Bolduc v. U.S., CIV.A. 01-11376-PBS.
| Decision Date | 02 July 2003 |
| Docket Number | No. CIV.A. 01-11376-PBS.,CIV.A. 01-11376-PBS. |
| Citation | 265 F.Supp.2d 153 |
| Parties | Frank BOLDUC and Francis Larkin, Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Stephen B. Hrones, Hrones & Harwood, Boston, for Frank Bolduc, Francis Larkin, Plaintiffs.
Roberta T. Brown, Anita Johnson, United States Attorney's Office, Boston, for USA, Defendant.
Plaintiffs Frank Bolduc and Francis Larkin 1 bring this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1364(b), 2671-80 (2002), alleging they spent eight years serving prison sentences for crimes they did not commit—the attempted robbery of one Wisconsin bank (the "Southgate bank") and the robbery of another (the "Oklahoma Avenue bank")— because of the negligence of the Federal Bureau of Investigation. Now exonerated by the confessions of the real "Trench Coat Robbers," Bolduc and Larkin claim that FBI Special Agent Daniel S. Craft negligently failed to give the federal prosecutors exculpatory evidence that three eyewitnesses to the attempted robbery of the Southgate bank had identified other people as the culprits, and that Craft's superiors negligently supervised him.
This case raises several difficult legal questions, including whether Wisconsin law, which the FTCA incorporates here as the "law of the place," see 28 U.S.C. § 1346(b), allows for a negligence claim against law-enforcement personnel for mishandling investigative reports, and whether the FTCA's "discretionary function" exception, see 28 U.S.C. 2680(a), bars such a claim against a law-enforcement officer. But the Court need not reach these legal questions, in light of its factual findings.
After trial, the Court concludes that the FBI likely failed to provide the exculpatory evidence on the Southgate bank robbery to the prosecutors or defense attorneys before the trial of Bolduc and Larkin. Plaintiffs, however, did not prove that the FBI's failure caused them harm, because while the exculpatory Southgate evidence probably would have resulted in an acquittal on the Southgate charges, plaintiffs have not shown that the Southgate evidence likely would have effected an acquittal on the Oklahoma Avenue charges, which themselves carried lengthy prison sentences. Moreover, even if Bolduc and Larkin had been acquitted on all charges in Wisconsin, they would have been prosecuted and convicted for the robbery of an armored car in Chelmsford, Massachusetts. In short, Bolduc and Larkin would have spent the same amount of time in jail, even had they been given the exculpatory Southgate evidence.
With that said, the FBI's actions in the Wisconsin bank-robbery cases left much to be desired. Agent Craft likely intentionally withdrew another FBI agent's reports from the Wisconsin case file, and also negligently failed to send his own reports to the case file. The FBI's subsequent investigation of this matter was deficient: Six days after Craft voluntarily retired from the FBI on January 3, 2003, investigators advised closure of the investigation, stating, (Pls' Ex. 19.) Though Craft claims his retirement had nothing to do with the investigation into his conduct, his retirement was abrupt; as of October 2002, he had no intention of retiring. The investigation was closed "without findings" after Craft's retirement. The FBI should be more accountable in investigating a failure to turn over exculpatory evidence in a serious criminal prosecution.
On June 28, 1988, two middle-aged white men attempted to rob the First Wisconsin Bank at the Southgate Mall in Greenfield, Wisconsin. They failed, because the vault had already been locked for the night.
The FBI case agent in charge of the investigation was Agent Craft. Craft was assisted by a new Special Agent, Derrel S. Craig, who had been on the job just a few weeks. Craft was the acting supervisor of the Milwaukee bank-robbery unit, and he supervised Craig. Craft considered the Southgate robbery a "nothing robbery" because there was no loss to the bank. Because so little was at stake, Craft initially let Craig "run with" the investigation. Craft, however, reviewed and initialed all investigative reports—"302 reports," in FBI parlance—before the reports became part of the official file for the Southgate case.
As background, Craft was a committed agent who was willing to violate FBI policies when he believed it was in the interest of justice. For example, he violated FBI policies in order to get a confession in an investigation involving the murder of a child in Minnesota.
On November 15, 1988, Agents Craft and Craig showed a photographic array of possible suspects to four eyewitnesses from the Southgate bank: Michael Dams, Robert Wesolowski, Jami Wiseman (now Radtke), and Judith Webb. None of the photographs depicted Bolduc or Larkin, or the men who turned out to be the actual culprits. Dams and Wesolowski identified the photographs of Allan Daniel Wilwerding and Douglas Wayne Thompson as the individuals who had attempted to rob the bank. Wiseman identified Wilwerding. Judith Webb identified nobody.
Craft and Craig dictated 302 reports describing the identifications by Dams, Wesolowski, and Wiseman; the reports state they were transcribed on November 30, 1988. Two sets of 302 reports were generated: one by Craft, and one by Craig. The two sets of reports differed in the degree of certitude attributed to the witnesses' identifications: Craig's reports stated the witnesses identified Wilwerding and Thompson as "identical" to the culprits, while Craft's reports stated that the witnesses identified Wilwerding and Thompson as "similar" to the culprits. For example, Craig's 302 report for Wesolowski stated:
The following photo spread was shown to ROBERT WESOLOWSKI, Manager, First Wisconsin Bank, Southgate, in attempt to identify the unknown subjects (unsubs) who robbed that institution on June 28, 1988. After viewing the below listed photographs, WESOLOWSKI identified the photograph of ALLAN DANIEL WILWERDING and DOUGLAS WAYNE THOMPSON as being identical with the two individuals who robbed them on June 28, 1988:
MANFORD WILBER SCHMIDT, ROBERT WOLFGANG SCHMIDT, JACK KUPPER, PATRICK MICHAEL MITCHELL, DOUGLAS WAYNE THOMPSON, ALLAN DANIEL WILWERDING, and MICHAEL SAVAGE.
After identifying the photos of THOMPSON and WILWERDING, WESOLOWSKI initialed and dated the back of the two photographs.
(Pls' Ex. 1.) In contrast, Craft's 302 report for Wesolowski stated:
The following photo spread was shown to ROBERT WESOLOWSKI, Manager, FIRST WISCONSIN BANK SOUTHGATE, in an attempt to identify the unknown subjects (unsubs) who robbed that institution on June 28, 1988. After viewing the below-listed photographs, WESOLOWSKI advised that the photographs of ALLAN DANIEL WILWERDING and DOUGLAS WAYNE THOMPSON appeared similar to the individuals who robbed them on June 28, 1988:
MANFRED WILBER SCHMIDT ROBERT WOLFGANG SCHMIDT JACK KUPPER
WESOLOWSKI stated that this is not a positive identification but only that these two individuals resembled the two unsubs who robbed the FIRST WISCONSIN BANK on June 28, 1988.
(Id.) The same discrepancy as to certitude existed in the 302 reports for Dams and Wiseman.2
It is unclear which set of 302 reports accurately depicted the identifications. Craft's photo-array practice was to request an eyewitness to place a full signature on the back of a photograph if it was "identical" to the culprit, but to initial the back of a photograph if the photograph was "similar" to the culprit^and Dams, Wesolowski, and Radtke initialed but did not sign the back of the photographs that they selected. It is unknown, however, whether Craft or Craig asked the witnesses to initial the photographs, and it is also unknown whether Craig attached the same significance to initialing as Craft did. Craft's practice was not universal at the FBI, or even in the Milwaukee bank-robbery unit; for example, Special Agent Margaret Cronin, who was involved in investigating the Oklahoma Avenue bank robbery (discussed below), asks eyewitnesses to sign or initial a photograph if it is "identical" to the culprit.
Several air telegrams ("airtels") from the Milwaukee FBI office to, other FBI offices were both contemporaneous and consistent with the Craig 302 reports. On November 30, 1988—the same day the Craig and Craft 302 reports were transcribed—the Milwaukee FBI office sent an airtel to the Omaha FBI office (with copies to several other FBI offices, including Minneapolis) regarding the Southgate robbery. The airtel stated:
On 11/15/88, Milwaukee Division showed photo spreads containing [RDACTED] and two of the witnesses selected [REDACTED] as being identical with the unsubs [unidentified subjects] in captioned Milwaukee robbery. A third witness selected the photograph of [REDACTED] as being identical with one of the unsubs. Milwaukee Division is in the process of attempting to obtain additional corroborating evidence before charging [REDACTED] with captioned robbery.
(Pls' Ex. 7 at 2) (emphases added.) On December 2, 1988, the Milwaukee FBI office sent an airtel to the Minneapolis FBI office that repeated the "identical" characterization of the identifications. (Pls' Ex. 6 at 2.) The December 2, 1988 airtel also noted that the Milwaukee office would be sending the "pertinent" 302 reports to Minneapolis. (Id. at 3.) The Milwaukee office sent the Craig 302 reports to Minneapolis.
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