USA v. Flynn CR-92-18-2-SD 02/22/96 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 92-18-2-SD

Charles J. Flynn

O R D E R

As directed by the Court of Appeals, an evidentiary hearing

in this matter was held in November and December of 1995. Some

24 witnesses testified over a period of six days, and some 45

exhibits were introduced in the course of such hearing.

Subseguently, the court reviewed the 24 volumes of documents

which comprise the file of the Federal Bureau of Investigation

(FBI). Exhibit 46. The court also reviewed the five volumes of

documents compiled by the New Hampshire State Police (NHSP).

Exhibit 47.

At trial in the fall of 1992, the court reviewed, in camera,

a number of documents which were marked in a group as Trial

Exhibit 275. On the remands from the Court of Appeals, all of

these documents were not returned to this court. Accordingly,

Exhibit 57 6 was created to contain those copies of documents from

Trial Exhibit 275 which were not here returned. Exhibit 541 contains the documents introduced in the course of the

evidentiary hearing held in December of 1994.

At the 1995 hearing, testimony was first elicited from the

law enforcement officers who had interviewed the trial

witnesses.1 In each instance, the interviewing officer

identified the witness interviewed and the dates and number of

pages of each such interview. Each such interview report was

then marked as an exhibit.

The interviewing officers were followed to the stand by a

number of trial witnesses who had been the subject of such

interviews. In turn appeared cooperating witnesses who had

originally been named as co-defendants in the indictment. A

number of the earlier-testifying witnesses were then recalled.

Laura MacPherson was employed at the First NH Bank in

Stratham, New Hampshire, at the time the bank was victimized by

armed robbery on September 9, 1991. She was interviewed by FBI

Agent Ryan, Exhibits 8, 541-3; 8A, 541-2; 576-5; by Officer

Forbes, Exhibit 11, 576-6; and by Officer Symmonds, Exhibit 40,

1In order of appearance, these witnesses included Agents Shaun Rafferty, Ralph Gault, and Thomas G. Ryan, Jr., of the FBI; Officers Colon Forbes and Francis Breen of NHSP; Officer Thomas Lyons of the Hampton, New Hampshire, Police Department; and Officer Michael Symmonds of NHSP.

2 57 6-7. She also gave a statement to a bank employee. Exhibit

42, 541-3.2

With the exception of the statement given to a co-employee,

Ms. MacPherson had not seen the reports of interviews or any

notes thereof prior to her testimony at trial. Trial Transcript

(Tr.), Oct. 8, 1992, at 120; Tr. Nov. 21, 1995, at 19-21.

None of these notes, or typed documents made therefrom, vary

significantly from the testimony of the witness at trial. Trial

Tr. Oct. 8, 1992, at 39-76, 77-160, and they cannot be classified

as verbatim reports of the witness within the meaning of the

Jencks Act.

Anita Ramsdell, another bank employee at the time of the

robbery, was interviewed by Agent Rafferty, Exhibits 3, 3A, 57 6-

9, 541-6, and by Officer Symmonds, Exhibit 40, 576-11. She also

gave a statement to another employee of the bank. Exhibit 43,

541-4 .

Ms. Ramsdell had not seen any reports of law enforcement

interviews prior to her trial testimony. Trial Tr. Oct. 9, 1992,

at 35-37, 40-41, 50; Tr. Nov. 21, 1995, at 34, 37. None of the

law enforcement interview reports can be fairly read to fall

2As set forth in the court's order of January 4, 1995, those reports made to a co-employee were not available at trial. Document 548, at 7 & n.6. Their absence, as the court indicated in said order, however, eguates with harmless error for the reasons set forth in said order.

3 within the requirement of "verbatim" records of what the witness

imparted to the interviewer. Moreover, they do not depart in any

marked way from the testimony of the witness at trial. Trial Tr.

Oct. 8, 1992, at 162-205, 207-14; Trial Tr. Oct. 9, 1992, at 7-

60 .

Kelly McCoy, who was manager of the Stratham bank, was

interviewed by FBI Agent Gault, Exhibits 7, 7A, 541-1; Officer

Forbes, Exhibits 12, 576-14; and Officer Symmonds, Exhibits 40,

57 6-11. Her statement to the employee of the bank is found in

Exhibits 44 and 541-5.

Ms. McCoy similarly never saw the reports of the interviews

of law enforcement prior to testifying at trial. Trial Tr.

Oct. 9, 1992, at 101-02, 176; Tr. Nov. 21, 1995, at 45. Again,

these reports are not verbatim accounts of what the witness told

the interviewing officers, and they do not significantly depart

from her testimony at trial. Trial Tr. Oct. 9, 1992, at 61-95,

98-181.

Walter Douglas Scamman, Jr., was interviewed by Officers

Forbes, Exhibits 20, 21, and Symmonds, Exhibit 41. He occupied

the farm property directly across from the Stratham bank.

Exhibit 41 had been given to defendant's counsel for use at

trial. Trial Tr. Oct. 19, 1992, at 172.

4 The witness was never shown nor had read to him the reports

of law enforcement interviews prior to testifying at trial. Tr.

Nov. 21, 1995, at 57. These reports do not contain any

quotations of language from the witness, and are clearly not

verbatim accounts of his testimony.

Linda Sherouse, assistant manager of the Dress Barn Woman at

the time she was robbed on June 7, 1991, was interviewed by

Officers Forbes, Exhibits 25, 576-21, and Lyons, Exhibits 35,

57 6-20. She also gave a statement to her employer, which,

pursuant to an order of the court. Trial Tr. Oct. 27, 1992, at

115, was produced and turned over to defendant's counsel for use

in the course of her cross-examination. Trial Tr. Oct. 28, 1992,

at 5-7, 14, 36-38.

Ms. Sherouse never saw or had read to her the reports of the

law enforcement interviews prior to her trial testimony. Tr.

Nov. 21, 1995, at 64, 68. Such reports are in summary form and

are clearly not verbatim accounts given by the witness to the

interviewing parties.

Joanne Kosakowski was store manager of Dress Barn Woman at

the time Ms. Sherouse was robbed. She was interviewed, together

with Ms. Sherouse, by Officer Lyons, Exhibits 35, 576-20, and

also by Officer Forbes, Exhibit 26. Her statement to her

employer was also given to defendant's counsel for use in cross-

5 examination at the time of trial. Trial Tr. Oct. 27, 1992, at

115; Trial Tr. Oct. 28, 1992, at 5-7, 14, 36-38.

Ms. Kosakowski had never seen nor reviewed the reports of

the law enforcement interviews prior to testifying at trial. Tr.

Nov. 21, 1995, at 76, 79. The reports are in summary form, and

again do not gualify as verbatim reports of the witness.

Tanya Ferguson, niece of cooperating witness Richard

Ferguson, met defendants Flynn and Kenney in September 1991 at

her mother's residence in Upland, California. In early October

1991 she drove with Flynn from California to Massachusetts in a

motor vehicle which was registered to defendant Gary Neal.

Ms. Ferguson was interviewed by Officer Forbes, Exhibits 9,

275-31; 10, 275-30, and by Officer Symmonds, Exhibits 39, 275-29.

The Symmonds interview was in the form of a statement verified by

the witness as accurate and, together with the grand jury

testimony of Ms. Ferguson, was turned over to and used by

defendant's counsel at trial. Trial Tr. Oct. 8, 1992, at 10;

Trial Tr. Oct. 23, 1992, at 77-79, 80-83, 88, 91-92, 96-97, 104-

05, 106, 110-13. The other statements were never shown to the

witness prior to trial. Tr. Nov. 21, 1995, at 85, 86.

The statement possessed and used by the defendants in the

course of trial. Exhibit 39, 275-29, includes all of the

information set forth by the witness in Exhibits 8 and 9. In

6 addition. Exhibits 8 and 9 are not verbatim reports of statements

made by Ms. Ferguson.

Rosemary Tabbi, the aunt of Tanya Ferguson, was interviewed

by Officers Forbes, Exhibits 9, 275-31; 10, 275-30; 22, 576-18,

and Breen, Exhibit 32, 576-17. She never saw these reports

before she testified at trial. Tr. Nov. 21, 1995, at 97.

The grand jury testimony of Ms. Tabbi was given to

defendant's counsel for use at trial. Trial Tr. Oct. 23, 1992,

at 138-39; Tr. Nov. 21, 1995, at 109. The law enforcement

interviews of her do not purport to be and are not verbatim

reports of her discussions with the interviewing officers.

Janet Bokuniewicz, a friend of defendant Gary Neal, was

interviewed by Officers Breen, Exhibit 33, 275-37, and Symmonds,

Exhibit 36, 275-38; Exhibit 37, 576-19. Her grand jury testimony

was also given to defendant's counsel for use in the course of

trial. Trial Tr., Day 15 Morning Session, at 34.

Ms. Bokuniewicz never saw the law enforcement interview

reports before trial. Tr. Nov. 21, 1995, at 112. With the

exception of one interview concerning events that were not

related to the trial testimony of the witness. Exhibit 36, 275-

38, the reports are in summary form and are not verbatim reports

of her statements to the law enforcement officers.

7 Stephen Cyr bought certain items from the Raineri brothers,

Brian and Bruce. He was interviewed by Officer Forbes. Exhibit

31, 275-10.

Mr. Cyr never saw any of his interview reports prior to

trial. Tr. Nov. 21, 1995, at 117. The interview report is not a

verbatim report of the statements made by the witness to the

interviewer, and it does not vary from the testimony of the

witness given at trial.

Sharon Foley was, in the summer of 1991, a friend of and

visitor to defendant Flynn. Her testimony at trial was decidedly

unhelpful to the prosecution. Trial Tr. Oct. 29, 1992, at 33-

60 .3

Ms. Foley was interviewed by Officer Forbes. Exhibit 27,

275-9. Hardly contemporaneous, the interview report contains a

few guotations from the witness, but cannot be characterized as a

verbatim report. In addition, the witness disclaimed any memory

of such interview, Tr. Nov. 29, 1995, at 120, and she also

challenged certain portions thereof. I d . at 124-26.

Thomas McQueeney, whose two grand jury transcripts were used

effectively by the defense at trial. Trial Tr. Oct. 29, 1992, at

138-79; Trial Tr. Nov. 2, 1992, at 5-124; Trial Tr. Nov. 3, 1992,

3Indeed, the prosecution reguested and was denied the opportunity to cross-examine the witness as hostile. Trial Tr. Oct. 29, 1992, at 46-50. at 5-87, 97-112, was interviewed by Officers Forbes, Exhibits 13,

14, 15, 275-33, 275-32, 576-4, and Breen, Exhibit 34, 275-35.

One of such interviews covers people and events totally

unrelated to the incidents which were the subject of this

indictment. The remaining documents are not verbatim accounts of

the witness, and the relevant events therein contained were fully

related by Mr. McQueeney in both his trial testimony and his

testimony before the grand jury.

Richard Ferguson, a cooperating witness, was interviewed by

Agent Rafferty. Exhibits 1, 541-8; 2, 541-7; 2A, 275-8, 541-9.

The witness never saw the reports of those interviews. Trial Tr.

Oct. 14, 1992, at 14; Tr. Nov. 27, 1995, at 20, 21.

At trial. Exhibit 2A, 275-8, 541-9, redacted to remove

incidents and identities unrelated to the events of the

indictment, was made available for defense counsel to use in

cross-examination of Mr. Ferguson. The remaining interview

reports are not verbatim accounts of the testimony presented by

the witness, and the events therein related were set forth in the

details of the redacted version of Exhibit 2A, 275-8, 541-9,

which was given to defendant's counsel.

Arthur Cosgro, another cooperating witness, was interviewed

by Officer Symmonds. Exhibit 38, 275-14. His grand jury

testimony was given to counsel prior to trial. Cosgro's interview report was never shown the witness prior

to trial. Tr. Nov. 2 8 , 1 9 9 5 , at 15. It cannot be described as a

verbatim account of the statement he gave the interviewing

officer.

Carole Kennedy, an employee of Bickford's Restaurant at a

time relevant to investigation of the Stratham bank robbery, was

interviewed by Agent Rafferty. Exhibit 5. This brief report,

which resulted from a telephone conversation between the agent

and the witness, does not purport to be and cannot be classified

as a verbatim account of the statements of the witness.

Also interviewed briefly by Agent Rafferty, Exhibit 4, Peter

Menounos was the general manager of a Howard Johnson's Restaurant

at times relevant to the Stratham bank robbery. Tr. Nov. 28,

1995, at 27, 28. His report, again, does not purport to be and

cannot be classified as a verbatim account of statements from the

witness to the interviewing officer.

Patrick Walsh was the lead prosecutor at the time of trial.

He took no notes of any interviews with witness Arthur Cosgro,

Tr. Nov. 28, 1995, at 35, 37, 42-44, 48. No tape recording of

any interview with Cosgro was made. Tr. Nov. 28, 1995, at 36-37,

42 .

Contrary to his testimony under oath at trial, Brian Raineri

testified in the 1995 hearing to a considerable number of

10 meetings with law enforcement officers at which notes were taken.

Compare Trial Tr. Nov. 4, 1992, at 17-18 with Tr. Nov. 30, 1995,

at 10-14, 15-19, 20-37, 38-45, 45-55, 55-58, 61-72, 72-80, 81-87,

87-97, 97-100.

Mr. Raineri was interviewed on three separate occasions by

Officer Forbes. Exhibits 16, 17, 18. At the 1995 hearing he

challenged the accuracy of the documents which reported these

interviews. Tr. Nov. 30, 1995, at 65-71, 88-95, 97-99.

Accordingly, the court held an in camera hearing, at which Mr.

Raineri and his counsel were present, for the purpose of

determining the exact nature of the alleged inaccuracy. See

Sealed Tr. of Nov. 30, 1995.

Not only are the reports of actual interviews at issue.

Exhibits 16, 17, 18, not verbatim reports of the witness, but

they appear to contain material from other witnesses which was

not elucidated from Brian Raineri. I d .; see Tr. Nov. 30, 1995,

at 153-55, 157-58, 173, 177.

With the exception of the notes of FBI Agents Rafferty,

Exhibits 1, 2, 3, 6; Gault, Exhibit 7; and Ryan, Exhibit 8, all

interview reports made by law enforcement officers were in typed

form "clearly made after the interview and not during it."

United States v. George H. Bennett and Lionel Lucier, ___ F.3d

, ___ , Nos. 94-2260, 2300, slip op. at 12 (1st Cir. Feb. 1,

11 1996). Moreover, the fact that they might contain a "few

isolated direct quotations" would not qualify them as such

verbatim reports. Id.

At trial, defendant's counsel effectively pointed out and

drove home to the jury the contrast between the testimony of the

witness Brian Raineri and the witness Thomas McQueeney concerning

certain incidents which involved the alleged use of weapons.

Review of the massive documentation set forth in the FBI file,

the NHSP files, and the reports of all witnesses made to law

enforcement interviewers satisfies the court that application of

the tests adopted by the Court of Appeals in United States v.

Neal,

(1st Cir. 1994), and in United States

v. Bennett; Lucier, supra, makes clear that the documents here at

issue were not producible under either the Jencks Act or the

rules of Brady v. Maryland,

(1963), and its progeny.

See United States v. Watson, ___ F.3d ___ , , No. 95-1384, slip

op. at 7 (1st Cir. Feb. 2, 1996) . In short, there are no

"smoking guns", the production of which would have altered the

final result of this criminal litigation in any fashion; the

12 defendant was not entitled to production of any such documents;

and the defendant is not entitled to a new trial herein.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

February 22, 1996

cc: United States Attorney United States Marshal United States Probation Barry Wilson, Esq.

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