United States Court of Appeals
                     For the First Circuit


No. 05-1121

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                 JOSÉ RAMÓN HERNÁNDEZ-RODRÍGUEZ,

                      Defendant, Appellant.



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

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


                             Before

                  Torruella, Lipez and Howard,
                         Circuit Judges.


     Lorenzo J. Palomares, for appellant.
     Timothy R. Henwood, Assistant United States Attorney, with
whom Nelson Pérez-Sosa, Senior Appellate Assistant United States
Attorney, and H.S. García, United States Attorney, were on brief,
for appellee.



                          April 6, 2006
           TORRUELLA, Circuit Judge.         On September 3, 1998, a jury

returned   a   verdict    against     José     Ramón   Hernández-Rodríguez

("Hernández"), finding him guilty of five offenses associated with

conspiracy to import, possess, and distribute a large quantity of

cocaine. His co-defendant, Douglas Gorbea-Del Valle ("Gorbea") was

also convicted.    Hernández was sentenced to five concurrent terms

of imprisonment, each 293 months in duration.              He filed a timely

appeal, and this court affirmed the conviction and sentence on

July 17, 2000.    United States v. Hernández, 

(1st Cir.

2000), cert. denied, 

(2001).

           In June 2002, Hernández filed a Motion for a New Trial

under Fed. R. Crim. P. 331 ("Rule 33") alleging that he was

misidentified and offering newly discovered evidence.              Two years

later, in June 2004, a magistrate judge issued a Report and

Recommendation    that   Hernández    be     granted   a   new   trial.   On

December 22, 2004, the district judge rejected the magistrate's

recommendation and denied the motion for a new trial.

           Hernández herein appeals from the district court's denial

of his motion for a new trial.       Because we find that the district

court erred both in its analysis of the new evidence and insofar as

it rejected the magistrate's credibility determination without




1
   "Upon the defendant's motion, the court may vacate any judgment
and grant a new trial if the interest of justice so requires."
Fed. R. Crim. P. 33(a).

                                     -2-
first hearing the evidence, we reverse the district court and

remand the case for action consistent with this opinion.

                                        I.

              On September 27, 1997, U.S. Customs officials intercepted

a container at Crowley Yard in San Juan, Puerto Rico.              It had just

arrived from Venezuela, and although the bill of lading indicated

that the container held only plastic cups, there was contraband

inside   as    well.    The   consignee      was   a    supermarket,    and   the

consignee's     representative    was    South     Atlantic   Trading    Company

(SATCO), of which Gorbea was part owner.               Customs agents unloaded

7,514 pounds of cocaine, worth nearly one billion dollars.                    They

then re-packed the containers with approximately 24 pounds of

cocaine.

              On October 2, driver Alain Ruiz-Galíndez ("Ruiz"),2 an

employee of J.R. Transport -- a company owned by Hernández --

arrived at Crowley Yard to retrieve the container.                     The truck

stopped several times during its route, sometimes for thirty

minutes or more.       A trip that the district court judge estimated

should have taken thirty minutes took about four hours.                 Although

other cars on the road at that time had their headlights on, Ruiz

drove without headlights.        From the moment the truck left Crowley

Yard, Hernández followed it in a gray van.                  During one of the



2
    Ruiz was tried jointly with Gorbea and Hernández, but was
acquitted on all counts.

                                     -3-
stopovers he exited the van and entered the truck, where he

remained until it arrived at J.R. Transport's truck yard.            At some

point, the van stopped following the truck.

            It appeared to the officers following the truck that a

Crown Victoria with several passengers inside arrived at the truck

yard at the same time as the truck, and that one passenger carried

an object that might have been a gun.       The officers reported seeing

people in the truck yard greeting and congratulating one another

once the container was inside the lot.        After surveying the scene,

the officers moved in and made arrests.       The container had not been

opened.

            When Gorbea was arrested in December 1997, a faxed

document was found in his briefcase ("the fax").              It was dated

February 5, 1997 -- nearly ten months prior to his arrest and

almost eight months before the container was intercepted -- from a

Marina Kassert in Venezuela regarding an earlier shipment of

plastic cups.     It said, "I urgently need the information of your

friend that has the truck to square everything with him."            On the

back of the two-page fax, among several other handwritten notes,

was the name José Hernández.

            At   their   joint   trial,   neither   Gorbea   nor   Hernández

presented any evidence and both were convicted on September 3,

1998.     Ruiz, also a defendant, was acquitted.         After this court

affirmed his conviction, 

, Hernández filed


                                    -4-
a 28 U.S.C. § 2255 petition claiming ineffective assistance of

counsel.    Hernández v. United States, No. 97-228, 

,

*2    (D.P.R.    June   29,   2004).          In    that   petition,    Hernández

specifically pointed to his attorney's failure to interview Gorbea,

alleging that such an interview would have revealed exculpatory

evidence.    

   His § 2255 petition was denied in June 2002.

16, 2002, Hernández filed a Motion for a New Trial

under Fed. R. Crim. P. 33, alleging newly discovered evidence and

innocence.

             The new evidence was an affidavit from Gorbea, declaring

that he and Hernández did not know each other personally until they

met, after their arrest, in a detention facility in Puerto Rico.

According to his affidavit, at the time of his arrest Gorbea told

U.S. Customs agents Ricardo Rivera ("Agent Rivera") and Brenda

Talavera     ("Agent    Talavera")     that    he    did   not   know   Hernández

personally, and the agents took note of this information.                 

At the evidentiary hearing before the magistrate judge, Gorbea

testified that he never told Hernández about the drugs in the

truck, and that because no one in Venezuela knew Hernández either,

Hernández had "no reason to know" of the drugs in the container.

     Gorbea testified that he never told truckers what they

were hauling, and -- although he did not admit his own guilt -- he

explained that if he were to import drugs, he would never inform




                                       -5-
the truckers because he would need to pay them extra otherwise.3

testified that he chose to use J.R. Transport only

because its rates undercut those of the other trucking companies he

had considered.       

part, Hernández testified that he

had only one telephone conversation with Gorbea prior to their

arrest, and that conversation pertained only to the negotiation of

his fee for transporting the cargo.4             

agreed terms,

Hernández had transported two shipments of plastic cups prior to

the final shipment, at issue in this case.                   

     significance        was    Gorbea's      testimony

regarding the fax.         At the evidentiary hearing, he explained that

in May 1997 (approximately three months after the fax transmission)

he was in Venezuela looking for information regarding a shipment of

soda    crackers    that    was    scheduled    to   go      to    Puerto   Rico   from

Venezuela.       

      Gorbea stated that he called the company

representing Crowley Maritime Shipping in Venezuela and spoke to an

individual by the name of José Hernández-Avilés, or some similar

name, who was unable to help him.              

transferred

him to two or three other people at Crowley in Puerto Rico until


3
  By contrast, Hernández testified that he agreed to charge twenty
percent below market rate in order to secure the job with Gorbea.

do not understand this testimony to be inconsistent with
Gorbea's statement that the two only "met" after they were both in
custody because Gorbea seems clearly to refer to the first meeting
in which more transpired than simply a negotiation between a common
carrier and a consignee regarding a shipment of plastic cups.

                                        -6-
Gorbea found someone who knew when the container was due to arrive.

that the person who finally provided the

information he needed was called José Hernández, and that he wrote

the name on the back of the fax paper as he was being transferred

from one person to the next.       

stated his

belief that Defendant Hernández was not the individual to whom he

spoke on the phone that day.     

     He explained that if he

had been referring to Defendant Hernández, he would have known and

used Hernández's    nickname, "Papito," or the name of his company,

"J.R. Trucking."    

for a new trial but before the evidentiary

hearing, Hernández moved to compel Crowley Maritime Corporation to

produce personnel records regarding the existence of any employees

with the name José Hernández during the time period in question.

The records indicate that from May to October 1997, the following

were Crowley employees: 1) José Hernández-Vélez (San Juan); 2) José

Hernández-Marrero (San Juan); 3) José Hernández-Febus (San Juan);

4) José Hernández (Venezuela).

          At the evidentiary hearing, the government presented the

testimonies   of   Agents   Talavera    and    Rivera.   Agent   Talavera

testified that she went to Crowley as part of her investigation to

determine whether José Hernández had ever worked there.          Although

she did not remember the outcome of the inquiry, she stated her

belief that knowledge of a Crowley employee by the same name in


                                  -7-
Venezuela would have been "important and significant" to her

investigation.      

     Similarly, Agent Rivera testified that

he did not personally verify whether a person with the name José

Hernández       worked    at    Crowley,   and    when     asked     whether    such

information would have been important to his investigation, he

replied "[w]ell, now it is.          Perhaps back then it wasn't."             

              Agent Talavera was asked to describe the evidence --

aside    from    the     fax   --   of   Hernández's       willing    and   knowing

participation in the crime.          

        Agent Talavera responded

with    the   following:       employees   of    J.R.    Trucking    obtained    the

paperwork for the shipment and moved the container which held the

drugs; a surveillance video recorded Ruiz walking around the truck

prior to departure, inspecting the seal, the locks, and the tires;

agents following the truck saw Hernández and Ruiz periodically

getting out of the truck to examine it from behind during the

unusually long journey from Crowley Yard to the J.R. Trucking yard;

and the truck drove without headlights.                    

testified that she had no knowledge of whether the truck had

mechanical problems, but the magistrate judge found that Agent

Talavera's report clearly contained the driver's explanation as to

his circuitous route: the truck had no serviceable lights and he

used the back roads so as to avoid police detection of the fact

that the truck was driving without lights.                

note is Hernández's testimony at the evidentiary

hearing regarding Agent Talavera's summary of the evidence against

him. Hernández explained that when a trailer is made available for

pickup it has already been cleared by U.S. Customs, and thus the

fact    of   his   company   having   transported   the   container   is   not

intrinsically incriminating because he was misled by the government

as to the legality of the container's contents.           He also shed light

on the driver's behavior as Talavera described it, saying that once

the driver receives a container for pickup, the trailer is sealed

and the driver is not permitted to break the seal under threat of

penalty.       

   The driver must also conduct an external

inspection of the truck, checking the tires and inspecting the

seal.    

standard of review of a district court's denial of a

Rule 33 motion for a new trial is "manifest abuse of discretion."

United States v. Falú-González, 

, 442 (1st Cir. 2000).

The issue before us on appeal is thus whether the district court

abused its discretion when it found the newly proffered evidence

insufficient to warrant a new trial under Rule 33.5




5
   Hernández also raises a separate entrapment claim, apparently
for the first time in his brief on this appeal. We do not address
it because "[t]heories not raised in the district court cannot be
raised for the first time on appeal." Tobin v. Liberty Mut. Ins.
Co., 

, 59 n.3 (1st Cir. 2005).

                                      -9-
             We use a four-part test to evaluate a request for a new

trial on the basis of newly discovered evidence.                   

bears the weighty burden "to establish that 'the evidence

was: (i) unknown or unavailable at the time of trial, (ii) despite

due diligence, (iii) material, and (iv) likely to result in an

acquittal     upon    retrial.'"    

    States     v.

Montilla-Rivera, 

, 1064-65 (1st Cir. 1997)).

             The district court did not analyze the first two prongs,

finding that Hernández could not surmount either the third or

fourth part.       We will consider appellant's claim with respect to

the test in its entirety, cognizant of our own precedent which

dictates that we have no discretion to grant a motion for a new

trial if any one of the four factors is lacking.          United States v.

Natanel, 

, 313 (1st Cir. 1991).

             Hernández claims, and the magistrate judge agreed, that

the new evidence proffered in this case -- Gorbea's affidavit --

was unavailable at the time of trial.           This circuit has long held

that exculpatory affidavits from co-defendants who exercised their

Fifth Amendment privilege not to testify at trial may constitute

"newly discovered evidence" for Rule 33 purposes. 

.         Contra United States v. Theodosopoulos, 

, 1448 (7th Cir. 1995); United States v. Muldrow, 

, 1339 (10th Cir. 1994). Nevertheless, we have also emphasized

the   need   for    "great   skepticism"   in   such   cases    because    "[a]


                                    -10-
convicted, sentenced codefendant has little to lose (and perhaps

something to gain) by such testimony."         

.    Thus, although we are satisfied that the new evidence in

this case was unavailable at trial -- and thus sufficient to

satisfy the first prong of Montilla-Rivera -- we proceed through

the remainder of the inquiry with the appropriate caution.6

            The district court assumed arguendo, without further

discussion, that the defendant established due diligence.              The

magistrate, however, considered the issue and found persuasive an

affidavit    by   Hernández's   counsel   in   response   to   Hernández's

unsuccessful § 2255 motion in which he detailed his efforts to

solicit Gorbea's testimony at trial.       Hernández, 

,

at *12.    He stated that in pretrial meetings with both defendants

and their counsel,

            it was agreed that Defendant Gorbea would take
            the stand and testify in a way favorable to
            both him and Hernández.     However, when the
            government rested its case Gorbea had made up
            his mind, and refused to testify although his
            counsel had advised him to do so and explained
            to him that the defense needed his testimony
            to convey to the jury the fact that the
            defendants had no knowledge at all about the
            presence of cocaine in the container.


6
  In his dissenting opinion, Judge Howard expresses concern about
whether Gorbea's testimony should be accorded significant weight in
light of the fact that Gorbea has not admitted guilt. As Montilla-
Rivera requires, we have considered this evidence with "great
skepticism."    Nevertheless, we disagree with Judge Howard's
conclusion that Gorbea's testimony, even if deemed credible, would
fail to undermine significantly the government's case against
Hernández.

                                  -11-


of the circuits reveals that the requisite

measure of diligence in a Rule 33 inquiry is dependent upon the

nature of the evidence in question.                 See, e.g., United States v.

Villarreal,        

,   326   (5th    Cir.    2003)   (finding     that

defendant was not sufficiently diligent where the new evidence

proffered consisted of details in a video that was introduced at

trial, and which would have been visible had the tape been played

more slowly);        United States v. Alessi, 

, 479 (2d Cir.

1980) (observing that defendant should have been more diligent in

attempting to obtain a letter -- offered after conviction as the

basis of a Rule 33 motion -- the existence of which he had been

aware at trial).

              We find that the diligence factor -- where the new

evidence      in   question     is   the   testimony    of    a   co-defendant     who

exercised his Fifth Amendment privilege at trial -- does not

require more than Hernández has shown in this case.                        He did not

have the power to compel Gorbea to waive the privilege against

self-incrimination, and since both defendants and their counsel

agreed in pretrial meetings that Gorbea should and would testify,

it    seems   certain     that   Hernández's        diligence     burden    has   been

discharged.         Hernández has thus satisfied the second prong of

Montilla-Rivera.




                                           -12-
            The district court found that the new evidence, even if

unavailable at trial despite Hernández's exercise of due diligence,

was not material.   We have long held that a showing of materiality

is essential to a successful Rule 33 claim on the basis of new

evidence.   United States v. Wright, 

, 1019 (1st Cir.

1980).   The district court's materiality analysis was confined to

its determination that, "as the fax pertains to a different time

period and shipment, though supportive in establishing the present

conspiracy, it is logically unnecessary, and hence immaterial."

Hernández v. United States, 

, 345 (D.P.R. 2004).

            Although the district court correctly points out the

seven month gap between the date of the fax (February 5) and the

interception of the shipment at issue in this case (September 27),

we find the materiality analysis to have been too limited.      New

evidence is material if it has the potential "to alter the outcome

of the lawsuit under the applicable legal tenets."   Roche v. John

Hancock Mut. Life Ins. Co., 

, 253 (1st Cir. 1996).7


7
    Although the materiality standard set forth in Roche was
actually used in the summary judgment context, we have borrowed it
here because we have not previously defined evidentiary materiality
in this context, and we find it to be apt.

    We have defined materiality where the Rule 33 motion is based
on an alleged Brady violation. Conley v. United States, 

, 188 (1st Cir. 2005) ("The suppression of impeachment evidence
is material when a reasonable probability exists that the result of
the trial would have been different if the suppressed documents had
been disclosed to the defense.") (internal citation and quotation
marks omitted). However, there is a slight difference between the
Rule 33 analysis within the Brady context and outside of it, and we

                                -13-
Hernández was convicted of conspiracy.         The bulk of Gorbea's

affidavit and testimony speaks directly to the question of whether

Hernández knew or had reason to know that there were drugs in the

container.      This alone, in our opinion, would be sufficient to

satisfy   the   materiality   element.   As   for   Gorbea's   testimony

regarding the fax, despite the seven month delay between the fax

and the shipment, we clearly stated in our affirmance of his

conviction that "[o]f great weight is the fact that Gorbea wrote

Hernández's name on the back of the fax" because it suggested the

existence of conspiracy at an earlier date. 

.   Furthermore, we find significant the fact that in its closing

argument at trial, the government made specific reference to the

fax, asking the jury, "[n]ow, ladies and gentlemen, why does a

shipper in Venezuela need the name of the trucker in Puerto Rico,

to square what?"     Hernández, 

, at *15. And in its

rebuttal the government argued:

           The fourth count deals only with Mr. Douglas
           Gorbea and Mr. Hernández and that is a
           conspiracy to import and what is the evidence
           there. Mr. Gorbea, as early as March, starts
           importing paper cups and who is his friend and
           trucker, Mr. J.R. In government's Exhibit 11,
           the telefax, Mr. Gorbea writes in his own
           handwriting, Juan Hernández and what is Marina
           Kassert asking him, give me the name of your
           trucker, your friend.   So now you know that
           Mr. Hernández had participated in that


have not herein adopted the Conley definition of materiality
because it would be difficult to reconcile with the fourth prong of
the Falú-González test that controls here.

                                  -14-
            importation      and     that   the     importation       did
            succeed.

         The government specifically told the jury

that the fax constituted evidence of at least one count with which

Hernández      was   charged    and    ultimately        convicted.          Gorbea's

alternative explanation for the name on the fax, coupled with new

corroborating evidence of multiple employees with the same name

working   at    Crowley   during      the   time    period     in   question,      goes

directly to Hernández's claim of misidentification.                   Thus, we find

that Hernández has satisfied Montilla-Rivera's third prong.

            Finally, Hernández must demonstrate that the new evidence

is "likely to result in an acquittal upon retrial." 

(quoting 

).

The district court began its analysis with a statement that it

would assume, arguendo, that the defendant's proffered evidence is

credible.       Hernández,     350    F.    Supp.   2d    at   344.         The   court

nonetheless held that Hernández has not made a sufficient showing

under this prong because

            [w]hile there may be other explanations for
            the truck's evasive route, and even for the
            name written on the fax, "[a] reasonable jury
            could infer [petitioner's] knowledge of the
            contents   of    the   container    and    his
            participation in the larger scheme," from his
            suspicious   behavior  in   transporting   the
            container, to wit, tailing the truck in a van
            for four hours, when it should have taken an
            unaccompanied truck driver no more than a half
            hour.



                                       -15-


    (quoting   

).       Similarly

insurmountable, in the district court's view, are the "celebration

which ensued in petitioner's truck yard upon the arrival of the

container" and "the fact that the container was taken to the J.R.

Transport lot, rather than directly to [Gorbea's premises]."                          

and quotation marks omitted).

                 The district court considered the primary value of the

defendant's         new   evidence    to    be     Gorbea's      suggestion      of     an

alternative explanation for the name written on the fax. We think,

however,     that     this   assessment      fails     to     account   for    the    full

implications of the new evidence.                  If the jury were to believe

Gorbea's affidavit and testimony at a new trial, it would find

that:      Hernández and Gorbea did not know one another personally

prior to arrest; Gorbea never spoke to Hernández about transporting

drugs      and    gave    Hernández   no     reason      to    think    that    he    was

transporting anything but ordinary cargo that had cleared U.S.

Customs in the ordinary fashion; Gorbea never mentioned Hernández

to anyone in Venezuela; Gorbea only hired Hernández to haul the

container because he was the lowest bidder for the job; and the

name on the back of the February 5 fax referred to an altogether

different person.

                 Inasmuch as the district judge failed to consider the

full import of the defendant's new evidence, we conclude that the

district court abused its discretion.                  As we view the evidence in


                                           -16-
this case, if deemed credible by a jury, Gorbea's testimony would

greatly undermine the conspiracy charges against Hernández.            The

government relied heavily on the theory that Hernández and Gorbea

were close and trusted partners in establishing its case against

Hernández.     In   addition   to   the    government's   other   comments

regarding the contents of the fax, for example, the government

emphasized to the jury that "[t]his is not García Trucking, this is

J.R. Trucking.   So the plan, you see, for this deception go[es] way

back.   This did not happen over night because the people in . . .

Venezuela . . . are not going to send [the cocaine] to anybody

. . .   They are going to send it to somebody they know, somebody

they can trust, somebody who is responsible to them, if something

happens."    The government premised its case against Hernández on

the notion that the people in Venezuela who shipped the cocaine

wanted Gorbea to choose a trusted friend to transport the shipment

once it arrived.    If the jury were to believe Gorbea's testimony

that he and Hernández had no such relationship prior to their

arrest and that he never told any of his contacts in Venezuela

about Hernández, the government's theory begins to unravel.             To

prove conspiracy, the government must demonstrate "the existence of

a conspiracy, the defendant's knowledge of the conspiracy, and the

defendant's voluntary participation in the conspiracy." 

(internal citation and quotation marks omitted).

Given the government's emphasis on the importance of Hernández's


                                    -17-
close relationship with Gorbea, Gorbea's testimony would go to the

heart of each showing.

          In a new trial, the government would be left to contest

Gorbea's credible testimony (so assumed by the district court) with

the circumstantial evidence of the truck's long route, the strange

behavior of the defendant and the driver, and the celebration that

ensued upon the truck's arrival.       The district court placed great

weight on this circumstantial evidence in its analysis, relying on

our assessment of the sufficiency of the evidence on direct review.

However, a determination on direct review that certain evidence is

sufficient to support a verdict does not eliminate the possibility

that, if new evidence is later presented, a court may grant a

motion for a new trial.         Indeed, we have previously stated that

where the government's case against a defendant is "sufficient, but

underwhelming," new, credible testimony "could lead to a different

outcome." 

. On direct review, we

determined   that   the    circumstantial   evidence   presented   against

Hernández was sufficient to support the guilty verdict when viewed

in the light most favorable to the government. 

& n.6.   However, we also acknowledged that, "[a]s with much

of the evidence in this case, the record provides other possible

explanations for the[] facts" regarding the "suspicious" transport

of the container.         

shows that the jury heard

testimony from a government witness that Ruiz, Hernández's employee


                                    -18-
and   driver   of   the   truck,   had   explained   that   the   truck   was

experiencing electrical problems, including the loss of headlights,

and that he chose to drive on back roads because of those problems.

The jury also heard testimony that witnesses had observed what

appeared to be a battery generator hooked up to the truck.            These

electrical problems could explain the truck's use of back roads and

frequent stops. The eventual "celebration" in the truck yard could

be merely a congratulatory exchange regarding the safe arrival of

a disabled truck.     At the very least, this alternative explanation

calls into question the strength of the government's circumstantial

evidence.

            In considering the motion for a new trial, we must

carefully consider the strength of the government's case in light

of the new evidence.         In so doing, we find it difficult to

understand how the government's circumstantial evidence could so

overwhelm the direct testimony of Gorbea (that the district court

assumed was credible and which, by its terms, undermines the

government's theory that Gorbea and Hernández were conspiring to

transport the drugs) as to preclude a likelihood of acquittal upon

retrial.

            To the extent that the district court's denial of the

motion for a new trial may have been influenced by a negative

assessment of Gorbea's credibility, there was another error in the

judge's ruling.     Despite the district court's strong suggestion to


                                    -19-
the contrary, 

, we find that

Gorbea's testimony and credibility were of great import in the

disposition of this case because we think a reasonable jury would

not   convict   Hernández   if   it   were   to   find   Gorbea's   testimony

credible.    The Supreme Court has held that a district judge need

not hear the live testimony of a witness in order to accept the

credibility determination of a magistrate judge.           United States v.

Raddatz, 

, 680-81 (1980). However, the Court left open

the question of whether a district judge may reject a credibility

determination of a magistrate without first hearing the testimony.

n.7 ("[W]e assume it is unlikely that a district judge

would reject a magistrate's proposed findings on credibility . . .

[T]o do so without seeing and hearing the witness or witnesses

whose credibility is in question could well give rise to serious

questions which we do not reach.").

            Although we have not previously addressed this question,

a few other circuits have had occasion to consider it, and they are

in broad agreement: A district judge may not reject a magistrate's

findings as to the credibility of a witness without hearing the

witness testify first-hand. See United States v. Cofield, 

, 1306 (11th Cir. 2001); Hill v. Beyer, 

, 482 (3d

Cir. 1995); Louis v. Blackburn, 

, 1109 (5th Cir.

1980).




                                      -20-
           Today we join our sister circuits when we find that,

absent special circumstances, a district judge may not reject the

credibility determination of a magistrate judge without first

hearing the testimony that was the basis for that determination.

Thus, to the extent that the district court's analysis rested upon

the rejection of the magistrate judge's credibility determination

without hearing the testimony, the district court abused its

discretion.

                                  III.

           In summary, we conclude that the district court abused

its   discretion   by   failing   to   consider   the   full   import   of

defendant's new evidence given its decision to assume, arguendo,

Gorbea's credibility. Furthermore, to the extent that the district

court's analysis rested upon the rejection of the magistrate

judge's credibility determination without hearing the evidence, it

abused its discretion.     In light of these errors, we remand for

further proceedings.

           In considering this case, however, we are faced with a

dilemma as to whether we should remand to a different district

judge.   This dilemma arises because it will become necessary for

the district court, if it chooses not to accept the credibility

findings of the magistrate judge on remand, to hear Gorbea testify

first-hand and make its own credibility determination. Although we

believe that, upon remand, the district judge in this case would


                                  -21-
conduct    the   necessary   proceedings      with   impartiality,    we   are

concerned here with the possible appearance of injustice.                  The

district judge in this case assumed the credibility of the evidence

and then concluded, in error, that a new trial was not warranted.

If, upon remand, the same district judge were to conduct a hearing

(rather than accept the magistrate's credibility determination) and

find that the testimony was not credible, it might appear that his

determination was improperly influenced by his initial decision.

As one of our sister circuits observed in a factually similar case,

"[t]here are occasions when a matter is appropriately remanded to

a   different    district    judge   not    only   in   recognition   of   the

difficulty that a judge might have putting aside his previously

expressed views, but also to preserve the appearance of justice."

Cullen v. U.S., 

, 408 (2d Cir. 1999) (internal citation

and quotation marks omitted).              We find that this is such an

occasion.

            For the foregoing reasons, we remand this case to a

different district judge for proceedings consistent with this

opinion.

            Remanded.




                     (Dissenting opinion follows.)




                                     -22-
           HOWARD, Circuit Judge, dissenting. In finding a manifest

abuse of discretion, see, e.g., United States v. Rivera Rangel, 

, 485-86 (1st Cir. 2005), the majority fails to accord

appropriate weight to the fact that Gorbea's evidence is of a type

which, for obvious reasons, we have admonished trial courts to

regard with "great skepticism," United States v. Montilla-Rivera,

, 1066 (1st Cir. 1997) (noting that a convict who

comes forward to exonerate a codefendant only after his conviction

and sentence have become final often has little to lose and,

perhaps, something to gain).8      The majority also is too credulous

in relying on the evidence of the truck's alleged mechanical

problems   --   evidence   that   was   without   question   available   to

Hernández at the time of trial -- to discount the inculpatory

nature of the curious events surrounding delivery of the container,

which included evidence that there was no real purchaser of the

shipment, see United States v. Hernández, 

, 63-64 (1st

Cir. 2000), that the driver gave an untrue statement to the police

after his arrest, 

that Hernández gave the mundane

shipment of "plastic cups" -- for which his company supposedly was

to be paid a below-market rate of $90 -- extraordinary attention,

man who appeared to be armed was present when the



8
   In fact, nine other circuits categorically treat evidence of
this sort as insufficient to ground a Rule 33(b)(1) new trial
order. See United States v. Jasin, 

, 364-68 (3d Cir.
2002) (collecting and summarizing cases).

                                   -23-
shipment arrived, 

the arrival of the shipment was met

with a celebration, 

   But even if I were to leave these

matters aside, I still could not join the majority opinion.

           In stating that Gorbea's testimony, if believed, would

"greatly undermine the conspiracy charges against Hernández," ante

at 17, the majority analyzes the matter as if Gorbea has now

admitted to knowing that drugs were in the truck and belatedly

stepped forward to accept responsibility and exonerate the innocent

Hernández.   But Gorbea has not admitted to any such knowledge.   In

fact, Gorbea told the magistrate judge that he was innocent, and

that "I can say over my mother right there that that cocaine wasn't

mine.   That I didn't know that the cocaine was there."   If Gorbea

had no knowledge of the cocaine, of what probative value is the

fact that he did not meet Hernández until after they were arrested?

And of what probative value are the facts that he did not tell the

truckers he hired what they were hauling, that he gave Hernández no

reason to think that he was transporting anything other than

ordinary cargo, and that the "José Hernández" on the fax was

someone other than the defendant?        Little if any.




9
  The mechanical-problems story also fails to account for why the
truck made a number of u-turns on its long journey to the truck
yard.   See 

.     The majority does not
explain why a truck carrying a shipment of plastic cups might
engage in needlessly hazardous u-turns while driving without its
headlights on a back road.

                                  -24-
          The majority describes Gorbea's statements that he knew

nothing about the cocaine as a failure to admit guilt.       See ante at

5 & 11 n.6.   With respect, I think this description significantly

understates matters.        There is a difference between failing to

admit guilt and affirmatively representing that one knew nothing

about the cocaine.     Gorbea made at least two such affirmative

representations, and thereby undermined any probative value that

otherwise might have been ascribed to his testimony about not

knowing Hernández, not telling the truckers what they were hauling,

and not having Hernández in mind when he wrote "José Hernández" on

the back of the fax.    In fact, when asked whether Hernández knew

about the drugs, Gorbea responded:        "I don't know."   Clearly, the

trial judge acted well within his discretion in concluding that

Gorbea's testimony was immaterial and unlikely to result in an

acquittal if offered at a retrial.        See, e.g., Rivera 

.     Indeed, any other conclusion would have been

unsustainable.    See 

the impulse not to terminate the Rule 33

proceedings, which the government has botched by (1) failing to

bring to the attention of the magistrate judge, the district judge,

or this court the fact that Hernández's motion was untimely,10 and


10
    Under Fed. R. Crim. P. 33(b)(1), a defendant has only three
years from the date of "the verdict or the finding of guilty" to
file a motion for new trial on the basis of newly discovered
evidence. This time period may not be extended. Fed. R. Crim. P.
45(b)(2). Here, the verdict was returned on September 3, 1998, but

                                   -25-
(2) failing to highlight clearly and effectively the immateriality

of Gorbea's testimony, given Gorbea's concomitant insistence that

he did not know about the drugs.            Under the rule established in

Eberhart v. United States, __ U.S. __, 

, 404-07

(2005) (Rule 33 time limits are not jurisdictional and may be

forfeited), the government appears to have forfeited any timeliness

argument that it might have had.        But Gorbea's testimony still is

what   it   is,   and,   for   the   reasons   set   forth   above,   it   is

insufficient as a matter of law to ground a new trial order.

            Accordingly, I respectfully dissent.




Hernández did not file his motion until July 29, 2002 -- more than
ten months beyond the three-year deadline. Like the defendant in
United States v. Mojica-Rivera, 

(1st Cir. 2006),
Hernández has no claim that application to his motion of the three-
year time limit in Rule 33(b)(1) would be unjust or impracticable,
as he had approximately two years and nine months to file his
motion from the time the Rule was amended, see 

see also
United States v. Ristovski, 

, 209-13 (6th Cir. 2002).

                                     -26-