Kiley v. U.S.
| Decision Date | 13 February 2003 |
| Docket Number | No. CIV.A. 97-30176-FHF.,CIV.A. 97-30176-FHF. |
| Citation | 260 F.Supp.2d 248 |
| Parties | Bernard J. KILEY, Sr., Petitioner v. UNITED STATES of America, Respondent |
| Court | U.S. District Court — District of Massachusetts |
Bernard J. Kiley, Lewisburg, PA, Pro se.
Alan J. Black, Attorney at Law, Springfield, MA, for Petitioner.
Ariane D. Vuono, United States Attorney's Office, Springfield, MA, for Respondent.
Acting pro se, Bernard Kiley, Sr. ("Kiley" or "petitioner") has moved this Court to vacate, set aside, or correct his federal prison sentence under 28 U.S.C. § 2255 ("section 2255"). Kiley requests relief on the grounds that his convictions stemming from the robbery of an armored car resulted from violations of his Fourth, Fifth, and Sixth Amendment rights. The pe seeks a new trial or, in the alternative, additional discovery and an evidentiary hearing. The United States of America ("government") opposes the motion.
The Court recites only those facts pertinent to Kiley's section 2255 petition and reserves a more detailed discussion for later. For a fuller rendition, see United States v. Procopio, 88 F.3d 21 (1st Cir. 1996).
On April 9, 1991, three armed and masked individuals held up a Berkshire Armored Car ("BAC") as it was being loaded in Pittsfield, Massachusetts. The robbers made off with $1.2 million in cash. Suspicious spending habits led law enforcement to the door of the petitioner, Bernard Kiley, as well as to Vincent Lattanzio, Donald Abbott, Francis Procopio, and Charles Gattuso. Among the search warrants obtained and executed, agents executing a search warrant at 79-81 Intervale Road in Brockton, Massachusetts ("Intervale search") discovered a cache of firearms and disguises.1 Kiley's section 2255 petition bases most of its claims on the legality of and circumstances surrounding this particular search. The Court will discuss the factual and procedural history of the Intervale search momentarily.
For his part, a federal grand jury returned a superseding indictment charging Kiley with bank robbery, see 18 U.S.C. § 2113(a), conspiracy and interference with commerce by means of a bank robbery, see 18 U.S.C. § 1951, using a firearm during the commission of a violent crime, see 18 U.S.C. § 924(c)(1), money laundering, see 18 U.S.C. § 1956(a)(1)(B)(i), aiding and abetting, see 18 U.S.C. § 2, and being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1). This Court severed the robbery charges from the firearms charges and ordered two separate trials.2 The government introduced the weapons and disguises seized during the Intervale search at both trials, in the robbery trial as evidence of a "criminal association" between Kiley and Lattanzio, and in the firearms trial as evidence of Kiley's and Lattanzio's possession of firearms while being convicted felons. Two separate federal juries convicted Kiley and Lattanzio of all the counts listed previously.
On April 20, 1995, the Court sentenced Kiley to 45 years in prison and 5 years supervised release. The Court increased Kiley's sentence under the Armed Career Criminal Act of 1984 ("ACCA") for his possession of firearms, because he was previously convicted of a violent felony and two serious drug convictions. See 18 U.S.C. § 924(e). On appeal, the First Circuit affirmed the convictions. See generally Procopio, 88 F.3d 21. The Supreme Court denied Kiley's writ of certiorari less than a year later. See Kiley v. United States, 519 U.S. 1138, 117 S.Ct. 1008, 136 L.Ed.2d 886 (Feb. 18, 1997). Kiley initially petitioned this Court to vacate his sentence pursuant to section 2255 on August 14, 1997, see Motion to Vacate Sentence (Doc. No. 2), but has since amended and supplemented his motion numerous times.3
The surveillance and search of 79-81 Intervale Street, a house with apartments on each of its three floors, in Brockton, Massachusetts, is of particular relevance to this petition. Most of the following comes from testimony at both trials.
Agents from the Federal Bureau of Investigation ("FBI") and the Internal Revenue Service ("IRS") placed Kiley under surveillance after several confidential informants implicated Kiley in the Pittsfield BAC robbery. On June 7, 1993, FBI Special Agent Gerald Downes ("Agent Downes") submitted to this Court an affidavit and application for a warrant to search what Agent Downes claimed to be Kiley's residence at 79 Intervale Road. The Court issued the warrant.
On June 8, 1993, a team of FBI and IRS agents went to 79-81 Intervale Road to execute the search warrant. The agents arrested Lattanzio outside of the house and entered the first floor, which was designated 79 Intervale Road, looking for Kiley. Once inside, the agents realized that the search warrant specified the wrong address, as another tenant was found inside that apartment. As a result of statements made to one of the agents, the search team proceeded up the back staircase to conduct a protective sweep of the apartments located upstairs. Stirred by shouts of "FBI," Kiley fled out of the third floor apartment and down the front staircase, where he was arrested by an agent waiting outside of the house. With Lattanzio and Kiley both in custody, the agents delayed the start of their search as arrangements were made to obtain a new search warrant specifying the correct address, which was 81 Intervale Road.
Agent Downes called IRS Agent Jessica Crocker, advising her that the search warrant needed to be changed to reflect the correct address. Crocker prepared a new affidavit and application and submitted them to this Court, which issued a new search warrant for 81 Intervale Road.
Armed with a new search warrant, the agents searched 81 Intervale. During the search, agents seized weapons, disguises, and other paraphernalia, all of which included a Massachusetts State Police Uniform, a mold for a State Police badge, two pairs of handcuffs, a bullet proof vest, two rubber masks, a Chinese assault rifle and ammunition, two Glock 9mm pistols, and fake identifications cards with pictures of Kiley and Lattanzio on them.
Among other pretrial motions, Kiley moved to suppress the items seized from Intervale search and moved for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (). On April 19, 1994, this Court held a non-evidentiary hearing ("suppression hearing") on the matter. To bolster its position regarding the legality of the Intervale search, the government submitted a sworn declaration from Agent Downes which stated:
On June 7, 1993, I applied for a warrant to search Bernard Kiley's residence at 79 Intervale in Brockton for documentary evidence of the expenditure of the BAC robbery proceeds. I knew that Kiley resided in the duplex where 79-81 Intervale was located because the FBI surveillance team informed me that they had Kiley under surveillance for eight successive days immediately preceding June 8, 1993, and the surveillance showed that Kiley routinely entered and exited the duplex as if he resided there. I was also aware that Kiley and Lattanzio were preparing to commit another armed robbery.
May 16, 1994 Memorandum and Order, at 36 n. 13 (Agent Downes' Declaration under Oath). Throughout the suppression hearing, the government represented to the Court that the FBI conducted "around the clock" surveillance during the eight days prior to June 8,1993.
On May 16, 1994, the Court ruled that the 81 Intervale search warrant was deficient, holding that no probable cause to search 81 Intervale existed, as "nothing in the affidavit supported] the assumption that the house was Kiley's residence." Id. at 37. The Court, however, found that the "good faith" exception to the exclusionary rule saved the evidence. See id. at 37-38, citing United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); see also Procopio, 88 F.3d at 28, quoting Leon, 468 U.S. at 923, 104 S.Ct. 3405 (). Relying primarily upon Agent Downes' Declaration under Oath, the Court held that evidence suppression was unwarranted, because "Agent Downes was merely negligent, not dishonest or reckless, in failing to include [this] FBI-obtained information in [the] affidavit" supporting the warrant application. See May 16, 1994 Memorandum and Order, at 38. The Court ruled that the evidence was admissible at trial and denied Kiley's request for a Franks hearing. See id. at 34-38.
The matter was settled until September 12, 1994, when the government disclosed numerous documents pursuant to the Jencks Act, including FBI Form 302 reports 4
related to the surveillance of 79-81 Intervale Road ("Intervale reports"). The reports themselves described only four days worth of surveillance at 79-81 Intervale Road, occurring only during business hours. In addition, the reports indicated that Kiley was seen only twice: the first time occurring on June 2nd, when he was seen helping Lattanzio remove a refrigerator, the other time on June 3rd, when he was seen leaving the house.
Reports in hand, Kiley moved for reconsideration of the suppression ruling and denial of Franks hearing, alerting the Court to discrepancies between the sporadic surveillance indicated in the newly disclosed...
To continue reading
Request your trial
-
Lopez v. Massachusetts
...did), that there was insufficient evidence to make Garcia a plausible suspect. The Commonwealth cites Kiley v. United States, 260 F.Supp.2d 248, 273 (D.Mass.2003) (Freedman, S.J.), which gathered cases holding that "some plausible nexus linking the other suspect to the crime" must exist bef......
-
United States v. Melvin
...language of section 2255 . . . 'does not strip the [Court] of all discretion to exercise [its] common sense.'" Kiley v. United States, 260 F. Supp. 2d 248, 258 (D. Mass. 2003) (alteration in original) (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)). The First Circuit has hel......
-
Delapaz v. State
...compiles from notes taken contemporaneously during a surveillance or an interview of a suspect or witness." Kiley v. United States, 260 F.Supp.2d 248, 254 n. 4 (D.Mass.2003). 29. In reaching this conclusion, the trial court appears to have been concerned that if it allowed the defense to el......
-
Baldyga v. U.S., CIV.A.02-40244-NMG.
...of Massachusetts have often held that the same rule applies to petitioners convicted of federal crimes. See, Kiley v. United States, 260 F.Supp.2d 248, 275 (D.Mass.2003); Owens v. United States, 236 F.Supp.2d 122, 133 Baldyga litigated his Fourth Amendment issues at both the March 18, 1999 ......