U.S. v. Twomey, 86-1108

• Decision Date: 18 December 1986
• Docket Number: No. 86-1108,86-1108
• Citation: 806 F.2d 1136
• Parties: UNITED STATES of America, Appellee, v. David P. TWOMEY, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1136

806 F.2d 1136

UNITED STATES of America, Appellee, v. David P. TWOMEY, Defendant, Appellant.

No. 86-1108.

United States Court of Appeals, First Circuit.

Argued Sept. 4, 1986.

Decided Dec. 18, 1986.

Harry L. Manion, III with whom Earle C. Cooley, Thomas G. Guiney and Cooley, Manion, Moore & Jones, P.C., Boston, Mass., were on brief for defendant, appellant.

Janis M. Berry, Asst. U.S. Atty., with whom Thomas J. Curley, Jr., Asst. U.S. Atty., and William F. Weld, U.S. Atty., Boston, Mass., were on brief for appellee.

Before BOWNES and TORRUELLA, Circuit Judges, and CARTER, ^* District Judge.

GENE CARTER, District Judge.

Appellant, a former federal prosecutor, was convicted of four violations of federal law arising out of his sale of confidential law enforcement information to a drug smuggler whom he had investigated in the course of his official duties. He was found guilty of violating 18 U.S.C. Sec. 371 by conspiring to subvert and impede a criminal investigation being conducted by federal agencies. He was also found guilty of conspiring to obstruct justice by revealing matters pending before federal grand juries, in violation of 18 U.S.C. Secs. 371 and 1503, and he was found guilty of two charges involving substantive obstructions of justice: disclosing the existence of a wire tap and the return date of a secret indictment. The appellant was acquitted on one count of bribery and one count of conspiring to aid and abet the importation of controlled substances.

The appellant was an Assistant United States Attorney from 1973 until February, 1978, and a Special Attorney with the United States Department of Justice, New England Organized Crime Strike Force, from February 6, 1978 through May 15, 1981. As a member of the strike force, the appellant participated in the investigation of Frank J. Lepere, a drug smuggler who was ultimately convicted of participating in eight separate importations of large quantities of marijuana. The government charged that the appellant sold Lepere information about the investigation, receiving in return a total of approximately $210,000 in cash and a high-speed power boat. The government alleged that the appellant disclosed the location of telephone wire taps, the nature of the evidence being provided by government witnesses, the status of ongoing grand jury investigations, and the dates of secret indictments to be returned against criminal defendants, including the precise date on which a secret indictment would be returned against Lepere. The appellant had access to such information; first, as an active member of the strike force, and, after his resignation from the strike force on May 15, 1981, as a confidante of his former colleagues still on the force. After Lepere was arrested, he became the government's chief witness against the appellant and testified that the appellant had regularly provided him with confidential information between the years 1981 and 1984. The appellant raises seven issues on appeal. We will consider each in turn.

II.

First, the appellant argues that he should have been allowed to cross-examine government witnesses concerning evidence of Lepere's alleged involvement in two murders. One former associate of Lepere, Arnold Katz, had told the FBI that Lepere had told him that he had arranged for the murder of two individuals. Lepere has denied any such involvement and the defense has offered no evidence of involvement beyond Katz's statement.

A defendant's right to cross-examine is fundamental and demanding of great respect, Alford v. United States, 282 U.S. 687, 691-92, 51 S.Ct. 218, 219-20, 75 L.Ed. 624 (1931), however, a trial judge retains wide latitude to impose reasonable limits in order to avoid prejudice to a party or confusion of the issues. Delaware v. Van Arsdall, --- U.S. ----, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986).

The trial court always has the discretion to restrict cross-examination where it is likely to be more prejudicial than probative, and an unsubstantiated charge that Lepere was involved in two murders is highly prejudicial and of little probative value. The line of questioning is said to be probative on Lepere's motive to cooperate with the government. The appellant suggests that the federal government may have agreed not to share its information with state authorities and to thereby shield Lepere from prosecution for murder in return for his testimony against the appellant. ¹ There is no evidence to support such a charge, and, in fact, Lepere's plea agreement explicitly states that it does not protect him from prosecution for crimes of violence. Furthermore, we are satisfied that the circumstances from which the jury could decide whether Lepere might have been inclined to testify falsely in favor of the government were adequately presented. United States v. Blackwood, 456 F.2d 526, 530 (2d Cir.1972). The jury heard a thorough cross-examination of Lepere that clearly established that the government recommended a favorable sentence for him in return for his agreement to identify and then testify against the appellant.

In order to establish that the trial judge abused his discretion in limiting cross-examination, the defendant must show that the restrictions imposed were clearly prejudicial. Harris v. United States, 367 F.2d 633, 636 (1st Cir.1966). An abuse of discretion has occurred only if the jury is left without "sufficient information concerning formative events to make a 'discriminating appraisal' of a witness's motives and bias." United States v. Campbell, 426 F.2d 547, 550 (2d Cir.1970). Such was not the case here, and we find that the trial court's decision to exclude testimony concerning Lepere's alleged involvement in the murders was proper.

III.

The appellant claims that it was error for the trial court to give the jury a definition of the word "lie" while he was on the stand and being cross-examined by the prosecution. Although the court's definition was given in neutral terms and came after the word "lie" had been used repeatedly in an exchange between the prosecution and the defendant, ² the defense argues that the jury could have inferred that by giving the definition, the judge was indicating that he did not believe the defendant's testimony.

A trial judge should be fair and impartial in his comments during a jury trial. Crowe v. Di Manno, 225 F.2d 652, 655 (1st Cir.1955); United States v. Candelaria-Gonzalez, 547 F.2d 291, 297 (5th Cir.1977). However, a finding of partiality should be reached only "from an abiding impression left from a reading of the entire record," Offutt v. United States, 348 U.S. 11, 12, 75 S.Ct. 11, 12, 99 L.Ed. 11 (1954), and need not be reached on the basis of a few improper comments. United States v. Porter, 441 F.2d 1204, 1215 (8th Cir.1971), cert. denied, 404 U.S. 911, 92 S.Ct. 238, 30 L.Ed.2d 184 (1971); see also United States v. James, 528 F.2d 999, 1022 (5th Cir.1976).

In this case the defense points to an isolated comment, neutral on its face, that the trial judge could easily have felt was warranted by the confusing nature of the testimony. Indeed, it is clear that the defendant and the government prosecutor were ascribing two different meanings to the word "lie." It is true that most jurors would be expected to know what "lie" means and that the definition might better have been omitted. However, this single comment, made in the course of a long and well-conducted trial, falls far short of reversible error, which will be found only if judicial intervention is substantial, United States v. Robinson, 687 F.2d 359, 361 (11th Cir.1982); see also United States v. Smith, 561 F.2d 8, 14 (6th Cir.1977), cert. denied, 434 U.S. 958, 98 S.Ct. 487, 54 L.Ed.2d 317, 434 U.S. 972, 98 S.Ct. 524, 54 L.Ed.2d 461 (1977), 434 U.S. 1019, 98 S.Ct. 741, 54 L.Ed.2d 766, 434 U.S. 1048, 98 S.Ct. 897, 54 L.Ed.2d 800 (1978), and interferes with a defendant's right to a fair trial. ³ United States v. Billups, 692 F.2d 320, 327 (4th Cir.1982); see also United States v. Parodi, 703 F.2d 768, 776 (4th Cir.1983); United States v. Bennett, 702 F.2d 833, 836 (9th Cir.1983); and United States v. Price, 623 F.2d 587, 593 (9th Cir.1980).

IV.

The appellant next argues that his fifth amendment due process rights were violated by the trial court's ruling that the government need release certain pieces of exculpatory evidence only twenty-four hours in advance of a witness testifying. ⁴ The appellant did not challenge the twenty-four-hour ruling below and therefore is precluded from raising the issue on appeal. ⁵ Had the issue been properly preserved, the appellant still would not have prevailed on the merits. Failure of the government to properly produce exculpatory evidence results in a constitutional error requiring reversal "only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial." United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 3381, 87 L.Ed.2d 481 (1985). The appellant has failed to persuade this court that the prosecution failed to turn over, or impermissibly delayed turning over, any exculpatory evidence that even remotely approaches the level of significance contemplated in Bagley.

V.

We come to the same conclusion in regard to the DEA memorandum that was provided to the defense during trial under provisions of the Jencks Act, ⁶ but which the defense claims it should have received at an earlier date under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The memorandum was referred to at trial by both sides and was submitted to the jury as a government exhibit. It was prepared by DEA agents in October 1983 as a summary of evidence suggesting that Lepere was able to obtain confidential information about their investigation. Lepere's source was at that time unknown, but the information summarized in the memorandum is of little exculpatory value. ⁷ We find that the government acted properly in handling...