
USCA1 Opinion

	




          November 24, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 92-1176                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    FRANCES SLADE,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                              _________________________               Evan  Slavitt, with whom Hinckley, Allen, Snyder & Comen was               _____________            _______________________________          on brief, for appellant.               J. Carol Williams, Attorney, Environment & Natural Resources               _________________          Division, U.S. Department of Justice, with whom Vicki A. O'Meara,                                                          ________________          Acting Assistant Attorney General, Jacques B. Gelin and H. Claire                                             ________________     _________          Whitney, Attorneys, were on brief, for the United States.          _______                              _________________________                              _________________________                    SELYA,  Circuit  Judge.   This  appeal  challenges  the                    SELYA,  Circuit  Judge.                            ______________          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                                                                        ___          United States  v. MacDonald & Watson  Waste Oil Co., 933  F.2d 35          _____________     _________________________________          (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                                        ____________________               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.                                                     ___ ______________          Natanel,  938 F.2d 302, 313 (1st Cir. 1991), cert. denied, 112 S.          _______                                      _____ ______          Ct. 986 (1992);  United States v. Martin, 815 F.2d  818, 824 (1st                           _____________    ______          Cir.),  cert.  denied, 484  U.S.  825  (1987);  United States  v.                  _____  ______                           _____________          Wright, 625  F.2d 1017, 1019 (1st Cir. 1980).  The defendant must          ______          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.                 ___ _______                   ______                    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                                                                        ___          Natanel, 938 F.2d at 313.          _______                                         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                                                                        ___          MacDonald &  Watson, 933 F.2d at  39-40.  For another  thing, our          ___________________          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                                          4          "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                                        ____________________               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.                                          5          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.                                         ___   ____  ___________________          United  States, 904  F.2d 758,  763 (1st  Cir. 1990);  Clauson v.          ______________                                         _______          Smith,  823 F.2d  660, 666  (1st Cir.  1987)  (collecting cases);          _____          United States v. Figueroa,  818 F.2d 1020, 1024 (1st  Cir. 1987).          _____________    ________          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-                                        ____________________               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 ___,                        ___  ____  _____________    _______          ___ (1st  Cir. 1992) [No. 92-1639; slip  op. at 4]; United States                                                              _____________          v. Zannino,  895 F.2d 1,  17 (1st Cir.),  cert. denied, 494  U.S.             _______                                _____ ______          1082 (1990).                                          6          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.                                          __                    Passing  allusions  are  not  adequate to  preserve  an          argument in either  a trial or  an appellate  venue.  See  United                                                                ___  ______          States  v. Zannino, 895  F.2d 1, 17  (1st Cir.) ("Judges  are not          ______     _______          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-                           _____  ______                          _________          Leitch  Co. v. Massachusetts  Mun. Wholesale Elec.  Co., 840 F.2d          ___________    ________________________________________          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                                          7          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                              ___  ____  ____    _____________________          F.2d  817, 822 (1st Cir. 1988) (quoting Rivera-Gomez v. Adolfo de                                                  ____________    _________          Castro,  843 F.2d  631,  635 (1st  Cir. 1988)).   In  a nutshell,          ______          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.                                          __                    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                                                                        ___          sponte  for issues  that may  be lurking in  the penumbra  of the          ______          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                                                                 ___ ______          States v.  Dietz, 950 F.2d 50,  55 (1st Cir. 1991);  Clauson, 823          ______     _____                                     _______          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,                                                                       ___          e.g., Dietz, 950 F.2d at 55; United States v. Pilgrim Mkt. Corp.,          ____  _____                  _____________    __________________          944 F.2d  14, 21  (1st Cir.  1991); Brown  v. Trustees of  Boston                                              _____     ___________________          Univ., 891 F.2d 337, 357 (1st Cir. 1989),  cert. denied, 496 U.S.          _____                                      _____ ______          937  (1990);  Libertyville Datsun  Sales,  Inc.  v. Nissan  Motor                        _________________________________     _____________                                          8          Corp.,  776  F.2d 735,  737  (7th  Cir.  1985).   Were  the  rule          _____          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-                                                             ___ __________          Hernandez, 904 F.2d at 763; United States v. La Guardia, 902 F.2d          _________                   _____________    __________          1010, 1013 (1st Cir.  1990); United States v. Krynicki,  689 F.2d                                       _____________    ________          289,  291-92  (1st Cir.  1982).   However,  this power  should be          exercised sparingly.  It is reserved for "exceptional  cases," La                                                                         __          Guardia, 902 F.2d at 1013, in which the previously omitted ground          _______          is "so  compelling as  virtually to insure  appellant's success."          Hernandez-Hernandez,  904 F.2d  at 763  (citation omitted).   The          ___________________          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                                          9          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.          ________                                        ____________________               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                                                        _______          test.    Either  way,  Slade  was  chargeable  with knowledge  of          Lavigne's involvement,  yet  made no  effort  to produce  him  at          trial.                                          10
