[Not for Publication]
United States Court of Appeals
For the First Circuit
No. 97-1239
UNITED STATES,
Appellee,
v.
ALFRED W. TRENKLER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Stahl, Circuit Judge.
Morris M. Goldings, with whom Amy J. Axelrod, R. David Beck, and
Mahoney, Hawkes & Goldings, LLP, were on brief for appellant.
Kevin P. McGrath, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for appellee.
January 6, 1998
STAHL, Circuit Judge. Defendant-appellant Alfred
STAHL, Circuit Judge.
W. Trenkler appeals district court orders denying his various
motions for a new trial, for an inquiry into possible juror
misconduct, and for an evidentiary hearing on the basis of
newly acquired evidence. We conclude that the district court
properly denied the motions, and, therefore, we affirm.
I.
I.
Facts and Procedural History
Facts and Procedural History
On November 29, 1993, defendant was convicted of
conspiracy under 18 U.S.C. 371, receipt of explosive
materials under 18 U.S.C. 844(d), and attempted malicious
destruction of property by means of an explosive under 18
U.S.C. 844(i), for his role in creating a pipe bomb that
resulted in the death of one Boston bomb squad officer and
the serious injury of another officer.
In his appeal to this court, we held that the trial
court had erred by admitting evidence from a Bureau of
Alcohol, Tobacco and Firearms ("ATF") computerized database
of bombings ("EXIS"), which the government had introduced at
trial under the catch-all exception to the hearsay rule, Fed.
R. Evid. 803(24), to establish the identity of the bombmaker.
See United States v. Trenkler, 61 F.3d 45, 59 (1st Cir.
1995). We reasoned that the government had not convincingly
demonstrated the reliability of the EXIS database evidence.
See id. We also concluded, however, that the error was
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harmless beyond a reasonable doubt, principally on the basis
that a government witness and convicted felon, William David
Lindholm, had testified that defendant had built the pipe
bomb at issue, but also on the basis that the government had
provided ample evidence, including out of court statements by
defendant's alleged co-conspirator, Thomas Shay, Jr., to
establish a relationship between defendant and Shay Jr. Id.
at 60-61.
Developments subsequent to defendant's appeal bring
him before us once again. First, defendant learned from an
article in the Boston Globe on August 1, 1995, that Lindholm
had been released from prison on September 30, 1994, thirty-
seven months into his ninety-seven month sentence. On August
8, 1995, defendant filed with this court a motion to remand
for an inquiry into a possible undisclosed deal between
Lindholm and the government. We denied the motion because
the district court was the proper forum for the request.
Second, on June 22, 1995, we held in Shay Jr.'s
appeal of his conviction arising from the same incident that
the district court had erred by excluding testimony by Dr.
Robert Phillips that Shay Jr.'s incriminating statements were
unreliable because Shay Jr. suffered from a recognized mental
disorder known as "pseudologia fantastica." On remand, the
district court held that the doctor's testimony was both
reliable and relevant and was, accordingly, admissible as an
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"alternative, non-incriminating explanation for Shay Jr.'s
seemingly incriminating statements." The results of Shay
Jr.'s appeal are relevant to defendant Trenkler because, on
the basis of the district court's original exclusion of the
statements in Shay Jr.'s trial, defendant's trial counsel
concluded that it would be futile to seek to introduce the
doctor's testimony in defendant's trial and thus did not
attempt to do so.
Finally, on October 15, 1996, defendant learned
that a woman named Donna Shea had notified the ATF that an
alternate juror at his trial, Ramona Walsh, had known
defendant. During voir dire Walsh had not admitted to
knowing defendant. The government initiated an investigation
into Shea's allegations, pursuant to which an ATF agent
interviewed both Shea and a third party, Nancy Tolmie (now
Nancy Russell). Shea claimed in her interviews that
alternate juror Walsh had been present at three or four
cocaine sales that Shea had made to Tolmie twelve years prior
to the Trenkler trial. Further, she claimed that defendant
may have been present at those sales. Tolmie admitted in her
interview that she had purchased cocaine from Shea during the
time period in question, but she denied that Walsh had ever
accompanied her on those occasions. In an ATF Report of
Investigation, the government concluded that Shea's
allegations were groundless.
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Subsequently, on the basis of Lindholm's early
release from prison, and this court's evidentiary ruling in
Shay Jr.'s appeal on the testimony of Dr. Phillips, defendant
filed in the district court on December 22, 1995, a motion
for a new trial pursuant to Fed. R. Crim. P. 33 or,
alternatively, an evidentiary hearing based on newly acquired
evidence. While that motion was pending, on November 19,
1996, Trenkler filed a motion for inquiry into possible juror
misconduct and for a new trial on the basis of Shea's
allegations regarding Walsh. The district court denied the
motions, respectively, on February 4, 1997, and May 22, 1997.
This appeal followed.
II.
II.
Discussion
Discussion
A. Juror Misconduct
Defendant first argues that the district court
abused its discretion in denying his motion for inquiry into
possible juror misconduct and for a new trial because it
failed to conduct an independent inquiry regarding the
misconduct allegation. Specifically, he contends that the
court's failure to conduct an inquiry and to grant a new
trial based on the allegations of juror misconduct violated
his Sixth Amendment right to an impartial jury. He also
contends that the court improperly based its findings
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entirely on statements obtained for the government by the ATF
agent.
We review a district court's determination that no
juror misconduct occurred for a patent abuse of discretion.
See United States v. Hunnewell, 891 F.2d 955, 961 (1st Cir.
1989). We likewise review the denial of a motion for a new
trial for manifest abuse of discretion. See United States v.
Tibolt, 72 F.3d 965, 972 (1st Cir. 1995).
As an initial matter, we note that the court was
justified in relying on the report of the ATF agent's
interviews with Shea and Tolmie. As the government rightly
points out, it was the government who first brought the
charge of juror misconduct to the attention of the district
court, and defendant failed to present any evidence that
would place into question the accuracy of the report.
We next turn to the court's determinations. When
there has been a "nonfrivolous suggestion" of juror bias or
misconduct, "the district court must undertake an adequate
inquiry to determine whether the alleged incident occurred
and if so, whether it was prejudicial." United States v.
Gaston-Brito, 64 F.3d 11, 12 (1st Cir. 1995) (internal
citations omitted). Although this threshold is not
particularly high, see Neron v. Tierney, 841 F.2d 1197, 1202
n.6 (1st Cir. 1988), the district court shall not "intru[de]
into the sphere of jury privacy," id. at 1205, without
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evidence "sufficient to undergird genuine doubts about
impartiality," id. at 1202.
Defendant has presented no such evidence. As the
district court observed, Shea did not claim that Walsh knew
anything about defendant or had ever spoken to him, nor had
she alleged any other facts that would lead one to believe
that Walsh would recognize defendant twelve years later.
Moreover, not only did Tolmie contradict Shea's allegations
but, in addition, Shea herself contradicted them by admitting
that defendant did not know "or have any dealings with" Walsh
during the relevant time period. On the basis of these
circumstances alone we find that the district court committed
no patent abuse of discretion in finding that Shea's
allegations of misconduct by an alternate juror were
conjectural and did not trigger a duty to investigate. The
court therefore committed no abuse of discretion in denying a
new trial.
B. Newly Discovered Evidence
Defendant's second argument is that the district
court abused its discretion in denying his motion for a new
trial or, alternatively, an evidentiary hearing based on
newly acquired evidence, because it used inappropriate
standards in considering the newly discovered evidence
regarding Lindholm, and because it improperly declined to
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recognize Dr. Phillips's testimony as "unavailable" to him at
the time of his trial.
We begin with the Lindholm issue. In normal
circumstances, a motion for a new trial based on newly
discovered evidence must show that the evidence was (1)
unknown or unavailable at the time of trial, (2) despite due
diligence, (3) material, and (4) likely to result in an
acquittal upon retrial. See United States v. Ortiz, 23 F.3d
21, 27 (1st Cir. 1994). A less stringent standard of review
applies, however, when the new evidence was in the
government's control and its disclosure was withheld, and
when there is an allegation that a witness committed perjury.
In particular, in situations in which the government has
withheld evidence, a court should grant a new trial if there
is a "reasonable probability" that the evidence would have
changed the result. Tibolt, 72 F.3d at 971. Perjury
allegations should prompt a new trial when the court is
"reasonably-well satisfied" that the testimony was false and
that, without the false testimony, the jury "might have
reached a different result." United States v. Wright, 625
F.2d 1017, 1020 (1st Cir. 1980) (internal citation omitted).
In this case, there is no basis for applying a more
lenient standard. The district court rightly observed that
nothing in the record indicates that Lindholm perjured
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himself or that his early release from prison was the result
of a deal made prior to the trial that the government failed
to disclose. Rather, all evidence, including an affidavit
from an assistant U.S. Attorney which defendant has not
challenged, unequivocally leads to the conclusion that
Lindholm's early release arrangement was made several months
after the Trenkler trial. The district court's use of the
more stringent standard was therefore appropriate.
Furthermore, that there is no evidence of perjury or
nondisclosure by itself suffices to defeat defendant's
argument: there is simply no basis, under the first Ortiz
factor, on which to conclude that the "new evidence" or any
agreement associated with it even existed at the time of the
trial. Accordingly, our independent review of the evidence
convinces us that the district court did not abuse its
discretion in denying an evidentiary hearing and a new trial
on this issue.
Defendant's next claim is that Dr. Phillips's
testimony regarding Shay Jr.'s condition of pseudologia
fantastica constitutes newly discovered evidence. In
particular, defendant argues that his trial counsel chose not
to offer the testimony because the district court had
excluded it at Shay Jr.'s trial and that our remand of the
testimony issue in that case to the district court for
further consideration rendered the testimony newly discovered
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evidence. We, like the district court, reject this argument.
Under no interpretation of the standard was Dr.
Phillips's testimony unknown or unavailable at the time of
defendant's trial. That the district court excluded the
testimony in Shay Jr.'s trial and that defendant's trial
counsel believed it would be futile to offer it in light of
the prior trial do not excuse him from making the offer. The
decision of defendant's trial counsel in this case not to
offer the testimony may have been part of his reasonable
trial strategy: although some of Shay Jr.'s statements were
not favorable to Trenkler, some of his admissions supported
Trenkler's defense. Thus, trial counsel may have determined
that it would be unwise to risk discrediting Shay Jr.'s
admissions, even for the sake of discrediting his statements
about the existence of a co-conspiracy between Shay Jr. and
defendant. In any event, the district court did not abuse
its discretion in concluding that the proffered testimony
failed to meet the first prong of the Ortiz test, thus
denying defendant's motion on this issue.
In sum, the district court did not abuse its
discretion with regard to any of the issues in this appeal.
Affirmed.
Affirmed
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