United States Court of Appeals

For the First Circuit 

Nos. 17-1052 

17-1053 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

JOSÉ LAUREANO-SALGADO, a/k/a Geo; 

PEDRO L. RAMÍREZ-RIVERA, a/k/a Peter Pai, 

Defendants, Appellants. 

APPEALS FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. William E. Smith, U.S. District Judge] 

Before 

Howard, Chief Judge, 

Thompson and Barron, Circuit Judges. 

Carlos M. Sánchez La Costa for appellant José LaureanoSalgado. 

Irma R. Valldejuli for appellant Pedro L. Ramírez-Rivera. 

Victor O. Acevedo-Hernández, Assistant United States 

Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States 

Attorney, Mariana E. Bauzá-Almonte, Assistant United States 

Attorney, Chief, Appellate Division, and Francisco A. Besosa-
Martínez, Assistant United States Attorney, were on brief, for 

appellee. 

August 2, 2019 
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THOMPSON, Circuit Judge. 

Overview 

The government charged "La ONU" gangbangers José 

Laureano-Salgado and Pedro Ramírez-Rivera (sometimes collectively 

called "appellants") with helping murder a "La Rompe ONU" 

gangbanger nicknamed "Pekeke" (real name Christian ToledoSánchez), among other crimes1 — thus violating the Violent Crimes 

in Aid of Racketeering ("VICAR") statute, see 18 U.S.C. 

§ 1959(a)(1), as well as a statute banning the use or carry of a 

firearm in relation to a crime of violence, see 18 U.S.C. 

§ 924(c)(1)(A).2 Killing La Rompe members, the government alleged 

and proved, was central to La ONU's mission. And vice versa. 

A jury ultimately convicted Laureano-Salgado and 

Ramírez-Rivera of these and other gang-related crimes. And we 

affirmed. See Ramírez-Rivera, 800 F.3d at 12. Laureano-Salgado 

and Ramírez-Rivera later moved the district judge for a new trial 

 1 A gangbanger (at the risk of appearing pedantic) is "a 

member of a violent group of young men, especially ones who use 

guns and commit crimes." See Cambridge Dictionary, 

https://dictionary.cambridge.org/us/dictionary/english/gangbanger (last 

visited August 1, 2019). 

2 We mention these convictions because those are the ones 

germane to today's case. Readers seeking more details about their 

other convictions can find them in United States v. Ramírez-Rivera, 

800 F.3d 1 (1st Cir. 2015), which also provides some background on 

the two rival gangs. And like we did there, going forward we will 

refer to La Rompe ONU as "La Rompe." 
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premised on allegations of newly-discovered evidence that 

supposedly showed Pekeke died at the hands of La Rompe, not La 

ONU.3 The judge denied the motion, however. Unhappy with this 

ruling, Laureano-Salgado and Ramírez-Rivera ask us to reverse.4 

Unpersuaded by their arguments (discussed in a bit), we affirm. 

Testimony at Appellants' Trial 

About Pekeke's Murder 

Among the witnesses called at appellants' trial were 

three cooperating coconspirators: ex-La ONU members Wesley 

Figueroa-Cancel, José Gutiérrez-Santana, and Christian FigueroaViera. Pieced together, their testimony presented the following 

picture of the events leading to Pekeke's death.5

Figueroa-Cancel, Gutiérrez-Santana, and LaureanoSalgado attended a meeting in August 2010 where La ONU bosses 

planned Pekeke's murder. Their plot contemplated that a man named 

"Joshua" would do the deed (Joshua was a non-La ONU member whose 

grandmother lived right next door to Pekeke). La ONU members — 

including Ramírez-Rivera (who participated by speakerphone during 

 3 Laureano-Salgado filed for a new trial first. RamírezRivera then filed a motion joining and adopting Laureano-Salgado's 

motion and arguments — a motion the judge granted. But because 

they raised the same basic claims, we follow the government's lead 

and treat the two filings as a single new-trial motion. 

4 They filed separate appeals. But we consolidated them for 

purposes of oral argument only (they submitted separate briefs). 

5 The record reflects various spellings of Pekeke. For 

simplicity's sake, we use the one used in the parties' briefs. 
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the meeting) — promised to pay Joshua for his service. Following 

the orders of their La ONU superiors to a T, Gutiérrez-Santana 

gave Joshua a gun and Laureano-Salgado gave Joshua a car. La ONU 

leaders also promised to send a rescue team to get Joshua out of 

the housing project after he offed Pekeke, just in case Pekeke's 

La Rompe allies fought back. 

Joshua killed Pekeke the next day (Joshua called 

Figueroa-Cancel on a cellphone during the killing so FigueroaCancel could hear Pekeke die) — with Laureano-Salgado, RamírezRivera, Gutiérrez-Santana, and at least two other La ONU members 

serving on the rescue squad. At a meeting held right after the 

shooting, La ONU associates — including Laureano-Salgado and 

Ramírez-Rivera — told Figueroa-Viera what had happened. 

Appellants' Motion for New Trial 

And the Judge's Ruling 

Fast-forward to after we affirmed Laureano-Salgado's and 

Ramírez-Rivera's convictions and sentences. Defense counsel wrote 

the government, saying that he had heard that ex-La Rompe members 

Luis Yanyoré-Pizarro and Oscar Calviño-Acevedo testified in 

proceedings against La Rompe associates that La Rompe had killed 

Pekeke as part of a power struggle within La Rompe. Convinced 

that this testimony undercut the theory pushed by prosecutors in 

Laureano-Salgado and Ramírez-Rivera's case — i.e., that La ONU had 

murdered La Rompe-leader Pekeke as part of the La ONU racketeering 
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conspiracy — counsel asked the government to turn over materials 

"regarding" Yanyoré-Pizarro's and Calviño-Acevedo's allegations. 

Despite disputing any notion that these allegations exculpated the 

defendants, the government gave counsel a package containing the 

documents in its possession. 

Laureano-Salgado and Ramírez-Rivera then asked the judge 

for a new trial, claiming that the produced materials constituted 

newly-discovered evidence showing La Rompe had murdered Pekeke, 

not La ONU. And their court filings walked the judge through the 

relevant statements: Yanyoré-Pizarro's grand-jury testimony in 

May 2015, his interviews with agents from the Bureau of Alcohol, 

Tobacco, Firearms, and Explosives (usually referred to as "ATF") 

in January 2016, and his trial testimony in October 2016; plus 

Calviño-Acevedo's trial testimony in December 2015 — all given in 

a case against La Rompe members.6 

We just hit the highlights, offering only what is needed 

to help put some of the arguments (discussed later) into 

perspective. 

 6 "Trials," of course, "are about charges in the indictment." 

United States v. Miller, 91 F.3d 1160, 1163 (8th Cir. 1996) 

(Richard S. Arnold, C.J.). And the indictment in the La Rompe 

case did not charge any La Rompe members with the VICAR murder of 

Pekeke. 
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During questioning about La Rompe's inner workings 

before the grand jury, Yanyoré-Pizarro recounted his relationship 

with La Rompe members "Trenza" and "Papito Mojica." "They were my 

leaders when they killed [Pekeke]," Yanyoré-Pizarro said. Pekeke 

"was our leader, so they kept the — so they took over." YanyoréPizarro added that, although they remained with La Rompe, Pekeke's 

death triggered an internal war for power. "What happened," he 

said, "was when my leader, [Pekeke], was killed, there were people 

involved from . . . La Rompe . . . itself because of this very 

same — for power," and "they ended up dividing up" Pekeke's drug 

points. After Pekeke's death, Trenza, according to YanyoréPizarro, became "in charge of around fourteen drug points, which 

is what [Pekeke] left." 

In the interview with the ATF, Yanyoré-Pizarro mentioned 

some tension between La Rompe leaders in the months before Pekeke's 

death. For example, Yanyoré-Pizarro discussed how some La Rompe 

bosses at the La Rompe-controlled housing project in Alturas de 

Cupey had asked Pekeke "for help" with their drug business (because 

he had ties to marijuana traffickers on the mainland, apparently). 

But Pekeke had refused their request. Yanyoré-Pizarro also 

mentioned a conversation he had had with a La Rompe member named 

"Endrick." Endrick said that he told a La Rompe member named 

"Frank" that Pekeke was the "boss" — a statement that caused Frank 
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to slap Endrick's face. Pekeke later told Yanyoré-Pizarro that he 

told Frank to apologize to Endrick because Endrick was right about 

who the "boss" was. But Frank just looked at him and left. 

More, Yanyoré-Pizarro disclosed to ATF agents that 

Joshua was from the Luis Llorén Torres housing project and that 

Pekeke had supplied "the vehicles and the firearms" used to kill 

"Shaka," a drug-point leader there. Joshua "used to hang out with 

Endrick," though Endrick swore Joshua "was not part of the rival 

gang." 

More still, Yanyoré-Pizarro admitted that although he 

was not there when Pekeke died, he later spoke to someone named 

"Pipen" who was. And Pipen fingered Joshua — who lived with his 

[Joshua's] grandmother in the same housing project as Pekeke — as 

the killer. Pipen also said that when Pekeke's cousin wanted a 

piece of the profits from Pekeke's old drug points, Pipen warned 

him "to stop talking in a threatening manner" or else "something 

could happen to him like what happened to [Pekeke]." 

Called by the government at a La Rompe trial, YanyoréPizarro testified (in response to questions from the prosecution 

about how he got involved with La Rompe) that when Pekeke moved to 

the Los Lirios housing project and became "the head honcho," he 

(Yanyoré-Pizarro) started running Pekeke's drug points, committing 
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robberies, and killing people.7 But when Pekeke "was killed," 

Yanyoré-Pizarro fled from Los Lirios because Pekeke's men thought 

Yanyoré-Pizarro had flipped and had helped kill Pekeke. Asked to 

discuss his killing people for La Rompe, Yanyoré-Pizarro said "that 

we were at war with an opposing group, and we also had internal 

wars." 

Testifying as a government witness at a different La 

Rompe trial, Calviño-Acevedo noted (in response to questions from 

the prosecution about why he stopped going to a particular drug 

point) that "there was internal friction between us" La Rompe 

members.8 Questioned about "what that internal war consisted of," 

Calviño-Acevedo explained that "the internal war was that there 

were rumors" that La Rompe members had murdered Pekeke. 

Laureano-Salgado and Ramírez-Rivera's new-trial filings 

argued that these pieces of "recently disclosed evidence" show 

that La Rompe — and not La ONU — had murdered Pekeke to further 

the personal interests of La Rompe members, which they said 

"undermines confidence in the [j]ury VICAR verdict in this case." 

 7 This La Rompe trial involved these defendants: Rubén CottoAndio, José D. Resto-Figueroa, and Carlos Velázquez-Fontánez. 

8 This La Rompe trial involved these defendants: Pedro Vigió 

Aponte, Reinaldo Rodríguez Martínez, Víctor M. Rodríguez Torres, 

Tarsis Guillermo Sánchez Mora, and Carlos M. Guerrero Castro. 
- 10 -

Opposing the motion, the government protested that 

Laureano-Salgado and Ramírez-Rivera could not show that these 

statements would probably lead to an acquittal at a retrial because 

the evidence did not come from witnesses with firsthand knowledge 

of "the planning and execution" of Pekeke's murder. 

Applying an actual-probability-of-acquittal standard,9

the judge denied the motion for three alternative reasons: first 

that the statements "would likely not outweigh the eye-witness 

testimony" given at Laureano-Salgado and Ramírez-Rivera's 

"original trial by three of [their] fellow La ONU members"; second 

that the statements had very "limited probative" worth because 

they were "too unclear (and seemingly inconsistent)," which 

undercut Yanyoré-Pizarro's "credibility" as well; and third that 

even if the statements "could be construed as providing a 

convincing and consistent narrative . . . of Pekeke's murder," 

they would probably not be admissible at a retrial because they 

were not made on personal knowledge and violated the rule against 

hearsay. The judge did specifically note that Yanyoré-Pizarro 

"would be permitted to testify regarding certain internal 

conflicts within La Rompe . . . of which he has personal knowledge, 

 9 Which is the standard applied to "most" new-trial motions 

bottomed on newly-discovered evidence (more on this later). United 

States v. Maldonado-Rivera, 489 F.3d 60, 66 (1st Cir. 2007). 
- 11 -

including some that involved Pekeke." But according to the judge, 

"this, without more, is insufficient to justify" granting the newtrial motion. 

Principal Appellate Arguments 

That brings us to today, with Laureano-Salgado and 

Ramírez-Rivera mounting a multifaceted challenge to the judge's 

new-trial ruling. Their lead claim is that the government's 

nondisclosure of these statements, which it had in its hands while 

their case was on appeal here, violated the guarantees set out in 

Brady v. Maryland, 373 U.S. 83 (1963), and its offspring — 

guarantees that require prosecutors to reveal material, 

exculpatory and impeaching evidence, see Maldonado-Rivera, 489 

F.3d at 66-67 (discussing the Brady line of cases). Consistent 

with this Brady-based theory, they then argue that they need only 

show that the statements undermine confidence in the original 

verdict, not that the statements would probably lead to a different 

outcome at retrial. And they insist that they can meet the 

undermine-confidence standard because the statements counter the 

government's theory that La ONU iced Pekeke, at least as they see 

it.10 

 10 We can make quick work of two of their other arguments: 

One argument blasts the judge for denying their new-trial 

motion without an evidentiary hearing. "[E]videntiary hearings on 

new trial motions in criminal cases are the exception rather than 
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As a fallback, Laureano-Salgado alone argues that he can 

satisfy "the more onerous" actual-probability-of-acquittal 

standard because of the statement's exculpatory value.11 And by 

 

the rule." United States v. Peake, 874 F.3d 65, 72 (1st Cir. 2017) 

(quoting United States v. Connolly, 504 F.3d 206, 220 (1st Cir. 

2007)). Yet — as the government notes, without correction — 

Laureano-Salgado and Ramírez-Rivera never asked the judge for an 

evidentiary hearing, which "ordinarily spells defeat for a 

contention that one should have been held." See United States v. 

Cyr, 337 F.3d 96, 101 n.5 (1st Cir. 2003) (quoting United States 

v. Tardiff, 969 F.2d 1283, 1286 (1st Cir. 1992)). And they make 

no developed argument for why the ordinary rule should not apply 

here. 

The other argument accuses prosecutors of misconduct by 

presenting perjured testimony at their trial — the theory being 

that Yanyoré-Pizarro's and Calviño-Acevedo's statements show that 

Figueroa-Cancel, Gutiérrez-Santana, and Figueroa-Viera lied when 

they blamed La ONU — and La ONU members Laureano-Salgado and 

Ramírez-Rivera — for Pekeke's murder. But this argument is twice 

waived: first because Laureano-Salgado and Ramírez-Rivera did not 

present it below, see McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 

22 (1st Cir. 1991) (explaining the baseline rule "that theories 

not raised squarely in the district court cannot be surfaced for 

the first time on appeal"); and second because, while they toss 

around words like "perjury" and "misconduct" here, they "provide[] 

neither the necessary caselaw nor reasoned analysis to show that 

[they are] right about any of this," see Rodríguez v. Municipality 

of San Juan, 659 F.3d 168, 175 (1st Cir. 2011) (adding that 

"[j]udges are not mind-readers, so parties must spell out their 

issues clearly, highlighting the relevant facts and analyzing onpoint authority"); United States v. Zannino, 895 F.2d 1, 17 (1st 

Cir. 1990) (stressing that "[i]t is not enough merely to mention 

a possible argument in the most skeletal way, leaving the court to 

do counsel's work").

11 Ramírez-Rivera's brief mentions the "more stringent test" 

too, but only in passing: not only does he fail to list the test's 

elements, he — as the government notes, without contradiction — 

makes zero attempt to apply that standard to his situation. True, 

he did move below to adopt Laureano-Salgado's arguments. But he 

did nothing here to adopt Laureano-Salgado's opening-brief 
- 13 -

Laureano-Salgado's reckoning, Yanyoré-Pizarro's statements are 

"very favorable to [his] defense," given how they detail 

"confrontations and problems Pekeke had with other La Rompe . . . 

leaders" — thus indicating "a motive for his killing." Taking aim 

at the judge's credibility finding, Laureano-Salgado also claims 

that no law-enforcement personnel testified that Yanyoré-Pizarro's 

statements were "false" or "contradicted by other evidence." He 

then says that the judge stumbled by deeming Yanyoré-Pizarro's 

statements inadmissible — in his telling these "statement[s] are 

fully admissible" under the following theories: "as rebuttal 

evidence"; "as a constitutional matter," since "an accused has a 

 

arguments. See, e.g., Ramírez-Rivera, 800 F.3d at 11 n.1 

(discussing how appellants prosecuting consolidated appeals may 

adopt each other's arguments). 

True too, Ramírez-Rivera moved here for leave to adopt the 

arguments presented in Laureano-Salgado's reply brief (in lieu of 

filing his own reply brief). And Laureano-Salgado's reply rehashed 

arguments he made in his initial brief — i.e., that he can satisfy 

both the Brady-new-trial standard and the ordinary-new-trial 

standard. Taking up Ramírez-Rivera's motion, we wrote that "leave 

of court is not required for adoption" but warned that he ran the 

risk that we might find Laureano-Salgado's reply-brief arguments 

"not transferable or waived." Regrettably for Ramírez-Rivera, he 

gets no help from Laureano-Salgado's reply brief, and for a simple 

reason: Ramírez-Rivera did not adequately develop in his opening 

brief any argument tied to the ordinary-new-trial standard, and he 

cannot use a reply brief to cure that deficiency. See generally 

Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir. 1990) 

(holding that arguments not made in an opening brief but only in 

a reply brief are waived).
- 14 -

constitutional right to present a complete defense to all charges" 

laid "against him or her"; and "as statements against interest," 

since the "statements implicated" Yanyoré-Pizarro in Pekeke's 

murder. Leaving no stone unturned, Laureano-Salgado adds that the 

judge's inadmissibility ruling conflicts with the judge's later 

decision to let Yanyoré-Pizarro testify at the retrial of a La ONU 

codefendant named Ismael Cruz-Ramos — a decision that provides 

"the best argument" for why the "statements are fully admissible," 

at least in Laureano-Salgado's mind.12 Ever-persistent, LaureanoSalgado argues as well that Calviño-Acevedo's testimony 

 12 The retrial occurred a few months after denying LaureanoSalgado and Ramírez-Rivera's new-trial motion. Here is what we 

know about what went down (unfortunately, we do not have the 

compete transcripts). After a few days of trial, Cruz-Ramos's 

lawyer told the government that he had one defense witness, 

Yanyoré-Pizarro. On the next trial day (with the judge's 

permission), Cruz-Ramos's lawyer later made an extended offer of 

proof — via a voir-dire examination of Yanyoré-Pizarro (outside 

the jury's presence) — concerning the admissibility of YanyoréPizarro's testimony. During that process, Yanyoré-Pizarro 

admitted that he was not present when Pekeke got killed. But he 

claimed that he heard from a fellow La Rompe member that Joshua 

had "pulled the trigger." He then explained that La Rompe must 

have had something to do with the murder, given the beef between 

Pekeke and Frank. But he also stressed that Frank worked with La 

ONU to kill Pekeke, saying (italics ours) that "it was La ONU who 

went in and did the job." Ultimately, the judge thought YanyoréPizarro's testimony might fit within the coconspirator exception 

to the hearsay rule. "So," the judge said, "I'm not sure the 

opinion is actually impermissible, if he lays a foundation for it" 

(notice how the ruling is stated in the conditional) — though, 

Cruz-Ramos chose not to call Yanyoré-Pizarro as a witness (there's 

no suggestion that the government called Yanyoré-Pizarro to the 

stand). 
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"corroborate[s]" Yanyoré-Pizarro's narrative (that's the extent of 

what he has to say about Calviño-Acevedo, however). Putting it 

all together, he contends that the newly-discovered evidence would 

probably lead to an acquittal on the VICAR-related counts if there 

were a new trial. 

Defending the judge's ruling to the hilt, the government 

argues that the actual-probability-of-acquittal standard governs 

because the "new evidence" arose post-conviction. And in its view, 

the judge hardly erred in finding that standard not met here, 

because Yanyoré-Pizarro and Calviño-Acevedo had no personal 

knowledge of who killed Pekeke, but channeled hearsay instead; 

also because the statements were too speculative since YanyoréPizarro accused many persons of possibly being behind Pekeke's 

murder; and finally because the statements corroborated key facts 

presented by prosecutors at trial (e.g., that Joshua shot Pekeke). 

Our Take13

Dueling Legal Standards 

To get a new trial based on newly-discovered evidence, 

a defendant ordinarily must show that the evidence (1) was either 

 13 A defendant must file a new-trial motion based on newlydiscovered evidence within three years of the verdict or finding 

of guilt. See Fed. R. Crim. P. 33(b)(1). Laureano-Salgado and 

Ramírez-Rivera filed their motion outside that time restriction. 

But the government did not raise a timeliness objection below. 

And it expressly chose not to press one in its appellate briefing. 

So we say no more about that subject. See United States v. Del-
- 16 -

unknown or unavailable to him during the trial; (2) could not have 

been uncovered sooner with diligence; (3) is material, not just 

cumulative or impeaching; and (4) is sufficiently compelling that 

it would probably produce an acquittal at a retrial — a hefty 

burden, to be sure. See, e.g., Peake, 874 F.3d at 69; United 

States v. Flores-Rivera, 787 F.3d 1, 15 (1st Cir. 2015); DelValle, 566 F.3d at 38; Maldonado-Rivera, 489 F.3d at 65-66. We 

hedge with "ordinarily" because if the defendant bases his newtrial motion on an alleged Brady violation, a more defendantfriendly standard takes center stage: he must still satisfy the 

first and second elements (unavailability and due diligence), but 

caselaw replaces the third and fourth elements (materiality and 

prejudice) with a 

unitary requirement that the defendant need demonstrate 

only a reasonable probability that, had the evidence 

been disclosed to the defense in a timely manner, the 

result of the proceeding would have been different. 

Peake, 874 F.3d at 69 (emphasis added and quotation marks omitted). 

So rather than having to show "'actual probability that the result 

 

Valle, 566 F.3d 31, 38 (1st Cir. 2009) (suggesting that the Rule 

33(b)(1) time-bar "is non-jurisdictional and may be forfeited" 

(citing Eberhart v. United States, 546 U.S. 12, 19 (2005) (per 

curiam))); see generally United States v. Alverio-Meléndez, 640 

F.3d 412, 423 n.6 (1st Cir. 2011) (noting that because we could 

resolve the defendant's new-trial argument "on the merits and in 

favor of the government," we had no need to decide whether his 

new-trial "motion was untimely"). 
- 17 -

would have differed,'" a defendant need show only "something 

sufficient to 'undermine[] confidence'" in the jury's verdict. 

See United States v. Mathur, 624 F.3d 498, 504 (1st Cir. 2010) 

(emphasis and alteration in original) (quoting Kyles v. Whitley, 

514 U.S. 419, 434 (1995)); accord Flores-Rivera, 787 F.3d at 15-

16; see also United States v. Sepulveda, 15 F.3d 1216, 1220 (1st 

Cir. 1993) (explaining that the "'undermine confidence' formula 

suggests that reversal might be warranted in some cases even if 

there is less than an even chance that the evidence would produce 

an acquittal"). 

Under either scenario, we will reverse a judge's newtrial denial only for an abuse of discretion. See, e.g., Connolly, 

504 F.3d at 211-12. And we will find an abuse of discretion only 

when no reasonable person could agree with the judge's decision. 

See, e.g., United States v. Jones, 748 F.3d 64, 69 (1st Cir. 2014). 

This is as it should be. After all, the judge had a box-seat view 

of the trial, making him intimately familiar with the case's 

nuances — which justifies our giving his opinion on "the likely 

impact of newly disclosed evidence . . . considerable deference." 

See Mathur, 624 F.3d at 504 (emphasis added). We also keep in 

mind that the new-trial remedy "must be used sparingly, and only 

where a miscarriage of justice would otherwise result." United 

States v. Conley, 249 F.3d 38, 45 (1st Cir. 2001). 
- 18 -

We shift now from the general to the specific. 

Governing Legal Standard 

Laureano-Salgado and Ramírez-Rivera contend that a Brady 

violation occurred because the government acquired the "new 

evidence" while their case was here on appeal yet failed to 

disclose that evidence at that time.14 Ergo, they say, the judge 

should have applied the more lenient Brady-based standard in 

analyzing their new-trial motion. But they cite no controlling 

case holding that Brady obligations apply to evidence the 

government acquired post-verdict. That is probably because 

binding precedent holds that where, as here, the record contains 

no indication that the government knew about these statements "at 

any time prior to or during [their] trial," Brady does not operate 

and so the more arduous ordinary new-trial standard controls. See

Maldonado-Rivera, 489 F.3d at 67; see generally Dist. Attorney's 

Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 67-

69 (2009) ["Osborne"] (noting that Brady requires disclosure only 

 14 No one disputes that the government learned about the 

statements spotlighted in appellants' new-trial motion after the 

verdict in their case: Laureano-Salgado and Ramírez-Rivera's 

trial ended in February 2013; Yanyoré-Pizarro's grand-jury 

testimony occurred in May 2015, his ATF interviews went down in 

January 2016, and his trial testimony happened in October 2016; 

and Calviño-Acevedo's trial testimony happened in December 2015. 

And because the Ramírez-Rivera decision came down in August 2015, 

only Yanyoré-Pizarro's May 2015 grand-jury testimony fits into 

their discovered-while-the-case-is-on-direct-appeal category. 
- 19 -

of exculpatory and impeaching info that existed at the time of the 

original trial, emphasizing that "Brady is the wrong framework" 

for evaluating the government's post-trial disclosure 

obligations); accord Tevlin v. Spencer, 621 F.3d 59, 69-70 (1st 

Cir. 2010); see generally Skinner v. Switzer, 562 U.S. 521, 536 

(2011) (commenting that "Brady announced a constitutional 

requirement addressed first and foremost to the prosecution's 

conduct pretrial"). 

Tellingly, neither Laureano-Salgado nor Ramírez-Rivera 

attempts to distinguish Maldonado-Rivera. Ramírez-Rivera tries to 

distinguish Osborne and Tevlin as situations involving habeas

proceedings, while his involves a direct appeal — to quote his 

brief: "A direct appeal is not a postconviction proceeding," the 

implication being that neither Osborne nor Tevlin controls his 

case. And Laureano-Salgado tries to distinguish Tevlin on that 

basis too (his brief says nothing about Osborne). But they offer 

no persuasive reasoning or authority to support their habeas-isnot-a-postconviction contention. Maybe a good argument exists 

that might help them. But because their suggestion is not 

sufficiently developed to permit us to pass on it intelligently, 

we consider it waived and leave its resolution for another day. 

See, e.g., Patton v. Johnson, 915 F.3d 827, 838 (1st Cir. 2019). 
- 20 -

Perhaps hoping to scare us into action, Laureano-Salgado 

contends that the government believes that prosecutors do not have 

"even an ethical" duty "to reveal material information known to 

[them] after a guilty verdict, but before the appeal is concluded, 

because the evidence was not in existence at the time of trial." 

The government says no such thing, however. Actually, the 

government candidly acknowledges that "after a conviction the 

prosecutor . . . is bound by the ethics of his office to inform 

the appropriate authority of after-acquired or other information 

that casts doubt upon the correctness of the conviction." Imbler 

v. Pachtman, 424 U.S. 409, 427 n.25 (1976) (going on to hold that 

prosecutorial immunity applies even where a prosecutor commits a 

Brady infraction because, among other reasons, "[t]he possibility 

of personal liability" might make prosecutors unwilling to comply 

with this ethical duty). And Laureano-Salgado makes no Imblerbased argument, even after the government pointed out that 

"[b]ecause none of the information relevant here casts doubt on 

[their] convictions, the prosecutors . . . had no occasion to 

disclose it" before their "request" (though we imply no view about 

whether any such argument would be tenable). 

No Abused Discretion

Laureano-Salgado's fallback argument — that he deserves 

a new trial even under the ordinary standard and that the judge 
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slipped in concluding otherwise — fails because he did not meet 

his heavy burden of showing that the impact of the statements he 

champions is so strong that a fresh jury (apprised of their 

content) would probably vote to acquit him on the VICAR-related 

charges. See United States v. Vigneau, 337 F.3d 62, 69 (1st Cir. 

2003) (noting that satisfying this part of the ordinary test is no 

easy feat because, among other things, we must give the district 

judge's views "considerable deference" (quoting United States v. 

Falú-González, 205 F.3d 436, 443 (1st Cir. 2000)); see also United 

States v. Hernández-Rodríguez, 443 F.3d 138, 143 (1st Cir. 2006) 

(declaring that "we have no discretion to grant a motion for new 

trial if any one of the four factors [in the ordinary test] is 

lacking").15 We explain. 

Both sides spend a lot of time sparring over whether the 

at-issue evidence presents admissibility or credibility problems. 

But let's assume — without deciding, of course — that LaureanoSalgado is right that neither problem lurks here. Even so, he is 

not entirely out of the woods. 

The actual-probability-of-acquittal standard requires 

"an evaluation of the new evidence in juxtaposition to the evidence 

 15 We focus on Laureano-Salgado's contentions because (as we 

noted earlier) Ramírez-Rivera waived any arguments based on the 

ordinary standard that he might have had. 
- 22 -

actually admitted at trial." United States v. Josleyn, 206 F.3d 

144, 157 (1st Cir. 2000). Here, the new statements corroborate 

many of the key facts established at trial — like how Joshua lived 

with his grandmother in the same housing project as Pekeke and how 

Joshua shot Pekeke. The statements also show that Yanyoré-Pizarro 

basically suggested that different persons had different motives

for killing Pekeke: (a) La Rompe's Trenza and Papito Mojica, 

apparently to take over Pekeke's drug points; (b) La Rompe bosses 

at the Alturas de Cupey housing project, supposedly because Pekeke 

had refused their help request; (c) La Rompe's Frank, apparently 

because Frank and Pekeke could not agree on who was "the boss" — 

in his last version of this narrative, Yanyoré-Pizarro had Frank 

working with La ONU to gun down Pekeke; and (d) gangbangers from 

the Luis Llorén Torres housing project, supposedly because Pekeke 

had orchestrated their leader's murder. At any new trial the jury 

would weigh Yanyoré-Pizarro's shifting stories against FigueroaCancel's, Gutiérrez-Santana's, and Figueroa-Viera's consistent 

testimony implicating Laureano-Salgado and Ramírez-Rivera in 

Pekeke's slaying. And the jury would also weigh (on the one hand) 

the absence of evidence indicating that Yanyoré-Pizarro was 

present when La Rompe (allegedly) planned Pekeke's murder, and (on 

the other hand) the existence of evidence showing that FigueroaCancel, Gutiérrez-Santana, and Figueroa-Viera were present when La 
- 23 -

ONU plotted Pekeke's demise and that they — along with LaureanoSalgado and Ramírez-Rivera — helped La ONU take Pekeke out. 

Having performed the requisite evidentiary comparison, 

we agree with the district judge that the statements are not 

"sufficiently compelling" as to generate a realistic probability 

of an acquittal on the VICAR-related counts. See United States v. 

Alicea, 205 F.3d 480, 487 (1st Cir. 2000). And because this 

evidence does not "preponderate[]" so "heavily" against the jury's 

verdict that it would be a miscarriage of justice to let the 

convictions on the VICAR-related counts stand, we cannot fault the 

judge for denying the new-trial motion. See United States v. 

George, 448 F.3d 96, 102 (1st Cir. 2006) (quoting United States v. 

Villarman-Oviedo, 325 F.3d 1, 15 (1st Cir. 2003)). 

As a parting shot, Laureano-Salgado contends that United 

States v. Hernández-Rodríguez, 443 F.3d 138 (1st Cir. 2006) — where 

we reversed a district court's new-trial denial — should compel us 

to reverse here. But Hernández-Rodríguez does not aid his cause. 

Here is why. 

A jury convicted José Ramón Hernández-Rodriguez 

("Hernández") and Douglas Gorbea Del-Valle ("Gorbea") of various 

drug crimes. Id. at 140. Gorbea ran a trading company that 

imported a cocaine shipment from Venezuela to Puerto Rico. DelValle, 566 F.3d at 33. He also handled many of the operation's 
- 24 -

details. Id. Hernández owned the trucking company that Gorbea 

used to move the shipment from the docks to a nearby truck yard. 

Hernández-Rodríguez, 443 F.3d at 141. To prove that Hernández 

knowingly participated in the scheme, the government relied on a 

fax found in Gorbea's briefcase — a fax that had the name "José 

Hernández" written on it. Id. 

Sometime after his conviction, Hernández sought a new 

trial based on newly-discovered evidence contained in an affidavit 

by Gorbea saying that he (Gorbea) did not know Hernández 

personally. Id. A magistrate judge held an evidentiary hearing, 

at which Gorbea testified that the "José Hernández" on the fax 

referred not to his codefendant but to another person with the 

same name. Id. at 142. Finding Gorbea credible, the magistrate 

judge recommended that the district judge grant Hernández a new 

trial. See id. at 140, 146. Without holding a further evidentiary 

hearing, the district judge rejected the magistrate judge's 

recommendation. Id. After assuming without deciding that the 

supposed new evidence was credible, the district judge ruled that 

a reasonable jury could still infer Hernández's knowing 

participation from other circumstantial evidence, like his tailing 

the van with the cocaine as it left the docks. Id. at 146. Over 

a dissent, a panel of this court reversed, holding in relevant 

part that the evidence, "if deemed credible by a jury, . . . would 
- 25 -

greatly undermine the conspiracy charges against Hernández" (given 

the government's theory of prosecution) and thus "the district 

court abused its discretion by failing to consider the full import 

of [Hernández's] new evidence" after "assum[ing], arguendo, 

Gorbea's credibility." Id. at 146, 148. 

Unfortunately for Laureano-Salgado, the difference 

between Hernández-Rodríguez and his case is one of night and day. 

As we just said, the evidence there (if believed) "would greatly 

undermine" the charges against the defendant. But as we also just 

explained, the evidence here (even if believed) would not have 

that same effect — given the equivocal nature of Yanyoré-Pizarro's 

testimony, and how his testimony rested solely on rumors and did 

(at times) implicate La ONU in Pekeke's death. So HernándezRodríguez is no help to Laureano-Salgado. 

Undaunted, Laureano-Salgado argues that his "new 

evidence . . . is stronger than the [new evidence] in HernándezRodríguez as the government [here] relied upon it in not one, but 

two subsequent [La Rompe] trials" — the first involving YanyoréPizarro's testimony (see footnote 7 and the text to which it is 

appended); the second involving Calviño-Acevedo's testimony (see 

footnote 8 and the text to which it is appended). But this argument 

is not a game-changer either because, again, here — unlike in 

Hernández-Rodríguez — the alleged new evidence cannot be 
- 26 -

reasonably viewed as "greatly undermin[ing]" the pertinent 

verdicts. And to the extent he believes Calviño-Acevedo's 

testimony saves the day by (supposedly) corroborating YanyoréPizarro's testimony, he is mistaken. That is because CalviñoAcevedo's testimony highlights how Yanyoré-Pizarro's testimony 

rested on rumors that cannot (for reasons already detailed) help 

Laureano-Salgado satisfy the actual-probability-of-acquittal 

component of the ordinary new-trial standard. 

Long and Short of It 

Experience shows that a supposedly new "piece of 

evidence often looms larger in the eyes of a hopeful defendant 

than its actual dimensions warrant." Peake, 874 F.3d at 72. So 

it is here. Ultimately, having considered the parties' arguments 

with care, we conclude that the judge applied the correct legal 

standard and abused no discretion in denying the new-trial 

motion.16

Final Words 

All that is left to say then is: Affirmed. 

 16 For what it may be worth, we note that even if we were 

willing to overlook Ramírez-Rivera's waiver of arguments keyed to 

the actual-probability-of-acquittal standard — and we most 

certainly are not — he too would lose for the reasons just given.