Ferrara v. United States

United States Court of Appeals
For the First Circuit

No. 05-1736
No. 05-1830

VINCENT FERRARA,

Petitioner, Appellee,

v.

UNITED STATES OF AMERICA,

Respondent, Appellant.

No. 05-1874

UNITED STATES OF AMERICA

Appellant,

v.

VINCENT FERRARA,

Defendant, Appellee.
_____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Boudin, Chief Judge,
Coffin, Senior Circuit Judge,
and Selya, Circuit Judge.
 Michael A. Rotker, Attorney, Criminal Division (Appellate
Section), United States Department of Justice, with whom Michael J.
Sullivan, United States Attorney, was on brief, for appellant.
Martin G. Weinberg, with whom Kimberly Homan and David Z.
Chesnoff were on brief, for appellee.

August 10, 2006
 SELYA, Circuit Judge. It is axiomatic that the

government must turn square corners when it undertakes a criminal

prosecution. This axiom applies regardless of whether the target

of the prosecution is alleged to have engaged in the daintiest of

white-collar crimes or the most heinous of underworld activities.

It follows that courts must be scrupulous in holding the government

to this high standard as to sympathetic and unsympathetic

defendants alike. The case before us plays out against the

backdrop of these aphorisms.

More than ten years after he pleaded guilty to

racketeering and related charges, petitioner-appellee Vincent

Ferrara learned that the government had failed to disclose

important exculpatory evidence to him beforehand. He sought relief

under 28 U.S.C. § 2255, imploring the district court to vacate the

remainder of his 22-year incarcerative sentence. The district

court, in the person of the able judge who originally had sentenced

the petitioner, granted his petition.

In arriving at this result, the district court relied

principally on the rule announced in Brady v. Maryland, 373 U.S.

83, 87 (1963). See Ferrara v. United States, 384 F. Supp. 2d 384,

432 (D. Mass. 2005). Although our reasoning differs somewhat — we

rely solely on the operation of the rule announced in Brady v.

United States, 397 U.S. 742, 748, 755 (1970) — we affirm the

judgment below.

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I. BACKGROUND

Because the government is appealing an order granting a

petition for post-trial relief pursuant to 28 U.S.C. § 2255, we

begin by describing the facts upon which the district court based

its decision. We supplement those facts, as necessary, with other

facts contained in the record.

On March 22, 1990, a federal grand jury sitting in the

District of Massachusetts returned a superseding indictment

charging eight men, including the petitioner (an alleged member of

the Patriarca Family of La Cosa Nostra1), with racketeering and

related offenses. The petitioner was named in thirty-five of the

sixty-five counts.

The centerpiece of the superseding indictment — counts 1

and 2 — charged the petitioner and his codefendants with conspiring

to participate in the affairs of a racketeering enterprise (the

Patriarca Family), see 18 U.S.C. § 1962(d), and with participating

in the affairs of a racketeering enterprise, see id. § 1962(c). To

help establish the pattern of racketeering activity necessary to

support these accusations against the petitioner, the indictment

alleged three predicate acts of murder: that the petitioner and

others had conspired to kill and had killed Giacomo DiFronzo and

1
La Cosa Nostra, commonly known as the Mafia, organizes itself
around regional contingents called "Families." The Patriarca
Family was thought to reign in New England at the times relevant
hereto.

-4-
Anthony Corlito (Racketeering Acts A-1 and A-2) and that the

petitioner and codefendant Pasquale Barone had conspired to kill

and had killed Vincent James Limoli (Racketeering Act A-3).

Although counts 3 and 4 charged the petitioner and Barone with the

substantive crimes of conspiring to murder and actually murdering

Limoli in order to bolster their positions in the Patriarca Family

in violation of 18 U.S.C. § 1959 — the government theorized that

the petitioner ordered Barone to kill Limoli because Limoli had

stolen drugs from a member of the Patriarca Family — the petitioner

was not charged separately for the conduct described in

Racketeering Acts A-1 and A-2.

Since the prosecution's evidence linking the petitioner

to the DiFronzo and Corlito murders appeared "sparse and weak,"

Ferrara, 384 F. Supp. 2d at 389 n.1, the government had a

heightened interest in hanging the Limoli murder around the

petitioner's neck (after all, so long as he was found responsible

for any one of the murder-related racketeering acts, he would face

a mandatory sentence of life imprisonment rather than a sentence as

low as 151 months). Moreover, establishing that the petitioner

orchestrated Limoli's murder on behalf of the Patriarca Family

would further the government's goal of securing a lengthy sentence

for the petitioner's codefendant, Raymond Patriarca, Jr.

Walter Jordan (Barone's brother-in-law) was slated to be

the government's key witness anent the Limoli murder. Jordan had

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participated in the slaying and then fled to North Carolina. When

arrested there, he agreed to cooperate with the government in

exchange for immunity and protection.

On July 27, 1988, Jordan told the grand jury that the

petitioner, upon learning that Limoli had stolen drugs belonging to

a member of the Patriarca Family, had ordered Barone to assassinate

Limoli. Barone recruited Jordan to assist him. At Barone's

bidding, Jordan set up an apocryphal drug deal that lured Limoli to

a restaurant in Boston's North End. After leading their prey down

a side street, Barone shot him.

The killers then met with the petitioner. Although the

petitioner questioned them about the Limoli murder in a manner

suggesting ignorance of what had happened, Jordan maintained that

the petitioner had ordered the shooting. Shortly thereafter,

Barone informed Jordan that they needed to leave town because the

petitioner was going to kill them. Jordan fled that same night.

In July of 1991, Jordan met in Salt Lake City with

Assistant United States Attorneys Jeffrey Auerhahn and Gregg

Sullivan, Special Agent Michael Buckley of the Federal Bureau of

Investigation, and a Boston police detective, Martin Coleman (who

was serving as a member of an intergovernmental task force). The

group went through a series of trial preparation sessions. After

the last session, Jordan told Coleman that Barone had never

obtained the petitioner's permission to eliminate Limoli. He also

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denied that Barone ever said that the petitioner had either ordered

or blessed the murder.

Recognizing the potential impact of this recantation,

Coleman relayed the information to Auerhahn after they returned to

Boston. Auerhahn immediately set up a conference call, during

which Jordan reiterated what he had told Coleman. Auerhahn then

arranged another trial preparation session to deal with this

unexpected turn of events. Jordan, Auerhahn, Coleman, and Buckley

attended this conclave, which took place in Minneapolis in August

of 1991. When Jordan again began to recant his grand jury

testimony, Buckley became indignant. Jordan was shown the door,

and Auerhahn and Buckley directed Coleman to "straighten him out."

Id. at 395.

After Coleman and Jordan returned to the meeting, the

prosecution team again asked Jordan about the petitioner's role in

Limoli's murder. Fearing that he would otherwise face a whipsaw

(losing not only the immunity previously granted but also the

government's protection against retaliation by the Patriarca

Family), Jordan reverted to his original story. Contrary to his

normal practice, Auerhahn did not take detailed notes at the

Minneapolis meeting. The district court found that this was

deliberate; Auerhahn "did not want to create a record of the

changes in Jordan's testimony." Id.

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 Coleman rarely wrote memoranda. However, he believed

that Jordan's recantation was "very important" and "should be

brought to the attention of everyone involved in the

investigation." As a result, he prepared a handwritten memorandum

in which he memorialized the conversations that had taken place

before the Minneapolis meeting (the Coleman memo). That document,

admitted as a full exhibit during the evidentiary hearing on the

section 2255 petition, read as follows:

To: file
From Det. Martin E. Coleman
Subject Limoli Murder

On Wednesday, July 24, 1991 at about 11:30
M.T. while having a conversation with Tony
Jordan a govt. witness, Mr. Jordan stated to
me that Patty's Barone had fucked up and did
not get permission to kill Jimmy Limoli.

On Thursday, July 25, 1991 we traveled back to
Bos. and I told AUSA Mr. Auerhahn that I had
to see him about Tony Jordan. On Friday July
26, 1991 I talked to AUSA Auerhahn and told
him what Mr. Jordan had said to me.

On Monday July 29, 1991 at about 10:30 am Mr.
Jordan returned a call to Mr. Auerhahn's
office and I ask him to repeat to AUSA
Auerhahn what he had said to me on July 24.

At this time Mr. Jordan stated that he knew
that Pattsie Barone had not gotten permission
to kill Jimmy Limoli. He found this out after
Jimmy's wake when Patty's and he got into a
car with Vinny Ferrara and a Joe the Jeweler.

Vinny said to Patty's "who's next me."

Jordan further stated that some time later
that week that Patty's got called over to
Franchesco's and Vinny told him he was dead.

-8-
 At this time Patty's ran out of Franchesco's .
. . and over to his apartment where Jordan was
and told Jordan that they had to get out of
town because Vinny was going to kill them.
Jordan then said why is he going to kill us
and Patty's said because I did not get
permission to kill Jimmy.

The district court determined that the Coleman memo comprised "a

reliable account of what Jordan told Auerhahn and Coleman in 1991."

Id. at 407 n.14.

At the evidentiary hearing, Coleman testified that he

provided Auerhahn a copy of his memorandum and expressed his belief

that Jordan's statements were exculpatory. See id. at 395.

Auerhahn asked Coleman if he (Auerhahn) could "clean [the memo]

up." Assuming that the prosecutor merely wanted to correct his

spelling and grammar, Coleman voiced no objection. Auerhahn

proceeded to prepare a significantly toned-down version of the

Coleman memo for the file (the Auerhahn memo). Even though

Auerhahn drafted the second memorandum, he continued to list

Coleman as its author.2

The district court found that Auerhahn prepared the

second memorandum to "sanitize" the Coleman memo, so that it would

be "less damaging to the government . . . if it were produced to

the defendants." Id. at 396. While the Coleman memo "directly

2
At the evidentiary hearing, Auerhahn claimed never to have
seen the Auerhahn memo. The district court rejected this self-
serving disclaimer, finding explicitly "that Auerhahn not only saw
the document, he prepared it." Ferrara, 384 F. Supp. 2d at 396.
That finding was not clearly erroneous.

-9-
refute[d] the charges that Ferrara ordered Barone to murder

Limoli," id. at 396-97, the Auerhahn memo never conclusively stated

that Jordan did not believe that the petitioner was involved. In

all events, even the Auerhahn memo indicated that Jordan had made

prior inconsistent statements and that, on at least one occasion,

Barone had denied that the petitioner played any role in Limoli's

slaying.

Under the local rules in effect when Jordan recanted, the

prosecution was required to turn over automatically all written

material constituting "exculpatory evidence within the meaning of

Giles v. Maryland, 386 U.S. 66 (1967), Brady v. Maryland, 373 U.S.

83 (1963) and Giglio v. United States, 405 U.S. 150 (1972)." D.

Mass. R. 116.1(a)(5) (1990). The rule required initial disclosure

within fourteen days of arraignment; from that point forward, the

government had a continuing duty to supplement its original

disclosure if and when new material surfaced. See id. 116.1(c).

Here, moreover, a magistrate judge, in an order dated May 15, 1990,

had directed the government to produce all exculpatory evidence

(including "all documents, statements and . . . written summar[ies]

of all oral evidence and statements") provided by government trial

witnesses, save only Jencks Act material, see 18 U.S.C. § 3500, and

material that would tend to disclose the identity of an otherwise

unknown witness.

-10-
 In a discovery letter dated December 14, 1989, Auerhahn

identified Jordan as a cooperating witness and acknowledged the

government's continuing duty to disclose exculpatory evidence. Yet

Auerhahn did not furnish copies of either the Coleman memo or the

Auerhahn memo, nor did he disclose the substance of Jordan's

recantation to the defense. Even after Jordan had told him that

the petitioner did not order the murder, Auerhahn, in a pleading

dated October 15, 1991, asserted that the government had fully

complied with Local Rule 116.1 and indicated that it would disclose

the remaining exculpatory material in its possession in its trial

brief.

The district court supportably found that "Auerhahn

recognized that [the Coleman memo] memorialized exculpatory

information." Ferrara, 384 F. Supp. 2d at 395. Notwithstanding

this knowledge, the government never disclosed the Coleman memo,

the Auerhahn memo, or any summary of Jordan's vacillatory

statements to the petitioner. Its trial brief, filed on October

16, 1991, over Auerhahn's signature, gave the impression that

Jordan would serve as a stalwart witness for the prosecution,

declaring that he would "testify to Barone's statement that Limoli

was killed on the orders of Vincent Ferrara." The district court

warrantably found that this brief "made it clear that the

government's case concerning the Limoli murder depended heavily, if

not exclusively, on Jordan's testimony." Id. at 398.

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 The petitioner and four codefendants went to trial early

in 1992. On January 21 — after jury empanelment but before opening

statements — the five men entered into linked plea agreements

(i.e., each plea agreement was contingent on the district court's

acceptance of the other plea agreements).

The plea agreements were structured to allow the

defendants to remain silent about the factual basis for their pleas

and, particularly, the existence of La Cosa Nostra. The

petitioner's agreement called for him to plead guilty to all

thirty-five counts against him, for which he would receive a 264-

month sentence, immunity from federal prosecution for as-yet-

uncharged murders, and immunity from state prosecution for the

Limoli murder. It did not require him to admit to any role in the

DiFronzo or Corlito murders.

At the change-of-plea hearing held the next day, Auerhahn

limned the factual basis for the guilty pleas. In conditionally

accepting the pleas subject to the preparation of presentence

investigation reports, the district court, by its own assessment

made contemporaneously at the hearing, relied "in a meaningful

measure" on the government's trial brief. The court's conclusions

that a solid factual foundation undergirded the petitioner's plea

and that the plea was knowing and voluntary stemmed from that

reliance.

-12-
 Despite pleading guilty to all thirty-five counts, the

petitioner, during interviews by the probation department, refused

to accept responsibility for any of the three aforementioned

murders. He told the probation officer that he was particularly

troubled that his plea intimated that he had a role in the Limoli

murder. He went on to say that, "prior to entering the plea, he

spoke with the decedent's father, and explained the untenable

position he was in and why he found it necessary to acknowledge

[an] involvement in James Limoli's death, even though he disavows

any planning or participating in the killing." The petitioner's

trial counsel, Oscar Goodman, confirmed that his client had

consistently denied "order[ing] the murder of Mr. Limoli."

The district court convened the disposition hearing on

April 29, 1992. Notwithstanding the petitioner's steadfast refusal

to accept responsibility for Limoli's death, the court remained

"satisfied there was a proper factual basis for the guilty plea"

and that the petitioner was "guilty of the offenses" to which he

had pleaded. Consequently, the court accepted his plea, ratified

the plea agreement, and imposed the pre-agreed 264-month

incarcerative term. The judge later stated that if the government

had disclosed the information regarding Jordan's retraction, "there

[was] a reasonable probability . . . the court would have found

that there was not a proper factual basis to accept his plea." Id.

at 423.

-13-
 Barone's trial commenced in 1993. The government, in the

person of Auerhahn qua prosecutor, "fully understood that it would

be both essential and challenging for it to prove that Ferrara

ordered Barone to kill Limoli." Id. at 402. Not surprisingly,

Jordan proved to be the key witness in this endeavor. Pursuant to

the terms of his agreement with the government, he testified, as he

had before the grand jury, that Barone told him the petitioner had

ordered the execution. Jordan also testified that Barone, with his

help, carried out the order. Although Jordan's testimony was

central to the prosecution's theory of the case, the government

never disclosed to the defense the Coleman memo, the Auerhahn memo,

or the substance of Jordan's recantation.3

Limoli's half-sister, Elizabeth DiNunzio, also testified

against Barone. She vouchsafed that Limoli was slain after leaving

to meet Barone and Jordan and that the petitioner subsequently had

assured her that he would find out who murdered her brother.

Both Jordan and DiNunzio provided additional testimony

touching upon the petitioner's role in the deaths of DiFronzo and

Corlito. Jordan testified that Barone told him both that the

petitioner had shot DiFronzo and that he (Barone), together with

3
During that trial, the district court determined that
Auerhahn had repeatedly shirked his discovery obligations by
failing to turn over exculpatory evidence. These admonishments,
however, were not directed at Auerhahn's failure to disclose
information regarding Jordan's recantation (which remained
undetected throughout Barone's trial).

-14-
the petitioner and Limoli, had assassinated Corlito. DiNunzio

testified that Limoli told her that he and the petitioner had

killed DiFronzo and that he, Barone, and the petitioner had

murdered Corlito.

After twice reporting that it was deadlocked, the jury

eventually convicted Barone of racketeering and conspiring with the

petitioner to kill Limoli. It remained unable to reach a verdict

on whether Barone had murdered Limoli to advance his standing in

the Patriarca Family.

In June of 2002, Jordan contacted a federal law

enforcement official and confessed that he had committed perjury at

Barone's trial. He further stated that he had told Auerhahn and

other members of the prosecution team the truth during trial

preparation sessions in the summer of 1991 and that "there was no

doubt in his mind that . . . Auerhahn knew that Jordan lied when he

testified that [the petitioner] had ordered the [Limoli] murder."

An investigation ensued. By then, the petitioner and Barone

already had filed separate motions under 28 U.S.C. § 2255,

advancing various grounds for post-conviction relief. Recognizing

the potential relevance of Jordan's allegations to the pending

petitions, the government at long last disclosed the information

concerning Jordan's 1991 recantation.

The district court allowed amendment of the pending

section 2255 motions to encompass the newly discovered evidence.

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The petitioner filed his amended motion on July 15, 2003, arguing

in pertinent part that the government had failed to disclose

material exculpatory evidence and that its misconduct had induced

his decision to plead guilty.4 The court held an evidentiary

hearing at which Jordan, Coleman, Buckley, Sullivan, and Auerhahn

testified.

In a post-hearing memorandum, dated April 6, 2004, the

government argued, for the first time, that the district court

would need to recognize a new constitutional rule granting

defendants a due process right to receive exculpatory evidence

before pleading guilty in order to afford the petitioner relief.

Doing so, the government maintained, would transgress the

nonretroactivity principle enunciated in Teague v. Lane, 489 U.S.

288, 310 (1989). The petitioner denounced this proposition as both

untimely and legally flawed. The court agreed; it ruled that the

government had waived its Teague defense by not timely asserting it

and went on to find that, in any event, the petitioner's claim was

not Teague-barred. Ferrara, 384 F. Supp. 2d at 421.

The merits-based aspect of the lower court's Teague

ruling was grounded on two rules of constitutional law that, the

4
The petitioner also asserted (i) that the government should
have dismissed counts 3 and 4 because it knew they were premised on
perjured grand jury testimony and (ii) that the evidence of
Jordan's recantation established the petitioner's actual innocence.
Like the district court, we find it unnecessary to reach those
claims.

-16-
court said, were well-established by 1992 (when the petitioner's

conviction became final). First, the court found that Jordan's

recantation constituted exculpatory evidence that tended to negate

the petitioner's guilt or, alternatively, could have been used to

impeach a crucial prosecution witness. Id. at 423. Thus, it

concluded that, under Brady v. Maryland and its progeny, the

government's conduct violated the petitioner's due process rights.

See id. at 432. Second, the court found that the government's

nondisclosure constituted misconduct that deprived the petitioner

of the ability to enter a knowing and voluntary plea and,

therefore, transgressed the rule of Brady v. United States. See

id. at 432-33.

That left the question of the appropriate remedy. On May

13, 2005, the district court amended the judgment of conviction in

the underlying case to acquit the petitioner on counts 3 and 4 and

resentenced him to time served. The government filed a motion for

reconsideration, which the court, aside from correcting

typographical errors, summarily denied. These timely appeals

followed.5 In them, the government vigorously contests the

granting of any section 2255 relief. Beyond that point, however,

5
There are three appeals. Specifically, the government
appeals from the order granting the petitioner's section 2255
motion, from the amended judgment of conviction in the underlying
criminal case, and from the order denying its motion for
reconsideration. For present purposes, it is unnecessary to
distinguish among the various appeals.

-17-
the government apparently does not quarrel with the appropriateness

of the remedial order fashioned by the district court.

II. THE FACTUAL CHALLENGES

Although not couched as a separate argument, the

government questions a good many of the district court's factual

findings. In order to set the stage for our legal analysis, we

deal first with this critique. In doing so, we scrutinize the

disputed factual findings for clear error. See Ellis v. United

States, 313 F.3d 636, 641 (1st Cir. 2002).

At the evidentiary hearing, Auerhahn asserted that he had

no memory of Jordan ever distancing himself from the notion that

the petitioner had ordered the Limoli murder. He also testified

that he had no recollection either of Coleman telling him that

Jordan had retracted his grand jury testimony or of having seen the

Coleman memo prior to the institution of the section 2255

proceedings. Furthermore, he denied having authored the Auerhahn

memo. This testimony clashed head-on with testimony given by

Jordan and Coleman. Confronted with conflicting versions of what

had transpired, the district court rejected Auerhahn's account and

found as a fact that Coleman had told Auerhahn about Jordan's Salt

Lake City recantation directly after it occurred; that Jordan

repeated his recantation to both Coleman and Auerhahn in a

telephone conversation shortly thereafter; that Auerhahn received

a copy of the Coleman memo in roughly the same time frame; that

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Auerhahn (an experienced prosecutor) recognized that the Coleman

memo memorialized important exculpatory information; and that

Auerhahn then drafted the Auerhahn memo in hopes that it would be

less damaging than the Coleman memo should the government be forced

to produce something. Ferrara, 384 F. Supp. 2d at 394-96, 407

n.14.

On appeal, the government brushes aside these findings.

It reiterates Auerhahn's testimony in its statement of facts as if

that testimony were gospel and at the same time belittles Coleman's

contrary testimony. To the extent that the government's case

rests, in whole or in part, on this facet of Auerhahn's testimony,

it is doomed to failure.

Under the applicable standard of review, a party

challenging a trial court's factual findings faces a steep uphill

climb. See Mitchell v. United States, 141 F.3d 8, 17 (1st Cir.

1998) (explaining that factual findings are not clearly erroneous

unless the reviewing court is "left with the definite and firm

conviction that a mistake has been made"); State Police Ass'n v.

Comm'r, 125 F.3d 1, 5 (1st Cir. 1997) (similar). This standard is

particularly deferential where, as here, the challenged findings

hinge on the trier's credibility determinations. See Anderson v.

Bessemer City, 470 U.S. 564, 575 (1985); Anthony v. Sundlun, 952

F.2d 603, 606 (1st Cir. 1991).

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 Here, the district court possessed a deep familiarity

with the facts that we, working from an algid appellate record,

cannot hope to replicate. After all, Judge Wolf had overseen the

pretrial maneuverings in the original case, taken the petitioner's

guilty plea, imposed his sentence, presided over Barone's trial,

and then revisited the matter when section 2255 proceedings were

instituted. He was intimately acquainted with both the cast of

characters and the array of issues. Moreover, he had an

opportunity to view the witnesses at first hand. Given this

prolonged exposure, the district court's credibility determinations

are entitled to a considerable degree of respect. See, e.g.,

Anthony, 952 F.2d at 606 (stating that appellate courts should be

chary about undermining findings "based on witness credibility

[determinations] made by a trial judge who has seen and heard the

witnesses at first hand").

A careful reading of the record confirms this intuition.

Although Coleman's testimony about the events that had taken place

contained a few inconsistencies, that was understandable given the

passage of nearly thirteen years between those events and the

evidentiary hearing. The court found that Coleman, whom several

witnesses described as a dedicated law enforcement officer, would

not have written a false report. Ferrara, 384 F. Supp. 2d at 407

n.14. Relatedly, the court determined that the Coleman memo

provided a reliable account of what Jordan told Coleman and

-20-
Auerhahn in 1991. Id. These findings, along with Coleman's

plausible testimony that he had shown Auerhahn his memorandum

shortly after he composed it and other testimony regarding the

standard office practices of the prosecution team, gave the

district court more than enough ammunition to shoot down Auerhahn's

self-serving version of the relevant events. Accordingly, we

discern no clear error in any of the disputed factual findings.

III. THE LEGAL CHALLENGES

Notwithstanding the sturdiness of the district court's

factual findings, the question remains whether those findings

justify its decision to vacate the petitioner's sentence.

Affording de novo review to the lower court's legal conclusions,

see Ellis, 313 F.3d at 641, we now turn to that question.

The government argues that the Teague doctrine precludes

the outcome reached below because, in order to grant relief, the

district court had to extend the constitutional rule that

defendants have a due process right to exculpatory evidence, as

announced in Brady v. Maryland, 313 U.S. at 87, beyond its

established parameters to a new frontier — the guilty plea

context.6 In the government's view, this infirmity in the district

6
As fallback arguments associated with this point, the
government also posits (i) that the Supreme Court's decision in
United States v. Ruiz, 536 U.S. 622, 625 (2002), makes manifest
that, even under a contemporary interpretation of Brady v.
Maryland, the disclosure rule does not apply to a defendant who
enters a guilty plea and (ii) that the petitioner is not entitled
to relief because the disclosure at issue here, even if it was

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court's decision requires reversal of the order granting section

2255 relief. Since the Teague nonretroactivity principle is

central to this debate, we start there.

A. The Teague Principle.

Under 28 U.S.C. § 2255, a prisoner in federal custody may

ask a sentencing court to vacate, set aside, or correct a sentence

imposed in violation of the Constitution or some other federal law.

A prisoner's section 2255 rights are limited, however, by the

nonretroactivity principle announced in Teague. Pursuant to that

principle, a prisoner is generally not entitled to collateral

relief if granting that relief would require the court to apply a

"new rule" of constitutional procedure. See O'Dell v. Netherland,

521 U.S. 151, 156 (1997). A rule of constitutional procedure is

considered "new" if it "was not dictated by precedent existing at

the time the defendant's conviction became final." Teague, 489

U.S. at 301; see Graham v. Collins, 506 U.S. 461, 467 (1993).

In order to determine whether a particular claim is

Teague-barred, an inquiring court first must ascertain the date on

which the petitioner's conviction became final and then must survey

the legal landscape as it existed at that time to gauge whether

then-existing precedent would have compelled it to grant the

required under Brady v. Maryland, was not material to his decision
to forgo a trial. For reasons that shortly will become apparent,
we need not address either of these contentions (although the
materiality inquiry parallels an inquiry that we find necessary to
make).

-22-
petition. See O'Dell, 521 U.S. at 156. If a court would not have

been so compelled, the petition (if valid at all) depends on a new

rule within the purview of Teague, and the petitioner is barred

from seeking collateral relief unless one of two narrow exceptions

applies.7 See id. at 156-57.

Here, however, we take note of a threshold matter: the

district court's finding of waiver. See Ferrara, 384 F. Supp. 2d

at 412. While a district court must consider a properly raised

Teague defense, see Horn v. Banks, 536 U.S. 266, 267 (2002), such

a defense is not jurisdictional. Accordingly, the government can

waive a Teague defense by failing to raise it in a timeous manner.

See Goeke v. Branch, 514 U.S. 115, 117 (1995); Schiro v. Farley,

510 U.S. 222, 229 (1994).

In the case at hand, the district court's finding of

waiver rests on the government's admitted failure to raise a Teague

defense until after the completion of the evidentiary hearing and

the submission of an initial round of post-hearing briefing. The

government assails this finding. What counts, it says, is that it

raised the Teague defense at a point in the proceedings that not

7
The first exception is for new rules "forbidding criminal
punishment of certain primary conduct [or] prohibiting a certain
category of punishment for a class of defendants because of their
status or offense." Penry v. Lynaugh, 492 U.S. 302, 330 (1989).
The second is for newly announced "watershed rules of criminal
procedure implicating the fundamental fairness and accuracy of the
criminal proceeding." Saffle v. Parks, 494 U.S. 484, 495 (1990)
(internal quotation marks omitted). Neither exception applies
here.

-23-
only allowed the petitioner ample time to respond but also allowed

the court ample opportunity to consider the issue. Because we

conclude that the government's Teague defense is without merit as

applied to the Brady v. United States holding (which we view as

supplying the dispositive rule of law in this case), we need not

resolve the waiver issue. We explain briefly.

While the district court based its judgment on two

constitutional rules — one emanating from Brady v. Maryland and the

other from Brady v. United States — we conclude that the latter

rule, by itself, resolves these appeals. This rule, which provides

that a defendant's guilty plea must be voluntary in order to serve

as a constitutionally valid basis for a conviction, see Brady v.

United States, 397 U.S. at 748, was firmly in place when the

petitioner's conviction became final.

It is common ground that a defendant surrenders a number

of constitutional rights, not the least of which are his privilege

against self-incrimination and his right to a trial by jury, when

he pleads guilty. For that reason, it has long been established

that if a defendant's plea is not entered knowingly and

voluntarily, it has been procured in violation of the Due Process

Clause and, therefore, a conviction based thereon is invalid. See

McCarthy v. United States, 394 U.S. 459, 466 (1969); Machibroda v.

United States, 368 U.S. 487, 493 (1962). By the same token, a

prisoner can collaterally attack his sentence on the ground that

-24-
his guilty plea was not knowing or voluntary if his claim is based

on evidence not available to him at the time of the plea. See

Machibroda, 368 U.S. at 493; Waley v. Johnston, 316 U.S. 101, 104

(1942).

These rules were well-settled when the petitioner's

conviction became final in 1992. In 1970, for example, the Supreme

Court confirmed that a guilty plea must be both voluntary and

intelligent if it is to represent a constitutionally valid

predicate for a conviction. See Brady v. United States, 397 U.S.

at 748. The Brady Court also defined the standard for determining

whether a defendant's plea qualifies as voluntary:

[A] plea of guilty entered by one fully aware
of the direct consequences, including the
actual value of any commitments made to him by
the court, prosecutor, or his own counsel, must
stand unless induced by threats (or promises to
discontinue improper harassment),
misrepresentation (including unfulfilled or
unfulfillable promises), or perhaps by promises
that are by their nature improper as having no
proper relationship to the prosecutor's
business (e.g. bribes).

Id. at 755 (citation and internal quotation marks omitted). By

1992, this standard was deeply entrenched in federal law. See,

e.g., Mabry v. Johnson, 467 U.S. 504, 509 (1984); United States v.

Bouthot, 878 F.2d 1506, 1511 (1st Cir. 1989); Correale v. United

States, 479 F.2d 944, 947 (1st Cir. 1973). Consequently, the rule

is not a new rule, as Teague defines that term, with respect to the

petitioner's case.

-25-
 In this instance (as we shall explain below), we conclude

that the petitioner's plea does not qualify as voluntary under that

standard. Since this is true whether or not the petitioner had a

constitutional right to receive the exculpatory evidence under the

rule announced in Brady v. Maryland, we need not address the much

closer question of whether a court, in 1992, would have been

compelled to rule that the petitioner had a Brady v. Maryland right

to receive the information before pleading guilty.

B. The Merits.

A defendant who was warned of the usual consequences of

pleading guilty and the range of potential punishment for the

offense before entering a guilty plea must make two showings in

order to set that plea aside as involuntary. First, he must show

that some egregiously impermissible conduct (say, threats, blatant

misrepresentations, or untoward blandishments by government agents)

antedated the entry of his plea. See Brady v. United States, 397

U.S. at 755; see also Correale, 479 F.2d at 947 & n.3 (discussing

types of prosecutorial misconduct that might render a plea

involuntary). Second, he must show that the misconduct influenced

his decision to plead guilty or, put another way, that it was

material to that choice. See Brady v. United States, 397 U.S. at

755 (explaining that the misconduct must "induce" the decision);

Cepulonis v. Ponte, 699 F.2d 573, 577 (1st Cir. 1983) (similar).

In mounting an inquiry into these elements, a court must consider

-26-
the totality of the circumstances surrounding the plea. Brady v.

United States, 397 U.S. at 749; United States v. Webb, 433 F.2d 400,

404 (1st Cir. 1970).

In this instance, we have the benefit of extensive factual

findings elaborating the circumstances attendant to the petitioner's

decision to plead guilty. See Ferrara, 384 F. Supp. 2d at 390-400.

Assisted by those findings, we undertake the requisite two-part

inquiry.

1. Misconduct. The initial question is whether the

government's failure to reveal what it knew about Jordan's

recantation prior to the change-of-plea hearing qualifies as the

sort of misconduct that might render a plea involuntary.

It cannot be gainsaid that a defendant's decision to enter

a guilty plea is sometimes influenced by his assessment of the

prosecution's case. See Brady v. United States, 397 U.S. at 756.

But a plea is not rendered infirm "merely because [the defendant]

discovers long after the plea has been accepted that his calculus

misapprehended the quality of the [government's] case." Id. at 757.

Even if a defendant's misapprehension of the strength of the

government's case induces him to throw in the towel, that

misapprehension, standing alone, cannot form the basis for a finding

of involuntariness. See Bousley v. United States, 523 U.S. 614, 619

(1998). It is only when the misapprehension results from some

particularly pernicious form of impermissible conduct that due

-27-
process concerns are implicated. See Brady v. United States, 397

U.S. at 757; Bouthot, 878 F.2d at 1512.

Let us be perfectly clear: due process does not normally

require the prosecution either to turn over the whole of its file

or to disclose every shred of information that might conceivably

affect the defendant's decisionmaking. See Bouthot, 878 F.2d at

1512. Even though a defendant obviously would be interested in

knowing all the strengths and weaknesses of the government's proof

before deciding whether to plead guilty or risk a trial, the

government's refusal to render the whole of its case transparent

before a defendant makes that election does not, in the ordinary

course, constitute the kind of severe misconduct that is needed to

render a plea involuntary.

Under limited circumstances, however — everything depends

on context — the prosecution's failure to disclose evidence may be

sufficiently outrageous to constitute the sort of impermissible

conduct that is needed to ground a challenge to the validity of a

guilty plea. See Bouthot, 878 F.2d at 1511 (stating that a

defendant could attack his plea under Brady v. United States by

showing that the prosecution's failure to provide information

constituted a "material omission tantamount to a

misrepresentation"); see also Matthew v. Johnson, 201 F.3d 353, 364

n.15 (5th Cir. 2000) (suggesting that, "[e]ven if the nondisclosure

is not a Brady [v. Maryland] violation," there may be situations in

-28-
which the prosecution's failure to disclose evidence makes it

"impossible for [a defendant] to enter a knowing and intelligent

plea").

The government attempts to wedge its refusal to provide

the petitioner the evidence of Jordan's recantation within the

broader category of nondisclosures that are insufficient to render

a plea involuntary. It argues that it had no duty to turn over its

entire case file; that the petitioner took a calculated gamble in

pleading guilty rather than going to trial; and that labeling his

plea involuntary, years after the fact, reflects no more than a

tacit admission that he overestimated the strength of the

government's case.

This argument lacks force. Here, we are dealing with more

than simple neglect to turn over exculpatory evidence; the

government manipulated the witness (Jordan) into reverting back to

his original version of events, then effectively represented to the

court and the defense that the witness was going to confirm the

story (now known by the prosecution to be a manipulated tale) that

the petitioner was responsible for killing Limoli. These egregious

circumstances make this one of those rare instances in which the

government's failure to turn over evidence constitutes sufficiently

parlous behavior to satisfy the misconduct prong of the

involuntariness test. We explain briefly.

-29-
 The government's obligation to disclose the evidence can

hardly be doubted. When the grand jury handed up the original

indictment on November 16, 1989, the local rules required automatic

disclosure of all evidence within the government's ken that tended

to negate a defendant's guilt. See D. Mass. R. 42(a)(5) (1986).

Shortly after the filing of the superseding indictment, the local

rules were amended to impose an additional requirement: that the

government, on its own initiative, provide the defendant with any

and all exculpatory evidence that might be used to impeach witnesses

whom it intended to call at trial. See D. Mass. R. 116.1(a)(5)

(1990); see also Giglio v. United States, 405 U.S. 150, 154 (1972).

And, moreover, the district court, by a magistrate judge's order

dated May 15, 1990, specifically directed the government (with

exceptions not relevant here8) to disclose all exculpatory evidence

pertaining to its trial witnesses. The government, then, was

obligated three times over to disclose to the petitioner the

information concerning Jordan's recantation.

8
The government makes a weak argument that the evidence of
Jordan's recantation constituted his Jencks material and, thus,
came within one of these exceptions. That is plainly incorrect.
The Coleman memo summarizes Jordan's recantation; it does not
comprise part of Jordan's Jencks material because it is not a
verbatim or a near-verbatim transcript of the conversations and
because Jordan never signed or otherwise adopted it. See 18 U.S.C.
§ 3500(e); see also Palermo v. United States, 360 U.S. 343, 352-53
(1959); United States v. Newman, 849 F.2d 156, 160 (5th Cir. 1988);
United States v. Gonzalez-Sanchez, 825 F.2d 572, 586 (1st Cir.
1987).

-30-
 The evidence in question — Jordan's recantation, as

memorialized in the Coleman memo — was plainly exculpatory. As the

government concedes, Jordan would have been an integral prosecution

witness had the petitioner's case proceeded to trial. Had Jordan

testified along the lines delineated in the government's trial

brief, the petitioner could have used the recantation evidence to

mount a ferocious attack on his credibility. Since the jury's

verdict may well have hinged on its evaluation of Jordan's

credibility (at least with respect to the charges that centered on

Limoli's murder), the evidence was of enormous significance for

impeachment purposes. See Giglio, 405 U.S. at 154.

In addition, the evidence tended to negate the

petitioner's guilt. After all, the Coleman memo memorialized both

Barone's admission that he did not receive a green light from the

petitioner to proceed with Limoli's murder and Jordan's admission

that he knew the petitioner had not ordered the execution.9 Since

these admissions, if accepted as true, would have precluded a jury

from holding the petitioner liable for the Limoli murder, the

9
Because Jordan risked losing his immunity when he admitted
that he knew the petitioner had not ordered the slaying, his
statement would likely qualify as a statement against his penal
interest. See Fed. R. Evid. 804(b)(3); Williamson v. United
States, 512 U.S. 594, 603-04 (1994). Hence, if the case had
proceeded to trial and Jordan had refused to testify about his
recantation, the petitioner could have called Coleman as a witness
to prove the point.

-31-
suppressed evidence was suggestive of the petitioner's factual

innocence.

The government's failure to disclose this exculpatory

information cannot be palmed off as mere inadvertence (or even as

slipshod performance). The district court supportably found that

the lead prosecutor, Auerhahn, knew of both the Coleman memo and the

substance of Jordan's recantation. See Ferrara, 384 F. Supp. 2d at

394-95, 407 n.14. This knowledge triggered the government's

obligation to disclose the evidence under either version of the

local rule as well as under the court's case-specific order. The

court found that, instead of fulfilling that obligation, the

prosecution team manipulated the witness and deliberately tried to

cover up the evidence. See id. at 395-96, 397 n.10. These findings

were not clearly erroneous.

Given the presumption that prosecutors can be relied on

to perform their official duties properly, see Ramírez v. Sánchez

Ramos, 438 F.3d 92, 99 (1st Cir. 2006), the petitioner should have

been able to trust the government to turn square corners and fulfill

its discovery obligations. In the absence of a positive indication

that it would not comply — and there was none here — we think it is

fair to say that the government, at the very least, impliedly

promised that it would provide the petitioner with all exculpatory

evidence. The government broke that promise egregiously when it

-32-
failed either to reveal Jordan's recantation or to put the

petitioner on notice that it was withholding the evidence.

Moreover, the government made affirmative

misrepresentations to the petitioner. In its December 1989

discovery letter, Auerhahn explicitly represented that the

prosecution would satisfy its continuing duty to disclose all

exculpatory evidence in a timely manner. That promise, insofar as

it pertained to Jordan's recantation and the Coleman memo, went

unfulfilled. In the same vein, Auerhahn (in an October 15, 1991

filing concerning the requested discovery of grand jury testimony)

explicitly represented that the government had fully complied with

the applicable local rule, thereby warranting that it had either

disclosed all exculpatory information within its ken10 or notified

the defendants (including the petitioner) of the exculpatory

evidence it was refusing to disclose. Because this filing was

served more than two months after Auerhahn learned of Jordan's

recantation, Auerhahn's claim of compliance plainly and inexcusably

misrepresented the true state of affairs.

To sum up, the government's actions in this case do not

depict some garden-variety bevue but, rather, paint a grim picture

10
Specifically, Auerhahn represented that the exculpatory
evidence either had been disclosed previously or would be available
to the defendants in the form of the government's trial brief,
which was filed the following day. As indicated earlier, there was
no mention of Jordan's recantation in that document.

-33-
of blatant misconduct.11 The record virtually compels the

conclusion that this feckless course of conduct — the government's

manipulative behavior, its failure to disclose the Jordan

recantation and/or the Coleman memo, and its affirmative

misrepresentations (not anchored to any rational and permissible

litigation strategy) — constituted a deliberate and serious breach

of its promise to provide exculpatory evidence. In the

circumstances of this case, then, the government's nondisclosure was

so outrageous that it constituted impermissible prosecutorial

misconduct sufficient to ground the petitioner's claim that his

guilty plea was involuntary. See Brady v. United States, 397 U.S.

at 755; Correale, 479 F.2d at 747.

2. Prejudice. A finding of impermissible conduct is a

necessary but not a sufficient condition for the success of an

involuntariness argument. The petitioner also must show "a

reasonable probability that, but for [the misconduct], he would not

have pleaded guilty and would have insisted on going to trial."

11
The fact that the government partially complied with its
automatic discovery obligations does not show that it engaged in no
impermissible conduct. When the government responds incompletely
to a discovery obligation, that response not only deprives the
defendant of the missing evidence but also has the effect of
misrepresenting the nonexistence of that evidence. Cf. United
States v. Bagley, 473 U.S. 667, 682-83 (1985) (suggesting that an
incomplete response could "represent[] to the defense that the
evidence does not exist" and cause it "to make pretrial and trial
decisions on the basis of this assumption").

-34-
Hill v. Lockhart, 474 U.S. 52, 59 (1985).12 For purposes of this

standard, a reasonable probability is a probability sufficient to

undermine confidence in a belief that the petitioner would have

entered a plea. See Miller v. Angliker, 848 F.2d 1312, 1320 (2d

Cir. 1988).

A court charged with determining the existence of a

reasonable probability that a defendant would have insisted on a

trial in the absence of government misconduct must take an objective

approach. See United States v. Walters, 269 F.3d 1207, 1215 (10th

Cir. 2001); United States v. Avellino, 136 F.3d 249, 256 (2d Cir.

1998). The elementary question is whether a reasonable defendant

standing in the petitioner's shoes would likely have altered his

decision to plead guilty had the prosecution made a clean breast of

the evidence in its possession. See Miller, 848 F.2d at 1322.

Because a multiplicity of factors may influence a defendant's

decision to enter a guilty plea, a court attempting to answer this

question must use a wide-angled lens. See Brady v. United States

397 U.S. at 749. Relevant factors include, but are not limited to,

12
This standard mirrors the standard for determining
materiality when a defendant alleges a Brady v. Maryland violation.
See, e.g., United States v. Bagley, 473 U.S. 667, 682 (1985)
(holding that in a Brady v. Maryland situation involving a failure
to disclose exculpatory evidence, a defendant must show "a
reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different").
Given this parallel, our prejudice analysis here is informed by the
materiality jurisprudence that has developed in the Brady v.
Maryland line of cases.

-35-
(i) whether the sequestered evidence would have detracted from the

factual basis used to support the plea, see Matthew, 201 F.3d at

365; (ii) whether the sequestered evidence could have been used to

impeach a witness whose credibility may have been outcome-

determinative, see Conley v. United States, 415 F.3d 183, 189 (1st

Cir. 2005); (iii) whether the sequestered evidence was cumulative

of other evidence already in the defendant's possession, see id. at

192; (iv) whether the sequestered evidence would have influenced

counsel's recommendation as to the desirability of accepting a

particular plea bargain, see Hill, 474 U.S. at 59; and (v) whether

the value of the sequestered evidence was outweighed by the benefits

of entering into the plea agreement, see White v. United States, 858

F.2d 416, 424 (8th Cir. 1988).

While this checklist is useful, experience teaches that

each defendant's decision as to whether or not to enter a guilty

plea is personal and, thus, unique. Consequently, the compendium

of relevant factors and the comparative weight given to each will

vary from case to case. The ultimate aim, common to every case, is

to ascertain whether the totality of the circumstances discloses a

reasonable probability that the defendant would not have pleaded

guilty absent the misconduct.

In this instance, the district court determined that the

government's failure to produce the exculpatory evidence concerning

Jordan's recantation was material to the petitioner's decision to

-36-
plead guilty.13 See Ferrara, 384 F. Supp. 2d at 430 (finding a

reasonable probability that the petitioner would have proceeded to

trial if the evidence had not been suppressed). The government

assigns error to this determination. In evaluating the government's

argument, we review the district court's ultimate determination de

novo but accept its subsidiary factual findings so long as they are

not clearly erroneous. See Ouimette v. Moran, 942 F.2d 1, 4 (1st

Cir. 1991).

The government's first line of attack is procedural in

nature. It argues that the petitioner has forfeited the point

because he never submitted a sworn declaration attesting that he

would not have pleaded guilty had he known of the exculpatory

evidence. This argument lacks force: while the applicable

procedural rule originally required a habeas petitioner to file a

sworn statement in support of his section 2255 application, see Rule

2(b), Rules Governing Section 2255 Proceedings (1976), that rule was

amended in 1982 — long before the petitioner undertook his quest for

13
Although the district court framed its reasonable probability
inquiry as a question of materiality under Brady v. Maryland, that
standard is, as we have said, see supra note 12, identical to the
prejudice analysis that must be undertaken under Brady v. United
States. Given that parallelism, the court's findings are fully
transferable to our analysis. See Societe Des Produits Nestle,
S.A. v. Casa Helvetia, Inc., 982 F.2d 633, 642 (1st Cir. 1992)
(relying on district court's subsidiary findings to decide appeal
under different articulation of the applicable rule of law); United
States v. Mora, 821 F.2d 860, 869 (1st Cir. 1987) (concluding that
the court of appeals had the power to use the trial court's
supportable findings of fact to affirm the judgment even though the
trial court had applied the wrong rule of law).

-37-
post-conviction relief. The amended rule allowed an inmate to sign

his application under penalty of perjury in lieu of submitting sworn

statements. See Rule 2(b), Rules Governing Section 2255 Proceedings

(1982).

Although the petitioner did not follow this format — his

attorney signed the application on his behalf14 — the case law makes

manifest that the absence of a habeas petitioner's signature does

not preclude the district court, in its discretion, from exercising

jurisdiction over the petitioner's claims. See, e.g., Hendricks v.

Vasquez, 908 F.2d 490, 491 (9th Cir. 1990); Cresta v. Eisenstadt,

302 F. Supp. 399, 400 (D. Mass. 1969); cf. Rule 2(d), Rules

Governing Section 2255 Proceedings (1982) (noting that a

noncompliant motion "may be returned to the movant, if a judge of

the court so directs" (emphasis supplied)). See generally Jamison

v. United States, 244 F.3d 44, 45 (1st Cir. 2001) (referencing

unreported order in which this court disregarded defects of form in

a section 2255 motion). In other words, the district court could

have declined to consider the petition until this procedural defect

was corrected, but it was free to proceed despite the defect.

The government's substantive attack is equally

unconvincing. In essence, it contends that a reasonable defendant

14
Rule 2(b) has now been further amended to allow authorized
persons, such as attorneys, to sign section 2255 applications on a
petitioner's behalf. See Rule 2(b)(5), Rules Governing Section
2255 Proceedings (2004).

-38-
in the petitioner's situation would not have rejected the benefits

obtained from pleading guilty even if he had known of the

exculpatory evidence. To the government's way of thinking, these

benefits included a guaranteed sentence, immunity for uncharged

offenses, the value of securing a package deal to benefit his

codefendants, and the opportunity to spare his family the ordeal of

a protracted trial. This is a one-dimensional approach, which

overlooks that other factors also bear on a defendant's decision as

to whether to accept a plea agreement. Thus, before addressing the

benefits of the bargain, we catalogue other factors of obvious

relevance here.

To begin, the district court supportably found that the

withheld evidence would have detracted from the factual basis on

which the petitioner's guilty plea was predicated. See Ferrara, 384

F. Supp. 2d at 423. During the change-of-plea colloquy, the judge,

in determining that a factual basis existed for accepting a plea to

Racketeering Act A-3 and counts 3 and 4, relied heavily on the

summary of Jordan's anticipated testimony contained in the

government's trial brief. In light of the petitioner's consistent

assertions that he had not ordered Limoli's murder, it is fair to

assume that the information in the Coleman memo would have given the

judge great pause. At a bare minimum, that evidence would have

substantially detracted from the factual basis that underpinned the

petitioner's plea to the charges in question. With that in mind,

-39-
we deem fully supportable the judge's finding that, had the

exculpatory evidence been disclosed, he probably "would have found

that there was not a proper factual basis to accept [the

petitioner's] plea to [the Limoli murder] charges." Id.

Next, the government's trial brief and the course of the

Barone trial both indicate that, had the petitioner gone to trial,

the jury's assessment of Jordan's veracity would have been hugely

important. Even though the petitioner had other means at his

disposal for attacking Jordan's credibility (e.g., that Jordan's

deal required him to testify against the petitioner), the withheld

evidence was not in any sense cumulative. See Conley, 415 F.3d at

192 (explaining that impeachment evidence is not considered

cumulative so long as it provides the defendant with a new method

for impeaching an already impeachable witness). Thus, if Jordan had

delivered the testimony promised by the government, the withheld

evidence would have provided valuable ammunition for perforating his

credibility. This is important because the nondisclosure of

powerful impeachment evidence is apt to skew the decisionmaking of

a defendant who is pondering whether to accept a plea agreement.

See, e.g., id. at 189. That sort of prejudice is especially likely

to transpire where, as here, the witness's testimony is both

uncorroborated and vital to the prosecution's case. See United

States v. Martínez-Medina, 279 F.3d 105, 126 (1st Cir. 2002).

-40-
 Last — but far from least — the petitioner's original

counsel, Goodman, stated that, had he known of Jordan's recantation,

he would have advised his client that "the allegations concerning

him ordering the murder of Mr. Limoli were highly defensible." The

new evidence would, at the very least, have led Goodman to seek a

substantial reduction in the plea-bargained sentence as a condition

of forgoing a trial.

The district court credited this declaration and found a

reasonable probability that Goodman, had he been apprised of the

exculpatory evidence, would have advised the petitioner not to

accept the tendered plea agreement. Ferrara, 384 F. Supp. 2d at

423. That finding is not clearly erroneous. It is also relevant:

although the prejudice prong of the involuntariness inquiry requires

the defendant to show a reasonable probability that he would have

proceeded to trial as opposed to a reasonable probability that he

would have received a more favorable plea bargain, evidence that

defense counsel would not have recommended acceptance of the

proffered plea agreement tends to support that conclusion

(regardless of the lawyer's advice as to how to proceed thereafter).

See Hill, 474 U.S. at 59.

Silhouetted against these realities, the government's

ululations about the benefits that inured to the petitioner by

reason of his plea ring hollow. In the first place, the benefits

of which the government boasts are to some extent more apparent than

-41-
real. For example, although the petitioner received a sentence

guarantee, the length of the sentence — 264 months — hardly seems

alluring.

The government's suggestion that the petitioner, even

after Jordan's recantation, still would have faced a risk of being

found responsible for at least one of the murders (and, thus, of

receiving a life sentence) elevates hope over reason. On this

record, that possibility appears remote. After all, Jordan was

billed as the government's star witness with respect to the charges

involving the Limoli murder. This is critically important because

the petitioner was not separately charged with the DiFronzo or

Corlito killings, and the government's trial brief was devoid of any

information suggesting that it could prove that the petitioner

played a role in either of these two homicides.15 Although the

withheld evidence would not have completely erased any chance that

the petitioner would be found responsible for one of the murders,

we agree with the district court that a reasonable defendant in the

petitioner's shoes would have viewed the odds as greatly improved.

See Ferrara, 384 F. Supp. 2d at 430.

The other benefices mentioned by the government —

immunity, the chance to help codefendants, and the opportunity to

15
Although both Jordan and DiNunzio testified at Barone's trial
regarding the petitioner's role in those slayings, there is no
evidence suggesting that the petitioner was aware of that potential
testimony when he made his decision to enter a guilty plea.

-42-
shield his family — are all elements that a reasonable defendant

would value (some more than others) when deciding whether to accept

a proffered plea agreement. That is not to say, however, that the

downside of forfeiting those benefits would outweigh the upside of

accruing other benefits by proceeding to trial armed with the Jordan

recantation. For example, if the government failed to hold the

petitioner responsible for any of the murders, conviction on all the

other charges would likely have yielded a guideline sentencing range

(quite probably 151-188 months) well below the 264-month sentence

that the plea bargain provided. In light of the greatly reduced

risk of being found liable for any of the murders, there obviously

would be some likelihood that a reasonable defendant in the

petitioner's predicament would think that the certainty of a 264-

month sentence, even when coupled with the additional benefits of

entering the plea, was less desirable than going to trial.

Given this mise-en-scène, we are not at all confident that

the petitioner would have chosen to plead guilty had the government

disclosed Jordan's recantation to him in a timely manner. A

reasonable defendant in his position might well have insisted on

going to trial.

IV. CONCLUSION

We need go no further. The sad fact is that the

government promised the petitioner that it would carry out fully its

obligation to produce exculpatory evidence but instead manipulated

-43-
a key witness, deliberately chose not to reveal to the petitioner

the stunning evidence concerning Jordan's recantation, yet

represented falsely to the petitioner that it had kept its promise.

This was impermissible conduct. The district court supportably

found that, absent this misconduct, there was a reasonable

probability that the petitioner would not have pleaded guilty but,

rather, would have rejected the proffered plea agreement and opted

for a trial. Ferrara, 384 F. Supp. 2d at 430. Given the totality

of the circumstances and the district court's credibility calls, we

are constrained to conclude that the petitioner's plea was

constitutionally infirm under the rule announced in Brady v. United

States (a rule established substantially before the petitioner's

conviction became final). Consequently, the petitioner was

entitled, as the district court concluded, to collateral relief.

Affirmed.

-44-