United States v. Slade

• Court: Court of Appeals for the First Circuit
• Decided: November 24, 1992
• Docket: 92-1176
• Status: Published

Opinion

USCA1 Opinion

November 24, 1992

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

_________________________

          No. 92-1176

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                    FRANCES SLADE,

                                Defendant, Appellant.

                              _________________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                     [Hon. Ernest C. Torres, U.S. District Judge]
                                             ___________________

                              _________________________

                                        Before

                                Selya, Circuit Judge,
                                       _____________

                            Coffin, Senior Circuit Judge,
                                    ____________________

                              and Boudin, Circuit Judge.
                                          _____________

                              _________________________

               Evan  Slavitt, with whom Hinckley, Allen, Snyder & Comen was
               _____________            _______________________________
          on brief, for appellant.
               J. Carol Williams, Attorney, Environment & Natural Resources
               _________________
          Division, U.S. Department of Justice, with whom Vicki A. O'Meara,
                                                          ________________
          Acting Assistant Attorney General, Jacques B. Gelin and H. Claire
                                             ________________     _________
          Whitney, Attorneys, were on brief, for the United States.
          _______

                              _________________________

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SELYA,  Circuit  Judge.   This  appeal  challenges  the
                    SELYA,  Circuit  Judge.
                            ______________

          district  court's  refusal to  grant a  new  trial to  a criminal

          defendant  on the basis of evidence that the defendant claims was

          newly discovered.  We affirm.

                                          I
                                          I

                    On  October 4,  1989,  a jury  found  Frances Slade,  a

          managerial  employee of MacDonald & Watson Waste Oil Company (M &

          W), guilty of two  counts of knowingly causing a  hazardous waste

          to  be transported  to an  unpermitted facility  in violation  of

          section 3008(d)(1) of the  Resource Conservation and Recovery Act

          (RCRA),  42 U.S.C.   6928(d)(1)  (1988).  On  appeal, we affirmed

          the convictions  of several defendants  (including Slade)  whilst

          vacating  the  convictions  of   Eugene  D'Allesandro  (M  &  W's

          president) and  Narragansett Improvement  Company (holder of  the

          RCRA permit  under which M  & W operated  in Rhode Island).   See
                                                                        ___

          United States  v. MacDonald & Watson  Waste Oil Co., 933  F.2d 35
          _____________     _________________________________

          (1st Cir. 1991).  

                    Phillip Lavigne, the  former manager of M  & W's Boston

          office,  did   not  testify  at  the  original   trial.    During

          D'Allesandro's retrial, however, the government called Lavigne as

          a witness.  In the course of his testimony, Lavigne recounted the

          substance  of certain  conversations in  which he  and  Slade had

          participated.     These  conversations  related  to   the  events

          underlying  Slade's conviction.1    On December  11, 1991,  Slade
                              
          ____________________

               1On November 18, 1991, the judge presiding at D'Allesandro's
          second trial  granted D'Allesandro's  motion for the  entry of  a
          judgment of acquittal.

                                          2

moved  for a new trial, citing this testimony as newly discovered

          evidence.  

                    The  district  court  concluded  that the  evidence  in

          question "consist[ed] of facts that were clearly known to [Slade]

          at the  time of [her]  trial."   Hence, it denied  relief.   This

          appeal followed.

                                          II
                                          II

                    Freshly  discovered evidence is  sufficiently sturdy to

          warrant a new  trial in a criminal case only  if (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.    See United  States  v.
                                                     ___ ______________

          Natanel,  938 F.2d 302, 313 (1st Cir. 1991), cert. denied, 112 S.
          _______                                      _____ ______

          Ct. 986 (1992);  United States v. Martin, 815 F.2d  818, 824 (1st
                           _____________    ______

          Cir.),  cert.  denied, 484  U.S.  825  (1987);  United States  v.
                  _____  ______                           _____________

          Wright, 625  F.2d 1017, 1019 (1st Cir. 1980).  The defendant must
          ______

          shoulder the  burden of establishing each facet  of the four-part

          test.  See Natanel, 938 F.2d at 313; Wright, 625 F.2d at 1019.
                 ___ _______                   ______

                    Because the district court is usually in a  much better

          position  to judge the credibility of the witnesses and to assess

          the  highly  nuanced  relationship   between  the  purported  new

          evidence, and what previously  transpired at trial, we treat  the

          district  court's  handling  of  such  motions with  considerable

          deference.   Consequently, we will  reverse a denial  of a motion

3

for new  trial premised  on  newly discovered  evidence only  for

          manifest abuse of the district  court's informed discretion.  See
                                                                        ___

          Natanel, 938 F.2d at 313.
          _______

                                         III
                                         III

                    It  would  serve  no  useful purpose  to  rehearse  the

          factual  predicate on  which Slade's  conviction rests.   For one

          thing, we have already discussed those facts at some length.  See
                                                                        ___

          MacDonald &  Watson, 933 F.2d at  39-40.  For another  thing, our
          ___________________

          resolution  of  this appeal  hinges not  so  much on  the factual

          framework as it does on the procedural posture of the appeal.

                                          A
                                          A

                    The hazardous  waste that  was allegedly brought  to an

          improper  facility at Slade's direction consisted of contaminated

          soil   from  the   so-called  Master   Chemical  property.     At

          D'Allesandro's  second   trial,  Lavigne  testified   that  Slade

          "explicitly informed the heads of MacDonald & Watson's Boston and

          Rhode Island offices that MacDonald & Watson could not accept the

          soil from the Master Chemical site . . . ."  In her motion  for a

          new trial, Slade posited  this bit of testimony as  new evidence.

          She hypothesized that, by using  Lavigne's testimony to show that

          she  had, on earlier occasions, rejected  samples from the Master

          Chemical site, she would have undermined the prosecution's theory

          that  she  knowingly permitted  the  illegal  dumping.   Although

          acknowledging  that  a  person's  own  conversations  can  rarely

          constitute "new"  evidence,  Slade argued  that these  particular

          conversations were the exception that proved the rule because she

4

"did not remember speaking to . . . Lavigne at any time regarding

          the chemical analysis for the Master Chemical cleanup . . . ."

                    The  district  court declined  to  buy  what Slade  was

          selling.  It denied her motion on the ground that Slade could not

          satisfy the first  prong of the four-part test.   The court based

          this  ruling on  its  finding that  the  facts to  which  Lavigne

          testified were clearly known to Slade at the time of her trial. 

                                          B
                                          B

                    On appeal, Slade recasts Lavigne's testimony, this time

          highlighting different aspects.  She argues that the nascent fact

          is Lavigne's statement that  soil samples marked "CDM Dorchester"

          were in fact samples  from the Master  Chemical site.  Slade  now

          concedes that she did not forget about the conversations in which

          she  rejected the Master Chemical soil samples, but says that she

          never  knew   the  soil  was  from  the  Master  Chemical  site.2

          Although Slade's  presentation below and her  presentation before

          us involve the testimony of the same witness, the similarity ends

          there.  The two contentions   one about certain conversations and

          the other  about the  marking of  soil samples    pull  from that

          testimony distinctly  different factual  threads  and weave  them

          into  different legal patterns.  We  cannot countenance this sort

          of asseverational embroidery.

                    As a  general rule, appellate litigators  should winnow

          their stable  of legal arguments, retaining  their most effective
                              
          ____________________

               2We note that this new stance seemingly contradicts the very
          premise  of the affidavit which  Slade filed below  in support of
          her motion for a new trial.

                                          5

claims and  putting unpromising claims to  pasture before seeking

          appellate  review.    This  rule does  not  mean,  however,  that

          litigants  remain free to shift horses in midstream.  Here, Slade

          attempted just such an interstitial feat.  Following the district

          court's  denial of  her motion  for a  new trial,  she apparently

          reassessed  the field,  decided her  old argument was  lame,3 and

          now seeks to ride a fresh mount in a new direction.   Her attempt

          fails.  

                    It  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.  See,  e.g., Hernandez-Hernandez v.
                                         ___   ____  ___________________

          United  States, 904  F.2d 758,  763 (1st  Cir. 1990);  Clauson v.
          ______________                                         _______

          Smith,  823 F.2d  660, 666  (1st Cir.  1987)  (collecting cases);
          _____

          United States v. Figueroa,  818 F.2d 1020, 1024 (1st  Cir. 1987).
          _____________    ________

          In this case, Slade's neoteric theory   that her misunderstanding

          about the significance of  the soil-sample labels constituted new

          evidence    surfaced for the first time on appeal.  Consequently,

          it runs afoul of our well-settled rule.

                                          C
                                          C

                    Slade  tries to  scale  this towering  obstacle in  two

          ways.  First,  she suggests that a  passing mention of  the soil-

____________________

               3Because the  defendant has  neither briefed nor  argued the
          proposition  that she  advanced below, we  need not  consider the
          district  court's  rejection of  that  proposition.   After  all,
          theories  neither briefed nor argued on appeal are deemed to have
          been waived.  See, e.g., United States v. St. Cyr,  ___ F.2d ___,
                        ___  ____  _____________    _______
          ___ (1st  Cir. 1992) [No. 92-1639; slip  op. at 4]; United States
                                                              _____________
          v. Zannino,  895 F.2d 1,  17 (1st Cir.),  cert. denied, 494  U.S.
             _______                                _____ ______
          1082 (1990).

                                          6

sample labels in her motion for a new trial sufficed to  acquaint

          the district  court with  the labels'  validity as  new evidence,

          thereby  warding off waiver.  Second, she asserts that the raise-

          or-waive rule is  inapplicable since she  is not introducing  new

          facts  on  appeal  but simply  offering  a  revised  take on  how

          Lavigne's  testimony  constitutes new  evidence.   Neither  point

          succeeds in  freeing appellant  from the condign  consequences of

          her procedural default.

                                          1.
                                          1.
                                          __

                    Passing  allusions  are  not  adequate to  preserve  an

          argument in either  a trial or  an appellate  venue.  See  United
                                                                ___  ______

          States  v. Zannino, 895  F.2d 1, 17  (1st Cir.) ("Judges  are not
          ______     _______

          expected  to be  mindreaders.   Consequently, a  litigant  has an

          obligation to spell out its arguments squarely and distinctly, or

          else forever hold its  peace.") (internal citations and quotation

          marks  omitted), cert.  denied, 494  U.S. 1082  (1990); Paterson-
                           _____  ______                          _________

          Leitch  Co. v. Massachusetts  Mun. Wholesale Elec.  Co., 840 F.2d
          ___________    ________________________________________

          985, 990 (1st Cir. 1988) (similar).  This is such a case.  In her

          motion for a  new trial, Slade  mentioned the soil-sample  labels

          only once.  She did  not discuss the importance of the  labels in

          the  argument section  of  her motion  nor  did she  portray  the

          labeling as especially relevant to her legal theories.

                    The transcript  of Lavigne's testimony ran  some sixty-

          odd pages and covered  numerous topics.  It  is not the  district

          court's responsibility either  to cull post-conviction  testimony

          in   search  of  promising  factual  scenarios  or  to  hunt  for

7

attractive legal arguments not  articulated in the motion papers.

          A litigant  cannot ignore  her burden  of developed  pleading and

          expect the  district  court  to  ferret out  small  needles  from

          diffuse haystacks.  Cf., e.g., Mele v. Fitchburg Dist. Court, 850
                              ___  ____  ____    _____________________

          F.2d  817, 822 (1st Cir. 1988) (quoting Rivera-Gomez v. Adolfo de
                                                  ____________    _________

          Castro,  843 F.2d  631,  635 (1st  Cir. 1988)).   In  a nutshell,
          ______

          because Slade did not develop her  current argument regarding the

          significance of the soil-sample labels in the district court, she

          cannot press it on appeal.

                                          2.
                                          2.
                                          __

                    Slade's  thesis  that  only   new  facts  and  not  new

          arguments  about those facts are prohibited  from debuting in the

          court  of appeals  is grounded  more in  hope than  in precedent.

          Judges are not obliged  to do a movant's homework,  searching sua
                                                                        ___

          sponte  for issues  that may  be lurking in  the penumbra  of the
          ______

          motion papers.  Thus,  the raise-or-waive rule applies  with full

          force  when an appellant tries to  present a new theory about why

          facts previously placed on record  are determinative.  See United
                                                                 ___ ______

          States v.  Dietz, 950 F.2d 50,  55 (1st Cir. 1991);  Clauson, 823
          ______     _____                                     _______

          F.2d at  666.  Phrased another way, a party  is not at liberty to

          articulate specific arguments for the first time on appeal simply

          because  the general issue was  before the district  court.  See,
                                                                       ___

          e.g., Dietz, 950 F.2d at 55; United States v. Pilgrim Mkt. Corp.,
          ____  _____                  _____________    __________________

          944 F.2d  14, 21  (1st Cir.  1991); Brown  v. Trustees of  Boston
                                              _____     ___________________

          Univ., 891 F.2d 337, 357 (1st Cir. 1989),  cert. denied, 496 U.S.
          _____                                      _____ ______

          937  (1990);  Libertyville Datsun  Sales,  Inc.  v. Nissan  Motor
                        _________________________________     _____________

8

Corp.,  776  F.2d 735,  737  (7th  Cir.  1985).   Were  the  rule
          _____

          otherwise, little would be resolved in the trial courts.

D
                                          D

                    It  is true,  as appellant  points out,  that appellate

          courts retain the power to dispense  with the raise-or-waive rule

          in order to avoid a gross miscarriage of justice.  See Hernandez-
                                                             ___ __________

          Hernandez, 904 F.2d at 763; United States v. La Guardia, 902 F.2d
          _________                   _____________    __________

          1010, 1013 (1st Cir.  1990); United States v. Krynicki,  689 F.2d
                                       _____________    ________

          289,  291-92  (1st Cir.  1982).   However,  this power  should be

          exercised sparingly.  It is reserved for "exceptional  cases," La
                                                                         __

          Guardia, 902 F.2d at 1013, in which the previously omitted ground
          _______

          is "so  compelling as  virtually to insure  appellant's success."

          Hernandez-Hernandez,  904 F.2d  at 763  (citation omitted).   The
          ___________________

          case at hand does not meet these rigorous criteria.

                    At  bottom,  Slade seeks  to  raise  a factbound  issue

          which,  if presented  at  trial,  might    or  might not     have

          influenced the  jury's verdict.  The confusion  over the labeling

          of  the  soil  samples  does  not  appear  to  be  overwhelmingly

          exculpatory.   To  the  contrary, the  government's case  against

          Slade still  seems substantial.   After  all, she negotiated  the

          contract  with  Master  Chemical  which  specified  the  chemical

          content of the contaminated earth   and the new evidence does not

          address  this crucial  fact.   We consider  it unlikely  that the

          additional evidence,  on either  of Slade's theories,  would have

9

been so compelling as to assure Slade's victory at trial.  Hence,

          the miscarriage-of-justice exception cannot be invoked.4

                                          IV
                                          IV

                    We need go no  further.  Slade has waived  the argument

          that  she  pressed  below  and,  therefore,  cannot be  heard  to

          complain about  the district court's rejection  of that argument.

          By  the same  token, she is  estopped from pursuing  at this late

          date a  newly  emergent argument  never  presented to  the  lower

          court.  Because Slade, by her own devices, is caught  between the

          Scylla of  abandonment and  the Charybdis of  procedural default,

          her appeal founders.

Affirmed.
          Affirmed.
          ________

____________________

               4At the expense of carting coal to Newcastle, we also remark
          the improbability that Slade, on either of her espoused versions,

could  overcome the  due diligence  prong of  Natanel's four-part
                                                        _______
          test.    Either  way,  Slade  was  chargeable  with knowledge  of
          Lavigne's involvement,  yet  made no  effort  to produce  him  at
          trial.

                                          10