United States v. Bulger ( 2016 )

United States Court of Appeals
For the First Circuit
No. 13-2447
UNITED STATES,
Appellee,
v.
JAMES J. BULGER,
a/k/a Jimmy, a/k/a Whitey, a/k/a Jim,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Thompson, Kayatta, and Barron,
Circuit Judges.
Henry B. Brennan, with whom James H. Budreau was on brief,
for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
March 4, 2016
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
1 Bulger does not lodge a sufficiency of the evidence challenge.
Rather his grievance relates to various evidentiary issues and,
so, we present a more neutral summary of the facts up front,
adjusting our approach as needed later. United States v. Flores-
Rivera, 787 F.3d 1, 9 (1st Cir. 2015).
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indictment along with Stephen Flemmi.2 It alleged that Bulger and
Flemmi were members of a criminal organization known as Winter
Hill (or some variation on this moniker) and part of a racketeering
conspiracy that extended from around 1972 to 2000 in South Boston.
Bulger, it said, participated in multiple racketeering acts,
including nineteen murders, extortion, narcotics distribution, and
money laundering.3 There were also an assortment of weapons
charges, e.g., possession of firearms and machineguns in
furtherance of a violent crime, possession of unregistered
machineguns, and transfer and possession of machineguns.
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
2 Flemmi's brother, Michael Flemmi, was also charged. Michael was
said to have provided unlawful assistance to his brother and other
gang members at various points, e.g., obstruction of justice and
weapons possession.
3 The racketeering count alleged thirty-three underlying
racketeering acts. Some acts were charged as a conspiracy, some
acts as stand-alone substantive charges, and some as both.
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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,
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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 cohort Weeks, he was approached by Connolly who
informed him that indictments for Bulger and Flemmi "were
imminent." Weeks passed on the message to both. Bulger took heed
and fled, and after some short-term stops in New York and Chicago,
ended up in Santa Monica, California, where he remained until his
June 2011 arrest.
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.
4 Connolly was not the only compromised public official. According
to the testimony, Winter Hill had similar quid pro quo arrangements
with other corrupt law enforcement officers.
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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
Agency and Massachusetts State Police. He pled guilty to
racketeering crimes plus five murders, and received immunity for
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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 been an informant, instead claiming that he
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paid Connolly and other law enforcement members large sums of money
in exchange for information meant to ensure the continued
productivity of his criminal enterprise.
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
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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
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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 proper approvals, O'Sullivan would
have acted beyond the scope of his authority." The same went for
any purported agreement with O'Sullivan that contemplated immunity
for future violent criminal conduct, a concept Margolis deemed
"foreign."
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
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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
5 The original judge was Judge Richard Stearns, whom Bulger
petitioned to have recused given the judge's background in federal
prosecution during the time period at issue in this case. This
court granted that petition. In re Bulger, 710 F.3d 42 (1st Cir.
2013). To be clear, this court did not find (and there was no
claim) that Judge Stearns was actually biased. Id. at 46, 49.
Rather, this court concluded that "a reasonable person might
question the judge's ability to preserve impartiality." Id. at
49. The ultimate trial judge, Judge Denise Casper, was assigned
to take over.
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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
6 On appeal, Bulger suggests that the trial judge mistakenly
assumed he intended to assert an all-or-nothing immunity defense
for the charged crimes, and, according to Bulger, he "never made
such a claim." The record belies this. The trial judge, in the
written decision, wrote: "Bulger contends that O'Sullivan gave him
immunity from prosecution of crimes in this district and that this
agreement was entered into sometime before December 1984 and ended
in 1989." This is a completely accurate characterization. In his
brief to the trial court, Bulger alleged that the immunity
agreement "bars federal prosecution of the defendant in the
District of Massachusetts," and the "Dept. of Justice is therefore
barred from prosecuting the defendant for any crimes that occurred
prior to 1989." We do not see, and Bulger does not direct us to,
any points below where he tried to pitch the matter to the court
any differently. And, of note, Bulger does not actually come out
and say how he intended to argue immunity, if not in an all-or-
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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
nothing fashion. He vaguely alludes to his being charged with a
lot of crimes, and the court's ruling preventing him from
"presenting an immunity defense for some crimes and relying on the
government's burden of proof beyond a reasonable doubt of others."
In any event, Bulger's revisionist view of what happened below
gets him nowhere.
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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 Federal Rule
of Criminal Procedure 12 and the Constitution, specifically the
protections the latter affords to an accused's rights to have a
trial by jury, testify, present a defense, and not self-
incriminate.7 In the alternative, even assuming this was a proper
pretrial matter, Bulger claims that the judge decided it wrongly
7 We will dig deeper into Rule 12's provisions later but for now
it suffices to note that generally the rule sets forth the
pleadings and pretrial motions procedures in criminal actions.
Fed. R. Crim. P. 12. On a side note, Rule 12 was amended in
December 2014 but "[n]o change in meaning [was] intended." Fed.
R. Crim. P. 12(b)(1) advisory committee's notes to 2014 amendments.
As a result, throughout this decision we cite to the 2013 version
of the rule, which was in effect when this issue was decided below.
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because his proffer as to the existence of an immunity agreement
was sufficient.8 The government counters that immunity was
8 Within his immunity argument, Bulger makes passing reference to
what is, as best we can tell, a tag-along claim. He argues not
only that the pretrial ruling was wrong but also that the court
also should not have, later on in the proceedings, prohibited him
from testifying about "immunity-related matters," i.e., his
relationships with DOJ officials, including O'Sullivan. Bulger
does not flesh out this argument in his brief; what exactly he is
talking about only became slightly clearer at oral argument. He
pointed us generally to a day toward the end of the government's
case against him where Flemmi, in response to a question from the
prosecutor, indicated that in connection with his own criminal
proceedings he initially (and falsely) made some type of
authorization or immunity claim. Below, defense counsel zeroed in
on this testimony, suggesting that since the prosecutor asked
Flemmi about his prior claims of immunity, it somehow opened the
door to Bulger taking the stand and being asked the same questions.
The judge disagreed. Bulger did not object to the ruling nor did
he present a proffer as to what precisely he would have testified
about. See Fed. R. Evid. 103(a)(2); Fed. R. Crim. Proc. 51(b).
Without a timely objection, we review Bulger's argument
(charitably assuming it is crystalized enough) only for plain
error. United States v. Delgado-Marrero, 744 F.3d 167, 184 (1st
Cir. 2014).
Below defense counsel offered no proffer of Bulger's
anticipated testimony and did not in any meaningful way explain
why the testimony had suddenly become relevant, for example to
rebut the government's claim that Bulger was an informant as he
now suggests to this court (to be clear, we are not saying that
such an argument should have carried the day). In light of the
absence of any worthwhile offering from Bulger, it was reasonable
for the trial court to conclude, as it did, that the proposed
testimony would only be relevant insofar as it pertained to the
issue of immunity. Because the court had already precluded Bulger
pretrial from raising the immunity issue, and for reasons we will
get into this decision was correct, the court's decision not to
allow the testimony can hardly be characterized as an error, plain
or otherwise. See United States v. Silva-Rosa, 275 F.3d 18, 23
(1st Cir. 2001) (finding no error in the court's exclusion of
testimony that was only relevant to the necessity defense, which
the court had already properly excluded).
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correctly taken up pretrial and the judge properly, and without
impinging on Bulger's rights, precluded Bulger's immunity claim
based on an insufficient proffer.
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
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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.
For support, Bulger points us to Federal Rule of Criminal
Procedure 12, which the government cited when it sought the
pretrial ruling. The rule provides that "[a] party may raise by
pretrial motion any defense, objection, or request that the court
can determine without a trial of the general issue." Fed. R. Crim.
P. 12(b)(2). Bulger claims that the plain language of this
particular subsection, and the corresponding advisory note make
clear that he can raise an immunity defense at trial without
seeking pretrial resolution of the issue. Bulger does not spell
out why he believes this to be the case. Our best guess is that
he is drawing our attention to the permissive "may" in Rule
12(b)(2) and the corresponding note, which explains that matters
falling under this provision may, at the defendant's option, be
raised before trial but failure to do so does not constitute
waiver.9 Fed. R. Crim. P. 12(b)(1), (2) advisory committee's notes
to 1944 adoption. But we fail to see how this is helpful to
Bulger's cause. That Bulger may raise immunity pretrial, and that
9 The next sub-section of the rule sets forth motions that must be
made before trial, which do not include motions related to
immunity. Fed. R. Crim. P. 12(b)(3).
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his failure to do so won't waive the issue, does not necessarily
mean that he and he alone can raise the issue, or that it was
improper for the court to consider the government's in limine
motion.
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
Fed. R. Crim. P. 12(b)(2) ("A party may raise by pretrial motion
any defense, objection, or request that the court can determine
without a trial of the general issue.") And immunity is
specifically cited as an example of one of those issues that can
be handled "without a trial of the general issue." Fed. R. Crim.
P. 12(b)(1), (2) advisory committee's notes to 1944 adoption. It
is logical for this to be so. Here, there was no need for a full
jury determination as to Bulger's guilt or innocence because he
argued that the immunity agreement barred his prosecution
regardless of any culpability on his part.
Simply said, we fail to see why the fact that Bulger was not
the one to file the motion or request the hearing, would
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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. Fed. R. Crim. P. 12(d)
("When factual issues are involved in deciding a motion, the court
must state its essential findings on the record."). Secondly, our
10Bulger suggests that there were outstanding issues of fact that
should have been placed in the hands of a jury, namely whether he
had immunity, whether O'Sullivan had the authority to grant it,
and how far the immunity grant could extend.
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case law suggests that immunity agreements are appropriate fodder
for the court because, as we have explained in the context of an
immunity-in-exchange-for-cooperation agreement, such agreements
"are in the nature of contracts, their scope and effects are
strongly influenced by contract law principles," and the
defendant's rights under these agreements "are determined by the
terms and conditions of the bargain as found by the court."
McLaughlin, 957 F.2d at 16 (emphasis added); see also United States
v. Dudden, 65 F.3d 1461, 1469 (9th Cir. 1995) (holding that the
district court properly refused jury instructions "ask[ing] the
jury to find whether an informal [immunity] agreement existed");
United States v. Gerant, 995 F.2d 505, 510 (4th Cir. 1993) (finding
the defendant was not entitled to have a jury decide whether he
breached a non-prosecution agreement because that issue "involves
the right of the government to prosecute [the defendant] rather
than [his] guilt or innocence").
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,
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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.
Eirby, 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
11 Bulger's most coherent constitutional argument is that, by
requiring him to proffer evidence of the alleged immunity agreement
pretrial, the court violated his Fifth Amendment right against
self-incrimination. Even were we to suppose this particular claim
preserved, Bulger loses on the merits. Bulger made this same claim
below and the trial court disposed of it by invoking Simmons v.
United States, 390 U.S. 377, 390 (1968), which the court read to
bar the government's use of Bulger's potential pretrial statements
at trial. On appeal, Bulger says the court's offer of Simmons
protection rang hollow given the potential derivative use of his
testimony in other jurisdictions where he may have had criminal
exposure. We are confused, and consequently unpersuaded, by this
contention. Bulger's concern about the derivative use of any
pretrial proffer does not square with his stated intent to testify
in open court during trial about the very information the court
asked for pretrial -- trial testimony which certainly could have
been used later.
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hardly a serious treatment of a complex issue and is not adequate
to preserve the claim on appeal.").12
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
12 According to Bulger, the constitutional errors he alleges are
structural in nature and, therefore, require automatic reversal
rather than a harmless error analysis. Because we ultimately find
his arguments waived, and to the extent his Fifth Amendment claim
is preserved, without merit, we do not need to delve into this
issue.
- 22 -
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
13We are still hazy on the precise reason Bulger claims O'Sullivan
purportedly gave him immunity. He has been vague on this point.
For instance, in a discovery motion Bulger said the agreement was
"in return for his assistance with a DOJ objective that did not
include providing information about others" and that O'Sullivan
"embraced" this objective. In his colloquy with the trial judge,
regarding whether he was going to testify, Bulger said his
protection of O'Sullivan's life was the impetus.
- 23 -
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 Bulger's federal prosecution
in the District of Massachusetts.
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
14 We need not decide whether the supposed immunity grant Bulger
describes would have been valid if O'Sullivan had the authority to
enter into it.
15 The affidavit cites to the DOJ's Principles of Federal
Prosecution, the Handbook for Prosecution of Racketeers, the
Guidelines on the FBI Use of Informants and Confidential Sources,
and a memorandum titled Use of Informants in Domestic Security,
Organized Crime, and Other Criminal Investigations.
- 24 -
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 28 U.S.C. § 547, which vests
United States Attorneys with the power to prosecute, and he talks
about the general notion "that the power to prosecute plainly
includes the power not to prosecute." Flemmi, 225 F.3d at 87.
These observations do not take Bulger far. That United States
Attorneys have the general ability to enter into immunity
agreements, hardly means that, one, O'Sullivan did so, two, that
in this particular instance he had the hierarchal authority to do
so or, more importantly, that Bulger came close to establishing
either thing. Moreover, though internal DOJ regulations do not
have the same force as the United States Code (a point we can all
undoubtedly get on board with), that does not render the
regulations inoperative or irrelevant to the inquiry we find
ourselves engaged in and therefore they were appropriately
factored into the mix below.16
16 In cursory fashion, Bulger also says that the government's
contention that O'Sullivan had no authority to bestow immunity is
irreconcilable with findings this court made in United States v.
Winter, 663 F.2d 1120 (1st Cir. 1981), abrogated on other grounds
by Salinas v. United States, 522 U.S. 52 (1997). He claims that
in Winter -- a race-fixing case involving some of Bulger's
- 25 -
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 "evidence" he cites is a snippet of
testimony that came out after the court's pretrial immunity ruling,
and information that came out in other cases, the court below did
not appear to give much weight to the fact that no actual document
memorializing an immunity agreement ever turned up. Certainly the
lack of documentation was not stressed or highlighted in its
analysis. Rather the court focused on Bulger's failure to satisfy
cohorts -- this court upheld an informal grant of immunity by
O'Sullivan. Notwithstanding the fact that Winter tells us nearly
nothing about the scope of the immunity agreement (an agreement
the government and cooperating witness acknowledged was
consummated) or the process the attorney (who went unnamed)
employed when entering into it, Bulger's read stretches Winter
well beyond its holding. At most it stands for the proposition
that United States Attorneys, as a general matter, can enter into
informal immunity agreements in certain circumstances, see id. at
1132-35, and we do not conclude otherwise today. Rather we simply
find that based on the facts of this particular case, Bulger did
not establish that O'Sullivan entered into an agreement with him
or that he would have had the authority to do so. Winter is simply
not helpful to Bulger's cause.
17 Margolis wrote: "I am advised that a thorough search of the
records of DOJ and the FBI disclosed no documentation that James
Bulger was ever actually authorized to engage in any criminal
activity."
- 26 -
his burden of establishing the very existence of an enforceable
immunity agreement be it written or otherwise.
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)
- 27 -
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
- 28 -
letter, which prevented anyone else, including Bulger, from seeing
it.
A few months later, and about a month before trial, the
government alerted the defense to the allegations that Martorano
was gambling illegally and provided reports from some of the
investigation's interviews, including interviews with Martorano
and other involved individuals, which basically contained denials
of any wrongdoing.18 It did not provide the State Police's final
investigative report or the anonymous complainant's letter.
A few weeks after that (and the day before jury selection)
Bulger filed a motion, pursuant to Federal Rule of Criminal
Procedure 16 and Brady v. Maryland, 373 U.S. 83 (1963), seeking
all materials related to accusations of Martorano's ongoing
criminal conduct and Lieutenant Johnson's supposed shielding of
Martorano from investigation. According to Bulger, the materials
could be exculpatory and any investigative forbearance exercised
by law enforcement towards Martorano -- that is, Johnson protecting
Martorano and insulating his criminal activity -- would constitute
a promise, reward or inducement that should have been disclosed.
Bulger then filed a second motion seeking the full transcript of
the interview with the anonymous complainant, who had turned out
18During trial, defense counsel questioned Martorano regarding the
allegations and he again denied any wrongdoing, indicating that he
simply gambled with a friend at a casino.
- 29 -
to be Massachusetts State Police Trooper Nunzio Orlando.19 He also
sought to stay the start of trial until these issues were resolved.
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
19It is unclear precisely when it became known that Orlando was
the complainant. The government in its brief to this court
suggests that Bulger's attorneys had their own sources of
information regarding Orlando's complaint.
- 30 -
illegal gambling investigation) as a witness and the court
indicated that it would have to the 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 which of his criminal cohorts Martorano was required to
provide information about, or testify against, pursuant to his
plea deal.
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.
- 31 -
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 Federal Rule
of Evidence 608. See Fed. R. Evid. 608(b) (providing that
generally speaking "extrinsic evidence is not admissible to prove
specific instances of a witness's conduct in order to attack or
support the witness's character for truthfulness").
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
20 Bulger's argument almost solely focuses on the exclusion of
Orlando as a witness. However, he briefly mentions, and
- 32 -
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
nature, and material means "a reasonable probability that, had it
criticizes, the judge's decision to preclude as witnesses Neil
Cherkas and Dominic Masella, two Martorano associates whose names
came up in connection with the gambling investigation and who
Bulger identified as potential witnesses. Because Bulger failed
to develop this argument in any meaningful way, we deem it waived
and focus (as he does) on Orlando. See Mazariegos v. Lynch, 790
F.3d 280, 285 n.5 (1st Cir. 2015) (providing that failure to
develop an argument waives it).
- 33 -
been disclosed, the result of the proceeding would have been
different." Cruz-Feliciano, 786 F.3d at 87.
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
21Bulger's focal point, both as to the ex parte materials and the
possible testimony of Trooper Orlando, is its potential to show
that the government was heaping a benefit on Martorano by allowing
his criminal activity to go unchecked, which might call his
credibility into question. Bulger does not appear to argue that
any tangential evidence of the alleged illegal gambling itself,
which might be contained in the materials, or spoken to by Orlando,
was relevant for that same purpose. To the extent he is, which we
doubt and in any event would be an underdeveloped argument, it is
not a particularly persuasive position. For starters, like we
said above, the government turned over documents connected to the
illegal gambling allegations themselves. To the extent Bulger was
hunting for more, that evidence would be inadmissible, see Fed. R.
Evid. 608(b) (providing, except in circumstances not relevant
here, that "extrinsic evidence is not admissible to prove specific
instances of a witness's conduct in order to attack or support the
witness's character for truthfulness"), which would cause problems
not only for Orlando's testimony but also for the ex parte
- 34 -
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,
materials as well. See DeCologero v. United States, 802 F.3d 155,
162 (1st Cir. 2015) ("Withheld information is material under Brady
only if it would have been admissible at trial or would have led
to admissible evidence.").
- 35 -
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
speculation"); United States v. Locascio, 6 F.3d 924, 949 (2d Cir.
1993) (affirming the district court's conclusion that no Brady
violation occurred because, in part, the newly discovered
government reports contained "untrustworthy" allegations).
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
- 36 -
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
- 37 -
been irrelevant and highly prejudicial. See Fed. R. Evid. 402
("Irrelevant evidence is not admissible."); Fed. R. Evid. 403 ("The
court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice.").
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.
C. Martorano's Side Deal
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
- 38 -
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
- 39 -
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
22Bulger tacks on another "example of the prosecution's distortive
practices" in his reply brief, claiming that the government
repeatedly tried to elicit statements from FBI agent John Morris
that contradicted testimony he gave in another case. Since this
argument made its first appearance in the reply brief, we dispatch
of it as waived. Soto-Padró v. Pub. Bldgs. Auth., 675 F.3d 1, 8
(1st Cir. 2012).
- 40 -
occurred. This was so despite all of the evidence on which he now
relies -- Martorano's and Foley's Florida testimony -- being
available at trial. Left with no decision from the trial court,
we have no way to employ the abuse of discretion review that we
would normally apply to a trial court's Brady decision. United
States v. Celestin, 612 F.3d 14, 22 (1st Cir. 2010); Caro-Muñiz,
406 F.3d at 29.
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 280, 285 n.5 (1st
Cir. 2015) (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).
- 41 -
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 that 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
- 42 -
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, we were put in a
situation where we had to agree to that." The problem here is
that not only was Foley further expounding on a supposition, but
he later clarified that his understanding of Martorano's deal came
from the proffer period before Martorano's agreement with the
government was finalized.
Martorano's testimony, also yanked from the Florida state
case and read into the record below, was no more helpful.23 For
23 Defense counsel had Martorano read the Florida testimony into
the record after Martorano, on the stand below, thrice responded
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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
"[n]o" when asked whether he thought he could protect his brother
James, Winter, and Nee respectively.
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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(footnote omitted); 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.
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A. Background
At the final pretrial conference the judge cautioned both
sides: "In terms of objections, you know, object with a word or
two if you think its necessary and citation to the rule, but
otherwise, no speaking objections. If I need any more, I'll ask
for it." Despite the judge's stated preference, the government
sometimes ran afoul of this directive. For example, the prosecutor
was heard to say things like: "Objection, this is badgering," or
"And I object. There is no good-faith basis for that question, and
Mr. Brennan knows that." And (among others) there was: "I object
to that, that's an incorrect statement of the law." Despite
repeated admonishment from the judge, both in front of the jury
and at sidebar, the prosecutor's practice continued.
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
24The government contends that Bulger's claim is at best partially
preserved because he did not formally object to all of the speaking
objections. And although he did move for a mistrial based in part
on the speaking objections, he never renewed that motion even
though the government continued with its verbose practice. Given
that Bulger did object on multiple occasions to the speaking
objections, including moving for a mistrial, we will go ahead and
assume the objection preserved.
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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
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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
lawyer's requesting that I make a decision on a particular rule."
She clarified: "Statements and arguments by the attorneys are not
evidence. The lawyers are not witnesses." Similarly,
"[o]bjections are not evidence." The judge repeated the same
sentiment in the charge to the jury at the close of the case, and
we presume the jury to have followed all of these instructions.
See United States v. Gentles, 619 F.3d 75, 82 (1st Cir. 2010) ("It
is a well established tenet of our judicial system that juries are
presumed to follow such instructions.").
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.
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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.
25 In the interest of completeness, we note that Bulger raised a
claim of cumulative error. Because we find no merit to the
individual claims, as a matter of course there can be no cumulative
error. United States v. Brown, 669 F.3d 10, 28 (1st Cir. 2012).
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