United States v. Bulger
816 F.3d 137
1st Cir.2016Background
- James "Whitey" Bulger was tried in 2013 on a multi-count RICO indictment accusing him of leading the Winter Hill organized-crime enterprise (1972–2000), including multiple murders, extortion, narcotics, money laundering, and weapons offenses; he was convicted and sentenced to life plus additional terms.
- Key government witnesses were cooperating former associates (Stephen Flemmi, John Martorano, Kevin Weeks) and evidence of Bulger's corrupt relationship with FBI agent John Connolly.
- Pretrial, Bulger sought to present an immunity defense, claiming former prosecutor Jeremiah O’Sullivan promised nonprosecution; the court conducted in camera review, found Bulger made only a bare proffer and denied the defense as unsupported.
- Shortly before trial the government received an anonymous tip alleging witness Martorano engaged in ongoing illegal gambling and that a state trooper shielded him; the court reviewed investigatory materials ex parte, deemed the allegations unsubstantiated, and denied defense access under Brady.
- The defense sought to call the anonymous tipster (Trooper Orlando) and other witnesses to impeach Martorano; the court excluded that testimony as irrelevant or barred by Rules 402/403 and 608(b).
- Bulger also complained about the prosecutor’s frequent “speaking objections”; the court instructed jurors about objections and found any prejudice insufficient to warrant a new trial.
Issues
| Issue | Plaintiff's Argument (Bulger) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Pretrial immunity determination | Judge should not decide immunity pretrial; jury should decide; preclusion violated rights to testify and present a defense | Immunity can be decided pretrial under Rule 12; Bulger’s proffer was insufficient | Court may resolve immunity pretrial; Bulger’s proffer was inadequate; no clear error in denial |
| Ex parte investigatory materials re: Martorano | Brady required disclosure of the anonymous tip and state-police report because they could impeach Martorano | Materials showed allegations were false/unsubstantiated; in camera review warranted nondisclosure | In camera review disclosed allegations were debunked; nondisclosure not an abuse of discretion under Brady/Giglio |
| Calling anonymous tipster (Orlando) to impeach Martorano | Orlando’s testimony would show investigative forbearance and impeach Martorano’s credibility | Allegations were disproven; testimony would be irrelevant and prejudicial; Rule 608(b) limits extrinsic proof of specific bad acts | Exclusion of Orlando was within court’s discretion (irrelevant/prejudicial); no Brady violation shown |
| Prosecutor’s "speaking objections" | Repeated verbose objections tainted jury and inserted inadmissible evidence/opinion | Some speaking objections occurred but judge intervened and jurors were instructed; overall case strong | Even assuming improper, conduct was not egregious and did not prejudice defendant given instructions and strong evidence; no new trial |
Key Cases Cited
- United States v. McLaughlin, 957 F.2d 12 (1st Cir.) (pretrial immunity determinations and contract-like analysis of cooperation/immunity agreements)
- United States v. Silvestri, 790 F.2d 186 (1st Cir.) (affirming pretrial resolution of immunity-based motion to dismiss)
- United States v. Brimberry, 744 F.2d 580 (7th Cir.) (motions to dismiss appropriate when prosecution is claimed barred by immunity)
- Brady v. Maryland, 373 U.S. 83 (1963) (government must disclose favorable evidence material to guilt or punishment)
- Giglio v. United States, 405 U.S. 150 (1972) (prosecutor must disclose agreements or promises to witnesses that could impeach credibility)
- Napue v. Illinois, 360 U.S. 264 (1959) (prosecution may not knowingly use false testimony or allow it to go uncorrected)
- United States v. Winter, 663 F.2d 1120 (1st Cir.) (discussing informal immunity/nonprosecution arrangements in context)
- United States v. Sepúlveda-Hernández, 752 F.3d 22 (1st Cir.) (standard for reviewing prosecutorial misconduct claims)
- United States v. Vázquez-Botet, 532 F.3d 37 (1st Cir.) (prejudice inquiry for prosecutorial misconduct including context and case strength)
- Agurs v. United States, 427 U.S. 97 (1976) (framework for materiality in Brady claims)