Kettenbach v. Demoulas

• Decision Date: 06 October 1995
• Docket Number: Civ. A. No. 92-10482-PBS.
• Citation: 901 F. Supp. 486
• Parties: Michael L. KETTENBACH and Leland Properties, Inc., Plaintiffs, v. Arthur S. DEMOULAS, Defendant.
• Court: U.S. District Court — District of Massachusetts

901 F. Supp. 486

Michael L. KETTENBACH and Leland Properties, Inc., Plaintiffs, v. Arthur S. DEMOULAS, Defendant.

Civ. A. No. 92-10482-PBS.

United States District Court, D. Massachusetts.

October 6, 1995.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David J. Burgess, Gary C. Crossen, Anthony Mirenda, Audrey C. Mark, Foley, Hoag & Eliot, Boston, MA, for Michael L. Kettenbach, Leland Properties, Inc.

Carol R. Cohen, Robert C. Gerrard, Thomas S. Fitzpatrick, James G. Cockfield, Davis, Malm & D'Agostine, P.C., Boston, MA, George A. McLaughlin, III, McLaughlin Brothers, Boston, MA, Anthony R. Pelusi, Jr., Cambridge, MA, for Arthur S. Demoulas.

Gregory I. Massing, Attorney General's Office, Boston, MA, for Thomas F. Reilly.

Jonathan Chiel, United States Attorney's Office, Boston, MA, for U.S.A.

Jeffrey Denner, Cuddy Bixby, Boston, MA, for James Sullivan.

MEMORANDUM AND ORDER

SARIS, District Judge.

INTRODUCTION

The plaintiffs Michael L. Kettenbach ("Kettenbach") and Leland Properties, Inc., ("Leland")¹ move for relief from judgment pursuant to Fed.R.Civ.P. 60(b)(2) (Docket No. 208), or to supplement their pending motion for a new trial pursuant to Fed. R.Civ.P. 59 (Docket No. 170), based on "newly discovered evidence."²

Specifically, this evidence is a recorded audiotape of a conversation between Christine Primo ("Primo") and Edmund J. Browne, Jr., ("Browne"). Kettenbach argues that this tape contains incriminating statements by Browne admitting that he participated in a conspiracy with defendant Arthur S. Demoulas ("Arthur S." or "Demoulas") and certain of his agents and associates to intercept oral communications at Demoulas Super Markets, Inc. ("DSM") and conceal their activities. Plaintiffs also submitted an affidavit of Primo in which she states that Browne had admitted wiretapping the DSM offices prior to the taped conversation.

Defendant parries that the taped conversation contains a statement by Browne denying involvement in the wiretap scheme and that his remaining statements to Primo are mere braggadocio. The transcript can fairly be read either way.

The Court holds that this evidence would have been admissible at trial, as a statement by a co-conspirator, Fed.R.Evid. 801(d)(2)(E), and would have been "of such a material and controlling nature as would probably have changed the outcome," only if read (and heard) in conjunction with the sworn statements of Primo. Hoult v. Hoult, 57 F.3d 1, 6 (1st Cir.1995) (alterations in original).

Because the testimony of Primo is key to both the issues of materiality and admissibility, the Court is unwilling to determine the plaintiffs' motion without a more ample record. Therefore, the Court orders the parties to take the deposition of Primo, Browne and one Stephen Harvey in order to develop a record upon which a Fed.R.Evid. 104(b) preliminary determination may be based.

FACTUAL BACKGROUND

A. The Trial

On February 27, 1992, Plaintiffs filed a complaint³ alleging that Arthur S. trespassed on their property and invaded their privacy by installing electronic listening devices in violation of federal and state wiretap laws. The case eventually proceeded to trial, which commenced on July 25, 1994 and ended on August 12, 1994. Contemporaneous with the present action were a series of high profile, high stake actions brought in Massachusetts state court by and between various members of the Demoulas family.⁴

At trial, Kettenbach attempted to prove that an agent of Demoulas placed electronic listening devices at DSM and other places as a method of gathering confidential information for use in the state litigation. Specifically, Kettenbach's primary theory was Arthur S. hired someone named Kevin Kattar with gifts and money worth upwards of $200,000 in return for installing one of these devices within Kettenbach's offices. In addition, Kettenbach endeavored to prove that Demoulas illegally entered his office and proceeded to copy private documents. Plaintiffs relied in large part on circumstantial evidence of transactions which they claimed Arthur S. could have known about only if he had access to wiretapped conversations.

Categorically denying his involvement in any wiretap scheme, Arthur S. argued to the jury that Kettenbach and his inlaws planted the devices themselves as a set up. According to him, Plaintiffs planned to utilize a favorable verdict from this Court to support a defense of "unclean hands" in the state litigation. Demoulas also put forth evidence that focused on both the quality and the location of the eavesdropping devices. The devices were described as unsophisticated, and they were placed at locations so that eventual discovery was inevitable. Significantly, there were no bugs in the offices of Telemachus Demoulas, the chief protagonist in the state litigation, who declined to testify at the federal trial ostensibly due to heart problems. Furthermore, defendant offered testimony that his knowledge of the impending transactions, particularly one between DSM and Walgreens, resulted from a company rumor.

At the end of trial, on August 12, 1994, the jury returned a verdict in favor of defendant on Counts I, III and VI. (Docket No. 162). On August 15, 1994, the Court directed a verdict for Demoulas on Counts II, IV and V. (Docket No. 163). The judgments were entered on August 22, 1994.

B. The Browne-Primo Tape

On January 26, 1995, a little more than six months after the entry of judgment, Primo travelled to Kittery, Maine, with Browne, during which Primo recorded a conversation with Browne discussing certain aspects of the "Demoulas case." Browne was not aware that he was being recorded.⁵ As is evident from a transcript of the recording, Primo and Browne were engaged in a romantic dalliance, which lulled Browne into confiding in Primo, and discussing his involvement in electronic operations conducted in and around DSM headquarters on June 27, 1990. Browne is a private investigator at times employed by M. Alexander Investigations, Inc., an investigative agency owned and operated by Michael J. Szpuk ("Szpuk"). Demoulas Aff. ¶ 2-4; Szpuk Aff. ¶ 1-2 (dated July 10, 1995).

The transcript of the recording reveals several cryptic and ambiguous comments by Browne upon which the parties wish to put very different interpretations. Primo begins the allegedly "incriminating" portion of the conversation by requesting "professional electronic help" from Browne regarding a fictitious scheme to install listening devices at Primo's husband's former place of employment. Tape Tr. at 47-48. Browne asked whether she had "told him about the Demoulas case." Id. at 48. The following colloquy ensued with relevant parts excerpted:

Primo: I told him, I didn't tell him about the Demoulas case itself. I told him that I knew that you ... I told him I knew of a job that I knew that you did.... I didn't tell him about the Demoulas case 'cuz that is none of his business but I told him that I knew of a case that you did with somebody you used to work with,

....

Browne: Did you tell him I was also in federal court testifying, we won the case, but —

Primo: No, I didn't have to get into that Id. at 48. Primo then asked whether Browne had been compensated for his work, and Browne replied, "It's still ... No, 'cuz it's not totally over with yet. The federal, they appealed it to the state, to the state level. It's in state court now. I was served a subpoena for a, for a deposition for state court now." Id. at 49.⁶

Later in the conversation, Browne alluded to "Michael," presumably his employer, Szpuk, and a Connecticut state trooper with whom he did some electronic surveillance work. See id. at 49 (Browne: "I'm just saying that he's the one (the Connecticut state trooper) that we, that did the job for us."). The latter figure apparently is William Hawks ("Hawks"), a retired Connecticut state trooper with expertise in electronic surveillance. Id. Exactly what was the nature of the "job" is not discussed explicitly in the recording.

At one point, Primo asks whether Browne was "bagged" for failing to "change the batteries." Id. at 50. Again, there is no description of the device or its location. The reference to batteries, however, was linked to the "Demoulas case" by the following exchange:

Primo: Didn't you get bagged? You never changed the batteries or something?

Browne: Well we changed but I never got arrested, no. He never got arrested.

Primo: Thought you changed the batteries or something.

Browne: They tried. That was in the Demoulas case, they tried to say that we ... hardwired the corporate offices.

Primo: But ya did.

Browne: But, Chris, that's what they say. I never did that.

Primo: They say ... aw right.

Browne: They said a lot of things, Chris. Did they tell you that I did those nasty things?

Id.

Browne then asked Primo whether Joseph E. McCain, an investigator retained by Kettenbach, McCain Aff. ¶ 2, had contacted her. Browne indicated that he believed McCain was trying to put him in the "can." Tape Tr. at 50-51. On the tape, Primo denied having ever spoken to McCain, although it is clear from affidavits submitted by Kettenbach that she cooperated extensively with McCain in setting up the rendez-vous and recorded conversation. McCain Aff. ¶ 3; Primo Aff. ¶ 4. Browne then recounted his exploits in avoiding Kettenbach's efforts to speak with him, tape tr. at 51-52, and told Primo that he believed that McCain was trying to get her to lie about his involvement. Id. at 53.

When pressed by Primo again as to why he had not been paid for the "job" he had performed, Browne told her that Demoulas was not in a position to pay during the pendency of the state litigation:

Browne: He can't pay. You gotta understand something ... when it's under appeal, we put a bill in smaller than $4800 just for routine expenses. They ... said they couldn't pay us until the appeals was sic over. Because look — if any monies come to me, or Mike or through the agency, or us...