U.S. v. Brooks

• Decision Date: 09 April 1998
• Docket Number: No. 98-1111,98-1111
• Citation: 145 F.3d 446
• Parties: 49 Fed. R. Evid. Serv. 890 UNITED STATES of America, Appellant, v. Robert BROOKS, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 446

145 F.3d 446

49 Fed. R. Evid. Serv. 890

UNITED STATES of America, Appellant, v. Robert BROOKS, Defendant, Appellee.

No. 98-1111.

United States Court of Appeals First Circuit.

Heard April 9, 1998.

Decided June 5, 1998.

David J. Apfel, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief, for appellant.

James B. Krasnoo, with whom Richard Briansky was on brief, for appellee.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and BOUDIN, Circuit Judge.

SELYA, Circuit Judge.

This interlocutory appeal, brought pursuant to 18 U.S.C. § 3731, challenges a brink-of-trial order precluding the government from introducing into evidence certain proof that it deems essential to the prosecution of the crimes charged. A subsequent clash of wills between the prosecutor and the district judge complicates the picture on appeal. We rehearse the background and the travel of the case, untangle a jurisdictional snarl, and then address the merits of the dispute. In the end, we vacate the preclusory order and remand for further proceedings before a different district judge.

I. BACKGROUND

In the underlying criminal case, the government charged defendant-appellee Robert Brooks with lying to a federal grand jury. To lend context to the issues before us, we recount the circumstances leading up to the defendant's indictment on perjury and obstruction of justice charges.

A. Dramatis Personae.

Starting in 1983, Brooks worked as a baggage handler for Northwest Airlines at Logan International Airport. While there, he became friendly with a co-worker, Joseph Nuzzo. ¹ Some four years later, Northwest broke the gender barrier and hired Susan Taraskiewicz as a baggage handler. With a few notable exceptions, Brooks and Taraskiewicz had little interaction. Early on, however, the pair twice indulged a sexual dalliance, and, on one subsequent occasion, they argued bitterly over Brooks's destruction of Taraskiewicz's radio.

In April of 1989, Taraskiewicz attempted to break up a fistfight between Nuzzo and two other employees. Displeased by her gratuitous intervention, Nuzzo called Taraskiewicz a "f_____g c__t." This incident capped a string of disciplinary infractions and led Northwest to fire Nuzzo. Nuzzo's discharge was not permanent--it turned out to be the functional equivalent of a six month suspension without pay--but Nuzzo vociferously blamed Taraskiewicz for his predicament. During his absence from work, he engaged in a campaign of menacing conduct directed at Taraskiewicz: he "keyed" her car, slashed her tires, staked out her house, made anonymous telephone calls, and told others that he would exact revenge. Brooks knew that Nuzzo blamed Taraskiewicz for his enforced vacation and that Nuzzo harbored considerable ill will toward her.

B. Theft and Murder.

Shortly after Nuzzo returned to work, he and several other baggage handlers began to steal credit cards from mail bags air-freighted by Northwest. The thieves purloined thousands of charge cards, using some of them to make unauthorized purchases and selling others to fences. Brooks was a peripheral player; he did not himself steal any charge cards but he occasionally shopped with Nuzzo, using stolen cards, and he sometimes functioned as a paid lookout for Nuzzo and the other thieves.

In 1991, an inter-agency task force launched an investigation into the credit card scheme. The investigation remained in the bosom of the lodge until August 4, 1992, when several baggage handlers received subpoenas from a Boston-based federal grand jury (the Credit Card Grand Jury). Members of the ring, including Nuzzo, wondered whether there was a stool pigeon among the baggage handlers. In Brooks's presence, Nuzzo posited that Taraskiewicz was the "rat."

On August 14, a Northwest official confiscated Nuzzo's work identification, effectively ending his employment. In rapid sequence, Nuzzo learned that he was a target of the grand jury investigation, hired a lawyer, and griped to friends (following a meeting between his attorney and a prosecutor) about both the severity of the criminal sanctions that he faced and the extravagance of his lawyer's fee demands. In the early morning hours of September 13, 1992--less than a week after Nuzzo voiced these complaints--Taraskiewicz left work to get a sandwich and failed to return. The next day, the authorities discovered her body in the trunk of her automobile.

C. To Tell the Truth.

Brooks applied for reassignment immediately after news of the grand jury investigation leaked. He received the requested transfer and moved to Minnesota with his new bride on August 25, 1992. Following Taraskiewicz's murder, however, the government subpoenaed him to appear before the Credit Card Grand Jury. Brooks returned to Massachusetts in response to this subpoena but asserted his Fifth Amendment privilege. That same afternoon, a state trooper interrogated him regarding the murder. In the course of a one-hour interview, Brooks downplayed his relationship with Nuzzo and claimed that he had had only one telephone conversation with his friend during the week after the murder. In accounting for his own whereabouts on the night of September 13, Brooks said that he had worked the late shift at the Minneapolis-St. Paul airport, handling luggage until 11:00 p.m.

During the 1994-1995 time frame, Brooks cooperated in the credit card investigation. His testimony apparently helped to convict Nuzzo of various charges connected to the credit card scheme. Eventually, Brooks pled guilty to conspiracy to commit mail theft and credit card fraud. The government requested that the court recognize Brooks's substantial assistance and depart downward in imposing sentence. See USSG § 5K1.1. Brooks escaped with a term of probation.

In the fall of 1996, storm clouds gathered anew. The United States Attorney convened a second Boston-based grand jury (the Murder Grand Jury) to look into Taraskiewicz's death. The Murder Grand Jury subpoenaed Brooks in October and he again returned to Boston. During a two-day meeting with law enforcement agents, Brooks learned that Nuzzo was a target of the probe and that the Murder Grand Jury was seeking to determine whether someone assassinated Taraskiewicz to ensure her silence anent the credit card case.

Pursuant to a limited immunity agreement, Brooks testified twice before the Murder Grand Jury. He admitted, inter alia, that Nuzzo blamed Taraskiewicz for his six-month suspension and that Nuzzo more than once expressed his staunch belief that Taraskiewicz was a "snitch" who "blew the whistle" on the credit card scheme. Brooks reiterated that he was working on the night of Taraskiewicz's slaying and that he had not spoken to Nuzzo at all that weekend. Although given the chance to recant or change his testimony while still under oath, Brooks demurred.

D. The Charges.

In June 1997, the government confronted Brooks with documentary evidence showing that he was not at work on the night of the murder, that he talked to Nuzzo that weekend, and that the two spoke frequently during the ensuing month. Facing time cards and long-distance telephone records that contradicted both his testimony to the Murder Grand Jury and his 1992 statements, Brooks admitted that he had lied about his whereabouts and contacts with Nuzzo. He expostulated, however, that his testimony was neither intentionally false nor designed to impede the homicide investigation. Unimpressed by this disclaimer, the Murder Grand Jury charged Brooks with three counts of perjury, see 18 U.S.C. § 1623, and two counts of obstruction of justice, see 18 U.S.C. § 1503.

II. PROCEEDINGS BELOW

Following some pretrial skirmishing, not material here, the district court scheduled Brooks's trial to commence on February 9, 1998. One week prior to this trial date, Brooks filed five motions in limine whereby he sought to prohibit the government from introducing sundry types of proof, including evidence as to the details of the murder, evidence of Brooks's conviction in the credit card case, and evidence concerning the sexual encounters between Brooks and Taraskiewicz. The government opposed these motions. Its memorandum in opposition revealed that it

intend[ed] to introduce evidence showing, inter alia, that: (a) Nuzzo was discharged from Northwest for six months in 1989-90 for, among other things, calling Taraskiewicz a "f___kin_ c__t"; (b) Nuzzo blamed Taraskiewicz for his discharge; (c) following his discharge, Nuzzo swore to get even with Taraskiewicz, and promised to make her life miserable; (d) Nuzzo sliced Taraskiewicz's car tires, and "keyed" her car; (e) he made prank phone calls to her house; (f) he drove by her house with a friend, and noted that her street was dark, that she was going to pay, and that he was going to get even with her; and (g) in August 1992, just one month before Taraskiewicz's murder, and just after Nuzzo, Brooks, and other credit card thieves had learned that [federal agents] were on to them, Nuzzo stated that he bet Taraskiewicz was the "snitch" or the "rat."

Government's Opposition at 5 n. 3. On February 6, Judge Harrington issued an order granting Brooks's quintet of motions in substantial part, including the motion to exclude proof anent his relationship with the deceased. The court specified that it was barring evidence of this relationship only from the government's case in chief and left open the possibility that such evidence might become relevant should Brooks opt to testify in his own defense.

At approximately 9:00 a.m. on the morning of the first trial day, immediately prior to jury empanelment, the defense filed a sixth motion in limine. This motion sought the exclusion of all evidence regarding Nuzzo's animosity toward Taraskiewicz. Judge Harrington had not yet taken the bench but within fifteen minutes the clerk announced that the judge had granted the motion. The ruling took the form of an inexplicit margin...