. Crim. P. 33(b)(1).

To succeed on such a motion, the defendant must show (1) that "the

evidence was unknown or unavailable to the defendant at the time

of trial;" (2) that the defendant's "failure to learn of the

evidence was not due to lack of diligence by the defendant;" (3)

that "the evidence is material, and not merely cumulative or

impeaching;" and (4) that the evidence "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)).

If the newly discovered evidence involves impeachment

evidence withheld in violation of Giglio v. United States, 405

U.S. 150 (1972), then "a 'more defendant-friendly' standard

applies to the prejudice inquiry encompassed by the third and

fourth prongs." United States v. Calderón, 829 F.3d 84, 90 (1st

Cir. 2016) (quoting Flores-Rivera, 787 F.3d at 15). In such a

case, a defendant "must establish only a 'reasonable probability'

of a different outcome if the government had disclosed the evidence

prior to trial." Id. (quoting Flores-Rivera, 787 F.3d at 15-16).

discussion, as Ponzo's brief to us does not address it. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

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 With respect to a preserved challenge to the denial of

such a motion, our review is for "manifest abuse of discretion."

Id. (quoting United States v. Alverio–Meléndez, 640 F.3d 412, 423

(1st Cir. 2011)). We review unpreserved challenges only for plain

error. United States v. Scott, 877 F.3d 30, 37 (1st Cir. 2017).

A.

Ponzo first contends that he is entitled to a new trial

on the basis of a report by the Federal Bureau of Investigation

("FBI") that he contends was not disclosed by the government. He

claims the report indicates that the FBI had filmed a search

conducted of the curtilage of a cabin in Idaho in which Ponzo had

been living under an alias for several years prior to his arrest

there.

We laid out in some detail the set of events that led to

and included Ponzo's indictment, flight from Massachusetts to

Idaho, arrest in Idaho, and eventual conviction and sentencing in

our prior opinion. See Ponzo, 853 F.3d at 565-72. We see no need

to repeat those facts here. Suffice it to say, in Ponzo's view,

his discovery of the FBI report supports his Rule 33 motion for

the following reasons.

On February 7, 2011, members of a fugitive task force

run by the United States Marshals service (the "Task Force")

arrested Ponzo outside the Idaho cabin and proceeded to conduct a

warrantless search of the cabin's curtilage. An application for

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a subsequent search warrant claimed that, during the search of the

cabin's curtilage, the members of the Task Force looked through

the cabin's window and saw what appeared to be a rifle. And that

warrant in turn led to the discovery of evidence that was used

against him at trial.2

Ponzo claims that the film referenced in the FBI report

exists and would show that the curtains on the window were closed

at the time of the search. He thus contends that the film would

reveal that the Task Force members could not have seen the rifle.

Thus, Ponzo claims, he is entitled, on the basis of the FBI report,

to a new trial under Rule 33 due to the prejudice traceable to its

non-disclosure, given that he contends that the film would have

permitted him successfully to have moved to suppress critical

evidence supporting the government's case against Ponzo.

Even if we assume that we must use the prejudice standard

that applies for Giglio material, we still must conclude that the

District Court did not abuse its discretion in rejecting this

ground for granting Ponzo's Rule 33 motion for a new trial. In

addition to vigorously disputing Ponzo's assertion that the film

even exists,3 the government contends that Ponzo has not offered

2 Ponzo contends that this was, in fact, an "air rifle," but
this factual dispute is irrelevant to this appeal.
3 The government claims that the report that Ponzo cites is
mistaken and notes that the FBI agent who prepared that report has

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anything other than unfounded speculation to support his

contention that any such film -- if it did, in fact, exist -- would

show that the rifle at issue could not have been seen through the

window during the search. And, the government's characterization

of the basis for Ponzo's contention that the alleged film would

aid his cause -- namely, that his contention in is founded on

nothing more than his own unsubstantiated speculation -- is

entirely fair. After all, Ponzo points to nothing in the record

to support his claims about what the film -- insofar as there even

is a film -- would show. Accordingly, we cannot conclude that the

District Court manifestly abused its discretion in rejecting

Ponzo's claim that this report provides a basis for granting his

Rule 33 motion. See United States v. Natanel, 938 F.2d 302, 314

(1st Cir. 1991) (denying a motion for a new trial on the basis of

the "record as a whole, not on the basis of wishful thinking, rank

conjecture, or unsupportable surmise").

B.

Ponzo separately contends that a second FBI report,

which he also contends was not provided to him during discovery,

entitles him to a new trial, also pursuant to Rule 33. Ponzo

claims that this second report shows that FBI agents had "actual

knowledge that on the day of his arrest, Ponzo's children were

since sworn in an affidavit that that the report was incorrect and
that no such film was ever made.

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with their mother in Utah" and not at the cabin in Idaho that was

searched. And, Ponzo contends, the FBI report therefore supports

his Rule 33 motion in the following way.

Ponzo reasons that, if he had been aware of this aspect

of the report, then he would have been able to make the case that

the initial, warrantless search of the curtilage of the cabin in

Idaho amounted to an unlawful ruse. Specifically, he contends

that law enforcement falsely represented to the magistrate that

they undertook the warrantless search in order "to make sure that

the children were not left alone." Because the fruits of that

warrantless search were used to obtain the subsequent search

warrant, Ponzo argues that the report would have permitted him to

successfully move to suppress the evidence that the government

acquired during the search conducted pursuant to that warrant.

In opposing Ponzo's Rule 33 motion, however, the

government argued to the District Court that, even if the initial

warrantless search was unlawful, its fruits were unnecessary to

show probable cause for the subsequent search warrant.

Accordingly, the government contended, the fruits of the search

based on that warrant were admissible under the independent source

rule and thus Ponzo's claim of prejudice based on the report's

non-disclosure is baseless.

At that time, Ponzo's appeal of his convictions to our

Court was still pending. But, in rejecting Ponzo's appeal, we

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reached that same conclusion about the admissibility of the fruits

of that search under the independent source rule that the

government asked the District Court to reach in arguing that

Ponzo's Rule 33 motion should be denied. Ponzo, 853 F.3d. at 573.

Thus, Ponzo is not free to contend otherwise now. See United

States v. Medina-Villegas, 700 F.3d 580, 585 (1st Cir. 2012) ("The

law of the case doctrine bars a party from resurrecting issues

that either were, or could have been, decided on an earlier

appeal." (quotation marks and citation omitted)). Accordingly,

Ponzo's contention that the second FBI report might call into

question the legality of the initial, warrantless search fails to

demonstrate that it was a "manifest abuse of discretion" for the

District Court to deny Ponzo's Rule 33 motion. United States v.

Josleyn, 206 F.3d 144, 151 (1st Cir. 2000).

Ponzo separately argues that this second FBI report

shows that the FBI agents made false statements about the

whereabouts of Ponzo's children in an affidavit supporting the

application for the first warrant to search Ponzo's house. And,

Ponzo contends, "[h]ad this information been properly disclosed,

the outcome of the District Court's ruling on the Motion to

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Suppress [evidence from the search conducted pursuant to that

warrant]" would have been different.4

But, Ponzo did not argue to the District Court, in

support of his Rule 33 motion, that the motion to suppress the

fruits of that search would have been granted if he could have

shown -- based on this second FBI report -- that the warrant was

issued based on false statements to the District Court about the

children's location at the relevant time. Thus, our review is

only for plain error. See Scott, 877 F.3d at 37. And, as Ponzo

fails to argue that he can meet that demanding standard, we cannot

conclude that the District Court plainly erred in denying Ponzo's

motion for a new trial on the basis of the prejudice that he

contends may be traced to the non-disclosure of this second FBI

report. Calderón, 829 F.3d at 90.5

4 Ponzo does note that he was denied an evidentiary hearing
on his motion to suppress and suggests, without citing any
authority, that the newly discovered evidence would entitle him to
such a hearing. But, he does not explain how the denial of an
evidentiary hearing on his motion to suppress suffices to show the
prejudice that he must demonstrate under Rule 33, and no such
argument occurs to us on this record.
5 In any event, we note that, as the government points out,
the report states, in relevant part, that Cara Pace, the children's
mother and Ponzo's then-common law wife, "left Ponzo with their
two children." The report thus does not make clear whether she
brought the children with her when she left or whether she instead
left them behind with Ponzo.

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 C.

We now turn to Ponzo's final ground for challenging the

District Court's denial of his Rule 33 motion. This challenge

rests on Ponzo's allegations concerning reward money that the FBI

paid to two confidential witnesses in connection with information

that led to his arrest. In particular, Ponzo contends, he

discovered post-trial that this reward money went both to Cara

Pace and to her father. Ponzo thus claims that the government, by

withholding this information, prejudiced his ability to cross-

examine Cara Pace at trial, both about whether she did, in fact,

receive any of the reward money and about whether she was biased

in favor of the government because of the reward.

Even if we apply the more defendant-friendly Giglio-

based prejudice standard, Ponzo's challenge still fails. Flores-

Rivera, 787 F.3d at 15. In asserting without any substantiation

that Cara Pace did receive the reward along with her father (an

assertion that the government disputes), Ponzo merely states that,

if he had possessed the alleged evidence showing that Cara Pace

had received that money, then he would have been well-positioned

to impeach her testimony against him at trial. But, Ponzo does

not explain how such impeachment would in and of itself show a

reasonable probability of a different outcome at trial. And,

notably, Ponzo did not file a reply brief, even though the

government explains at some length in its responsive brief that

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Cara Pace's testimony was only relevant to "two money laundering

counts, unlawful flight to avoid prosecution, and witness

tampering" and that her testimony was not necessary to sustain a

conviction on any of these counts, given the other evidence that

was in the record. Thus, we reject Ponzo's contention that the

District Court's denial of his Rule 33 motion is a manifest abuse

of discretion. Calderón, 829 F.3d at 90.

II.

We turn, finally, to Ponzo's appeal of the District

Court's November 8, 2017 order requiring forfeiture of a gold ring

as partial satisfaction of the money judgment forfeiture that had

been previously ordered. Ponzo challenges this ruling on the basis

of United States v. Cunan, 156 F.3d 110, 114 (1st Cir. 1998), as

he argues that the doctrine of res judicata precludes the District

Court's ruling. Because this is a challenge to a legal conclusion,

our review is de novo. United States v. George, 886 F.3d 31, 39

(1st Cir. 2018).

Ponzo bases his res judicata argument on the fact the

ring had previously been subject to a civil forfeiture action in

the District of Idaho and that this action was dismissed on March

14, 2017. Ponzo contends, based on Cunan, that a criminal

forfeiture action is an identical proceeding for purposes of res

judicata and thus that the dismissal of the civil forfeiture action

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in the District of Idaho is preclusive of the order of forfeiture

of the gold ring in the criminal forfeiture action.

The government rightly responds, however, that the rule

in Cunan does not apply here because the dismissal by the District

Court in Idaho was without prejudice and a dismissal without

prejudice does not carry preclusive effect. Cunan, 156 F.3d at

120 ("[R]es judicata bars a criminal forfeiture following

dismissal with prejudice of a prior civil forfeiture proceeding

involving the same property."); see García-Goyco v. Law Envtl.

Consultants, Inc., 428 F.3d 14, 19 (1st Cir. 2005) (recognizing

that dismissal without prejudice does not have a preclusive

effect). The order from the District Court of Idaho that dismissed

the civil forfeiture action granted the government's motion for

voluntary dismissal. And, Rule 41(a)(2) makes clear that a

voluntary dismissal is "without prejudice" unless "state[d]

otherwise." Fed. R. Civ. P. 41(a)(2).

Ponzo nevertheless contends that the dismissal was with

prejudice because the order of dismissal stated that "[the gold

ring] be returned to Ponzo[.]" United States v. Real Prop. Located

at 6107 Hogg Rd., Marsing, Owyhee Cty., Idaho, No. 1:11-cv-00300-

CWD, slip op. at 10 (D. Idaho Mar. 14, 2017). But, read in context,

the language by the district court in Idaho that Ponzo seizes upon

clearly does not constitute a statement that the dismissal is with

prejudice. In moving for a voluntary dismissal pursuant to Rule

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41(a)(2), the government expressly requested the dismissal of the

civil forfeiture action with respect to the gold ring and other

personal property in order "to allow [it] to be available for

satisfaction of prior pending legal obligations related to the

criminal judgment of the . . . District of Massachusetts." Motion

for Voluntary Dismissal at 1, United States v. Real Prop. Located

at 6107 Hogg Rd., Marsing, Owyhee Cty., Idaho, No. 1:11-cv-00300-

CWD (D. Idaho Nov. 10, 2016). The ruling by the district court in

Idaho granting that motion then expressly stated that the civil

forfeiture action was being dismissed "to allow [the gold ring] to

be applied to satisfaction of prior pending legal obligations of

Ponzo in the Boston criminal judgment . . . ." Real Prop. Located

at 6107 Hogg Rd., slip op. at 18. Accordingly, we reject Ponzo's

challenge to the order of forfeiture of the gold ring.

III.

For the foregoing reasons, the judgment below is

affirmed.

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