United States v. Conley

United States Court of Appeals
For the First Circuit
No. 01-2693
KENNETH CONLEY,
Petitioner, Appellee,
v.
UNITED STATES OF AMERICA,
Respondent, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Boudin, Chief Judge,
Bownes, Senior Circuit Judge,
Torruella, Selya, Lynch, Lipez and Howard,
Circuit Judges.
S. Theodore Merritt, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, Ralph F. Boyd,
Jr., Assistant Attorney General, Civil Rights Division, Department
of Justice, Mark L. Gross and Teresa Kwong, Department of Justice,
were on supplemental brief for appellant.
Saul M. Pilchen with whom Robert S. Bennett, Jonice Gray
Tucker and Thomas J. Dougherty were on supplemental brief for
appellee.
March 6, 2003
OPINION EN BANC
BOUDIN, Chief Judge. The facts underlying this section
2255 action, recounted in detail in prior opinions,1 can be briefly
summarized. About eight years ago, on January 25, 1995, a shooting
occurred in the early morning hours in Boston, and there ensued a
police chase of several suspects in a Lexus. Eventually, the Lexus
was trapped in a dead-end street. Pulling up on the left side of
the Lexus--the first of many pursuing police vehicles--was an
unmarked police car with two plainclothes officers. One of the
officers, Michael Cox, ran from the car after a suspect named
Robert Brown who was fleeing on foot from the Lexus toward a fence
to the right of the Lexus.
By this time other police cars were arriving, pulling in
next to and behind the Lexus. In this line was a car driven by
Officer Richard Walker; behind him was one containing Officer
Kenneth Conley and his partner. According to later testimony, Cox
chased Brown to the fence and grabbed at Brown but Brown got over.
As Cox stood at the fence, he was brutally attacked and beaten by
other arriving police officers who thought he was one of the
suspects (and who also thought, wrongly, that a policeman had been
shot). The assaulting officers discovered their mistake and
dispersed, leaving Cox badly injured.
1
United States v. Conley, 186 F.3d 7 (1st Cir. 1999) ("Conley
I"), cert. denied, 529 U.S. 1017 (2000); United States v. Conley,
103 F. Supp. 2d 45 (D. Mass. 2000) ("Conley II"); United States v.
Conley, 249 F.3d 38 (1st Cir. 2001) ("Conley III"); Conley v.
United States, 164 F. Supp. 2d 216 (D. Mass. 2001) ("Conley IV").
-2-
In April 1997, a federal grand jury began an
investigation into the assault. Cox had not seen the officers who
beat him and, although many officers had been at the scene,
information was not readily provided. In due course, Conley was
called before the grand jury. Conley testified that he had seen no
one beating Cox; that he had himself pursued Brown to the fence;
that he had seen no one between him and Brown and no one grabbing
at Brown; that he had pursued Brown on the other side of the fence;
and that after a chase of about a mile, he had caught and arrested
Brown. There is little doubt that Conley did chase and catch
Brown, but prosecutors did not believe the rest of his story.
In August 1997, the grand jury indicted Conley for
perjury and obstructing justice--in substance, for denying that he
saw Cox pursue Brown to the fence and for denying that he saw Cox
being beaten. 18 U.S.C. §§ 1503, 1623 (2000). At Conley's trial
in June 1998, three witnesses for the government (Cox, Brown and
Walker) testified that Cox chased Brown to the fence and grabbed at
Brown unsuccessfully as Brown scaled it. Brown also said that
after he landed, he saw Conley through the fence and saw other
officers (but not Conley) beating Cox. He also identified Conley
as the officer who had chased and arrested him. Conley did not
testify.
The jury convicted Conley of lying, and of obstructing
justice, in testifying that he had seen no one else pursuing Brown
-3-
to the fence; as for the charge that Conley had lied in denying
seeing Cox being beaten, the jury acquitted Conley. Conley was
sentenced to just under three years in prison. The sentence was
stayed, and to date Conley has not served any of this sentence. No
policeman was indicted or convicted of the beating, although three
officers--but not Conley--were found liable to Cox in a civil trial
following Conley's criminal trial.
On direct appeal, this court in 1999 affirmed the
conviction. Conley I, 186 F.3d at 26. After the affirmance,
Conley in early 2000 moved for a new trial under Fed. R. Crim. P.
33. Conley identified a number of pieces of evidence that he
claimed were either newly discovered or wrongly withheld by the
prosecution. Most of the evidence would have been useful (if
useful at all) to impeach Officer Walker and--in one instance--
Brown. One other piece of evidence, comprising the civil trial
testimony of a security guard named Charles Bullard who was riding
with Cox, might (in Conley's view) have suggested that Cox could
have ended up behind Conley during the chase to the fence.
Under Rule 33, a new trial in "the interests of justice"
may be granted liberally on a motion made "within 7 days" after the
verdict; but, thereafter, it can be granted solely for newly-
discovered evidence (and then only on a motion made within three
years). Fed. R. Crim. P. 33. Further, under the case law, the
defendant who makes such a motion after seven days bears the heavy
-4-
burden of showing that the evidence would probably result in an
acquittal upon retrial. United States v. Wright, 625 F.2d 1017,
1019 (1st Cir. 1980). But if the new evidence was wrongly withheld
by the government in violation of its obligations under Brady v.
Maryland, 373 U.S. 83 (1963), it is enough to show that the
evidence undermines confidence in the verdict. Kyles v. Whitley,
514 U.S. 419, 435 (1995).
In its decision on the Rule 33 motion in June 2000, the
district court discussed the alleged new evidence at some length
and concluded that material new evidence had first become available
to defense counsel only after trial, Conley II, 103 F. Supp. 2d at
51-58; the court was less clear as to whether any had been wrongly
withheld in violation of Brady. Id. at 51-52, 54-55. In any
event, it ordered a new trial in "the interests of justice,"
without finding prejudice under either Wright or Brady. Id. at 58.
Somewhat cryptically, the district court stated in conclusion:
I conclude that the answer to the second
question stated above [the extent of
prejudice] cannot be determined as a matter of
law, under . . . [Wright and Brady]. Instead,
in the unique circumstances of this case, I
conclude that the determination to allow or
not to allow a new trial is one committed to
an exercise of discretion by the court to
which the legal system assigns responsibility
for making the determination.
Id. (emphasis added).
On appeal by the government, this court held in May 2001
that because the motion for a new trial was made more than seven
-5-
days after the verdict, the district court could not use the
general "interests of justice" standard in Rule 33 to bypass the
established Wright and Brady prejudice requirements. Conley III,
249 F.3d at 46. We understandably said that there was no need for
us to analyze the evidence ourselves under Wright and Brady or to
remand for the district court to do so; our reason was that we read
the district court's "as a matter of law" statement quoted above as
its own ruling that the Wright and Brady tests had not been met.
Id.Conley then filed the present motion in the district
court under 28 U.S.C. § 2255 (2000), based (more or less) on the
same newly-discovered evidence. In September 2001, the district
court granted the section 2255 motion, setting aside the conviction
and ordering a new trial. Conley IV, 164 F. Supp. 2d at 223-24.
In doing so, the district court said that it was applying the
Wright test, which it deemed to have been mandated by this court's
earlier decision on the Rule 33 motion. Id. at 222. The district
court found expressly that the new evidence was so powerful that it
would probably cause an acquittal on retrial. Id. at 223. The
district court never reached Conley's Brady claim because it found
that a new trial was required under Wright. Id. at 222.
On the government's appeal, a divided panel of this court
again reversed the district court. The panel majority said that
the district court had decided in its earlier Rule 33 decision
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(Conley II) that the Wright and Brady standards could not be
satisfied and that, on review (in Conley III), this court had
declined to remand, ruling that the sentence should now be
executed. The panel majority therefore held that the district
court's ruling on the section 2255 motion was inconsistent with the
law of the case doctrine. Again, the panel declined to address on
the merits Conley's new evidence claims under Wright and Brady.
The en banc court then granted Conley's petition for
rehearing, withdrawing (as is customary) the panel decision. We
now hold that the law of the case doctrine has no application here
and also that Brady but not Wright applies to new evidence claims
made in a section 2255 motion. This leads us to vacate the
district court's section 2255 decision and to remand so that Conley
can obtain a ruling on his Brady claim. We decline to decide the
Brady claim ourselves in the first instance.
We start with the law of the case doctrine on which the
government continues to rely. The law of the case doctrine has two
branches: one provides that, subject to exceptions, e.g., United
States v. Bell, 988 F.2d 247, 251 (1st Cir. 1993), a court must
respect and follow its own rulings made at a prior stage in the
same case; the other branch--sometimes known as the mandate rule--
far more stringently precludes a lower court from contravening the
rulings of a higher court made at an earlier stage of the same
-7-
controversy.2 The difference is cogently described in our recent
decision in Ellis v. United States, 313 F.3d 636, 646-48 (1st Cir.
2002).
At the time that we decided Conley III, our reading of
the district court's Rule 33 decision there under review (Conley
II) was surely a plausible one. The district court had made clear
in its own decision that it was not making a prejudice finding
under Wright or Brady ("cannot be determined as a matter of law")
and it invoked "the unique circumstances of this case" to justify
an "exercise of discretion" to grant a new trial--without reliance
upon Wright or Brady. Conley II, 103 F. Supp. 2d at 58. If there
were prejudice under Wright and Brady--one might ask--why would the
district court have invented its own standard? And, if the
district court had decided the Wright and Brady issues in Conley
II, law of the case doctrine would constrain its ability to revisit
the issues now.
Yet the district court does not think its own opinion in
Conley II was intended to resolve the Wright and Brady issues.
Invoking Wright, the district court now reaches a result opposite
to the one we attributed to its Conley II decision; and nothing
suggests that the district court regards this as a contradiction of
2
Arizona v. California, 460 U.S. 605, 618 (1983); NLRB v.
Goodless Bros. Elec. Co., 285 F.3d 102, 107 (1st Cir. 2002); Knapp
Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 72 F.3d 190, 197-98 (1st
Cir. 1995), cert. denied, 517 U.S. 1245 (1996).
-8-
Conley II.3 Of course, the district court knows better than we do
what it originally meant in Conley II. See Garrity v. Sununu, 752
F.2d 727, 731 n.4 (1st Cir. 1984). In hindsight, it is now clear
that Conley II's language--on which we relied in Conley III--is
ambiguous as to whether it represented a finding of no prejudice
under Wright and Brady.
What the district court said in Conley II was that the
answer to the prejudice question under Wright and Brady "cannot be
determined as a matter of law . . . ." Conley II, 103 F. Supp. 2d
at 58. Although in Conley III we understandably read this to mean
that there was no such prejudice, the phrase "as a matter of law"
can be used to say that an issue is not susceptible to being
resolved on the existing record and that an evidentiary hearing or
additional information is needed for its resolution. See, e.g.,
Fed. R. Civ. P. 56(c). This is probably the most plausible
reading, for it reconciles the district court's decision in Conley
II with its latest decision.
This leads us to conclude that the district court's
latest decision does not impermissibly contradict its own earlier
ruling in Conley II: having been told by this court in Conley III
that it could not create its own standard for "unique"
3
The district court's newest opinion does make a passing
reference to additional new evidence, Conley IV, 164 F. Supp. 2d at
221, but it does not describe any new evidence, let alone hold that
it is new evidence that tips the balance.
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circumstances, it has now simply decided an issue (Wright) that it
bypassed in its earlier decision. But the fact remains that we
ourselves in Conley III read Conley II as deciding that prejudice
under Wright and Brady could not be established. Is our
assumption--even if now seen to be mistaken--itself binding on the
district court under the mandate-rule branch of law of the case?
One might argue that a prior assumption by an appellate
court as to what the district court meant should not be treated as
law of the case, which is normally understood as directed to
substantive legal rulings. But an interpretation of a lower court
decision can be as much a contested issue as the interpretation of
a contract. We are reluctant to agree that such an interpretation
--at least if it was fully litigated and not merely assumed en
passant, see Platoro, Ltd. v. Unidentified Remains of Vessel, 695
F.2d 893, 898 n.4 (5th Cir.), cert. denied, 464 U.S. 818 (1983)--is
exempt from normal law of the case doctrine.4 There is a better
reason for refusing to perpetuate what now seems to have been a
mistake.
4
Whether the issue was fully litigated in Conley III could be
disputed. The government said that the district court had ruled in
Conley II that no prejudice existed; Conley's counsel urged--much
less plausibly--that the district court's "discretionary" grant of
a new trial rested in substance on Wright or Brady. The
possibility that the district court was simply bypassing Wright and
Brady seems not to have been argued by anyone, perhaps because it
would have justified a remand where both sides wished to prevail
outright--Conley by affirmance and the government by outright
reversal.
-10-
Law of the case is not a straitjacket but can be avoided
--at the direction of the court that made the invoked ruling--on
several different bases. Ellis, 313 F.3d at 647-48. Two of the
grounds permitting a deviation from law of the case are where there
has been a change in prevailing law or where there is new evidence
on the question at issue. Id. For example, in United States v.
Robinson, 690 F.2d 869, 872-73 (11th Cir. 1982), the Eleventh
Circuit revisited its own prior reliance on a magistrate judge's
finding after the latter clarified and expanded upon his ruling.5
Whether one characterizes the district court's new
decision as new law or new evidence, it is certainly a new
circumstance justifying a fresh look by us at the question whether
the district court previously resolved the Wright and Brady claims
on the merits. Having reexamined the matter, we think the district
court has not so resolved them, despite our earlier assumption that
it had. It is equally clear that this court has never decided
those claims on the merits; instead, we adverted briefly to some of
the issues raised. Conley III, 249 F.3d at 43, 46-47.
This brings us to the substance of the district court's
section 2255 decision. In a nutshell, the district court ruled on
this go-around that "a new trial is to be allowed under the Wright
5
Other circuits are in accord on the general principle. See
Benson v. SI Handling Sys., Inc., 188 F.3d 780, 783 (7th Cir.
1999); Browning v. Navarro, 887 F.2d 553, 556 (5th Cir. 1989);
United States v. Cirami, 563 F.2d 26 (2d Cir. 1977).
-11-
test, and because this determination controls the judgment to be
ordered, I do not consider further the Brady test." Conley IV, 164
F. Supp. 2d at 222. It then found that the newly discovered
evidence "would have greatly enhanced" the defense case; that it
"strikes at the heart of the prosecution's case"; and that Conley
had shown "a probable result of acquittal in a new trial." Id. at
223.
The problem is that new evidence claims under Wright are
cognizable grounds of relief only in post-trial motions for a new
trial and not under habeas or its section 2255 surrogate. Powerful
new evidence of innocence can satisfy one of the new "gatekeeper"
requirements for bringing a "second or successive" section 2255
motion, see 28 U.S.C. § 2255; but a traditional habeas ground is
required once one gets through the gate. Merely to claim that new
evidence casts doubt, even grave doubt, on the correctness of a
conviction is not a ground for relief on collateral attack. See
Herrera v. Collins, 506 U.S. 390, 400 (1993); United States v.
Evans, 224 F.3d 670, 673-74 (7th Cir. 2000).6
Conceivably, the Wright claim could be reawakened if we
withdrew sua sponte our mandate in Conley III, an issue we asked
6
It is not clear whether a habeas claim could be based on new
evidence proving actual innocence, see Herrera, 506 U.S. at 417;
but Conley is not close to such a showing. At best, the newly-
discovered evidence, adding everything together, simply increases--
how much is debatable--the likelihood that at a new trial a jury
might find reasonable doubt of guilt and so acquit.
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the parties to brief. Although this course might first appear to
be at odds with Calderon v. Thompson, 523 U.S. 538, 554-58 (1998),
we think that Calderon is distinguishable. Calderon's holding was
explicitly directed at the recall of a "mandate [in a habeas
proceeding in order] to revisit the merits of an earlier decision
denying habeas corpus relief to a state prisoner . . . ." Id. at
558. The considerations are somewhat different where, as here, we
are concerned with intra-federal proceedings and, more importantly,
where the Conley III mandate was not issued in a habeas proceeding
at all but on direct review of the denial of a new trial motion.
Nevertheless, independent of Calderon, recall of a
mandate--other than to correct a clerical error--threatens
important interests in finality and is a step to be taken only in
the most unusual circumstances.7 Defense counsel in Conley III
chose in the first instance not to argue for a remand, possibly in
part because of a deliberate tactical choice (see note 4 above).
Further, so far as we can tell at this stage, the "new evidence"
while arguably helpful to Conley serves more to raise doubts than
to establish innocence or a "clear probability" of an acquittal;
serious doubts may be enough if Brady evidence was withheld but (as
already explained) is not normally sufficient under Wright. Given
7
See Boston & Me. Corp. v. Town of Hampton, 7 F.3d 281, 283
(1st Cir. 1993); Fine v. Bellefonte Underwriters Ins. Co., 758 F.2d
50, 52-54 (2d Cir.), cert. denied 469 U.S. 874 (1985); 16 Wright,
Miller & Cooper, Federal Practice and Procedure § 3938, at 712 (2d
ed. 1996) (describing "profound interests in repose").
-13-
these circumstances, we do not see how a sua sponte withdrawal of
the mandate can be justified.
This leaves open only Conley's claim under Brady, a
settled basis for collateral attack. See Barrett v. United States,
965 F.2d 1184, 1189 (1st Cir. 1992). Indeed, claims based on new
evidence wrongfully withheld can prevail on a lesser showing of
prejudice than claims based on newly-discovered evidence (because
the former assumes government misconduct). See United States v.
Gonzalez-Gonzalez, 258 F.3d 16, 20 (1st Cir. 2001). But, of
course, not all newly-discovered evidence fits within Brady: the
evidence must, at a bare minimum, have been within the government's
grasp and wrongly withheld from the defense. Brady, 373 U.S. at
87. Perhaps some, but seemingly not all, of Conley's new evidence
falls within this class.
The government asserts that whether viewed through the
lens of Wright or Brady, the new evidence is so thin that we should
ourselves decide without further ado that a new trial is
unjustified. Conley's counsel says that we should affirm the trial
judge's directly contrary assessment, or, in the alternative,
remand the matter to the same district judge, who has already said
that the new evidence claim under Wright is persuasive and might
well say the same under Brady. Although reluctant to prolong this
long-lived litigation, we have concluded that neither course is
appropriate.
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The evidence underlying the Brady claim has never been
systematically assembled and fully analyzed in any court in any of
the various decisions to date. There are fragments of discussion
in several of the district court decisions, Conley IV, 164 F. Supp.
2d at 221-23; Conley II, 103 F. Supp. 2d at 51-58; but nowhere are
all of the items of supposed new evidence set forth, their
significance considered, their status assessed under Brady, and a
judgment made (based on a review of all of the evidence in the
entire trial) as to whether the Brady-qualifying items of new
evidence (taken together) undermine confidence in the verdict.
Save in the most straightforward case, an en banc court
is not the best initial forum for this kind of undertaking. Some
Brady issues can require fact-finding as to what the government
knew and when it knew it. And, where (as here) the case was
circumstantial and much of the evidence concerns arguable
impeachment of key witnesses, en banc review is generally assisted
by having a well-worked-out district court assessment before the
appellate court attempts its own evaluation.
At the same time, we agree with the government that it is
time for another district judge to consider the new evidence claim
afresh. Although this court has clear authority to order that
further proceedings be conducted before a different judge, see 28
U.S.C. § 2106 (2000); Liteky v. United States, 510 U.S. 540, 554
(1994), we normally defer to the district court's own reassignment
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policies.8 However, in this instance the circumstances are
unusual: the district judge has now twice said that he believes a
new trial to be warranted and we have twice reversed or vacated his
decision for errors of law antecedent to an assessment of the
evidence.
A third remand would put the district judge in a very
awkward position. If he ordered a new trial yet again, it might be
thought that he was wedded to an outcome; if he altered his result,
Conley might suppose that the judge had yielded to exhaustion or to
a supposed message from this court. We have no doubt about the
good faith of the district judge, but in the peculiar circumstances
of this case a fresh look is warranted, despite the cost of
requiring a new district judge to master this record.
A concluding word should be said about the duration of
this case, a point emphasized in the prosecution's brief. A
pattern of long delays in deciding criminal cases, or civil ones
for that matter, should certainly be a matter of concern for any
court. But in an individual appeal, especially in a criminal case
with liberty and honor at stake, the main concern is always the
achievement of justice. Justice includes the interests of the
8
In four of the five districts in this circuit, including
Massachusetts, there are formal district court rules governing
reassignment, e.g., D. Mass. R. 40.1(i). In all districts, judges
sometimes ask for reassignment of a remanded case even when not
compelled to do so.
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state as well as the defendant, but just where justice lies in this
case is less clear than the government may suppose.
The government's evidence at trial was assuredly adequate
for conviction, but it was always circumstantial because no one
testified that he or she saw Conley looking at Cox in pursuit of
Brown and Conley never admitted seeing him. The inferences for
this circumstantial case depended importantly on testimony as to
the position of different actors at different times in a confused
and changing scene in the dark of night. Whether impeachment or
other evidence was wrongfully withheld and, if so, whether its
existence shakes confidence in the jury's verdict are questions for
remand, but they are questions worth answering with care, whatever
time it takes to answer them.
The district court's order granting the section 2255
motion is vacated and the matter is remanded to the district court
for reassignment to a new judge in accordance with local procedures
and thereafter for further proceedings consistent with this
opinion.
It is so ordered.
--Dissents Follow--
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BOWNES, Senior Circuit Judge, (dissenting). I start my
dissent with a question that troubles me. Why did this deliberate
brutal beating of Officer Cox take place? The government describes
the beating in its brief, which accurately summarizes the record:
As Cox was preparing to climb the fence in
pursuit of Brown, Cox was struck from behind
with a blunt object by police officers who
apparently mistook him for a suspect. The
officers beat and kicked Cox repeatedly in the
head, back, face, and mouth. Cox then heard
an officer shout, "Stop, Stop, he's a cop.
He's a cop," and the officers all fled. With
no one left to assist him, Cox was forced to
use the bumper of a police car to pull himself
off the ground. Cox, bleeding and seriously
injured, was later taken in an ambulance to a
hospital for treatment.
The majority opinion gives a terse summary of the event
that led to this case: "As Cox stood at the fence, he was brutally
attacked and beaten by other arriving police officers who thought
he was one of the suspects (and also thought, wrongly, that a
policeman had been shot). The assaulting officers discovered their
mistake and dispersed, leaving Cox badly injured."
Even if we accept the hypothesis that the beating
resulted from mistaken identity, my question still remains. Surely
it is not normal or standard police procedure to administer a
brutal beating to a fleeing felon where no resistance is made.
There is nothing in the record to suggest that Cox fought back.
All he did was try to protect himself from repeated kicks to the
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head. It is troubling to me that the police acted as barbarians
rather than police officers sworn to uphold the law.
But, of course, this has nothing to do with the issues
before us. In our quest for justice, however, I think it advisable
to not only address the specific issues in a case but the framework
which gave rise to the case.
My dissent is based on two grounds. The first is that I
think the majority opinion has applied the wrong law. I think the
case should have been decided on the "law-of-the-case" doctrine.
Rather than engage in an analysis of that doctrine again, I am
attaching to this a copy of my panel decision setting forth in
detail why this doctrine should be applied here.
My second reason for dissenting is the majority's
decision to remand. This probably means another appeal and further
consideration by the court of appeals. I think that the case ought
to be decided by the en banc court. The majority sets forth a
number of reasons for the remand:
The evidence underlying the Brady claim has
never been systematically assembled and fully
analyzed in any court in any of the various
decisions to date. There are fragments of
discussion in several of the district court
decisions, Conley IV, 164 F. Supp. 2d at 221-
23; Conley II, 103 F. Supp. 2d at 51-58; but
nowhere are all of the items of supposed new
evidence set forth, their significance
considered, their status assessed under Brady,
and a judgment made (based on a review of all
the evidence in the entire trial) as to
whether the Brady-qualifying items of new
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evidence (taken together) undermine confidence
in the verdict.
Save in the most straightforward case, an en
banc court is not the best initial forum for
this kind of undertaking. Some Brady issues
can require fact-finding as to what the
government knew and when it knew it. And,
where (as here) the case was circumstantial
and much of the evidence concerns arguable
impeachment of key witnesses, en banc review
is generally assisted by having a well-worked-
out district court assessment before the
appellate court attempts its own evaluation.
With respect, none of the stated reasons are persuasive.
The majority says that the new evidence has never been fully
collected and analyzed. Quite the contrary is true. There is an
extensive record in this case which is familiar to the en banc
court. The parties themselves agree on which materials constitute
the newly discovered evidence. All that is left is an analysis
under Brady v. Maryland, 373 U.S. 83, 87 (1963).
The majority also suggests that additional fact-finding
is necessary to determine "what the government knew and when it
knew it." This is true as a general matter, but is simply not
applicable here. What the government knew is only relevant to the
first prong of the Brady determination, namely whether evidence
favorable to the accused was suppressed by the government, either
willfully or inadvertently. See Strickler v. Greene, 527 U.S. 263,
282 (1999). This case has never hinged on whether the government
suppressed evidence; in fact, the government concedes in its brief
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that the evidence was "inadvertently overlooked . . . in providing
discovery."
Instead, the focus of this case is on the final prong of
Brady, which rests on whether there is a reasonable probability
that, had the newly discovered evidence been disclosed to the
defense, the result of the proceeding would have been different.
See Kyles v. Whitley, 514 U.S. 419, 433-34 (1995). Deciding
whether the outcome of a trial would be different is not simply a
fact-bound issue, it is interlaced with a constitutional
determination. See Brady, 373 U.S. at 86 (explaining that the
overarching issue is whether the government's conduct violates the
Due Process Clause of the Fourteenth Amendment). Thus, the
critical question in this case is a matter of law, not fact, and it
is a question that we can decide. See Strickler, 527 U.S. at 289(giving no deference to analysis by district court or court of
appeals when examining habeas corpus petition in which defendant
claims Brady material creates a reasonable probability of a
different outcome).
This brings me to the majority's final reason to remand.
The majority says that it makes sense to have a district court make
the Brady determination because the government's case was
circumstantial and all the newly discovered evidence relates to
impeachment of key witnesses. On its face, this justification
seems persuasive. After all, the district court judge who listened
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to the witnesses' testimony, saw their demeanor on the stand, and
observed the jury's reaction seems best positioned to determine
whether new impeachment evidence would change the result of the
trial. But the majority's decision to remand this case to a
different district court judge eviscerates any benefit that might
be gained from a remand.
We can determine whether the outcome of the trial would
be different using circumstantial and impeachment evidence just as
well as a new district court judge, and considering the appellate
record here, with which we are all familiar, in a significantly
shorter time. Review of circumstantial evidence is part of the
gristmill for appellate courts. In addition, circumstantial
evidence is just as reliable as testimony and, at times, more
reliable because it does not depend on the memory or judgment of
what a witness saw and remembered and it is not subject to the
biases and prejudices that are part of all human beings.
With respect, I consider a remand an unnecessary waste of
time and judicial resources. It is going to take the new district
court untold hours to attain a working knowledge of the record,
which this court already has. I also point out that five of the
seven members of the en banc court have had considerable experience
as trial court judges. This court is well versed in looking at a
record and deciding whether an outcome of a trial would be
different in light of new evidence.
-22-
It is clear from the appellate record that Kenneth Conley
has had more than his "day" in court. After being convicted by a
jury, Conley appealed. We upheld the conviction unanimously.
United States v. Conley, 186 F.3d 7 (1st Cir. 1999). Certiorari
was denied. Conley v. United States, 529 U.S. 1017 (2000). Conley
appealed again, this time on the grounds of newly discovered
evidence. We unanimously reversed the district court because of
erroneous legal rulings. United States v. Conley, 249 F.3d 38 (1st
Cir. 2001). We ended our opinion by stating: "The sentence of the
district court, which we affirmed in our prior opinion, shall be
executed." Id. at 47. The sentence was not executed. Conley
filed a 28 U.S.C. § 2255 (2000) motion based on essentially the
same newly discovered evidence alleged in his prior case. On
appeal for a third time, we applied the "law-of-the-case" doctrine
in a two to one opinion. Conley's motion for an en banc was
granted and the majority opinion was recalled.
I can think of no good reason why we should revisit this
case, let alone remand it to a different district court judge.
This court has all it needs to decide the Brady issue itself. We
have the entire record and we are familiar with it. Moreover,
placing the case in the hands of another district court judge can
be construed to infer an abdication of our duty of review. Our
duty is to review the decision of the district court, not to look
to it for help in deciding a difficult legal issue. Judge
-23-
Torruella's treatment of the Brady issue is both thorough and
correct. Because I believe this court should decide the Brady
issue itself, and because I agree with the substance of Judge
Torruella's analysis, I concur in his dissent.
My final comment is a direct reply to the majority's
discussion of justice. Simply put, "Justice delayed is Justice
denied." I think this court has a duty to decide this case and
that a remand is unnecessary.
-24-
ATTACHMENT
BOWNES, Senior Circuit Judge. This is the third appeal
arising from defendant-appellant Kenneth Conley's jury conviction
of perjury in violation of 18 U.S.C. § 1623 and obstruction of a
grand jury investigation in violation of 18 U.S.C. § 1503. The
conviction followed Conley's testimony before a grand jury, which
was investigating the alleged beating of plainclothes police
officer Michael Cox by other police officers.
This case first came before us on direct appeal after
Conley's conviction. We affirmed the conviction and the sentence
of thirty-four months, ruling explicitly that the evidence was
sufficient to support the conviction. United States v. Conley, 186
F.3d 7, 20 (1st Cir. 1999), cert. denied, 529 U.S. 1017 (2000)
(Conley I). Conley then moved for a new trial based on newly
discovered evidence, violations of Brady v. Maryland, 373 U.S. 83(1963), and jury misconduct. The district court granted the
motion, finding that a new trial was warranted "in the interests of
justice." United States v. Conley, 103 F. Supp. 2d 45, 57-58 (D.
Mass. 2000) (Conley II). We reversed, ruling that the district
court did not apply the correct legal test. United States v.
Conley, 249 F.3d 38, 46-47 (1st Cir. 2001) (Conley III).
The present appeal arises from a petition under 28 U.S.C.
§ 2255, which Conley filed shortly after our opinion in Conley III
had issued. The district court set aside Conley's conviction:
-25-
The Judgment of Conviction under which
Petitioner is presently restrained was
obtained in violation of the Due Process
Clause of the Fifth Amendment to the
Constitution of the United States in that
exculpatory evidence was withheld from
Petitioner during trial, which resulted in a
verdict not worthy of confidence.
Conley v. United States, 164 F. Supp. 2d 216, 217 (D. Mass. 2001)
(Conley IV). We reverse the court below.
BACKGROUND
We set forth the factual background and much of the
procedural history of this case in Conley I, 186 F.3d at 11-15, and
Conley III, 249 F.3d at 40-44, and need not reiterate it. Only the
following points bear emphasis:
In his motion for a new trial pursuant to Fed. R. Crim.
P. 33, Conley focused on three pieces of evidence: the
government's failure to disclose Charles Bullard's grand jury
testimony; the government's knowing reliance on Richard Brown's
perjured testimony that the Boston Police Department had brought
drug charges against him in retaliation for the testimony he gave
at the civil trial; and the government's failure to disclose the
transcript of an interview of Officer Richard Walker by the
Internal Affairs Division (IAD) of the Boston Police Department, in
which Walker made a tentative photo identification of the tall
white officer who chased and arrested Brown as an officer other
than Conley.
-26-
The district court's opinion on this motion analyzed
these three pieces of evidence. After setting forth the standard
for a new trial based on newly discovered evidence, United States
v. Wright, 625 F.2d 1017, 1019 (1st Cir. 1980), and a prosecutor's
obligation to disclose exculpatory evidence, Brady, 373 U.S. at 87,
it considered the separate and cumulative effect of the evidence.
Conley II, 103 F. Supp. 2d at 51-55. The district court determined
that the government's failure to disclose Bullard's grand jury
testimony did not violate Brady, and that Officer Walker's IAD
interview transcript was "'inconclusive' as to the government's
duty of disclosure and defense counsel's diligence." Conley III,
249 F.3d at 44. The court went on to frame two questions for its
consideration:
[Question One:] Did the prosecution have and
withhold information from defense counsel that
would have led a reasonable person to expect
that a civil trial would occur, similar to the
civil trial that did in fact occur after the
criminal conviction and sentence in this case,
and that the testimony at the civil trial
would be substantially as we now know it was
in fact?
[Question Two:] If so, were defense counsel so
severely impeded in their preparation of an
overall defense strategy and in the
performance of the function of cross-
examination of those particular witnesses, out
of the larger number of police officers,
including both uniformed and undercover
officers, who were in the vicinity of the
brutal beating of Michael Cox, an undercover
Boston police officer, by a uniformed Boston
police officer, that in the interests of
justice a new trial should be allowed?
-27-
Conley II, 103 F. Supp. 2d at 57-58.
The district court answered the first question in the
affirmative. The second question, it stated,
cannot be determined as a matter of law, under
the applicable legal standard explained in
Part III of this opinion [discussing Wright
and Brady, inter alia]. Instead, in the
unique circumstances of this case, I conclude
that the determination to allow or not to
allow a new trial is one committed to an
exercise of discretion by the court to which
the legal system assigns responsibility for
making the determination.
Id. at 58 (emphasis added). The district court then used the
discretion it had given itself to order a new trial "in the
interests of justice." Id.In our review of the district court's opinion on Conley's
motion for a new trial, we discussed the requirements for a new
trial based on newly discovered evidence and/or violation of Brady.
Conley III, 249 F.3d at 44-45. We concluded that the district
court erred in allowing a new trial "in the interests of justice"
instead of applying either the Wright or Brady standards:
As we explained supra, a new trial may be
ordered in this case only if the standards set
forth in Wright and/or Brady are satisfied.
Both Wright and Brady require a showing that
the evidence was material and that the
defendant was prejudiced to some degree. We
must defer to the district court's explicit
findings as to the Bullard and Brown
testimony, as well as to its statement that
prejudice could not be determined upon a
consideration of the evidence as a whole.
Therefore, there is no basis for remanding
-28-
this matter, and we REVERSE the district
court's order.
Id. at 47 (internal citations omitted). We directed that the
district court's sentence, which we had affirmed in Conley I, be
executed. Id.
Only one week after we issued Conley III, Conley brought
a motion to set aside conviction under 28 U.S.C. § 2255. Again,
the district court held that Conley was entitled to relief from
judgment. Conley IV, 164 F. Supp. 2d at 223-24.
In Conley IV, on appeal before us now, the district court
made the following findings:
(1) Richard Walker testified at the trial of
defendant Conley that Walker went through a
hole in the fence and made his way to the
bottom of an incline;
(2) when at the bottom of the incline he saw
two men standing in the street, one tall (six
feet or six feet two) and the other shorter
(about . . . five nine);
(3) the prosecutor used this evidence in his
closing to suggest that the taller was Conley;
(4) during testimony of March 27, 1995 to the
Internal Affairs Division (IAD) of the Boston
Police Department, Walker was shown a group of
photographs and with some uncertainty selected
two as persons at the bottom of the incline,
neither of whom was Conley;
(5) defendant Conley claims that this evidence
was unavailable to Conley and his attorney at
the criminal trial;
(6) this and other material evidence came out
in open court in the later trial of a civil
action brought by Michael Cox against several
-29-
officers, including the defendant Conley, in
December 1998, some six months after the
defendant was convicted in the criminal trial;
and
(7) even though the testimony given at the
December 1998 civil trial could not have been
withheld by the prosecutor in the criminal
trial, because it did not then exist, the
defendant Conley argued in his motion for new
trial and continues to press the argument now
that the prosecutor had withheld, during and
before the criminal trial, information that
the prosecutor then had about the IAD
proceedings, and if the prosecutor had made
that information available to Conley and his
attorney in time for use during the criminal
trial, it would have made a material
difference in the defense strategy, including
cross-examination.
Id. at 221-22.9 The court made no findings concerning the other
evidence at issue in its earlier opinion, i.e., the testimony of
Bullard and Brown.
The district court held that the correct legal standard
was found in Wright, 625 F.2d at 1019. Conley IV, 164 F. Supp. 2d
at 222. It then restated the same two questions it had formulated
in Conley II, set forth supra at page 4. It held:
The newly discovered evidence, taken together
with all the conflicts presented in evidence
known to the defense before and during the
criminal trial, presents a dramatically more
compelling basis for finding that defense
counsel's opportunity to present a creditable
9
The court stated that it made these findings on an "enlarged
record," suggesting that it was considering more or different
evidence than it did in its earlier opinion. Conley IV, 164 F.
Supp. 2d at 222. Nowhere does the court explain what that evidence
is.
-30-
challenge to the government's case as a
wholeand to cross-examine effectively
particular witnesses was severely impeded.
Id. at 223.
Based on the factual findings recited supra, the court
concluded that Conley satisfied the elements of the Wright test.10
I conclude that the newly discovered evidence
is highly probative and neither immaterial nor
cumulative in nature. Instead, it is evidence
that strikes at the heart of the prosecution's
case, one which is largely based on the
credibility of its witnesses. Indeed, the
strength of this evidence leads me to find
that the defendant has met his burden of
showing a probable result of acquittal in a
new trial.
Id. The government appeals.
DISCUSSION
Under 28 U.S.C. § 2255, a prisoner in federal custody may
petition the sentencing court to vacate, set aside or correct the
sentence on the ground that the sentence was imposed in violation
of the Constitution or laws of the United States. Brackett v.
United States, 270 F.3d 60, 63 (1st Cir. 2001). Claims that
previously have been addressed on direct review, however, may not
10
Under Wright, the moving party must demonstrate the following
four elements: (1) the evidence claimed to be newly discovered was
unknown or unavailable to the defendant at the time of trial; (2)
failure to learn of the evidence was not attributable to lack of
diligence by the defendant; (3) the evidence is material, and not
merely cumulative or impeaching; and (4) it will probably result in
an acquittal upon retrial of defendant. 625 F.2d at 1019; see also
United States v. Gonzalez-Gonzalez, 258 F.3d 16, 20 (1st Cir.
2001).
-31-
be readjudicated collaterally under § 2255 absent equitable
considerations, such as actual innocence or cause and prejudice.
Withrow v. Williams, 507 U.S. 680, 721 (1993) (Scalia, J.,
concurring); see also United States v. Michaud, 901 F.2d 5, 6 (1st
Cir. 1990); Tracy v. United States, 739 F.2d 679, 682 (1st Cir.
1984)("[a]bsent an intervening change in the applicable law, issues
that have been raised and decided on a motion for a new trial
cannot be reconsidered in a subsequent collateral attack" (quoting
United States v. Sanders, 723 F.2d 34, 36 (8th Cir. 1983)));
Dirring v. United States, 370 F.2d 862, 864 (1st Cir. 1967).
In a related vein, the doctrine of "law of the case" is
a prudential principle that "precludes relitigation of the legal
issues presented in successive stages of a single case once those
issues have been decided." Field v. Mans, 157 F.3d 35, 40 (1st
Cir. 1998) (quoting Cohen v. Brown Univ., 101 F.3d 155, 167 (1st
Cir. 1996)). "For a bar to exist, an issue must have been actually
considered and decided by the appellate court, or a decision on the
issue must be necessarily inferred from the disposition on appeal."
Id. (internal quotation marks omitted) (quoting Commercial Union
Ins. Co. v. Walbrook Ins. Co., Ltd., 41 F.3d 764, 770 (1st Cir.
1994)).
The law of the case doctrine prohibits a litigant from
resurrecting an issue decided by the trial court that either has
not been challenged on appeal or has been decided on appeal. Id.-32-
at 40; United States v. Rosen, 929 F.2d 839, 842 n.5 (1st Cir.
1991). Another aspect of the doctrine is the "mandate" rule, which
requires the district court to follow the ruling of the court of
appeals. Field, 157 F.3d at 40. We review an application of the
law of the case de novo. Id.The district court's conclusion in Conley IV that the
newly discovered evidence pertaining to Walker satisfied the Wright
criteria is foreclosed by these doctrines. First, the district
court essentially reversed course as to whether the Walker evidence
fulfilled the requirement of prejudice. In its previous decision,
it held that the question of prejudice "cannot be determined as a
matter of law" under the standards set forth in Wright and Brady.
Conley II, 103 F. Supp. 2d at 58. That same evidence, it now says,
is sufficient to warrant a new trial under Wright. Conley IV, 164
F. Supp. 2d at 222.11
Moreover, the district court's most recent treatment of
the Walker evidence is at odds with its previous ruling as to at
least one other key element. Earlier, it called Walker's IAD
11
In its opinion in Conley II, the district court discussed in
some depth the testimony of Bullard and Brown, and made clear that
its holding as to prejudice encompassed the entirety of that newly
discovered and/or disclosed evidence. 103 F. Supp. 2d at 51-54.
The district court's opinion in Conley IV, however, referenced only
the Walker evidence as a basis for its allowance of Conley's § 2255
motion. 164 F. Supp. 2d at 221-22. Although it mentioned the
Bullard and Brown testimony, it did so only in the context of
"Background Criminal Proceedings." Id. at 218. We read Conley IV,
therefore, as premising its determination of a Wright violation
solely on the Walker evidence.
-33-
testimony "inconclusive" as to the government's duty of disclosure
and defense counsel's diligence. Conley II, 103 F. Supp. 2d at 55.
In Conley III, however, the court held that the Walker evidence
satisfied all of the elements of Wright, including, by inference,
the requirement that Conley's failure to learn of the evidence was
not attributable to his lack of diligence. 164 F. Supp. 2d at 223(discussing Wright, 625 F.2d at 1019).
In Conley III, we discussed and affirmed the district
court's factual findings as to these elements of the Wright test,
and instructed the court to carry out Conley's sentence. 249 F.3d
at 46-47. That decision binds the district court. See Withrow,
507 U.S. at 721; Field, 157 F.3d at 40. Accordingly, we reverse
the district court's order setting aside Conley's conviction.
We know of no additional evidence that would explain the
district court's new and contrary conclusions as to prejudice and
defense counsel's diligence. While the district court mentions in
passing an "enlarged record," it makes no specific findings that
support its about-face. Furthermore, the legal claims, although
recast in the form of a § 2255 petition, did not differ from the
claims before the district court and before us in Conley III. See
Tracy, 739 F.2d at 682 (a petitioner is still barred from
relitigating the subject matter of claims on collateral review even
if he recasts them in different nomenclature). Nor was there any
material change in the controlling law following Conley III. See
-34-
id. Hence, we see no reason not to preclude the district court's
readjudication of settled issues.
For these reasons, we REVERSE the decision of the
district court. We remand this case to the Chief Judge of the
District Court for the District of Massachusetts with instructions
that Conley's thirty-four-month sentence be executed.
-35-
TORRUELLA, Circuit Judge (Dissenting). Although I fully
agree with Judge Bownes's dissenting opinion, I write separately to
address the majority's decision to remand this case. In our
attempt to find and apply the proper legal framework with which to
analyze Conley's new evidence claims, this Court, together with the
district court, has now heard the same arguments made regarding the
same body of evidence on six separate occasions. Now, straining
such jurisprudential norms as finality and repose to their breaking
point, the majority elects to remand Conley's new evidence claims
-- claims with which this Court is all too familiar -- to a new
district judge for fresh consideration. Respectfully, I disagree
with the majority's decision to remand this case, as well as the
substantive reasons for doing so.
Besides regard for finality, there are three reasons why
this en banc Court would have been the best forum to hear Conley's
Brady claim. First, we have developed an intimate familiarity with
the record, a familiarity matched only by Judge Keeton and the
parties themselves. Second, the record before us is complete: no
additional fact-finding is required to assess the merits of
Conley's Brady claim. Both parties invited us to decide this
matter and have had full opportunity to collect all of the evidence
relevant to the consideration of Conley's claims. Moreover, the
parties agree upon the scope of the evidence to be considered under
Brady and there are no facts in dispute regarding the government's
-36-
knowledge or suppression of evidence. Finally, once the heavy-
lifting is done -- once all the new evidence in question has been
properly catalogued, labeled and evaluated -- it is evident that
under Brady, there is simply no basis for remand.
Therefore, although I am troubled by the majority's
somewhat tortured efforts to construct an exception to the law of
the case to apply to this case, I do not focus my dissent on the
majority's handling of that doctrine. Instead, I will concentrate
on the merits of Conley's Brady claim. Assuming arguendo that the
law of the case does not now bar Conley's claims, and agreeing with
the majority that Brady, and not Wright, applies to new evidence
claims made in a section 2255 motion, I dissent today because there
is no purpose to be served by remanding this case to the district
court, and no plausible basis upon which, on remand, the district
court might grant a new trial.
Assessing the merits of Conley's Brady claim requires
reconstruction of a good deal of trial testimony, as well as
accounting for all of the items of new evidence that might come
under the Brady umbrella. Thus, to establish that Conley's Brady
evidence does not create a "reasonable probability that the
suppressed evidence would have produced a different verdict"
Strickler v. Greene, 527 U.S. 263, 280-81 (1999), I will briefly
summarize the evidence offered against Conley at trial and assess
any impact the new evidence might have produced.
-37-
I. The Trial Testimony12
In his grand jury testimony, Conley testified that he was
the first officer in pursuit of Robert Brown. He stated that he
was forty feet behind Brown and that he climbed over the chain link
fence "seconds after" Brown did. He further testified that he did
not see Michael Cox or any other plainclothes officer chasing Brown
ahead of him.
The testimony of Michael Cox, Robert Brown, and Richard
Walker conflicts with Conley's account. As we stated in our
original opinion on the sufficiency of the evidence:
Both Cox and Walker placed Cox at the
exact same place where Conley claims to have
climbed over the fence. According to their
testimony . . . Cox was "right behind" Brown,
approximately three feet behind him, as Brown
approached the fence. When Brown reached the
fence, Cox was even closer. At that point,
Cox was close enough to make contact with
Brown and attempt to pull him back over the
fence. Brown corroborated this version of
events when he testified that a black man
wearing a "black hoody" was behind him as he
ran toward the fence and had just started to
come over the fence after him when he observed
the black man being struck on the head by a
police officer. Brown confirmed that the
person behind him was close enough to make
contact with his foot as he scaled the fence.
Conley's testimony that he scaled the
fence "within seconds" of seeing Brown go over
the fence, and that he scaled the fence in the
same location as Brown does not square with
12
For a comprehensive summary of the evidence presented at
trial, see United States v. Conley, 186 F.3d 7, 7-15, 19-21 (1st
Cir. 1999) ("Conley I").
-38-
the testimony of Cox, Walker and Brown.
Conley's version of events provides for no
reasonable gap in time during which he could
have missed observing Cox at the fence.
Indeed Conley concedes that if the
Cox/Walker/Brown version is true, he would
have seen Cox at the fence. In reaching its
verdict, the jury apparently found the
Cox/Walker/Brown version more credible.13
Conley I, 186 F.3d at 20.
The jury found Conley guilty of perjury for denying that
he saw Cox chase, pursue, and grab hold of Brown as Brown ran
toward and climbed the fence at Woodruff Way. The jury acquitted
him of another count of perjury, finding that his denial of
witnessing Boston police officers beating Cox was not perjurious.
This Court affirmed the sufficiency of the evidence
supporting the jury's findings, concluding that the government had
"produced ample circumstantial evidence from which a rational jury
13
A word should be added regarding the specific testimony of
Richard Walker (now the subject of Conley's Brady challenge).
Walker testified that he observed Cox chasing closely behind Brown,
saw Brown scale the fence, and then saw Cox trying to reach for
him. According to Walker, once Brown made it over the fence
successfully, Walker ran toward a hole in the fence. Walker then
proceeded through the hole and down an incline, falling a couple of
times. Once on the other side of the fence, he observed two white
plainclothes police officers standing in the street. One was tall,
about 6'2", and the other was shorter. Walker followed the tall
officer in pursuit of the suspect. At some point during the
pursuit, the taller officer dropped his radio. After Brown had
been apprehended, Walker returned the radio to the tall officer.
Walker did not attempt to identify the tall white officer at trial,
but did testify that the officer was the same height and size as
Conley.
-39-
could conclude that Conley's statements were false beyond a
reasonable doubt."14 Conley I, 186 F.3d at 19.
II. The New Evidence
Conley moved for a new trial on March 24, 2000. All of
Conley's new evidence can be sorted into three categories: (1)
Charles Bullard's grand jury and civil trial testimony ["Bullard
Testimony"]; (2) the allegedly perjured testimony of Robert Brown
["Brown Testimony"]; and (3) the statements and testimony of
Richard Walker ["Walker Evidence"]. As Conley's Brady claim has
come into sharper focus, it is now apparent that his hopes for a
new trial under Brady hinge entirely upon the impeachment value of
this last category of exhibits, the Walker Evidence.15 However, to
provide a comprehensive account of all Conley's new evidence, I
will briefly dispatch the Bullard and Brown testimony before
appraising the weight of the Walker Evidence.
14
For this reason, I find the majority's comment that this
evidence was "adequate for conviction, but was always
circumstantial" an extraordinary one considering that the
sufficiency of the evidence was long ago decided. Although I am
sure unintended, the comment constitutes an inappropriate
diminution of Conley I, which cannot but have an influence on
future proceedings.
15
Although Conley previously argued that the Bullard and Brown
testimony were part of the new evidence justifying a new trial,
because neither the Bullard nor the Brown testimony can reasonably
be considered exculpatory, the testimonies' materiality need not be
assessed under Brady. Strickler, 527 U.S. at 281-82.
Additionally, at oral argument Conley's attorney conceded that
because the district court determined that the Bullard and Brown
evidence was not exculpatory, it was not part of Conley's current
Brady challenge.
-40-
A. The Bullard Testimony
Charles Bullard was a Boston security guard who was
riding in the same vehicle as Officer Cox when Cox's car came to a
stop at the end of Woodruff Way. Bullard testified before the
grand jury but was not called as a witness at trial. Six months
after Conley was convicted, Bullard testified in a civil suit
brought by Michael Cox against several officers.
In the civil trial, Bullard testified that Cox exited the
passenger side of the unmarked police cruiser and went forward to
the front of the Lexus. Bullard testified that he "lost track of
[Cox] after that," and that he never saw Cox run toward the fence.
According to Conley (who has argued that Cox did not run directly
to the fence), Bullard's testimony that Cox went to the front of
the Lexus, and not directly to the fence, contradicted Cox's
testimony and supported Conley's theory of events.
Although Bullard's subsequent civil trial testimony is
obviously not a matter which the government might have been
required to disclose under Brady, Conley has argued that Bullard's
civil trial testimony was sufficiently similar to his grand jury
testimony, such that the grand jury testimony should have been
disclosed to the defense. Conley's argument is based upon an
affidavit by Bullard, in which Bullard stated that to the best of
his recollection, his testimony before the grand jury was the same
as the testimony he gave before the civil trial.
-41-
The district court concluded that the Bullard Testimony
was not evidence that the government was required to disclose under
Brady. United States v. Conley, 103 F.Supp. 2d 45, 51-52 (D.Mass.
2000) ("Conley II"). The court found that Bullard's civil trial
testimony differed from his testimony before the grand jury in
material respects. Specifically, the court noted that in his grand
jury testimony, Bullard said nothing about Cox going forward to the
front of the Lexus; instead, he testified that "Cox jumped out and
went toward the right." Id. Because the Bullard Testimony is in
no way exculpatory, it does not come within the rubric of Brady.
Strickler, 527 U.S. 281-82.
B. The Brown Testimony
Conley claimed that Robert Brown perjured himself at
trial when he stated that state drug charges pending against him
were manufactured by Boston police in retaliation for his testimony
against Conley. According to the defense, the prosecution elicited
this testimony in order to lend credibility to Brown by portraying
him as having suffered for his testimony. See Conley II, 103
F.Supp. 2d at 52-54 (setting forth the perjury allegation in
considerable detail). Conley alleged that the prosecutor solicited
perjurious statements from Brown in direct examination and then
relied on those statements in his closing argument. Conley has
claimed that the government knew that Brown's statements were
-42-
perjurious because of a federal narcotics investigation against
Brown.
Although it is difficult to see how the Brown Testimony
might be brought under the ambit of Brady, that is not an issue
that needs to be addressed now because the district court
determined that Conley failed to show that the Brown Testimony was
perjurious. Id. at 54. The court found no evidence that Brown
perjured himself, and additionally, expressed skepticism that
evidence of a pending federal drug investigation against Brown
would have been admissible under Fed. R. Evid. 403, 404(b) and
608(b). Because the court concluded as a matter of law that there
was no perjury, there was no exculpatory evidence for the
government to disclose under Brady.
C. The Walker Evidence
At oral argument, the parties made two helpful and
important concessions regarding the scope and significance of the
Walker Evidence for Brady analysis purposes. For its part, the
government conceded that the Walker Evidence was in its possession
and should have been turned over to the defense under Brady and its
progeny. Consequently, we are not faced with any dispute regarding
what the government knew, or when it knew it.
Conley's attorney also narrowed the scope of our Brady
inquiry by providing us with what was described as a "complete
inventory" of the possible Brady material pertinent to the
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testimony of Richard Walker. Conley has identified four documents
relating to the Walker's testimony which he claims should have been
disclosed under Brady. These are: (1) Walker's March 27, 1995
testimony to the Internal Affairs Division ("IAD") of the Boston
Police Department (the "IAD Testimony"); (2) an internal FBI
memorandum concerning a proposed polygraph examination of Walker
("FBI Memorandum"); (3) a January 30, 1995 memorandum by Lieutenant
Kevin Foley of the BPD Anti-Gang Unit ("Foley Memorandum"); and (4)
a skeletal BPD report prepared by Walker on February 20, 1995 (the
"Skeletal Report").
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(1) Walker's IAD Testimony
On March 27, 1995, IAD agents interviewed Walker about
his observations on the night of the Cox assault. During the
interview, Walker was shown a group of photographs in order to
identify the plainclothes officers Walker observed at the bottom of
the incline.
When asked to describe the tall white male he saw at the
bottom of the hill, Walker testified, "All I know is he was a very
tall white male. He was medium build. I forget what he was
wearing." Walker was then given a group of photographs of officers
from the Anti-Gang Unit, a unit that Conley was not in, and asked
him to try to identify the officers he saw. During the interview,
Walker identified the photographs of two officers, Joseph Teahan
and Michael DeStefano. He was notably tentative in his
identification, stating, "Like I said, I'm not sure about these
photographs, but it looks like the tall officer."
Conley claims that he was prejudiced by the suppression
of the IAD Testimony because access to the testimony would have
enabled him to make an issue of Walker's credibility at trial. The
testimony would have allowed him to impeach Walker's memory of
events, because Walker's subsequent inability to identify the tall
white officer conflicts with the inference made at trial that
Conley was the tall white officer at the bottom of the hill.
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In response, the government offers a number of arguments
why the IAD Testimony offers no significant impeachment value, and
further, why Walker's unimpeached testimony helped, rather than
hurt, the defense's theory of the case.
First, the government argues that neither Walker nor the
government ever suggested that Walker could identify Conley as the
tall, white officer he observed. Instead, it was circumstantial
evidence, corroborated by Conley's own testimony, that established
that the tall, white officer was the same one he chased after and
to whom he returned the dropped radio.
Second, the "misidentification" evidence would have
actually weakened the defense offered at trial. That the tall,
white officer described by Walker's testimony was in fact Conley
was a point defense counsel diligently tried to prove at trial.
Placing Conley at the bottom of the hill ahead of Walker helped the
defense by allowing it to argue that Conley would not have had time
to witness Cox's beating before Conley scaled the fence. Defense
counsel's closing argument shows that Conley went to great lengths
to use the Walker testimony to prove that Walker observed Conley at
the bottom of the incline. Discussing Walker's testimony, defense
counsel stated, "I believe from the evidence it is fair to say that
there can be no doubt in your mind that the tall white officer in
plainclothes was Ken Conley." The defense alluded to the ample
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circumstantial evidence tending to show that the tall, white
officer was indeed Conley.
During the chase, the tall white officer
dropped his radio. Officer Walker says he
picked it up. And when the tall white officer
apprehended the suspect, put the cuffs on him,
with Walker assisting, he gave him back his
radio, you dropped this. Walker cannot
identify Ken Conley as being that officer. He
did not know him, he had not seen him before,
and, if you will note, he did not identify him
in this courtroom as being that officer. But
if you take that testimony in conjunction with
[Conley's] Grand Jury testimony that was read
to you, you will see that Ken Conley, when he
testified before the Grand Jury, said that
during the pursuit, I dropped my radio and a
black uniformed officer picked it up and gave
it to me. There is no doubt that Ken Conley
was the tall white officer who apprehended
Brown.
Tr. IV:51-52 (emphasis added). According to the government,
whatever impeachment value the IAD Testimony might have in the
abstract, it was never in Conley's interest to impeach Walker's
ability to recall events at Woodruff Way.
Finally, the government argues that the core of Walker's
testimony was that he observed Cox running closely behind Brown,
chasing him to the fence and reaching for him. This testimony was
corroborated by both Cox and Brown and stood in stark contrast to
Conley's statement that he followed Brown to the fence and did not
observe anyone chasing after Brown. Thus, although Walker's IAD
identifications may have sewn confusion about who was at the bottom
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of the hill, it was immaterial to the essence of Walker's
corroborated testimony.
(2) The FBI Memorandum
The second document in Conley's Brady claim is an FBI
memorandum concerning a proposed polygraph examination of Walker
regarding inconsistent statements he made in his accounts of the
assault. At Walker's first interview with IAD on February 23, 1995
(properly disclosed to the defense), Walker stated three times that
he saw someone he believed to be a police officer running behind
Cox as Cox chased the suspect to the fence. However, in subsequent
testimony (also disclosed), Walker made no mention of seeing anyone
running behind Cox.
When the federal investigation began and the government
reviewed Walker's IAD interview on April 9, 1997, investigators met
with Walker and questioned him about the discrepancy. After that
interview, investigators prepared a memorandum requesting
permission to polygraph Walker regarding the inconsistencies.
Walker agreed to take a polygraph examination. However, an
attorney representing Walker later notified the FBI that Walker
would decline to take the polygraph.
The FBI Memorandum, which was not turned over to the
defense, related: (1) Walker's initial willingness to submit to a
polygraph examination; (2) his present belief that he did not see
anyone running behind Cox; (3) that when investigators confronted
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him about the inconsistency between his present belief and his
prior statements, he explained that because of his friendship with
Cox, he must have "convinced himself that he actually saw someone
or something" when in fact he did not; and (4) that Walker
"suggested that perhaps if he was hypnotised [sic] he might truly
recall what was going on versus what he indicates was tunnel
vision."
Most of these facts ((1)-(3)) were thoroughly elicited in
Walker's testimony before the federal grand jury on June 5, 1997.
There, Walker testified that he did not see anyone running behind
Cox. During his grand jury testimony, Walker's IAD interview was
read back to him at length, and Walker was asked to explain the
discrepancy between his grand jury testimony and his prior
inconsistent statements. Walker acknowledged the inconsistency and
explained his prior statements by asserting that he was probably
motivated by a feeling of guilt "for not seeing more than [he]
saw."
Because Conley had access to the IAD interviews, as well
as Walker's grand jury testimony, the defense was in possession of
nearly all the information contained in the FBI Memorandum. It
already possessed substantial information regarding Walker's
inconsistent statements and his explanation of the discrepancy
between those statements. The only information Conley would have
gleaned from the disclosure of the FBI memorandum that he was not
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already in possession of was (1) that Walker consented to submit to
a polygraph examination (which he later refused to take); and (2)
the FBI's notes regarding Walker's cryptic statement that if
hypnotized, he might be better able to explain the discrepancy
between his inconsistent statements.
(3) The Foley Memorandum
Conley also alleges that a January 30, 1995 memorandum by
Lieutenant Kevin Foley of the BPD Anti-Gang Unit is Brady material
that must be considered in his challenge. The three-page memo,
prepared less than a week after the Cox assault, summarizes facts
that Foley believed justified launching an investigation into the
assault.
According to Conley, the Foley Memorandum states that
Officers Ryan and Teahan came upon Cox lying on a patch of ice as
they were returning to their police cars -- not when they arrived
on Woodruff way. This statement would support the defense view
that it was actually Ryan and Teahan who Walker encountered at the
bottom of the hill, not Conley.
The government argues that the Foley Memorandum proves
very little. First, the government notes that nowhere in the
report, written five days after the incident, does Foley indicate
that he spoke with members of the Gang Unit, much less Teahan or
Ryan in particular. Thus, whether Teahan and Ryan even gave a
conflicting account of their actions, or to whom, is not shown by
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the memorandum. Second, because Officers Teahan and Ryan gave
sworn testimony at trial and to previous grand juries contending
that they drove down the cul-de-sac and spotted Cox lying on the
ground, it is immaterial whether Lieutenant Foley believes they
were actually returning to their vehicle.
(4) Walker's Skeletal Report
The final piece of evidence in Conley's Brady claim is
Walker's February 20, 1995 report of events, which he was ordered
to write by his commanding officer. According to Conley, the
report is significant because it was prepared by Walker almost
contemporaneously with the assault, yet it lacks any of the facts
he recounted at trial. The report is indeed skeletal, containing
only a few sentences of text explaining the events on Woodruff Way.
Conley argues that its omissions could have been usefully exploited
during cross examination.
The government contends that although the skeletal report
does not contain any details, its usefulness for impeaching Walker
would be greatly diminished by the fact that in the same memo in
which Walker was instructed to write the report, he was ordered to
appear for an interview with IAD three days later. At that
interview, Walker gave a highly detailed accounting of his
observations.
III. Discussion
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Assuming that the four pieces of Walker Evidence should
have been disclosed under Brady, the withholding of evidence does
not warrant reversal except upon a showing of prejudice, that is,
unless there is a "reasonable probability that the suppressed
evidence would have produced a different verdict." Strickler, 527
U.S. at 281. In this context, "reasonable probability" means a
probability sufficient to undermine confidence in the outcome. See
Bagley, 473 U.S. 667, 682 (1985).
Failure to provide impeachment evidence, if the evidence
is powerful enough, can be prejudicial and grounds for a new trial.
United States v. Martínez-Medina, 279 F.3d 105, 126 (1st Cir.
2002). This is particularly true where the evidence is highly
impeaching or when the witness's testimony is uncorroborated and
essential to the conviction. Id.; see Giglio v. United States, 405
U.S. 150 (1972). On the other hand, impeachment evidence that is
merely cumulative or collateral is insufficient to establish
prejudice under Brady. See United States v. Dumas, 207 F.3d 11, 16
(1st Cir. 2000).
Considered collectively, the Walker Evidence could
possibly have been employed at trial to impeach Walker's ability to
accurately recall the events on Woodruff Way by showing: (1) that
he was unable to identify the officers at the bottom of the hill;
(2) that he made prior inconsistent statements about someone
chasing behind Cox; (3) that perhaps if he was "hypnotized," he
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might be able to recall events more clearly; and (4) that he
prepared an early report which was bereft of any details of the
events from the night of January 25, 1995. Additionally, Walker's
refusal to submit to a polygraph examination might, if admissible,
have impeached his overall reliability.
The question is whether this evidence "can reasonably be
taken to put the whole case in such a different light as to
undermine confidence in the verdict." Kyles, 514 U.S. at 435;
United States v. Josleyn, 206 F.3d 144, 156 (1st Cir. 2000). The
undisclosed impeachment evidence is, for the most part, minor and
cumulative. It is undisputed that Conley was in possession of
Walker's prior inconsistent statements regarding seeing someone
chasing behind Cox.16 Moreover, Conley was fully aware of the fact
that Walker was unable to identify the tall, white officer at the
bottom of the hill. Brady does not protect a defendant who is
aware of essential facts that would allow him to take advantage of
the exculpatory evidence at issue. See United States v. Hicks, 848
F.2d 1, 4 (1st Cir. 1988); Coleman v. Mitchell, 268 F.3d 417, 438
(6th Cir. 1990); United States v. Grossman, 843 F.2d 78, 85 (2d
Cir. 1988); Lugo v. Muñoz, 682 F.2d 7, 9-10 (1st Cir. 1982).
Setting aside information in the Walker Evidence that Conley
16
Indeed, Conley not only possessed evidence of Walker's prior
inconsistent statements and chose not to impeach Walker with them
at trial, the record indicates that the defense actually objected
to the government's attempt to introduce Walker's prior
inconsistent statements. See Tr. II at 51-52.
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already had knowledge of, Conley is only left with Walker's cryptic
hypnotism statement, his skeletal police report, and his refusal to
submit to a polygraph examination.17
Such weak impeachment evidence is not sufficient to
warrant the drastic remedy of a new trial. While Walker's
statement that if hypnotized, "he might truly recall what was going
on," does support the notion that he was uncertain about his memory
of the events on Woodruff Way; this does not undercut Walker's
testimony (corroborated by Cox and Brown) that he saw Cox chasing
Brown to the fence and that as Brown scaled the fence, Cox tried to
reach for him. Moreover, in the face of Walker's many detailed
statements (one of which was given three days after the memorandum
was prepared) the fact that his February 20, 1995 memorandum is
skeletal is immaterial.
Since it was never in Conley's interest to impeach the
credibility of Richard Walker, the exculpatory value of the
hypnotism statement and skeletal report is de minimus. During
cross examination and closing arguments, the defense attempted to
demonstrate circumstantially (through evidence of the dropped and
recovered radio) that Conley was the officer Walker saw at the
17
Conley has not shown how Walker's refusal to submit to a
polygraph examination would have been admissible at trial. See
deVries v. St. Paul Fire and Marine Ins. Co., 716 F.2d 939, 945
(1st Cir. 1983) (holding that evidence of a witnesses's refusal to
take a polygraph exam is inadmissible); Aetna Ins. Co. v. Barnett
Bros. Inc., 289 F.2d 30, 34 (8th Cir. 1961).
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bottom of the hill. This is not a strategy that Conley was stuck
with for lack of better evidence: Conley possessed -- and elected
not to use -- ample impeachment evidence undercutting Walker's
testimony. Conley had evidence that: (1) Walker and Cox were
friends; (2) that Walker felt guilty about not seeing more; (3)
that this guilt led to Walker making prior inconsistent statements;
and (4) that Walker believed that an "Officer Ryan" (rather than
Conley) was the officer who arrested Brown. Instead of using this
evidence, Conley chose to rely on Walker's testimony to establish
that Conley was down the hill, and therefore could not have
observed the beating, and further, that like Walker, Conley had
"tunnel vision" so he was not lying when he said he did not see Cox
chasing Brown. Therefore, Conley's argument that he would have
used the Walker Evidence to undercut Walker's testimony is
unavailing.
IV. Conclusion
Conley's Brady claim should not be remanded to the
district court. Both parties have requested that this Court make
the final Brady assessment, and the straightforward Brady
materiality issue presented here -- whether the existence of
withheld Walker documents shakes confidence in the jury verdict --
is highly amenable to resolution by this en banc Court.
I cannot conceive how any court could find that the
nondisclosure of the Walker Evidence undermines confidence in the
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outcome of Conley's trial. The impeachment evidence contained in
the four documents was largely minor and cumulative; much of the
information was already known to the defense. Finally, none of the
new evidence undercuts Walker's core testimony at trial --
corroborated by Cox and Brown -- that Walker observed Cox running
to the fence right behind Brown. The majority's decision today
needlessly postpones the inevitable day when this Court or another
finally concludes that there is no reasonable probability that, had
the Walker Evidence been properly disclosed, the results of
Conley's trial would have been different. I respectfully dissent.
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