United States v. Trenkler ( 1998 )


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  • [Not for Publication]
    United States Court of Appeals
    For the First Circuit
    No. 97-1239
    UNITED STATES,
    Appellee,
    v.
    ALFRED W. TRENKLER,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Rya W. Zobel, U.S. District Judge]
    Before
    Selya, Circuit Judge,
    Coffin, Senior Circuit Judge,
    and Stahl, Circuit Judge.
    Morris  M. Goldings, with whom Amy J. Axelrod,  R. David Beck, and
    Mahoney, Hawkes & Goldings, LLP, were on brief for appellant.
    Kevin P.  McGrath, Assistant  United  States  Attorney, with  whom
    Donald K. Stern, United States Attorney, was on brief for appellee.
    January 6, 1998
    STAHL, Circuit  Judge.   Defendant-appellant Alfred
    STAHL, Circuit  Judge.
    W. Trenkler appeals district court orders denying his various
    motions for a  new trial, for an inquiry  into possible juror
    misconduct, and  for an evidentiary  hearing on the  basis of
    newly acquired evidence.  We conclude that the district court
    properly denied the motions, and, therefore, we affirm.
    I.
    I.
    Facts and Procedural History
    Facts and Procedural History
    On November 29,  1993, defendant  was convicted  of
    conspiracy  under 18  U.S.C.     371,  receipt  of  explosive
    materials under 18  U.S.C.   844(d), and  attempted malicious
    destruction  of property  by means of  an explosive  under 18
    U.S.C.   844(i), for  his role in creating  a pipe bomb  that
    resulted in  the death of  one Boston bomb squad  officer and
    the serious injury of another officer.
    In his appeal to this court, we held that the trial
    court  had  erred  by admitting  evidence  from  a  Bureau of
    Alcohol, Tobacco and  Firearms ("ATF") computerized  database
    of  bombings ("EXIS"), which the government had introduced at
    trial under the catch-all exception to the hearsay rule, Fed.
    R. Evid. 803(24), to establish the identity of the bombmaker.
    See  United States  v. Trenkler,  
    61 F.3d 45
    ,  59 (1st  Cir.
    1995).  We reasoned that the government had  not convincingly
    demonstrated  the reliability of  the EXIS database evidence.
    See  
    id.
       We also  concluded,  however, that  the error  was
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    harmless  beyond a reasonable doubt, principally on the basis
    that  a government witness and convicted felon, William David
    Lindholm, had  testified that  defendant had  built the  pipe
    bomb  at issue, but also on the basis that the government had
    provided ample evidence, including out of court statements by
    defendant's  alleged  co-conspirator,  Thomas  Shay, Jr.,  to
    establish a relationship between defendant and Shay  Jr.  
    Id. at 60-61
    .
    Developments subsequent to defendant's appeal bring
    him before us  once again.  First, defendant  learned from an
    article in the Boston Globe  on August 1, 1995, that Lindholm
    had been released from prison on September 30, 1994,  thirty-
    seven months into his ninety-seven month sentence.  On August
    8, 1995, defendant  filed with this court a  motion to remand
    for  an  inquiry  into a  possible  undisclosed  deal between
    Lindholm and the  government.   We denied  the motion because
    the district court was the proper forum for the request.
    Second, on June  22, 1995,  we held  in Shay  Jr.'s
    appeal  of his conviction arising from the same incident that
    the district  court had erred  by excluding testimony  by Dr.
    Robert Phillips that Shay Jr.'s incriminating statements were
    unreliable because Shay Jr. suffered from a recognized mental
    disorder known as  "pseudologia fantastica."  On  remand, the
    district  court held  that the  doctor's  testimony was  both
    reliable  and relevant and was, accordingly, admissible as an
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    "alternative,  non-incriminating explanation  for Shay  Jr.'s
    seemingly  incriminating  statements."   The results  of Shay
    Jr.'s appeal are  relevant to defendant Trenkler  because, on
    the basis of  the district court's original  exclusion of the
    statements in  Shay Jr.'s  trial,  defendant's trial  counsel
    concluded that  it would be  futile to seek to  introduce the
    doctor's  testimony in  defendant's trial  and  thus did  not
    attempt to do so.
    Finally,  on  October 15,  1996,  defendant learned
    that a woman  named Donna Shea had  notified the ATF  that an
    alternate  juror  at  his  trial,  Ramona  Walsh,  had  known
    defendant.   During  voir  dire  Walsh  had not  admitted  to
    knowing defendant.  The government initiated an investigation
    into  Shea's  allegations,  pursuant to  which  an  ATF agent
    interviewed both Shea  and a third  party, Nancy Tolmie  (now
    Nancy   Russell).    Shea  claimed  in  her  interviews  that
    alternate  juror Walsh  had  been present  at  three or  four
    cocaine sales that Shea had made to Tolmie twelve years prior
    to the Trenkler  trial.  Further, she claimed  that defendant
    may have been present at those sales.  Tolmie admitted in her
    interview that she had purchased cocaine from Shea during the
    time period in  question, but she denied that  Walsh had ever
    accompanied  her on  those occasions.   In  an ATF  Report of
    Investigation,   the   government   concluded   that   Shea's
    allegations were groundless.
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    Subsequently,  on  the  basis of  Lindholm's  early
    release from prison,  and this court's evidentiary  ruling in
    Shay Jr.'s appeal on the testimony of Dr. Phillips, defendant
    filed in  the district court  on December 22, 1995,  a motion
    for  a  new  trial  pursuant  to Fed.  R.  Crim.  P.  33  or,
    alternatively, an evidentiary hearing based on newly acquired
    evidence.   While that  motion was  pending, on  November 19,
    1996, Trenkler filed a motion for inquiry into possible juror
    misconduct  and  for a  new  trial  on  the basis  of  Shea's
    allegations regarding Walsh.   The district court  denied the
    motions, respectively, on February 4, 1997, and May 22, 1997.
    This appeal followed.
    II.
    II.
    Discussion
    Discussion
    A.  Juror Misconduct
    Defendant  first  argues  that the  district  court
    abused its  discretion in denying his motion for inquiry into
    possible  juror  misconduct and  for a  new trial  because it
    failed  to  conduct  an  independent  inquiry  regarding  the
    misconduct allegation.   Specifically,  he contends that  the
    court's  failure to  conduct an  inquiry and  to grant  a new
    trial based on  the allegations of juror  misconduct violated
    his  Sixth Amendment  right to  an impartial  jury.   He also
    contends  that  the  court  improperly  based   its  findings
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    entirely on statements obtained for the government by the ATF
    agent.
    We review a district court's determination  that no
    juror misconduct occurred  for a patent abuse  of discretion.
    See United States  v. Hunnewell, 
    891 F.2d 955
    ,  961 (1st Cir.
    1989).  We likewise  review the denial of a motion  for a new
    trial for manifest abuse of discretion.  See United States v.
    Tibolt, 
    72 F.3d 965
    , 972 (1st Cir. 1995).
    As an initial  matter, we note  that the court  was
    justified in  relying  on  the  report  of  the  ATF  agent's
    interviews with Shea  and Tolmie.  As  the government rightly
    points  out,  it was  the  government who  first  brought the
    charge of juror  misconduct to the attention  of the district
    court,  and defendant  failed to  present  any evidence  that
    would place into question the accuracy of the report.
    We next turn  to the court's determinations.   When
    there has been a  "nonfrivolous suggestion" of juror bias  or
    misconduct, "the  district court must  undertake an  adequate
    inquiry  to determine  whether the alleged  incident occurred
    and if  so, whether  it was prejudicial."   United  States v.
    Gaston-Brito,  
    64 F.3d 11
    ,  12  (1st  Cir.  1995)  (internal
    citations  omitted).     Although   this  threshold   is  not
    particularly high, see Neron v. Tierney, 
    841 F.2d 1197
    , 1202
    n.6 (1st Cir.  1988), the district court shall not "intru[de]
    into  the  sphere  of  jury privacy,"  
    id. at 1205
    , without
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    evidence  "sufficient  to   undergird  genuine  doubts  about
    impartiality," 
    id. at 1202
    .
    Defendant has presented  no such evidence.   As the
    district court observed,  Shea did not claim  that Walsh knew
    anything about defendant  or had ever spoken to  him, nor had
    she alleged  any other facts  that would lead one  to believe
    that  Walsh would  recognize  defendant  twelve years  later.
    Moreover, not  only did Tolmie contradict  Shea's allegations
    but, in addition, Shea herself contradicted them by admitting
    that defendant did not know "or have any dealings with" Walsh
    during  the relevant  time period.    On the  basis of  these
    circumstances alone we find that the district court committed
    no   patent  abuse  of  discretion  in  finding  that  Shea's
    allegations  of   misconduct  by  an  alternate   juror  were
    conjectural and did  not trigger a duty to  investigate.  The
    court therefore committed no abuse of discretion in denying a
    new trial.
    B.  Newly Discovered Evidence
    Defendant's  second argument  is that  the district
    court abused its  discretion in denying his motion  for a new
    trial  or, alternatively,  an  evidentiary  hearing based  on
    newly  acquired  evidence,   because  it  used  inappropriate
    standards  in  considering  the  newly  discovered   evidence
    regarding Lindholm,  and  because it  improperly declined  to
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    recognize Dr. Phillips's testimony as "unavailable" to him at
    the time of his trial.
    We  begin with  the  Lindholm  issue.    In  normal
    circumstances,  a  motion for  a  new  trial based  on  newly
    discovered  evidence  must  show that  the  evidence  was (1)
    unknown or unavailable at the  time of trial, (2) despite due
    diligence, (3)  material,  and (4)  likely  to result  in  an
    acquittal upon retrial.  See  United States v. Ortiz, 
    23 F.3d 21
    , 27 (1st Cir. 1994).  A less stringent standard  of review
    applies,   however,  when  the   new  evidence  was   in  the
    government's  control and  its  disclosure was  withheld, and
    when there is an allegation that a witness committed perjury.
    In  particular, in  situations in  which  the government  has
    withheld evidence, a court should  grant a new trial if there
    is  a "reasonable probability"  that the evidence  would have
    changed  the  result.   Tibolt,  
    72 F.3d at 971
    .    Perjury
    allegations  should prompt  a  new trial  when  the court  is
    "reasonably-well satisfied" that the testimony was false  and
    that,  without  the  false testimony,  the  jury  "might have
    reached a  different result."   United States v.  Wright, 
    625 F.2d 1017
    , 1020 (1st Cir. 1980) (internal citation omitted).
    In this case, there is no basis for applying a more
    lenient standard.   The district court rightly  observed that
    nothing  in  the  record  indicates  that  Lindholm  perjured
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    himself or that his early  release from prison was the result
    of a deal made  prior to the trial that the government failed
    to  disclose.  Rather,  all evidence, including  an affidavit
    from  an  assistant  U.S. Attorney  which  defendant  has not
    challenged,  unequivocally  leads  to  the  conclusion   that
    Lindholm's early  release arrangement was made several months
    after the  Trenkler trial.   The district court's use  of the
    more   stringent   standard    was   therefore   appropriate.
    Furthermore,   that  there  is  no  evidence  of  perjury  or
    nondisclosure  by  itself   suffices  to  defeat  defendant's
    argument: there  is simply  no basis,  under the  first Ortiz
    factor, on which  to conclude that the "new  evidence" or any
    agreement associated with it even  existed at the time of the
    trial.  Accordingly,  our independent review of  the evidence
    convinces us  that  the  district court  did  not  abuse  its
    discretion in denying an evidentiary hearing and  a new trial
    on this issue.
    Defendant's  next  claim  is  that  Dr.  Phillips's
    testimony  regarding  Shay  Jr.'s  condition  of  pseudologia
    fantastica  constitutes   newly  discovered  evidence.     In
    particular, defendant argues that his trial counsel chose not
    to  offer  the  testimony  because  the  district  court  had
    excluded it at Shay  Jr.'s trial and  that our remand of  the
    testimony issue  in  that  case to  the  district  court  for
    further consideration rendered the testimony newly discovered
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    evidence.  We, like the district court, reject this argument.
    Under no  interpretation  of the  standard was  Dr.
    Phillips's  testimony unknown or  unavailable at the  time of
    defendant's  trial.   That the  district  court excluded  the
    testimony  in Shay  Jr.'s trial  and  that defendant's  trial
    counsel believed it would be  futile to offer it in  light of
    the prior trial do not excuse him from making the offer.  The
    decision of defendant's  trial counsel  in this  case not  to
    offer  the testimony  may have  been  part of  his reasonable
    trial strategy: although  some of Shay Jr.'s  statements were
    not favorable to  Trenkler, some of his  admissions supported
    Trenkler's  defense.  Thus, trial counsel may have determined
    that  it would  be  unwise to  risk  discrediting Shay  Jr.'s
    admissions,  even for the sake of discrediting his statements
    about the existence of a  co-conspiracy between Shay Jr.  and
    defendant.   In any event,  the district court did  not abuse
    its  discretion in  concluding  that the  proffered testimony
    failed  to meet  the  first  prong of  the  Ortiz test,  thus
    denying defendant's motion on this issue.
    In  sum, the  district  court  did  not  abuse  its
    discretion with regard to any of the issues in this appeal.
    Affirmed.
    Affirmed
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