O'Murchu v. United States
U.S. Court of Appeals for the First Circuit
O'Murchu v. United States
Opinion
USCA1 Opinion
September 27, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2327
NOEL O'MURCHU,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Andrew A. Caffrey, Senior U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Stahl, Circuit Judges.
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Noel O'Murchu on brief pro se.
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A. John Pappalardo, United States Attorney, and Tobin N.
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Harvey, Assistant United States Attorney, on brief for appellee.
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Per Curiam. Noel O'Murchu was convicted of
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conspiring to export arms to Northern Ireland without a
license, conspiring to violate the domestic firearms laws,
and unlawful dealing in firearms. His convictions were
affirmed on direct appeal. See United States v. Murphy, 852
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F.2d 1 (1st Cir. 1988), cert. denied, 489 U.S. 1022 (1989).
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Thereafter, O'Murchu filed a motion to vacate his conviction
and sentence under 28 U.S.C. 2255, raising a host of claims.
This court vacated the district court's summary dismissal of
two of those claims and remanded them to a different district
judge for further factual development. See Murchu v. United
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States, 926 F.2d 50, 56-59 (1st Cir.), cert. denied, 112 S.
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Ct. 99 (1991). The remanded claims alleged that: (1) the
trial judge violated Fed. R. Crim P. 11(e) by attempting to
coerce O'Murchu into pleading guilty, and (2) O'Murchu's
defense attorney rendered him ineffective assistance by
failing to object to the trial judge's alleged misconduct
both at trial and on O'Murchu's direct appeal.
On remand, O'Murchu and the government submitted
additional affidavits on the judicial misconduct claim. The
district court conducted a partial evidentiary hearing.
O'Murchu was also permitted to take the depositions of the
trial attorneys who allegedly witnessed the judge's
impropriety. After surveying the evidence, the district
court concluded that O'Murchu's judicial misconduct claim was
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wholly lacking in supporting facts and that his ineffective
assistance claim was consequently groundless. The court
dismissed both claims. O'Murchu again appeals. We affirm.
The evidence developed on remand makes clear that
O'Murchu's judicial misconduct claim arises from the events
that occurred following the close of the second day of
O'Murchu's trial. O'Murchu averred that he heard the trial
judge instruct counsel not to leave the courtroom that day as
there was a matter he wished to discuss with them. Thirty
minutes later, O'Murchu and his co-defendant (Hughes) met
together with their respective attorneys in the marshall's
cellblock. O'Murchu swore that his attorney (McGinty) then
told him that, "Robert (or Bob) and I just left a discussion
with Judge Mazzone where he indicated that you would not
receive more than five years for a guilty plea." O'Murchu
further averred that Hughes's attorney, Robert Canty, told
Hughes that, "Judge Mazzone said that he would sentence you
to not more than four years for a guilty plea." O'Murchu and
McGinty then proceeded to discuss an entrapment defense.
O'Murchu maintained that he would not plead guilty because,
in his view, he had been entrapped by the F.B.I.
The three attorneys who allegedly witnessed the trial
judge make the aforementioned statements described a
significantly different chain of events. The prosecutor
(Stearns) testified that the only discussion of a plea
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involving the trial judge occurred at a scheduling conference
before the trial began. The judge simply asked whether the
case could be resolved. Counsel informed the judge that it
could not in view of O'Murchu's determination to proceed with
trial. Stearns maintained that there was no further
discussion of a possible plea with the trial judge. (Tr.
3).1
All counsel acknowledged that the trial judge engaged in
a discussion with them at the close of the second day of
trial. According to attorney McGinty, the discussion was
"terse" and "focused" on the defendants' entrapment defense.
McGinty had little present recollection of the discussion.
However, his notes of the events of that day, which were made
shortly after the events occurred, indicated that the judge
made it clear that the evidence thus far did not warrant an
entrapment instruction. The judge emphasized that the
defendants had better be aware of this. After this
discussion, which McGinty placed in chambers, counsel
proceeded to the hallway. There, outside the presence of the
trial judge, Stearns indicated that he would recommend five
years for O'Murchu and four years for his codefendant if
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1. Attorney Canty recalled that this pretrial scheduling
conference occurred in the judge's chambers. He emphasized
that the purpose of this conference was to establish a trial
date and the number of days needed for trial. Canty
maintained that this conference, "was not a plea negotiation
involving the court." (Tr. 5-9).
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there was a plea at that point. (Tr. 44-45). McGinty
indicated that the plea discussion with Stearns happened in
the trial judge's absence, for had the case been otherwise,
(i.e., had the trial judge been present and endorsed the
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government's recommendation), McGinty would have made a note
of it. (Tr. 50-52). McGinty had no recollection of telling
O'Murchu that the judge would not give him more than five
years for a guilty plea. (Tr. 48). Rather, McGinty
testified that he would have told O'Murchu that it was the
trial judge's frequent policy not to exceed a government
recommendation, and as the government recommendation was five
years, one could generally be secure that one would not face
more than that upon pleading guilty. (Tr. 68-69). McGinty
flatly denied telling O'Murchu that the trial judge had
participated in a plea discussion. (Tr. 68).
Attorneys Stearns and Canty generally corroborated
McGinty's version of the events of the second day of trial.2
Canty emphatically testified that there were no plea
negotiations with the trial judge in his presence at any
time. (Tr. 13). He specifically recalled that the five year
and four year terms that Stearns had offered were never
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2. However, Canty recalled that the discussion with the
trial judge occurred at sidebar, not in chambers, and that
the ensuing discussion with Stearns occurred at the back of
the courtroom, as opposed to in the hallway.
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uttered in the trial judge's presence. (Tr. 42). Stearns
agreed that the plea discussion occurred after the attorneys
had left the judge's lobby. (Tr. 37).
In short, the only witnesses to the judge's alleged
efforts to coerce a guilty plea affirmed that the plea
discussion occurred solely among counsel and outside the
presence of the trial judge. This is a far cry from the quid
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pro quo O'Murchu posited in his allegations. Indeed,
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O'Murchu's claim appears to have been based on rife
speculation that stands conclusively refuted.3
"An evidentiary hearing is unnecessary where a
petitioner lacks sufficient evidence to establish his
claims." Porcaro v. United States, 832 F.2d 208, 212 (1st
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Cir. 1987)(per curiam). The proceedings on remand have shown
that O'Murchu's judicial misconduct and ineffective
assistance claims are groundless. Accordingly, the judgment
of the district court is affirmed.4
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3. On appeal, O'Murchu argues that the pretrial scheduling
conference which Stearns and Canty described actually
occurred on the third day of trial. O'Murchu says that we
should infer this because the trial judge was trying to
ascertain whether his attempt to coerce O'Murchu into
pleading guilty on the previous day had been successful. No
rational decisionmaker could adopt such a view of the
evidence. O'Murchu has wholly failed to prove that the judge
attempted to coerce him. Moreover, both Canty and Stearns
were quite clear that the scheduling conference occurred
before the trial began.
4. O'Murchu's motions for oral argument are denied. His
motion for an order concerning his deportation is hereby
rendered moot.
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Reference
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