Barrett v. US

• Decision Date: 30 April 1991
• Docket Number: Civ. No. 90-155-P.
• Citation: 763 F. Supp. 658
• Parties: James BARRETT, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Maine

763 F. Supp. 658

James BARRETT, Petitioner, v. UNITED STATES of America, Respondent.

Civ. No. 90-155-P.

United States District Court, D. Maine.

April 30, 1991.

James Barrett, pro se.

Kenneth J. King, Boston, Mass., for petitioner.

F. Mark Terison, Asst. U.S. Atty., Portland, Me., for respondent.

MEMORANDUM AND ORDER ON PETITION TO VACATE SENTENCE

GENE CARTER, Chief Judge.

On April 7, 1984, Petitioner was convicted by a jury in this Court of armed bank robbery in violation of 18 U.S.C. § 2113(d). He filed a motion for judgment of acquittal and a motion for a new trial, both of which were denied on June 26, 1984. United States v. Barrett, 598 F.Supp. 469 (D.Me. 1984). The First Circuit Court of Appeals affirmed the conviction and the denial of Petitioner's post-trial motions on June 21, 1985. United States v. Barrett, 766 F.2d 609 (1st Cir.1985). Petitioner now seeks to vacate or set aside his sentence under 28 U.S.C. § 2255. He asserts that there is newly discovered evidence necessitating a new trial, that prior to trial the Government suppressed significant exculpatory evidence, and that he was denied effective assistance of counsel. Petitioner seeks an evidentiary hearing and the disqualification in the hearing of Mark Terison, the Assistant United States Attorney who prosecuted the Barrett case. Section 2255 provides that the Court must grant a hearing on the petition unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.

Suppression of Evidence

A.

The Government's chief witness at trial, and the only witness linking Petitioner to the offense, was Joseph Aceto, who testified that he robbed the bank along with Petitioner and two other individuals. At the time of trial, Aceto was in custody for a variety of offenses and under a state indictment for a murder committed while he was in custody. At trial Petitioner was prohibited from asking Aceto about the pending murder charge and any expectation of leniency he might have concerning it based on his federal cooperation. The Court excluded such inquiry "into this most prejudicial matter," Barrett, 766 F.2d at 615, because Petitioner, out of the presence of the jury, was unable to establish a foundation for the claimed hope of leniency.

Petitioner asserts that he was unable effectively to impeach Aceto because the Government failed to disclose documents showing that Aceto hoped to receive assistance in the state murder prosecution in return for his testimony against Petitioner. Petitioner points specifically to a January 18, 1984 memorandum written by the Government prosecutor, Mark Terison, which provided:

On or about January 18, 1984 I talked with Tommy Brown who is a state of Arkansas prosecutor responsible for the murder prosecution of Joseph Aceto.... Brown also said that his case against Aceto was not a rock solid one and that both he and Aceto may be interested in reaching some sort of plea arrangement whereby Aceto would agree to come to Maine to testify in the Barrett case.

Petitioner also relies on newly discovered documents showing that Brown aided Terison in the federal prosecution by relaying communications between Terison and Aceto. Petitioner suggests that from this conduct and the fact that Brown obtained a continuance of the state murder prosecution until after the Barrett trial, Aceto would necessarily have expected some benefit in his state prosecution in return for his testimony against Barrett.

As the Court of Appeals stated in the opinion on Petitioner's direct appeal, a defendant has a right "to cross-examine an accomplice as to the nature of any agreement he has with the government or any expectation or hope that he may have that he will be treated leniently in exchange for his cooperation." Barrett, 766 F.2d at 614. In the section 2255 context, if a prosecutor fails to disclose information that might have been helpful in conducting such a cross-examination, a constitutional violation occurs 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, 678, 105 S.Ct. 3375, 3381, 87 L.Ed.2d 481 (1985). The Supreme Court explained further: "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. at 682, 105 S.Ct. at 3383.

By affidavit, Mark Terison asserts that he is unaware of any promises, rewards, inducements or threats made to Aceto beyond those testified to at trial,¹ that he is unaware of any inducements made to Aceto with respect to his testimony in the Barrett trial, and that neither he nor his office made any agreement with Aceto to secure favorable action for him on the pending murder charge. There is no evidence in the record showing an explicit agreement or promises or inducements with regard to Aceto's testimony at the Barrett trial. Petitioner urges the Court to infer an agreement between the prosecutors and Aceto in the same way a jury might infer an agreement between co-conspirators. Inference of such an agreement would require examination of the understandings of both parties to the alleged agreement. For purposes of this discussion, however, only the understanding of Aceto is pertinent, for it is the impeachment of Aceto's credibility that Petitioner claims was impeded by lack of access to the undisclosed documents.

Terison's memorandum recounts, at most, his recollection of an oral representation by an Arkansas prosecutor Brown concerning Brown's and Aceto's tentative interest in reaching some sort of plea arrangement that would include testimony in the Barrett case. Clearly, the prosecutor's representation that Aceto may be interested does not reach the level of an understanding or agreement which should have been disclosed. Neither, by itself, does it demonstrate a hope or expectation of leniency by Aceto. Rather, access to the memo would possibly prompt inquiry into whether prosecutor Brown was indeed expressing Aceto's interest or merely his own.

In some of the other now-disclosed documents, Aceto responds to questions about the federal prosecution presented to him by state prosecutor Brown. In one letter, Aceto says he has enclosed requested information. Without tying the subject in any way to the provision of information, Aceto rejects a plea agreement. In another document Brown writes to Aceto concerning a plea agreement for 20 years consecutive to his current sentence without mentioning a quid pro quo. The letter contains a handwritten postscript that Brown has received a letter but not other mail from Aceto, "so, I am getting the questions and putting them on separate sheets." While these documents establish a relationship between the state and federal prosecutors concerning the state prisoner Aceto and the federal prosecution, they do not, by themselves, establish an agreement or express a hope or expectation of leniency by Aceto in return for the information being provided.

Petitioner argues: "One cannot imagine that Brown would have offered to assist, and assisted Terison as he did without Aceto coming to the obvious conclusion that, in return for his testimony against Barrett, Terison would intercede on his behalf in his state prosecution." Petitioner's Amended Motion, at 12. The Court cannot find, however, that the documents, and in a broader sense the conduct of Brown and Terison, provide the basis for the inference suggested by Petitioner any more than it could, at trial, allow the pendency of the murder charge alone to provide an adequate foundation for an expectation of leniency. The documents are devoid of expression of Aceto's feelings or understandings, except for his rejection of a plea agreement, which, while juxtaposed with the provision of information in some of the communications, is not textually linked to it in any way.² Access to these documents alone could not establish bias on the part of Aceto. As with the Terison memorandum, however, access to the documents could well have prompted inquiry into why Aceto provided the information and into his understanding of his relationship to the prosecutors.³

Even if these documents and those concerning the scheduling of the state trial might have been helpful to the defense in conducting the cross-examination of Aceto, the Court cannot find that they were material in the sense necessary to constitute a constitutional violation. The undisclosed materials plainly raise the question of what expectations Aceto might have had concerning his state prosecution given his assistance in the federal prosecution. As the trial record, the Court's opinion on post-trial motions, and the Court of Appeals' opinion demonstrate, Petitioner had ample opportunity at trial to inquire on this very point. See United States v. Barrett, 598 F.Supp. at 474-75; United States v. Barrett, 766 F.2d at 615. As the Court of Appeals explained:

After making its initial exclusionary ruling, the court was persuaded to allow defense counsel to call back Aceto, at considerable expense and trouble to the court and government, ..., so that defense counsel could try to establish out of the jury's presence a foundation for the claimed hope of leniency.... Defense counsel never asked the critical question whether the government had made any agreements with respect to the pending charge or whether Aceto had some hope of leniency with respect thereto.

Barrett, 766 F.2d at 615.

Counsel clearly knew at trial what he had to establish to gain admission of testimony concerning the pending murder conviction. Given the extraordinary opportunity Petitioner had to establish the critical foundational point, the Court cannot find that having had these documents in his possession would have made Petitioner's counsel any more likely or able to ask the required questions. Therefore, there is not "a...