415 F.3d 183 (1st Cir. 2005), 04-2424, Conley v. United States

• Citation: 415 F.3d 183
• Party Name: Kenneth M. CONLEY, Petitioner, Appellee, v. UNITED STATES of America, Respondent, Appellant.
• Case Date: July 20, 2005
• Court: United States Courts of Appeals, U.S. Court of Appeals — First Circuit

Page 183

415 F.3d 183 (1st Cir. 2005)

Kenneth M. CONLEY, Petitioner, Appellee,

v.

UNITED STATES of America, Respondent, Appellant.

No. 04-2424.

United States Court of Appeals, First Circuit.

July 20, 2005.

Heard May 6, 2005.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, U.S. District Judge]

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Saul M. Pilchen, with whom Robert S. Bennett, Jonice Gray Tucker, Robert W. Scheef, and Thomas J. Dougherty, were on brief for appellee.

Bradly J. Schlozman, Deputy Assistant Attorney General, with whom R. Alexander Acosta, Assistant Attorney General, Mark L. Gross, and Teresa Kwong, were on brief for appellant.

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Before Boudin, Chief Judge, Torruella, Circuit Judge, and Baldock, ^[*] Senior Circuit Judge.

BALDOCK, Senior Circuit Judge.

The question in this appeal is whether the Government's suppression of impeachment evidence violated Petitioner Kenneth Conley's right to due process under the Fifth Amendment.¹ See Brady v. Maryland, 373 U.S. 83, 87 (1963). The district court answered yes and granted Petitioner's motion to set aside his conviction. See 28 U.S.C. § 2255. We have jurisdiction, id. § 2253 (a), and affirm.

I.

The historical facts of this case are well known and need not be repeated in full. See United States v. Conley, 186 F.3d 7, 11-15 (1st Cir. 1999) (Conley I); United States v. Conley, 103 F.Supp.2d 45, 49-51 (D. Mass. 2000) (Conley II); United States v. Conley, 249 F.3d 38, 40-43 (1st Cir. 2001) (Conley III); Conley v. United States, 164 F.Supp.2d 216, 217-21 (D. Mass. 2001) (Conley IV); Conley v. United States, 323 F.3d 7, 9-11 (1st Cir. 2003) (en banc) (Conley V); Conley v. United States, 332 F.Supp.2d 302, 306-309 (D. Mass. 2004) (Conley VI); see also Dwan v. City of Boston, 329 F.3d 275, 276-77 (1st Cir. 2003). In 1995, police officers chased four homicide suspects through Boston. The vehicle chase ended when the suspects turned into a cul-de-sac (Woodruff Way). The four suspects fled on foot. One of the first officers on the scene, Michael Cox, gave chase. Cox pursued one suspect, Robert Brown, towards a fence. Meanwhile, other officers arrived at the "confused and changing scene[.]" Conley V, 323 F.3d at 16. Officer Richard Walker arrived fourth; Petitioner fifth. Both Walker and Petitioner joined the foot chase. Other officers in the chase mistakenly took Cox, an undercover officer dressed in plainclothes, as a fleeing suspect. They caught Cox at the fence and proceeded to brutally beat him. The assaulting officers discovered their mistake and dispersed, leaving Cox badly injured. Petitioner ultimately apprehended Brown.

The Boston Police Department Internal Affairs Division (IAD) thereafter commenced an investigation into Cox's beating. An IAD officer interviewed Walker during the investigation. Walker informed IAD he observed Cox chase Brown towards the fence on Woodruff Way. Walker further stated that he observed a police officer behind Cox, but he could not identify the officer. Walker, however, subsequently retracted his statement about observing an officer behind Cox.

In 1997, a federal grand jury convened to determine if the officers involved in Cox's beating used excessive force in violation of federal law. See 18 U.S.C. § 242. An FBI agent interviewed Walker. According to an FBI memorandum memorializing the details of the interview, Walker agreed to take a polygraph examination concerning his retraction of the statement about observing another officer behind Cox. The FBI memorandum, in relevant part, states:

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[Walker] felt [compelled to say he saw something during the IAD interview] because he knows [Cox] and likes [Cox and] he felt bad that he could not say what happened and therefore convinced himself that he actually saw someone or something. But since that interview he has convinced himself that he did not actually see anyone behind [Cox] or anyone hit [Cox]. WALKER also suggested that perhaps if he was hypnotised [sic] he might truly recall what was going on versus what he indicates was tunnel vision.

(emphasis added). Walker subsequently refused to take a polygraph examination.

The grand jury subpoenaed Petitioner and Walker to testify during the course of its investigation. Petitioner testified that: he did not observe anyone beating Cox; he pursued Brown to the fence; he did not see anyone between himself and Brown; he pursued Brown over the fence and apprehended Brown. Walker testified that: he did not see anyone beating Cox; he observed Cox chase Brown towards the fence; he observed Brown "flip over" the fence; he observed Cox grab at Brown as he flipped over the fence; and he observed Cox come back down without clearing the fence while Brown landed on the other side of the fence. The prosecutor also questioned Walker about his prior statement to IAD:

Q: [D]id you see someone behind Officer Cox as he was going through the fence?

A: No, I didn't.

Q: So, why did you say that you did to Internal Affairs?

A: At the time of the interview with Internal Affairs . . . I started feeling guilty, like I should have seen more than what really happened. . . . I sat there, and I'm conjuring up pictures of what he was asking me and what I should have seen. Like I said, I felt guilty not seeing more than what I saw and I should have, but my attention was focused on my chasing this guy towards the fence. Okay? He [the IAD officer] asked me the question, 'Did I see anyone,' or whatever the question was, and I was sitting there saying that from where I was, maybe I should have seen someone, and I told him, 'Yes, I did.' That's the reason for my answer.

Q: And why were you feeling guilty?

A: Like I said, I should have seen, things are happening directly in front of you, and you're sitting there saying, there are four people in this room, but I only saw two. It shouldn't be that way. I should have seen all four people. It was right in front of me.

Walker further testified he was "sure" about his grand jury testimony. The grand jury did not indict any officers for violating § 242.

A separate grand jury, however, indicted Petitioner for obstruction of justice and perjury. See 18 U.S.C. §§ 1503, 1623. The grand jury charged Petitioner with perjury for his testimony that: (1) he did not observe another individual chase Brown to the fence (count I); and (2) he did not observe anyone beating Cox (count II). The obstruction of justice charge (count III) was derivative of the other two charges. Petitioner pleaded not guilty. The Government produced Walker's grand jury transcripts during discovery, but not the FBI memorandum. See Fed. R. Crim. P. 16(a) (1) (E) .

Trial commenced in 1998. The Government presented the testimony of Cox, Walker, and Brown (the fleeing suspect) to prove Petitioner perjured himself before the grand jury. Cox testified he pursued Brown to the fence and unsuccessfully grabbed at Brown as he scaled the fence.

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Cox testified that no other officer was ever between himself and Brown. Walker testified he observed Cox chase Brown to the fence. Walker observed Brown scale the fence and Cox grab at him, but did not observe anything thereafter. Brown testified he observed an African-American male in black clothing (a description that fit Officer Cox) chasing him as he ran towards the fence and, as he scaled the fence, felt someone touch his foot. After scaling the fence, Brown looked back and observed police officers beating Cox. Brown made eye contact with a tall Caucasian officer (a description that fit Petitioner) who was standing next to the officers beating Cox. Brown testified the same tall white officer arrested him on the other side of the fence.

The jury convicted Petitioner on count I, finding Petitioner perjured himself when he testified he did not observe any other officer chase Brown to the fence. The obstruction of justice conviction on count III necessarily followed. The jury acquitted Petitioner on count II, finding Petitioner did not commit perjury when he testified he did not observe any officer beating Cox. We affirmed on appeal, holding (among other things) the Government presented sufficient circumstantial evidence to convict Petitioner. Conley I, 186 F.3d at 19-20. Petitioner subsequently learned the Government failed to disclose impeachment evidence, including the FBI memorandum, in its possession prior to trial. He filed a motion for a new trial, which the district court granted. Conley II, 103 F.Supp.2d at 58 (Keeton, J.) . On appeal, we reversed because "the district court did not apply the correct legal test[,]" Conley III, 249 F.3d at 39, and ordered the execution of Petitioner's sentence. Id. at 47.

Petitioner thereafter filed the instant § 2255 motion in the district court to set aside his perjury and obstruction of justice convictions. The district court granted the motion, finding Petitioner carried his burden under Fed. R. Crim. P. 33 of showing the suppressed evidence would probably produce an acquittal upon retrial. Conley IV, 164 F.Supp.2d at 223 (Keeton, J.); see also United States v. Wright, 625 F.2d 1017, 1019 (1st Cir. 1980) (establishing four elements a defendant must satisfy to be entitled to a new trial under Rule 33). On appeal, we again reversed. The en banc Court, however, withdrew the opinion when it granted Petitioner rehearing. Conley V, 323 F.3d at 11. The en banc Court held the district court incorrectly employed the Wright test when it granted Petitioner a new trial because a new-evidence claim under Wright is not cognizable under § 2255. Id. at 11, 13-14. The en banc Court, therefore, vacated the district court's decision and remanded the case for the district court to consider Petitioner's new-evidence claim under Brady, which is "a settled basis for collateral attack." Id. at 14, 16. In so doing, the en banc Court ordered the case reassigned to a different district judge....