402 F.3d 50 (1st Cir. 2005), 03-2081, Bolduc v. United States

Docket Nº03-2081.
Citation402 F.3d 50
Party NameFrank BOLDUC et al., Plaintiffs, Appellants, v. UNITED STATES of America, Defendant, Appellee.
Case DateMarch 23, 2005
CourtUnited States Courts of Appeals, Court of Appeals for the First Circuit

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402 F.3d 50 (1st Cir. 2005)

Frank BOLDUC et al., Plaintiffs, Appellants,


UNITED STATES of America, Defendant, Appellee.

No. 03-2081.

United States Court of Appeals, First Circuit.

March 23, 2005.

Heard Jan. 4, 2005

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Stephen Hrones, with whom Hrones, Garrity & Hedges was on brief, for appellants.

Anita Johnson, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, and George B. Henderson, II, Assistant United States Attorney, were on brief, for appellee.

Before BOUDIN, Chief Judge, SELYA and LYNCH, Circuit Judges.

SELYA, Circuit Judge.

This case arises out of a series of apparent blunders on the part of the Federal Bureau of Investigation (FBI), leading to the wrongful conviction of two men on bank robbery charges. After the truth came to light, the trial court set aside the convictions. The men then sued the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680. Following a bench trial, the district court denied relief. See Bolduc v. United States, 265 F.Supp.2d 153 (D.Mass.2003). The court acknowledged the government's jurisdictional challenges but opted to decide the case on the merits. See id. at 154.

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On appeal, we think it more orderly to treat the question of jurisdiction as a threshold matter. Concluding, as we do, that the FTCA does not support the assertion of federal subject matter jurisdiction, we affirm the judgment on that alternative ground.


The chronicle of relevant events takes us back more than sixteen years. We recount the facts as supportably found by the district court. See id. at 155-69.

On June 28, 1988, two middle-aged white men attempted to rob a branch of the First Wisconsin Bank situated at the Southgate Mall in Greenfield, Wisconsin. The FBI mounted an investigation into the Southgate incident. Agent Daniel Craft led the probe. Because the thieves came away from Southgate empty-handed, Craft considered the crime a "nothing robbery" and delegated substantial investigative responsibility to a rookie, Agent Derrel Craig.

On November 15, 1988, Craft and Craig rounded up four Southgate eyewitnesses and showed them a photographic array. The array did not include pictures of either the appellants or the men who ultimately were determined to be the actual culprits. Nevertheless, two of the four eyewitnesses selected the photographs of Allan Daniel Wilwerding and Douglas Wayne Thompson as depictions of the robbers, and another eyewitness fingered Wilwerding. The agents recorded the results in separate memos, known in FBI parlance as 302 reports. The two sets of reports attributed different levels of certitude to the eyewitness identifications: Craft's reports indicated that two of the eyewitnesses had described Wilwerding and Thompson as "similar" to the robbers whereas Craig's reports noted that those eyewitnesses had identified the men as "identical" to the robbers. The reports regarding the eyewitness who had identified only Wilwerding were also inconsistent; again, Craft's report attributed a "similar" identification to that eyewitness whereas Craig's report recorded an "identical" match.

As lead investigator, Craft bore responsibility for finalizing the 302 reports by reviewing them for errors and initialing them. According to FBI policy, once Craft finalized the 302 reports, he was required to place them in the case file. The court below found that, in this instance, Craft ignored this policy and excluded Craig's 302 reports from the case file because he unilaterally decided that they inaccurately reported the strength of the identifications. Id. at 157. The court also found it doubtful that Craft's 302 reports were in the case file when the FBI turned it over to the United States Attorney. Id. It is undisputed that FBI agents have no discretion to withhold particular 302 reports from a case file. See id.

On October 18, 1989, two middle-aged white men stuck up the Oklahoma Avenue branch of the First Wisconsin Bank in Milwaukee and absconded with $400,000. Agent Craft again took the lead in the ensuing investigation. This time, however, his aide-de-camp was Agent Margaret Cronin. The general description of the Oklahoma Avenue perpetrators reminded Cronin, a Boston native, of an article she had read in a Boston newspaper describing arrests in Lowell, Massachusetts, following an armored car robbery in nearby Chelmsford. Those arrested included two middle-aged white men, and Cronin thought that she perceived some similarities.

In early 1990, on Cronin's initiative, the Milwaukee office of the FBI included photographs of plaintiffs-appellants Frank Bolduc and Francis Larkin (each of whom had been detained in connection with the

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Chelmsford armored car robbery) in an array displayed to the Southgate and Oklahoma Avenue eyewitnesses. 1 Some witnesses identified Bolduc and/or Larkin as the culprits; others were unable to make any positive identifications at that time. Encouraged to some extent by these results, the FBI arranged to have the appellants transported to Wisconsin and placed them in a lineup. Several (but not all) of the eyewitnesses to the Southgate and Oklahoma Avenue incidents identified them as the robbers. A federal grand jury, sitting in Milwaukee, subsequently indicted the appellants for the attempted armed robbery of Southgate and the armed robbery of Oklahoma Avenue, see 18 U.S.C. § 2113, and for related firearms offenses, see id. § 924(c)(1).

The trial went forward in February of 1991. The prosecution relied entirely upon eyewitness identifications, including the testimony of the same three witnesses who previously had identified others (Wilwerding and Thompson) as "similar" or "identical" to the Southgate bandits; this time, the trio made positive identifications of Bolduc and/or Larkin. Neither the prosecutor nor the witnesses themselves mentioned their earlier (inconsistent) match-ups. The defense relied mainly upon alibi testimony indicating that the appellants were in the Boston area when the crimes were committed. The jury found the appellants guilty of all charges and, on May 24, 1991, the district court sentenced both men to serve lengthy prison terms. 2

Following the imposition of sentence, federal officials returned Bolduc to a Massachusetts state penitentiary to resume serving a life sentence for an earlier second-degree murder conviction, which the parole board had reinstated upon Bolduc's arrest for his putative involvement in the Chelmsford armored car robbery. Upon learning of the federal convictions, however, Massachusetts authorities decided to dismiss the charges pending against Bolduc and Larkin with respect to the armored car caper. In their view, the appellants' ages and the length of their federal sentences contradicted the need to seek additional prison time. Despite this decision, the Massachusetts parole board determined that Bolduc's federal conviction furnished sufficient grounds to support the revocation of his parole and, therefore, he remained in state prison.

Notwithstanding the appellants' arrests and incarceration, similar robberies continued to plague Midwestern banks. More than six years after the appellants were sentenced, the FBI arrested William Kirkpatrick on suspicion of involvement in several of the more recent robberies. Though incarcerated, Bolduc caught wind of this turn of events and asked Kirkpatrick's attorney for any available information about the Southgate and Oklahoma Avenue robberies. The lawyer sent Bolduc a packet containing, inter alia, Agent Craig's 302 reports anent the November 1988 photo array. It was in that roundabout way that Bolduc first learned of this exculpatory

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evidence. Larkin learned of the evidence at an even later date.

In time, Kirkpatrick confessed that he and a partner had undertaken both the Southgate and Oklahoma Avenue heists. The appellants filed federal habeas petitions, see 28 U.S.C. § 2255, which the government did not oppose. On June 11, 1999, a federal district judge granted the petitions, vacated the appellants' sentences, and issued certificates of innocence. Larkin was released from federal custody and Bolduc, relying on the certificate of innocence, successfully petitioned the Massachusetts parole board for reinstatement of his parole.


Following their release, the appellants commenced a civil action in the United States District Court for the District of Massachusetts in an effort to recover money damages for the eight years that they had languished in prison. Their complaint presented claims under the FTCA against the United States for malicious prosecution, false imprisonment, abuse of process, and negligent supervision, as well as a Bivens claim against Agent Craft, see Bivens v. Six Unknown Named Agents of FBN, 403 U.S. 388, 389, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The district court dismissed the malicious prosecution, abuse of process, and false imprisonment counts for failure to state claims upon which relief could be granted, see Fed.R.Civ.P. 12(b)(6), and dismissed the Bivens claim for want of in personam jurisdiction, see Fed.R.Civ.P. 12(b)(2). None of these rulings have been contested on appeal and we abjure any further discussion of them. 3 Withal, the district court permitted the negligent supervision claim to go forward and subsequently allowed the appellants to add a straight negligence claim under the FTCA. Both claims were premised on the allegation that the FBI's withholding of the above-described 302 reports deprived the appellants of the benefit of exculpatory evidence before and during the criminal trial, and thus led to their wrongful convictions.

The parties engaged in extensive discovery. The government challenged the existence of subject matter jurisdiction for the first time in a motion served almost two months after the deadline for filing...

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