U.S. v. Bouthot, 88-1710

• Decision Date: 11 January 1989
• Docket Number: No. 88-1710,88-1710
• Parties: UNITED STATES of America, Appellant, v. Joseph T. BOUTHOT, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1506

878 F.2d 1506

UNITED STATES of America, Appellant, v. Joseph T. BOUTHOT, et al., Defendants, Appellees.

No. 88-1710.

United States Court of Appeals, First Circuit.

Heard Jan. 11, 1989.

Decided June 21, 1989.

Paul V. Kelly, Asst. U.S. Atty., with whom Frank L. McNamara, Jr., U.S. Atty., Boston, Mass., was on brief, for U.S.

Robert L. Sheketoff and Jeffrey Smith, by Appointment of the Court, with whom Norman S. Zalkind, and Zalkind, Sheketoff, Homan, Rodriguez & Lunt, Boston, Mass., were on joint brief, for defendants, appellees.

Before CAMPBELL, Chief Judge ALDRICH and TORRUELLA, Circuit Judges.

TORRUELLA, Circuit Judge.

The government appeals from two pretrial suppression orders in this criminal case. One order prohibited the government from using the defendants' state court guilty pleas for impeachment purposes in federal court. The other order excluded certain identification evidence. We begin by describing the factual findings upon which the district court based its rulings. See United States v. Bouthot, 685 F.Supp. 286, 288-92 (D.Mass.1988). ¹

On September 4, 1986, the Holden, Massachusetts home of Kenneth Holtgren was burglarized. The burglars, who fled in a van, stole guns and jewelry worth more than $100. The van was apprehended by the police shortly thereafter. Its five occupants--Joseph Bouthot, Thomas Hughes, George Hughes, Kevin Brown, and Roger Carr--were arrested. They were charged with the following violations of Massachusetts law in connection with this incident: breaking and entering in the daytime with the intent to commit a felony; larceny of property worth over $100; receipt of stolen property worth over $100; and carrying a firearm without a license.

Immediately after the arrests, Holden Detective Albert Bourget, who was in charge of the case, called Agent Douglas Wenner of the United States Bureau of Alcohol, Tobacco, and Firearms (the ATF) because he thought the federal government might be interested in prosecuting the defendants under the new federal Armed Career Criminal statute, which imposes a mandatory fifteen year minimum sentence on persons convicted of receiving or possessing a firearm after having been previously convicted three times of robbery or burglary. See 18 U.S.C. Sec. 924(e). Wenner felt the case could be prosecuted under the federal Armed Career Criminal Act. He opened a federal investigation of the defendants. Although Bourget cooperated with Wenner by providing him information and documents, the federal investigation was distinct from the state investigation.

To avoid the complications arising from state and federal prosecutions of gun charges based on the same incident, Wenner and Bourget agreed that the state firearms charges should be dropped in favor of federal firearms charges. They both realized that the final decision with respect to this issue would have to be made by state and federal prosecutors. Bourget recommended to Neil Snyder, the Assistant District Attorney then in charge of the state case, that the state firearms charges be dropped in light of the possible federal firearms prosecution. Snyder said that he would drop the firearms charges prior to trial. The case was subsequently transferred to another Assistant District Attorney, Thomas Landry. Snyder left a note for Landry stating that "the cases on carrying guns to be charged in [federal court]. Holden [Police Department] will speak to you about this." 685 F.Supp. at 289.

On October 16, 1986, the day the defendants were scheduled for trial, Wenner went with Bourget to the Worcester Superior Court. Wenner spoke briefly with Landry, explaining that he was conducting a federal investigation concerning the firearms which he hoped would lead to a federal Armed Career Criminal prosecution. After the discussion, Wenner expected that Landry would dismiss the state firearms charges. The main reason for Wenner's visit, however, was to talk with Roger Carr, one of the defendants in the case. Because it appeared that Carr's record might not qualify him for Armed Career Criminal treatment, Wenner wanted Carr to testify against his codefendants in the federal prosecution that Wenner hoped would ensue in exchange for a more lenient sentencing recommendation. Landry said he had no objection to Wenner making such a proposal, and in fact introduced Wenner to Carr's attorney, William Meehan. Subsequently Wenner spoke to Meehan and explained his interest in speaking with Carr. Meehan said that he would prefer that Wenner wait until the end of the state prosecution, at which point Meehan's responsibilities would be over, and Wenner could approach Carr directly. Wenner agreed to do so. Wenner never asked either Landry or Meehan not to reveal the substance of their conversations to the other defendants, although he hoped that they would not do so, believing that such disclosure would make it more difficult to obtain Carr's cooperation.

As it turned out, neither Landry nor Meehan did disclose the pending federal prosecution to Carr, his codefendants, or their attorneys. The district court found that Meehan never told Carr about his conversation with Wenner. Landry, hoping to use the dismissal of the firearms charges as a bargaining chip to obtain a plea agreement, also did not disclose the possibility of a federal prosecution. When his attempts to negotiate a plea agreement failed, Landry simply informed the judge (before the jury was empaneled) that he was dropping the firearms charges.

The trial was continued until November 12, 1986. Plea negotiations resumed on November 13, 1986, the day after the jury was empaneled. An agreement was finally reached which provided that the state would recommend sentences under which the defendants would serve less than one year. Once again, Landry did not disclose the possibility of federal firearms indictments because he was afraid that such disclosure would prevent him from obtaining guilty pleas on the state charges. He was also uncertain whether the federal prosecution would actually take place.

After the guilty pleas were negotiated, the judge entered into a colloquy with each of the defendants. After satisfying himself that the pleas were made voluntarily and knowingly, the judge directed the clerk to enter findings of guilty on the breaking and entering and larceny counts. The judge dismissed the receiving count. On the firearms count, the judge declared each defendant "not guilty, discharged." The judge then sentenced each defendant to the term of incarceration recommended by Landry.

Landry felt the court erred in declaring the defendants not guilty on the firearms charges because those charges had actually been dismissed prior to trial. He did not bring the matter to the judge's attention, however, because he believed the judge's action was the functional equivalent of a dismissal.

The scene then shifts to the federal prosecution. On August 31, 1987, a federal grand jury returned a two count indictment charging the five state court defendants, including Bouthot and Hughes, with being felons in receipt of firearms (in violation of 18 U.S.C. Sec. 922(h)(1)) and felons in possession of firearms (in violation of a provision now codified at 18 U.S.C. Sec. 922(g)(1)). The indictment expressly charged all of the defendants except Carr with having three prior convictions for robbery or burglary within the meaning of the Armed Career Criminal Act. Following the issuance of the indictment, numerous pretrial motions were filed by the defendants, including claims based on the Double Jeopardy Clause and a claim to exclude, under Rule 403, evidence of defendant's state court guilty pleas as part of the government's direct case. The district court held pretrial hearings on these motions in December 1987 and January 1988. On the latter motion, the court ruled in favor of the defendants on January 5, 1988. The government did not appeal that order.

Later, on April 8, 1988, the district court issued rulings adverse to the defendants on most of the other pretrial motions. See 685 F.Supp. 286 (D.Mass.1988). After these rulings, on May 25, 1988, the other three defendants decided to plead guilty and were sentenced. The district judge then considered the two remaining pretrial motions filed by Bouthot and Thomas Hughes. On June 8, 1988, he allowed their motion to suppress the state guilty pleas for all purposes, including cross-examination and impeachment (the June 8 order). On June 13, 1988, he allowed a motion by Bouthot to prohibit an in-court identification of Bouthot by Paul Northway because the identification was tainted by an out-of-court identification procedure (the June 13 order).

The government appeals the latter two rulings.

First. The defendants raise a threshold jurisdictional issue: whether the government has the right to appeal the June 8 order. They point out that the government cannot appeal in a criminal case except as authorized by statute. See United States v. Kane, 646 F.2d 4, 5 (1st Cir.1981). 18 U.S.C. Sec. 3731 authorizes appeals from orders suppressing evidence, but only if the U.S. Attorney certifies to the court that the "evidence is a substantial proof of a fact material in the proceeding." Although such a certification has been made, the defendants challenge its veracity. They interpret the phrase "material" as referring to an element of the offense, and argue that impeachment evidence cannot be substantial proof of a material fact, relying on United States v. Loud Hawk, 628 F.2d 1139, 1150 (9th Cir.1979), cert. denied, 445 U.S. 917, 100 S.Ct. 1279, 63 L.Ed.2d 602 (1980). To allow interlocutory appeals on such collateral matters, they argue, defeats the accused's interests in swiftly proceeding to trial on the indictment.

The government responds that the statute should be interpreted broadly to allow appeals whenever a United States Attorney makes the certification required by the statute. There should be no independent assessment of...