# Petition for Writ of Certiorari — Schneiderhan v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 873

## Text

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

27

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
28

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1702%3A1. Public record. Not legal advice.