USA v. Burke, et al. CR-96-050-M 01/04/99 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America, Plaintiff

v. Criminal No. 96-50-1-6-M

John P. Burke, Stephen G. Burke, Matthew McDonald, Patrick J. McGonagle, Michael K. O'Halloran, and Anthony M. Shea, Defendants

O R D E R

Defendants Stephen G. Burke, Matthew McDonald, Patrick J.

McGonagle, Michael K. O'Halloran, and Anthony M. Shea (the

"defendants") have filed a number of motions seeking, under Fed.

R. Crim. P. 33, a new trial based on newly discovered evidence

or, in the alternative, discovery relating to an alleged deal

between the government and former codefendant John Burke

regarding the lather's testimony at trial. For the reasons that

follow, the defendants motions are denied.

Background

The defendants were charged under a fifteen count Second

Superseding Indictment with numerous illegal activities including

bank robbery, conspiracy to commit robbery, and carjacking.

During trial, defendant John P. Burke entered into a plea

agreement with the government under which he agreed to plead

guilty to Count 4 of the Second Superseding Indictment

(conspiracy to commit robbery) in exchange for the government's dropping all remaining counts. The prosecution presented John

Burke's plea agreement, to the court (and later to the jury), as

a "naked" plea, that is, a straightforward plea to one count in

exchange for dismissal of the remaining counts, without any

further obligations on either side. John Burke's plea was

accepted and accordingly, he was found guilty of Count 4.

Sometime thereafter Burke also agreed to testify against his

codefendants, pursuant to a grant of immunity extended by the

government.

On December 22, 1997, the jury returned guilty verdicts

against each defendant. Several months later, on July 1, 1998,

the government moved, pursuant to Fed. R. Crim. P. 48(a), for

leave to dismiss the one remaining count against John Burke, to

which he previously had pled guilty.

On July 13, 1998, defendant Stephen Burke (John Burke's

brother and co-defendant) filed a Second Motion for New Trial,

based on newly discovered evidence. Defendants Shea and

McGonagle filed similar motions and they and the remaining

defendants moved to join some or all of their codefendants'

similar motions. This order will resolve all outstanding motions

for new trial as if constituting a single motion joined by all

defendants.

While defendants' motions for new trial, based on, inter

alia, John Burke's alleged deal, were pending, and following

hearings, the government reconsidered its position and decided to

withdraw its motion for leave to dismiss the remaining count

2 against John Burke. The motion to withdraw was granted on August

27, 1998, and John Burke was subseguently sentenced on the count

to which he pled guilty.

Discussion

Fed. R. Crim. P. 33 provides that the court "may grant a new

trial to [a] defendant if reguired in the interest of justice."

In order to prevail on their motions for new trial based on newly

discovered evidence, defendants must show that "the evidence was:

(i) unknown or unavailable at the time of trial, (ii) despite due

diligence, (ill) material, and (iv) likely to result in an

acguittal upon retrial." United States v. Tibolt,

(1st Cir. 1995), cert. denied,

(1996). The

third and fourth reguirements are less rigorous where, as

defendants allege here, the newly discovered evidence was in the

possession of, but not disclosed by the government. Id. In that

case the test, as usually stated, is that "the nondisclosure

justifies a new trial if it is 'material, ' . . . [that is,] if

there is 'a reasonable probability' that the evidence would have

changed the result . . . . [A] 'reasonable probability' is 'a

probability sufficient to undermine confidence in the outcome.'"

United States v. Sepulveda,

(1st Cir.

1993)(guoting United States v. Bagiev,

(1985)).

Defendants argue that John Burke and the government had

either an explicit or implicit deal, or at least some actual

understanding, under the terms of which John Burke would testify

3 against his codefendants in exchange for some benefit from the

government. That "benefit" included the possibility of outright

dismissal of the count pending against him to which he had

already pled guilty. Defendants assert that this deal was

unknown to them until the government filed its motion, after

trial, for leave to dismiss the entire indictment against John

Burke. They also contend that notice of the existence of this

deal was withheld from them contrary to the mandate of Brady v.

Maryland,

(1963), and its progeny. Had they known of

the actual arrangement, defendants argue, they could have

effectively, or more effectively, impeached John Burke's

credibility before the jury. Because John Burke provided

powerful incriminating testimony, it was critical that any

possible motivation for exaggeration or outright lying be put

before the jury.

The government, on the other hand, asserts that there was no

explicit or implicit deal with John Burke, and no sub rosa

understanding, and, therefore, there is no "newly discovered

evidence." This is so, the government argues, because the United

States Attorney for the District of New Hampshire steadfastly

refused to commit to do anything specific for John Burke in

exchange for Burke's agreement to testify in the case beyond

extending immunity. Rather, the prosecution says it took the

position that it would agree to no deal in exchange for Burke's

testimony — but, if Burke did testify voluntarily and told the

truth (in the government's judgment) then the prosecution would

4 consider doing something for Burke — likely recommending leniency

at sentencing on the count of conviction (Burke had been

adjudicated guilty upon acceptance by the court of his earlier

plea) but neither agreeing to nor foreclosing any possible

benefit. Thus, the government argues, John Burke's position was

no better than, and no different from that of any witness pending

sentencing and voluntarily cooperating with the government

without an agreement: he had a hope or reasonable expectation

that his truthful testimony might win him favorable treatment,

perhaps a favorable recommendation on sentence and a shorter

prison term, maybe more — a hope or expectation obvious to

everyone, including defense counsel, and one defense counsel

thoroughly explored on cross-examination. Likewise, the

government says, it too was in the same position it is always in

when evaluating any witness's voluntary cooperation and

testimony: it could make or withhold a favorable sentencing

recommendation as it chose, and it could even dismiss all pending

charges.1 Since the possibility of outright dismissal by the

prosecutor is inherent in every case, the government continues,

there was nothing about John Burke's situation that was either

unknown to the defendants, or that had to be disclosed, and,

1 Although the court expressed its doubt and disagreement at hearings held on the motion for leave to dismiss all charges against John Burke, the government took the position that for all practical purposes it holds virtually unreviewable power to dismiss criminal charges (even after a guilty plea and an adjudication of guilt) in its discretion, and that the reguirement that it first obtain leave of court is little more than a formality, assuming the absence of bribery or similar fundamental corruptions of the court's processes.

5 accordingly, there can be no "newly discovered evidence"

regarding Burke's situation warranting a new trial for these

defendants.

Each defendant was represented by experienced and talented

criminal defense counsel, and, predictably, John Burke was

effectively and thoroughly cross-examined about his biases and

his motivation to testify. It was brought out before the jury

that while he himself faced a stiff sentence based on his own

conduct (albeit statutorily limited to imprisonment for twenty

years), he nevertheless hoped for a lighter sentence due to his

general cooperation, the testimony he was giving against his

former co-defendants, and an anticipated favorable recommendation

on sentence by the prosecutors. All of that was generally

understood and thoroughly explored in detail by counsel for the

defense and the prosecution before the jury. For example, John

Burke was grilled about his personal interest in testifying in a

manner favorable to the prosecution's case:

Q. When you pleaded guilty back in October, you knew it was up to the judge to determine your sentence; correct? A. Yes. Q. And you knew that the federal Sentencing Guidelines would be used by the judge to determine your sentence; correct? A. Yes. Q. And you also knew that with your criminal record that you would be in the upper stratosphere of the range of possible sentences; correct? A. Yes. Q. And the max is 20 years. That's the most you could get; correct? A. Yes. Q. And the only way that you could get out from under that 20 years plus whatever time you're serving

6 on your Massachusetts sentence, is to come in here and testify; correct? A. Yes.

(Trial Tr., Day 40, United States v. Stephen G. Burke, et al.,

Cr. No. 96-50-01-05-M (D.N.H. November 18, 1997) at 100-101.)

The government assistance Burke hoped to gain by his

testimony was explored on cross-examination, but that effort

focused on two basic types — a favorable recommendation on

sentencing, and perhaps some help in reducing the unrelated

sentence he was already serving in Massachusetts.

Q. You understand that to get substantial assistance under the Sentencing Guidelines you have to assist the government substantially in the investigation or prosecution of another person. You understand that don't you? A. Yes.

Q. You want a favorable recommendation from [the government] on your sentence on the Hobbs Act, single Hobbs Act charge that you're awaiting sentencing on; right? A. Yes. Q. And you want favorable, favorable help from them, you want assistance from them on the sentence that you're presently serving out of Massachusetts, do you not? A. I would like that, yes.

(Trial Tr., Day 40, United States v. Stephen G. Burke, et al.,

Cr. No. 96-50-01-05-M (D.N.H. November 18, 1997) at 196-98.)

What was not explored on cross-examination was the

possibility that the government would actually move to dismiss

all charges against John Burke, i.e. let him walk freely out the

door with regard to all charges pending against him in this

court. Such a possibility was probably not anticipated by

defense counsel (and certainly was not contemplated by the court

7 as being within the universe of realistic possibilities). Given

John Burke's lifelong history of violent crime and his earlier

provident naked plea of guilty to a crime involving the violent

armed robbery of an armored car in Seabrook, New Hampshire,

defense counsel cannot be faulted for not anticipating that the

prosecution might actually contemplate rewarding Burke with a

complete walk.

Indeed, it is difficult to imagine that the government ever

contemplated dismissing, much less explicitly or implicitly

agreed to dismiss, all charges against Burke if his testimony

proved useful and truthful in the prosecutors' judgment. The

prosecutors do deny it — or at least deny any agreement or

understanding to that effect. The prosecutors insist that no

agreement existed and no understanding existed regarding any guid

pro guo for John Burke's testimony, beyond the universally

recognized expectations — i.e. if useful and truthful testimony

is provided it is reasonable for the cooperating defendant to

expect some favorable action (usually in the form of a sentencing

recommendation) from the government (not obligatory action, but

favorable action emanating from simple concepts of fairness). Of

course, the government also readily concedes that "nothing was

foreclosed" either, that is, no potential favorable action was

agreed to, and none was ruled out.

At most then, the record shows that there was an

understanding between the government and John Burke that while

nothing was promised, nothing was ruled out either. That

8 understanding is the source of the problem — should prosecutors

have told defense counsel that "nothing was ruled out" by way of

potential action favorable to Burke should his voluntary

cooperation and testimony prove truthful and useful to the

government? The prosecution argues that every defense counsel

knew or should have known that the government held the power to

dismiss all charges, and defense counsel could easily have cross-

examined John Burke about that possibility. While perhaps a

plausible argument, the court believes that a reasonably astute

and sophisticated criminal defense attorney would have

immediately put any such possibility into the frivolous notion

bin under the circumstances of this case. Defense counsel cannot

be expected to have either anticipated or inguired into that

possibility in the real world setting of this trial, where a

serious lifelong violent criminal was testifying voluntarily,

after having pled guilty to a serious violent felony, with no

enforceable plea agreement other than one to drop remaining

charges.

Under the circumstances of this case, disclosure by the

prosecution, although not compelled by Brady, ought to have been

made if, before Burke testified, the prosecutors even remotely

considered the possibility that they would seek to dismiss all

charges against Burke should his testimony prove to be

extraordinarily useful and (as the prosecutors say) extraordinary

in regard to its truthfulness. Simply as a matter of better

practice, the prosecution should have disclosed the understanding

9 that while nothing was promised John Burke, neither was anything

foreclosed up to outright dismissal.

However, even assuming that the prosecutors were obligated

to make that disclosure to defense counsel under the

circumstances of this case, the defendants are still not entitled

to a new trial. They are not entitled to a new trial because

even if explicit disclosure of that possibility had been made,2

it is still not reasonably probable that the verdicts would have

been any different. See Sepulveda,

.

Defendants argue that disclosure of the possibility of

outright dismissal in John Burke's case would have enabled them

to further undermine, even completely undermine, John Burke's

credibility. But the fact that Burke hoped or fully expected his

testimony would curry favor with the government, and would

directly lead to a substantially lesser punishment for him, was

thoroughly explored before the jury. It was made very clear to

the jury that John Burke indeed expected the government's

assistance and thought he might be out of prison in the very near

future, and the jury was aware that his testimony should be

considered in light of that obvious motivation. For example,

John Burke testified as follows:

Q. In terms of your expectations, sir, for a reduced sentence, Lisa [Burke's girlfriend] has been asking you about your cloth[es] sizes; correct?

2 The lead prosecutor agreed that it would not be unfair or unreasonable for the court to henceforth advise every criminal jury that a cooperating witness facing federal charges might even obtain complete dismissal of all charges on motion by the government should his cooperation be judged extraordinary.

10 A. Yes, that's correct. Q. You've been talking with her about how soon you might be able to get out of jail; correct? A. Yes. Q. And she thinks there's a very real possibility that you could be home very soon;correct? A. Yes; Q. She's mentioned three to five years; correct? A. Yes. Q. And that's your expectation, correct, or less ? A. That's my hope.

(Trial Tr., Day 40, United States v. Stephen G. Burke, et al.,

Cr. No. 96-50-01-05-M (D.N.H. November 18, 1997) at 104-105.)

It was also made clear to the jury that it was this hope of

imminent freedom that motivated his testimony. He was asked:

Q. And that's part of what put you there in [the witness] chair. Because you know that if you get a 20- year sentence or a 21, 22-year term of imprisonment before you get back out onto the street [Lisa] and your sons will be long gone. A. That's true as it pertains to my sons . . . .

(Trial Tr., Day 40, United States v. Stephen G. Burke, et al.,

Cr. No. 96-50-01-05-M (D.N.H. November 18, 1997) at 164.)

Evidence as to how the government might assist John Burke in

reducing his exposure to prison - whether by recommending a

lighter sentence to a judge or by moving for leave to dismiss the

remaining charge against him - would have added little more to

the thorough cross-examination of his likely motives. Burke's

possible motives and intent in testifying were perfectly clear to

the jury: he could well be providing exaggerated or even false

testimony in the expectation of obtaining favorable treatment

later, in the form of substantially less time in prison than

otherwise would be the case. To be sure — guestions that

11 explored his hope or expectation that all pending charges would

actually be dropped, or that revealed that the prosecutors had

"not ruled that possibility out" might have added something to

the jury's evaluation. But, "impeachment evidence, even that

which tends to further undermine the credibility of the key

government witness whose credibility has already been shaken due

to extensive cross-examination, does not create a reasonable

doubt that did not otherwise exist when that evidence is

cumulative or collateral." United States v. Hahn,

(1st Cir. 1994) (internal guotation marks omitted).

Additional impeachment evidence related to John Burke's

expectation that his trial testimony might actually lead to a

motion to dismiss all counts against him (whether based on an

"understanding" that "nothing is ruled out," or simply on a wish

and a hope) while something different and something additional,

would still have been essentially cumulative, and, had it been

presented to the jury through direct or cross-examination, the

trial result would not plausibly have been different for any

defendant.

The defendants also seek a new trial on the basis of United

States v. Singleton,

, vacated sua sponte & reh'q en

banc granted,

(10th Cir. 1998). In

Singleton, a panel of the Tenth Circuit Court of Appeals held

that a plea agreement between a federal prosecutor and

cooperating witness, providing for leniency in return for

testimony in the trial of a coconspirator, violated the

12 prohibitions found in

(c)(2).

.

Within ten days of the panel decision, however, the Court of

Appeals sua sponte vacated that opinion and granted a rehearing

en banc. This court declines to adopt the reasoning of the now-

vacated panel opinion. See, e.g.. United States v. Masciandaro,

(S.D.N.Y. Nov. 19, 1998); United States v. Duncan,

(E.D. La. July 15, 1998). The defendants' motions

for new trial (document nos. 1015, 1018 and 1049) are denied.

SO ORDERED.

Steven J. McAuliffe United States District Judge

January 4, 1999

cc: United States Attorney United States Probation United States Marshal Peter D. Anderson, Esg. Matthew J. Lahey, Esg. Bruce E. Kenna, Esg. Douglas J. Miller, Esg. Michael J. lacopino, Esg. Bjorn R. Lange, Esg. David H. Bownes, Esg. Edward D. Philpot, Jr., Esg.

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