In re:Auerhahn

United States Court of Appeals
For the First Circuit
No. 11-2206
IN RE: JEFFREY AUERHAHN
APPEAL FROM AN ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Before
Torruella, Ripple* and Howard,
Circuit Judges.
Nancy E. Kaufman, First Assistant Bar Counsel, Office of Bar
Counsel, for appellant.
Peter B. Krupp, with whom Max D. Stern was on brief, for
amicus curiae Massachusetts Association of Criminal Defense
Lawyers, Inc. in support of appellant.
Michael D. Ricciuti, with whom Michael DeMarco, Ryan M. Tosi,
Lindsay S. Bishop, and K&L Gates LLP were on brief, for appellee.
Vijay Shanker, Attorney, United States Department of Justice,
with whom Lanny A. Breuer, Assistant Attorney General, and John D.
Buretta, Acting Deputy Assistant Attorney General, were on brief,
for amicus curiae United States in support of appellee.
Lawrence J. Fox, John Reinstein, and Nancy Gertner on brief
for amici curiae legal academics in support of appellant.
July 22, 2013
*
Of the Seventh Circuit, sitting by designation.
HOWARD, Circuit Judge. Massachusetts Bar Counsel ("Bar
Counsel") appeals a decision by a three-judge panel of the United
States District Court for the District of Massachusetts dismissing
Bar Counsel's petition for disciplinary sanctions against Assistant
United States Attorney Jeffrey Auerhahn. We dismiss the appeal for
lack of jurisdiction.
I. Background
Following the revelation that Auerhahn and others had
withheld exculpatory information from two federal criminal
defendants who were convicted and served substantial terms in
prison, the Massachusetts district court asked Bar Counsel to
investigate Auerhahn's conduct and recommend whether to initiate
disciplinary proceedings. Bar Counsel did so, and the court
appointed a three-judge panel (the "Panel") to determine whether to
sanction Auerhahn. The Panel concluded that Auerhahn had not
violated any rules of professional conduct and declined to sanction
him. Bar Counsel appeals on the grounds that the Panel abused its
discretion and incorrectly interpreted the applicable disciplinary
rules. We begin with an abridged version of the Panel's findings
of fact, which are largely undisputed on appeal.
-2-
A. Investigation of Vincent Limoli's Murder
In 1985, the Department of Justice hired Auerhahn as a
special attorney assigned to the Organized Crime and Racketeering
Section of the New England Strike Force ("Strike Force"). He
remained with the Strike Force until 2005, when he was reassigned
to another unit in the United States Attorney's Office for the
District of Massachusetts, where he remains.
Among Auerhahn's duties while with the Strike Force were
the investigation and prosecution of members of the Patriarca crime
family of La Cosa Nostra, an organized criminal enterprise
operating in, among other places, Boston's North End neighborhood.
Early in his career with the Strike Force, Auerhahn became the lead
attorney in an investigation into whether Vincent Ferrara, a
"soldier" in La Cosa Nostra, was involved in the 1985 murder of
Vincent Limoli, an associate in a crew under Ferrara's direction.
Auerhahn worked closely with Martin Coleman, a Boston Police
Department detective, and Michael Buckley, an FBI special agent,
who were both assigned to the Strike Force. Auerhahn also worked
with Gregg Sullivan, another Assistant United States Attorney.
Limoli was murdered on October 28, 1985. Pasquale Barone
and Walter Jordan, who worked for Ferrara, were both seen with
Limoli shortly before his murder, and both fled Boston soon after
the murder.
-3-
In 1988, Ferrara was under investigation for his
potential involvement in numerous murders. In furtherance of the
investigation into these murders, Jordan was arrested on a material
witness warrant. Upon being arrested, Jordan quickly began
cooperating with the government and provided the Strike Force with
information on Ferrara, and on La Cosa Nostra generally. Jordan
entered into an agreement with the Department of Justice,
represented by Auerhahn, regarding his cooperation in the Ferrara
investigation. Under the agreement, Jordan was to provide full and
truthful knowledge about Ferrara and his enterprise to the
government in exchange for nearly complete immunity from any
related criminal prosecution, as well as entrance into the Federal
Witness Protection Program.
As part of his cooperation with the government, Jordan
spoke with several members of the Strike Force. He admitted to
having been involved in Limoli's murder and explained that Barone
killed Limoli on Ferrara's orders because Limoli had stolen a bag
containing cocaine, money, and guns from another associate of La
Cosa Nostra. Jordan's sole source of information about Ferrara's
involvement in the Limoli murder was Barone.
One week after his arrest, Jordan testified before a
grand jury to the details of Limoli's murder. Jordan testified
that Barone told him that Limoli had "gotten the 'X'" and was no
longer "under Vincent Ferrara's wing" because of Limoli's theft.
-4-
Regarding the murder itself, Jordan admitted that Barone asked him
to help by setting up a meeting with Limoli. Jordan arranged the
meeting with Limoli on the pretense of consummating a drug deal
with a third party. Instead, Barone met Limoli on his way to the
supposed drug deal and shot and killed him.
Jordan also testified to meetings in the days before and
after the murder. Several days before Limoli's murder, Jordan was
in a car with Barone and another La Cosa Nostra member named Joseph
Bottari. At that time, Barone solicited Bottari's assistance in
the murder, saying that "Jimmy had to be clipped" and that Ferrara
had ordered the hit. Bottari refused to help Barone with the
murder.
A few days after the Limoli murder, Jordan and Barone met
with Ferrara in a black Lincoln automobile. Ferrara was in the
front seat with another man who was unknown to Jordan. Ferrara
began asking questions about the Limoli murder that made it appear
that he was uninvolved. Jordan testified that he was confused by
Ferrara's questions and thought that Ferrara was trying to hide his
involvement in the murder from the unidentified person.
A day or two after the meeting in the black Lincoln,
Barone was summoned to a North End restaurant to meet with Ferrara.
Barone returned from the restaurant within thirty minutes,
"hysterical," and told Jordan that they needed to leave town
immediately because Ferrara was going to kill them. According to
-5-
Jordan, Barone told Jordan that he did not know why Ferrara wanted
to kill them.
On or about November 5, 1985 following Barone's meeting
at the restaurant, Jordan and Barone left Boston. Jordan went to
Myrtle Beach, South Carolina, where Barone visited him in the
summer of 1986. In his initial interviews, Jordan told FBI agent
Buckley that while they were in South Carolina, Barone discussed
killing Limoli and always asserted that Ferrara had ordered the
hit.
After his grand jury testimony, Jordan was relocated to
Maine to await federal witness protection services. During this
time, Jordan met extensively with members of the Strike Force,
including Auerhahn. The FBI reports on these interviews indicate
that Jordan consistently told the same story about Ferrara ordering
the murder of Limoli.
Barone was arrested in Ohio on July 22, 1988, and was
interviewed by two members of the Strike Force. Although Barone
initially appeared inclined to cooperate, he later ceased all
cooperation. In his brief period of cooperation with the
government, he largely corroborated Jordan's accounts. Although he
denied any involvement with Limoli's murder, Barone stated that the
reason for Limoli's murder was Limoli's theft. Barone also
confirmed the meetings with Ferrara in the black Lincoln and at the
restaurant.
-6-
Following further investigation, Barone and Ferrara were
among eight defendants named in a sixty-five count superseding
indictment filed in March 1990 in the United States District Court
for the District of Massachusetts. Several of these counts related
to Ferrara's and Barone's involvement in Limoli's murder. In order
to support comprehensive "RICO" charges that were also a part of
the indictment, the government had to establish a pattern of
racketeering and thus, at least as to Barone, had to prove that
Barone had conspired with Ferrara and others to murder Limoli in
order to gain, maintain, or advance their positions within the
Patriarca family. The government's main theory was that Barone
murdered Limoli on Ferrara's instruction in order to move up in La
Cosa Nostra and that Ferrara had ordered the hit to vindicate the
theft from a "made" La Cosa Nostra member. Jordan's testimony as
to Barone's statements that Ferrara had ordered the hit was,
therefore, crucial to proving the charges in the indictment.
B. Preparation for Trial
Between 1988 and 1991, Jordan was in the Witness
Protection Program. In anticipation of the trial of Barone and
Ferrara scheduled to begin in September 1991, Auerhahn, Sullivan,
Coleman, and Buckley met with Jordan in Salt Lake City, Utah from
July 22 to 24, 1991 (the "Utah meeting"). Auerhahn and Sullivan
took copious notes during the three days of meetings (the "Utah
notes").
-7-
In these interviews, Jordan again told the Strike Force
members about the restaurant meeting and Barone's visit to Myrtle
Beach. Jordan explained that when, in South Carolina, he again
asked Barone about why Ferrara wanted to kill them, Barone said
that he did not know. Jordan also told the Strike Force that his
parents told him that Barone was supposed to kill Jordan the night
that they killed Limoli because Jordan was a witness. These
statements are all reflected in the Utah notes. Concerned that
Jordan appeared to be waffling about the crucial link to Ferrara,
Sullivan instructed Coleman to talk to Jordan to shore him up.
Late on the night of July 24, 1991, Jordan visited
Coleman in his hotel room. Jordan disclosed that he had withheld
certain information concerning Ferrara's involvement in the Limoli
homicide. According to Bar Counsel, Jordan told Coleman that,
after Barone returned from the restaurant, Barone told Jordan that
Ferrara wanted to kill them because Barone had not obtained
Ferrara's permission to kill Limoli, and thus they had to flee
Boston (the "'no permission' statement"). According to Bar
Counsel, Jordan thus admitted to having lied when he previously
told investigators and the grand jury that Barone had told him
Ferrara had ordered the hit and that Barone did not know why
Ferrara wanted to kill them. In support of this contention, Bar
Counsel pointed to a handwritten memorandum, purportedly authored
by Coleman. According to the memorandum, Jordan told Coleman that
-8-
when Barone returned from the meeting in the North End restaurant,
Jordan learned that Barone "had fucked up, and did not get
permission to kill Jimmy Limoli."
By July 26, 1991, the Strike Force members had returned
to Boston. Coleman asked to meet privately with Auerhahn to report
on his visit with Jordan in Utah. When Coleman arrived at their
meeting, Auerhahn saw that he was, in Auerhahn's words, "very
agitated" and "almost near tears." Auerhahn even worried that
Coleman was "going to have a heart attack" because he was so upset.
Coleman reported to Auerhahn that Jordan had expressed discomfort
or uncertainty about some of the testimony that he was to give
regarding the Limoli murder.
Bar Counsel alleged in the district court disciplinary
proceedings that, in this meeting, Coleman told Auerhahn that
"information had been withheld, that Barone had said that [Ferrara]
did not order the hit." In other words, Bar Counsel alleged that
Coleman relayed the "no permission" statement to Auerhahn.
Auerhahn countered that Coleman never told him the details of
Jordan's statements. Instead, he claimed that, because Coleman was
so upset, he did not ask Coleman specifically what Jordan had told
Coleman in the July 24 Utah meeting. He did acknowledge, however,
that Coleman told him generally that Jordan had come to him in his
hotel room and admitted to withholding some information. Auerhahn
claimed that he told Coleman to calm down and that they would
-9-
figure out what Jordan said and deal with the repercussions.
Auerhahn did not instruct Coleman to document what Jordan told him
in Utah.
After his meeting with Coleman, Auerhahn decided that he
needed to figure out whether Jordan had been telling the truth
about Barone's statements or merely telling the government what he
thought that it wanted to hear. Auerhahn arranged for Jordan to
telephone from witness protection on July 29, 1991, and both
Auerhahn and Coleman were present for the phone call.
Bar Counsel argued that in this phone call, Jordan told
Auerhahn about the "no permission" statement. In support of this
contention, she again cited the purported Coleman handwritten
memorandum. Auerhahn did not recall any specifics of his phone
call with Jordan, but he was adamant that the call would not have
included the substance of any changed testimony because such
sensitive discussions would only have taken place face-to-face.
Whatever the substance of the telephone conversation with
Jordan, Auerhahn arranged to meet with him in Minneapolis,
Minnesota, which occurred on August 27 and 28, 1991 (the "Minnesota
meeting"). Coleman and Buckley also attended this meeting.
Auerhahn testified that in Minnesota, Jordan told him
about an event in Myrtle Beach in which Barone, after first saying
that Ferrara had not ordered the hit on Limoli, immediately
retracted that statement or said that he was joking (the "Myrtle
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Beach statement"). According to Auerhahn, Jordan was
"flip-flopping" in the Minnesota meeting as to whether, in South
Carolina, Barone had said Ferrara did or did not order the hit.
Auerhahn took notes, but not as copiously as he had in
Utah. Rather than creating a separate set of notes from the
meeting, as was his practice, Auerhahn added the information that
he garnered at this meeting to a trial outline that he had begun to
prepare at some point after the phone call with Jordan (the
"Minnesota notes"). Most of the notes reflect Jordan's original
account. For example, the outline indicates that Barone "wouldn't
say why" Ferrara wanted to kill Barone and Jordan. The outline
also reflects a few other statements, however. One note says that
Barone told Jordan that they had to leave Boston because Jordan was
also supposed to get "whacked." Another note states that Ferrara
might have wanted to kill them because he "didn't approve or order
murder," but the note also records that this was said "in South
Carolina one time" and that Jordan "pressed [Barone] on it." The
notes do not make any mention of Barone having retracted the
statement or otherwise having indicated that he was joking about
Ferrara not ordering the hit.
In preparation for the trial of Ferrara and Barone,
Auerhahn filed a trial brief with the court on October 16, 1991,
setting forth the evidence upon which the government planned to
rely. Auerhahn's brief represented that Jordan would "testify to
-11-
Barone's statement that Limoli was killed on the orders of Vincent
Ferrara."
C. Ferrara's Plea and Barone's Conviction
The trial did not begin in the fall of 1991 as planned.
On January 22, 1992, Ferrara pleaded guilty to, among other
charges, murder in aid of racketeering and conspiracy to commit
murder in the homicide of Limoli, and he was sentenced to
twenty-two years in prison. Up to this time, Auerhahn had never
disclosed the "no permission" statement or the Myrtle Beach
statement to Ferrara's counsel.
In May 1992, Ferrara's and Barone's codefendant Raymond
Patriarca pleaded guilty to several charges and was facing
sentencing. Auerhahn wrote a letter, dated May 8, 1992, to
Patriarca's attorney,1 providing discovery material in connection
with the sentencing hearing, in which he stated:
Shortly after the murder, Jordan fled Boston
at the direction of Barone. (Barone fled as
well.) Some time later, Jordan learned the
reason why he and Barone were forced to flee.
Jordan learned that Barone was supposed to use
Jordan to set up Limoli and then kill Limoli
and Jordan on the night of October 28, 1985.
For failing to follow the order from Vincent
M. Ferrara, and for sparing the life of his
brother-in-law, Barone had incurred the wrath
of Ferrara and proven to be unreliable.
Therefore, both Barone and Jordan were in
jeopardy if they remained in Boston. On one
occasion, however, Barone provided a different
reason which compelled Barone and Jordan's
1
The district court received a courtesy copy of this letter.
-12-
flight from Boston. Prior to learning that he
too was to be killed, Jordan was told by
Barone that they had to leave Boston because
Barone did not get permission to kill Limoli.
When Jordan pressed Barone on this, Barone
immediately retracted the statement, and
reiterated that the murder was at Ferrara's
direction. Thereafter, Barone never again
stated that the murder was anything but a
sanctioned hit.
This was the first disclosure Auerhahn made to defense
counsel or the court that Barone had ever told Jordan, on any
occasion, that Ferrara had not ordered Limoli's murder or that
Jordan had made a statement inconsistent with his grand jury
testimony.2 Auerhahn, therefore, did not disclose the substance of
the Myrtle Beach statement to defense counsel for nearly a year
after he learned it, and not until after Ferrara and Patriarca had
already pleaded guilty.
Barone went to trial in 1993, and Jordan testified. In
pretrial preparations with Auerhahn and Sullivan, Jordan did not
equivocate in his statements that Barone had told him that Ferrara
had ordered the Limoli murder. On May 28, 1993, in anticipation of
the trial, Sullivan sent a letter on behalf of the government to
Barone's counsel. This letter provided details of Jordan's
anticipated testimony and, among other things, made the same
2
When asked why he disclosed the Myrtle Beach statement to
Patriarca's counsel, Auerhahn testified that they "were litigating
Patriarca's sentencing, so [the disclosure] was relative to that
sentencing."
-13-
disclosure as quoted above from the 1992 letter to Patriarca's
attorney.
During Barone's trial, Jordan testified in a manner
largely consistent with his grand jury testimony and his statements
that Ferrara had ordered the hit. Jordan also testified that
Ferrara had been involved in several other La Cosa Nostra murders.
The testimony about these other murders had not been disclosed in
Jordan's grand jury testimony or in any FBI report or note from
Sullivan or Auerhahn which had been turned over to defense counsel.
Buckley was called to the stand and cross-examined about these
other murders. He testified that the murders had been discussed in
several meetings, including meetings in 1991 when Sullivan and
Auerhahn had been taking notes. Defense counsel requested a copy
of the prosecutors' notes reflecting their meetings with Jordan in
1988 and 1991. In response to an inquiry by the district judge,
Auerhahn represented that he had no notes from the 1988 debriefing
sessions with Jordan, but that he did have "extensive notes from
the Summer of 91." Auerhahn, however, took the position that those
notes were not discoverable. The court concluded that the notes
might be discoverable if they contained exculpatory information but
acknowledged that attorney work product would have to be redacted.
The judge directed Auerhahn to provide him, in camera, those
portions of the 1991 notes that covered the additional homicides
-14-
about which Jordan had testified. Auerhahn turned over portions of
the Utah notes.
On October 29, 1993, Barone was convicted and sentenced
to life in prison for conspiracy to commit murder in aid of
racketeering and twenty years each for two other counts. Both
Barone and Ferrara later filed petitions pursuant to 28 U.S.C.
§ 2255 to vacate, set aside, or correct their sentences.
D. Habeas Corpus Proceedings
In May 2002, just before Barone was eligible for parole,
Jordan contacted the Strike Force and alleged government corruption
in the Ferrara and Barone cases. After Jordan testified regarding
intimidation he claimed to have felt from the government to say
that Ferrara had ordered the murder of Limoli, Barone and Ferrara
amended their § 2255 petitions. A Department of Justice Task Force
investigated Jordan's perjury claims, and on September 3, 2003, the
court began hearing testimony concerning these allegations in
connection with Barone's and Ferrara's habeas proceedings.
In a conference before the hearing, the court inquired
about notes or reports from the government's initial preparation of
Jordan. Upon learning that these notes had not been disclosed in
the habeas proceedings, the court ordered the government to produce
to defense counsel "any reports or notes made by any participant in
the [Utah] meeting regarding any discussion with Jordan at any
time."
-15-
Auerhahn responded to the order by turning over only his
Utah notes. Auerhahn did not provide the court with the Minnesota
notes, which contained his handwritten trial outline of Jordan's
expected testimony. On September 5, 2003, during the course of the
habeas hearings, Auerhahn testified that he did not find any
separate notes from the Minnesota meeting. He stated that he was
surprised not to find any notes from that meeting because it was
his usual practice to take notes during trial preparation.
Auerhahn testified that it was possible that he had the Utah notes
with him in Minnesota and that he might have just added to those
notes.
Sometime between September 5 and September 24, Auerhahn
produced the Minnesota notes to government counsel. These notes
had never before been produced. On September 24, as the habeas
hearing continued, Auerhahn testified that he found the outline
when he went through his files with more care and attention.3
On October 3, 2003, the district judge informed the
parties that he would grant Barone's habeas petition. Barone
subsequently negotiated a plea agreement that resulted in his
immediate release from prison. On April 12, 2005, the judge, based
on findings highly critical of Auerhahn's professional conduct,4
3
From this point forward, our discussion is not taken from
the Panel's findings of fact.
4
In Auerhahn's disciplinary proceedings, the Panel chose not
to rely on the district judge's findings for two reasons. First,
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allowed Ferrara's habeas petition, vacated Ferrara's original
sentence, and sentenced him to time served with three years of
supervised release. Ferrara v. United States, 384 F. Supp. 2d 384(D. Mass. 2005); Ferrara v. United States, 372 F. Supp. 2d 108 (D.
Mass. 2005). We affirmed this decision. Ferrara v. United States,
456 F.3d 278 (1st Cir. 2006).
E. Disciplinary Proceedings Against Auerhahn
On January 10, 2005, the Office of Professional
Responsibility of the Department of Justice ("OPR") issued a
112–page report, finding that Auerhahn acted in reckless disregard
of discovery obligations by failing to document Jordan's statements
at the Utah meeting, and that he exercised poor judgment by failing
to comply with the court order to submit his notes from meetings
with Jordan. As a result, the United States Attorney privately
disciplined Auerhahn in the form of a written reprimand.
By letter dated June 29, 2007, the district judge
requested that Bar Counsel initiate disciplinary action against
Auerhahn. The judge also informed the United States Attorney
General that the court was initiating disciplinary action because
he did not find the OPR sanction to be appropriate. The same day,
the court referred the matter to Bar Counsel.
the habeas proceedings involved a lower standard of proof of the
government's misconduct. Second, Auerhahn was not personally
represented in the habeas proceedings.
-17-
Bar Counsel reviewed the pleadings and transcripts from
the criminal cases and habeas proceedings, the materials that OPR
compiled for its investigation, and correspondence that Auerhahn
sent to Bar Counsel. Bar Counsel also met with Auerhahn and other
persons with knowledge of the matter. Based on her investigation,
Bar Counsel filed a petition for an order to show cause why
Auerhahn should not be disciplined. Although Bar Counsel's
petition did not set forth specific counts, it alleged three
categories of misconduct.
The first category of alleged misconduct arose from
Auerhahn's failure to disclose to Barone's and Ferrara's counsel
the "no permission" statement and the Myrtle Beach statement.
Specifically, Bar Counsel alleged that Auerhahn should have
instructed Coleman to memorialize what Jordan told him in Utah,
should have disclosed notes based on the Utah meeting, and should
have memorialized Jordan's statements at the Minnesota meeting.
Bar Counsel asserted that Auerhahn's conduct violated several
disciplinary rules, two of which are relevant on appeal. One rule
stated,
A public prosecutor or other government lawyer
in criminal litigation shall make timely
disclosure to counsel for the defendant . . .
of the existence of evidence, known to the
prosecutor or other government lawyer, that
tends to negate the guilt of the accused,
mitigate the degree of the offense, or reduce
the punishment.
-18-
Mass. Sup. Jud. Ct. R. 3:07, Canon Seven, Disciplinary R. 7-103(B)
(1990) ("Rule 7-103(B)").5 The other stated,
It is unprofessional conduct for a prosecutor
to fail to make timely disclosure to the
defense of the existence of evidence, known to
him, supporting the innocence of the
defendant. He should at the earliest feasible
opportunity, disclose evidence which would
tend to negate the guilt of the accused or
mitigate the degree of the offense or reduce
the punishment.
Mass. Sup. Jud. Ct. R. 3:08, Prosecution Function 7(a) (1990)
("Prosecution Function 7(a)").
The second category of alleged misconduct involved the
presiding judge's order at Barone's trial that Auerhahn provide
those portions of his notes that covered the additional homicides
about which Jordan had testified. Auerhahn turned over portions of
the Utah notes, but not the Minnesota notes. Auerhahn later told
OPR investigators that he had withheld the Minnesota notes because
he considered them to be a trial outline and thus protected work
product. Bar Counsel contended that by representing that he had
complied with the district court's disclosure order, Auerhahn
violated rules prohibiting attorneys from making false statements
and disregarding court rules.
5
At the time of the alleged misconduct, Massachusetts state
disciplinary rules applied to federal prosecutors in the
Massachusetts district court by virtue of a local rule. D. Mass.
R. 83.6(4)(B) (1990). Congress later enacted a statute subjecting
all federal prosecutors to state disciplinary rules. 28 U.S.C.
§ 530B (1998).
-19-
The third category of alleged misconduct concerned
Auerhahn's delay in producing the Minnesota notes during Ferrara's
and Barone's habeas proceedings. Bar Counsel claimed that Auerhahn
intentionally failed to produce the Minnesota notes, violating
disciplinary rules requiring compliance with the court's rules and
prohibiting dishonesty.
The court concluded that Bar Counsel's petition provided
probable cause to believe that Auerhahn had engaged in the alleged
misconduct, and it ordered Auerhahn to show cause why he should not
be disciplined. Auerhahn answered the petition, and the court
appointed the Panel to determine whether to discipline him.
On July 7, 2010, one of the Panel's judges issued an
order, docketed as a "Procedural Order," which described the
petition as alleging not three, but two categories of professional
misconduct: (1) failing to preserve and disclose to defense counsel
exculpatory evidence in the Ferrara and Barone prosecutions, and
(2) failing to produce the trial outline (that is, the Minnesota
notes) in response to the court's order in the habeas corpus
proceedings. The procedural order did not mention Auerhahn's
failure to produce the Minnesota notes for in camera review in
response to the judge's order during Barone's trial. Bar Counsel
filed a "Clarification," which highlighted the allegations that the
Panel had apparently set aside and asked the court to consider
documents relevant to these allegations when determining the scope
-20-
of the record. The court denied Bar Counsel's request, saying only
that "Bar Counsel's motion to 'clarify' the issues by adding a
third, is denied."
F. The Panel's Opinion
Following briefing, oral argument, and review of the
record, the Panel denied Bar Counsel's petition in all respects.
First, the Panel rejected Bar Counsel's argument that
Auerhahn violated Rule 7-103 and Prosecution Function 7(a) by
failing to disclose Barone's post-restaurant-meeting "no
permission" statement. Although the statement would have been
exculpatory -- the Panel stated that "a fair portion of the
government's RICO case would have crumbled" if the statement were
true -- Bar Counsel failed to prove by clear and convincing
evidence that Auerhahn ever learned of the statement, if it was
made at all. The record did contain a handwritten memorandum by
Coleman recounting Jordan's statement that Ferrara wanted to kill
Barone and Jordan because Barone did not have Ferrara's permission
to kill Limoli, but the memorandum's provenance made it
insufficiently reliable to establish the content of Jordan's
conversation with Coleman.6 Moreover, even if Jordan made the "no
permission" statement to Coleman in their Utah meeting, Bar Counsel
6
On appeal, Bar Counsel accepts the Panel's finding that
Coleman's memorandum was insufficiently reliable. Based on other
evidence, one member of the Panel concluded that Jordan did tell
Coleman about the "no permission" statement.
-21-
failed to prove that Coleman then relayed the statement to Auerhahn
when they met in Boston. Although a "very agitated" Coleman told
Auerhahn about Jordan's discomfort with his upcoming testimony,
Auerhahn testified during the OPR investigation that Coleman's
agitation came not from any seriously damaging statement by Jordan,
but from being told something in confidence and the possibility of
Jordan trying to "play[]" Coleman by discrediting himself to avoid
having to testify. The majority of the Panel found Auerhahn's
explanation plausible enough to preclude a finding that Auerhahn
had actual knowledge of the "no permission" statement.
A majority of the Panel also determined that Bar Counsel
failed to prove that Auerhahn's course of action after his meeting
with Coleman in Boston violated a disciplinary rule prohibiting a
prosecutor from intentionally avoiding the pursuit of evidence.
The Panel determined that Auerhahn did not carefully document the
Minnesota meeting, but it held that Auerhahn's lack of diligence
was not equivalent to intentional avoidance of evidence, and thus
was not sanctionable.7
The Panel then turned to Auerhahn's failure to disclose,
to Barone and Ferrara, Barone's Myrtle Beach statement that Ferrara
had not ordered the hit. Based on Auerhahn's notes from the
Minnesota meeting, the Panel found that, as of August 28, 1991,
7
One member of the panel would have found that, after the
Minnesota meeting, Auerhahn violated a disciplinary rule by failing
to ask Coleman what Jordan had told him in Utah.
-22-
Auerhahn was aware of some strain of the Myrtle Beach statement
(that is, that Barone had said that Ferrara did not order Limoli's
murder but immediately retracted that statement or said that he was
joking). Nevertheless, Auerhahn had not disclosed the Myrtle Beach
statement when Ferrara pled guilty in January 1992 to conspiring to
murder Limoli and was sentenced to twenty-two years in prison. The
government did not disclose the Myrtle Beach statement to Barone's
counsel until May 1993, shortly before Barone's trial.
The Panel ruled that Auerhahn did not violate any
disciplinary rules by failing to disclose the Myrtle Beach
statement. With respect to Ferrara's plea, the Panel stated that
"[t]his version of what Barone said to Jordan was mildly
exculpatory both on its face and as an inconsistency with Jordan's
other testimony, but it is not likely that, without more, it would
have substantially affected the jury's decision, especially because
the rest of Jordan's testimony tended to inculpate Ferrara." In re
Auerhahn, MBD No. 09-10206, 2011 WL 4352350, at *11 (D. Mass. Sept.
15, 2011) (citations omitted). Accordingly, "[e]arlier disclosure
of the Myrtle Beach statement . . . simply would have made no
significant difference to Ferrara's plea discussions." Id. at *15.
With respect to Barone's trial and conviction, the Panel held that
the government's disclosure to Barone was timely because "it was
eventually disclosed to defense counsel before Jordan testified."
Id.-23-
Finally, the Panel decided that Auerhahn did not violate
his professional responsibilities when he delayed in producing the
Minnesota notes in response to the court's order during the habeas
proceedings in 2003. Although Auerhahn's counsel conceded that
Auerhahn's inital response to the court's order was negligent, the
Panel held that negligence is insufficient to establish a violation
of the relevant rule. Thus, the Panel denied Bar Counsel's
petition for sanctions.
G. Bar Counsel's Appeal
Bar Counsel appealed, listing herself as the appellant in
the docketing statement. Bar Counsel claims that the Panel made
three errors: it required Bar Counsel to prove her case by clear
and convincing evidence rather than by a preponderance of the
evidence, it eliminated charges relating to Auerhahn's failure to
disclose the Minnesota notes in the Barone trial, and it
interpreted the disciplinary rules as permitting Auerhahn to
withhold the Myrtle Beach statement.
Auerhahn moved for summary disposition on the grounds
that Bar Counsel had no standing to appeal the Panel's order. We
denied summary disposition but asked the parties to address this
issue in their briefs.
II. Analysis
In every case, we must satisfy ourselves of jurisdiction.
García-Velázquez v. Frito Lay Snacks Caribbean, 358 F.3d 6, 8 (1st
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Cir. 2004). Auerhahn contends that we lack jurisdiction because
Bar Counsel has no standing to appeal the Panel's order. Bar
Counsel responds that her interest in this case suffices to confer
standing to appeal. For the reasons below, we hold that Bar
Counsel lacks standing to appeal.
Generally, "only parties to a lawsuit, or those that
properly become parties, may appeal an adverse judgment." Marino
v. Ortiz, 484 U.S. 301, 304 (1988). Exceptions to this rule are
limited. Nat'l Ass'n of Chain Drug Stores v. New England
Carpenters Health Benefits Fund, 582 F.3d 30, 41 (1st Cir. 2009);
Microsystems Software, Inc. v. Scandinavia Online AB, 226 F.3d 35,
39-40 (1st Cir. 2000). In disciplinary proceedings, the
complainant who brings an attorney's alleged misconduct to the
court's attention may not appeal the court's decision. In re Att'y
Disciplinary Appeal, 650 F.3d 202, 202-05 (2d Cir. 2011); see Ramos
Colon v. U.S. Att'y for the Dist. of P.R., 576 F.2d 1, 5-6, 8-9
(1st Cir. 1978). The Seventh Circuit has held that even a United
States Attorney who filed a petition for disciplinary action could
not appeal the decision of a disciplinary panel without the
district court's permission. In re Echeles, 430 F.2d 347, 350-51
(7th Cir. 1970); In re Teitelbaum, 253 F.2d 1, 1-3 (7th Cir. 1958).
Bar Counsel concedes that a private party may not appeal a
disciplinary panel's decision, but she asserts that she
investigated and prosecuted Auerhahn's case "as a party without
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limitation." As a result, Bar Counsel argues, she has standing to
appeal the Panel's decision.
To determine whether Bar Counsel can pursue this appeal
as a party, we first examine the Massachusetts district court rules
under which she was appointed. When alleged misconduct comes to
the attention of a judicial officer, "the judicial officer may
refer the matter to counsel for investigation, the prosecution of
a formal disciplinary proceeding or the formulation of such other
recommendation as may be appropriate." D. Mass. R. ("Local
Rule") 83.6(5)(A). The court must appoint either Bar Counsel or
another "disciplinary agency which the court deems suitable."
Local Rule 83.6(9)(A). If Bar Counsel or another agency declines
the appointment, the court must appoint "one or more members of the
[court's] bar." Id. "Counsel, once appointed, may not resign
without permission of [the] court." Id. Here, the judge referred
the matter to Bar Counsel, who accepted the appointment.
After her appointment, Bar Counsel investigated
Auerhahn's conduct. Following the procedure required by Local
Rule 83.6(5)(C), Bar Counsel then petitioned the court for an order
to show cause why Auerhahn should not be disciplined. The court
issued the order, and Auerhahn answered the petition. Pursuant to
Local Rule 83.6(5)(D), a panel of three district judges was
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appointed to hear the matter.8 After deciding motions about the
scope of the charges against Auerhahn and the evidentiary record,
the Panel heard oral argument from attorneys for Bar Counsel and
Auerhahn. The Panel denied Bar Counsel's petition for disciplinary
sanctions, and Bar Counsel filed a notice of appeal as "the
petitioner in the above named case [i.e., In the Matter of Jeffrey
Auerhahn]." Bar Counsel does not claim that this appeal was
authorized by the chief judge, by the next most senior judge who
appointed the Panel, by the Panel itself, or by the district court
judges acting either collectively or pursuant to a delegation
procedure.
We hold that Bar Counsel was not a party to Auerhahn's
disciplinary proceedings and thus may not appeal the Panel's
decision. Under the Local Rules, Bar Counsel was appointed as
"counsel," not as a party. Nor does Bar Counsel's name appear in
the caption of the case. Unlike a prosecutor, Bar Counsel was
appointed to assist the district court in carrying out its own
disciplinary proceedings--a task that the district court could have
assigned to any member of its bar.9
8
Under Local Rule 83.6(5)(D), the chief judge of the district
court sets the matter for a hearing before a three-judge panel,
unless the chief judge is the complainant, in which case the next
most senior judge assumes the chief judge's responsibilities.
Here, the chief judge was the complainant, so the next most senior
judge set Auerhahn's hearing and appointed the panel.
9
Unlike the Local Rules, the rules of the Massachusetts
Supreme Judicial Court explicitly permit Bar Counsel to appeal a
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Because there is little precedent for an appeal of a
district court's decision not to impose discipline, we also look
for guidance in the law governing appeals from the somewhat
analogous circumstances of a district court's dismissal of a
contempt proceeding. The United States may appeal such a
dismissal, but this authority is statutory. 18 U.S.C. § 3731;
United States v. Goldman, 277 U.S. 229 (1928). By contrast, no
statute or rule permits Bar Counsel to appeal the Panel's decision.
We believe that Bar Counsel is more akin to the private prosecutors
in United States v. McKenzie, 735 F.2d 907 (5th Cir. 1984), whom
the district court appointed to advocate criminal contempt for
violation of a production order. The district court eventually
dismissed the contempt proceedings, and the private prosecutors
appealed. The Fifth Circuit dismissed the appeal:
The dismissal of the [contempt] proceedings
effectively revokes the prosecutors'
appointment. . . . The private prosecutors
who derived their representation authority
wholly from the district court . . . have had
that authority wholly terminated by that same
identical court. . . . The private
prosecutors therefore no longer represent the
court; they appeal on their own behalf from
the court's denial of their application for a
show-cause order. Consequently, this Court
has no jurisdiction over this peculiar appeal.
decision not to discipline an attorney. Mass. Sup. Jud. Ct.
R. 4:01 § 8(6).
-28-
Id. at 911-12. For the same reason, Bar Counsel's formal
involvement in this proceeding ended when the district court denied
Bar Counsel's petition.
If any entity has standing to appeal the denial of Bar
Counsel's petition, it is the district court itself. A district
court may defend its rules in its own court and on appeal, see
Stern v. U.S. Dist. Court for the Dist. of Mass., 214 F.3d 4 (1st
Cir. 2000), and it may appeal a ruling by another court
invalidating its rules, see Whitehouse v. U.S. Dist. Court for the
Dist. of R.I., 53 F.3d 1349 (1st Cir. 1995). Although a district
court may have little incentive to appeal its own decision, such an
appeal could be appropriate when the district court believes that
the court of appeals should clarify or change the applicable law.
See In re Echeles, 430 F.2d at 350-51 (allowing an appeal of a
denial of a petition for disbarment when the district court
authorized the appeal). Because the district court did not appeal
or authorize the Panel's decision, Bar Counsel cannot pursue this
appeal on behalf of the district court.
Although Bar Counsel cannot appeal because she was not a
party to this action, Ramos Colon, 576 F.2d at 8-9, we will also
evaluate our power of advisory mandamus pursuant to the All Writs
Act, which allows federal courts to "issue all writs necessary or
appropriate in aid of" their jurisdiction. 28 U.S.C. § 1651. That
act permits this court to "treat an attempted appeal from an
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unappealable (or possibly unappealable) order as a petition for a
writ of mandamus." United States v. Horn, 29 F.3d 754, 769 (1st
Cir. 1994). We have explained that
advisory mandamus is available only in a tiny
subset of cases. Such cases are those that
present novel questions of great significance
which, if not immediately addressed, are
likely to recur and to evade effective review.
The aim of advisory mandamus, then, is to
settle substantial questions of law in
circumstances that would assist other jurists,
parties, [and] lawyers. To obtain relief
under this species of mandamus, the petitioner
does not need to show irreparable harm.
United States v. Green, 407 F.3d 434, 439 (1st Cir. 2005)
(citations omitted) (internal quotation marks omitted) (alteration
in original). Here, the Panel ruled on two issues of great
importance. First, the Panel decided that a prosecutor's ethical
obligations do not require disclosure of all exculpatory evidence
to a defendant, holding that a prosecutor may withhold certain
exculpatory evidence, such as evidence not required to be disclosed
under Brady v. Maryland, 373 U.S. 83 (1963). Second, the Panel
held that disclosure of exculpatory evidence could be timely as
long as it occurred before trial, even if the prosecutor withheld
the evidence for years. Appellate rulings on these issues would
"assist other jurists, parties, [and] lawyers." Green, 407 F.3d at
439 (alteration in original) (citation omitted) (internal quotation
marks omitted).
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Nevertheless, to qualify for advisory mandamus, Bar
Counsel must present a justiciable "Case[]" or "Controvers[y]"
within the meaning of Article III of the Constitution. "[T]he core
component of standing is an essential and unchanging part of the
case-or-controversy requirement of Article III." Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992). Constitutional
standing requires an "injury in fact," a "causal connection between
the injury and the conduct complained of," and a likelihood that
"the injury will be redressed by a favorable decision." Id. at
560-61 (citations omitted) (internal quotation marks omitted).
Bar Counsel does have a general interest in this case:
beyond its role as counsel to the district court, Bar Counsel is
charged with investigating and prosecuting attorney misconduct in
Massachusetts. Mass. Sup. Jud. Ct. R. 4:01 § 7. Here, Bar Counsel
argues that the district court misinterpreted Massachusetts state
disciplinary rules by, among other things, reading inappropriate
qualifications into rules governing disclosure by prosecutors. But
"an asserted right to have the Government act in accordance with
law is not sufficient, standing alone, to confer jurisdiction on a
federal court." Allen v. Wright, 468 U.S. 737, 754 (1984). The
Supreme Court recently reiterated this principle in Hollingsworth
v. Perry, 133 S. Ct. 2652 (2013), when it held that a group
permitted by California law to represent the State's interest in
the validity of a ballot initiate nevertheless lacked standing to
-31-
appeal a decision of the district court when the State itself
declined to appeal. The Court based its decision partly on the
petitioners' lack of an agency relationship with the State.
Bar Counsel's claim to standing is weaker than that of
the petitioners in Hollingsworth, since no law vests Bar Counsel
with the district court's interest in disciplinary enforcement.
Bar Counsel arguably had a particular interest in this case by
virtue of Local Rules 83.6(5)(A) and 83.6(9)(A), which allowed the
district court to refer the matter to Bar Counsel. But, as we
explained above, that particular interest expired when the district
court denied Bar Counsel's petition for sanctions. Cf. McKenzie,
735 F.2d at 911-12 ("The dismissal of the [contempt] proceedings
effectively revokes the prosecutors' appointment. . . . The
private prosecutors who derived their representation authority
wholly from the district court . . . have had that authority wholly
terminated by that same identical court."). Any agency
relationship between Bar Counsel and the district court expired at
the same moment. Therefore, we conclude that Bar Counsel lacks
standing to appeal the district court's decision.10
10
Our decision does not necessarily imply that we agree with
the district court's decision or condone Auerhahn's conduct. We
have discussed our view of Auerhahn's conduct in Ferrara v. United
States, 456 F.3d 278 (1st Cir. 2006).
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III. Conclusion
Because Bar Counsel lacks standing to appeal the district
court's decision, the appeal is dismissed for lack of jurisdiction.
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