Petition for Writ of Certiorari — Schneiderhan v. United States

COFFIN, Senior Circuit Judge. This case is an

offshoot of the prosecution of members of the notorious

Boston Winter Hill Gang for various crimes including

extortion and murder. One of the defendants in that

prosecution, James "Whitey" Bulger, was later elevated to the

Top Ten Most Wanted List; he remains, after nearly ten years,

a fugitive. Defendant-appellant in this case, Richard J.

Schneiderhan, a retired Massachusetts State Police lieutenant,

was convicted of conspiracy to obstruct justice and

obstruction of justice, in violation of 18 U.S.C. §§ 371 and

1503. He was prosecuted for communicating to a criminal

associate of James Bulger the decision of federal law

enforcement authorities to conduct electronic surveillance of

Bulger’s two brothers, John and William, via pen registers

placed on their telephones.

The primary issue at trial and in this appeal is whether

defendant had the requisite intent to obstruct justice when he

provided the information. He asserts three claims of error. His

major challenge is to the district court's denial of a motion for

new trial based on the failure of the prosecution to disclose in

timely fashion an allegedly exculpatory letter that related to a

trial witness's testimony, in violation of Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the

Jencks Act, 18 U.S.C. § 3500. He also argues that the court

erred in allowing two witnesses to give testimony that he

alleges constituted impermissible opinion evidence as to

defendant's mental state, in violation of Fed R.Evid. 704(b). A

final issue raised in the wake of Blakely v. Washington, 542

USS. ----, 124 $.Ct. 2531, 159 L.Ed.2d 403 (2004), and United

States v. Booker, 543 U.S. ----, 125 S.Ct. 738, 160 L.Ed.2d

621 (2005), is whether defendant is entitled to re-sentencing

as a result of the court's plain error in adjusting his sentence

upward under the mandatory Sentencing Guidelines.

Our review persuades us that, in the final analysis, these

arguments lack merit.

I. The Brady and Jencks Act Issues

Factual background. We first review the facts relevant

to the government's alleged failure to disclose a significant

letter in timely fashion. We draw the facts from the evidence

presented at trial.

Defendant had a longstanding friendship with one

Stephen Flemmi, a member of the Winter Hill Gang. After

Flemmi was incarcerated as the result of the prosecution of

geng members, defendant kept in touch with him and another

gang member who was not then in prison, Kevin Wecks.

Weeks had learned from James Bulger and Flemmi that

defendant had done many favors for the gang in providing

information. Weeks and defendant met perhaps a dozen times,

defendant hoping that Weeks would be of some help to

Flemmi and consequently wanting to be of help to Weeks.

In late September 1999, defendant was able to do

something. Whether that "something" was really intended to

be helpful or was just a pretense is the issue underlying

defendant's claim regarding the withheld letter. At that time,

James Bulger was still at large more than three years after the

Winter Hill Gang indictments, and he was newly placed on the

Top Ten List. The government adopted a *77 broad

investigative strategy that included orders from a "Ted Baker

at FBI" to place pen registers on three telephones of William ~

and John Bulger. Those work orders were channeled through

the computer of Linda Reardon, a telephone company

employee who also was the daughter of defendant's brother-

in-law, Edward Duff.

-

Winter Hill Gang member Weeks, testifying under a

cooperation agreement, said that on a Thursday in late

September 1999 he received an envelope that defendant had

left for him at the Rotary Variety Store, a locale frequented by

gang members and their associates. The envelope contained a

typewritten note, which said that a Tom Baker had put

4

wiretaps on two phones the day before, and listed the

telephone numbers. At the bottom was typed "131313, Max,"

a number and name previously used by defendant to identify

himself in his dealings with Weeks. Weeks called John

Bulger, who confirmed the accuracy of the telephone

numbers.

Over six months later, acting on information from

Weeks and others, Massachusetts State Police Officers

Thomas Duffy and Thomas Foley interviewed defendant, who

acknowledged writing to Flemmi and meeting with Weeks.

When told that Weeks had indicated that he was the source of

wiretap information, defendant initially protested that he

would have had no way of knowing such information. Later in

the conversation; he revealed that John and William Bulger

were the targets of the surveillance, although this fact had

deliberately not been communicated by the officers.

Defendant, when asked how he knew about the targets, first

asserted that he learned this from the two officers but quickly

withdrew this answer and said he had assumed the fact. In a

second interview, held two days later, defendant admitted

leaving the typed note with its identifying signatures and said

he had received the information from his brother-in-law Duff.

Defendant's testimony as to motive. What we have

recounted thus far described what happened. What follows is a

summary of defendant's testimony at trial about the motives

for his actions and his knowledge of the source of his

information. It is a remarkable tale of shifting, if not

contradictory, emphases. He first explained he had remained

in contact with Weeks in the hope that he might learn

something about James Bulger's whereabouts and reap a

substantial reward. Later, he dismissed this as sarcasm.

Then he described how William Bulger had helped

defendant and others by supporting the listing of their church

as a national monument. He felt, he said, a "great obligation"

to William. This testimony was followed by statements that he

5

had not helped Weeks recently, that Weeks was "getting a

little bit hinky" about talking to him, and that he, defendant,

wanted to "throw him a bone.” Later, however, he described

this explanation as "a little facetious.” Following up on his

"bone" motive, defendant said that William would not talk on

the telephone to his brother James and that everybody knew

that James did not talk on the telephone, so "I knew it wasn't

going to cause any damage." Moreover, oddly, he said he did

not really believe that there were taps ("a thing") on William's

and John's phones.

His testimony about the source of his information was

equally vacillating. First, in reporting his brother-in-law's call

from Florida with the tip about electronic surveillance, he said

he did not know where the information had come from but

merely "assumed" where it had, without saying what his

assumption was. Shortly thereafter, he said that the

information he passed to Weeks was "just golf course or

barroom gossip ... just stories."

On the following day of trial, the government inquired

about defendant's niece, Linda Reardon. Defendant had earlier

disavowed knowing that she was employed by the telephone

company, saying, "I knew a group of the family were

employed there, but: I didn't know specifically who was what."

Under cross-examination, he testified as follows:

Q. The information from Duff [defendant's brother-

in-law]? He got it from his niece [sic] Linda Reardon,

and you gave it then to Kevin Weeks, right?

A. I don't know that he got it from his daughter

Linda. I was told that he got it from her, but of my

own knowledge, I don't know.

Defendant admitted giving the information to Weeks

and expecting that he would in turn give it to John and

William Bulger.

The undisclosed letter. Against this factual background

we must assess the relevance of a letter that was not disclosed

prior to trial, whether the letter was exculpatory, and, finally,

whether its non-disclosure was prejudicial. See Brady, 373

U.S. at 87-88, 83 S.Ct. 1194. Under the Jencks Act, our

inquiry focuses on whether the letter was a statement of a

witness relating to the witness's trial testimony. See 18 U.S.C.

§ 3500(b).

The letter at issue was written by then Assistant United

States Attorney David Apfel, who had been associated with

the prosecution of gang members and the search for James

Bulger from 1994 through 1998. The letter was dated October

9, 1998, a year earlier than the events detailed in this case. It

was written to the attorney then representing William Bulger

in connection with Bulger's possible proffer of information or

appearance before the grand jury. It assured counsel that

William would not face questions based on a Title III wiretap

but would be asked questions based on information obtained -

from "telephone pen registers and trap and trace devices, as

well as from terminating number searches." Defendant asserts

that the 1998 letter reveals that any information he may have

communicated in 1999 about electronic surveillance was

harmless because the Bulgers already knew about it.

In a grand jury appearance in 2001, William said he

knew there had been a wiretap on his telephone and thought

his counsel had given him that information. He did not know

whether it was a wiretap or a pen register, but assumed both.

The district court held that that testimony, which was

available to defendant, gave him specific information about

the same subject matter covered in Apfel's letter, thus

precluding any material prejudice. The court also held that, by

asserting that his actions had no impact, defendant was raising

the impermissible defense of factual impossibility, and the

court further ruled that defendant had failed to exploit

available witnesses on the issue--specifically Weeks and

William Bulger. Finally, it held that the Jencks Act was not

7

violated because no showing was made that Apfel's letter was

a statement about matters material to the testimony Apfel had

given in defendant's trial.

Argument and Analysis. We generally will reverse the

denial of a motion for new trial only if there is a "manifest

abuse of discretion," United States v. Glenn, 389 F.3d 283,

287 (1st Cir.2004), and a district court's determination that

information is neither exculpatory under Brady nor

discoverable under the Jencks Act is similarly subject to

abuse-of-discretion review, United States v. Rosario-Peralta,

175 F.3d 48, 55 (1st Cir.1999). The criteria for finding a

Brady violation are: (1) a wilful or inadvertent suppression of

evidence by the government, (2) the evidence being favorable

to the defendant, (3) resulting in prejudice to the defendant so

serious that there is "a reasonable probability that the

suppressed evidence would have produced a different verdict."

Strickler v. Greene, 527 U.S. 263, 281-282, 119 S.Ct. 1936,

144 L.Ed.2d 286 (1999); see United States v. Josleyn, 206

F.3d 144, 153 (1st_Cir.2000). This does not mean that a

verdict would have been " ‘more likely than not’ " different,

but that, without the evidence, defendant did not receive a trial

" ‘resulting in a verdict worthy of confidence.’ " Strickler, 527

US. at 289-90, 119 S.Ct. 1936 (quoting Kyles v. Whitley, 514

U.S._419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)).

The Jencks Act requires the government to provide,

upon request, certain prior statements made by trial witnesses,

and our review turns on the statutory requirement that the

statement "relate[ ] to the subject matter as to which the

witness has testified,” 18 U.S.C. § 3500(b). Again, a

demonstration of prejudice is necessary. United States v.

Nelson-Rodriguez, 319 F.3d 12, 35 (1st Cir.2003).

On appeal, defense counsel seeks to characterize the

1998 Apfel letter as an admission by the government that pen

registers were a well known component of the Winter Hill

Gang investigation, supporting defendant's contention that his

8

communication to Weeks in 1999 was not intended to be of

consequence. Defendant refers in his brief to "the

government's myth that no law enforcement officer under any

imaginable circumstance would ever breathe a word about

electronic surveillance in order to avoid flushing it's [sic]

usefulness down the toilet,” and asserts that the jury "should

have learned that by October 9, 1998, even the federal

prosecutors had abandoned the secrecy shill." In oral

argument, appellate counsel passionately elaborated on that

theme: "I wasn't given a chance to put David Apfel's letter

down his throat.... I could have tortured him for a couple of

hours about that letter." He further noted that for the

government to put pen registers on the brothers’ phones in

1999 is "almost laughable as a realistic attempt” to track down

James.

There are several problems with this argument.

Perhaps the most important is that the argument blithely

ignores the gulf separating the kind of information he was

convicted of passing on to Weeks and that described in the

Apfel letter. The latter was a statement, made a year before

appellant's action, that the government "has obtained”

information from unidentified pen registers, trap and trace

devices, and terminating number searches. In other words, not

only is the reference to past activity, but it is a general

reference to several investigative techniques employed by the

government without identifying the targeted telephones.

In contrast, defendant was charged with and convicted

for passing on information that electronic surveillance devices

had just been installed on the telephones of two named

- individuals. It was the harm done to law enforcement

investigations by this kind of almost contemporaneous release

of specific information conceming targets of electronic

surveillance that was the subject of the testimony of all the

government's witnesses.’ At no point does defendant in either

| The following seven witnesses all testified that the harm lay

9

his brief or oral argument acknowledge the difference between

the information contained in the Apfel letter and the specific

target information referred to by the government witnesses.

We fail to see how nondisclosure of the Apfel letter

suppressed evidence that could be considered exculpatory.

Beyond this, we note that defendant's claim that he

was merely passing on gossip would have been seriously

flawed even had the letter been available. First, this particular

argument was the last of a number of asserted motives, most

of which contradicted it. For example, were worthless gossip

all that was communicated, there would be little prospect of a

substantial reward resulting from such information, or even

the prospect of building up credit with Weeks for some future

bonanza tip about James's whereabouts. If, as appellate

counsel argued, no reasonable person with any experience

could believe that release of electronic surveillance

information would be of value, such a "bone" would hardly be

deemed worth gnawing by such a seasoned criminal associate

as Weeks. Similarly, mere gossip would be no way of

responding to the heavy obligation he assertedly felt toward

William because of past favors.

Moreover, on the record we have set forth, see supra at

6, the guilty verdict is consistent with the jury's belief that

defendant acted on his assumption and understanding that the

source of the information was his niece, Linda, reporting the

order for pen registers that came through her computer. See

United States v. Nishnianidze, 342 F.3d 6, 14 (1st Cir.2003)

in identifying the particular targets of ongoing electronic

surveillance: former Assistant United States Attorney Apfel;

FBI Agent Thomas Larnard; former FBI Agent Robert

Parisien; Massachusetts State Police Major Duffy;

Massachusetts State Police Colonel Foley; retired

Massachusetts State Police Lieutenant Robert Long; and

former NESPIN (New England State Police Information

Network) Director Kenneth McBride.

10

("[T]he jury's duty is to assess credibility, and it may accept or

reject, in whole or in part, any testimony."). Such a

permissible inference shatters the "golf course gossip" theory.

Our conclusion with respect to the Brady claim is thus

threefold. First, we cannot consider the belatedly produced

Apfel letter to be exculpatory for defendant because of its

irrelevance to a communication of specific, current, highly

confidential police surveillance. Second, we deem defendant's

effort to substitute a "worthless gossip" motive for that of

obstruction of justice to be unhelpful to him--and therefore not

exculpatory--because it is internally inconsistent with his own

testimony as to the basis of his action. Finally, we hold that in

any event defendant has made no showing that admission of

the Apfel letter "could reasonably be taken to put the whole

case in such a different light as to undermine confidence in the

verdict," Josleyn, 206 F.3d at 156 (quoting Kyles, 514 U.S. at

435, 115 S.Ct._1555). The ruling of the district court,

therefore, falls far short of any abuse of discretion.

Our decision on the Jencks Act issue is determined by

what we have said about the basic difference between the

generalized notice in the Apfel letter and an unauthorized

release of information about electronic surveillance currently

in place. Apfel's testimony at trial was confined to a

description of the electronic surveillance procedure, the

particular pen registers at issue, and the purpose of sealed

orders to keep such surveillance secret. The letter was not

relevant to that testimony. Finally, as in our analysis of the

Brady issue, the evidence in its totality renders any Jencks

error harmless. See United States v. Neal, 36 F.3d 1190, 1199

(1st Cir.1994). Indeed, defendant makes no attempt to

demonstrate prejudice.

We therefore affirm the district court's denial of the motion for

new trial.

I. Admission of Testimony as to Mental State

Ii.

11

Background. Defendant's second asserted error is that

the district court improperly allowed two law enforcement

witnesses to opine that someone experienced in dealing with

organized crime would know that revealing the existence of

electronic surveillance to a target would compromise the

investigation. Other testimony established that defendant had

such experience. See infra at 17-18.

Defendant invokes Rule 704(b) of the Federal Rules of

Evidence, which prohibits an expert witness from testifying

that a "defendant did or did not have the mental state or

condition constituting an element of the crime charged." He

cites our opinion in United States v. Valle, 72 F.3d 210, 216

(1st Cir.1995), where we held that Rule 704(b) prohibited

"direct expert testimony" concerning a defendant's intent if

intent was an element of the crime charged. This bar does not,

however, apply to "predicate facts from which a jury might

infer such intent,"-id., and we therefore held that an officer

properly testified that the quantity of drugs found was more

indicative of intent to distribute than to keep for personal use,

id. --

Defendant asserts that in this case the line was crossed

when FBI Agent Larnard and Major Duffy of the

Massachusetts State Police were allowed to answer the

following questions:

To FBI Agent Larnard: Would it be fair, sir, that any

law enforcement officer who had been involved in,

- say, organized crime investigations and the like, if he

had the information about a pen register and went and

gave it to the targets of the investigation itself, the

pen registers themselves, would know, would he not,

that he's compromising your investigation?

Mr. DUGGAN (trial counsel for defendant):

Objection.

THE COURT: Overruled.

A. Yes, sir.

12

To Major Duffy: So if you worked for ten years in the

Attorney General's Organized Crime Unit and they

were doing organized crime cases and using

electronic surveillance, would you know the damage

that you were doing to somebody else's investigation

if you leaked that electronic surveillance information

to the targets of the investigation?

MR. DUGGAN: Objection.

THE COURT: Overruled.

A. I think you would be extremely cognizant of the

ramifications of a breach of that nature.

Analysis. The government first reminds us that we

give "a wide berth" to such trial judgments as rulings under

Rule 704, reviewing them only for abuse of discretion. See

Valle, 72 F.3d at 214. It then advances four positions. The first

is that this evidentiary issue was not preserved by the

invocation of the single word, "objection." It cites our recent

opinion in Microfinancial, Inc. v. ier Holi t'l, Inc.

385 F.3d 72, 81 (1st Cir.2004). While we acknowledged the

general need for more explanation than calling out

"objection," Rule 103 of the Federal Rules of Evidence notes a

caveat: "if the specific ground was not apparent from the

context." In this case, we think it close to the line whether the

basis for objection was understood by all. We therefore resist

the government's invitation to rule on this point.”

A second argument of the government was that the

questions were quite proper, since they did not actually refer

to the intent of the defendant, but simply described “the

common practices of those who clearly do possess the

requisite intent." In so arguing, the government quotes United

? Even were we to accept the government's position, it would

not mean an end to our inquiry. Our view would then be for

plain error. See Microfinancial, 385 F.3d at 81.

13

— * 4 oy

States v. Lipscomb, 14 F.3d 1236, 1239 (7th Cir.1994), but

the court there clearly defined the limit of admissibility to be

testimony as to the modus operandi of a crime. We have

found no authority treating expert testimony as to what a

similarly situated officer might or might not know in the same

manner as "common practices." Here again, we prefer not to

rule on the issue.

A third contention of the government is that the

testimony concerning defendant's knowledge is admissible

because the crime with which defendant was charged is

obstruction of justice, which involves purpose, or specific

intent, "while ‘knowledge’ corresponds loosely with the

concept of general intent," United States v. Bailey, 444 U.S.

394, 405, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). This is an

ingenious argument, but the actual testimony here strays close

to the line of proof of purpose. See United States v. Smart, 98

F.3d 1379, 1385-89 (D.C.Cir. 1996) (testimony avoiding use

of "intent" to distribute drugs but saying that defendant "met

the elements" of a commercial drug dealer held impermissible

where the elements of a hypothetical question were a carbon

copy of defendant's circumstances). As in Smart, the questions

objected to here approach carbon copy similarity to

defendant's background. Again, we see no need to venture into

this kind of fine line drawing.

The government's fourth argument--that any error in

admitting these two sets of questions and answers was

harmless--seems clear beyond any doubt. We first observe that

both were very brief exchanges in the course of five days of

testimony in which seven witnesses from the law enforcement

community, see supra note 1, testified to the importance of

keeping information about ongoing electronic surveillance

from the targets.

In addition, a scrutiny of the context in which the

allegedly improper testimony took place reveals the strong

unlikelihood of prejudice. FBI Agent Larnard had been asked,

14

immediately before the exchange we have quoted, this

question:

Q. And based on your experience in law enforcement,

is the utility or the importance of keeping such

investigative tools or use of the tools confidential

~ important to anybody who has had experience in law

enforcement?

A. Of course.

In other words, virtually the same information siiected

to had just been elicited without any protest. Even though we

have in this case refrained from declaring a forfeiture of the

issue through voicing simply "objection," we resist going

farther down this roatl. While we have considered the issue,

we also view the prior unobjected to testimony as going far

toward removing any prejudice from what followed.

The context leading up to Major Duffy's challenged

exchange is even more revealing of its lack of significance.

Major Duffy had served for many years with the Organized

Crime Unit of the Massachusetts State Police. He knew that

defendant had served in a similar unit at the Attorney

General's office for about ten years, from 1968 to 1978, had

risen to the post of chief intelligence officer of that unit, and

had acquired a reputation as "somewhat of an expert” on

organized crime matters in Massachusetts. The Organized

Crime Unit, said Duffy, was “one of the predominant units of

the State Police involved in electronic surveillance, then and

now." Immediately following this last statement came the

objected-to question. The answer was, to say the least,

opaque: "I think you would be extremely cognizant of the

ramifications of a breach of that nature."

In sum, the Larnard exchange was not only brief and

unelaborated, but came only after substantially the same

15

opinion had been delivered moments before. And the Duffy

exchange came only after a wealth of information that pointed

powerfully to defendant's knowledge, and consisted of an

answer that was cloaked in obscurity.

Not only does our review of the record as a whole

reveal an abundance of evidence pointing to the clear

unlikelihood that defendant was innocent of any obstructive

motive in passing on the pen register information to Weeks,

but there is an absence of exculpatory evidence. Thus, we

cannot avoid the conclusion that, in the event that the two

answers should not have been permitted, such error would

have been harmless.

Ill. The Blakely/Booker Issue

In his original brief, defendant asked us to revisit two

enhancements of his sentence that were not alleged in the

indictment or found by the jury. One was a two-level

adjustment for obstruction of trial proceedings by false

testimony; the other was a one-level increase based on the

court's conclusion that defendant was an accessory after the

fact to a James Bulger extortion. These assessments produced

a guideline range of 18 to 24 months. The district court

sentenced the defendant to the low end of the range, rejecting

defendant's request for a downward departure based on

medical issues. The court stated:

I recognize my authority under United States v.

Koons and provisions of the Guidelines concerning

defendant's medical issues, but I find that it is not

appropriate in the circumstances of this case to depart

downward in view of the seriousness of the offenses

~ of which the jury has found the defendant guilty and

the absence of any expression of Genuine remorse

for the commission of the crime.

At the invitation of the court, following the Supreme

16

Court's decision in Booker, 543 U.S. at ----, 125 S.Ct. at 738,

both parties filed supplemental briefs. Defendant argued that

his case should be remanded for re-sentencing, in part based

on the same medical issues raised before the district court; the

government predictably responded that he failed to establish

his entitlement to such a remand. It is undisputed that a plain

error standard applies, and that our holding in United States v.

Antonakopoulos, 399 F.3d 68 (1st Cir. 2005), thus governs.

We there held that, to warrant a remand for re-sentencing, a

defendant must demonstrate "a reasonable probability" that

the district court would impose a sentence more favorable to

the defendant under the new advisory guidelines scheme. Id.

at 75.

Defendant has failed to satisfy that burden. First, as

quoted above, the district court rejected the possibility of

granting a downward departure based on defendant's medical

issues. The court indicated that it was not constrained by the

mandatory nature of the Guidelines, but stated that the

severity of the crime and defendant's lack of remorse rendered

leniency inappropriate.

In an attempt to inject a new consideration into the

mix, defendant cites a factor "not articulated at the sentencing

hearing," namely, the sentencing disparity between defendant

and his co-defendants. The co-defendants-- defendant's

brother-in-law and niece--were not, however, similarly

situated. Both pleaded guilty to obstructing justice,

eliminating the "lack of remorse" rationale that influenced the

sentence imposed on defendant. Moreover, the court found

that defendant testified falsely during trial. In these

circumstances, we think it evident that the district court would

not have reduced defendant's sentence for the purpose of

eliminating disparity.

In the absence of any "specific facts" showing that he

was prejudiced by the district court's error, see

Antonakopoulos, 399 F.3d at 80, we have no basis upon which

17

- to order a remand for re-sentencing.

We therefore AFFIRM the district court's rulings.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA )

)

Vv ) CRIMINAL NO.

) 00-10412-REK

RICHARD J. SCHNEIDERHAN, )

Defendant. )

)

- Memorandum and Order on Defendant’s Motion for

New Trial

June 27, 2003

I. Pending Matter

Defendant’s Motion for New Trial (Docket No. 174,

filed June 16, 20903) is before the court, together with the

Government’s Response (Docket No. 178, filed June 24,

2003), and supporting filings of both parties.

After hearing oral argument on June 25, 2003, and

considering all the filed submissions referred to above, I

concluded and ruled at the hearing that it is appropriate to

deny defendant’s motion for new trial for the reasons stated

19

then and recited again for the record in this Memorandum and

Order.

il. Some Preliminary Clarification

Defendant’s contention is that, following the verdict in

this case, defense counsel received a copy of a letter of

October 9, 1998, from David J. Apfel, Assistant United States

Attorney, to Thomas R. Kiley, Esq., counsel for William

Bulger, in the text of which Apfel advises Kiley as follows:

This letter confirms what I told you this past

Wednesday, October 7, 1998, regarding the use I

plan to make of electronic surveillance evidence

during any proffer or grand jury appearance by your

client, William Bulger.

I will not ask Mr. Bulger any questions based

on information obtained from any Title I wiretap. I

will, however, ask Mr. Bulger questions based on

information the government has obtained from the

telephone pen registers and trap and trace devices, as

well as from terminating number searches.

I believe this information more than satisfies

the request you made at our Wednesday meeting and

in your letter of the same date. Please let me know if

I am mistaken, or if you believe you are entitled to

additional “electronic surveillance” information prior

to Mr. Bulger’s proffer and grand jury appearance.

20

Docket No. 174, Exhibit A.

Defendant contends also that “Apfel’s letter refers to

prior correspondence dated October 7, 1998, and refers to Mr.

399

Bulger’s ‘proffer and grand jury appearance.’”” The reference

to “prior correspondence” (emphasis added) dated October 7

is not accurate. Instead, the letter of October 9 referred to

what Apfel says “I told you this past Wednesday, October 7,

1998 ...” (emphasis added).

Defendant’s motion then refers to additional

correspondence dated January 29, 1999, and February 1, 1999,

between Apfel and Kiley, attached as Exhibits B and C. The

defense motion uses the phrase “confirms that the parties

continue to discuss William Bulger’s grand jury appearance

and the possibility that he had been intercepted by Title II

wiretaps” (emphasis added). The word “continue” is

misleading if interpreted as asserting that even after verdict in

this case the parties in this case are continuing any such

discussion. No evidence is before me to support that

interpretation.

In the remainder of the motion for new trial, defendant

contends that all of the Apfel correspondence referred to

above should have been disclosed to the defendant before trial

“both because of it’s exculpatory nature, and because it was.a

‘witness statement’ reduced to writing and discoverable under

the Local Rules.”

II. Law Applicable to the Charges in This Case

The two counts in the indictment in this case charged

that

Count 1, defendant conspired with others to

commit a federal crime — specifically,

obstruction of justice, and

Count 2, defendant corruptly obstructed, or

impeded, or endeavored to influence,

obstruct, or impede the due

administration of justice in the

Salemme case by disclosing

information concerning a then ongoing

investigative effort being conducted by

the FBI pursuant to court order which

was designed to capture information

that might be of assistance in

22

apprehending James “Whitey” Bulger

so that he could be held to stand trial

in the Salemme case.

Docket No. 159 at 19, 26.

The charge told the jury that the elements of

the conspiracy offense that the government must prove

beyond reasonable doubt are as follows:

First, that the agreement specified in the

indictment, and not some other agreement or

agreements, existed between at least two people to

commit the crime of obstructing justice as described

in the indictment.

Second, that the defendant willfully joined in

that agreement.

Third, that one of the conspirators committed

an overt act in an effort to further the purpose of the

conspiracy.

Id. at 19.

The description of the particular conspiracy

charged in this indictment was as follows:

In your consideration of the conspiracy

offense alleged in the indictment, you should first

23

determine, from all of the testimony and evidence in

the case, whether or not the conspiracy existed as

charged. In substance, the indictment charges that the

defendant conspired with Edward Duff, Linda

Reardon, Kevin Weeks, and others, to corruptly

influence, obstruct, and impede the due

: administration of justice in a case known as United

States v. Francis P. Salemme, et al., Criminal No. 94-

10287-MLW (D.Mass.). For the sake of

convenience, I will refer to this case during my

instructions as the “Salemme case.” More

particularly, the indictment charges that the defendant

and others conspired to obstruct justice by disclosing

information concerning a then-ongoing investigative

: effort being conducted by the FBI pursuant to court

order and designed to capture information that might

be of assistance in apprehending James “Whitey”

Bulger so that he could be held to stand trial in the

Salemme case.

Id. at 20.

Further explanation of Count 2 was, in relevant

part, as follows:

The due administration of justice refers to the

fair, impartial, uncorrupted and unimpeded

prosecution, disposition, or trial of any matter — civil

or criminal — in the courts of the United States. It

includes very step in a proceeding in the federal

courts to assure the just consideration and

determination of the rights of parties, whether

government or individual.

24

Thus, due administration of justice includes a

federal criminal trial.

A key work in the state is “endeavor.” As

used in this statute, “endeavor” means any effort or

any act to obstruct, impede, or interfere with a

proceeding.

Success of the endeavor is not an element of

the crime. Any effort, whether successful or not, that

is made for the purpose of corrupting, obstructing, or

impeding the proceeding is condemned.

The word “corruptly” as used in the statute

means having the improper motive or purpose of

obstructing justice.

In order to prove the defendant guilty of the

obstruction of justice charged in Count 2, the

government must prove each of the following

elements beyond a reasonable doubt.

First, that the judicial proceeding identified

in the indictment was pending on or about the date set

forth in the indictment.

Second, that the defendant knew that — a

proceeding was pending.

Third, that the defendant endeavored to

influence, obstruct, or impede the due administration

of justice as described in Count 2 of the indictment.

Fourth, that he did so knowingly, willfully,

and corruptly.

25

Id. at 26-28.

_ As to the defense contention of “impossibility

the court charged:

Because a defendant’s actions need not be

successful in obstructing justice, it is irrelevant

~whether or not it was factually possible for the

defendant to have succeeded in doing so. If you find

beyond a reasonable doubt that all four elements have

been proved, then the crime of obstruction of justice

has been proved, even if it was factually impossible

for the defendant to succeed in obstructing justice in

the circumstances of this case.

Id. at 29.

_

IV. Law Applicable to Motion For New Trial

The Government’s Response to the motion for new trial

correctly states the law applicable to the motion for new trial in

this case:

It is well-established that the Government has a

constitutional duty to disclose evidence favorable to an

accused when such evidence is material to guilt or

punishment. See Brady v. Maryland, 373 U.S. 83

(1963). Favorable evidence includes not only evidence

that tends to exculpate the accused, but also

26

—

impeachment evidence. United States v. Ingraldi, 793

F.2d 408, 411 (1* Cir. 1986). In United States v.

Bagley, 473 U.S. 667, 682 (1985), the Supreme Court

formulated a uniform standard of materiality for

general application in all nondisclosure cases, namely,

evidence is material only if there is a reasonable

probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been

different. See Kyles v. Whitley, 514 U.S. 419, 433-34

(1995); see also United States v. Sanchez, 917 F.2d

607, 617-18 (1* Cir. 1990); United States v. Gambino,

59 F.3d 353, 365 (2d Cir. 1995)(“information not

disclosed to the defense creates constitutional error

warranting a new trial only when that information is

material, i.e., when it creates a reasonable doubt that

did not otherwise exist.”’).

Importantly, as noted by the Supreme Court,

“{T]here is never a real ‘Brady violation’ unless the

nondisclosure was so serious that there is a reasonable

probability that the suppressed evidence would have

produced a different verdict.” Strickler v. Greene, 527_

U.S. 263, 281 (1999); Giglio v. United States, 405 U. S.

150, 154 (1972)(“undisclosed impeachment evidence is

not material in the Brady sense when, although

‘possibly useful to the defense;’ it is ‘not likely to have

changed the verdict.””).

Finally, in order to establish a Brady violation

and that the suppression of exculpatory or

impeachment material deprived defendant of his nght

to a fair trial, defendant must demonstrate that: (1) the

Government, either willfully or inadvertently,

suppressed evidence; (2) the evidence at issue is

favorable to the defendant’ and (3) the failure to

disclose this evidence resulted in prejudice. Strickler,

527 U.S. at 281-82. Further, new trial motions which

are premised on newly discovered evidence require a

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defendant to show that the evidence was unknown to

the defendant at the time of trial; the failure to discover

the evidence was not the result of a lack of diligence;

the new evidence is “maierial”; and the evidence

“would probably produce an acquittal upon retrial of

defendant.” United States v. Josleyn, 206 F.3d 144,

151 (1% Cir. 2000). Under the circumstances extant in

the case at bar, no Brady violation occurred and the

timely disclosure of the October 9, 1998 letter, or use

of same at a retrial would not have resulted in the

defendant’s acquittal.

Government’s Response, Docket No. 178 at 6-8.

Y. Applying Applicable Law to Circumstances of This

Case

I find, as the government contends, that on or about July

30, 2002, the government disclosed to the defense a complete

copy of the April 15, 2001, grand jury testimony of William

Bulger. The disclosure was made as part of its continuing

obligation to provide discovery in accordance with Rule 16 of

the Fed.R.Crim.P. and the Local Rules.

The July 30, 2002, disclosure provided the defendant

with specific information about the same subject matter as that

reflected in the October 9, 1998 letter of former Assistant United

States Attorney Apfel. Accordingly, the defendant was not

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prejudiced in any material way by the nondisclosure of the

letter.

Also, the government correctly calls attention to the fact

that the defense never made use of the disclosed information at

trial. In fact, the defense did not ask Kevin Weeks about the

subject matter, and it did not call William Bulger.

With respect to the defense claim that the Apfel letter of

October 9, 1998, constitutes exculpatory evidence because it

would have undermined the prosecutions’ ability to show the

"natural and probable effect” of the defendant’s action, Motion

for New Trial at 713, the defendant previously advanced a

similar argument in what was captioned “Defendant’s Motion to

Dismiss If” and his “Memorandum of Law in Support of

Motion to Dismiss II.”

The defendant argued that the Government’s lack of

success in obtaining evidence from surveillance on the Bulger

telephones “suggest[ed] that the disclosure made “by

Schneiderhan] [was] harmless beyond a reasonable doubt.”

29

Memorandum of Law in Support of Motion to Dismiss II at 3-4.

The defendant had asked the Court to make a factual assumption

that if the defendant had not thwarted the government’s efforts

to use the court-authorized pen registers, nothing of evidentiary

value would have been collected anyway, and so disclosure

would not have affected the likelihood of Bulger’s

apprehension.

In addition, as argued in its motion in limine, the

government called attention to the relevant law establishing that

factual impossibility is not a defense to a conspiracy charge

under 18 U.S.C. §371, since the essence of this crime is an

agreement to commit a crime (perfected by an ie act taken to

effectuate the object of that agreement). The success of the

_ conspiracy is immaterial.

Further, the government is correct in suggesting that the

defendant is misinterpreting the phrase “natural and probable

effect’ of the defendant’s actions. As noted above, an

impossibility defense was not available to the defendant.

30

Also, the issue for the jury to decide was not whether the

pen registers would have succeeded in producing valuable

information but for the defendant’s actions; rather, the issue

before this court and the jury was whnathet tan catia wie

probable effect of the type of corrupt act the defendant engaged

in would be to interfere with the due administration of justice.

_ The October 9, 1998, letter from then-Assistant United

Siates Attorney Apfel to Attorney Kiley was not material to the

defense, and would not have affected the outcome of the trial.

Also, I find that the defendant was not prejudiced by the -

nondisclosure of the October 9, 1998 letter from AUSA Apfel to

Attomey Kiley. The defendant’s failure to make use of other

related and even more significant information that was disclosed

pretrial, along with all the other relevant circumstances of this

case, strongly supports this inference. Notwithstanding the

government’s disclosure of the information contained in the

Bulger grand jury testimony that was disclosed, the defense

never used the information at trial. In particular, the defense

31

neither inquired of Kevin Weeks about the subject matter, nor

did it call William Bulger as a witness, even though he had been

identified as a potential defense witness.

VI. Jencks Act Contention

The defense contention that Apfel’s correspondence

amounted to a statement of the witness Apfel as defined by the

Jencks Act is nct supportable because of the absence of any

showing that it was a statement about matters material to the

testimony given by Apfel at the trial of this case.

ORDER

For the foregoing reasons, the court ordered at the

hearing on June 26, 2003, and hereby confirms, that

Defendant’s Motion for New Trial (Docket No. 174) is

DENIED.

//S//Robert E. Keeton _

Robert E. Keeton

32