United States v. Laureano-Salgado

United States Court of Appeals
For the First Circuit

Nos. 17-1052
17-1053

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ LAUREANO-SALGADO, a/k/a Geo;
PEDRO L. RAMÍREZ-RIVERA, a/k/a Peter Pai,

Defendants, Appellants.

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

[Hon. William E. Smith, U.S. District Judge]

Before

Howard, Chief Judge,
Thompson and Barron, Circuit Judges.

Carlos M. Sánchez La Costa for appellant José Laureano-
Salgado.
Irma R. Valldejuli for appellant Pedro L. Ramírez-Rivera.
Victor O. Acevedo-Hernández, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, and Francisco A. Besosa-
Martínez, Assistant United States Attorney, were on brief, for
appellee.

August 2, 2019
 THOMPSON, Circuit Judge.

Overview

The government charged "La ONU" gangbangers José

Laureano-Salgado and Pedro Ramírez-Rivera (sometimes collectively

called "appellants") with helping murder a "La Rompe ONU"

gangbanger nicknamed "Pekeke" (real name Christian Toledo-

Sánchez), among other crimes1 — thus violating the Violent Crimes

in Aid of Racketeering ("VICAR") statute, see 18 U.S.C.

§ 1959(a)(1), as well as a statute banning the use or carry of a

firearm in relation to a crime of violence, see 18 U.S.C.

§ 924(c)(1)(A).2 Killing La Rompe members, the government alleged

and proved, was central to La ONU's mission. And vice versa.

A jury ultimately convicted Laureano-Salgado and

Ramírez-Rivera of these and other gang-related crimes. And we

affirmed. See Ramírez-Rivera, 800 F.3d at 12. Laureano-Salgado

and Ramírez-Rivera later moved the district judge for a new trial

1 A gangbanger (at the risk of appearing pedantic) is "a
member of a violent group of young men, especially ones who use
guns and commit crimes." See Cambridge Dictionary,
https://dictionary.cambridge.org/us/dictionary/english/gangbanger (last
visited August 1, 2019).
2 We mention these convictions because those are the ones
germane to today's case. Readers seeking more details about their
other convictions can find them in United States v. Ramírez-Rivera,
800 F.3d 1 (1st Cir. 2015), which also provides some background on
the two rival gangs. And like we did there, going forward we will
refer to La Rompe ONU as "La Rompe."
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premised on allegations of newly-discovered evidence that

supposedly showed Pekeke died at the hands of La Rompe, not La

ONU.3 The judge denied the motion, however. Unhappy with this

ruling, Laureano-Salgado and Ramírez-Rivera ask us to reverse.4

Unpersuaded by their arguments (discussed in a bit), we affirm.

Testimony at Appellants' Trial
About Pekeke's Murder

Among the witnesses called at appellants' trial were

three cooperating coconspirators: ex-La ONU members Wesley

Figueroa-Cancel, José Gutiérrez-Santana, and Christian Figueroa-

Viera. Pieced together, their testimony presented the following

picture of the events leading to Pekeke's death.5

Figueroa-Cancel, Gutiérrez-Santana, and Laureano-

Salgado attended a meeting in August 2010 where La ONU bosses

planned Pekeke's murder. Their plot contemplated that a man named

"Joshua" would do the deed (Joshua was a non-La ONU member whose

grandmother lived right next door to Pekeke). La ONU members —

including Ramírez-Rivera (who participated by speakerphone during

3
Laureano-Salgado filed for a new trial first. Ramírez-
Rivera then filed a motion joining and adopting Laureano-Salgado's
motion and arguments — a motion the judge granted. But because
they raised the same basic claims, we follow the government's lead
and treat the two filings as a single new-trial motion.
4
They filed separate appeals. But we consolidated them for
purposes of oral argument only (they submitted separate briefs).
5
The record reflects various spellings of Pekeke. For
simplicity's sake, we use the one used in the parties' briefs.
- 4 -
the meeting) — promised to pay Joshua for his service. Following

the orders of their La ONU superiors to a T, Gutiérrez-Santana

gave Joshua a gun and Laureano-Salgado gave Joshua a car. La ONU

leaders also promised to send a rescue team to get Joshua out of

the housing project after he offed Pekeke, just in case Pekeke's

La Rompe allies fought back.

Joshua killed Pekeke the next day (Joshua called

Figueroa-Cancel on a cellphone during the killing so Figueroa-

Cancel could hear Pekeke die) — with Laureano-Salgado, Ramírez-

Rivera, Gutiérrez-Santana, and at least two other La ONU members

serving on the rescue squad. At a meeting held right after the

shooting, La ONU associates — including Laureano-Salgado and

Ramírez-Rivera — told Figueroa-Viera what had happened.

Appellants' Motion for New Trial
And the Judge's Ruling

Fast-forward to after we affirmed Laureano-Salgado's and

Ramírez-Rivera's convictions and sentences. Defense counsel wrote

the government, saying that he had heard that ex-La Rompe members

Luis Yanyoré-Pizarro and Oscar Calviño-Acevedo testified in

proceedings against La Rompe associates that La Rompe had killed

Pekeke as part of a power struggle within La Rompe. Convinced

that this testimony undercut the theory pushed by prosecutors in

Laureano-Salgado and Ramírez-Rivera's case — i.e., that La ONU had

murdered La Rompe-leader Pekeke as part of the La ONU racketeering
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conspiracy — counsel asked the government to turn over materials

"regarding" Yanyoré-Pizarro's and Calviño-Acevedo's allegations.

Despite disputing any notion that these allegations exculpated the

defendants, the government gave counsel a package containing the

documents in its possession.

Laureano-Salgado and Ramírez-Rivera then asked the judge

for a new trial, claiming that the produced materials constituted

newly-discovered evidence showing La Rompe had murdered Pekeke,

not La ONU. And their court filings walked the judge through the

relevant statements: Yanyoré-Pizarro's grand-jury testimony in

May 2015, his interviews with agents from the Bureau of Alcohol,

Tobacco, Firearms, and Explosives (usually referred to as "ATF")

in January 2016, and his trial testimony in October 2016; plus

Calviño-Acevedo's trial testimony in December 2015 — all given in

a case against La Rompe members.6

We just hit the highlights, offering only what is needed

to help put some of the arguments (discussed later) into

perspective.

6"Trials," of course, "are about charges in the indictment."
United States v. Miller, 91 F.3d 1160, 1163 (8th Cir. 1996)
(Richard S. Arnold, C.J.). And the indictment in the La Rompe
case did not charge any La Rompe members with the VICAR murder of
Pekeke.
- 6 -
 During questioning about La Rompe's inner workings

before the grand jury, Yanyoré-Pizarro recounted his relationship

with La Rompe members "Trenza" and "Papito Mojica." "They were my

leaders when they killed [Pekeke]," Yanyoré-Pizarro said. Pekeke

"was our leader, so they kept the — so they took over." Yanyoré-

Pizarro added that, although they remained with La Rompe, Pekeke's

death triggered an internal war for power. "What happened," he

said, "was when my leader, [Pekeke], was killed, there were people

involved from . . . La Rompe . . . itself because of this very

same — for power," and "they ended up dividing up" Pekeke's drug

points. After Pekeke's death, Trenza, according to Yanyoré-

Pizarro, became "in charge of around fourteen drug points, which

is what [Pekeke] left."

In the interview with the ATF, Yanyoré-Pizarro mentioned

some tension between La Rompe leaders in the months before Pekeke's

death. For example, Yanyoré-Pizarro discussed how some La Rompe

bosses at the La Rompe-controlled housing project in Alturas de

Cupey had asked Pekeke "for help" with their drug business (because

he had ties to marijuana traffickers on the mainland, apparently).

But Pekeke had refused their request. Yanyoré-Pizarro also

mentioned a conversation he had had with a La Rompe member named

"Endrick." Endrick said that he told a La Rompe member named

"Frank" that Pekeke was the "boss" — a statement that caused Frank

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to slap Endrick's face. Pekeke later told Yanyoré-Pizarro that he

told Frank to apologize to Endrick because Endrick was right about

who the "boss" was. But Frank just looked at him and left.

More, Yanyoré-Pizarro disclosed to ATF agents that

Joshua was from the Luis Llorén Torres housing project and that

Pekeke had supplied "the vehicles and the firearms" used to kill

"Shaka," a drug-point leader there. Joshua "used to hang out with

Endrick," though Endrick swore Joshua "was not part of the rival

gang."

More still, Yanyoré-Pizarro admitted that although he

was not there when Pekeke died, he later spoke to someone named

"Pipen" who was. And Pipen fingered Joshua — who lived with his

[Joshua's] grandmother in the same housing project as Pekeke — as

the killer. Pipen also said that when Pekeke's cousin wanted a

piece of the profits from Pekeke's old drug points, Pipen warned

him "to stop talking in a threatening manner" or else "something

could happen to him like what happened to [Pekeke]."

Called by the government at a La Rompe trial, Yanyoré-

Pizarro testified (in response to questions from the prosecution

about how he got involved with La Rompe) that when Pekeke moved to

the Los Lirios housing project and became "the head honcho," he

(Yanyoré-Pizarro) started running Pekeke's drug points, committing

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robberies, and killing people.7 But when Pekeke "was killed,"

Yanyoré-Pizarro fled from Los Lirios because Pekeke's men thought

Yanyoré-Pizarro had flipped and had helped kill Pekeke. Asked to

discuss his killing people for La Rompe, Yanyoré-Pizarro said "that

we were at war with an opposing group, and we also had internal

wars."

Testifying as a government witness at a different La

Rompe trial, Calviño-Acevedo noted (in response to questions from

the prosecution about why he stopped going to a particular drug

point) that "there was internal friction between us" La Rompe

members.8 Questioned about "what that internal war consisted of,"

Calviño-Acevedo explained that "the internal war was that there

were rumors" that La Rompe members had murdered Pekeke.

Laureano-Salgado and Ramírez-Rivera's new-trial filings

argued that these pieces of "recently disclosed evidence" show

that La Rompe — and not La ONU — had murdered Pekeke to further

the personal interests of La Rompe members, which they said

"undermines confidence in the [j]ury VICAR verdict in this case."

7 This La Rompe trial involved these defendants: Rubén Cotto-
Andio, José D. Resto-Figueroa, and Carlos Velázquez-Fontánez.
8 This La Rompe trial involved these defendants: Pedro Vigió
Aponte, Reinaldo Rodríguez Martínez, Víctor M. Rodríguez Torres,
Tarsis Guillermo Sánchez Mora, and Carlos M. Guerrero Castro.
- 9 -
 Opposing the motion, the government protested that

Laureano-Salgado and Ramírez-Rivera could not show that these

statements would probably lead to an acquittal at a retrial because

the evidence did not come from witnesses with firsthand knowledge

of "the planning and execution" of Pekeke's murder.

Applying an actual-probability-of-acquittal standard,9

the judge denied the motion for three alternative reasons: first

that the statements "would likely not outweigh the eye-witness

testimony" given at Laureano-Salgado and Ramírez-Rivera's

"original trial by three of [their] fellow La ONU members"; second

that the statements had very "limited probative" worth because

they were "too unclear (and seemingly inconsistent)," which

undercut Yanyoré-Pizarro's "credibility" as well; and third that

even if the statements "could be construed as providing a

convincing and consistent narrative . . . of Pekeke's murder,"

they would probably not be admissible at a retrial because they

were not made on personal knowledge and violated the rule against

hearsay. The judge did specifically note that Yanyoré-Pizarro

"would be permitted to testify regarding certain internal

conflicts within La Rompe . . . of which he has personal knowledge,

9
Which is the standard applied to "most" new-trial motions
bottomed on newly-discovered evidence (more on this later). United
States v. Maldonado-Rivera, 489 F.3d 60, 66 (1st Cir. 2007).

- 10 -
including some that involved Pekeke." But according to the judge,

"this, without more, is insufficient to justify" granting the new-

trial motion.

Principal Appellate Arguments

That brings us to today, with Laureano-Salgado and

Ramírez-Rivera mounting a multifaceted challenge to the judge's

new-trial ruling. Their lead claim is that the government's

nondisclosure of these statements, which it had in its hands while

their case was on appeal here, violated the guarantees set out in

Brady v. Maryland, 373 U.S. 83 (1963), and its offspring —

guarantees that require prosecutors to reveal material,

exculpatory and impeaching evidence, see Maldonado-Rivera, 489

F.3d at 66-67 (discussing the Brady line of cases). Consistent

with this Brady-based theory, they then argue that they need only

show that the statements undermine confidence in the original

verdict, not that the statements would probably lead to a different

outcome at retrial. And they insist that they can meet the

undermine-confidence standard because the statements counter the

government's theory that La ONU iced Pekeke, at least as they see

it.10

10 We can make quick work of two of their other arguments:
One argument blasts the judge for denying their new-trial
motion without an evidentiary hearing. "[E]videntiary hearings on
new trial motions in criminal cases are the exception rather than
- 11 -
 As a fallback, Laureano-Salgado alone argues that he can

satisfy "the more onerous" actual-probability-of-acquittal

standard because of the statement's exculpatory value.11 And by

the rule." United States v. Peake, 874 F.3d 65, 72 (1st Cir. 2017)
(quoting United States v. Connolly, 504 F.3d 206, 220 (1st Cir.
2007)). Yet — as the government notes, without correction —
Laureano-Salgado and Ramírez-Rivera never asked the judge for an
evidentiary hearing, which "ordinarily spells defeat for a
contention that one should have been held." See United States v.
Cyr, 337 F.3d 96, 101 n.5 (1st Cir. 2003) (quoting United States
v. Tardiff, 969 F.2d 1283, 1286 (1st Cir. 1992)). And they make
no developed argument for why the ordinary rule should not apply
here.
The other argument accuses prosecutors of misconduct by
presenting perjured testimony at their trial — the theory being
that Yanyoré-Pizarro's and Calviño-Acevedo's statements show that
Figueroa-Cancel, Gutiérrez-Santana, and Figueroa-Viera lied when
they blamed La ONU — and La ONU members Laureano-Salgado and
Ramírez-Rivera — for Pekeke's murder. But this argument is twice
waived: first because Laureano-Salgado and Ramírez-Rivera did not
present it below, see McCoy v. Mass. Inst. of Tech., 950 F.2d 13,
22 (1st Cir. 1991) (explaining the baseline rule "that theories
not raised squarely in the district court cannot be surfaced for
the first time on appeal"); and second because, while they toss
around words like "perjury" and "misconduct" here, they "provide[]
neither the necessary caselaw nor reasoned analysis to show that
[they are] right about any of this," see Rodríguez v. Municipality
of San Juan, 659 F.3d 168, 175 (1st Cir. 2011) (adding that
"[j]udges are not mind-readers, so parties must spell out their
issues clearly, highlighting the relevant facts and analyzing on-
point authority"); United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990) (stressing that "[i]t is not enough merely to mention
a possible argument in the most skeletal way, leaving the court to
do counsel's work").
11 Ramírez-Rivera's brief mentions the "more stringent test"
too, but only in passing: not only does he fail to list the test's
elements, he — as the government notes, without contradiction —
makes zero attempt to apply that standard to his situation. True,
he did move below to adopt Laureano-Salgado's arguments. But he
did nothing here to adopt Laureano-Salgado's opening-brief
- 12 -
Laureano-Salgado's reckoning, Yanyoré-Pizarro's statements are

"very favorable to [his] defense," given how they detail

"confrontations and problems Pekeke had with other La Rompe . . .

leaders" — thus indicating "a motive for his killing." Taking aim

at the judge's credibility finding, Laureano-Salgado also claims

that no law-enforcement personnel testified that Yanyoré-Pizarro's

statements were "false" or "contradicted by other evidence." He

then says that the judge stumbled by deeming Yanyoré-Pizarro's

statements inadmissible — in his telling these "statement[s] are

fully admissible" under the following theories: "as rebuttal

evidence"; "as a constitutional matter," since "an accused has a

arguments. See, e.g., Ramírez-Rivera, 800 F.3d at 11 n.1
(discussing how appellants prosecuting consolidated appeals may
adopt each other's arguments).
True too, Ramírez-Rivera moved here for leave to adopt the
arguments presented in Laureano-Salgado's reply brief (in lieu of
filing his own reply brief). And Laureano-Salgado's reply rehashed
arguments he made in his initial brief — i.e., that he can satisfy
both the Brady-new-trial standard and the ordinary-new-trial
standard. Taking up Ramírez-Rivera's motion, we wrote that "leave
of court is not required for adoption" but warned that he ran the
risk that we might find Laureano-Salgado's reply-brief arguments
"not transferable or waived." Regrettably for Ramírez-Rivera, he
gets no help from Laureano-Salgado's reply brief, and for a simple
reason: Ramírez-Rivera did not adequately develop in his opening
brief any argument tied to the ordinary-new-trial standard, and he
cannot use a reply brief to cure that deficiency. See generally
Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir. 1990)
(holding that arguments not made in an opening brief but only in
a reply brief are waived).

- 13 -
constitutional right to present a complete defense to all charges"

laid "against him or her"; and "as statements against interest,"

since the "statements implicated" Yanyoré-Pizarro in Pekeke's

murder. Leaving no stone unturned, Laureano-Salgado adds that the

judge's inadmissibility ruling conflicts with the judge's later

decision to let Yanyoré-Pizarro testify at the retrial of a La ONU

codefendant named Ismael Cruz-Ramos — a decision that provides

"the best argument" for why the "statements are fully admissible,"

at least in Laureano-Salgado's mind.12 Ever-persistent, Laureano-

Salgado argues as well that Calviño-Acevedo's testimony

12 The retrial occurred a few months after denying Laureano-
Salgado and Ramírez-Rivera's new-trial motion. Here is what we
know about what went down (unfortunately, we do not have the
compete transcripts). After a few days of trial, Cruz-Ramos's
lawyer told the government that he had one defense witness,
Yanyoré-Pizarro. On the next trial day (with the judge's
permission), Cruz-Ramos's lawyer later made an extended offer of
proof — via a voir-dire examination of Yanyoré-Pizarro (outside
the jury's presence) — concerning the admissibility of Yanyoré-
Pizarro's testimony. During that process, Yanyoré-Pizarro
admitted that he was not present when Pekeke got killed. But he
claimed that he heard from a fellow La Rompe member that Joshua
had "pulled the trigger." He then explained that La Rompe must
have had something to do with the murder, given the beef between
Pekeke and Frank. But he also stressed that Frank worked with La
ONU to kill Pekeke, saying (italics ours) that "it was La ONU who
went in and did the job." Ultimately, the judge thought Yanyoré-
Pizarro's testimony might fit within the coconspirator exception
to the hearsay rule. "So," the judge said, "I'm not sure the
opinion is actually impermissible, if he lays a foundation for it"
(notice how the ruling is stated in the conditional) — though,
Cruz-Ramos chose not to call Yanyoré-Pizarro as a witness (there's
no suggestion that the government called Yanyoré-Pizarro to the
stand).
- 14 -
"corroborate[s]" Yanyoré-Pizarro's narrative (that's the extent of

what he has to say about Calviño-Acevedo, however). Putting it

all together, he contends that the newly-discovered evidence would

probably lead to an acquittal on the VICAR-related counts if there

were a new trial.

Defending the judge's ruling to the hilt, the government

argues that the actual-probability-of-acquittal standard governs

because the "new evidence" arose post-conviction. And in its view,

the judge hardly erred in finding that standard not met here,

because Yanyoré-Pizarro and Calviño-Acevedo had no personal

knowledge of who killed Pekeke, but channeled hearsay instead;

also because the statements were too speculative since Yanyoré-

Pizarro accused many persons of possibly being behind Pekeke's

murder; and finally because the statements corroborated key facts

presented by prosecutors at trial (e.g., that Joshua shot Pekeke).

Our Take13

Dueling Legal Standards

To get a new trial based on newly-discovered evidence,

a defendant ordinarily must show that the evidence (1) was either

13 A defendant must file a new-trial motion based on newly-
discovered evidence within three years of the verdict or finding
of guilt. See Fed. R. Crim. P. 33(b)(1). Laureano-Salgado and
Ramírez-Rivera filed their motion outside that time restriction.
But the government did not raise a timeliness objection below.
And it expressly chose not to press one in its appellate briefing.
So we say no more about that subject. See United States v. Del-
- 15 -
unknown or unavailable to him during the trial; (2) could not have

been uncovered sooner with diligence; (3) is material, not just

cumulative or impeaching; and (4) is sufficiently compelling that

it would probably produce an acquittal at a retrial — a hefty

burden, to be sure. See, e.g., Peake, 874 F.3d at 69; United

States v. Flores-Rivera, 787 F.3d 1, 15 (1st Cir. 2015); Del-

Valle, 566 F.3d at 38; Maldonado-Rivera, 489 F.3d at 65-66. We

hedge with "ordinarily" because if the defendant bases his new-

trial motion on an alleged Brady violation, a more defendant-

friendly standard takes center stage: he must still satisfy the

first and second elements (unavailability and due diligence), but

caselaw replaces the third and fourth elements (materiality and

prejudice) with a

unitary requirement that the defendant need demonstrate
only a reasonable probability that, had the evidence
been disclosed to the defense in a timely manner, the
result of the proceeding would have been different.

Peake, 874 F.3d at 69 (emphasis added and quotation marks omitted).

So rather than having to show "'actual probability that the result

Valle, 566 F.3d 31, 38 (1st Cir. 2009) (suggesting that the Rule
33(b)(1) time-bar "is non-jurisdictional and may be forfeited"
(citing Eberhart v. United States, 546 U.S. 12, 19 (2005) (per
curiam))); see generally United States v. Alverio-Meléndez, 640
F.3d 412, 423 n.6 (1st Cir. 2011) (noting that because we could
resolve the defendant's new-trial argument "on the merits and in
favor of the government," we had no need to decide whether his
new-trial "motion was untimely").
- 16 -
would have differed,'" a defendant need show only "something

sufficient to 'undermine[] confidence'" in the jury's verdict.

See United States v. Mathur, 624 F.3d 498, 504 (1st Cir. 2010)

(emphasis and alteration in original) (quoting Kyles v. Whitley,

514 U.S. 419, 434 (1995)); accord Flores-Rivera, 787 F.3d at 15-

16; see also United States v. Sepulveda, 15 F.3d 1216, 1220 (1st

Cir. 1993) (explaining that the "'undermine confidence' formula

suggests that reversal might be warranted in some cases even if

there is less than an even chance that the evidence would produce

an acquittal").

Under either scenario, we will reverse a judge's new-

trial denial only for an abuse of discretion. See, e.g., Connolly,

504 F.3d at 211-12. And we will find an abuse of discretion only

when no reasonable person could agree with the judge's decision.

See, e.g., United States v. Jones, 748 F.3d 64, 69 (1st Cir. 2014).

This is as it should be. After all, the judge had a box-seat view

of the trial, making him intimately familiar with the case's

nuances — which justifies our giving his opinion on "the likely

impact of newly disclosed evidence . . . considerable deference."

See Mathur, 624 F.3d at 504 (emphasis added). We also keep in

mind that the new-trial remedy "must be used sparingly, and only

where a miscarriage of justice would otherwise result." United

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

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 We shift now from the general to the specific.

Governing Legal Standard

Laureano-Salgado and Ramírez-Rivera contend that a Brady

violation occurred because the government acquired the "new

evidence" while their case was here on appeal yet failed to

disclose that evidence at that time.14 Ergo, they say, the judge

should have applied the more lenient Brady-based standard in

analyzing their new-trial motion. But they cite no controlling

case holding that Brady obligations apply to evidence the

government acquired post-verdict. That is probably because

binding precedent holds that where, as here, the record contains

no indication that the government knew about these statements "at

any time prior to or during [their] trial," Brady does not operate

and so the more arduous ordinary new-trial standard controls. See

Maldonado-Rivera, 489 F.3d at 67; see generally Dist. Attorney's

Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 67-

69 (2009) ["Osborne"] (noting that Brady requires disclosure only

14
No one disputes that the government learned about the
statements spotlighted in appellants' new-trial motion after the
verdict in their case: Laureano-Salgado and Ramírez-Rivera's
trial ended in February 2013; Yanyoré-Pizarro's grand-jury
testimony occurred in May 2015, his ATF interviews went down in
January 2016, and his trial testimony happened in October 2016;
and Calviño-Acevedo's trial testimony happened in December 2015.
And because the Ramírez-Rivera decision came down in August 2015,
only Yanyoré-Pizarro's May 2015 grand-jury testimony fits into
their discovered-while-the-case-is-on-direct-appeal category.
- 18 -
of exculpatory and impeaching info that existed at the time of the

original trial, emphasizing that "Brady is the wrong framework"

for evaluating the government's post-trial disclosure

obligations); accord Tevlin v. Spencer, 621 F.3d 59, 69-70 (1st

Cir. 2010); see generally Skinner v. Switzer, 562 U.S. 521, 536

(2011) (commenting that "Brady announced a constitutional

requirement addressed first and foremost to the prosecution's

conduct pretrial").

Tellingly, neither Laureano-Salgado nor Ramírez-Rivera

attempts to distinguish Maldonado-Rivera. Ramírez-Rivera tries to

distinguish Osborne and Tevlin as situations involving habeas

proceedings, while his involves a direct appeal — to quote his

brief: "A direct appeal is not a postconviction proceeding," the

implication being that neither Osborne nor Tevlin controls his

case. And Laureano-Salgado tries to distinguish Tevlin on that

basis too (his brief says nothing about Osborne). But they offer

no persuasive reasoning or authority to support their habeas-is-

not-a-postconviction contention. Maybe a good argument exists

that might help them. But because their suggestion is not

sufficiently developed to permit us to pass on it intelligently,

we consider it waived and leave its resolution for another day.

See, e.g., Patton v. Johnson, 915 F.3d 827, 838 (1st Cir. 2019).

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 Perhaps hoping to scare us into action, Laureano-Salgado

contends that the government believes that prosecutors do not have

"even an ethical" duty "to reveal material information known to

[them] after a guilty verdict, but before the appeal is concluded,

because the evidence was not in existence at the time of trial."

The government says no such thing, however. Actually, the

government candidly acknowledges that "after a conviction the

prosecutor . . . is bound by the ethics of his office to inform

the appropriate authority of after-acquired or other information

that casts doubt upon the correctness of the conviction." Imbler

v. Pachtman, 424 U.S. 409, 427 n.25 (1976) (going on to hold that

prosecutorial immunity applies even where a prosecutor commits a

Brady infraction because, among other reasons, "[t]he possibility

of personal liability" might make prosecutors unwilling to comply

with this ethical duty). And Laureano-Salgado makes no Imbler-

based argument, even after the government pointed out that

"[b]ecause none of the information relevant here casts doubt on

[their] convictions, the prosecutors . . . had no occasion to

disclose it" before their "request" (though we imply no view about

whether any such argument would be tenable).

No Abused Discretion

Laureano-Salgado's fallback argument — that he deserves

a new trial even under the ordinary standard and that the judge

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slipped in concluding otherwise — fails because he did not meet

his heavy burden of showing that the impact of the statements he

champions is so strong that a fresh jury (apprised of their

content) would probably vote to acquit him on the VICAR-related

charges. See United States v. Vigneau, 337 F.3d 62, 69 (1st Cir.

2003) (noting that satisfying this part of the ordinary test is no

easy feat because, among other things, we must give the district

judge's views "considerable deference" (quoting United States v.

Falú-González, 205 F.3d 436, 443 (1st Cir. 2000)); see also United

States v. Hernández-Rodríguez, 443 F.3d 138, 143 (1st Cir. 2006)

(declaring that "we have no discretion to grant a motion for new

trial if any one of the four factors [in the ordinary test] is

lacking").15 We explain.

Both sides spend a lot of time sparring over whether the

at-issue evidence presents admissibility or credibility problems.

But let's assume — without deciding, of course — that Laureano-

Salgado is right that neither problem lurks here. Even so, he is

not entirely out of the woods.

The actual-probability-of-acquittal standard requires

"an evaluation of the new evidence in juxtaposition to the evidence

15We focus on Laureano-Salgado's contentions because (as we
noted earlier) Ramírez-Rivera waived any arguments based on the
ordinary standard that he might have had.
- 21 -
actually admitted at trial." United States v. Josleyn, 206 F.3d

144, 157 (1st Cir. 2000). Here, the new statements corroborate

many of the key facts established at trial — like how Joshua lived

with his grandmother in the same housing project as Pekeke and how

Joshua shot Pekeke. The statements also show that Yanyoré-Pizarro

basically suggested that different persons had different motives

for killing Pekeke: (a) La Rompe's Trenza and Papito Mojica,

apparently to take over Pekeke's drug points; (b) La Rompe bosses

at the Alturas de Cupey housing project, supposedly because Pekeke

had refused their help request; (c) La Rompe's Frank, apparently

because Frank and Pekeke could not agree on who was "the boss" —

in his last version of this narrative, Yanyoré-Pizarro had Frank

working with La ONU to gun down Pekeke; and (d) gangbangers from

the Luis Llorén Torres housing project, supposedly because Pekeke

had orchestrated their leader's murder. At any new trial the jury

would weigh Yanyoré-Pizarro's shifting stories against Figueroa-

Cancel's, Gutiérrez-Santana's, and Figueroa-Viera's consistent

testimony implicating Laureano-Salgado and Ramírez-Rivera in

Pekeke's slaying. And the jury would also weigh (on the one hand)

the absence of evidence indicating that Yanyoré-Pizarro was

present when La Rompe (allegedly) planned Pekeke's murder, and (on

the other hand) the existence of evidence showing that Figueroa-

Cancel, Gutiérrez-Santana, and Figueroa-Viera were present when La

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ONU plotted Pekeke's demise and that they — along with Laureano-

Salgado and Ramírez-Rivera — helped La ONU take Pekeke out.

Having performed the requisite evidentiary comparison,

we agree with the district judge that the statements are not

"sufficiently compelling" as to generate a realistic probability

of an acquittal on the VICAR-related counts. See United States v.

Alicea, 205 F.3d 480, 487 (1st Cir. 2000). And because this

evidence does not "preponderate[]" so "heavily" against the jury's

verdict that it would be a miscarriage of justice to let the

convictions on the VICAR-related counts stand, we cannot fault the

judge for denying the new-trial motion. See United States v.

George, 448 F.3d 96, 102 (1st Cir. 2006) (quoting United States v.

Villarman-Oviedo, 325 F.3d 1, 15 (1st Cir. 2003)).

As a parting shot, Laureano-Salgado contends that United

States v. Hernández-Rodríguez, 443 F.3d 138 (1st Cir. 2006) — where

we reversed a district court's new-trial denial — should compel us

to reverse here. But Hernández-Rodríguez does not aid his cause.

Here is why.

A jury convicted José Ramón Hernández-Rodriguez

("Hernández") and Douglas Gorbea Del-Valle ("Gorbea") of various

drug crimes. Id. at 140. Gorbea ran a trading company that

imported a cocaine shipment from Venezuela to Puerto Rico. Del-

Valle, 566 F.3d at 33. He also handled many of the operation's

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details. Id. Hernández owned the trucking company that Gorbea

used to move the shipment from the docks to a nearby truck yard.

Hernández-Rodríguez, 443 F.3d at 141. To prove that Hernández

knowingly participated in the scheme, the government relied on a

fax found in Gorbea's briefcase — a fax that had the name "José

Hernández" written on it. Id.

Sometime after his conviction, Hernández sought a new

trial based on newly-discovered evidence contained in an affidavit

by Gorbea saying that he (Gorbea) did not know Hernández

personally. Id. A magistrate judge held an evidentiary hearing,

at which Gorbea testified that the "José Hernández" on the fax

referred not to his codefendant but to another person with the

same name. Id. at 142. Finding Gorbea credible, the magistrate

judge recommended that the district judge grant Hernández a new

trial. See id. at 140, 146. Without holding a further evidentiary

hearing, the district judge rejected the magistrate judge's

recommendation. Id. After assuming without deciding that the

supposed new evidence was credible, the district judge ruled that

a reasonable jury could still infer Hernández's knowing

participation from other circumstantial evidence, like his tailing

the van with the cocaine as it left the docks. Id. at 146. Over

a dissent, a panel of this court reversed, holding in relevant

part that the evidence, "if deemed credible by a jury, . . . would

- 24 -
greatly undermine the conspiracy charges against Hernández" (given

the government's theory of prosecution) and thus "the district

court abused its discretion by failing to consider the full import

of [Hernández's] new evidence" after "assum[ing], arguendo,

Gorbea's credibility." Id. at 146, 148.

Unfortunately for Laureano-Salgado, the difference

between Hernández-Rodríguez and his case is one of night and day.

As we just said, the evidence there (if believed) "would greatly

undermine" the charges against the defendant. But as we also just

explained, the evidence here (even if believed) would not have

that same effect — given the equivocal nature of Yanyoré-Pizarro's

testimony, and how his testimony rested solely on rumors and did

(at times) implicate La ONU in Pekeke's death. So Hernández-

Rodríguez is no help to Laureano-Salgado.

Undaunted, Laureano-Salgado argues that his "new

evidence . . . is stronger than the [new evidence] in Hernández-

Rodríguez as the government [here] relied upon it in not one, but

two subsequent [La Rompe] trials" — the first involving Yanyoré-

Pizarro's testimony (see footnote 7 and the text to which it is

appended); the second involving Calviño-Acevedo's testimony (see

footnote 8 and the text to which it is appended). But this argument

is not a game-changer either because, again, here — unlike in

Hernández-Rodríguez — the alleged new evidence cannot be

- 25 -
reasonably viewed as "greatly undermin[ing]" the pertinent

verdicts. And to the extent he believes Calviño-Acevedo's

testimony saves the day by (supposedly) corroborating Yanyoré-

Pizarro's testimony, he is mistaken. That is because Calviño-

Acevedo's testimony highlights how Yanyoré-Pizarro's testimony

rested on rumors that cannot (for reasons already detailed) help

Laureano-Salgado satisfy the actual-probability-of-acquittal

component of the ordinary new-trial standard.

Long and Short of It

Experience shows that a supposedly new "piece of

evidence often looms larger in the eyes of a hopeful defendant

than its actual dimensions warrant." Peake, 874 F.3d at 72. So

it is here. Ultimately, having considered the parties' arguments

with care, we conclude that the judge applied the correct legal

standard and abused no discretion in denying the new-trial

motion.16

Final Words

All that is left to say then is: Affirmed.

16 For what it may be worth, we note that even if we were
willing to overlook Ramírez-Rivera's waiver of arguments keyed to
the actual-probability-of-acquittal standard — and we most
certainly are not — he too would lose for the reasons just given.

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