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,

(1st Cir. 1999) ("Conley I"), cert. denied,

(2000); United States v. Conley,

(D. Mass. 2000) ("Conley II"); United States v. Conley,

(1st Cir. 2001) ("Conley III"); Conley v. United States,

(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.

, 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,

. 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,

(1st Cir. 1980). But if the new evidence was wrongly withheld

by the government in violation of its obligations under Brady v.

Maryland,

(1963), it is enough to show that the

evidence undermines confidence in the verdict. Kyles v. Whitley,

(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,

; the court was less clear as to whether any had been wrongly

withheld in violation of Brady.

. In any

event, it ordered a new trial in "the interests of justice,"

without finding prejudice under either Wright or Brady.

.

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.

(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,

. 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.

Conley then filed the present motion in the district

court under

(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,

.

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.

. The district

court found expressly that the new evidence was so powerful that it

would probably cause an acquittal on retrial.

. The

district court never reached Conley's Brady claim because it found

that a new trial was required under Wright.

.

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

-6- (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,

(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,

(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,

. 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,

(1983); NLRB v. Goodless Bros. Elec. Co.,

(1st Cir. 2002); Knapp Shoes, Inc. v. Sylvania Shoe Mfg. Corp.,

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

(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,

, 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,

. 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,

, but it does not describe any new evidence, let alone hold that it is new evidence that tips the balance.

-9- 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,

, 898 n.4 (5th Cir.), cert. denied,

(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,

. 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.

For example, in United States v.

Robinson,

(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,

.

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.,

(7th Cir. 1999); Browning v. Navarro,

(5th Cir. 1989); United States v. Cirami,

(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,

. 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."

.

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

; 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,

(1993); United States v.

Evans,

(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,

; 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.

-12- the parties to brief. Although this course might first appear to

be at odds with Calderon v. Thompson,

(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 . . . ."

. 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,

(1st Cir. 1993); Fine v. Bellefonte Underwriters Ins. Co.,

, 52-54 (2d Cir.), cert. denied

(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,

(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,

(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,

. 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.

-14- 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,

; Conley II,

; 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

(2000); Liteky v. United States,

(1994), we normally defer to the district court's own reassignment

-15- 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.

-16- 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--

-17- 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

-18- 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,

- 23; Conley II,

; 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

-19- 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,

(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,

(1999). This case has never hinged on whether the government

suppressed evidence; in fact, the government concedes in its brief

-20- 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,

(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,

(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,

(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

-21- 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,

(1st Cir. 1999). Certiorari

was denied. Conley v. United States,

(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,

(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."

. The sentence was not executed. Conley

filed a

(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

and obstruction of a

grand jury investigation in violation of

. 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,

(1st Cir. 1999), cert. denied,

(2000)

(Conley I). Conley then moved for a new trial based on newly

discovered evidence, violations of Brady v. Maryland,

(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,

(D.

Mass. 2000) (Conley II). We reversed, ruling that the district

court did not apply the correct legal test. United States v.

Conley,

(1st Cir. 2001) (Conley III).

The present appeal arises from a petition under

, 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,

(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,

, and

Conley III,

, 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,

(1st Cir. 1980), and a prosecutor's

obligation to disclose exculpatory evidence, Brady,

,

it considered the separate and cumulative effect of the evidence.

Conley II,

. 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,

. 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,

.

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.

(emphasis added). The district court then used the

discretion it had given itself to order a new trial "in the

interests of justice."

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,

. 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

. Again,

the district court held that Conley was entitled to relief from

judgment. Conley IV,

.

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.

.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,

. Conley IV,

. 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,

. 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.

.

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

, 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,

(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.

; see also United States v. Gonzalez-Gonzalez,

(1st Cir. 2001).

-31- be readjudicated collaterally under § 2255 absent equitable

considerations, such as actual innocence or cause and prejudice.

Withrow v. Williams,

(1993) (Scalia, J.,

concurring); see also United States v. Michaud,

(1st

Cir. 1990); Tracy v. United States,

(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,

(8th Cir. 1983)));

Dirring v. United States,

(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,

(1st

Cir. 1998) (quoting Cohen v. Brown Univ.,

(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."

(internal quotation marks omitted) (quoting Commercial Union

Ins. Co. v. Walbrook Ins. Co., Ltd.,

(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.

-32- at 40; United States v. Rosen,

, 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,

. We review an application of the

law of the case de novo.

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,

. That same evidence, it now says,

is sufficient to warrant a new trial under Wright. Conley IV,

.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.

. 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.

. Although it mentioned the Bullard and Brown testimony, it did so only in the context of "Background Criminal Proceedings."

. 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,

.

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.

(discussing Wright,

).

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.

. That decision binds the district court. See Withrow,

; Field,

. 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,

(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-

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,

(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,

(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,

.

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,

.

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,

. 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,

(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."

Because the Bullard Testimony is in

no way exculpatory, it does not come within the rubric of Brady.

Strickler,

-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,

(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.

. 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

-43- 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").

-44- (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.

-45- 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

-46- 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

-47- 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

-48- 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

-49- 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

-50- 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

-51- 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,

. In this context, "reasonable probability" means a

probability sufficient to undermine confidence in the outcome. See

Bagley,

(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,

(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,

(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,

(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

-52- 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,

;

United States v. Josleyn,

(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,

(1st Cir. 1988); Coleman v. Mitchell,

(6th Cir. 1990); United States v. Grossman,

(2d

Cir. 1988); Lugo v. Muñoz,

(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.

-53- 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.,

(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.,

(8th Cir. 1961).

-54- 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

-55- 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.

-56-