UNITED STATES, Appellee, v. James J. BULGER, a/k/a Jimmy, a/k/a Whitey, a/k/a Jim, Defendant, Appellant.
No. 13-2447.
United States Court of Appeals, First Circuit.
March 4, 2016.
137
Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
Before THOMPSON, KAYATTA, and BARRON, Circuit Judges.
THOMPSON, Circuit Judge.
After evading authorities for fifteen-plus years, fugitive James “Whitey” Bulger, the head of an organized crime syndicate in Boston from the 1970‘s to the 1990‘s, was captured. Bulger, who had been indicted in connection with a racketeering conspiracy while on the run, was brought to trial. The jury found him guilty of the vast majority of charged crimes and he was sentenced to life in prison. Bulger appeals the conviction, claiming that he was deprived of his right to a fair trial when both the government and trial court got a few things wrong prior to and during trial. Having closely considered the array of claimed errors, we affirm.
I. BACKGROUND
The factual underpinning of this case is considerable. The events span decades and the cast of characters is large but this appeal is circumscribed in scope making only certain details pertinent. We chart the relevant origin and travel of the case, saving the facts related to the maintained errors for later.1
A. The Indictment
In 2001, Bulger, who was on the run and had been for some time, was charged with thirty-two counts of a racketeering indictment along with Stephen Flemmi.2 It al
B. Arrest and Trial
Law enforcement finally caught up with Bulger in June of 2011, finding him living under an assumed identity in California. He was arrested and from there brought back to Massachusetts to stand trial.
There was a good deal of pretrial skirmishing among the parties and rulings from the court, the particulars of which we will detail later. The same goes for the midtrial clashes and edicts. We will chronicle those later too. For now we focus on the substantive case that was presented to the jury over the course of the three-month trial.
C. The Government‘s Case
The government called scores of witnesses: participants in Bulger‘s operations, law enforcement officials, and forensics experts. Some of the testimony came from Bulger‘s closest Winter Hill associates—Flemmi, John Martorano, and Kevin Weeks—who had all cut plea deals with the government, swapping their cooperation for various benefits. The jury heard the following.
The government placed the start of the conspiracy at a 1972 meeting where Bulger‘s gang and another gang decided to go in together on some kind of “gambling business” that targeted individuals not affiliated with the mafia (also known as New England La Cosa Nostra). A string of murders followed in the ensuing years, which testimony linked Bulger to, along with other criminal activities.
Then around 1975, according to government witnesses, Bulger began acting as an informant to John Connolly, a Federal Bureau of Investigation (“FBI“) agent. At some point, their relationship turned corrupt. Martorano and Flemmi (the latter, by his own admission, had been an FBI informant dating back to the 1960‘s), testified that Connolly began alerting Bulger to investigations being made into Winter Hill‘s illegal conduct and Bulger, in turn, lavished Connolly with gifts and cash, with approximately $230,000-plus going to Connolly over the years.4
For Bulger and his cohorts, the 1980‘s brought more murders and the continued use of violence to extort large sums of money from individuals. There were also a couple newer ventures: shaking down drug dealers for a share of their profits and purchasing real estate utilizing illegally obtained money.
The enterprise began to crumble in the summer of 1990 when law enforcement arrested some individuals involved in Winter Hill‘s drug venture. Fast forward a few years to 1994 when, according to co
For his part, Flemmi stuck around and indeed was arrested in January of 1995. He tried to avoid being prosecuted, arguing during pretrial proceedings that he had been a secret FBI informant and so was immune from prosecution. With the courts holding otherwise, See United States v. Salemme, 91 F.Supp.2d 141 (D.Mass. 1999); United States v. Flemmi, 225 F.3d 78 (1st Cir. 2000), Flemmi agreed to cooperate with the government. In 2003, Flemmi pled guilty to twelve murders, extortion, narcotics crimes, money laundering, obstruction of justice, perjury, and firearms charges. By the time of Bulger‘s 2013 trial, Flemmi was serving a federal life sentence, as well as life sentences in Oklahoma and Florida. Because of his agreement to assist the government, Flemmi avoided the death penalty in those two states and got placed in a Federal Bureau of Prisons segregated unit for government witnesses (according to Flemmi, the living conditions are better there than in general population).
Like Flemmi, Martorano was arrested in January of 1995. Martorano, who had been a fugitive since 1979, was picked up down in Florida. He pled guilty to various federal charges, including ten federal murders, as well as two state murders. In exchange for cooperating against Bulger (if apprehended) and Flemmi, Martorano got just a fourteen-year sentence, to be served in a special facility for government witnesses, with five years’ supervised release. On top of that, Martorano was allowed to use property seized by the government to settle a judgment his ex-wife had secured against him. He was released from prison in 2007.
Weeks was arrested in November of 1999 by the Drug Enforcement Administration and Massachusetts State Police. He pled guilty to racketeering crimes plus five murders, and received immunity for some state crimes, in exchange for his full cooperation. The plea terms required him to testify in any case that was pending or brought within three years of his plea agreement. Bulger‘s trial marked the fifth or sixth trial that Weeks took the stand for.
As for Connolly, Bulger‘s FBI handler, he was indicted in 1995 (along with Bulger, Flemmi, and Martorano) for the murder of a businessman that Winter Hill had dealings with. Connolly was convicted by a jury some years later. At the time of Bulger‘s trial, Connolly was serving his sentence down in Florida, after having also been convicted of some federal charges in Massachusetts stemming from his relationship with Winter Hill.
D. The Defense
Bulger‘s defense strategy was laid out during opening statements. It was not a wholesale denial of any criminal wrongdoing. Instead counsel tried to poke holes in the government‘s case by casting doubt on the veracity of the cooperating witnesses’ testimony, namely Flemmi, Martorano and Weeks. The defense harped on their background and character, as well as “the unbelievable incentives the prosecution has given these three men so that they will testify in the manner that the government wants.” It also sought to undercut the prosecution‘s case by emphasizing the rampant corruption among federal law enforcement at the time. And counsel vigorously disputed the notion that Bulger had
These themes continued through the defense‘s cross-examination of government witnesses and direct examination of its own witnesses, namely law enforcement agents. Bulger did not take the stand.
E. The Verdict and Sentence
Eventually both sides wrapped up and after deliberating for four days, the jury found Bulger guilty on all counts, save one extortion count. With respect to the racketeering count in particular, the jury found the government had proven some, though not all, of the thirty-three racketeering acts alleged. The proven ones included the murder of (and sometimes also the conspiracy to murder) eleven individuals, multiple instances of extortion and money laundering, and one act of narcotics distribution conspiracy. Following a hearing, the trial judge sentenced Bulger to life in prison, with an additional life and five-year sentence to be served consecutively.
F. This Appeal
Bulger timely appealed. As alluded to above, he assigns error to various court rulings and condemns certain actions of the government. Bulger would have us find that standing alone, or cumulatively, the alleged miscues warrant reversal of his conviction and a new trial.
II. IMMUNITY
Bulger‘s first claimed error relates to the court‘s pretrial decision that barred Bulger from asserting at trial that he was immune from prosecution, immunity, Bulger says, he was granted long ago by a government attorney, one Jeremiah O‘Sullivan. We start with what happened below.
A. Background
Prior to trial, the defense filed a discovery motion seeking all correspondence between various law enforcement agencies, e.g., FBI, United States Attorney‘s Office, Department of Justice (“DOJ“), and individual Winter Hill members, such as Bulger, Flemmi, and Martorano. As grounds for the request, Bulger indicated that he “intend[ed] to show at trial that [he] had immunity for the indicted conduct.” Specifically, he claimed that now-deceased former federal prosecutor, Jeremiah O‘Sullivan, who previously headed the DOJ‘s New England Organized Crime Strike Force, promised Bulger that he would not be prosecuted for his crimes.
The government opposed the request, calling the immunity claim “frivolous and absurd,” and asked the court to decide pretrial that Bulger did not have an enforceable immunity agreement with the government. In additional briefing, the government produced an affidavit from Associate Deputy Attorney General David Margolis, who, in his capacity as Chief of the DOJ‘s Organized Crime and Racketeering Section during O‘Sullivan‘s tenure, had been responsible for supervising O‘Sullivan. Boiled down, the affidavit said that O‘Sullivan would not have had the authority to confer immunity on Bulger. Margolis explained that certain approval practices adhered to non-prosecution agreements and grants of use immunity, and that O‘Sullivan had never discussed with him (or his deputies) the prospect of any agreement with Bulger, nor sought the required authorization to enter into such an agreement. Margolis stated that “if O‘Sullivan did, in fact, enter into any immunity or non-prosecution agreement with James Bulger without obtaining the
The court (a different judge from the trial judge was presiding over the case back then), after conducting a hearing, ruled on the issue in March 2013. It found that pretrial resolution of the immunity claim was warranted, and that Bulger‘s claim of immunity for any crimes prospective to the grant (i.e., crimes that Bulger committed after O‘Sullivan‘s purported promise) was without authority and unenforceable. The court ordered supplemental briefing on the issue of historical immunity (i.e., crimes committed before the alleged immunity promise) so that Bulger could properly respond to the recently produced Margolis affidavit. The parties were also given the opportunity to request an evidentiary hearing.
When the judge who made the initial ruling ended up recusing from the case, and the ultimate trial judge took over, Bulger moved to vacate the March 2013 order.5 After hearing argument, the court issued its decision. Though it found no reason to vacate the original order, it nonetheless decided to revisit the issues the order had dealt with.
First, the court found that whether or not a valid immunity agreement existed was indeed an issue for a judge‘s consideration, as opposed to a jury‘s, for a few reasons. For one, it held that immunity was a bar to prosecution that needed to be decided by the court beforehand, as opposed to a defense that might go to the jury. The court also concluded that the question of immunity was entirely severable from the issue of whether Bulger was guilty or innocent of the charged crimes. Plus, deciding the issue pretrial would either narrow the focus at trial, or, in the event things went the other way, prevent an unnecessary trial.
As for the merits of Bulger‘s immunity claim, the court found that Bulger had offered only a bare assertion (through defense counsel‘s representations) that O‘Sullivan gave him immunity sometime before 1984, which extended until 1989 when O‘Sullivan left the United States Attorney‘s Office. Bulger provided no evidentiary support, written or otherwise, for this claim and declined the court‘s invitation for an evidentiary hearing. This was inadequate, the court concluded. It stated that there was an “insufficient proffer that any such promise of immunity was made by a person with actual authority to make it or that Bulger detrimentally relied upon such a promise, or that any such agreement was enforceable as a matter of law.”6
The court was also unpersuaded by Bulger‘s criticism of the distinction the previous judge made between historical and prospective immunity. According to Bulger (again this is just via counsel‘s arguments and representations), the historical versus prospective distinction made no sense because the grant of immunity was actually “ongoing,” in other words it extended from the grant in 1984 until the end of O‘Sullivan‘s tenure in 1989. The court saw things otherwise. It concluded that regardless of whether immunity was characterized as prospective, historical, or ongoing from its alleged grant, Bulger‘s proffer was insufficient.
Finally, the court disposed of Bulger‘s argument that his Sixth Amendment rights were being infringed by the court‘s preclusion of his immunity claim, and by extension any testimony in support thereof, since though restricted in his testimony, Bulger was not actually barred from taking the stand to offer pertinent and admissible testimony, and there is no constitutional right to introduce irrelevant evidence.
With the immunity issue decided, the case went to trial. Though not precluded from doing so, Bulger ultimately elected not to testify. When questioned by the judge at the close of the defense‘s case about whether this election was voluntary, Bulger stated: “I‘m making the choice involuntarily because... I feel that I‘ve been choked off from having an opportunity to give an adequate defense and explain about my conversation and agreement with Jeremiah O‘Sullivan. For my protection of his life, in return, he promised to give immunity.” After further lamenting the court‘s decision and the “sham” trial he had received, Bulger ultimately confirmed that he had decided not to testify.
B. Argument
On appeal, Bulger assigns error to the trial court‘s pretrial immunity ruling. Broadly speaking (more to be said), Bulger argues that whether he had immunity was a question solely for the jury and should not have been taken up by the judge pretrial. The judge‘s doing so, Bulger insists, ran afoul of both
C. Judge vs. Jury
The first question is whether the judge was right to take up the immunity issue pretrial. The short answer is yes.
For one, our across-the-board research suggests that resolving a defendant‘s claim that he is immune from prosecution pretrial, as opposed to at trial, is more the norm than the exception. See United States v. McLaughlin, 957 F.2d 12, 15-16 (1st Cir. 1992) (affirming the trial court‘s pretrial denial of a motion to dismiss an indictment based on immunity); United States v. Silvestri, 790 F.2d 186, 193-94 (1st Cir. 1986) (same); see also United States v. Robertson, 736 F.3d 1317, 1321, 1324-25 (11th Cir. 2013) (same); United States v. Fishman, 645 F.3d 1175, 1184-85 (10th Cir. 2011) (same); United States v. Brimberry, 744 F.2d 580, 586 (7th Cir. 1984) (holding that “[w]here a defendant contends that his or her prosecution is precluded by a grant of immunity, a motion to dismiss the indictment is the proper method of raising the issue“). And Bulger does not direct us to any case law that suggests otherwise.
What Bulger does contend, however, is that these cases are inapposite because they involve instances where the defendant sought to have the immunity issue decided pretrial, that is, moved to dismiss the indictment. Bulger claims that because he, unlike those defendants, did not affirmatively seek to have the immunity issue decided, it was inappropriate for the court to take up the issue at the government‘s behest.8
Not only does Bulger‘s argument make little sense but we see no legal support for his position. To start with, it bears noting that although Bulger did not file the actual motion seeking pretrial resolution, it was he who put the issue into play, indicating orally and in a filing before trial that “[t]he defense intends to show at trial that James Bulger had immunity for the indicted conduct.” As a result, the government, as Rule 12 permits, requested that the court decide the issue pretrial. See
Simply said, we fail to see why the fact that Bulger was not the one to file the motion or request the hearing, would automatically convert this limited immunity matter to one for the jury. Nothing in Rule 12 itself requires this reading.
Indeed it would make little sense for the trial judge here, when faced with Bulger‘s clear claim that he was barred from being prosecuted in the very courtroom in which he sat, to conduct a lengthy trial, only to have the jury potentially find that Bulger should not have been prosecuted in the first place. A judge plainly ““should be alerted to the possible superfluity of the impending trial so that if the claim proves to have merit the time and effort of a trial might be saved.“” Brimberry, 744 F.2d at 586 (alterations omitted) (quoting United States v. Buonomo, 441 F.2d 922, 924-25 (7th Cir. 1971)).
Furthermore, despite Bulger‘s protestation otherwise, judges can effectively make immunity determinations without usurping the jury‘s fact-finding role.10
For one, judges are outfitted to make factual findings (they of course do so regularly in varying contexts) and Rule 12 contemplates that some factual determinations might need to be made.
All of this securely undermines the notion that the judge was wrong to consider immunity pretrial but a loose end remains. We are still left with Bulger‘s vague claim that the court‘s decision to take up immunity pretrial violated his constitutional rights, namely, his Fifth Amendment right not to incriminate himself, and his Sixth Amendment rights to have a trial by jury, present an effective defense, and testify. However, we decline to address these claims given that we think Bulger has a preservation problem, which proves dispositive. While Bulger points generally to some cases to support the unarguable notion that the constitutional rights he cites are important ones, he does not close the loop. He fails to provide us with intelligible analysis, or case law, to support his claim that the court‘s ruling in fact impinged on these rights.11
Of course “we consider waived arguments ‘confusingly constructed and lacking in coherence.“” Rodríguez v. Mun. of San Juan, 659 F.3d 168, 175 (1st Cir. 2011) (quoting United States v. Zirby, 515 F.3d 31, 36 n. 4 (1st Cir. 2008)). And constitutional claims like the ones Bulger lobs are just the type of complicated issues that call for some in depth treatment. See Tayag v. Lahey Clinic Hosp., Inc., 632 F.3d 788, 792 (1st Cir. 2011) (“This is hardly a serious treatment of a complex issue and is not
There is no need to say more. With the immunity issue properly in the judge‘s hands, the only question that remains is whether she resolved it correctly.
D. Merits
As we said, more typically a defendant who contends that an immunity grant bars his prosecution would move pretrial to dismiss the charges lodged against him. See McLaughlin, 957 F.2d at 15; Silvestri, 790 F.2d at 193. In instances where the trial court has denied the motion and allowed the case to proceed, appellate courts assessing a challenge to that ruling have reviewed the trial judge‘s factual determinations about the existence and scope of an immunity agreement for clear error. United States v. Short, 387 F. App‘x 308, 312 (4th Cir. 2010) (reviewing for clear error following the district court‘s denial of a motion to dismiss the indictment based on a grant of immunity); United States v. Meyer, 157 F.3d 1067, 1078 (7th Cir. 1998) (reviewing the trial court‘s factual determination regarding the scope of an immunity agreement for clear error); Silvestri, 790 F.2d at 193 (indicating that the existence of a plea agreement that purportedly conferred immunity on the defendant was a factual determination that could only be set aside if clearly erroneous). We will borrow a page from that playbook and do just that here. In doing so, we find that nothing in this record persuades us that the court clearly erred.
As we explained, the trial judge found the factual record did not establish that a legally enforceable promise of immunity was made by someone with authority to do so or that Bulger detrimentally relied on any such assurance. The court was not clearly wrong. There was in essence no proffer from Bulger. He did not offer, say by way of affidavit, particulars of the alleged grant, such as when and where it was given, whether anyone else was present, whether it was memorialized in some way, or whether consideration was exchanged. The same goes for why immunity was supposedly bestowed in the first place. Bulger did not proffer any evidence as to what benefit he heaped on the government in exchange for this extensive immunity grant.13
Nor did Bulger make a plausible argument that O‘Sullivan had actual authority to enter into the purported agreement.14 And as for whether Bulger relied to his detriment on the alleged promise, perhaps by doing something he would not have absent it, Bulger did not say one way or the other. Instead the trial judge was left with a broad, bald assertion from defense counsel lacking any particularized details that Bulger entered into an immunity agreement with O‘Sullivan sometime prior to 1984, which barred
Countering Bulger‘s rank assertion that he had been granted immunity, we had the government‘s Margolis affidavit (though to be clear the burden here is on Bulger, see Flemmi, 225 F.3d at 84), which unambiguously provided that even assuming the unlikely event of O‘Sullivan entering into some agreement with Bulger, he would not have been authorized to do so.
Bulger tries to poke holes in the Margolis affidavit, and the government‘s position generally; however, he fails to convince. For one, we do not find persuasive Bulger‘s conclusory challenge to the DOJ regulations cited in the Margolis affidavit.15 The regulations, broadly speaking, addressed how informants and cooperation agreements were handled in the department. Bulger says these were simply internal guidelines that did not have the force of law and were not binding on DOJ officials at the time of this case. How Bulger reaches these conclusions is not entirely clear. He briefly points us to both
Bulger‘s next contention is likewise unpersuasive. He argues that the lack of any document memorializing the alleged immunity agreement—a fact the Margolis affidavit briefly pointed out—should have been given little weight by the trial court in light of the evidence showing that law enforcement, at the time, had a history of manipulating files and fabricating evidence.17 Even putting aside that the “evi
And the court was right to do so. Despite repeated opportunities, Bulger declined to make a further proffer in support of his immunity claim and likewise declined the court‘s offer of an evidentiary hearing to test the Margolis affidavit. Bulger took a calculated risk, choosing this course based on a strident belief that the court was not authorized to decide the matter pretrial, but, as we said above, that belief was misguided. Faced with the scarcity of evidence offered by Bulger, and the Margolis affidavit, we cannot say that the court clearly erred in finding the evidence did not establish the existence of a valid and binding immunity agreement.
That facet of the appeal decided, we soldier on.
III. THE MARTORANO CONCERNS
Bulger next presents a series of arguments that John Martorano, Bulger‘s former Winter Hill compatriot turned government witness, sits at the center of. We chart the relevant background before proceeding to the arguments’ particulars.
A. Background
As the reader now knows, Martorano cut a deal. He started negotiating with the government back in 1998, ultimately admitting to involvement in twenty murders, twelve of which stemmed from his Winter Hill days. He pled guilty to ten (federally charged) murders, some other federal crimes, and two state murder charges. In exchange for his guilty pleas, and his agreement to cooperate in the prosecution of Bulger, Flemmi, and any corrupt law enforcement members, Martorano walked away with just a fourteen-year sentence plus five years’ supervised release and by the time of Bulger‘s trial, he was a free man. The information Martorano provided ended up leading to murder charges against Bulger, Flemmi, Bulger‘s FBI handler Connolly, and another FBI agent, Paul Rico.
Fast forward to October of 2012, when, about eight months before Bulger‘s trial got underway, the government received an anonymous letter. The letter alleged that Martorano (who of course was a slated trial witness) was presently engaged in illegal gambling activities and that his law enforcement handler, Massachusetts State Police Lieutenant Stephen Johnson, was impeding any attempts to investigate or prosecute this behavior. The government filed an ex parte motion with the court alerting it to the letter and indicating that an investigation would follow.
The investigation was completed by the State Police, which detailed its findings in an extensive written report, a few months later. The government informed the court of the end result, which was that after interviewing a number of witness and reviewing various exhibits, the investigators concluded that the anonymous letter‘s allegations leveled against Lieutenant Johnson were unfounded. The court granted a protective order for the anonymous letter, which prevented anyone else, including Bulger, from seeing it.
A few weeks after that (and the day before jury selection) Bulger filed a motion, pursuant to
The trial judge reviewed the anonymous letter (Judge Stearns had reviewed it the first time around) and the State Police investigative report, which taken together we will refer to as the ex parte materials. After doing so, the court issued an oral ruling.
The court, which noted that a “full-fledged investigation” had been undertaken by the State Police, found that the government was not legally required to turn over materials related to the tipster‘s allegations against Lieutenant Johnson since they “were determined to be not just unsubstantiated... but, quote, false and not factual.” The court further found that, even if true, the allegation that Johnson was protecting Martorano would only be relevant if Martorano knew about this perk and there was no suggestion that he had any such knowledge. As for Martorano‘s alleged illegal gambling itself, the court noted that the government had turned over documents to the defense related to those allegations. After the court delivered its ruling, defense counsel then questioned whether he would be allowed to call Trooper Orlando (the formerly anonymous complainant who spurred the illegal gambling investigation) as a witness and the court indicated that it would have to give the question some further thought.
With the issue resolved (at least as to the ex parte materials), trial got underway and, as planned, Martorano was called by the government to testify about Bulger‘s criminal past. Not surprisingly, the deal he struck with the government also came up. Martorano‘s 1998 plea agreement was entered into evidence, and he was questioned by both the prosecution and defense about his plea negotiations, along with the criminal conduct that put Martorano in the spot he was in. More on the specifics later, but for now it suffices to note that some of the questioning had to do with
Meanwhile, as the trial plodded on, the parties quibbled over potential witnesses. As we said, the judge had left open the issue of whether Trooper Orlando could testify. With the issue still up in the air, Bulger went ahead and placed Orlando on his trial witness list. Citing various rules of evidence, the government moved to preclude Orlando as a witness, along with others related to the gambling investigation, arguing that they were being called simply to rehash the false accusations.
The court agreed. In a ruling from the bench, it precluded Orlando from testifying, indicating that there was no basis for admitting his testimony since the cover-up allegation had been debunked. And assuming the defense wanted to impugn Martorano‘s credibility with the testimony about the illegal gambling allegations (as opposed to the supposed cover-up itself), the judge opined that such evidence would be inadmissible under
With the stage set, we proceed to the arguments Bulger makes on appeal.
B. Martorano‘s Ongoing Criminal Conduct
Bulger remains unhappy with the court‘s restrictive decisions relative to the supposed cover-up of Martorano‘s ongoing criminal gambling conduct. He argues that he was entitled to the ex parte materials (the anonymous letter and State Police investigative report) under Brady and, hence, the court‘s decision to deny him access to the materials was in error. For the same reasons Bulger assigns error to that decision, Bulger also takes exception to the court precluding Trooper Orlando from testifying.20 The government stands by the adequacy of its disclosure, arguing that it was not required to turn over evidence relative to unfounded allegations of investigative forbearance. And given that Orlando could only testify about disproven allegations, he was properly excluded.
i. Ex Parte Materials
As to Bulger‘s access to the ex parte materials, “[w]e review a district court‘s Brady determinations after its in camera review for an abuse of discretion.” United States v. López-Díaz, 794 F.3d 106, 116 (1st Cir. 2015); United States v. Caro-Muñiz, 406 F.3d 22, 29 (1st Cir. 2005).
Brady dictates that the government must “disclose ‘evidence favorable to an accused’ that is ‘material either to guilt or to punishment.“” United States v. Cruz-Feliciano, 786 F.3d 78, 87 (1st Cir. 2015) (quoting Brady, 373 U.S. at 87); see also Giglio v. United States, 405 U.S. 150, 150-51, 154-55 (1972) (requiring the government to disclose evidence of a promise it made to a witness). Favorable could mean exculpatory or impeaching in
Bulger contends that the ex parte materials qualify because investigative forbearance that inured to Martorano‘s benefit, which Bulger claims occurred, would not only call into question Martorano‘s credibility but would fit squarely within the defense‘s theory that the government was heaping benefits on potential witnesses to secure certain convictions. Said another way, Bulger thinks the ex parte materials were impeaching in nature in the sense that they might affect the “jury‘s estimate of the truthfulness and reliability of” Martorano, which could have meant the difference here between acquittal and conviction. Conley v. United States, 415 F.3d 183, 189 (1st Cir. 2005) (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)).21
The theory Bulger floats necessarily requires a couple of things. Johnson must have been complicit in ignoring some sort of illegal gambling on Martorano‘s part, and Martorano must have been aware that Johnson was looking the other way. The problem is this. As the trial court found after reviewing the ex parte materials—and which our review confirms—the allegations of impermissible protection leveled against Lieutenant Johnson were debunked. Specifically, the ex parte materials made clear that the Massachusetts State Police conducted an extensive investigation, which included a number of interviews, along with evidence gathering and analysis. After all this, the investigators concluded that the allegations aimed at Johnson were deemed, as the court reported below, “false and not factual.” And even had some untoward behavior on Johnson‘s part been discovered, there was no indication or even suggestion that Martorano knew what Johnson was purported to be up to.
This being the state of things, we cannot conclude that the court abused its discretion in holding that Bulger was not entitled to the ex parte materials under Brady or Giglio (or any of their progeny) and, as a result, in declining to stay the trial. See, e.g., United States v. Souffront, 338 F.3d 809, 823 (7th Cir. 2003) (finding that “[t]he failure to disclose untrustworthy and unsubstantiated allegations against a government witness is not a Brady violation“); United States v. Ray, 61 F. App‘x 37, 54 (4th Cir. 2003) (finding that the government‘s delayed disclosure of a statement did not violate Brady because the statement was “sheer specula
Orlando‘s allegations, which Bulger supposed were both favorable and material, were disproven and allowing him to rummage through the ex parte materials would have been just the type of fishing exhibition that our jurisprudence does not contemplate. See Caro-Muñiz, 406 F.3d at 29 (”Brady does not permit a defendant to conduct an in camera fishing expedition through the government‘s files.“) (internal quotation marks omitted). The court did not abuse its discretion in denying Bulger access to the materials.
That signals the end of this issue, but we think the following bears mention. To be clear, our conclusion today by no means suggests that the government can sidestep its Brady obligations simply by conducting its own investigation and determining that potentially discoverable allegations are unsubstantiated. Our holding is limited to the facts of this case. Here, the court conducted an in camera review of a significant amount of ex parte materials, following a comprehensive internal State Police investigation, which, by all indications, was conducted in the ordinary course in response to a complaint lodged against one of its officers. The court reviewed not only the final investigative report, and the conclusions contained therein, but more impartial documents, including interview summaries and excerpts. Based on these, the court concluded, and our review confirmed, that not only were the allegations dubious and unsupported but they were false and not factual. Given all this, plus the absence of any indication that the police investigation was conducted in bad faith or skewed to reach a certain result, we cannot find that the court‘s Brady ruling was an abuse of discretion.
ii. Excluded Witness
Similarly the court did not abuse its discretion in precluding Trooper Orlando from testifying. See United States v. Occhiuto, 784 F.3d 862, 867 (1st Cir. 2015) (providing that a district court‘s denial of a defendant‘s request to call a witness engenders abuse-of-discretion review). Orlando‘s testimony, Bulger says, was further evidence of the government‘s charitable investigative forbearance and therefore had the impeaching potential to impugn Martorano‘s credibility. But, as explained above, the allegations of a cover-up on Johnson‘s part were disproven and, therefore, any testimony Orlando could offer relative to the issue would have been irrelevant and highly prejudicial. See
With the proffered testimony failing to hit the essential prerequisites for admissibility, the court‘s decision to exclude it falls comfortably within its broad discretionary power to exclude evidence. United States v. Maldonado-García, 446 F.3d 227, 231-32 (1st Cir. 2006) (explaining that “district courts enjoy wide latitude in passing upon the relevancy of evidence“); United States v. Norton, 26 F.3d 240, 243 (1st Cir. 1994) (“The district court is vested with broad discretionary power to admit or exclude evidence.“).
We will not further belabor the point. This aspect of the appeal disposed of, we continue on to Bulger‘s other Martorano-based argument.
As we mentioned earlier, Martorano was asked on the stand about which of his cohorts he was expected to provide information about, or testify against, pursuant to his plea deal. Additionally, Massachusetts State Trooper Thomas Foley, who spent much of his career investigating organized crime in Boston and who also testified at Bulger‘s trial, was asked about his understanding of Martorano‘s deal with the government. To this court, Bulger homes in on this testimony from Martorano and Foley. But bear with us because his argument is hard to describe, hard to follow, and difficult to square with the legal framework that he attempts to fit it into.
As best we can tell, Bulger claims that the testimonies Martorano and Foley gave in an entirely different case (a Florida state case against Connolly, Bulger‘s FBI handler), which defense counsel had Martorano and Foley read into the record during Bulger‘s trial, establish that the government made a favorable promise to Martorano when negotiating his plea agreement. Specifically, in Bulger‘s opinion, the testimony reveals that the government made some sort of side deal or off-the-books promise to Martorano that he would never be required to testify against his family or close friends, namely, his brother, James Martorano, or friends Howie Winter and Pat Nee, who all had ties to Winter Hill. This side deal, Bulger argues, was a benefit the government heaped on Martorano that could have been impeaching in nature as it would have cast doubt on his veracity.
Accordingly Bulger makes a couple of claims. One, the government was required to disclose the supposed off-the-books promise as impeachment evidence under Brady. And, two, the prosecutor acted improperly by engaging in what Bulger suggests were cagey lines of questioning that obfuscated the alleged back door promise and allowed Martorano to testify falsely about who he was obligated to testify against.22 The government denies any wrongdoing but pays little attention to Bulger‘s Brady argument, instead focusing on the false testimony piece. On that front, according to the government, its examination of Martorano produced only accurate information about who and what he was required to testify about pursuant to his plea agreement. Regardless, we take up both pieces of Bulger‘s claim.
i. Disclosure of an Agreement
The lack of accord between how the parties treat this issue might stem from something we noted at the start of this side-deal discussion: it is difficult to fit Bulger‘s argument into the legal framework in which one typically finds a Brady failure-to-turn-over-evidence claim. See United States v. Agurs, 427 U.S. 97, 107-08 (1976) (explaining the typical contexts in which Brady claims arise).
The problem is a very basic one. We have no Brady decision to review. By his own admission, when the purported non-disclosure arose at trial, Bulger never asked the judge to decide whether an off-the-books promise existed or whether any Brady violation had occurred. This was so despite all of the evidence on which he now
This being the state of things, we are left perplexed as to what Bulger expects us to do with his claim of Brady error and he does nothing to clear up this confusion. Bulger provides us with no case law to support the notion that it is proper for us to take up this issue in the first instance, and no law that would shed any light on how such an inquiry might go. Left in the dark, we decline to venture any farther. Whether you characterize Bulger‘s Brady claim as unpreserved because he did not seek a ruling below, or waived for failure to adequately develop it on appeal, his claim fails. See, e.g., Mazariegos v. Lynch, 790 F.3d at 285 n. 5 (providing that undeveloped arguments devoid of legal support are waived on appeal); Murray v. United States, 704 F.3d 23, 32 n. 10 (1st Cir. 2013) (suggesting, in connection with a writ of coram nobis petition, that the petitioner‘s failure to timely raise a Brady claim below might waive the issue).
ii. The Prosecutor‘s Questioning
That leaves us with the prosecutor‘s questioning, and whether it brought out, or left uncorrected, false testimony about who Martorano was required to testify against.
Courts have long held that prosecutors may not knowingly present false evidence, including false testimony, or allow it to go uncorrected when it happens. Giglio, 405 U.S. at 153; Napue, 360 U.S. at 269; United States v. Flores-Rivera, 787 F.3d 1, 31 (1st Cir. 2015). Based on the record before us, we cannot conclude that this is what happened here.
First, we disagree that the prosecutor, in actuality, represented, or elicited testimony, that Martorano would be compelled to testify against his friends and family, as Bulger maintains. The prosecutor‘s lines of inquiry Bulger points to were not directed at whether Martorano was bound to testify, but whether he had provided truthful information about all of the individuals he was asked about. And the questioning that did pertain to his testimonial obligations accurately pointed out in what instances Martorano had to testify. This included a list of targeted individuals, which on its face (and as the questioning bore out), did not include James Martorano, Winter, or Nee.
Second, Martorano‘s and Foley‘s Florida testimony—the record evidence Bulger cites as establishing this supposed side deal that the prosecutor was obfuscating and allowing Martorano to testify falsely about—was hardly conclusive.
For example, at defense counsel‘s urging, Foley read from the transcript of his Florida testimony the following: “At the time we were working on the case, realistically, John Martorano was not going to testify against those individuals.” Assuming “those individuals” refers to some combination of James Martorano, Winter and Nee, this sounds more like a general observation on Foley‘s part as opposed to a firm indication that an actual agreement to that effect existed. The Florida testimony that followed (again Foley read this into the record), “I suppose it was part of an agreement that his attorney made with the U.S. Attorney‘s Office,” is equivocal at best. And when he was asked, in the Florida case, whether the state police were on board with the agreement Foley “suppose[d]” existed, he said: “Unfortunately,
Martorano‘s testimony, also yanked from the Florida state case and read into the record below, was no more helpful.23 For example, in the Florida case, Martorano was asked about having told the government that James was with him during one murder and whether “part of the plea agreement was that couldn‘t be used against you,” to which Martorano answered, “[p]ositively.” He responded the same when asked: “So that‘s something else you got from the government?” The exchange is hard to follow but at most seems to suggest that James‘s crime could not be used against Martorano. And when asked, “[s]o part of the deal included protection for your brother, James Martorano, right?” (again we are still talking about the Florida testimony), Martorano answered, “[s]ure.” This testimony is probably the most supportive of Bulger‘s position (at least as to a James-based side deal) but we scarcely think it is enough. The response is inexact, as is the nature of the protection.
We can hardly say that these vague snippets, plucked out of context from another trial, establish that the prosecutor elicited, or allowed to go uncorrected, false testimony about the bargain Martorano and the government struck. And when we consider the integration clause in Martorano‘s plea agreement, providing that the written agreement contained the complete and only agreement between the parties, and the government‘s consistent claim that it produced all Brady materials pretrial, Bulger‘s position becomes even more untenable.
While we do not need to go any further, the following is worth a mention. A “conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Agurs, 427 U.S. at 103; see also Mastracchio v. Vose, 274 F.3d 590, 601 (1st Cir. 2001). Here the jury heard all about the litany of incentives built into Martorano‘s plea agreement and his sweeping criminal past. In other words, they had plenty of reasons to question his veracity. It is hard to see how one additional enticement would have upended the jury‘s estimate of Martorano‘s credibility.
With that said, we plow on.
IV. PROSECUTOR‘S SPEAKING OBJECTIONS
Bulger‘s final argument focuses on the prosecutor‘s continued use of prolonged speaking objections during the trial. Bulger maintains that the objections saturated the jury with improper and inadmissible evidence and opinions. The government, for its part, does not deny engaging to some extent in the verbose practice, but, it insists, the judge intervened when needed and ensured that both sides gave a balanced and fair presentation of the evidence.
A. Background
At the final pretrial conference the judge cautioned both sides: “In terms of
B. Analysis
Assuming favorably to Bulger that his claim of error is preserved, our review of whether there was any prosecutorial misconduct is de novo.24 United States v. Sepúlveda-Hernández, 752 F.3d 22, 31 (1st Cir. 2014). If we conclude such misconduct did occur, we then consider the prejudice piece, that is, “whether the prosecutor‘s behavior so poisoned the well that the defendant must be given a new trial.” United States v. Vázquez-Botet, 532 F.3d 37, 56 (1st Cir. 2008) (internal quotation marks omitted). Factors include: “the egregiousness of the conduct; the context in which it occurred; whether the court gave curative instructions and what effect these instructions likely had; and the overall strength of the Government‘s case.” Id.
We have some doubts that the prosecutor‘s use of speaking objections amounted to prosecutorial misconduct, but even assuming it did, we cannot conclude that the conduct so poisoned the well as to warrant a new trial.
First, the conduct is plainly not that egregious. Sure the record shows that the prosecutor did not faithfully adhere to the court‘s request for clipped objections, but to say, as Bulger does, that counsel was misleading the jury or inserting improper evidence is a stretch. Most of the objections Bulger points to involve proper quibbles with the basis for defense counsel‘s question. For example, there was: “And I object. There is no good faith basis for that question, and Mr. Brennan knows it.” The judge sustained this objection. Or there was: “Objection. That‘s not a fair characterization.” The judge responded by asking defense counsel to rephrase. As we have said, “[c]ounsel should not be held to standards of perfection,” Sepúlveda-Hernández, 752 F.3d at 32, and the objections here were not so beyond the pale.
Second, though Bulger points to a fair amount of speaking objections, we are required to place them in context. The objections were made over the course of a lengthy trial and, as the trial judge noted, attorneys on both sides managed to work in some animated commentary while questioning or objecting.
Third, while the court gave no curative instructions, Bulger did not request any. And the court did give plenty of general instructions about trial protocol. On the first day of trial, the judge explained the concept of objections to the jury. The judge indicated that a “lawyer may object,” which “simply means that the law-yer‘s requesting that I make a decision on
Finally, the government‘s case was not a weak one. It introduced numerous witnesses and exhibits all pointing towards Bulger‘s guilt. Given all this, we have no trouble concluding that even had the speaking objections constituted misconduct, Bulger was not prejudiced.
V. CONCLUSION
For the reasons spelled out above, Bulger got a fair trial and none of the complained-of conduct on the court or government‘s part warrant reversal of his conviction.25 We affirm.
Gilberto SANTOS-QUIROA, Petitioner, v. Loretta LYNCH, Attorney General, Respondent.
No. 15-1685.
United States Court of Appeals, First Circuit.
March 5, 2016.