Gilday v. Callahan

United States Court of Appeals
For the First Circuit

No. 94-1619

WILLIAM MORRILL GILDAY, JR.,

Petitioner, Appellant,

v.

WILLIAM F. CALLAHAN, SUPERINTENDENT, MCI NORFOLK,

Respondent, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Cyr, Circuit Judge.

Michael Avery for appellant.

William J. Meade, Assistant Attorney General, with whom Scott

Harshbarger, Attorney General, was on brief for appellee.

July 5, 1995

COFFIN, Senior Circuit Judge. Petitioner William Gilday was

convicted of first degree murder and two counts of armed robbery

for his involvement 25 years ago in a notorious bank robbery in

which Boston Police Officer Walter A. Schroeder was killed. This

habeas case, originally filed in 1981, was reactivated after

disposition of the last of his four unsuccessful motions for new

trial in the Massachusetts courts. The district court denied the

petition in a comprehensive opinion. 866 F. Supp. 611 (D. Mass.

1994). After carefully reviewing the case authorities and

relevant portions of the record, we affirm.

I. Background

We shall provide at this juncture only brief factual

background, adding more details in later sections as necessary

for an understanding of the issues discussed. A lengthy

description of the evidence presented at Gilday's five-week trial

is reported in Commonwealth v. Gilday, 367 Mass. 474, 478-485,

327 N.E.2d 851, 854-58 (1975) ("Gilday I"). See also Gilday, 866

F. Supp. at 640-43. A full chronology of the proceedings since

his 1972 conviction is set out in the district court's opinion.

Id. at 615-16.

Gilday and five others were indicted on robbery and murder

charges.1 Evidence indicated that the group had planned a

1 The other defendants charged in the crime were Stanley R.
Bond, Robert J. Valeri, Susan E. Saxe and Katherine A. Power.
Michael Fleischer was charged as an accessory after the fact.
Bond, who testified as a defense witness at Gilday's trial, died
in prison. Valeri testified as a Commonwealth witness against
Gilday, pled guilty eight months later to manslaughter, and is
now free. Fleischer also testified as a Commonwealth witness,

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series of bank robberies to raise funds in support of radical

political activities. The Supreme Judicial Court summarized as

follows the evidence supporting the Commonwealth's theory of what

occurred on the day of the robbery at issue here:

Bond, Valeri and Saxe entered the bank carrying guns,
robbed it and drove off in a blue Chevrolet . . . .
Gilday, armed with a semiautomatic rifle, was seated in
a white Ambassador automobile across the street from
the bank . . . . [A]fter the other three had escaped
from the scene, Gilday fired a number of shots at two
policemen who arrived, and Officer Schroeder thereby
sustained the wounds from which he died the next day.
Bond, Valeri, and Saxe later switched to a third
vehicle, a station wagon driven by Power, and made
their escape. Gilday also escaped in the white
Ambassador.

367 Mass. at 477.

On March 10, 1972, Gilday was convicted by a jury and

sentenced to death. Following the United States Supreme Court's

decision in Furman v. Georgia, 408 U.S. 238 (1972), and his first

motion for new trial, the death sentence was changed to a

sentence of life imprisonment. His subsequent efforts to obtain

relief from the original convictions have proven unsuccessful.

In this appeal, Gilday argues that he is entitled to a writ

of habeas corpus because his trial was replete with

constitutional error, and there consequently is substantial

reason to believe he was innocent of the charges on which he was

convicted. We have considered each of his claims fully, but

and his indictments ultimately were dismissed. Saxe was a
fugitive for several years. After her first trial ended with a
hung jury, she pled guilty to manslaughter and is now free.
Power surrendered to authorities in 1993, and is now serving a
prison sentence.

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cannot say that any of the identifiable flaws in the proceedings

constituted a deprivation of rights warranting reversal of his

convictions. We discuss most of these claims in some detail

below. As for the others, the district court's analysis so

closely reflects our own thoughts that we find it unnecessary to

repeat the discussion and, therefore, adopt its conclusions as

our own.

II. Reasonable Doubt Instruction

Gilday claims a host of problems with the trial judge's

reasonable doubt instruction, several of which center on language

that has been expressly and repeatedly disapproved by this and

other courts. Because we agree that this charge was flawed, we

have studied its full text and context with particular care in

order to answer the relevant constitutional question: "whether

there is a reasonable likelihood that the jury understood the

instructions to allow conviction based on proof insufficient to

meet the [reasonable doubt] standard," Victor v. Nebraska, 114 S.

Ct. 1239, 1243 (1994). Our review is de novo. See Ouimette v.

Moran, 942 F.2d 1, 4 (1991) (presumption of correctness for state

court findings of fact under 28 U.S.C. 2254 applies only to

"`basic, primary or historic facts'" (citation omitted)).

As we previously remarked when evaluating a strikingly

similar instruction in Bumpus v. Gunter, 635 F.2d 907, 910 (1st

Cir. 1980),2 "[i]t is to be remembered . . . that [the

2 The Bumpus trial and Gilday's both occurred early in the

1970s, and the same judge presided over them.

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challenged] remarks have been separately culled from a very

lengthy charge. They, and the emanations from them, must be

assessed along with the rest of the charge . . . ." The Supreme

Court recently reaffirmed the need to examine a charge in context

to determine whether language possibly erroneous in the abstract

is cleansed because "the rest of the instruction . . . lends

content to the phrase," Victor, 114 S. Ct. at 1247, 1250-51. See

also id. at 1243 ("`[T]aken as a whole, the instructions [must]

correctly conve[y] the concept of reasonable doubt to the jury.'"

(quoting Holland v. United States, 348 U.S. 121, 140 (1954)).

In the end, we have come to the conclusion that the charge

overall left the jury with an accurate impression of the

substantial burden faced by the prosecution in establishing the

defendant's guilt beyond a reasonable doubt. As shall become

apparent from our discussion below, none of the problems

identified by Gilday is, on its own, of a severity that warrants

reversal of his conviction. Indeed, several of the flaws are

significantly ameliorated by other aspects of the charge. And,

while the cumulative impact of the flaws is itself a separate

matter of concern, we are persuaded that it does not rise to the

level of constitutional error.

The charge, which spanned 20 paragraphs when reduced to

writing,3 loosely may be divided into three separate segments

3 All nineteen substantive paragraphs are contained in one
of the three segments of the instruction set off in blocks from
the text of this opinion. The twentieth, which simply introduces
the final portion of the charge, is reproduced in text on pages
15 and 16.

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for purposes of our review. We therefore begin our discussion by

reproducing the first five paragraphs:

It is the burden of the Commonwealth to establish
its case beyond a reasonable doubt. What do those
words mean? Well, you give to them their common
ordinary meaning. A doubt means an uncertainty of mind
or a lack of conviction. And reasonable means based
upon a reason.

I am going to discuss with you what our Court has
said it does not mean. It does not mean a whimsical or
a fanciful doubt; that is, a doubt which is conjured
up, which has no strength to tie it together, which has
no foundation in fact. It is floating around in the
air. And you can't pull it down and root it to
something solid in the evidence. It is whimsical.

It is not beyond all doubt. There are few things
in this world of ours which are capable of proof beyond
all doubt. That is an impossible burden. And if that
were the burden that we placed upon the Commonwealth,
no one who transgressed the laws of society or outraged
our populace would ever be convicted of a crime. Don't
confuse beyond a reasonable doubt with beyond all
doubt.

And I sometimes think the jurors take that as
their standard. They must be satisfied before they
find a defendant guilty that there is no possibility
that they are wrong before their full conviction. And
so again, the Court has said: "Proof beyond a
reasonable doubt is not beyond the possibility of
innocence," because I suppose almost anything is
possible.

And if you are satisfied as I define reasonable
doubt of the proof of the Commonwealth's case beyond a
reasonable doubt you should not hesitate because of a
haunting thought that there is a possibility that you
might be wrong. Because then you place on the
shoulders of the sovereign state a burden it does not
have.

The judge thus began simply, telling the jurors that a

reasonable doubt is an uncertainty "based upon a reason."

Petitioner argues that the charge contained such a catalogue of

examples of what was not reasonable doubt that the jury was in

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effect improperly influenced to assign whatever doubt it had to

these examples. But tautology is not multiplicity; all of the

references carried the identical message: that proof beyond a

reasonable doubt is not beyond all doubt. As we said in Bumpus,

635 F.2d at 911:

While the judge placed what we regard as an
uncomfortable degree of emphasis on the limits of the
government's burden, . . . the charge in its entirety
was not so unbalanced as to undercut the reasonable
doubt standard, nor was it basically inaccurate.

The next six paragraphs contain all of the troubling

language. The section begins with a rhetorical question: "[s]o

what does it [reasonable doubt] mean?" The judge then answered:

Not one who is searching for a doubt to acquit; not one
who has made up his mind that the defendant is not
guilty, and then having decided the ultimate question,
to satisfy his conscience goes back through the
evidence and pores through it to find something upon
which to pin the doubt which he already has. No,
indeed. It is the doubt of a conscientious juror who
is earnestly seeking the truth in the fullest discharge
of the oath that he took. It is proof, as our Supreme
Judicial Court has said, "To a moral certainty."

That is not a mathematical certainty; that is not
a scientific certainty which is capable of exactness,
because human beings are endowed with a free will; and
they are capable of independent action. And you can't
take their conduct and put it into a test tube or a
computer and come out with a nice answer.

When you get all through analyzing this evidence,
it has to be a doubt nagging your mind, leaving you
with an uncertainty of conviction to that moral
certainty which you can stand up and argue in the jury
room with principle and integrity and honesty to your
fellow jurors. And if you don't believe in it
yourself, you haven't got a reasonable doubt.

The Supreme Court has expressed it as, "The same
degree of satisfaction of mind and conscience that
jurors should have when they take action in the major

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affairs of their lives," the major affairs of their
lives.

I do not attempt to define for you what are the
major affairs of your lives. I leave it to your
experience and I leave it to your wisdom. When you
take vital action in your everyday lives certainly you
should be satisfied to a moral certainty that what you
are doing is right.

None of us have a crystal ball. The future is not
ours to see. All we can do is weigh the pros and the
cons against any contemplated course of action; and
then with the wisdom and the intellect that we possess,
make a decision. We may be right; we may be wrong.
But if we are satisfied to a moral certainty when we do
an act in our private lives, that it is the right thing
to do, we have a settled conviction of mind. That is
the degree of proof which the law contemplates when
they talk about "proof to a moral certainty."

Petitioner directs his fire to four problem areas in these

passages: (1) the use of the term "moral certainty," (2) the

comparison of the level of certainty necessary for a finding

"beyond a reasonable doubt" with the level of certainty

applicable to personal decisionmaking, (3) the suggestion in the

fourth paragraph that the jury need only weigh the pros and cons

before making a decision, followed by the statement suggesting

that whether the decision is right or wrong is of equivalent

consequence; (4) the possibility that the third of these

paragraphs could be understood as inverting the burden of proof

by requiring the jurors to find in the evidence so strong a

"conviction" of doubt that they would be able to argue for it to

their peers in the jury room. We address each of these in turn,

and then also consider their cumulative effect.

(1) "Moral Certainty". Equating the concept of reasonable

doubt to "moral certainty" may be, in isolation, reversible

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error. See Victor, 114 S. Ct. at 1250-51; Cage v. Louisiana, 498

U.S. 39, 41 (1990) (per curiam); Commonwealth v. Pinckney, 419

Mass. 341, 345-49, 644 N.E.2d 973 (1995). The Supreme Court has

discouraged use of this phrase because of its ambiguous meaning,

see Victor, 114 S. Ct. at 1247-48, and we similarly have

expressed concern because "the jury might feel justified in

convicting based on a feeling rather than on the facts in the

case," United States v. Drake, 673 F.2d 15, 21 (1st Cir. 1982).

See also United States v. Indorato, 628 F.2d 711, 721 (1st Cir.

1980) ("[W]e have indicated our uneasiness with this phraseology

and pointed out that it has been the subject of mixed reviews.").

Indeed, in Cage, the Supreme Court reversed a conviction

based on a charge using "moral certainty" language because the

only other meaning ascribed to reasonable doubt equated such

doubt to "a grave uncertainty" or "an actual substantial doubt."

The Court felt that those terms, in conjunction with the phrase

"moral certainty," suggested a higher degree of doubt than is

required for acquittal.

In Victor, however, the Court upheld the validity of two

separate reasonable doubt instructions that contained "moral

certainty" language, observing that that language "cannot be

sequestered from its surroundings" and finding that the remainder

of the charge lent appropriate content to the otherwise ambiguous

words. 114 S. Ct. at 1248.

As in Victor, the charge here contained far more explanation

than was offered to the jury in Cage. The paragraph immediately

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following the first reference to "moral certainty" distinguishes

that level of certitude from mathematical certainty, harking back

to the message from the preceding section of the charge. The

juxtaposition suggests that the requisite level of confidence

was, indeed, substantial, though not proof beyond all doubt. See

Pinckney, 419 Mass. at 347.4

The lengthy charge also offered additional formulations

emphasizing the high level of proof necessary for conviction.

Twice during the course of the instruction, the court charged

that the jury must attain a "settled conviction" of guilt. In

Victor, the Supreme Court ruled that the use of a similar phrase,

"abiding conviction," mitigated references to "moral certainty"

and "substantial doubt." See 114 S. Ct. at 1247 ("`The word

"abiding" here has the signification of settled and fixed, a

conviction which may follow a careful examination and comparison

of the whole evidence.' . . . As used in this instruction, . . .

we are satisfied that the reference to moral certainty, in

conjunction with the abiding conviction language, `impress[ed]

upon the factfinder the need to reach a subjective state of near

certitude of the guilt of the accused.'" (quoting Hopt v. Utah,

120 U.S. 430, 439 (1887) and Jackson v. Virginia, 443 U.S. 307,

315 (1979)).

4 Although that same distinction was drawn in the reasonable
doubt instruction in Cage, the charge there did not elaborate any

further and, to the extent it did provide additional explanation,
could not overcome the "grave uncertainty" and "actual
substantial doubt" language that the Court found unacceptable.

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It also is significant in evaluating the effect of the term

"moral certainty" that the jury was told more than once that its

decision must be based on the evidence presented. See Victor,

114 S. Ct. at 1248, 1251. In the third paragraph of this section

of the charge, the judge began by noting that "[w]hen you get all

through analyzing this evidence, it has to be a doubt nagging

your mind, leaving you with an uncertainty of conviction . . . ."

Toward the end of the reasonable doubt instruction, the court

noted the jurors' oath to render "a true verdict according to the

evidence and the law," and earlier cautioned against "strain[ing]

the evidence to any conclusion not warranted by its fair

convincing force." Thus, as in Victor, the instruction here

explicitly told the jurors that their decision had to be based on

the evidence in the case, minimizing the possibility that the

reference to "moral certainty" would have been viewed as

permitting a conviction based "on a feeling rather than on the

facts in the case," Drake, 673 F.2d at 21. See 114 S. Ct. at

1248. And, also as in Victor, other instructions reinforced this

message. See, e.g., Tr. at 4274 ("We look for a verdict which is

dictated by your logic and your common sense and not your

heart."); id. at 4276 ("It is your sworn duty to presume the

defendant innocent and to give him the benefit of that

presumption all throughout the trial and at every stage of the

investigation of the evidence in the jury room, until it is

overcome by proof beyond a reasonable doubt."); id. at 4281

("[I]n the last analysis it comes to your most important

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obligation, and that is, to decide this case on the body of the

evidence as I define it."); id. at 4283 ("[W]hen it comes time to

base your verdict, find a foundation in the evidence upon which

it must rest."); id. at 4291 ("The facts must exclude

innocence.").

(2) "Vital action in your everyday lives". Comparing

"beyond a reasonable doubt" to the "degree of satisfaction of

mind and conscience that jurors should have when they take action

in the major affairs of their lives" is an analogy that has drawn

criticism for decades. See Drake, 673 F.2d at 20 (noting Supreme

Court's expressed displeasure of the "willing to act" instruction

in Holland v. United States, 348 U.S. 121 (1954)). Even when

framed in the more accepted format of comparing reasonable doubt

to a doubt that would cause a prudent person to hesitate before

acting, the instruction is arguably unhelpful. See, e.g.,

Victor, 114 S. Ct. at 1252 (Ginsburg, J., concurring).5 The

instruction here, however, did not include the sort of specific,

supposedly comparable, examples that have been viewed as

prejudicially misleading to jurors. Compare, e.g., Commonwealth

v. Ferreira, 373 Mass. 116, 128-29, 364 N.E.2d 1264, 1272-73

(1977) (reversing because a number of examples of important

personal decisions "understated and tended to trivialize the

5 The Supreme Court repeatedly has approved the "hesitate to
act" formulation, however, and the majority in Victor relied in

part on the trial court's use of it as an alternative definition
of reasonable doubt to support its conclusion that the
instruction there was adequate. The Court noted that it "gives a
common-sense benchmark for just how substantial such a doubt must
be." 114 S. Ct. at 1250.

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awesome duty of the jury to determine whether the defendant's

guilt was proved beyond a reasonable doubt") with Rogers v.

Carver, 833 F.2d 379, 382-83 (1st Cir. 1987) (no reversible error

where reference to important decisions was brief and general,

with no specific examples) and Bumpus, 635 F.2d at 912-13 (single

example of deciding whether to have heart surgery did not

trivialize the jurors' duty or minimize the government's burden).

Because no such examples were used, and because the charge

focused on "vital" or "major" personal matters, we think it

unlikely that this aspect of the instruction deprived the

defendant of the right to be found guilty only upon proof beyond

a reasonable doubt.6

(3) Pros and cons; right and wrong. Read on their own, the

opening sentences of the last paragraph in this section

unquestionably present an inadequate articulation of the

substantial and unique burden of proof born by the prosecution in

a criminal case. Read in context, however, the thrust of these

passages was to inform the jurors that a "settled conviction of

mind" must be reached to find the defendant guilty. Immediately

following the reference to right and wrong, the judge stated:

But if we are satisfied to a moral certainty when we do
an act in our private lives, that it is the right thing
to do, we have a settled conviction of mind. That is
the degree of proof which the law contemplates when
they talk about "proof to a moral certainty."

6 The judge's third reference to everyday decisionmaking was
not qualified with an adjective such as "vital" or "major," but
we think the need to equate the criminal trial with a matter of
grave importance was by that time clear.

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This explanation makes manifest that the previous comments,

though poorly framed, were another restatement of the concept

voiced repeatedly by the judge that absolute certainty was

unnecessary. The jurors' decision will not necessarily be error-

free: "we may be wrong." What is crucial, the jurors are told,

is whether they can reach a "settled conviction" of guilt. We

therefore conclude that the language of this paragraph, though

far from ideal, was unlikely to be understood in its entirety in

theoverly casualway suggestedby theopening sentencesin isolation.

(4) Inversion of burden of proof. The third paragraph of

this section of the charge contained two sentences, the first of

which told the jurors: you have a reasonable doubt if, when you

finish analyzing the evidence, you have

a doubt nagging your mind, leaving you with an
uncertainty of conviction to that moral certainty which
you can stand up and argue in the jury room with
principle and integrity and honesty to your fellow
jurors.

The second sentence was much more direct: "And if you don't

believe in it yourself, you haven't got a reasonable doubt."

Although the district court viewed the second sentence as a

mistake that may have suggested an inversion of the burden of

proof, it felt that the preceding sentence "plainly referred to a

`conviction' that the defendant was guilty as charged," not to a

"conviction", i.e., a belief, in a doubt. 866 F. Supp. at 618.

It therefore felt that no misimpression was given. Our view is

essentially the same. The first sentence clearly refers to the

certainty a jury must feel as to conviction. As for the second

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sentence, the concept of having a belief or a moral certainty in

a doubt (which in itself is a state of uncertainty) is, we think,

a strange and awkward way of referring to the strength of one's

doubt. The likely effect would have been to confuse, not to

encourage an inversion of the burden of proof.

In addition, this paragraph was one of twenty in the charge,

which began with a statement that "[i]t is the burden of the

Commonwealth to establish its case beyond a reasonable doubt,"

and which concluded with several paragraphs emphasizing the

defendant's "absolute right to hold the Commonwealth to this

strictness of proof." We therefore find no reasonable likelihood

that the jurors entered their deliberations with the false

impression that petitioner had the burden of establishing a

reasonable doubt.

(5) Cumulative effect. As we have discussed, none of the

multiple deficiencies in the second portion of the charge was of

sufficient magnitude to weaken the conviction. Taken together,

however, their effect is more substantial. Reasonable doubt is

defined with the imperfect term "moral certainty," and one

alternative explanation of moral certainty is the disfavored

formulation concerning personal decisionmaking. Yet another

description of reasonable doubt and moral certainty suggests that

the jury's task is simply a matter of weighing the pros and cons

to reach a decision that "may be right" or "may be wrong." A

central passage defining reasonable doubt is largely

impenetrable, though its language taken literally could be

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understood to impose a burden of proving doubt on the defendant.

And we have expressed our discomfort with the first portion of

the charge, which at great length reiterates that the

government's burden should not be overestimated.

If these two sections comprised the entire instruction, we

might well conclude that reversal would be necessary. Of

greatest significance to our contrary conclusion is the fact

that, at the conclusion of the portions of the charge we have

quoted so far, the judge essentially began anew, telling the

jury, "so there will just be no doubt about what reasonable doubt

means, I am going to define it in the precise and more scholarly

language of our Supreme Judicial Court." In the next eight

paragraphs, he presents the then-acceptable charge on reasonable

doubt from Commonwealth v. Madeiros, 255 Mass. 304, 307-08, 151

N.E. 297 (1926), see Pinckney, 419 Mass. at 348, together with

language emphasizing the importance of the reasonable doubt

standard to our system of jurisprudence.7

"Proof beyond a reasonable doubt does not mean
proof beyond all doubt, nor beyond a whimsical or a
fanciful doubt, nor proof beyond the possibility of
innocence.

"It is rarely, if ever possible, to find a case so
clear that there cannot be a possibility of innocence.
If an unreasonable doubt or a mere possibility of

7 The Supreme Judicial Court has since criticized the
Madeiros language, in the second paragraph quoted here, as

warning the jury against holding the prosecution to too high a
standard of proof. See Commonwealth v. Pinckney, 419 Mass. 341,

348, 644 N.E.2d 973 (1995) (citing cases). In this case, the
judge remedied that deficiency later in the instruction by
warning the jury against relaxing the reasonable doubt standard
in response to concerns about public safety or shocking crimes.

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innocence were sufficient to prevent a conviction,
practically every criminal would be set free to prey
upon the community. Such a rule would be wholly
impracticable and would break down the forces of law
and order, and make the lawless supreme.

"A reasonable doubt does not mean such doubt as
may exist in the mind of a man who is earnestly seeking
for doubts or for an excuse to acquit a defendant; but
it means such doubt as remains in the mind of a
reasonable man who is earnestly seeking the truth.

"A fact is proved beyond a reasonable doubt when
it is proved to a moral certainty, as distinguished
from an absolute or mathematical certainty; when it is
proved to a degree of certainty that satisfies the
judgment and consciences of the jury as reasonable men,
and leaves in their minds, as reasonable men, a clear
and settled conviction of guilt. But if when all is
said and done there remains in the minds of the jury
any reasonable doubt of the existence of any fact which
is essential to the guilt of the defendant on the
particular charge, the defendant must have the benefit
of it and cannot be found guilty upon that charge."

And if you have a reasonable doubt, your verdict
ought to be not guilty.

I want to say a few more words about reasonable
doubt. A standard which produces great satisfaction to
me, and I think should to you, the defendant has an
absolute right to hold the Commonwealth to this
strictness of proof. No consideration of public
safety, nor righteous indignation at atrocious crime
which shocks the community, nor zeal for the
suppression of crime can give to the Court and jury the
discretion, or the right to relax this standard of
proof; nor to strain the evidence to any conclusion not
warranted by its fair convincing force.

This is a government of laws and not of men. If
the guilty go unpunished today because jurors observed
their oath and rendered a true verdict according to the
evidence and the law, then the community and every
citizen in it is still safer, because the law has
prevailed.

The Court cannot state this principle too strongly
as a principle to be observed, to guard the rights of a
defendant. And I would be remiss in my duty if I did
not with equal force remind you that the community is
not safe if only the rights of those charged with crime

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are safeguarded and protected and the rights of the
Commonwealth to have a verdict if guilt is proved
beyond a reasonable doubt is just as absolute and just
as sacred as the right of a defendant to an acquit[t]al
if the proof does not meet that test.

To the extent that specific portions of the instruction up

to this point had been less than clear, the jury explicitly was

told that this restatement was equivalent and complete. Although

the judge repeated in this part of the instruction the "moral

certainty" phraseology, he contrasted a moral certainty only with

an absolute or mathematical certainty. See Pinckney, 419 Mass.

at 347 (finding that the identical language "properly impressed

upon the jury the need to reach a subjective state of near

certitude of the guilt of the accused"). See also supra at 9-10.

Moreover, the judge again emphasized that the proof must leave

"reasonable men" with "a clear and settled conviction of guilt,"

and, failing that, the defendant must be found innocent. With

the language discouraging a verdict for the prosecution unless

based on the law and the evidence, this alternative charge was

entirely correct. In our view, even the cumulative effect of the

earlier imperfections was offset by this lengthy and independent

charge, which the judge praised to the jury as "precise and more

scholarly."

In sum, this instruction possessed a number of flaws, as did

the instructions reviewed in Victor. As we look at some of the

less defensible language, we find it difficult to say that a

juror could not have been led astray. But as the Court reminded

us in Victor, 114 S. Ct. at 1243, the standard is not "could

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have" but rather: is there a reasonable likelihood that the jury

understood the instruction as a whole to permit conviction based

on a level of proof below that required by the Due Process

Clause? Our review convinces us that there was no such

likelihood in this case. Accordingly, it provides no basis for

disturbing Gilday's conviction.

III. Brady/Giglio Claims

Gilday contends that the government's failure to disclose

cooperation agreements with two accomplices who testified as

prosecution witnesses, and the failure to correct their false

testimony that no deals were made, violated his due process

rights as established in Brady v. Maryland, 373 U.S. 83, 87

(1963) and Giglio v. United States, 405 U.S. 150, 154-55

(1972).8 He additionally raises separate Brady claims based on

the government's failure to disclose exculpatory statements by an

eyewitness to the crime who did not testify at trial and by two

trial witnesses. We have examined these claims with care, and

have concluded that none of the asserted nondisclosures nor all

of them cumulatively constitute reversible error.

We begin our discussion by noting the relevant standards.

A Brady error occurs when the prosecution suppresses "material"

evidence that is favorable to the accused. See Kyles v. Whitley,

No. 93-7927, 63 U.S.L.W. 4303, 4307 (U.S. April 19, 1995). In

8 Brady established a prosecutor's obligation to turn over

exculpatory material. In Giglio, the Supreme Court held that the

obligation includes evidence that would impeach the credibility
of government witnesses.

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most circumstances, exculpatory evidence is material only "`if

there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have

been different,'" id. (quoting United States v. Bagley, 473 U.S.

667, 682, 685 (1985)).9 We refer to this as the Bagley

standard.

A standard of materiality more favorable to the defendant

applies, however, when previously undisclosed evidence reveals

that the prosecutor knowingly used perjured testimony or,

"equivalently," knowingly failed to disclose that testimony used

to convict the defendant was false. Bagley, 473 U.S. at 678-80.

In such situations, "`a conviction . . . is fundamentally unfair,

and must be set aside if there is any reasonable likelihood that

the false testimony could have affected the judgment of the

jury,'" Kyles, 63 U.S.L.W. at 4307 n.7 (quoting United States v.

Agurs, 427 U.S. 97, 103 (1976)) (emphasis added).10 We shall

label this test the Agurs standard.

9 This standard applies when the government failed to
respond to a specific defense request for exculpatory evidence,
and when the government failed to volunteer exculpatory evidence
never requested, or requested only in a general way. Kyles v.

Whitley, No. 93-7927, 63 U.S.L.W. 4303, 4307 (U.S. April 19,

1995).

10 Kyles explicitly refers only to the knowing use of

perjured testimony, but we think it implicit that the Court also

contemplated application of this test to those "equivalent"
circumstances noted in Bagley. We have applied the Agurs

standard in a non-perjury setting, when a prosecutor
intentionally withheld materials relating to a witness's prior
criminal record and to the deals he made with the state. See

Ouimette v. Moran, 942 F.2d 1, 10-11 (1st Cir. 1991).

-20-

Although the tests for materiality suggest a harmless error-

like inquiry, it is important to note that these standards must

be applied to determine the threshold question: has

constitutional error occurred? Only then does the issue of

harmlessness arise. And, as the Supreme Court's recent decision

in Kyles makes clear, see 63 U.S.L.W. at 4308, the approach to

harmless error in the Brady/Giglio context has evolved as the

Chapman formulation of "harmless beyond a reasonable doubt" has

yielded in habeas cases to the softer Brecht test of whether the

error "`had substantial and injurious effect or influence in

determining the jury's verdict,'" Brecht v. Abrahamson, 113 S.

Ct. 1710, 1722 (1993) (quoting Kotteakos v. United States, 328

U.S. 750, 776 (1946)).

In Kyles, the Court observed that harmless error analysis is

inapplicable to a Brady/Giglio claim arising in a habeas case

outside the perjury-related context. 63 U.S.L.W. at 4307-08 &

n.7 (noting that "our decision today does not address any claim

under the first Agurs category [i.e., perjury-related]"). The

reason is compelling: the Bagley materiality standard necessarily

requires a court to find an impact on the jury verdict

sufficiently substantial to satisfy the Brecht harmless error

test. Thus, in the non-perjury setting, all that is required or

appropriate is the one-step Bagley inquiry into reasonable

probability.

But a prosecutor's knowing use of false testimony presents a

different analytical situation. As Bagley makes clear, a

-21-

petitioner is given the benefit of a friendly standard (hostile

to the prosecution) to establish materiality: whether a

reasonable jury could have been affected. 473 U.S. at 678-80.

This is, in essence, the old Chapman inquiry. Id. at 679-80 &

n.9. Applying this standard in most cases involving perjury or

its equivalent will likely result in a finding of constitutional

error. Scaling that lower materiality hurdle, however, still

will leave the petitioner facing the Brecht harmless error

inquiry into whether the perjured testimony in fact had a

substantial and injurious effect or influence on the jury's

verdict.11 In other words, where the Agurs standard applies,

it is quite possible to find a constitutional violation, but to

conclude that it was harmless. When faced with such a claim,

therefore, our inquiry is necessarily two-pronged: was there a

failure to disclose material exculpatory evidence, and, if yes,

was such failure harmless?

Having laid out this framework, we now turn to petitioner's

claims.

A. Prosecutorial agreements with Fleischer and Valeri

Petitioner argues that the government deliberately relied on

the false testimony of two witnesses, Fleischer and Valeri, who

denied that any deals had been made with the prosecution for

their cooperation. The district court, like the Commonwealth

courts before it, concluded that no error occurred with respect

11 It is the government's burden, of course, to demonstrate
that the error is harmless. O'Neal v. McAninch, 115 S. Ct. 992,

995-98 (1995).

-22-

to Valeri because his acknowledgement at trial of "a generalized

expectation of leniency" (i.e., that his cooperative trial

testimony would be brought to the court's attention) served to

disclose his possible motivation to testify favorably for the

government. We agree with this determination essentially for the

reasons expressed by the district court, and do not address it

further. See 866 F. Supp. at 634-36.

The Supreme Judicial Court did conclude, however, that the

government improperly failed to disclose a deal made with the

attorney for the other witness, Fleischer. Called in rebuttal,

Fleischer testified most crucially that, in a discussion shortly

after the robbery, Saxe and Power accused Gilday of being

"trigger-happy" and that Gilday said, "What did you want me to

do, the cop was right there, he was only thirty seconds behind

you."

In cross-examination, Fleischer specifically denied that any

deals had been made for his testimony, and testified further that

his only promise from the Commonwealth was that high bail would

be requested but not demanded. In fact, as found by a Superior

Court judge following a hearing on petitioner's motion for new

trial, the prosecutor had told Fleischer's attorney that, in

exchange for Fleischer's testimony, he would attempt to reach a

disposition of the charges against Fleischer that would leave him

with no criminal record.12 Commonwealth v. Gilday (Gilday II),

12 Petitioner states in his brief, although without
citation, that the nine indictments against Fleischer, including
accessory after the fact to first degree murder, in fact were

-23-

382 Mass. 166, 175, 415 N.E.2d 797, 802 (1980). The motion judge

also found that, as the prosecutor and Fleischer's attorney had

agreed, Fleischer was not told of this specific arrangement; he

knew only that it would be "in his best interest to testify in

the case." Id.

The Supreme Judicial Court noted that neither the lack of a

formal agreement with Fleischer nor Fleischer's lack of knowledge

of the specifics of the understanding relieved the prosecutor of

his obligation to disclose material facts concerning Fleischer's

credibility and possible bias. Indeed, the court noted that to

hold otherwise would be "in effect [to] approve the evasion of

the Giglio rule by means of artful device." 382 Mass. at 177,

415 N.E.2d at 803. That court, however, agreed with the motion

judge that the suppression of this information had no effect on

the jury and therefore did not require a new trial. 382 Mass. at

177-78, 415 N.E.2d at 803-04. The district court reached the

same conclusion in rejecting the habeas petition. 866 F. Supp.

at 633.13

Our review of the determination that the prosecutor had a

duty to disclose the Fleischer arrangement is de novo. See

Ouimette, 942 F.2d at 4. We apply the Agurs standard of

dropped after he testified against Gilday and Saxe in their
separate trials. The Commonwealth does not dispute this
representation.

13 Neither the Supreme Judicial Court nor the district court
found it necessary to state precisely whether the applicable
Brady standard had been met and a constitutional violation thus

established because each found the asserted error harmless in any
event.

-24-

materiality, more favorable to the petitioner, because of the

prosecutor's deliberate strategy to misrepresent Fleischer's

credibility and the knowing acquiescence in Fleischer's false

testimony. See id. at 11; see also supra at 19-20.

As we have explained, the relevant inquiry is whether there

is any reasonable likelihood that the false testimony could have

affected the judgment of the jury. To put the question the other

way around: can we say that no reasonable jury could have been

affected by the undisclosed information? We think the answer is

fairly obvious. The information withheld by the prosecutor would

have provided the basis for powerful impeachment of Fleischer's

testimony. Not only did Fleischer deny that any deals had been

struck on his behalf, but he also claimed that he was testifying

only because a man had been killed and he wanted to "see justice

done."

The fact that his lawyer and the prosecutor had come to an

understanding would have markedly strengthened the defense's

claim that Fleischer was highly motivated to implicate Gilday to

protect himself. First, it would have permitted the jury

reasonably to infer that, even if the "wink and nod" deal had not

been explicitly communicated to Fleischer, he must have been

given some indication that testimony helpful to the government

would be helpful to his own cause. Cf. Bagley, 473 U.S. at 683

(making reward contingent upon outcome "served only to strengthen

any incentive to testify falsely in order to secure a

conviction"). In addition, evidence of the deal would have

-25-

reinforced the testimony of defense witness Bond, another

accomplice, who implicated Fleischer as the gunman. The stakes

for Fleischer were substantial indeed if his testimony blaming

someone else could secure his release entirely from criminal

responsibility for a murder he had committed; his motivation to

lie could not have been greater.

Disclosure of the deal in all likelihood would have reduced

substantially, or even destroyed, Fleischer's credibility.

Because the direct accusation of an accomplice is of more than

minimal consequence in a case where the defense is that someone

else was responsible for the charged crime, we think it at least

reasonably likely that the suppression of this evidence could

have affected the jurors' judgment. Presumably, the government

agrees with this assessment; for what other reason would the

prosecutor have gone to such lengths to keep the information from

them?

Recognition of error does not end our task, however.

Although we have determined that the jury might have been

affected by knowledge of Fleischer's deal, and thus that the

prosecution's suppression of the evidence violated its

constitutional obligation under Brady and Giglio, we also must

consider -- to restate the Brecht standard -- whether the error

was of such magnitude that it actually casts doubt on the

integrity of the verdict. This is the difference between a

possibility and a probability. See O'Neal v. McAninch, 115 S.

Ct. 992, 994 (1995) (to find harmlessness, reviewing court must

-26-

conclude that error more likely than not had no effect on the

verdict). Our review of the evidence indicates that, even if the

jury had assigned no weight to Fleischer's testimony, the

substance of the case against Gilday would have remained the

same. The other evidence, moreover, was considerable. Cf.

Giglio, 405 U.S. at 154-55 (government's case depended "almost

entirely" on witness whose deal with prosecution was not

disclosed).

Indeed, Fleischer was a rebuttal witness, and as such simply

repeated the earlier testimony of another witness, Valeri, that

Gilday had admitted to being the shooter. Valeri had reported

that Gilday was at the scene of the robbery in the car from which

the shots were fired, that Gilday possessed the murder weapon

after the crime, and that Gilday said that he had waited at the

scene of the robbery until the police officers arrived because

"he had always wanted to shoot a police officer."

Three eyewitnesses testified, all disinterested outsiders

who were in close proximity to the shooting. The strongest,

Becker, made an in-court identification of Gilday, who was

sitting unobtrusively with spectators. He also had chosen

Gilday's picture from a spread of photographs shown to him two

months after the shooting. He further recalled at trial, after

having stood up to make his identification, that the gunman, like

himself (and like Gilday), had a little bald spot on the top of

his head. Cross-examination elicited that the only description

Becker had given police at the time of the shooting was that the

-27-

gunman was a white male and that he probably had seen Gilday's

picture in the media; while acknowledging the possibility that

this influenced him, he insisted that his identifications were

based solely on his observations at the time of the crime.

A second witness, Goddard, described the gunman as a white

male in his late thirties, clean-shaven, with a receding

hairline, hair combed straight back, wearing an olive jacket --

all consistent with Gilday's appearance. True, he did not pick

out Gilday's picture from spreads shown him on the day of the

shooting, or two weeks later. On the first occasion, he saw "a

couple of pictures that resembled the man that I saw" but did not

pick them out because he was not sure. On the second occasion,

he had seen Gilday's picture in the papers and recognized it in

the spread.

The third witness, Gaudette, described the gunman as of

medium build, similar to himself, with weight around 185 pounds,

height five feet six or seven inches, in his thirties, with dark

hair. He picked Gilday's picture out of a photospread two months

after the shooting. Then, in the courtroom, he failed to

identify Gilday, who was not wearing glasses at the start of

Gaudette'sperusal butput themon asGaudette continuedhis scrutiny.

On the whole, we consider this eyewitness evidence, while

not without weaknesses, impressive. Further, the evidence was

overwhelming that Gilday was involved in the crime. In his own

testimony, he acknowledged that he had bought the semiautomatic

weapon and one of the cars that had been used in the robbery and

-28-

murder, that he had stolen a license plate and affixed it to

another car used by the robbers, and that he took some of the

holdup money from an apartment where Bond, Saxe, Power and

Fleischer were gathered after the crime. In addition, an

acquaintance of the group, McGrory, testified to a conversation

with Gilday after the robbery about McGrory's having figured out

who was responsible for the crime. McGrory stated that, during

the exchange, Gilday first claimed that he had not heard that a

police officer had been critically wounded, but later said "I did

it" and warned that even if Gilday were imprisoned on death row,

he would take care of McGrory if he said anything.

While neither the activities to which Gilday confessed nor

McGrory's testimony require a finding that Gilday was the

gunman14 -- or even at the scene of the robbery -- the other

evidence provided a strong link between his confessed complicity

in the crime and the alleged role of gunman. Fleischer's

testimony on rebuttal corroborated the government's case, but it

shed no new or different light on it.

Moreover, some impeachment of Fleischer did take place. A

former FBI agent, George Bernard Kennedy, testified in

surrebuttal that Fleischer had told him in the spring of 1971

that Gilday had not shot the police officer. In addition, as we

have noted, Fleischer was implicated by defense witness Bond as

the gunman; that testimony made transparent a motive to accuse

14 Gilday maintains that none of this testimony explicitly
refers to his being the gunman, but simply indicates
participation generally in the group's pursuits.

-29-

someone else. Thus, while the challenge to Fleischer's

credibility would have been measurably more potent with the

withheld information, he was already a sullied witness.

In sum, we are persuaded that suppression of the Fleischer

agreement did not have a substantial and injurious effect or

influence in determining the jury's verdict. The nature of the

other evidence makes it unlikely that even a stinging impeachment

of Fleischer based on the undisclosed deal would have had the

requisite impact on the jury's deliberations.15 The error was

therefore harmless.16

B. Eyewitness and other statements.

Petitioner also claims error in the government's failure to

disclose exculpatory evidence from three witnesses: (1) a

statement by Michael Finn shortly after the crime that described

the gunman in terms inconsistent with Gilday's appearance; (2) an

FBI report that Bernard Becker, who identified Gilday as the

gunman at trial, stated three weeks after the crime that he could

not provide a description of the gunman; (3) a report that

Fleischer initially denied knowing Gilday when asked by the FBI.

15 Contrary to petitioner's suggestion, the references to
Fleischer in the prosecutor's closing argument did not
particularly highlight his testimony. Indeed, Fleischer was
significant in the prosecution's summary of the case in part
because defense witness Bond indicated that he was the gunman.

16 Petitioner urges that this is the "unusual case"
identified in Brecht as perhaps warranting habeas relief even if

the asserted error did not substantially influence the jury's
verdict. See 113 S. Ct. at 1722 n.9. We do not find that "the

integrity of the proceeding" was so infected here as to justify
such an extraordinary remedy.

-30-

To determine the materiality of these pieces of undisclosed

evidence, we apply the Bagley test: whether there is "`a

reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been

different,'" Kyles, 63 U.S.L.W. at 4307 (quoting Bagley, 473 U.S.

at 682).

Only two merit more than passing discussion.17 While

recognizing that Finn's first description of the gunman should

have been viewed by the prosecutor at the outset of the trial as

significant exculpatory evidence subject to disclosure, the

vantage of hindsight leads us to conclude that the likely impact

of suppressing it turned out to be slight. At the hearing on

petitioner's second motion for new trial, which was premised in

part on this asserted Brady violation, Finn, who was not called

as a witness at trial, gave a different description of the

shooter -- one consistent with Gilday's appearance. The motion

judge found that Finn, who had a reputation for mental

instability and alcoholism, would have been an unreliable

witness. Gilday I, 367 Mass. at 487-89, 327 N.E.2d at 859-60.

The district court credited this finding, 866 F. Supp. at 636,

and we are likewise inclined to do so. Based on the record

before us, it seems most likely that, had Finn testified at

trial, his impact on the jury would have been at best equivocal.

17 The failure to disclose Fleischer's false statement is
measurably less significant to his credibility than the
cooperation agreement, and our earlier discussion concerning
Fleischer's testimony effectively resolves this issue as well.

-31-

We certainly cannot say that there is a reasonable probability

that his testimony would have materially changed the face of the

trial.

As for Becker, while we appreciate that statements made in

close temporal proximity to the crime are significant in

evaluating an eyewitness's reliability, see Kyles, 63 U.S.L.W. at

4310 (citing Manson v. Brathwaite, 432 U.S. 98, 114 (1977)), we

think it only of modest importance that his identification of

petitioner was preceded by an earlier inability to provide a

description. The fact that someone cannot articulate a

description of an individual does not necessarily undermine the

accuracy of a later identification; the challenge would be

substantially more potent had Becker given an earlier description

inconsistent with his trial testimony.

Moreover, Becker's testimony at trial essentially reflected

the fact that he was unable to give a description at the time of

crime. He stated that he told the police only that the shooter

was "[a] white male," acknowledging that he provided "[n]o other

distinguishing characteristics or descriptions." In these

circumstances, we think the withheld FBI report would have had a

minimal effect upon the jury.

C. Cumulative Impact.

In its recent decision in Kyles v. Whitley, the Supreme

Court stressed the importance of considering the cumulative

effect of all suppressed evidence in determining whether a Brady

-32-

violation has occurred. 63 U.S.L.W. at 4308. The Court

concluded that, had the prosecution disclosed to competent

counsel the substantial amount of evidence at issue there, a

different result would have been reasonably probable;18 the

jury would have been considerably more likely to have accepted

the defendant's theory that he was framed by a police informant

who was actually the murderer. See id. at 4306.19 Not only

would disclosure have severely discredited two of the four

eyewitnesses who were "`the essence of the State's case,'" id. at

4310 (quoting district court), but it also would have "entitled a

jury to find that . . . the most damning physical evidence was

subject to suspicion, that the investigation that produced it was

insufficiently probing, and that the principal police witness was

insufficiently informed or candid." Id. at 4313.

The circumstances here are markedly different. While the

various pieces of suppressed evidence in Kyles fit together

18 Indeed, a mistrial was declared in the defendant's first
trial because the jury became deadlocked on the issue of guilt.
63 U.S.L.W. at 4306.

19 The undisclosed evidence in Kyles consisted of six

contemporaneous eyewitness statements with significant
inconsistencies; records of the informant's initial call to the
police stating that he had bought a car like the victim's from
the defendant on the day of the murder; a tape recording of
another conversation between the informant and police officers
further incriminating the defendant; a signed statement from the
informant repeating matters from the tape-recorded discussion,
although with inconsistencies; a computer print-out of license
numbers of cars parked on the night of the crime at the market
where the murder occurred, which did not list the defendant's car
license number; an internal memorandum directing seizure of the
defendant's trash after the informant had suggested the victim's
purse might be found there, and evidence linking the informant to
other crimes at the market and to an unrelated murder.

-33-

factually to make the defense theory of the case more likely, the

evidence here taken cumulatively sheds no new light on the crime

or petitioner's involvement in it. The suppressed material went

primarily to the credibility of witnesses, one of whom (Becker)

acknowledged at trial information equivalent to the undisclosed

evidence. The only significantly potent undisclosed material was

the Fleischer agreement;20 we are sufficiently persuaded that

none of the other evidence adds to its effect in such a way as to

have influenced the jury's judgment. Here, unlike in Kyles, the

whole of the challenge to the prosecution's case was no greater

than the sum of its individual parts. Accordingly, we find no

remediable Brady violation.

IV. Sandstrom Claims

Petitioner argues that the trial judge's charge to the jury

included five mandatory presumptions of intent that violated his

due process rights as established in Sandstrom v. Montana, 442

U.S. 510, 520-24 (1979).21 In a related argument, he

challenges a portion of the instruction foreclosing the jury from

considering an intoxication defense, arguing that it

unconstitutionally relieved the Commonwealth of its burden of

20 Although we found error in the prosecution's suppression
of the Fleischer agreement, our conclusion that the error was
harmless effectively is equivalent to our finding that the other
evidence withheld did not satisfy the Bagley materiality

standard. We therefore reconsider the agreement in assessing the
cumulative effect of the government's non-disclosures.

21 Sandstrom held that a jury instruction containing a

presumption that has the effect of relieving the prosecution of
the burden of proof on an element of a charged crime violates the
Due Process Clause. 442 U.S. at 520-24.

-34-

proof on the issue of intent as recognized by the Supreme

Judicial Court in a series of cases beginning with Commonwealth

v. Henson, 394 Mass. 584, 592-93, 476 N.E.2d 947, 953-54

(1985).22

The SJC reviewed the instructions on intent only as they

related to the issue of intoxication. The court ruled that the

intoxication portion of the charge correctly reflected the law at

the time of petitioner's trial, and that he was not entitled to

retroactive application of a change in the law that was announced

thirteen years later. See Commonwealth v. Gilday (Gilday III),

409 Mass. 45, 47, 564 N.E.2d 577, 579 (1991). The court found

that no other assertion of instructional error, including the

more general Sandstrom claims, had been raised in the relevant

(fourth) motion for new trial. It therefore held that such

additional claims were waived. Id., 409 Mass. at 46 & n.3, 564

N.E.2d at 578 & n.3.

The district court did not explicitly address the

intoxication issue. Petitioner raises it on appeal in limited

fashion, recognizing that we previously have declined to disturb

the SJC's determination that Henson's protection of the

intoxication defense is not retroactive. See Robinson v. Ponte,

22 The court stated in Henson that "where proof of a crime

requires proof of a specific criminal intent and there is
evidence tending to show that the defendant was under the
influence of alcohol or some other drug at the time of the crime,
the judge should instruct the jury, if requested, that they may
consider evidence of the defendant's intoxication at the time of
the crime in deciding whether the Commonwealth has proved that
specific intent beyond a reasonable doubt." 394 Mass. at 593,
476 N.E.2d at 954.

-35-

933 F.2d 101, 103-05 (1st Cir. 1991). We decline to revisit that

precedent here, and the claim is therefore unavailing.23

As for the general Sandstrom claims, the district court gave

two reasons for rejecting them. First, it concluded that

petitioner was not entitled to protection from the Sandstrom rule

because that case was decided after his conviction became final,

and, under Teague v. Lane, 489 U.S. 288 (1989), the principle

established there was not retroactive. Second, the court held

that the SJC's refusal to consider the "non-intoxication claims"

based on petitioner's procedural default constituted an

independent state law ground for rejecting those claims, thus

barring habeas review unless the petitioner can show "cause

for", and "prejudice from" his noncompliance with the

Commonwealth's procedures. See Wainwright v. Sykes, 433 U.S. 72,

86-87 (1977); Ortiz v. Dubois, 19 F.3d 708, 714 (1st Cir.

1994).24

23 To the extent that petitioner seeks to raise the federal
constitutional claim directly on appeal, we decline to address
the issue. His brief contains only two paragraphs on the
intoxication instruction, primarily directed to the Supreme
Judicial Court's caselaw and our decision in Robinson v. Ponte.

His reference to arguments raised in the district court, without
elaboration, is insufficient to warrant our review. See Cray

Communications v. Novatel Computer Systems, 33 F.3d 390, 396 n.6

(4th Cir. 1994) (adopting by reference memoranda filed in the
district court is a practice "that has been consistently and
roundly condemned by the Courts of Appeals"); United States v.

Bales, 813 F.2d 1289, 1297 (4th Cir. 1987) (noting that "other

courts have stated that arguments incorporated by reference need
not be considered on appeal").

24 Petitioner has not argued that there was "cause for" or
"prejudice from" his failure to comply with the procedural rule,
relying instead on the assertion that no default occurred.

-36-

We need not delve into the retroactivity issue because we

agree with the district court's judgment that the non-

intoxication Sandstrom claims are procedurally barred.

Petitioner's fourth motion for new trial and his memorandum in

support of the motion focused entirely on the effect of the

intoxication instruction on the jury's determination of intent.

Although the memorandum cited to Sandstrom and related precedent,

i.e., In re Winship, 397 U.S. 358 (1970) and Mullaney v. Wilbur,

421 U.S. 684 (1975), it is apparent to us that those cases were

invoked in support of the intoxication argument and not as a

basis for a general challenge to the presumptions on intent

contained in the instruction. In these circumstances, we cannot

contradict the SJC's determination that, as a matter of

Massachusetts law, the motion did not preserve the Sandstrom

claims for appeal. See Ortiz, 19 F.3d at 713 n.5 ("the law of

Massachusetts is what the SJC says it is"). Cf., e.g., Williams

v. Lane, 826 F.2d 654, 660 (7th Cir. 1987) (state court

determination of waiver does not preclude federal habeas review

where record shows that petitioner fully complied with state's

articulated procedural rules). Accordingly, we do not consider

them.25

25 We suspect, however, that even if considered on the
merits, the Sandstrom claims would be deemed harmless error.

Petitioner's defense was not that he lacked the requisite mens
rea to be found guilty on the crimes charged, but that he was not
the gunman who shot Officer Schroeder. See Bembury v. Butler,

968 F.2d 1399, 1402-1404 (1st Cir. 1992) (instruction creating
mandatory presumption of intent was harmless where question of
intent never raised: "[Defendant] merely presented an alibi,
claiming he was not the culprit.")

-37-

V. Pretrial Publicity

Petitioner contends that he was denied his right to a fair

trial because of extensive pretrial publicity, specifically

claiming that the trial judge erred in denying his motion for an

additional continuance of the trial date and for a change of

venue.26

Essentially for the reasons expressed by the Supreme

Judicial Court and the district court, we find no reversible

error in the trial judge's handling of the case in this respect.

See Gilday I, 367 Mass. at 491-93, 327 N.E.2d at 861-62; Gilday

v. Callahan, 866 F. Supp. at 623-24.

VI. Conclusion

We have examined with care each of petitioner's claims of

constitutional error. Having found that the only meritorious

claim -- the Brady violation in suppressing the Fleischer

agreement -- was harmless, we affirm the judgment of the district

court denying petitioner's writ of habeas corpus.

Affirmed.

26 The trial originally was scheduled to start in April
1971, about six months after the crime, but the court granted a
continuance and it did not begin until February 1972.

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