                Not for Publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

           United States Court of Appeals
                        For the First Circuit

No. 02-2313

                      UNITED STATES OF AMERICA,
                              Appellant,

                                      v.

                           HUMBERTO CORREIA,
                         Defendant, Appellee.



           APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF MASSACHUSETTS
              [Hon. Rya W. Zobel, U.S. District Judge


                                   Before

                        Selya, Circuit Judge,
                 Stapleton,* Senior Circuit Judge,
                     and Howard, Circuit Judge.


     Gregory Moffatt, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, and Denise Jefferson
Casper, Assistant United States Attorney, were on the brief, for
appellant.
     Robert A. George, for appellee.




                             October 8, 2003




*   Of the Third Circuit, sitting by designation.
          STAPLETON, Circuit Judge.      Defendant/Appellee Humberto

Correia was convicted of arson, three counts of mail fraud, and use

of fire in the commission of a felony.   After the verdict, he moved

for a new trial pursuant to Fed. R. Civ. P. 33.    At the suggestion

of the district court, one of the claims advanced by Correia in

support of that motion was ineffective assistance of counsel.

After the Rule 33 hearing, at which Correia was represented by new

counsel, the court granted a new trial on that ground.           The

government now appeals. We affirm the order of the district court.

                                 I

          In September 1996, a fire broke out in Correia’s photo

processing plant at approximately nine o’clock in the morning.    It

was quickly extinguished by the fire department. Correia submitted

an insurance claim to his insurer, Travelers Insurance.    Travelers

investigated the incident and paid the claim.

          The district court accurately summarized the government’s

case at trial in the following terms:

                 At trial, the government could not, and
          did not, present any direct evidence that
          defendant set fire to his photo processing
          laboratory on that fateful Monday morning, in
          downtown Taunton, Massachusetts. Rather, the
          case against him was crafted from a patchwork
          of circumstantial evidence, largely unrebutted
          by the defense. According to the government,
          defendant arrived at his photo lab on
          September 30, 1996, with the intent to set
          fire to the building. The government’s theory
          was that defendant was in financial straits
          and the fire became his “exit strategy.”


                               -2-
             At   trial,   the   government     relied   largely    upon    the

testimony of three individuals: Vincent Calenda, a fire causation

expert;     Gregory   Galligan,    a     fire   investigator;      and     Roger

Nascimento, a wiring inspector.         They testified that there was no

evident accidental cause and, in particular, that an electrical

problem was not involved. Galligan testified that Correia told him

on two occasions that he turned off the fire alarm system in his

building on the morning of the fire but was unable to offer any

explanation for having done so.

             For the purpose of establishing the defendant’s motive

for the arson, the government introduced a chart into evidence

detailing the defendant’s debt at the time of the fire.            This chart

showed debts of over $270,000, without explanation.             These debts

apparently included approximately $208,000 in mortgages–$90,000 on

his home, and $118,000 on his business–as well as an equipment loan

of around $53,000 and a car loan of $6,000, though the chart did

not inform the jury of these facts.

             The defense argued that the government had failed to

prove the elements of the crime beyond a reasonable doubt.                    It

suggested that the fire was electrical in nature but offered no

expert testimony in support of that suggestion.

             The trial court found four deficiencies in counsel’s

performance.1     First, counsel had no acceptable reason for failing


     1
         Correia was in fact represented by two attorneys.

                                       -3-
to call Manuel Franco, who would have testified that he installed

the alarm system in Correia’s building, that it was a burglar alarm

system, and that there was no fire alarm system to be turned off.

Second, counsel’s argument that the fire was electrical in nature,

without any proffer of expert testimony and in the face of numerous

experts for the government who stated that it was definitively not

electrical in nature, was counterproductive.               More importantly,

according to the court, counsel ignored a key piece of testimony

that   would   have   helped   the   defense       immeasurably.     Galligan

testified that in 20% of the cases, the origin and cause of the

fire remains forever undetermined.               Because there was no direct

evidence linking Correia to the fire and because the government’s

experts had reached their conclusion of arson by a process of

eliminating all other possible causes, counsel’s failure to follow

up and cross-examine Galligan on the fact that fires often go

unexplained, in the court’s words, “fell below the standard for

professionally competent assistance that is safeguarded by the

Sixth Amendment.”      Third, the district court faulted counsel’s

failure   to   call   the   attorney       who    had   conducted   Travelers’

investigation of the fire and who had concluded that “the cause of

fire should be classified as undetermined.”             In the court’s view,

the “facts and opinions contained in [the attorney’s] report

potentially provided a roadmap to reasonable doubt and a list of

solid defense witnesses.” Finally, the district court was troubled


                                     -4-
by counsel’s failure to object to the chart of Correia’s debts,

which was “highly misleading,” as it listed the total debt without

explanation and did not include any mention of Correia’s assets.

In fact, much of the debt was typical of business ownership and was

not evidence of a failing business.        Furthermore, there was no

reference to Correia’s savings account of $26,000, nor to the fact

that he was able to support a household of five.

            The district court concluded that the failure to call

Franco, by itself, as well as all four errors combined, “fell below

an   objective   standard   of   reasonableness   and   prejudiced   the

defense.”     As a result, “a serious miscarriage of justice” had

occurred and a new trial was warranted.     For essentially the same

reasons given by the district court, we affirm.

                                   II

            “Motions for a new trial are directed to the discretion

of the trial court.”   United States v. Wright, 625 F.2d 1017, 1019

(1st Cir. 1980).    “We will not disturb the disposition of a new

trial motion unless the court abused its discretion or misapplied

the law.”     United States v. Rothrock, 806 F.2d 318, 321-22 (1st

Cir. 1986).    The district court clearly applied the correct legal

standard and, so, it is its discretionary judgment that we must

review.   See United States v. Conley, 249 F.3d 38, 44-45 (1st Cir.

2001).




                                  -5-
           “The Sixth Amendment guarantees criminal defendants the

right to effective assistance of counsel at trial.”               United States

v. Downs-Moses, 329 F.3d 253, 265 (1st Cir. 2003). “To demonstrate

a violation of this right, a defendant must show that counsel's

performance    was    constitutionally      deficient   and     that   prejudice

resulted.”      Id.       Counsel’s      assistance     is     constitutionally

ineffective only when it falls “below an objective standard of

reasonableness,”      Strickland    v.   Washington,     466    U.S.   668,   688

(1984).    Moreover, counsel’s deficiency “must have resulted in

prejudice, defined as a ‘reasonable probability that, but for

counsel's unprofessional errors, the result . . . would have been

different.’”     Epsom v. Hall, 330 F.3d 49, 53 (1st Cir. 2003)

(quoting Strickland, 466 U.S. at 694).

           We hold that there was no abuse of discretion in the

finding that the errors identified by the district court rendered

the assistance received by Correia constitutionally ineffective.

Defense counsel’s failure to call Franco, who was in the best

position to know whether the defendant had a fire alarm and would

have testified that no such alarm existed for the defendant to have

turned off, is mystifying.         Galligan’s testimony that Correia had

admitted   turning off the fire alarm on the morning of the fire was

by far the most damning evidence the government had to offer.

Defense counsel had a full and convincing response from a neutral

witness and failed to play this trump card.             Moreover, given the


                                      -6-
absence   of   direct   evidence   of   arson   and   the   fact   that   the

government’s experts were accordingly compelled to attempt to prove

the government’s case by eliminating other causes, the frequency of

cases of undetermined cause was an obvious theme to have stressed.

            With   respect   to    prejudice,     given     the    entirely

circumstantial nature of the government’s case and the seriousness

of the failings of defense counsel, the district court did not

abuse its discretion in finding a “reasonable probability that, but

for counsels’ unprofessional errors, the result . . . would have

been different.”

                                   III

            The order of the district court granting a new trial is

affirmed.




                                   -7-
