USCA1 Opinion
March 28, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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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]
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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.
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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
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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.
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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
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(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.
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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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