
USCA1 Opinion

	




          January 23, 1996                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 94-2221                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  WILLIAM R. TIBOLT,                                Defendant, Appellant.                                                                                      ____________________                                     ERRATA SHEET             The opinion of this Court issued on December 29, 1995, is amended        as follows:             Page 10, line 6, should read:  ". . . at the Tibolt residence."                              UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 94-2221                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  WILLIAM R. TIBOLT,                                Defendant, Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                                                                      ____________________                                Selya, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________             Anthony  M. Cardinale,  with  whom Nicholas  J.  DiMauro and  Law             _____________________              _____________________      ___        Offices of Anthony M. Cardinale were on brief for appellant.        _______________________________             William C.  Brown, Attorney,  Appellate  Division, Department  of             _________________        Justice, with whom  Donald K.  Stern, United States  Attorney, was  on                            ________________        brief for appellee.                                                                                      ____________________                                  December 29, 1995                                          2                                                                                      ____________________                                          3                    CYR,  Circuit Judge.    Following  his conviction  on a                    CYR,  Circuit Judge.                          _____________          money laundering charge, 18  U.S.C.   1956, in the  United States          District Court for the  District of Massachusetts, William Tibolt          appeals two trial court  rulings relating to incriminating finan-          cial records seized from his  residence in a warrantless  search.          Finding no error, we affirm.                                           I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    Around mid-morning  on July 27, 1992,  a security alarm          activated  in the  Dombrowski residence  located at 13  Old Salem          Path in Gloucester, Massachusetts.  As the security alarm company             JK Security    was  unable to make telephone contact  with the          Dombrowski residence to determine whether  the alarm had been set          off accidentally,  it telephoned the Gloucester  Police to report          the alarm.   Officer Joseph Palazzola was  dispatched to investi-          gate  the alarm report at the Dombrowski residence, which is next          door to the Tibolt residence at 11 Old Salem Path.                      Both residences are set well  back from Old Salem  Path          and largely concealed from view.  Two driveways    separated by a          tree  and some shrubbery    lead to  the Tibolt home.  The Tibolt          mailbox     bearing "11 Old Salem Path"    is located immediately          to  the right  of  the first  Tibolt  driveway.   The  Dombrowski          mailbox    marked "dombrowski   13"    is located a few feet left          of  the  second Tibolt  driveway, more  than  60 feet  before the                                            ____  ____  __ ____  ______          driveway entrance  to the Dombrowski  residence at  13 Old  Salem          Path.                                            2                    Upon observing the mailbox  marked "13," Officer Palaz-          zola mistakenly entered  the second driveway to  the Tibolt resi-          dence.  He checked the exterior  of the residence for signs of an          attempted break, or burglary  in progress.  Although he  noted no          signs  of forced entry, Palazzola  found an unlocked  door on the          rear deck.   He opened  the door and  called inside to  alert any          occupant,  but received no response.   Given that  the police had          been  requested to  investigate the  alarm, that  a door  was un-          locked, and that Palazzola  had been unable to make  contact with          anyone inside the  house, he  reasoned that the  alarm might  not          have been activated accidentally.                    Palazzola  promptly  called  for  backup,  and  Officer          Thomas Williams  arrived within five minutes.   Williams likewise          drove  to the Tibolt  residence rather than  the Dombrowski resi-          dence,  because he saw Palazzola's  squad car parked  next to the          Tibolt  residence.   Williams immediately  recognized the  Tibolt          residence as having been the target of a prior investigation by a          Gloucester  Police drug task force in which he had participated.           Williams was  unsure, however, whether the  target (viz., Tibolt)          of the  task force  investigation still  owned the  residence, or          whether it was still under investigation for drug-related activi-          ties.                      Palazzola and  Williams decided  to make  an immediate          warrantless  entry through  the unlocked  rear door,  then looked          about for possible  explanations for the  alarm (e.g., any  occu-          pants, a  burglar,  "whatever").   Their  search was  limited  in                                          3          scope, eschewing drawers, cabinets  and containers.  The officers          "secured"  each room,  to  rule out  the  presence of  intruders,          captives, or injured occupants.   After sweep-searching the upper          floors,  the officers  discovered  a  well-established  marijuana          growing  facility in the basement,  then left to  obtain a search          warrant.1   Later,  armed with  a warrant, the  officers searched          the Tibolt  premises and  seized incriminating financial  records          which Tibolt subsequently  sought to suppress on the  ground that          the  search warrant was invalid because the evidence relied on in          the supporting  affidavit was  itself  the fruit  of the  earlier          warrantless search.  After hearing, the district court denied the          motion to suppress, without elaboration.                     Following the verdict,  Tibolt moved for a new trial on          the ground that he  had uncovered "new" evidence relating  to the          suppression motion  which would (1) impeach  Palazzola's suppres-          sion hearing  testimony, (2)  suggest that the  Gloucester Police          deliberately  planned to  search  the Tibolt  residence, and  (3)          demonstrate a  Franks v. Delaware,  438 U.S. 154,  155-56 (1978),                         ______    ________          violation.  Gloucester Police Department "incident cards,"  which          record  the time,  date,  desk officer,  and  location of  police          assignments, disclosed that officers had been called to Old Salem          Path on at least fourteen prior occasions to investigate security                                        ____________________               1The warrant application related the following grounds:  (1)          an intrusion alarm was reported by J.K. Systems to the Gloucester          Police Department; (2) Officers Palazzola and  Williams responded          to the  alarm report  and  found a  door open;  (3) the  officers          entered the home to  check the premises for intruders;  and (4) a          marijuana-growing facility was found in the cellar.                                            4          alarms.  The cards reflect that there were three calls to "13 Old          Salem Path" and ten others to "Old Salem Path."  One card, dating          from 1990, indicates that Officer Joseph Palazzola had  been sent          to the Dombrowski residence to investigate a security alarm.  And          two cards indicate that  a desk officer with the  initials "J.P."          had dispatched other officers to "Old Salem Path."          I   n          addition, an affidavit by Officer Theodore Lemieux, dated January          27, 1994     the day after the Tibolt suppression  hearing    and                 _     ___ ___ _____ ___ ______ ___________  _______          submitted  in  support of  a  search  warrant application  in  an          unrelated criminal proceeding, stated that           _________                    an  informant . .  . has provided information                    __  _________        ___ ________ ___________                    that led to the  arrest and indictment of one                    ____ ___ __ ___  ______ ___ __________ __ ___                    William  Tibolt.   In  the investigation  the                    _______  ______                    informant  provided  detailed information  in                    regard to the  location of an  indoor growing                    operation that Mr.  Tibolt had  in his  home.                    The  informant provided the  name, address as                    well  as other persons  that were involved in                    the marijuana growing  operation.  The infor-                    mants [sic]  also described the  home and the                    interior as well as  a room in the  center of                    the basement that [sic] the growing operation                    was being conducted. (Emphasis added.)            But for the fact that it  contains no indication as to the timing          of  the events  described  in  it,  the Lemieux  affidavit  might          conflict with  the affidavit submitted  in support of  the search          warrant application of  July 27,  1992, see supra  note 1,  which                                                  ___ _____          described JK Security's call to the Gloucester Police Department,          the police  response, and  the officers' unexpected  discovery of                                                   __________          marijuana in  the Tibolt basement.   After hearing,  the district          court denied the motion for new trial.   United States v. Tibolt,                                                   _____________    ______          868 F. Supp. 380, 381-83 (D. Mass. 1994).                                          5                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.   Motion to Suppress          A.   Motion to Suppress               __________________                    Tibolt first challenges  the district court's  pretrial                                                                   ________          denial  of the motion to  suppress the primary  evidence of money          laundering:  the financial  records seized from his residence  on          July 27, 1992.  He contends that there was no objectively reason-          able  basis for believing that a life-threatening burglary was in          progress,  even assuming  that Officer  Palazzola reasonably  had          mistaken the Tibolt residence for the Dombrowski residence.   But                                                                        ___          see infra Section  II.B.  And  he argues  that inspection of  the          ___ _____          exterior of  the Tibolt residence  revealed no signs  of forcible          entry, and no open windows or doors.  See Brief  for Appellant at                                                ___          27-29 (citing United States  v. Erickson, 991 F.2d 529  (9th Cir.                        _____________     ________          1993)  (suppressing  evidence  seized in  warrantless  search  of          residence where officers investigating  burglar alarm observed no          indication of forced entry)).               1.   Substantive Law               1.   Substantive Law                    _______________                    A warrantless search of a private residence is presump-          tively unreasonable  under the Fourth  Amendment.  See  Payton v.                                                             ___  ______          New York, 445  U.S. 573, 586 (1980).    The  government therefore          ________          must prove that  the initial search  came within some  recognized          exception  to  the Fourth  Amendment  warrant  requirement.   See                                                                        ___          United States v. Doward,  41 F.3d 789, 791 (1st Cir. 1994), cert.          _____________    ______                                     _____          denied,  115  S. Ct.  1716  (1995).   Generally  speaking, absent          ______          probable  cause and  exigent  circumstances the  Fourth Amendment                                          6          bars  warrantless, nonconsensual  entries of  private residences.          See United States v. Curzi, 867 F.2d 36, 41 (1st Cir. 1989).2           ___ _____________    _____                    Probable cause  will be found  to have been  present if          the  officers  at  the  scene  collectively possessed  reasonably          trustworthy information sufficient to warrant a prudent policeman          in  believing that  a  criminal offense  had  been or  was  being          committed.  See Hegarty v. Somerset Cty., 53 F.3d 1367, 1374 (1st                      ___ _______    _____________          Cir. 1995), cert. denied,  No. 95-629, 1995 WL 625553  (U.S. Dec.                      _____ ______          11, 1995);  United States v. Zurosky, 614  F.2d 779, 784 n.2 (1st                      _____________    _______          Cir.  1979)   (finding probable  cause where  police investigated          possible "breaking and entering" at warehouse), cert. denied, 446                                                          _____ ______          U.S.  967 (1980) (citing Brinegar v. United States, 338 U.S. 160,                                   ________    _____________          175-76 (1949)).   "In dealing with  probable cause, . .  . as the          very name implies,  we deal  with probabilities.   These are  not          technical;   they are the factual and practical considerations of          everyday  life  on which  reasonable and  prudent men,  not legal          technicians, act."  Illinois v. Gates, 462 U.S. 213, 231 (1983).                              ________    _____                    Exigent  circumstances  exist  where   law  enforcement          officers confront  a "compelling necessity  for immediate  action                                        ____________________               2The government would have us  characterize this warrantless          entry  as a  so-called  "community caretaker"  search, a  warrant          exception  applicable  to  searches  "totally  divorced from  the          detection, investigation, or acquisition  of evidence relating to          the  violation of a criminal  statute."  Cady  v. Dombrowski, 413                                                   ____     __________          U.S.  433, 441,  447-48  (1973).   In  light of  our  alternative          disposition, we  need  not  consider  the  "community  caretaker"          exception.   But see id.  at 439 (noting  "constitutional differ-                       ___ ___ ___          ence"  between search of home and search of automobile); see also                                                                   ___ ____          United States v. Bute, 43 F.3d 531, 535 (10th Cir. 1994) (reading          _____________    ____          Cady as  applying only to  searches of  automobiles, not  homes);          ____          Erickson, 991 F.2d at  532 (same); United States v.  Pichany, 687          ________                           _____________     _______          F.2d 204, 209 (7th Cir. 1982) (same).                                          7          that w[ould] not brook the delay of obtaining a warrant."  United                                                                     ______          States v. Wilson, 36 F.3d 205, 209 (1st Cir. 1994) (citing United          ______    ______                                           ______          States v. Adams, 621 F.2d 41, 44 (1st Cir. 1980));  United States          ______    _____                                     _____________          v.  Almonte, 952 F.2d 20,  22 (1st Cir.  1991), cert. denied, 503              _______                                     _____ ______          U.S. 1010 (1992).  Although "exigency" determinations  invariably          are  fact-intensive, see United States v. Donlin, 982 F.2d 31, 34                               ___ _____________    ______          (1st Cir. 1992), "exigent  circumstances" commonly include:  "(1)          `hot pursuit' of  a fleeing felon; (2) threatened  destruction of          evidence inside  a residence  before a  warrant can  be obtained;          (3) a risk that the suspect  may escape from the residence  unde-          tected;   or (4) a  threat, posed by  a suspect, to  the lives or          safety  of the public, the police officers, or to [an occupant]."          Hegarty, 53 F.3d at 1374.  The "exigent circumstances" inquiry is          _______          limited to the objective facts reasonably known  to, or discover-          able by, the officers at the time of the search.  See Illinois v.                                                            ___ ________          Rodriguez, 497 U.S. 177, 186 (1990) (upholding warrantless search          _________          where police officers  reasonably, but mistakenly, believed  they          had obtained valid "third-party consent" to search residence from          person with authority to consent) (citing Archibald v. Mosel, 677                                                    _________    _____          F.2d 5  (1st Cir.  1982) (invoking  "good faith"  principle under          "exigent circumstances" exception)).               2.   Standard of Review               2.   Standard of Review                    __________________                    As  mixed  questions of  law  and  fact, the  "probable          cause" and "exigent  circumstances" determinations require bifur-          cated review:   whether a  particular set  of circumstances  gave          rise to  "probable cause" or "exigent  circumstances" is reviewed                                          8          de  novo and  findings  of fact  are  reviewed for  clear  error.          __  ____          United  States v.  Goldman,  41 F.3d  785,  786 (1st  Cir.  1994)          ______________     _______          (probable cause),  cert. denied, 115  S. Ct. 1321  (1995); United                             _____ ______                            ______          States v. Gooch, 6 F.3d 673, 678 (9th Cir. 1993) (exigent circum-          ______    _____          stances).   Where, as here,  there are no  explicit factual find-          ings, the record below is assessed in the light most favorable to          the  trial court ruling.   See United States  v. Baldacchino, 762                                     ___ _____________     ___________          F.2d 170, 176 (1st Cir. 1985).                3.   Application of Law               3.   Application of Law                    __________________                    Tibolt does not challenge the factual findings implicit          in  the  district court  ruling,  given  that the  evidence  most          central  to the ruling    the police descriptions relating to the          alarm  report, the locations of  the mailboxes, the unlocked door              is undisputed.3   Moreover,  these implicit  findings unques-          tionably  support the  challenged legal  conclusion that  Officer          Palazzola had probable cause  to believe a breaking  and entering          had been or was being committed at the Tibolt residence.                                          ____________________               3On  appeal,  Tibolt  asserts  no direct  challenge  to  the          objective  "reasonableness"  of Palazzola's  putative  mistake             _________          purportedly caused by the juxtaposition of the Dombrowski mailbox          and the entrance to Tibolt's  second driveway    in investigating          the Tibolt residence, instead of Dombrowski's,  for a burglary in          progress.   Rather, he questions only  whether Palazzola, despite          his protestations to the contrary, knowingly used this fortuitous          circumstance as a pretext for conducting a warrantless search for          drugs as  part of an  ongoing task force  investigation targeting          the Tibolt residence.  The only evidence of such a ruse, however,          was presented  in his post-conviction motion.   See infra Section                                _______________           ___ _____          II.B.   At the  pretrial hearing,  the  inquiry into  Palazzola's                          ________          state of mind necessarily turned, for the most part, on the trial          court's observation of Palazzola's demeanor, and  its credibility          determination, matters uniquely within  the province of the trier          of  fact.  United  States v. Zapata,  18 F.3d 971,  975 (1st Cir.                     ______________    ______          1994).                                           9                    A  security  alarm  had  been activated,  and  when  JK          Security  placed  a call  to  the  Dombrowski residence,  it  had          received no  answer.4  These circumstances  severely undercut any          likelihood that  the security  alarm had been  activated inadver-          tently by a resident.   Moreover, upon his arrival  approximately                                                              _____________          ten minutes later, Palazzola checked all windows and doors at the          ___ _______ _____          Tibolt  residence.5  Instead of finding all doors secured, as one                                        ____________________               4Tibolt cites cases involving  various external indicia of a          "break," see,  e.g., Commonwealth v.  Fiore, 403 N.E.2d  953, 955                   ___   ____  ____________     _____          (Mass. Ct.  App.) (upholding warrantless search  where outer door          found  broken off hinges), cert. denied, 449 U.S. 938 (1980), but                                     _____ ______                       ___          no alarm system  activation.  See Erickson, 991 F.2d  at 530, 533          __ _____ ______  __________   ___ ________          (noting that government, on appeal, had conceded that no "exigent          circumstances" had been shown, given the absence of any activated          security alarm; no visible sign of forced entry;  witness reports          that  suspected  burglars had  departed  area  30 minutes  before          police  officers' arrival;  and officers'  failure to  "knock and          announce" before  entry); United  States v.  Moss, 963  F.2d 673,                                    ______________     ____          677,  679  (4th  Cir.  1992) (invalidating  search  because  "the          Government  has formally  conceded  that  this  is not  an  'exi-          gent-circumstances case' and does  not seek to uphold the  search          here  on that  basis,"  given that  police  officer observed  "no          [external] indication  that any illegal occupant  was inside" the          cabin); Commonwealth v. Bates, 548 N.E.2d 889, 892-93  (Mass. Ct.                  ____________    _____          App. 1990) (invalidating search where police did not even suspect          an  ongoing  crime,  but  were merely  investigating  a  "missing          person" report, after waiting over three hours before investigat-          ing missing person's apartment); State v. Morgavi, 794 P.2d 1289,                                           _____    _______          1292-93  (Wash.  Ct. App.  1990)  (invalidating  search based  on          police observation of "a car  in front of the garage, opened  and          partially broken doors  to the garage,  an open back door  to the          house  and an open side  door to the  garage," but distinguishing          cases where "the  police were  summoned to the  premises by  con-          cerned  neighbors who had witnessed the burglaries and the flight          of suspects").  We think it clear that the activation of an alarm          system is an external "sign" of a possible forced entry.               5Although  the  Dombrowski residence  bore  a "JK  Security"          sticker,  and the  Tibolt  residence an  "ADT Security"  sticker,          there was no  evidence that  Palazzola had been  informed by  the          dispatcher that JK  Security had  reported the  alarm.   Further,          while  dispatchers  sometimes write  the  name  of the  reporting          security  company on the incident cards, see infra Section II.B.,                                                   ___ _____          the investigating officers do not receive these cards for comple-                                          10          might reasonably expect while the residents are away, he found an          unlocked door on the  rear deck and received  no response to  his          efforts  to communicate with anyone  who might be  inside.  These          circumstances significantly enhanced the likelihood of an intrud-          er.                    For similar  reasons, we  conclude  that Palazzola  was          presented  with "exigent  circumstances" permitting  an immediate                                                                  _________          warrantless  entry.  Without entering, he could not know but what          an  intruder  had managed  to get  into  the residence,  and even          injured or captured a resident, then fled; or had been caught off          guard by the police and remained in the residence with a forcibly          detained resident.  Even the authorities cited by Tibolt acknowl-          edge the potential exigencies  attending such circumstances.  See                                                                        ___          Erickson, 991 F.2d at 533  ("In a wide variety of contexts,  this          ________          and  other circuits  have upheld  warrantless searches  conducted          during  burglary  investigations  under  the  rubric  of  exigent          circumstances.");  Commonwealth  v. Fiore,  403  N.E.2d  953, 955                             ____________     _____          (Mass. Ct.  App.) ("It  seems  clear to  us  that a  house  break          without more as set  out in the affidavit raises  the possibility          of  danger to  an occupant and  of the  continued presence  of an          intruder and indicates  the need to secure the premises.  In such          circumstances `(t)he right of the police to enter and investigate          in an emergency without the accompanying intent  to either search          or arrest is inherent in the very nature of their duties as peace                                        ____________________          tion until after their investigation of the alarm report.  In any                     _____          event, Tibolt has not raised this matter.  See supra note 3.                                                     ___ _____                                          11          officers.'")  (citation  omitted),  cert. denied,  449  U.S.  938                                              _____ ______          (1980)).   Hindsight  discloses,  of course,  that Palazzola  was          mistaken.   Nevertheless, at the time, see Rodriguez, 497 U.S. at                                    __ ___ ____  ___ _________          186,  an officer confronted  with these  circumstances reasonably          could  have concluded  that there  was an  imminent risk  "to the          lives or safety  of the public," Hegarty, 53 F.3d  at 1374, or to                                           _______          an injured or immobilized resident.  See, e.g., Murdock v. Stout,                                               ___  ____  _______    _____          54  F.3d 1437, 1443 (9th Cir. 1995) (upholding warrantless search          of  residence  following  burglary  report,  where  investigating          officers found some signs  that resident might have been  at home          when an  intruder entered dwelling,  and received no  response to          their calls, thereby creating  a "fair probability  that . . .  a          resident might  be in need of  assistance") (distinguishing prior          circuit precedent in United States v. Erickson, 991 F.2d 529 (9th                               _____________    ________          Cir.  1993)).   Accordingly, the  district court  did not  err in          denying the motion to suppress.          B.   Motion for New Trial          B.   Motion for New Trial               ____________________                    We  turn now to the district court ruling denying a new          trial.   Tibolt contends  that the "newly  discovered" Gloucester          Police  "incident  cards" and  the  Lemieux  affidavit support  a          rational inference  that Officer  Palazzola committed perjury  at          the  suppression  hearing,  in  explaining  that  the  misleading          placement  of the Dombrowski mailbox at the opening of the second          Tibolt driveway, and his own unfamiliarity with the two residenc-          es, had caused him to  go to the Tibolt residence to  investigate          the reported alarm at the Dombrowski residence.  Tibolt maintains                                          12          that  the  incident cards  show that  Palazzola  had been  to the          Dombrowski residence at least  once before and, therefore, should          have recognized  his  mistake  on  this occasion.    Further,  he          argues, the Lemieux affidavit suggests that Palazzola's "mistake"          was actually part of  an elaborate, conspiratorial ruse, manufac-          tured by the Gloucester Police task force to enable a warrantless          search of the Tibolt residence for drugs.  Cf. Curzi, 867 F.2d at                                                     ___ _____          43 n. 6 (noting that police may not justify warrantless search by          manipulating  events to  generate "exigency").   Finally,  in the          affidavit supporting the search warrant  application submitted on          July 27, 1992    presumably premised solely  on the fruits of the                                               ______          warrantless  search    the police failed  to disclose their prior          investigations of the Tibolt residence for suspected drug activi-          ties.   Tibolt  insists that  the failure  to disclose  the prior          investigations of  the residence constituted a  "clear violation"          of Franks v. Delaware, 438 U.S. 154 (1978).               ______    ________               1.   Substantive Law                1.   Substantive Law                    _______________                    A  motion  for  new  trial based  on  newly  discovered          evidence will  not be allowed unless the  movant establishes 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.  United States v.                                                           _____________          Ortiz, 23 F.3d 21, 27 (1st Cir. 1994); United States v.  Natanel,          _____                                  _____________     _______          938 F.2d 302, 313  (1st Cir. 1991), cert.  denied, 502 U.S.  1079                                              _____  ______          (1992).  If, however,  the "new" evidence was within  the govern-                                          13          ment's  control and  its disclosure was  withheld, the  third and          fourth criteria are less stringent:                    The  usual  locution,   taken  from   Justice                    Blackmun's  opinion in Bagley,  [473 U.S. 667                                           ______                    (1985)], is that the  nondisclosure justifies                    a  new  trial  if  it is  "material,"  it  is                    "material" only  if  there is  "a  reasonable                    probability"  that  the  evidence would  have                    changed   the   result,  and   a  "reasonable                    probability" is "a probability  sufficient to                    undermine confidence in the outcome."  Id. at                                                           ___                    682.  . . .  This somewhat delphic "undermine                    confidence" formula suggests that  [a] rever-                    sal  [and a  remand for  new trial]  might be                    warranted in some cases even if there is less                    than an even  chance that the  evidence would                    produce  an  acquittal.   After  all,  if the                    evidence  is close  and the  penalty signifi-                    cant,  one might think  that undisclosed evi-                    dence  creating  (for example)  a  33 percent                    chance of a  different result would undermine                    one's confidence  in the  result.   And while                    Bagley appears to give little weight to other                    ______                    factors--such as the  degree of fault on  the                    prosecutor's part and the specificity  of the                    defense  request--it  is  not entirely  clear                    that these variables must be ignored.          United States v. Sepulveda,  15 F.3d 1216, 1220 (1st  Cir. 1993),          _____________    _________          cert. denied, 114 S. Ct. 2714 (1994).           _____ ______               2.   Standard of Review               2.   Standard of Review                    __________________                    The denial of a  motion for new trial is  reviewed only          for manifest abuse of  discretion.  See United States  v. Wright,                                              ___ _____________     ______          625 F.2d 1017, 1019 (1st Cir.  1980).  The instant motion for new          trial  triggers a  two-tier inquiry.   First,  to the  extent the          "new" evidence pertains to the disposition of the pretrial motion          to suppress financial records, wherein the district court was the                                                     ________ _____          trier of fact, Tibolt confronts the  daunting task of demonstrat-          ing  that the district court committed clear error in determining                                          14          that  the  "new" evidence  would  not have  altered  its pretrial          factual  findings.  Zapata, 18  F.3d at 975  (noting that factual                              ______          findings and  credibility determinations relating  to suppression          issues  are normally for the trier of fact).  Second, Tibolt must          show that the "new" evidence would so  undermine the government's          case as to give  rise to a "reasonable" probability  of acquittal          upon retrial.  Sepulveda, 15 F.3d at 1220.6                          _________               3.   The Incident Cards               3.   The Incident Cards                    __________________                    We cannot say that the district court ruling constitut-          ed a manifest  abuse of  discretion.  The  district court  found,          inter alia, that the police incident reports would not suffice to          _____ ____          undermine Officer Palazzola's credibility; hence, were not likely          to result in an acquittal.  Tibolt, 868 F. Supp. at 382.  Nor are                                      ______          we persuaded  that Palazzola perjured himself  at the suppression          hearing.   Rather, he testified simply that he could not remember          having been at the  Dombrowski residence prior to July  27, 1992.          In fact,  the incident cards show  that he was sent  there on but          one  occasion     three  years  before  the pretrial  suppression          ___               _____  _____          hearing.  Further,  this incident  card did not  even compel  the          conclusion  that Palazzola  went to,  or secured,  the Dombrowski          residence on that prior  occasion.  Thus, the district  court was                       ____ _____  ________          entitled to  find  that  the incident  cards  did  not  undermine          Palazzola's claimed lack of memory.  Cf. Natanel, 938 F.2d at 313                                               ___ _______                                        ____________________               6We assume,  without deciding,  that the "new"  evidence was          within  the  government's  control  and  potentially  subject  to          disclosure.  But see infra Section II.B.4 (noting that government                       ___ ___ _____          did disclose  essential information, later  reiterated in Lemieux          affidavit, at pretrial suppression hearing).                                            15          (noting somewhat lesser burden on new-trial movant where evidence          shows witness's prior testimony was "deliberately false").  Given          their marginal  direct probative value,  we cannot  say that  the          incident cards  alone were sufficient to  generate a "reasonable"          probability  that Tibolt would  be acquitted  upon retrial.   Cf.                                                                        __          Sepulveda, 15  F.3d at  1220 n.5  (noting  that newly  discovered          _________          evidence pertaining  exclusively to a government witness's credi-          bility rarely warrants new trial).      4.   The  Lemieux Affida-                                                  4.   The  Lemieux Affida-                                                       ____________________          vit          vit          ___                    The district court found the Lemieux affidavit similar-          ly inconclusive.   Although the  affidavit might contribute  to a          plausible inference  of police  conspiracy, it certainly  did not          compel such a finding, especially since its temporal relevance is          ______          so unclear.   For one thing, it is not unreasonable to think that          Lemieux may have been  imprecise in recollecting the sequence  of                                                               ________          the events which had occurred a year and a half earlier.  That is          to say,  there is nothing  in the affidavit  to suggest  but what          Lemieux may  have been remembering  that Tibolt was  arrested and          that  an informant's  tip simply  corroborated what  the officers                                            ____________          themselves accidentally discovered.  Nor does the Lemieux affida-          vit, vague  as it  is, make it  probable that an  acquittal would          result upon retrial.                     In  all events, we need not rest our decision solely on          the "credibility"  ground, since the district court found also             with  respect to the information in the Lemieux affidavit    that          Tibolt had not met  the first two prongs of the  Ortiz test.  See                                                           _____        ___                                          16          Natanel, 938 F.2d at  313 (failure to  establish any of the  four          _______                                          ___          Ortiz factors defeats motion  for new trial).  The  court further          _____          found  that Tibolt  had not  shown that  this "new"  evidence was          either  unknown or unavailable at  the time of  the pretrial sup-          pression hearing, nor that Tibolt had exercised  due diligence to          discover  the evidence earlier.  See  Tibolt, 868 F. Supp. at 382                                           ___  ______          ("What  is  more, the  government  proffered  at the  suppression          hearing the  fact that Tibolt's  home had  been the subject  of a          local drug investigation before the search, and made available to          Tibolt  one of  the officers involved  in that  investigation for          questioning.").   At the  pretrial suppression hearing, moreover,          the  government disclosed  to the  defense that  Officer Williams          participated in a  previous task force surveillance of the Tibolt          residence,  and that  "at that  time there  were some  reports of                                                           ____  _______          possible  drug  activities  involving  that  house."    (Emphasis          added.)  This disclosure certainly should  have alerted Tibolt to          the probability  that  an informant  was  involved.   Yet  Tibolt          failed to pursue information  relating to whether the warrantless          search of July 27, 1992 was a mere "ruse" designed to fabricate a          showing  of probable cause.  Since the finding that Tibolt failed          to exercise due diligence was not clearly erroneous,  see Zapata,                                                                ___ ______          18 F.2d  at 975,  he may  not rely  on this  evidence to  mount a          renewed                attackonthewarrantlesssearchorthesearchwarrantapplication.7                                        ____________________               7As  noted above, see supra p. 4, Tibolt not only challenges                                 ___ _____          the  pretrial determination  that Palazzola's  warrantless search                                                         ___________ ______          was valid, but cites Franks v. Delaware as authority for a direct                               ______    ________          challenge to  the subsequent  search warrant, which  was premised                                        ______ _______          entirely  on the  fruits of  the earlier  warrantless search.   A                                          17                    The district court judgment is affirmed.                    The district court judgment is affirmed.                    _______________________________________                                        ____________________          defendant  is  not  entitled  to a  Franks  evidentiary  hearing,                                              ______          however, absent  a "substantial preliminary  showing  (1)  that a          false statement [or material omission] in the affidavit [support-          ing  the search warrant application] has  been made knowingly and          intentionally,  and (2)  that  the false  statement [or  material          omission]  is necessary for a finding of probable cause."  United                                                                     ______          States  v.  Scalia, 993  F.2d 984,  987  (1st Cir.  1993) (citing          ______      ______                                         ______          United  States v.  Rumney, 867  F.2d 714,  720 (1st  Cir.), cert.          ______________     ______                                   _____          denied, 491 U.S. 908 (1989)).             ______               We discern no principled basis for treating the Franks claim                                                               ______          differently than  Tibolt's direct  challenge  to the  warrantless          search.  To the  extent the "new" evidence underlying  the Franks                                                                     ______          hearing  request was available prior to  trial (i.e., the Lemieux          affidavit) by the exercise  of due diligence, Tibolt's post-trial          Franks request based  on that  evidence is untimely.   See  supra          ______                                                 ___  _____          Section II.B.4.   The  marginal probative  value of  the incident          cards in undercutting Palazzola's  pretrial testimony is insuffi-          cient, by itself, to  support a "substantial preliminary showing"                                           ___________          that the  evidence, if disclosed, would have altered the decision          that there  was probable cause  to issue  a search warrant.   See                                                                        ___          supra Section II.B.3; see  also, e.g., United States  v. Hiveley,          _____                 ___  ____  ____  _____________     _______          61 F.3d 1358, 1360 (8th Cir. 1995) (noting that "the 'substantial          showing' requirement  needed to  obtain a Franks  hearing is  not                                                    ______          lightly met").                                            18
