U.S. v. Schneiderhan, 03-2019.

• Decision Date: 13 April 2005
• Docket Number: No. 03-2019.,03-2019.
• Parties: UNITED STATES of America, Appellee, v. Richard J. SCHNEIDERHAN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

404 F.3d 73

UNITED STATES of America, Appellee, v. Richard J. SCHNEIDERHAN, Defendant, Appellant.

No. 03-2019.

United States Court of Appeals, First Circuit.

Heard December 6, 2004.

Decided April 13, 2005.

COPYRIGHT MATERIAL OMITTED

Robert L. Sheketoff, by Appointment of the Court, for appellant.

William J. Nardini, Special Attorney, with whom Michael J. Sullivan, United States Attorney, and John H. Durham, Special Attorney, were on brief for appellee.

Before TORRUELLA, Circuit Judge, COFFIN and STAHL, Senior Circuit Judges.

COFFIN, Senior Circuit Judge.

This case is an offshoot of the prosecution of members of the notorious Boston Winter Hill Gang for various crimes including extortion and murder. One of the defendants in that prosecution, James "Whitey" Bulger, was later elevated to the Top Ten Most Wanted List; he remains, after nearly ten years, a fugitive. Defendant-appellant in this case, Richard J. Schneiderhan, a retired Massachusetts State Police lieutenant, was convicted of conspiracy to obstruct justice and obstruction of justice, in violation of 18 U.S.C. §§ 371 and 1503. He was prosecuted for communicating to a criminal associate of James Bulger the decision of federal law enforcement authorities to conduct electronic surveillance of Bulger's two brothers, John and William, via pen registers placed on their telephones.

The primary issue at trial and in this appeal is whether defendant had the requisite intent to obstruct justice when he provided the information. He asserts three claims of error. His major challenge is to the district court's denial of a motion for new trial based on the failure of the prosecution to disclose in timely fashion an allegedly exculpatory letter that related to a trial witness's testimony, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the Jencks Act, 18 U.S.C. § 3500. He also argues that the court erred in allowing two witnesses to give testimony that he alleges constituted impermissible opinion evidence as to defendant's mental state, in violation of Fed.R.Evid. 704(b). A final issue raised in the wake of Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), is whether defendant is entitled to re-sentencing as a result of the court's plain error in adjusting his sentence upward under the mandatory Sentencing Guidelines.

Our review persuades us that, in the final analysis, these arguments lack merit.

I. The Brady and Jencks Act Issues

Factual background. We first review the facts relevant to the government's alleged failure to disclose a significant letter in timely fashion. We draw the facts from the evidence presented at trial.

Defendant had a longstanding friendship with one Stephen Flemmi, a member of the Winter Hill Gang. After Flemmi was incarcerated as the result of the prosecution of gang members, defendant kept in touch with him and another gang member who was not then in prison, Kevin Weeks. Weeks had learned from James Bulger and Flemmi that defendant had done many favors for the gang in providing information. Weeks and defendant met perhaps a dozen times, defendant hoping that Weeks would be of some help to Flemmi and consequently wanting to be of help to Weeks.

In late September 1999, defendant was able to do something. Whether that "something" was really intended to be helpful or was just a pretense is the issue underlying defendant's claim regarding the withheld letter. At that time, James Bulger was still at large more than three years after the Winter Hill Gang indictments, and he was newly placed on the Top Ten List. The government adopted a broad investigative strategy that included orders from a "Ted Baker at FBI" to place pen registers on three telephones of William and John Bulger. Those work orders were channeled through the computer of Linda Reardon, a telephone company employee who also was the daughter of defendant's brother-in-law, Edward Duff.

Winter Hill Gang member Weeks, testifying under a cooperation agreement, said that on a Thursday in late September 1999 he received an envelope that defendant had left for him at the Rotary Variety Store, a locale frequented by gang members and their associates. The envelope contained a typewritten note, which said that a Tom Baker had put wiretaps on two phones the day before, and listed the telephone numbers. At the bottom was typed "131313, Max," a number and name previously used by defendant to identify himself in his dealings with Weeks. Weeks called John Bulger, who confirmed the accuracy of the telephone numbers.

Over six months later, acting on information from Weeks and others, Massachusetts State Police Officers Thomas Duffy and Thomas Foley interviewed defendant, who acknowledged writing to Flemmi and meeting with Weeks. When told that Weeks had indicated that he was the source of wiretap information, defendant initially protested that he would have had no way of knowing such information. Later in the conversation, he revealed that John and William Bulger were the targets of the surveillance, although this fact had deliberately not been communicated by the officers. Defendant, when asked how he knew about the targets, first asserted that he learned this from the two officers but quickly withdrew this answer and said he had assumed the fact. In a second interview, held two days later, defendant admitted leaving the typed note with its identifying signatures and said he had received the information from his brother-in-law Duff.

Defendant's testimony as to motive. What we have recounted thus far described what happened. What follows is a summary of defendant's testimony at trial about the motives for his actions and his knowledge of the source of his information. It is a remarkable tale of shifting, if not contradictory, emphases. He first explained he had remained in contact with Weeks in the hope that he might learn something about James Bulger's whereabouts and reap a substantial reward. Later, he dismissed this as sarcasm. Then he described how William Bulger had helped defendant and others by supporting the listing of their church as a national monument. He felt, he said, a "great obligation" to William. This testimony was followed by statements that he had not helped Weeks recently, that Weeks was "getting a little bit hinky" about talking to him, and that he, defendant, wanted to "throw him a bone." Later, however, he described this explanation as "a little facetious." Following up on his "bone" motive, defendant said that William would not talk on the telephone to his brother James and that everybody knew that James did not talk on the telephone, so "I knew it wasn't going to cause any damage." Moreover, oddly, he said he did not really believe that there were taps ("a thing") on William's and John's phones.

His testimony about the source of his information was equally vacillating. First, in reporting his brother-in-law's call from Florida with the tip about electronic surveillance, he said he did not know where the information had come from but merely "assumed" where it had, without saying what his assumption was. Shortly thereafter, he said that the information he passed to Weeks was "just golf course or barroom gossip ... just stories."

On the following day of trial, the government inquired about defendant's niece, Linda Reardon. Defendant had earlier disavowed knowing that she was employed by the telephone company, saying, "I knew a group of the family were employed there, but I didn't know specifically who was what." Under cross-examination, he testified as follows:

Q. The information from Duff [defendant's brother-in-law]? He got it from his niece [sic] Linda Reardon, and you gave it then to Kevin Weeks, right?

A. I don't know that he got it from his daughter Linda. I was told that he got it from her, but of my own knowledge, I don't know.

Defendant admitted giving the information to Weeks and expecting that he would in turn give it to John and William Bulger.

The undisclosed letter. Against this factual background we must assess the relevance of a letter that was not disclosed prior to trial, whether the letter was exculpatory, and, finally, whether its non-disclosure was prejudicial. See Brady, 373 U.S. at 87-88, 83 S.Ct. 1194. Under the Jencks Act, our inquiry focuses on whether the letter was a statement of a witness relating to the witness's trial testimony. See 18 U.S.C. § 3500(b).

The letter at issue was written by then Assistant United States Attorney David Apfel, who had been associated with the prosecution of gang members and the search for James Bulger from 1994 through 1998. The letter was dated October 9, 1998, a year earlier than the events detailed in this case. It was written to the attorney then representing William Bulger in connection with Bulger's possible proffer of information or appearance before the grand jury. It assured counsel that William would not face questions based on a Title III wiretap but would be asked questions based on information obtained from "telephone pen registers and trap and trace devices, as well as from terminating number searches." Defendant asserts that the 1998 letter reveals that any information he may have communicated in 1999 about electronic surveillance was harmless because the Bulgers already knew about it.

In a grand jury appearance in 2001, William said he knew there had been a wiretap on his telephone and thought his counsel had given him that information. He did not know whether it was a wiretap or a pen register, but assumed both. The district court held that that testimony, which was available to defendant, gave him specific information about the same subject matter covered in Apfel's letter, thus precluding any material prejudice. The court also held that, by asserting that his actions had no impact, defendant was raising the impermissible...