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United States v. Ponzo

United States Court of Appeals, First Circuit

January 9, 2019

UNITED STATES OF AMERICA, Appellee,
v.
ENRICO M. PONZO, a/k/a HENRY PONZO, a/k/a MICHAEL P. PETRILLO, a/k/a RICO, a/k/a JOEY, a/k/a JEFFREY JOHN SHAW, a/k/a JAY SHAW, Defendant, Appellant.

          APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Nathaniel M. Gorton, U.S. District Judge]

          Allison Koury, on brief for appellant.

          Andrew E. Lelling, United States Attorney, Dustin M. Chao, Assistant U.S. Attorney, Brian A. Benczkowski, Assistant Attorney General, Matthew S. Miner, Deputy Assistant Attorney General, William A. Glaser, Attorney, Appellate Section, Criminal Division on brief for appellee.

          Before Lynch, Stahl, and Barron, Circuit Judges.

          BARRON, CIRCUIT JUDGE.

         In 2014, Enrico Ponzo was convicted on twelve federal criminal counts -- including conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) -- in the District of Massachusetts. The convictions arose from his role in the late 1980s and early 1990s in a large criminal organization called "La Cosa Nostra." The District Court imposed a lengthy prison sentence and also entered a $2.25 million money judgment forfeiture. Ponzo appealed the convictions, his sentence, and the money judgment forfeiture. We affirmed. See United States v. Ponzo, 853 F.3d 558 (1st Cir. 2017).

         On November 28, 2016, Ponzo moved for a new trial under Federal Rule of Criminal Procedure 33 on the basis of evidence that he claims is newly discovered. He also moved for an evidentiary hearing to support this motion. The District Court denied both motions without issuing an opinion. Then, in 2017, the District Court ordered the forfeiture of a gold ring in partial satisfaction of the previously ordered money judgment forfeiture. In the consolidated appeals that are now before us, Ponzo challenges all three of these orders by the District Court. None of his challenges have merit. We thus affirm.[1]

         I.

         Under Rule 33, a defendant who has been convicted of a federal offense may move for a new trial within three years on the basis of newly discovered evidence. Fed. R. Crim. P. 33(b)(1). To succeed on such a motion, the defendant must show (1) that "the evidence was unknown or unavailable to the defendant at the time of trial;" (2) that the defendant's "failure to learn of the evidence was not due to lack of diligence by the defendant;" (3) that "the evidence is material, and not merely cumulative or impeaching;" and (4) that the evidence "will probably result in an acquittal upon retrial." United States v. Flores-Rivera, 787 F.3d 1, 15 (1st Cir. 2015) (quoting United States v. González-González, 258 F.3d 16, 20 (1st Cir. 2001)).

         If the newly discovered evidence involves impeachment evidence withheld in violation of Giglio v. United States, 405 U.S. 150 (1972), then "a 'more defendant-friendly' standard applies to the prejudice inquiry encompassed by the third and fourth prongs." United States v. Calderón, 829 F.3d 84, 90 (1st Cir. 2016) (quoting Flores-Rivera, 787 F.3d at 15). In such a case, a defendant "must establish only a 'reasonable probability' of a different outcome if the government had disclosed the evidence prior to trial." Id. (quoting Flores-Rivera, 787 F.3d at 15-16).

         With respect to a preserved challenge to the denial of such a motion, our review is for "manifest abuse of discretion." Id. (quoting United States v. Alverio-Meléndez, 640 F.3d 412, 423 (1st Cir. 2011)). We review unpreserved challenges only for plain error. United States v. Scott, 877 F.3d 30, 37 (1st Cir. 2017).

         A.

         Ponzo first contends that he is entitled to a new trial on the basis of a report by the Federal Bureau of Investigation ("FBI") that he contends was not disclosed by the government. He claims the report indicates that the FBI had filmed a search conducted of the curtilage of a cabin in Idaho in which Ponzo had been living under an alias for several years prior to his arrest there.

         We laid out in some detail the set of events that led to and included Ponzo's indictment, flight from Massachusetts to Idaho, arrest in Idaho, and eventual conviction and sentencing in our prior opinion. See Ponzo, 853 F.3d at 565-72. We see no need to repeat those facts here. Suffice it to say, in Ponzo's ...


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