United States Court of Appeals

For the First Circuit

No. 00-2141

UNITED STATES,

Appellant,

v.

KENNETH M. CONLEY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

 Torruella, Chief Judge,

Bownes, Senior Circuit Judge,

and Boudin, Circuit Judge.

S. Theodore Merritt, Assistant United States Attorney, with

whom Donald K. Stern, United States Attorney, Bill Lann Lee,

Assistant Attorney General, and William R. Yeomans, Acting

Assistant Attorney General, Civil Rights Division, United States

Department of Justice, were on brief, for appellant.

Willie J. Davis, with whom Frances L. Robinson and Davis,

Robinson & White, LLP were on brief, for appellee.
May 11, 2001
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BOWNES, Senior Circuit Judge. Boston police officer

Kenneth Conley was convicted of perjury based on his testimony

to a grand jury concerning the beating of a fellow officer,

Michael Cox, who was allegedly mistaken by police for a fleeing

suspect. After this court affirmed his conviction, United

States v. Conley, 186 F.3d 7 (1st Cir. 1999), cert. denied, 529

U.S. 1017 (2000), Conley moved for a new trial on the basis of

newly discovered evidence, Brady violations, and jury

misconduct. The district court allowed the motion on the ground

that a new trial was warranted “in the interests of justice,”

and the government appeals. We reverse the order for a new

trial on the ground that the district court did not apply the

correct legal test.

I. Factual Background

On the morning of January 25, 1995, several Boston

Police cruisers from different districts responded to the report

of a shooting at a restaurant in Boston. The police chased four

black male suspects who fled the restaurant in a Lexus until

they reached a dead-end street in Mattapan. The suspects ran

from the car; one, Robert Brown, ran toward a fence on the right

about twenty feet away. Brown was wearing a brown leather

jacket.
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The first police car in pursuit of the suspects stopped

to the left of the Lexus. It was an unmarked cruiser driven by

Officer Craig Jones; his partner, Officer Michael Cox, was in

the passenger seat, and a security guard, Charles Bullard, was

in the back seat. Cox, who is black, was dressed in plain

clothes and was wearing jeans, a black hooded sweatshirt, and a

black down jacket.

Cox later testified that he saw Brown exit the

passenger side door of the Lexus and chase “right behind” Brown

directly to the fence. As Brown climbed the fence, his jacket

caught at the top. Cox stated that he grabbed Brown’s jacket in

an attempt to pull him back over the fence; Brown, however,

climbed over the top of the fence and dropped down the other

side. Cox stated that no one was between him and Brown at any

time.

Cox testified that as he was preparing to climb the

fence in pursuit of Brown, he was struck from behind with a

blunt object by police officers who apparently mistook him for

a suspect. The officers beat and kicked him in the head, back,

face and mouth. Cox then heard an officer shout, “Stop, stop,

he’s a cop, he’s a cop,” and the officers fled. Cox, who was

bleeding and seriously injured, was later taken by ambulance to

a hospital for medical treatment.
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II. Procedural History

A. Conley's Grand Jury Testimony

In April, 1997, a federal grand jury began

investigating the beating to discover which officers attacked

Cox, failed to prevent the assault, and failed to get him

medical treatment. It subpoenaed Conley to testify pursuant to

an immunity agreement. In Conley, 186 F.3d at 12-13, we

summarized his testimony as follows: 

Consistent with Cox's version of events,

Conley testified that when he arrived at the

dead end on Woodruff Way, his vehicle was

about the fourth or fifth police car in line

behind the suspects' gold Lexus,

approximately forty feet away. Also

consistent with Cox's account, Conley

testified that once the Lexus skidded to a

stop, a black male wearing a brown leather

jacket exited from the passenger side of the

Lexus and ran to the right, towards a fence.

Conley exited his vehicle in pursuit. While

in pursuit, Conley observed the suspect

scale the fence, drop down on the other

side, and start to run. Conley testified

that he made all of these observations as he

pursued the suspect, beginning from the time

the suspect first exited the gold Lexus up

to the time when the suspect landed on the

other side of the fence and started to run.

According to Cox's testimony, Conley made

these observations at precisely the same

time that Cox was chasing "right behind" the

suspect. However, before the grand jury,

Conley testified that during that time he

did not observe anyone--either in plain

clothes or in uniform--between him and the

suspect.

(Internal record citations omitted.) 
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Conley then testified to facts directly contradicting

Cox's version of events:

Q: All right. Now, officer Conley, when you

were chasing the suspect as he went over to

the fence, did you see another individual

chasing him as well? 

A: No, I did not. 

Q: Did you see anyone else in plain clothes

behind him as he went towards the fence? 

A: No, I didn't. 

Q: Did you see, as he went on top of the

fence or climbed the fence, another

individual in plain clothes standing there,

trying to grab him? 

A: No, I did not. 

Q: When you saw the suspect get to the top

of the fence, did you see another individual

in plain clothes grabbing part of his

clothing-- 

A: No, I did not. 

Q: --as he went over the fence? 

A: No, I did not. 

Q: So that didn't happen; is that correct?

Because you saw the individual go over the

fence? 

A: Yes, I seen [sic] the individual go over

the fence. 

Q: And if these other things that I've been

describing, a second--another plain clothes

officer chasing him, and actually grabbing

him as he went to the top of the fence, you
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would have seen that if it happened; is that

your testimony? 

A: I think I would have seen that.

Conley, 186 F.3d at 13. Conley further testified that when he

got to the fence, he climbed over it in "approximately the same

location" that he had observed the suspect go over the fence,

and continued chasing him. Eventually, Conley caught up to the

suspect and arrested him. Id.

B. Conley's Perjury Trial

On August 14, 1997, Conley was charged in a three-count

indictment arising from his grand jury testimony. Count I

charged that Conley committed perjury in violation of 18 U.S.C.

§ 1623 by denying that he saw Cox pursue and grab a suspect as

that suspect ran toward and climbed a fence. Count II charged

that Conley also committed perjury when he denied that he saw

Boston police officers strike and kick Cox. Count III charged

that Conley obstructed the grand jury investigation in violation

of 18 U.S.C. § 1503 by giving false, evasive and misleading

testimony and by withholding information. 

At trial, the government presented evidence that

contradicted Conley’s grand jury testimony and supported Cox’s

version of events. Brown, the suspect arrested by Conley,

testified that as he ran toward the fence, he saw a black man

wearing black clothing running after him. He stated that as he
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was scaling the fence, he felt someone touch his foot. After he

reached the other side of the fence, he looked back and saw a

black man wearing a black hood start to climb the fence. Brown

then saw an officer strike Cox from behind, and saw other

officers beating him. Brown further testified that he made eye

contact with an officer, later identified as Conley, who was

standing next to the officers who were beating Cox. Conley then

chased and apprehended Brown.

Officer Richard Walker, whose cruiser arrived at the

dead-end after Cox’s car, testified at trial that he saw Cox

running in front of him from left to right in very close pursuit

of a black male suspect wearing brown. Walker saw Cox running

“about three feet behind” Brown, and saw Brown climb the fence

and Cox reach to grab him. He testified that “less than two

seconds” elapsed between the time he saw Brown on the top of the

fence and when he saw Cox grab at him. When Walker saw Brown

drop down the other side of the fence, Walker ran straight ahead

through a hole in the fence down a hill, falling twice. When

Walker got up, he encountered two white plainclothes officers,

including a “tall” officer who eventually caught Brown. 

On June 10, 1998, the jury returned a verdict of guilty

on Counts I and III and not guilty on Count II. The district
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court sentenced Conley to 34 months imprisonment, but stayed the

execution of the sentence pending appeal. 

This court affirmed Conley’s conviction on July 23,

1999. We concluded that the evidence was sufficient to support

the conviction: 

At trial, the government presented ample

circumstantial evidence from which a

rational jury could conclude that Conley's

statements were false beyond a reasonable

doubt. By comparing Conley's testimony

about the timing and location of his actions

with the testimony of Cox, Walker, and

Brown, the jury reasonably concluded that

Conley lied when he stated that he did not

observe Cox chasing the suspect. Conley

testified that upon arrival at the scene, he

observed Brown exit from the passenger side

of the Lexus, run to the right, and climb

over the fence. Most significantly, Conley

testified that "within seconds of seeing

[the suspect] go over" the fence he scaled

the fence at the same location. Both Cox

and Walker placed Cox at the exact same time

at the exact same place where Conley claims

to have climbed over the fence. According to

their testimony . . . Cox was "right behind"

Brown, approximately three feet behind him,

as Brown approached the fence. When Brown

reached the fence, Cox was even closer. At

that point, Cox was close enough to make

contact with Brown and attempt to pull him

back over the fence. Brown corroborated this

version of events when he testified that a

black man wearing a "black hoody" was behind

him as he ran toward the fence and had just

started to come over the fence after him

when he observed the black man being struck

on the head by a police officer. Brown

confirmed that the person behind him was

close enough to make contact with his foot

as he scaled the fence. Conley's testimony
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that he scaled the fence "within seconds" of

seeing Brown go over the fence, and that he

scaled the fence in the same location as

Brown does not square with the testimony of

Cox, Walker, and Brown. Conley's version of

the events provides for no reasonable gap in

time during which he could have missed

observing Cox at the fence. Indeed, Conley

concedes that if the Cox/Walker/Brown

version is true, he would have seen Cox at

the fence. In reaching its verdict, the

jury apparently found the Cox/Walker/Brown

version more credible.

Conley, 186 F.3d at 19-20 (internal citations omitted) (emphasis

added).

C. The Civil Trial

After the criminal trial, Cox brought federal civil

rights claims against several police officers, including Conley.

He alleged that the officers beat him, failed to stop the

beating or render him aid, and participated in a cover-up of the

incident. The civil trial took place in December, 1998. At

trial, Bullard testified that when Cox left the cruiser, he went

straight forward, rather than to the right and directly toward

the fence in pursuit of Brown, as Cox claimed. The jury found

two officers liable for beating Cox, and a third officer liable

for failing to come to Cox’s assistance. It found Conley not
1The district court instructed the jury that if it found any

officers liable for the beating, the cover-up was by definition

unsuccessful.

2The district court stated that the Court of Appeals

remanded the case "for consideration of a motion for new trial."

United States v. Conley, 103 F. Supp.2d 45, 47 (D. Mass. 2000).

A review of our opinion, however, reveals no reference to a

remand, and in answers to questions at oral argument none of the

attorneys recalled such an order.

3Bullard did not testify at Conley’s criminal trial. 

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liable for failing to come to Cox’s assistance or for

participating in a cover-up.1

D. Conley's Motion for a New Trial

Conley moved for a new trial on March 24, 2000.2 In

support of his motion, Conley pointed to three pieces of “newly

discovered” evidence. First, he asserted that Bullard’s

testimony in the civil trial supported Conley’s version of

events. Bullard had testified similarly before the grand jury,

Conley contended, and the government’s failure to disclose this

violated its Brady obligations.3 Second, Conley argued that the

government knowingly relied on perjured testimony when it

allowed to go uncorrected, and used in its closing, Brown’s

statements that the Boston police had brought state drug charges

against him in retaliation for his cooperation with the federal

government. Third, Conley argued that the government wrongly

failed to disclose the transcript of an interview conducted by
4Conley additionally claimed that extraneous forces had

tainted the jury, based on a statement a juror had made to

several others that “his father and his uncle were cops and, as

such, he knew that cops were trained professionals who observe

everything around them,” and that “he knew the area because he

used to live there.” The district court did not reach Conley’s

juror misconduct argument, and it is not raised in this appeal.

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the Internal Affairs Division (IAD) of the Boston Police

Department in which Walker made a tentative photo identification

of the tall white officer who chased and arrested Brown as an

officer other than Conley.4 

After oral argument on Conley’s motion for a new trial,

the district court ordered the government to produce, in camera,

all of the IAD files in its possession related to this case.

The previously undisclosed material in those files included

newspaper articles detailing how Cox initially had no

recollection of how he had been beaten; officer activity logs

indicating that Conley’s report was more detailed than the

reports of other officers present at the incident; booking

sheets indicating that Brown was not the only suspect wearing a

brown jacket the night of the incident and that another suspect

was dressed similarly to Cox; motor vehicle inspection reports;

internal memoranda; an interview with Bullard in which he stated

that Cox may have been found on the ice behind the Lexus instead

of behind the marked cruiser (as the prosecution contended at

trial); a report by Walker; and a diagram of the car chase
5Upon the government’s motion, the in camera evidence was

unsealed on August 15, 2000.

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apparently prepared by Walker. The government also produced in

camera an internal FBI memorandum documenting that Walker had

initially agreed, then refused, to take a polygraph examination

concerning his retraction of an earlier statement he had made to

the IAD that he had seen someone trailing Cox as he chased

Brown.5 It appears that no evidentiary hearing followed the in

camera production of this evidence.

E. The District Court Opinion

On June 27, 2000, the district court allowed Conley’s

motion for a new trial. In a written opinion, 103 F. Supp.2d

45, 48 (D. Mass. 2000), the court first set out the standard for

a new trial based on newly discovered evidence, United States v.

Wright, 625 F.2d 1017, 1019 (1st Cir. 1980), and breach of a

prosecutor’s obligation to disclose exculpatory evidence, Brady

v. Maryland, 373 U.S. 83, 87 (1963). Discussing each piece of

evidence in turn, it held that the government’s failure to

disclose Bullard’s grand jury testimony did not violate Brady;

that Brown did not commit perjury when he testified that the

state charges against him were trumped-up and retaliatory; and

that the evidence as to the Walker interview transcript was

“inconclusive” as to the government’s duty of disclosure and
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defense counsel’s diligence. Conley, 103 F. Supp.2d at 51-55.

Despite these findings, the court explicitly took all

of the above-mentioned evidence into consideration in

determining whether a new trial nonetheless was warranted “in

the interests of justice.” It noted that the evidence Conley

described as “newly discovered” was evidence received in the

civil trial conducted several months after Conley’s perjury

trial, and that technically, the government could not be charged

with withholding evidence that did not yet exist. Id. at 55.

Accordingly, it reframed Conley’s argument as follows: 

[Question One:] Did the prosecution have and

withhold information from defense counsel

that would have led a reasonable person to

expect that a civil trial would occur,

similar to the civil trial that did in fact

occur after the criminal conviction and

sentence in this case, and that the

testimony at the civil trial would be

substantially as we now know it was in fact?

[Question Two:] If so, were defense counsel

so severely impeded in their preparation of

an overall defense strategy and in the

performance of the function of

cross-examination of those particular

witnesses, out of the larger number of

police officers, including both uniformed

and undercover officers, who were in the

vicinity of the brutal beating of Michael

Cox, an undercover Boston police officer, by

a uniformed Boston police officer, that in

the 

interests of justice a new trial should be

allowed? 
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Id. at 57-58.

The court answered the first question in the

affirmative. As to the second question, it concluded that the

answer 

cannot be determined as a matter of law,

under the applicable legal standard

explained in Part III of this opinion

[discussing Wright and Brady, inter alia].

Instead, in the unique circumstances of this

case, I conclude that the determination to

allow or not to allow a new trial is one

committed to an exercise of discretion by

the court to which the legal system assigns

responsibility for making the determination.

Id. at 58. Accordingly, the court exercised its discretion to

decide that a new trial should be ordered "in the interests of

justice." Id. The government appeals.

III. Discussion

A. Applicable Law

We generally review a district court's decision on a

motion for a new trial, Fed. R. Crim. P. 33, for manifest abuse

of discretion. United States v. Falu-Gonzalez, 205 F.3d 436,

442 (1st Cir. 2000); United States v. Montilla-Rivera, 115 F.3d

1060, 1064 (1st Cir. 1997). However, “[w]here it is contended

that the district court applied an incorrect legal standard,

that contention is reviewed de novo.” United States v. Josleyn,

206 F.3d 144, 151 (1st Cir. 2000); see also United States v.

Huddleston, 194 F.3d 214, 218 (1st Cir. 1999).
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Rule 33 provides that a motion for a new trial may be

granted if the court finds that "the interests of justice so

require." A motion for new trial based on newly discovered

evidence must be made within three years after the verdict or

finding of guilty, while a motion for a new trial based on any

other grounds must be made within seven days. Fed. R. Crim. P.

33.

The remedy of a new trial must be used sparingly, and

only where a miscarriage of justice would otherwise result.

United States v. Rothrock, 806 F.2d 318, 322 (1st Cir. 1986).

A defendant seeking a new trial on the ground of newly

discovered evidence must prove four factors to prevail: (1) the

evidence must have been unknown or unavailable to the defendant

at the time of trial; (2) the defendant must have been duly

diligent in attempting to unearth it; (3) the newly discovered

evidence must be material; and (4) the newly discovered evidence

must be such that its emergence probably will result in an

acquittal upon retrial. Wright, 625 F.2d at 1019; Huddleston,

194 F.3d 214, 218 (1st Cir. 1999). If the defendant fails to

carry his or her burden with respect to any one of these four

factors, the motion for a new trial must be denied. FaluGonzalez, 205 F.3d at 442. 
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We apply a slightly different test where a defendant

claims that the newly-discovered evidence should have been

produced under Brady. There, the defendant must establish that

(1) the evidence at issue is material and favorable to the

accused; (2) the evidence was suppressed by the prosecution; and

(3) the defendant was prejudiced by the suppression in that

there is “a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would

have been different." Strickler v. Greene, 527 U.S. 263, 280

(1999). While the Brady standard is easier to satisfy, both

tests require that the defendant show some degree of prejudice

to win a new trial. Josleyn, 206 F.3d at 151.

B. The Law Applied by the District Court

Our first task is to determine whether the district

court applied the correct legal test to the evidence in

considering Conley's motion for new trial. According to the

court’s repeated formulation, Conley, 103 F. Supp.2d at 55-58,

the central question is whether the government withheld newly

discovered evidence in violation of its obligations to Conley.

The court stated that the "core" of Conley's argument is that

"the prosecutor had a legally cognizable duty of disclosure" of

the testimony it expected to "occur" at the civil trial to

defense counsel. Id. at 56. It expressly considered the
6Conley argues, inter alia, that the new trial was granted

not on grounds of newly discovered evidence but on a wholly

separate ground of "interests of justice." This argument fails

for two reasons. First, the district court’s opinion simply

does not permit this interpretation, as explained supra.

Second, even assuming that the district court had based its

order for a new trial on a theory other than newly discovered

evidence, Conley's motion would be untimely. See Fed. R. Crim.

P. 33 (stating that a motion for a new trial based on grounds

other than newly discovered evidence must be made within seven

days). 

Conley maintains that the government waived any objection

to his lack of compliance with the seven-day deadline by failing

to object below. We disagree. After carefully reviewing the

transcript of the hearing on the motion for a new trial, we see

nothing that would have reasonably put the government on notice

that the district court was considering deciding the motion on

any grounds other than newly discovered evidence or Brady

violations.

7The district court and the parties refer somewhat

interchangeably to the Wright and Brady standards. Because our

decision turns on the district court's findings concerning

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"conflicts and contradictions in the record as a whole, now

considered with the newly discovered evidence" before it. Id.

Furthermore, the court referred to "potentially decisive

questions to be considered in deciding whether to grant a new

trial in this case, grounded on the claim of newly discovered

evidence." Id. at 57 (emphasis added).6

Because Conley's claim is based on the government's

failure to disclose newly discovered evidence, the analysis of

whether a new trial is in the interests of justice must be

performed with regard to Wright and/or Brady.

7 See
prejudice, see infra, a requirement under both standards, we see

no need to explore with additional specificity which one

applies.

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Montilla-Rivera, 115 F.3d at 1064-65. The only permissible way

the district court could order a new trial was to apply the

legal standards for newly discovered evidence, which it

initially set forth in Section III of its opinion, 103 F.

Supp.2d at 48-49. The district court abandoned that analysis,

however, and applied a different standard, one that seems to be

highly discretionary and contains no reference to prejudice or

materiality. See id. at 55 (deciding that a new trial will be

granted on grounds that are "entirely independent" of issues in

Wright analysis); id. at 58 (stating that whether Conley was

prejudiced "cannot be determined" under Wright and Brady, but

exercising jurisdiction to allow a new trial nonetheless). The

court's application of that standard -- which it acknowledges is

unprecedented -- constitutes reversible error.

C. The District Court's Findings 

The question we next face is whether the newly

discovered evidence at issue satisfies the correct legal

standard, contained in Wright and/or Brady. If the district

court's findings foreclose such a conclusion, there is no need
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for further analysis, either by this court or by the district

court upon remand.

Of central importance is the district court's statement

that the question of whether defense counsel were so severely

impeded as a result of the government's failure to disclose the

relevant evidence that a new trial was warranted

cannot be determined as a matter of law,

under the applicable legal standard

explained in Part III of this opinion.

Instead, in the unique circumstances of this

case, I conclude that the determination to

allow or not to allow a new trial is one

committed to an exercise of discretion by

the court to which the legal system assigns

responsibility for making the determination.

Conley, 103 F. Supp.2d at 58 (emphasis added). We can construe

this only as a conclusion that the evidence taken as a whole,

including the three pieces of evidence originally discussed in

Conley's motion for a new trial as well as the evidence later

submitted in camera, did not satisfy the element of prejudice as

required under both the Wright and Brady tests. 

Moreover, the district court made specific findings as

to how some of the pieces of evidence raised in the motion for

a new trial fared under Wright and/or Brady. It found that the

government was not obligated to disclose Charles Bullard's grand

jury testimony under Brady. Id. at 52. It also found that the

defendant failed to show that Robert Brown’s testimony was
8The district court declined to make findings as to Walker's

IAD testimony, calling it “inconclusive” as to the government’s

duty of disclosure and defense counsel’s diligence. Conley, 103

F. Supp.2d at 55. Nor did it make any specific findings under

Wright or Brady as to any of the evidence produced for the first

time in camera upon the court's order. It simply stated that it

was taking all of this evidence under consideration in applying

a general “interests of justice” test (which, because it was

performed without regard to the materiality of the evidence or

prejudice to the defendant, we hold is not the correct

standard). Id.

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perjurious, id. at 54, thus precluding a new trial based on

newly discovered evidence. See United States v. Torres, 128

F.3d 38, 49 (2d Cir. 1997) (holding that where newly discovered

evidence is the existence of allegedly perjured testimony,

defendant must first demonstrate that perjury was in fact

committed).8

As we explained supra, a new trial may be ordered in

this case only if the standards set forth in Wright and/or Brady

are satisfied. Both Wright and Brady require a showing that the

evidence was material and that the defendant was prejudiced to

some degree. We must defer to the district court's explicit

findings as to the Bullard and Brown testimony, as well as to

its statement that prejudice could not be determined upon a

consideration of the evidence as a whole. See Falu-Gonzalez,

205 F.3d at 442. Therefore, there is no basis for remanding

this matter, and we REVERSE the district court's order. 
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The sentence of the district court, which we affirmed

in our prior opinion, shall be executed.