In re Auerhahn

• Decision Date: 22 July 2013
• Docket Number: No. 11–2206.,11–2206.
• Citation: 724 F.3d 103
• Parties: In re Jeffrey AUERHAHN.
• Court: U.S. Court of Appeals — First Circuit

724 F.3d 103

In re Jeffrey AUERHAHN.

No. 11–2206.

United States Court of Appeals, First Circuit.

July 22, 2013.

Nancy E. Kaufman, First Assistant Bar Counsel, Office of Bar Counsel, for appellant.

Peter B. Krupp, with whom Max D. Stern was on brief, for amicus curiae Massachusetts Association of Criminal Defense Lawyers, Inc. in support of appellant.

Michael D. Ricciuti, with whom Michael DeMarco, Ryan M. Tosi, Lindsay S. Bishop, and K & L Gates LLP were on brief, for appellee.

Vijay Shanker, Attorney, United States Department of Justice, with whom Lanny A. Breuer, Assistant Attorney General, and John D. Buretta, Acting Deputy Assistant Attorney General, were on brief, for amicus curiae United States in support of appellee.

Lawrence J. Fox, John Reinstein, and Nancy Gertner on brief for amici curiae legal academics in support of appellant.

Before TORRUELLA, RIPPLE^* and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

Massachusetts Bar Counsel (“Bar Counsel”) appeals a decision by a three-judge panel of the United States District Court for the District of Massachusetts dismissing Bar Counsel's petition for disciplinary sanctions against Assistant United States Attorney Jeffrey Auerhahn. We dismiss the appeal for lack of jurisdiction.

I. Background

Following the revelation that Auerhahn and others had withheld exculpatory information from two federal criminal defendants who were convicted and served substantial terms in prison, the Massachusetts district court asked Bar Counsel to investigate Auerhahn's conduct and recommend whether to initiate disciplinary proceedings. Bar Counsel did so, and the court appointed a three-judge panel (the “Panel”) to determine whether to sanction Auerhahn. The Panel concluded that Auerhahn had not violated any rules of professional conduct and declined to sanction him. Bar Counsel appeals on the grounds that the Panel abused its discretion and incorrectly interpreted the applicable disciplinary rules. We begin with an abridged version of the Panel's findings of fact, which are largely undisputed on appeal.

A. Investigation of Vincent Limoli's Murder

In 1985, the Department of Justice hired Auerhahn as a special attorney assigned to the Organized Crime and Racketeering Section of the New England Strike Force (“Strike Force”). He remained with the Strike Force until 2005, when he was reassigned to another unit in the United States Attorney's Office for the District of Massachusetts, where he remains.

Among Auerhahn's duties while with the Strike Force were the investigation and prosecution of members of the Patriarca crime family of La Cosa Nostra, an organized criminal enterprise operating in, among other places, Boston's North End neighborhood. Early in his career with the Strike Force, Auerhahn became the lead attorney in an investigation into whether Vincent Ferrara, a “soldier” in La Cosa Nostra, was involved in the 1985 murder of Vincent Limoli, an associate in a crew under Ferrara's direction. Auerhahn worked closely with Martin Coleman, a Boston Police Department detective, and Michael Buckley, an FBI special agent, who were both assigned to the Strike Force. Auerhahn also worked with Gregg Sullivan, another Assistant United States Attorney.

Limoli was murdered on October 28, 1985. Pasquale Barone and Walter Jordan, who worked for Ferrara, were both seen with Limoli shortly before his murder, and both fled Boston soon after the murder.

In 1988, Ferrara was under investigation for his potential involvement in numerous murders. In furtherance of the investigation into these murders, Jordan was arrested on a material witness warrant. Upon being arrested, Jordan quickly began cooperating with the government and provided the Strike Force with information on Ferrara, and on La Cosa Nostra generally. Jordan entered into an agreement with the Department of Justice, represented by Auerhahn, regarding his cooperation in the Ferrara investigation. Under the agreement, Jordan was to provide full and truthful knowledge about Ferrara and his enterprise to the government in exchange for nearly complete immunity from any related criminal prosecution, as well as entrance into the Federal Witness Protection Program.

As part of his cooperation with the government, Jordan spoke with several members of the Strike Force. He admitted to having been involved in Limoli's murder and explained that Barone killed Limoli on Ferrara's orders because Limoli had stolen a bag containing cocaine, money, and guns from another associate of La Cosa Nostra. Jordan's sole source of information about Ferrara's involvement in the Limoli murder was Barone.

One week after his arrest, Jordan testified before a grand jury to the details of Limoli's murder. Jordan testified that Barone told him that Limoli had “gotten the ‘X’ ” and was no longer “under Vincent Ferrara's wing” because of Limoli's theft. Regarding the murder itself, Jordan admitted that Barone asked him to help by setting up a meeting with Limoli. Jordan arranged the meeting with Limoli on the pretense of consummating a drug deal with a third party. Instead, Barone met Limoli on his way to the supposed drug deal and shot and killed him.

Jordan also testified to meetings in the days before and after the murder. Several days before Limoli's murder, Jordan was in a car with Barone and another La Cosa Nostra member named Joseph Bottari. At that time, Barone solicited Bottari's assistance in the murder, saying that “Jimmy had to be clipped” and that Ferrarahad ordered the hit. Bottari refused to help Barone with the murder.

A few days after the Limoli murder, Jordan and Barone met with Ferrara in a black Lincoln automobile. Ferrara was in the front seat with another man who was unknown to Jordan. Ferrara began asking questions about the Limoli murder that made it appear that he was uninvolved. Jordan testified that he was confused by Ferrara's questions and thought that Ferrara was trying to hide his involvement in the murder from the unidentified person.

A day or two after the meeting in the black Lincoln, Barone was summoned to a North End restaurant to meet with Ferrara. Barone returned from the restaurant within thirty minutes, “hysterical,” and told Jordan that they needed to leave town immediately because Ferrara was going to kill them. According to Jordan, Barone told Jordan that he did not know why Ferrara wanted to kill them.

On or about November 5, 1985 following Barone's meeting at the restaurant, Jordan and Barone left Boston. Jordan went to Myrtle Beach, South Carolina, where Barone visited him in the summer of 1986. In his initial interviews, Jordan told FBI agent Buckley that while they were in South Carolina, Barone discussed killing Limoli and always asserted that Ferrara had ordered the hit.

After his grand jury testimony, Jordan was relocated to Maine to await federal witness protection services. During this time, Jordan met extensively with members of the Strike Force, including Auerhahn. The FBI reports on these interviews indicate that Jordan consistently told the same story about Ferrara ordering the murder of Limoli.

Barone was arrested in Ohio on July 22, 1988, and was interviewed by two members of the Strike Force. Although Barone initially appeared inclined to cooperate, he later ceased all cooperation. In his brief period of cooperation with the government, he largely corroborated Jordan's accounts. Although he denied any involvement with Limoli's murder, Barone stated that the reason for Limoli's murder was Limoli's theft. Barone also confirmed the meetings with Ferrara in the black Lincoln and at the restaurant.

Following further investigation, Barone and Ferrara were among eight defendants named in a sixty-five count superseding indictment filed in March 1990 in the United States District Court for the District of Massachusetts. Several of these counts related to Ferrara's and Barone's involvement in Limoli's murder. In order to support comprehensive “RICO” charges that were also a part of the indictment, the government had to establish a pattern of racketeering and thus, at least as to Barone, had to prove that Barone had conspired with Ferrara and others to murder Limoli in order to gain, maintain, or advance their positions within the Patriarca family. The government's main theory was that Barone murdered Limoli on Ferrara's instruction in order to move up in La Cosa Nostra and that Ferrara had ordered the hit to vindicate the theft from a “made” La Cosa Nostra member. Jordan's testimony as to Barone's statements that Ferrara had ordered the hit was, therefore, crucial to proving the charges in the indictment.

B. Preparation for Trial

Between 1988 and 1991, Jordan was in the Witness Protection Program. In anticipation of the trial of Barone and Ferrara scheduled to begin in September 1991, Auerhahn, Sullivan, Coleman, and Buckley met with Jordan in Salt Lake City, Utah from July 22 to 24, 1991 (the “Utah meeting”). Auerhahn and Sullivan took copious notes during the three days of meetings (the “Utah notes”).

In these interviews, Jordan again told the Strike Force members about the restaurant meeting and Barone's visit to Myrtle Beach. Jordan explained that when, in South Carolina, he again asked Barone about why Ferrara wanted to kill them, Barone said that he did not know. Jordan also told the Strike Force that his parents told him that Barone was supposed to kill Jordan the night that they killed Limoli because Jordan was a witness. These statements are all reflected in the Utah notes. Concerned that Jordan appeared to be waffling about the crucial link to Ferrara, Sullivan instructed Coleman to talk to Jordan to shore him up.

Late on the night of July 24, 1991, Jordan visited Coleman in his hotel room. Jordan disclosed that he had withheld certain information concerning Ferrara's involvement in the Limoli homicide. According to Bar Counsel, Jordan told Coleman that, after Barone returned from the...