United States v. Maldonado-Rivera

United States Court of Appeals
For the First Circuit

No. 05-2572

UNITED STATES OF AMERICA,

Appellee,

v.

CHRISTIAN MALDONADO-RIVERA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Torruella, Circuit Judge,
Selya, Senior Circuit Judge,
and Lynch, Circuit Judge.

Victor González-Bothwell, Assistant Federal Public Defender,
with whom Joseph C. Laws, Jr., Federal Public Defender, was on
brief, for appellant.
Lynn M. Doble-Salicrup, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney (Chief, Appellate
Division), and Thomas F. Klumper, Assistant United States Attorney,
were on brief, for appellee.

June 4, 2007
 SELYA, Senior Circuit Judge. Defendant-appellant

Christian Maldonado-Rivera appeals from the denial of his motion

for a new trial in this criminal case. Concluding, as we do, that

the district court did not abuse its discretion in denying the

motion, we affirm the judgment below.

I. BACKGROUND

This case had its genesis in a surveillance of suspected

drug-trafficking activity at the Los Laureles housing project in

Bayamón, Puerto Rico. The facts are uncomplicated.

On July 14, 2004, Nancy Méndez Acevedo (Méndez), a police

officer with twelve years of seniority on the force, was assigned

to surveil a known drug point at Los Laureles. To reach her

surveillance post, she drove an unmarked vehicle with tinted

windows and parked near a basketball court. Within a few minutes

of her arrival, she noticed a yellow Nissan Xterra drive up and

park on the opposite side of the basketball court.

Méndez observed an individual, later identified as the

defendant, exit the Xterra with a nickel-plated pistol in his right

hand. Upon seeing the weapon, Méndez radioed for backup. As

patrol cars sped to the scene, she observed the defendant turn,

throw the firearm into the Xterra, and begin to flee. An arriving

officer, Luis Lebrón Ramos (Lebrón), ran the defendant to ground in

an apartment at the housing project. In the meantime, Méndez

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seized a loaded handgun and additional ammunition from within the

Xterra.

In due course, a federal grand jury charged the

defendant, in a single-count indictment, with being a felon in

possession of a firearm and ammunition. See 18 U.S.C. §§

922(g)(1), 924(a)(2). The defendant proclaimed his innocence.

Following some procedural skirmishing (not relevant here, except

for the defendant's stipulation to a prior felony conviction), the

case was reached for trial before a jury on January 18, 2005.

Méndez and Lebrón, among others, testified for the

prosecution about the day's events. As part of its case, the

government offered testimony that the defendant's wallet and

identification were found inside the Xterra. Finally, the

government introduced an inventory slip for the contents of the

Xterra signed by the defendant as the vehicle's owner or driver.

Because the defendant denied actual or constructive

possession of the firearm, the exact location of Méndez's parked

vehicle became a hotly contested issue at trial. This emphasis

stemmed from a sense that the vehicle's location directly affected

the clarity of Méndez's line of sight and, thus, the accuracy of

her eyewitness testimony. On cross-examination, defense counsel

pressed Méndez for details about where she had parked her vehicle.

Presented with an inexact diagram of the scene, Méndez indicated

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that she had parked in the "second parking space" from the corner.1

Méndez also described the Xterra as being parked all the way across

the basketball court and slightly to the left of where she had

parked.

The defense case rested mainly on an alibi: the defendant

was neither driving the car at the time in question nor toting a

pistol. Several witnesses testified on the defendant's behalf.

Some of them offered testimony that bore upon Méndez's account of

what she had observed. One such witness was Rodolfo Bladuell, who

had taken photographs of the parking lot from different angles.

Several photographs taken from parking space two reflected a clear

line of sight to the point at which the Xterra allegedly was

parked.2 Photographs taken from the parking spaces immediately to

the right of parking space two reflected a partially obstructed

line of sight.

Ana María Alicea-Aponte, who worked in the administrative

offices of the Los Laureles housing project, testified that a

junked green van occupied parking space two on July 14, 2004.

Alicea-Aponte remembered the van because it had been situated in

1
Although the parking spaces were not numbered, we refer to
this location, for ease of exposition, as "parking space two."
2
Bladuell approximated the distance between these two points
at 165 feet. Méndez had estimated the same distance as being about
80 feet.

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the same spot for well over a year while the administration

attempted to effect its removal.

In its rebuttal case, the government recalled Méndez, who

reiterated that she had stopped her car in parking space two. She

also testified that vehicles were parked on either side of her car;

a vehicle with flat tires was to her right, and a black vehicle was

to her left.

After seven days of trial, the jury found the defendant

guilty. On April 28, 2005 — approximately three months after the

verdict — the defendant moved for a new trial based on newly

discovered evidence. He relied upon a series of administrative

reports and two photographs depicting the presence of a junked

green van in or near parking space two.

The provenance of these items is relevant to this appeal.

The defendant claims that, during the trial, Alicea-Aponte's

supervisor at the Los Laureles administrative offices received a

telephone call from an unidentified government agent. As she

related it, the agent requested documentation anent an abandoned

vehicle in parking space two. The supervisor later checked her

files and found monthly reports (the most relevant of which spanned

the ten-month period from March through December of 2004) listing

the locations of abandoned vehicles at Los Laureles. She also

found a photograph, apparently taken in August of 2004, depicting

a junked green van in or near parking space two.

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 The supervisor never received a follow-up call from the

agent. However, she told Alicea-Aponte, at an unspecified date,

about the inquiry and about the items that she had retrieved.

Alicea-Aponte then put the supervisor in touch with the defendant.

The motion papers do not elaborate upon the date on which either

the defendant or his counsel first learned of these events.

The new trial motion made reference to a third piece of

evidence as well. That item was a photograph that the defendant

claimed he had obtained from Janifer Cortés, his former girlfriend

and the mother of his child. The photograph showed the defendant's

infant daughter in the arms of a friend standing next to a green

van in parking space two. Cortés had testified as a defense

witness at the trial but had not been queried about the photograph

(which purportedly was taken in October of 2004). In a sworn

statement attached to the motion, she explained that the roll of

film containing the picture had not been developed until after the

trial had ended.

The defendant maintained that these pieces of evidence,

singly and in the aggregate, would have impeached Méndez's

testimony and, thus, bolstered the credibility of his alibi

witnesses. The evidence was newly discovered, the defendant said,

because he was not aware of it prior to or during the trial, and,

in all events, he could not have predicted how Méndez's trial

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testimony would evolve. Finally, he asserted that the new evidence

would in all likelihood have been outcome-determinative.

The government opposed the motion. It argued that the

evidence was not new in the requisite sense but, rather, easily

could have been made available for use at the trial; that it was

cumulative and, therefore, not material; and that it would not have

resulted in an acquittal.

On August 10, 2005, the district court denied the new

trial motion. The court concluded that the proffered evidence was

available to the defendant prior to and during the trial and that,

in the exercise of due diligence, he could (and should) have

discovered it. The court noted specifically that, given Alicea-

Aponte's trial testimony, the defendant had every incentive to seek

verification of the green van's location. With respect to the

Cortés photograph, the court explained that the defendant had not

advanced any satisfactory reason as to why the photograph was not

available prior to or during the trial.

The court added that even if the various pieces of

evidence cited in the motion could be regarded as newly discovered,

they served only to impeach Méndez's testimony as to her exact

position when she saw the defendant and to corroborate Alicea-

Aponte's testimony about the presence of the junked green van.

Given the undisputed evidence that a nickel-plated pistol was

retrieved from the Xterra and that the defendant had signed an

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inventory of the Xterra's contents as that vehicle's driver or

owner, the court concluded that the "new" evidence was not

sufficiently material to guilt or innocence to justify a new trial.

See United States v. Maldonado-Rivera, No. 04-390, slip op. at 8

(D.P.R. Aug. 10, 2005) (unpublished) (concluding that "[r]egardless

of whether agent Méndez saw the defendant from the first, second,

or third parking space, the evidence in this case proves beyond [a]

reasonable doubt that she indeed could see the defendant from where

she was parked").

Following the denial of the new trial motion, the

district court sentenced the defendant to serve a 48-month

incarcerative term. This timely appeal ensued.

II. ANALYSIS

Federal Rule of Criminal Procedure 33 provides that a

district court, upon motion of the defendant, may "grant a new

trial if the interest of justice so requires." To the extent that

such a motion is grounded upon newly discovered evidence, it may be

filed at any time within three years of the verdict. See id. The

defendant's new trial motion was, therefore, timely. The district

court nonetheless denied it.

On appeal, the defendant argues that the district court

applied the wrong legal standard and that, in any event, it

improvidently denied the motion. We address these assignments of

error sequentially.

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 The two assigned errors call to mind different review

modalities. The choice of a legal standard presents an abstract

question of law and, thus, triggers de novo review. See United

States v. Huddleston, 194 F.3d 214, 218 (1st Cir. 1999). So long

as the district court applies the right legal standard, however,

its decision about whether to grant or deny the motion is a

judgment call. Consequently, that decision engenders review for

abuse of discretion. See United States v. Natanel, 938 F.2d 302,

313 (1st Cir. 1991).

A. The Legal Standard.

Typically, a motion for a new trial bottomed on newly

discovered evidence requires a criminal defendant to make a four-

part showing. See United States v. Rodriguez-Marrero, 390 F.3d 1,

14, 28 (1st Cir. 2004); United States v. Alicea, 205 F.3d 480, 487

(1st Cir. 2000); United States v. Wright, 625 F.2d 1017, 1019 (1st

Cir. 1980). That showing entails a demonstration that (i) the

evidence upon which the defendant relies was unknown or unavailable

to him at the time of trial; (ii) the failure to bring the evidence

forward at trial was not occasioned by a lack of diligence on the

defendant's part; (iii) the evidence is material (as opposed to

being merely cumulative or impeaching); and (iv) the evidence is

such that its introduction would probably result in an acquittal

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upon a retrial of the case.3 See Wright, 625 F.2d at 1019. Under

this conventional approach (which we shall call the "Wright

standard"), the first and second requirements go hand in hand, as

do the third and fourth requirements. But whatever groupings may

be made for ease in analysis, each of the four requirements must be

satisfied in order for the defendant to gain a new trial. See,

e.g., Rodriguez-Marrero, 390 F.3d at 14; Huddleston, 194 F.3d at

218.

The Wright standard applies to most, but not all, new

trial motions premised on newly discovered evidence. We say "most"

because a modified standard applies when a defendant grounds his

motion on newly discovered evidence that was unknown or unavailable

due to the government's failure to disclose evidence favorable to

the accused and material to his defense. See Brady v. Maryland,

373 U.S. 83, 87 (1963); United States v. González-González, 258

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

If the basis for a new trial motion is a Brady violation

— that is, a failure on the government's part to disclose Brady

information — the law requires, on the third and fourth prongs of

the new trial test, only that the defendant show a reasonable

probability that, had the evidence been disclosed in time to permit

its use at the trial, the result of the proceeding would have been

3
This means an "actual probability that an acquittal would
have resulted if the evidence had been available." United States
v. Sepulveda, 15 F.3d 1216, 1220 (1st Cir. 1993).

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different. Kyles v. Whitley, 514 U.S. 419, 433-34 (1995);

González-González, 258 F.3d at 20. That, in turn, requires an

analysis of whether the trial, in the absence of the undisclosed

evidence, resulted in a verdict "worthy of confidence." González-

González, 258 F.3d at 20 (quoting Kyles, 514 U.S. at 434); see

Rodriguez-Marrero, 390 F.3d at 28.

Because the standard applied to new trial motions based

on Brady violations — what we shall call the "modified standard" or

the "Brady error rule" — is less onerous and, thus, easier for

defendants to satisfy, see González-González, 258 F.3d at 20,

defendants have an incentive to "try to shoehorn as much of the new

evidence into the Brady category as possible," United States v.

Josleyn, 206 F.3d 144, 152 (1st Cir. 2000). This case is no

exception: the defendant suggests that a Brady violation occurred

because the government "found" and failed to inform the defense

about the newly discovered evidence. Building on that foundation,

he posits that the district court should have employed the modified

standard in evaluating his new trial motion.

The government rejoins on two fronts. First, it asserts

that the defendant waived any Brady-based argument. Second, it

debunks the suggestion that a Brady violation occurred. Its bottom

line is that the district court used the appropriate legal

standard.

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 We agree with the government that the defendant failed to

raise any Brady-based claim before the district court. To the

contrary, in pressing his new trial motion, the defendant cited

United States v. Montilla-Rivera, 115 F.3d 1060, 1064-65 (1st Cir.

1997) — a Wright standard case — and framed his argument for a new

trial in terms of the Wright standard. There is no reference

either in Montilla-Rivera or in the defendant's district court

memorandum to the special gloss that would be brought into play by

the existence of a Brady violation.

The thrust of the defendant's argument before the

district court confirms his eschewal of the Brady error rule. He

made no contention below that the government either had

transgressed Brady or had failed to turn over Brady material.

Brady itself was conspicuously absent from the list of authorities

cited in the memorandum that the defendant submitted in the

district court.

This series of omissions precludes the "wrong legal

standard" arguments that the defendant seeks to advance in this

venue. After all, "[i]t 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." United States v. Slade, 980 F.2d 27,

30 (1st Cir. 1992).

We need not belabor this point because a more substantive

infirmity dogs the defendant's claim. The record contains no

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evidence that, at any time prior to or during the trial, the

government was aware of any of the three pieces of proof mentioned

in the motion. This gap in the record is itself dispositive of the

claim that a Brady violation occurred. For Brady to operate, the

government not only must know about undisclosed evidence but also

must have custody or control of that evidence. See Lavallee v.

Coplan, 374 F.3d 41, 44 (1st Cir. 2004); United States v. Bender,

304 F.3d 161, 163 (1st Cir. 2002).

Here, the new evidence was, for aught that appears from

the record, unknown to the government until the defendant filed his

post-trial motion. By the defendant's own account, the agent who

supposedly placed the call to Alicea-Aponte's supervisor never

followed up. There is nothing to suggest that the evidence was in

any way in the government's possession or under its control.

Accordingly, the government had no opportunity, much less a duty,

to disclose it.

The absence of such a showing is an insuperable obstacle

here. The fact that the government allegedly made an effort to

ascertain whether some of the evidence existed will not suffice to

trigger a duty to disclose. Nor does the fact that the government,

through a more vigorous investigation, might have been able to

discover the evidence. See Bender, 304 F.3d at 164 (holding that

Brady doctrine does not "require[] a prosecutor to seek out and

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disclose exculpatory or impeaching material not in the government's

possession").

Before us, the defendant essays a related claim: that the

Brady error rule applies because the government was guilty of the

knowing use of perjured testimony (by which he means Méndez's

testimony). Legally, this claim has its roots in a line of Supreme

Court decisions holding that a conviction obtained through the

prosecution's knowing use of perjured testimony cannot stand. See,

e.g., Napue v. Illinois, 360 U.S. 264, 269 (1959); Mooney v.

Holohan, 294 U.S. 103, 112 (1935). This case law is potentially

significant to the standard applicable to the adjudication of the

defendant's new trial motion because we have held that "the Brady

error rule should apply to claims of knowing use of perjured

testimony." González-González, 258 F.3d at 21.4 Here, however,

the asserted claim cannot withstand even the most cursory scrutiny.

In his memorandum in support of his new trial motion,

filed in the district court, the defendant explicitly disclaimed

any argument that the prosecution had knowingly used false

evidence. See Defendant's Memo. at 4 ("Napue involves the knowing

use by the prosecution of false evidence. That is not being

alleged here, nor does defendant have any proof or indication of

4
In González-González, 258 F.3d at 22, we noted that, under
Supreme Court precedent, there is a linguistic difference in the
formulation of the legal rules applicable to each context. We
nonetheless adjudged these sets of rules "equivalent." Id.

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the same."). In other words, the defendant flatly conceded that he

was not alleging the knowing use of false or perjured testimony by

the prosecution. A party who stakes out a position before the

district court cannot reverse his field and take an inconsistent

position on appeal simply because he perceives that doing so might

work to his advantage. See, e.g., United States v. Joost, 133 F.3d

125, 128 (1st Cir. 1998); United States v. Coady, 809 F.2d 119, 121

(1st Cir. 1987).

To say more on this point would be supererogatory. For

the reasons discussed above, we reject the defendant's importuning

that the district court should have used the Brady error rule,

rather than the Wright standard, in adjudicating his new trial

motion.

B. The District Court's Decision.

Having determined that the lower court applied the proper

legal yardstick to the new trial motion, we next consider whether

the court's denial of the motion constituted an abuse of

discretion.

The district court rejected the motion on the basis that

the proffered evidence met none of the four requirements of the

Wright standard. In the circumstances of this case, the first two

requirements are dispositive of the appeal. These requirements

concern whether the evidence was unknown or unavailable to the

defendant at the time of trial and if so, whether that situation

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was attributable to a lack of due diligence on his part. See

Alicea, 205 F.3d at 487; Wright, 625 F.2d at 1019.

We start with the materials retrieved by Alicea-Aponte's

supervisor: the monthly "abandoned vehicle" reports and the

photograph of the junked green van. There is no dispute that this

evidence was in existence at the time of the trial. The defendant

nonetheless asserts that he was unaware of it until after the

verdict.5 His explanation is that the issue of Méndez's exact

location arose only when she testified at trial, and that the pace

of the trial hampered his ability to take stock of evidentiary

leads. This explanation rings hollow.

While the defendant may not have known Méndez's precise

vantage point prior to trial, he had every reason to believe that

her line of sight was of the utmost importance. That the defendant

appreciated the salience of this datum before and during the trial

can be gleaned from two incontrovertible facts. First, during the

trial, the defendant had his investigator (Bladuell) take

photographs of the parking area from different angles. The

commissioning of these photographs is a clear indication that the

5
The motion papers are silent as to when the defendant
actually learned of this evidence. That fact alone runs up a red
flag because it leaves open the possibility that the defense was
contacted by Alicea-Aponte or her supervisor during the trial. Cf.
Alicea, 205 F.3d at 487 (finding unpersuasive claim of newly
discovered evidence where "appellant's motion papers said nothing
about when or how he had learned of [it]").

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defense appreciated the potential import of Méndez's line of sight

and had sufficient time to react to her testimony.6

The second fact emerges from the trial transcript. The

defendant could not help but know that Méndez would be the key

witness against him. Defense counsel, armed with previously

gathered maps and diagrams of the parking area, pressed her on

cross-examination for details about her exact location. When the

government's case in chief concluded, the defense proceeded to

mount a direct challenge to the clarity of Méndez's line of sight

by, inter alia, eliciting testimony from Alicea-Aponte about a

junked green van in parking space two. In the course of this

exegesis, Alicea-Aponte mentioned the housing project's

"regulations" governing abandoned vehicles, the "steps" taken by

her office to urge noncompliant residents to change their ways, and

the regulatory requirement that the owner of an abandoned vehicle

"authorize" any action that might be taken by the administration to

remove it from the premises.

Given this body of knowledge, we think it readily

evident that a reasonably prudent person would have considered the

possibility that records existed at the administrative offices of

Los Laureles that might bear on the critical line-of-sight issue

(and, specifically, on the question of whether the junked green van

6
In this regard, it bears mentioning that the defendant did
not seek a continuance after Méndez completed her direct
examination.

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was in fact occupying parking space two on July 14). The

defendant, however, did not make any inquiry into either the

existence or the contents of any such records.

In the Rule 33 milieu, due diligence is a context-

specific concept. See United States v. Cimera, 459 F.3d 452, 461

(3d Cir. 2006); United States v. Hernández-Rodríguez, 443 F.3d 138,

144 (1st Cir. 2006). As a general proposition, however, the movant

must exercise a degree of diligence commensurate with that which a

reasonably prudent person would exercise in the conduct of

important affairs. See, e.g., Cimera, 459 F.3d at 461-62; United

States v. LaVallee, 439 F.3d 670, 701 (10th Cir. 2006). Where, as

here, the newly proffered evidence all pertains to a matter that

the defendant knew would be in issue at his trial, and the source

of that evidence was an obvious one, the district court had every

right to deem the requirement of due diligence unsatisfied. See,

e.g., United States v. Canova, 412 F.3d 331, 349 (2d Cir. 2005).

The short of it is that the defendant had ample time and

reason to investigate the situation that existed in the parking

area. He undertook some investigation into this situation but did

not investigate it fully. He cannot now be allowed to interpose

his disregard of the obvious as an excuse for his failure to learn

about easily ascertainable evidence. Cf. Paterson-Leitch Co. v.

Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 989-90 (1st Cir.

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1988) ("Courts, like the Deity, are most frequently moved to help

those who help themselves.").

Under these circumstances, we discern no abuse of

discretion in the district court's conclusion that the materials in

the Los Laureles files were available to the defendant at the time

of trial and that, in the exercise of ordinary diligence, he would

(and should) have discovered them. Accordingly, that evidence

cannot justify a new trial. See United States v. Falu-Gonzalez,

205 F.3d 436, 443 (1st Cir. 2000) (explaining that evidence that

could have been discovered in the exercise of due diligence cannot

comprise newly discovered evidence within the purview of Rule 33);

see also Wright, 625 F.2d at 1019 (discussing district court's

"broad power" to evaluate the circumstances when considering a new

trial motion based on newly discovered evidence).

This leaves the third piece of "new" evidence: the Cortés

photograph. The district court found that the defendant had not

met his obligation of showing why this photograph — which was taken

before the trial began but not developed until after the trial

ended — could not have been discovered and made available in time

for use at the trial. This finding is supportable given that

Cortés was called as a witness for the defense, was close to the

defendant, and had every reason to cooperate with him. See

Rodriguez-Marrero, 390 F.3d at 30.

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 We refrain from any detailed analysis in this regard

because it is crystal clear, as the district court also ruled, that

this piece of evidence did not satisfy the third prong of the

Wright standard: materiality. The photograph served, at most, only

to impeach Méndez's description of her vantage point.

Evidence that is cumulative or of marginal relevance

ordinarily is insufficient to satisfy the third requirement of the

Wright standard. See, e.g., United States v. Gwathney, 465 F.3d

1133, 1144-45 (10th Cir. 2006); Natanel, 938 F.2d at 314. So too

evidence that is merely impeaching. See, e.g., United States v.

Colón-Muñoz, 318 F.3d 348, 361 (1st Cir. 2003) (explaining that

"newly discovered evidence which is merely impeaching normally

cannot form the basis for a new trial" (citations and internal

quotation marks omitted)). The Cortés photograph, which was taken

over two months after Méndez made her observations, does no more

than weakly supplement the steady stream of defense efforts to

erode Méndez's credibility. If Alicea-Aponte's testimony,

Bladuell's testimony, Bladuell's photographs, and the maps and

diagrams did not sully Méndez's credibility in the jurors' eyes, it

is surpassingly difficult to believe that the Cortés photograph

would have made the slightest difference.7

7
The defendant strives to persuade us that the Cortés
photograph strikes at the heart of Méndez's veracity. He reasons
that if the junked green van was in fact parked both in parking
space two and to Méndez's right, there would have been no room for
the black car that Méndez recalled being parked to her left. We

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III. CONCLUSION

We need go no further. For the reasons elucidated above,

we conclude, without serious question, that the district court

neither applied an incorrect legal standard nor abused its

discretion in denying the defendant's motion for a new trial.

Affirmed.

are not convinced. Fairly viewed, the Cortés photograph — even if
the scene that it depicts existed on July 14 (more than two months
earlier) — does not preclude the presence of another vehicle being
parked, if haphazardly, to her left.

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