
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          March 28, 1994        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.                                  __________________                     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.                                   ______________                                 ___________________               William L. Ferreira on brief pro se.               ___________________               A. John Pappalardo, United  States Attorney, and S. Theodore               __________________                               ___________          Merritt, Assistant United States Attorney, on brief for appellee.          _______                                  __________________                                  __________________                 Per Curiam.  Defendant/appellant William L. Ferreira was                 __________            convicted of  armed bank  robbery, see 18  U.S.C.    2113(d),                                               ___            conspiracy to commit bank  robbery, see 18 U.S.C.    371, and                                                ___            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                                         -2-            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                                _________            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,                                                             _____  ____                                            ____________________            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.                                         -3-            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.                                              ____________________            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            ______     ____            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).                                         -4-            United States v. Slade, 980 F.2d 27, 29 (1st Cir.  1992).  We            _____________    _____            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.                  _____________    ________            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            ______________            function of the grand jury is to inquire into all information            that might possibly bear on its investigation); United States                                                            _____________            v.  Dionisio, 410  U.S. 1,  15  (1973) (recognizing  that the                ________            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).                      ______________            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.                                              ________________            at 301.                   In his motion to quash the grand jury subpoena, Ferreira            utterly    failed   to    meet   his   burden    of   showing                                         -5-            unreasonableness.  See In re Pantojas, 628 F.2d 701, 704 (1st                               ___ ______________            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.                                                     ___ _____________            Sheehan,  583 F.2d 30, 32 (1st Cir. 1978) (commenting that it            _______            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                                      __________            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                                            ____________________            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.                 _________                                            ____________________            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                                                       ___ ____            at  568 n.10, and there was no need to conduct an evidentiary            hearing here.                                         -7-
