United States v. Ferreira

Opinion

USCA1 Opinion

March 28, 1994        [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ___________________

No. 93-1591

UNITED STATES,

                                      Appellee,

                                          v.

                                 WILLIAM L. FERREIRA,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                    [Hon. Walter Jay Skinner, U.S. District Judge]
                                              ___________________

                                 ___________________

                                        Before

                             Torruella, Boudin and Stahl,
                                   Circuit Judges.
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                                 ___________________

               William L. Ferreira on brief pro se.
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               A. John Pappalardo, United  States Attorney, and S. Theodore
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          Merritt, Assistant United States Attorney, on brief for appellee.
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                                  __________________

Per Curiam.  Defendant/appellant William L. Ferreira was
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            convicted of  armed bank  robbery, see 18  U.S.C.    2113(d),
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            conspiracy to commit bank  robbery, see 18 U.S.C.    371, and
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            use of a firearm during a crime of violence, see  18 U.S.C.  
                                                         ___

            924(c).  Following an aborted appeal from his conviction, and

            approximately two years after  mandate issued, Ferreira filed

            a motion  for new  trial, pursuant to  Fed. R.  Crim. P.  33,

            based on  the  ground of  newly  discovered evidence.    This

            evidence  is a  sealed affidavit  of FBI Special  Agent James

            Burleigh,  which accompanied  the government's  opposition to

            defendant's motion  to  quash a  grand  jury subpoena.    The

            district  court denied  the motion  for new  trial, and  this

            appeal followed.  

                                      Background

                 The  following facts  are  undisputed.   On October  18,

            1988, the Bank  of New England on Rockdale Street, Braintree,

            Massachusetts  was  robbed.    Shortly  after  the   robbery,

            Lieutenant Donald Murphy  of the Braintree  Police Department

            observed four individuals descend  an embankment in the South

            Shore Shopping Plaza,  speak briefly, and then depart  in two

            separate cars.   Believing that  these four persons  were the

            robbers, Lieutenant  Murphy followed one of the  two cars and

            arrested its  occupants--John  Maguire and  Thomas  Kavanagh.

            The  next day,  Lieutenant  Murphy was  shown a  photographic

            array,  and identified  Robert Hickey  as the  driver  of the

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other car.     Approximately   six   weeks  later,   Ferreira

            received a  grand  jury  subpoena  to  appear  in  a  lineup.

            Ferreira filed a motion to  quash the subpoena, claiming that

            the subpoena  was "nothing more than harassment  for his past

            activities."1   The  government  filed an  opposition to  the

            motion, supported by Special Agent Burleigh's affidavit.  The

            affidavit was filed in camera, ex parte, and was subsequently
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            sealed  upon motion by  the government.2   The district court

            denied  the motion to quash and ordered Ferreira to appear in

            the line-up.

                 In a  lineup conducted on December  19, 1988, Lieutenant

            Murphy identified Ferreira  as the fourth robber.   That same

            day,  Ferreira was indicted by  the grand jury.   Evidence of

            Lieutenant Murphy's identification of  Ferreira at the lineup

            was later  introduced at trial.   Ferreira was  found guilty,

            and he appealed.   The  appeal was dismissed  on January  16,

            1991, upon Ferreira's motion for voluntary dismissal.  

                 On June 2, 1992, the government provided Ferreira with a

            copy of Special Agent  Burleigh's sealed affidavit.  Ferreira

            then filed  a motion  for new trial  contending, inter  alia,
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            1.  In particular, Ferreira contended that the sole basis for
            the  subpoena  was  his  previous criminal  record  for  bank
            robbery and his  relationship with the  other suspects.   The
            other  suspects   were  acquaintances  from   Ferreira's  old
            neighborhood.   One  of the  suspects, Hickey,  is Ferreira's
            brother-in-law, and  had been his co-defendant  in a previous
            bank robbery case.  

            2.  Ferriera unsuccessfully sought access to the affidavit.

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that the affidavit  contained two  misleading statements  and

            omitted  material information.   Ferreira further argued that

            if  the district court had  been made aware  of these alleged

            falsehoods, the court would have granted the motion to quash,

            the lineup would not have  occurred, and the government would

            not have had enough evidence to make a case against him.  The

            district court denied the motion for new trial on the grounds

            that "the motion to quash the grand jury subpoena was without

            basis  and   should  have  been  denied   regardless  of  the

            affidavit."3  

                                      DISCUSSION

                 It is well-established that a motion for new trial based

            on newly discovered evidence will be denied unless the moving

            party  can establish  each facet  of the  following four-part

            test:

                 (1) the evidence was  unknown or unavailable to the
                 defendant at the time of  trial; (2) the failure to
                 learn  of it was  not a  result of  the defendant's
                 poor diligence;  (3) the new evidence  is material;
                 and (4) the impact of the new evidence is so strong
                 that  an  acquittal  would  probably   result  upon
                 retrial.  

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            3.  Ferreira's remaining  arguments  in his  motion  for  new
            trial, which we do not detail here, were not addressed by the
            district  court.  None of these remaining claims are based on
            newly discovered  evidence, and Ferreira does  not attempt to
            argue  otherwise.   Accordingly, these  claims are  barred by
            Fed. R. Crim. P.  33's seven day time limit, and the district
            court  lacked  jurisdiction to  consider  them.   See  United
                                                              ___  ______
            States  v. Lema, 909 F.2d  561, 565 (1st  Cir. 1990) (stating
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            that Rule 33, which provides seven days in which a motion for
            new  trial may  be filed,  unless  based on  newly discovered
            evidence, is jurisdictional).

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United States v. Slade, 980 F.2d 27, 29 (1st Cir.  1992).  We
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            will not disturb the disposition of a new trial motion unless

            the district  court abused  its discretion or  misapplied the

            law.  United States v. Rothrock, 806 F.2d 318, 321  (1st Cir.
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            1986).  We find no such error here.

                 The investigatory powers of the grand jury, although not

            unlimited, are necessarily  broad.  See  United States v.  R.
                                                ___  _____________     __

            Enters.,  Inc., 498 U.S.  292, 297  (1991) (stating  that the
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            function of the grand jury is to inquire into all information

            that might possibly bear on its investigation); United States
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            v.  Dionisio, 410  U.S. 1,  15  (1973) (recognizing  that the
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            grand jury's  investigatory powers include the  right to "act

            on tips, rumors, evidence offered by the prosecutor, or their

            own personal knowledge").   We have explicitly recognized the

            power of the  grand jury to  direct witnesses to appear  in a

            lineup.   In  re  Melvin,  550  F.2d  674  (1st  Cir.  1977).
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            Although  a judge, acting pursuant to Fed. R. Crim. P. 17(c),

            has  the power  to quash  a subpoena  if compliance  would be

            unreasonable  or oppressive,  "a grand  jury  subpoena issued

            through normal channels is presumed to be reasonable, and the

            burden of  showing unreasonableness must be  on the recipient

            who seeks to avoid  compliance."  R. Enters., Inc.,  498 U.S.
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            at 301.  

                 In his motion to quash the grand jury subpoena, Ferreira

            utterly    failed   to    meet   his   burden    of   showing

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unreasonableness.  See In re Pantojas, 628 F.2d 701, 704 (1st
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            Cir. 1980) (ruling that appellant who claimed that grand jury

            investigation  was being  used  by prosecutor  to harass  him

            failed to carry  his burden to  demonstrate why lineup  could

            not be of use to grand  jury).  Indeed, his association  with

            the other  suspects and,  in particular, his  connection with

            Hickey,  with whom  he had  once committed  a  similar crime,

            support the legitimacy of the subpoena.  See United States v.
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            Sheehan,  583 F.2d 30, 32 (1st Cir. 1978) (commenting that it
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            would seem to be  respectable police work to check  out known

            associates  of  a suspect  in  a  bank  robbery committed  by

            several  people).   But  cf. In  re Melvin,  550 F.2d  at 677
                                ________ _____________

            (suggesting  that it might be  an abuse of  the grand juries'

            power  "to  call  certain  individuals  with  known  criminal

            proclivities  to  appear  repeatedly in  lineups")  (emphasis
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            added).  

                 In sum, we agree with the district court that Ferreira's

            motion  to quash  should have  been denied regardless  of the

            challenged  affidavit.4   Since  the new  evidence would  not

            have produced a different result below, defendant's new trial

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            4.  In so ruling, we refrain, as did the district court, from
            making any comment on whether the challenged  representations
            in the affidavit were misleading.

                                         -6-

motion fails to meet  the materiality prong of the  four part

            test.  Accordingly, the motion was properly denied.5    

                 Affirmed.
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            5.  We also reject Ferreira's claim  that he should have been
            given a hearing on his motion for new trial.  Rule 33 motions
            are frequently ruled upon without hearing, see Lema, 909 F.2d
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            at  568 n.10, and there was no need to conduct an evidentiary
            hearing here.

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