USCA1 Opinion
November 24, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1176
UNITED STATES OF AMERICA,
Appellee,
v.
FRANCES SLADE,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Evan Slavitt, with whom Hinckley, Allen, Snyder & Comen was
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on brief, for appellant.
J. Carol Williams, Attorney, Environment & Natural Resources
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Division, U.S. Department of Justice, with whom Vicki A. O'Meara,
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Acting Assistant Attorney General, Jacques B. Gelin and H. Claire
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Whitney, Attorneys, were on brief, for the United States.
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SELYA, Circuit Judge. This appeal challenges the
SELYA, Circuit Judge.
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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
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United States v. MacDonald & Watson Waste Oil Co., 933 F.2d 35
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(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
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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.
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Natanel, 938 F.2d 302, 313 (1st Cir. 1991), cert. denied, 112 S.
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Ct. 986 (1992); United States v. Martin, 815 F.2d 818, 824 (1st
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Cir.), cert. denied, 484 U.S. 825 (1987); United States v.
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Wright, 625 F.2d 1017, 1019 (1st Cir. 1980). The defendant must
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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.
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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
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Natanel, 938 F.2d at 313.
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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
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MacDonald & Watson, 933 F.2d at 39-40. For another thing, our
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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
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"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
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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.
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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.
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United States, 904 F.2d 758, 763 (1st Cir. 1990); Clauson v.
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Smith, 823 F.2d 660, 666 (1st Cir. 1987) (collecting cases);
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United States v. Figueroa, 818 F.2d 1020, 1024 (1st Cir. 1987).
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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-
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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 ___,
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___ (1st Cir. 1992) [No. 92-1639; slip op. at 4]; United States
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v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S.
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1082 (1990).
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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.
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Passing allusions are not adequate to preserve an
argument in either a trial or an appellate venue. See United
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States v. Zannino, 895 F.2d 1, 17 (1st Cir.) ("Judges are not
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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-
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Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d
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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
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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
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F.2d 817, 822 (1st Cir. 1988) (quoting Rivera-Gomez v. Adolfo de
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Castro, 843 F.2d 631, 635 (1st Cir. 1988)). In a nutshell,
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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.
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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
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sponte for issues that may be lurking in the penumbra of the
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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
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States v. Dietz, 950 F.2d 50, 55 (1st Cir. 1991); Clauson, 823
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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,
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e.g., Dietz, 950 F.2d at 55; United States v. Pilgrim Mkt. Corp.,
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944 F.2d 14, 21 (1st Cir. 1991); Brown v. Trustees of Boston
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Univ., 891 F.2d 337, 357 (1st Cir. 1989), cert. denied, 496 U.S.
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937 (1990); Libertyville Datsun Sales, Inc. v. Nissan Motor
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8
Corp., 776 F.2d 735, 737 (7th Cir. 1985). Were the rule
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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-
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Hernandez, 904 F.2d at 763; United States v. La Guardia, 902 F.2d
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1010, 1013 (1st Cir. 1990); United States v. Krynicki, 689 F.2d
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289, 291-92 (1st Cir. 1982). However, this power should be
exercised sparingly. It is reserved for "exceptional cases," La
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Guardia, 902 F.2d at 1013, in which the previously omitted ground
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is "so compelling as virtually to insure appellant's success."
Hernandez-Hernandez, 904 F.2d at 763 (citation omitted). The
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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
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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.
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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
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test. Either way, Slade was chargeable with knowledge of
Lavigne's involvement, yet made no effort to produce him at
trial.
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