APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS [Hon. Nathaniel M. Gorton, U.S.
Allison Koury, on brief for appellant.
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.
Lynch, Stahl, and Barron, Circuit Judges.
BARRON, CIRCUIT JUDGE.
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).
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
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
González-González, 258 F.3d 16, 20
(1st Cir. 2001)).
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).
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).
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.
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