United States v. Schneiderhan

United States Court of Appeals
For the First Circuit

No. 03-2019

UNITED STATES OF AMERICA,

Appellee,

v.

RICHARD J. SCHNEIDERHAN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Torruella, Circuit Judge,
Coffin and Stahl, Senior Circuit Judges.

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.

April 13, 2005
 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 (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.

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Evid. 704(b). A final issue raised in the wake of Blakely v.

Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), and United States

v. Booker, 543 U.S. ___, 125 S. Ct. 738 (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

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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

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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

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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.

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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.

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.

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 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 defense of factual

impossibility, and the court further ruled that defendant had

failed to exploit available witnesses on the issue – specifically

Weeks and William Bulger. Finally, it held that the Jencks Act was

not violated because no showing was made that Apfel's letter was a

statement about matters material to the testimony Apfel had given

in defendant's trial.

Argument and Analysis. We generally will reverse the denial

of a motion for new trial only if there is a "manifest abuse of

discretion," United States v. Glenn, 389 F.3d 283, 287 (1st Cir.

2004), and a district court's determination that information is

neither exculpatory under Brady nor discoverable under the Jencks

Act is similarly subject to abuse-of-discretion review, United

States v. Rosario-Peralta, 175 F.3d 48, 55 (1st Cir. 1999). The

criteria for finding a Brady violation are: (1) a wilful or

inadvertent suppression of evidence by the government, (2) the

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evidence being favorable to the defendant, (3) resulting in

prejudice to the defendant so serious that there is "a reasonable

probability that the suppressed evidence would have produced a

different verdict." Strickler v. Greene, 527 U.S. 263, 281-282

(1999); see United States v. Josleyn, 206 F.3d 144, 153 (1st Cir.

2000). This does not mean that a verdict would have been "'more

likely than not'" different, but that, without the evidence,

defendant did not receive a trial "'resulting in a verdict worthy

of confidence.'" Strickler, 527 U.S. at 289-90 (quoting Kyles v.

Whitley, 514 U.S. 419, 434 (1995)).

The Jencks Act requires the government to provide, upon

request, certain prior statements made by trial witnesses, and our

review turns on the statutory requirement that the statement

"relate[] to the subject matter as to which the witness has

testified," 18 U.S.C. § 3500(b). Again, a demonstration of

prejudice is necessary. United States v. Nelson-Rodriguez, 319

F.3d 12, 35 (1st Cir. 2003).

On appeal, defense counsel seeks to characterize the 1998

Apfel letter as an admission by the government that pen registers

were a well known component of the Winter Hill Gang investigation,

supporting defendant's contention that his communication to Weeks

in 1999 was not intended to be of consequence. Defendant refers in

his brief to "the government's myth that no law enforcement officer

under any imaginable circumstance would ever breathe a word about

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electronic surveillance in order to avoid flushing it's [sic]

usefulness down the toilet," and asserts that the jury "should have

learned that by October 9, 1998, even the federal prosecutors had

abandoned the secrecy shill." In oral argument, appellate counsel

passionately elaborated on that theme: "I wasn't given a chance to

put David Apfel's letter down his throat . . . . I could have

tortured him for a couple of hours about that letter." He further

noted that for the government to put pen registers on the brothers'

phones in 1999 is "almost laughable as a realistic attempt" to

track down James.

There are several problems with this argument. Perhaps the

most important is that the argument blithely ignores the gulf

separating the kind of information he was convicted of passing on

to Weeks and that described in the Apfel letter. The latter was a

statement, made a year before appellant's action, that the

government "has obtained" information from unidentified pen

registers, trap and trace devices, and terminating number searches.

In other words, not only is the reference to past activity, but it

is a general reference to several investigative techniques employed

by the government without identifying the targeted telephones.

In contrast, defendant was charged with and convicted for

passing on information that electronic surveillance devices had

just been installed on the telephones of two named individuals. It

was the harm done to law enforcement investigations by this kind of

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almost contemporaneous release of specific information concerning

targets of electronic surveillance that was the subject of the

testimony of all the government's witnesses.1 At no point does

defendant in either his brief or oral argument acknowledge the

difference between the information contained in the Apfel letter

and the specific target information referred to by the government

witnesses. We fail to see how nondisclosure of the Apfel letter

suppressed evidence that could be considered exculpatory.

Beyond this, we note that defendant's claim that he was merely

passing on gossip would have been seriously flawed even had the

letter been available. First, this particular argument was the

last of a number of asserted motives, most of which contradicted

it. For example, were worthless gossip all that was communicated,

there would be little prospect of a substantial reward resulting

from such information, or even the prospect of building up credit

with Weeks for some future bonanza tip about James's whereabouts.

If, as appellate counsel argued, no reasonable person with any

experience could believe that release of electronic surveillance

information would be of value, such a "bone" would hardly be deemed

1
The following seven witnesses all testified that the harm
lay in identifying the particular targets of ongoing electronic
surveillance: former Assistant United States Attorney Apfel; FBI
Agent Thomas Larnard; former FBI Agent Robert Parisien;
Massachusetts State Police Major Duffy; Massachusetts State Police
Colonel Foley; retired Massachusetts State Police Lieutenant Robert
Long; and former NESPIN (New England State Police Information
Network) Director Kenneth McBride.

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worth gnawing by such a seasoned criminal associate as Weeks.

Similarly, mere gossip would be no way of responding to the heavy

obligation he assertedly felt toward William because of past

favors.

Moreover, on the record we have set forth, see supra at 6, the

guilty verdict is consistent with the jury's belief that defendant

acted on his assumption and understanding that the source of the

information was his niece, Linda, reporting the order for pen

registers that came through her computer. See United States v.

Nishnianidze, 342 F.3d 6, 14 (1st Cir. 2003) ("[T]he jury's duty is

to assess credibility, and it may accept or reject, in whole or in

part, any testimony."). Such a permissible inference shatters the

"golf course gossip" theory.

Our conclusion with respect to the Brady claim is thus

threefold. First, we cannot consider the belatedly produced Apfel

letter to be exculpatory for defendant because of its irrelevance

to a communication of specific, current, highly confidential police

surveillance. Second, we deem defendant's effort to substitute a

"worthless gossip" motive for that of obstruction of justice to be

unhelpful to him - and therefore not exculpatory - because it is

internally inconsistent with his own testimony as to the basis of

his action. Finally, we hold that in any event defendant has made

no showing that admission of the Apfel letter "could reasonably be

taken to put the whole case in such a different light as to

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undermine confidence in the verdict," Josleyn, 206 F.3d at 156

(quoting Kyles, 514 U.S. at 435). The ruling of the district

court, therefore, falls far short of any abuse of discretion.

Our decision on the Jencks Act issue is determined by what we

have said about the basic difference between the generalized notice

in the Apfel letter and an unauthorized release of information

about electronic surveillance currently in place. Apfel's

testimony at trial was confined to a description of the electronic

surveillance procedure, the particular pen registers at issue, and

the purpose of sealed orders to keep such surveillance secret. The

letter was not relevant to that testimony. Finally, as in our

analysis of the Brady issue, the evidence in its totality renders

any Jencks error harmless. See United States v. Neal, 36 F.3d

1190, 1199 (1st Cir. 1994). Indeed, defendant makes no attempt to

demonstrate prejudice.

We therefore affirm the district court's denial of the motion

for new trial.

II. Admission of Testimony as to Mental State

Background. Defendant's second asserted error is that the

district court improperly allowed two law enforcement witnesses to

opine that someone experienced in dealing with organized crime

would know that revealing the existence of electronic surveillance

to a target would compromise the investigation. Other testimony

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established that defendant had such experience. See infra at 17-

18.

Defendant invokes Rule 704(b) of the Federal Rules of

Evidence, which prohibits an expert witness from testifying that a

"defendant did or did not have the mental state or condition

constituting an element of the crime charged." He cites our

opinion in United States v. Valle, 72 F.3d 210, 216 (1st Cir.

1995), where we held that Rule 704(b) prohibited "direct expert

testimony" concerning a defendant's intent if intent was an element

of the crime charged. This bar does not, however, apply to

"predicate facts from which a jury might infer such intent," id.,

and we therefore held that an officer properly testified that the

quantity of drugs found was more indicative of intent to distribute

than to keep for personal use, id.

Defendant asserts that in this case the line was crossed when

FBI Agent Larnard and Major Duffy of the Massachusetts State Police

were allowed to answer the following questions:

To FBI Agent Larnard: Would it be fair, sir, that any law
enforcement officer who had been involved in, say,
organized crime investigations and the like, if he had
the information about a pen register and went and gave it
to the targets of the investigation itself, the pen
registers themselves, would know, would he not, that he's
compromising your investigation?
Mr. DUGGAN (trial counsel for defendant): Objection.
THE COURT: Overruled.
A. Yes, sir.

To Major Duffy: So if you worked for ten years in the
Attorney General's Organized Crime Unit and they were
doing organized crime cases and using electronic

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 surveillance, would you know the damage that you were
doing to somebody else's investigation if you leaked that
electronic surveillance information to the targets of the
investigation?
MR. DUGGAN: Objection.
THE COURT: Overruled.
A. I think you would be extremely cognizant of
the ramifications of a breach of that nature.

Analysis. The government first reminds us that we give "a

wide berth" to such trial judgments as rulings under Rule 704,

reviewing them only for abuse of discretion. See Valle, 72 F.3d

at 214. It then advances four positions. The first is that this

evidentiary issue was not preserved by the invocation of the single

word, "objection." It cites our recent opinion in Microfinancial,

Inc. v. Premier Holidays Int'l, Inc., 385 F.3d 72, 81 (1st Cir.

2004). While we acknowledged the general need for more explanation

than calling out "objection," Rule 103 of the Federal Rules of

Evidence notes a caveat: "if the specific ground was not apparent

from the context." In this case, we think it close to the line

whether the basis for objection was understood by all. We

therefore resist the government's invitation to rule on this

point.2

A second argument of the government was that the questions

were quite proper, since they did not actually refer to the intent

of the defendant, but simply described "the common practices of

2
Even were we to accept the government's position, it would
not mean an end to our inquiry. Our view would then be for plain
error. See Microfinancial, 385 F.3d at 81.

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those who clearly do possess the requisite intent." In so arguing,

the government quotes United States v. Lipscomb, 14 F.3d 1236, 1239

(7th Cir. 1994), but the court there clearly defined the limit of

admissibility to be testimony as to the modus operandi of a crime.

We have found no authority treating expert testimony as to what a

similarly situated officer might or might not know in the same

manner as "common practices." Here again, we prefer not to rule on

the issue.

A third contention of the government is that the testimony

concerning defendant's knowledge is admissible because the crime

with which defendant was charged is obstruction of justice, which

involves purpose, or specific intent, "while 'knowledge'

corresponds loosely with the concept of general intent," United

States v. Bailey, 444 U.S. 394, 405 (1980). This is an ingenious

argument, but the actual testimony here strays close to the line of

proof of purpose. See United States v. Smart, 98 F.3d 1379, 1385-

89 (D.C. Cir. 1996) (testimony avoiding use of "intent" to

distribute drugs but saying that defendant "met the elements" of a

commercial drug dealer held impermissible where the elements of a

hypothetical question were a carbon copy of defendant's

circumstances). As in Smart, the questions objected to here

approach carbon copy similarity to defendant's background. Again,

we see no need to venture into this kind of fine line drawing.

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 The government's fourth argument - that any error in admitting

these two sets of questions and answers was harmless - seems clear

beyond any doubt. We first observe that both were very brief

exchanges in the course of five days of testimony in which seven

witnesses from the law enforcement community, see supra note 1,

testified to the importance of keeping information about ongoing

electronic surveillance from the targets.

In addition, a scrutiny of the context in which the allegedly

improper testimony took place reveals the strong unlikelihood of

prejudice. FBI Agent Larnard had been asked, immediately before

the exchange we have quoted, this question:

Q. And based on your experience in law enforcement, is the
utility or the importance of keeping such investigative
tools or use of the tools confidential important to
anybody who has had experience in law enforcement?
A. Of course.

In other words, virtually the same information objected to had

just been elicited without any protest. Even though we have in

this case refrained from declaring a forfeiture of the issue

through voicing simply "objection," we resist going farther down

this road. While we have considered the issue, we also view the

prior unobjected to testimony as going far toward removing any

prejudice from what followed.

The context leading up to Major Duffy's challenged exchange

is even more revealing of its lack of significance. Major Duffy

had served for many years with the Organized Crime Unit of the

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Massachusetts State Police. He knew that defendant had served in

a similar unit at the Attorney General's office for about ten

years, from 1968 to 1978, had risen to the post of chief

intelligence officer of that unit, and had acquired a reputation as

"somewhat of an expert" on organized crime matters in

Massachusetts. The Organized Crime Unit, said Duffy, was "one of

the predominant units of the State Police involved in electronic

surveillance, then and now." Immediately following this last

statement came the objected-to question. The answer was, to say

the least, opaque: "I think you would be extremely cognizant of the

ramifications of a breach of that nature."

In sum, the Larnard exchange was not only brief and

unelaborated, but came only after substantially the same opinion

had been delivered moments before. And the Duffy exchange came

only after a wealth of information that pointed powerfully to

defendant's knowledge, and consisted of an answer that was cloaked

in obscurity.

Not only does our review of the record as a whole reveal an

abundance of evidence pointing to the clear unlikelihood that

defendant was innocent of any obstructive motive in passing on the

pen register information to Weeks, but there is an absence of

exculpatory evidence. Thus, we cannot avoid the conclusion that,

in the event that the two answers should not have been permitted,

such error would have been harmless.

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 III. The Blakely/Booker Issue

In his original brief, defendant asked us to revisit two

enhancements of his sentence that were not alleged in the

indictment or found by the jury. One was a two-level adjustment

for obstruction of trial proceedings by false testimony; the other

was a one-level increase based on the court's conclusion that

defendant was an accessory after the fact to a James Bulger

extortion. These assessments produced a guideline range of 18 to

24 months. The district court sentenced the defendant to the low

end of the range, rejecting defendant's request for a downward

departure based on medical issues. The court stated:

I recognize my authority under United States v. Koons and
provisions of the Guidelines concerning defendant's
medical issues, but I find that it is not appropriate in
the circumstances of this case to depart downward in view
of the seriousness of the offenses of which the jury has
found the defendant guilty and the absence of any
expression of genuine remorse for the commission of the
crime.

At the invitation of the court, following the Supreme Court's

decision in Booker, 543 U.S. at ___, 125 S. Ct. at 738, both

parties filed supplemental briefs. Defendant argued that his case

should be remanded for re-sentencing, in part based on the same

medical issues raised before the district court; the government

predictably responded that he failed to establish his entitlement

to such a remand. It is undisputed that a plain error standard

applies, and that our holding in United States v. Antonakopoulos,

399 F.3d 68 (1st Cir. 2005), thus governs. We there held that, to

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warrant a remand for re-sentencing, a defendant must demonstrate "a

reasonable probability" that the district court would impose a

sentence more favorable to the defendant under the new advisory

guidelines scheme. Id. at 75.

Defendant has failed to satisfy that burden. First, as quoted

above, the district court rejected the possibility of granting a

downward departure based on defendant's medical issues. The court

indicated that it was not constrained by the mandatory nature of

the Guidelines, but stated that the severity of the crime and

defendant's lack of remorse rendered leniency inappropriate.

In an attempt to inject a new consideration into the mix,

defendant cites a factor "not articulated at the sentencing

hearing," namely, the sentencing disparity between defendant and

his co-defendants. The co-defendants – defendant's brother-in-law

and niece – were not, however, similarly situated. Both pleaded

guilty to obstructing justice, eliminating the "lack of remorse"

rationale that influenced the sentence imposed on defendant.

Moreover, the court found that defendant testified falsely during

trial. In these circumstances, we think it evident that the

district court would not have reduced defendant's sentence for the

purpose of eliminating disparity.

In the absence of any "specific facts" showing that he was

prejudiced by the district court's error, see Antonakopoulos, 399

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F.3d at 80, we have no basis upon which to order a remand for re-

sentencing.

We therefore AFFIRM the district court's rulings.

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