Murray v. United States

• Decision Date: 04 November 2011
• Docket Number: Civil Action No. 11–10435–WGY.
• Citation: 821 F.Supp.2d 458
• Parties: Michael Francis MURRAY, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Massachusetts

821 F.Supp.2d 458

Michael Francis MURRAY, Petitioner,

v.UNITED STATES of America, Respondent.

Civil Action No. 11–10435–WGY.

United States District Court, D. Massachusetts.

Nov. 4, 2011.

Neil J. Gallagher, Jr., United States Attorney's Office, Boston, MA, for Respondent.

Rosemary C. Scapicchio, Law Office of Rosemary C. Scapicchio, Robert L. Sheketoff, Boston, MA, for Petitioner.

MEMORANDUM AND ORDER

YOUNG, District Judge.I. INTRODUCTION

The ramifications of high level FBI corruption seem never ending. See United States v. Salemme, 91 F.Supp.2d 141 (D.Mass.1999) (Wolf, J.), rev'd in part sub nom. United States v. Flemmi, 225 F.3d 78 (1st Cir.2000); Judgment in a Criminal Case, United States v. Connolly,¹ No. 1:99–cr–10428–JLT (D.Mass. Sept. 16, 2002) (Tauro, J.), ECF No. 696, aff'd, 341 F.3d 16 (1st Cir.2003); Limone v. United States, 271 F.Supp.2d 345 (D.Mass.2003) (Gertner, J.), aff'd in part, remanded in part sub nom. Limone v. Condon, 372 F.3d 39 (1st Cir.2004); McIntyre v. United States, 447 F.Supp.2d 54 (D.Mass.2006) (Lindsay, J.), aff'd, 545 F.3d 27 (1st Cir.2008); Litif v. United States, 682 F.Supp.2d 60 (D.Mass.2010), appeal docketed, Nos. 11–2254, 11–2255, 11–2256 (1st Cir. Apr. 2, 2010).

On January 13, 1994, a jury convicted the petitioner, Michael Francis Murray (“Murray”), of conspiracy to distribute marijuana and the distribution of marijuana. On April 28, 1994, this Court sentenced Murray to thirty years in prison, and the sentence is expected to end on October 21, 2020. That sentence was influenced by Murray's previous conviction, in 1984, for conspiracy to distribute marijuana. Murray now brings this petition for a writ of coram nobis challenging the length of his 1994 sentence. He claims that his 1984 conviction was invalid and that without that conviction, his 1994 sentence would have been reduced. Murray requests that the Court re-sentence him for his 1994 conviction or, in the alternative, hold an evidentiary hearing to determine the outcome of this petition. This Court finds no need for such a hearing and, for the reasons enumerated below, hereby denies Murray's petition for a writ of coram nobis.

II. PROCEDURAL HISTORYA. The 1984 Conviction

On April 6, 1983, Murray was arrested and charged with conspiring to possess with intent to distribute marijuana. United States' Opp'n Pet.'s Writ Coram Nobis (“Opp'n Mem.”) 2, ECF No. 21. A grand jury returned an indictment charging him and three co-defendants with conspiracy to possess with intent to distribute more than one thousand pounds of marijuana and four counts of possession with intent to distribute marijuana. Id. On July 20, 1983, a grand jury returned a superseding indictment adding an additional co-defendant to each of the counts. Id. at 3.

Murray and his co-defendants each moved to suppress evidence that was obtained by the Federal Bureau of Investigation (“FBI”) in seizures on April 6, 1983. Id. On September 6, 1983, Judge Skinner began a six-day hearing on the motions to suppress. Id. Judge Skinner heard testimony from FBI Agents Brendan Cleary (“Agent Cleary”), Roderick Kennedy (“Agent Kennedy”), and John Newton (“Agent Newton”), and from Drug Enforcement Administration (“DEA”) Agent Allan Keaney (“Agent Keaney”). Id. Judge Skinner took the motion under advisement and ultimately denied it in December 1983. Id., Ex. 8, Mem. & Order Various Mots. Defs. Suppress Dismiss (“Various Mots. Defs.”) 22 (not filed electronically). Murray and two of his co-defendants proceeded to trial, at which a jury convicted Murray of conspiracy to possess with intent to distribute marijuana and acquitted him of substantive possession with intent to distribute. Opp'n Mem. 3–4. Judge Skinner sentenced Murray to 48 months imprisonment. Id. at 4.

Murray appealed his conviction, asserting a claim under the Speedy Trial Act and challenging the denial of the suppression motion. Id. The First Circuit affirmed the conviction on August 26, 1985. See United States v. Moscatiello, 771 F.2d 589 (1st Cir.1985). He then appealed to the Supreme Court, which summarily vacated the judgment of the First Circuit and remanded the case for reconsideration of the Speedy Trial Act issue in light of Henderson v. United States, 476 U.S. 321, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986). See Carter v. United States, 476 U.S. 1138, 106 S.Ct. 2241, 90 L.Ed.2d 688 (1986). On remand, the First Circuit analyzed and again rejected Murray's Speedy Trial Act claim, but did not reassess the Fourth Amendment suppression issue. See United States v. Carter, 803 F.2d 20 (1st Cir.1986). Murray again appealed to the Supreme Court, which held that the independent source doctrine was applicable to the Fourth Amendment issue and remanded the case to the district court for further factual findings. Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). Specifically, the district court was to determine whether the agents would have sought a warrant for the warehouse if they had not made a prior unlawful entry into that warehouse. Id. at 543, 108 S.Ct. 2529.

On remand, acting upon an agreement between Murray and the United States, Judge Skinner reduced Murray's sentence to 18 months, which amounted to a sentence of time served. Opp'n Mem. 4.

B. The 1994 Conviction

On November 14, 1991, Murray was again arrested and charged with conspiracy to distribute marijuana. Id. A grand jury returned a superseding indictment on February 27, 1992, charging Murray and five co-defendants with conspiracy to distribute marijuana and the distribution of marijuana. Id. at 4–5. On January 13, 1994, following an eighteen-day jury trial, Murray was convicted on all counts. Id. at 5. On April 28, 1994, this Court sentenced Murray to 30 years in prison. Id. This sentence is expected to end on October 21, 2020. Id.

C. The McIntyre Case

In McIntyre, 447 F.Supp.2d 54, the family of John McIntyre, one of the victims of James “Whitey” Bulger, brought suit alleging that actions taken by certain FBI agents caused McIntyre's murder. Although that case is only peripherally related to the present petition, Judge Lindsay's factual findings spurred the issue raised here. Specifically, Judge Lindsay found:

In approximately April 1983, Bulger learned that a fellow denizen of the Boston Criminal world, [Murray's brother] Joe Murray, was importing drugs into South Boston without approval from, and payment of tribute to, Winter Hill. In retaliation, Bulger provided information to [FBI Agent John] Connolly about the warehouse in South Boston where Murray was storing a shipment of marijuana. The FBI seized the marijuana, and thereafter Murray commenced the payment of tribute to Bulger for the privilege of warehousing his illegal contraband in South Boston and for protection from Winter Hill.

Id. at 94 (citations omitted).

III. Factual Background ²

The facts relevant to this petition concern the events immediately preceding Murray's 1983 arrest. These events are briefly set forth below.

A. Surveillance and Arrest

In 1982 and 1983, based on information from three confidential informants, the FBI believed that Arthur Michael “Bucky” Barrett ³ and John Michael Rooney were involved in the drug trade. Opp'n Mem. 7. Beginning as early as July 1982, Agent Cleary conducted surveillance of Barrett at his residence in Squantum and Rooney at his residence in Dedham. Id. at 9. On February 17, 1983, Agent Cleary followed Barrett to Anthony's Pier 4 Restaurant ⁴ on Northern Avenue in South Boston. Id. Agent Cleary observed Barrett park next to a blue van registered to Murray (“Murray's Blue Van”). Id. at 10. The surveillance of Barrett continued in February and March of 1983 and led the agents to a residence at 15 Sylvester Road in Dorchester (“15 Sylvester”). Id.

On April 5, 1983, Agent Cleary, along with Agent Kennedy, was again conducting surveillance of Rooney and Barrett. Id. The two agents followed Rooney, who was driving a white Ford step van (the “White Van”), from 15 Sylvester to the parking lot of Anthony's Pier 4 Restaurant, where he met Barrett, who was driving a white Mercury Brougham (“Barrett's Mercury”). Id. Agent Cleary attempted to follow Barrett as he left this meeting, but Barrett became aware of the surveillance and evaded Agent Cleary. Id. Agents Cleary and Kennedy instead followed Rooney back to 15 Sylvester, the address to which Barrett also returned a short time later. Id.

Around 10:20 a.m. on April 6, 1983, Agents Cleary and Newton drove to 15 Sylvester and saw the White Van parked in the driveway. Id. at 11. When the two agents returned to 15 Sylvester thirty minutes later, the White Van was gone. Id. They then drove to South Boston, where they observed the White Van parked on Northern Avenue next to Barrett's Mercury. Id. Agent Cleary recognized the driver of Barrett's Mercury as Barrett and the passenger as Rooney. Id. Agent Cleary then took up a position in the parking lot of Anthony's Pier 4 Restaurant to surveil Barrett and Rooney. Id.

At 11:30 a.m., Agent Cleary observed Murray's Blue Van pull up next to Barrett's Mercury. Id. The driver of Murray's Blue Van got out of the van and walked to the White Van. Id. The White Van drove away, but Agent Cleary was unsuccessful in his attempt to follow it. Id. Around 11:45 a.m., responding to a radio message from Agent Cleary, Agents Kennedy and Keaney arrived at the parking lot of Anthony's Pier 4 Restaurant. Id. at 12. Agents Newton and Kennedy left the parking lot and observed the White Van, with two occupants, parked on Northern Avenue. Id. Shortly thereafter, Agent Keaney saw the driver of the White Van, whom he recognized to be Murray. Id. Agents Kennedy, Newton, and Keaney observed the White Van pull up next to Barrett's Mercury and Murray's Blue Van, both of which were parked just off Northern Avenue. Id.

The White Van and Barrett's Mercury then departed and drove together toward Dorchester. Id. Agent Keaney saw that Barrett was driving his...