Murray v. United States

United States Court of Appeals
For the First Circuit

Nos. 12-1051, 12-1350

MICHAEL FRANCIS MURRAY,

Petitioner, Appellant,

v.

UNITED STATES,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Lynch, Chief Judge,
Boudin* and Stahl, Circuit Judges.

Rosemary Curran Scapicchio, with whom Dennis M. Toomey was on
brief, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

*
Judge Boudin heard oral argument in this matter, and
participated in the semble, but he did not participate in the
issuance of the panel's opinion in this case. The remaining two
panelists therefore issued the opinion pursuant to 28 U.S.C.
§ 46(d).
January 4, 2013

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 LYNCH, Chief Judge. This appeal is from the district

court's denial of a petition filed by a federal prisoner, Michael

Murray, for the extraordinary writ of coram nobis. Murray v.

United States, 821 F. Supp. 2d 458 (D. Mass. 2011). We affirm the

denial of the writ.

I.

This story starts a long time ago.

In 1983, Murray and six other defendants were charged

with conspiracy to possess and possession with intent to distribute

over a thousand pounds of marijuana; in 1984, Murray was convicted

on one count of conspiracy.1 United States v. Moscatiello, 771

F.2d 589, 591-92 (1st Cir. 1985), vacated by Murray v. United

States, 476 U.S. 1138 (1986) (mem.). Agents from the Federal

Bureau of Investigation (FBI) and the Drug Enforcement Agency (DEA)

had seized the drugs from two vehicles, a garage in Dorchester, and

a warehouse in South Boston. Id. at 591. The seizures followed a

nearly year-long investigation in which the agents had gathered

information from multiple informants and conducted extensive

surveillance of various members of the suspected conspiracy. See

Murray, 821 F. Supp. 2d at 462-63.

1
Two of Murray's codefendants pled guilty, another was
convicted after trial, and a fourth was acquitted. See United
States v. Moscatiello, 771 F.2d 589, 591-92 (1st Cir. 1985),
vacated by Murray v. United States, 476 U.S. 1138 (1986) (mem.).
A fifth was murdered before the charges were resolved. The record
is unclear as to what happened to the sixth codefendant.

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 The investigation bore fruit on April 5 and 6, 1983, when

the agents observed a suspicious pattern of activity involving a

number of the suspects driving to various locations in Boston and

switching vehicles amongst each other. Id. at 463-64. It was

during this surveillance that one agent, Cleary, asserted he had

accidentally happened upon the South Boston warehouse and had seen

one of the vehicles under surveillance parked outside. Id. at 464.

On the afternoon of April 6, 1983, the agents observed Murray and

another suspect get into a white van and a green camper,

respectively, which then drove into the South Boston warehouse.

Id. A short time later, Murray drove the white van out of the

warehouse, stopped in a nearby parking lot, and handed off the van

and its keys to another driver. Id. When the agents pulled that

driver over shortly thereafter, they found sixty bales of marijuana

in the van. Id. at 464-65. The other suspect followed the same

procedure with the green camper, and the agents also stopped that

vehicle and found bales of marijuana inside. Id.

After finding the marijuana in both vehicles, the agents

returned to the warehouse. They entered without a warrant and

observed additional bales of marijuana in plain view. Id. at 465.

The agents then secured the warehouse, kept it under surveillance,

and applied for a warrant to search it, without mentioning in the

warrant affidavit that they had already conducted a warrantless

entry. Id. at 465-66.

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 Murray and the other defendants filed motions to suppress

the marijuana seized during the vehicle and warehouse searches.

See Moscatiello, 771 F.2d at 595. Murray, in particular, sought

suppression of the drugs from the warehouse based on the agents'

warrantless search. Id. at 600-01. The trial judge, after a ten-

day evidentiary hearing at which three FBI agents and one DEA agent

testified, denied the motions. See id. at 591. As relevant here,

the court determined that the warrant affidavit for the search of

the warehouse was supported by probable cause regardless of the

information from the warrantless entry, because the affidavit had

rested on direct observation by law enforcement, evidence of the

marijuana seized from the vehicles, and information provided by

three confidential informants (CIs). See id. at 596-97, 600.

Murray proceeded to trial following the denial of his

suppression motion, and in 1984 a jury convicted him of one count

of conspiracy to possess marijuana. Id. at 591-92. He was

sentenced to four years' imprisonment. After various appeals from

his conviction which resulted in remands,2 Murray reached an

2
In Moscatiello, this court affirmed Murray's conviction
against challenges based on the Speedy Trial Act and the denial of
the motion to suppress. See 771 F.2d 589. That decision was
summarily vacated and remanded for reconsideration of the Speedy
Trial Act issue. See Murray, 476 U.S. 1138 (mem.). We again
affirmed the conviction in United States v. Carter, 803 F.2d 20
(1st Cir. 1986). But then, in Murray v. United States, 487 U.S.
533 (1988), the Supreme Court took up the suppression issue, and it
vacated this court's judgment. The Supreme Court remanded with
instructions to remand to the district court for findings as to
whether the agents would have sought the warrant independent of

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agreement with the government3 wherein he abandoned his suppression

challenge and the government recommended that his sentence be

reduced to eighteen months' imprisonment, which at that point

amounted to time served. Murray, 821 F. Supp. 2d at 462.

Over two decades later, in 2007, Murray filed this

petition for a writ of error coram nobis, attacking the denial of

the suppression motion in the 1984 case based on newly available

evidence that one of the CIs relied upon in the warrant application

was James "Whitey" Bulger and that FBI agents had originally

learned of the warehouse filled with marijuana from Bulger, not

from the circumstances that Agent Cleary claimed. Murray's theory

was that, if the FBI had disclosed Bulger's name and the fact that

he was both cooperating with and benefitting from the FBI, such

information would have materially affected the outcome of the

suppression hearing and also would have discredited all of the

agents' testimony at trial, which in turn would have materially

their earlier unauthorized entry into the warehouse. Id. at 543-
44. Murray negotiated an agreement with the government after this
remand, see note 3 below, negating the need for a decision on the
"independent source" question. That issue is not before us.
3
Neither side has provided us with a description of exactly
what transpired after the Supreme Court's final remand. The remand
order did not vacate Murray's conviction, but rather vacated this
court's judgment in the appeal and ordered the appellate court to
remand to the district court for additional findings relating to
the warrant. It appears that, after remand to the district court,
Murray reached some type of compromise agreement with the
government and did not continue to pursue his appeal, although the
agreement perhaps cannot be termed a "guilty plea" per se because
his original jury conviction still stood.

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affected whether he would have been originally convicted or his

decision to stop pursuing his appeal and accept imprisonment. He

argues that the agents who testified at the suppression hearing

were lying at that hearing in order to protect from disclosure the

FBI's illicit relationship with Bulger.4

The 1984 conviction matters even though Murray has long

since been released from imprisonment for that crime. It matters

because that conviction operated to increase the sentence Murray

received as a result of his next criminal conviction for marijuana

distribution, which arose out of trafficking activities in 1989 and

1991. See United States v. Catano, 65 F.3d 219, 221-23 (1st Cir.

1995). At his sentencing proceeding for that later conviction, in

1994, Murray's criminal history score was calculated as six points,

which included three points for the 1984 conviction. The

combination of his criminal history score and his offense level

produced a guidelines range of 292 to 365 months, with a mandatory

4
That relationship has been discussed in numerous cases from
this circuit. See, e.g., Davis v. United States, 670 F.3d 48, 50
& n.1 (1st Cir. 2012); McIntyre ex rel. Estate of McIntyre v.
United States, 545 F.3d 27 (1st Cir. 2008); United States v.
Connolly, 341 F.3d 16 (1st Cir. 2003); United States v. Flemmi, 225
F.3d 78 (1st Cir. 2000).

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minimum of 20 years.5 The district court sentenced Murray to

thirty years' imprisonment. Murray, 821 F. Supp. 2d at 461.

Murray has now served more than eighteen years of that

sentence. Through this application for a writ of coram nobis, he

hopes to secure his immediate release.

II.

A. Nature and Availability of the Writ

Coram nobis is an ancient writ that was originally

intended to allow courts to correct technical errors in their past

judgments. Its present, limited use in the American legal system

is to correct "fundamental errors of fact or law." United States

v. George, 676 F.3d 249, 253 (1st Cir. 2012). The Federal Rules of

Civil Procedure abolished the use of the writ in civil cases, see

Fed. R. Civ. P. 60(e), but it has survived for use in criminal

cases. The Supreme Court has held that, under the All Writs Act,

28 U.S.C. § 1651, federal courts are authorized to issue writs of

error coram nobis to correct criminal judgments, and that the

5
During the course of the coram nobis proceedings, the
district court held a hearing at which it attempted to determine
how Murray would be sentenced today if his 1984 offense were not
included in the guideline calculations, in order to determine
whether the inclusion of that offense had prejudiced Murray for
purposes of the coram nobis analysis. The court concluded that
Murray's criminal history category would be reduced by two levels
and thus that his guidelines range would be 235 to 293 months,
i.e., a maximum of about 24.4 years. We do not pass judgment on
whether this was the correct approach for the district court to
take; we simply note it for an indication that the 1984 conviction
affected Murray's 1994 sentence.

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enactment of 28 U.S.C. § 2255 did not eliminate the availability of

coram nobis relief. See United States v. Morgan, 346 U.S. 502,

503-04, 506-13 (1954) (holding petitioner entitled to bring action

seeking writ of coram nobis to show constitutional error in prior

federal conviction, which caused him to receive longer sentence as

a second offender in later state criminal case).

However, coram nobis is an extraordinary remedy, which is

available "only under circumstances compelling such action to

achieve justice." Id. at 511. It is meant to correct errors "of

the most fundamental character; that is, such as render[] the

proceeding itself irregular and invalid." United States v. Mayer,

235 U.S. 55, 69 (1914). As an extraordinary remedy, coram nobis

may not issue when other remedies, including habeas corpus, are

available. United States v. Denedo, 556 U.S. 904, 911 (2009). The

Supreme Court has noted that, given other statutes and rules of

criminal procedure, "it is difficult to conceive of a situation in

a federal criminal case today where [a writ of coram nobis] would

be necessary or appropriate." Carlisle v. United States, 517 U.S.

416, 429 (1996) (alteration in original) (quoting United States v.

Smith, 331 U.S. 469, 475 n.4 (1947)) (internal quotation marks

omitted). This court has described coram nobis as the "remedy of

last resort." George, 676 F.3d at 253.

This case does not involve the more common situation of

a petitioner seeking coram nobis relief on an argument that,

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pursuant to a Supreme Court decision that post-dates his

conviction, the conduct for which he was convicted is no longer

criminal. See, e.g., id. at 252; United States v. Sawyer, 239 F.3d

31, 34 (1st Cir. 2001); DeCecco v. United States, 485 F.2d 372, 373

(1st Cir. 1973). Nor is there any claim that Murray is actually

innocent of the 1984 marijuana conspiracy charge. Still, this is

not the first time that this circuit has dealt with a coram nobis

petition claiming that the government failed to meet its disclosure

obligations. See United States v. Barrett, 178 F.3d 34, 40, 54

(1st Cir. 1999) (claiming that government failed to disclose

evidence under the Jencks Act).

B. Standards for Decision

A district court's order granting or denying a writ of

error coram nobis is an appealable civil judgment. See Trenkler v.

United States, 536 F.3d 85, 92-95 (1st Cir. 2008). In reviewing a

district court's decision on a coram nobis petition, this court

reviews the legal conclusions de novo and the findings of fact for

clear error. George, 676 F.3d at 256. Where the district court

declines to conduct an evidentiary hearing and denies the writ as

a matter of law, "review . . . is plenary." Id. We engage in

plenary review here.

The Supreme Court has not yet addressed the precise

standards that lower courts should use in deciding whether to issue

writs of error coram nobis; it has simply emphasized the importance

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of restraint in issuing them. See id. at 253-54 (citing Denedo,

556 U.S. at 911; Carlisle, 517 U.S. at 429).

This circuit has adopted a three-part test to determine

whether a petitioner is eligible for coram nobis relief, along with

a fourth part that addresses whether relief should actually be

granted. To establish eligibility, the petitioner must first

adequately explain his failure to seek relief earlier through other

means; second, he must show that he continues to suffer a

significant collateral consequence from the judgment being

challenged and that issuance of the writ will eliminate this

consequence;6 and third, he must demonstrate that the judgment

resulted from a fundamental error. Id. at 254, 256 n.3. The

petitioner bears the burden of persuasion on all three steps. Id.

at 255.

The standard for determining whether an error is

fundamental is not precisely defined, but because coram nobis "lies

at the far end of [the] continuum" of methods for challenging a

judgment, id. at 258, it is a high standard. See id. (noting that

6
The circuits disagree as to whether the "stain of
conviction" is, by itself, sufficient to show a continuing
collateral consequence. See George, 676 F.3d at 254 (citing
cases). This circuit has held that more than the mere fact of
conviction is needed to satisfy this element of the test, although
we have not described precisely which kinds of consequences
qualify. Id. at 255-56 & nn.2-3. For the purposes of this case,
however, we need not elaborate, since the Supreme Court has
indicated that an enhanced sentence is properly considered as a
collateral consequence in a coram nobis inquiry. See Morgan, 346
U.S. at 512-13.

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the burden on a defendant increases at each stage of review, from

direct review to first habeas petition to second habeas petition --

and then, presumably, to coram nobis).

Even if the petitioner meets all three of the conditions

in the coram nobis eligibility test, the court retains discretion

to grant or deny the writ, depending on the facts and circumstances

of the individual case.7 Id. at 255. Satisfying the three-part

test "is a necessary, but not a sufficient, condition for the

issuance of the writ." Id.

For the purposes of all the claims of error made in this

petition, we will use the materiality standard of Brady v.

Maryland, 373 U.S. 83 (1963), and its progeny. As the Supreme

Court emphasized in Smith v. Cain, 132 S. Ct. 627 (2012), under

Brady, the withheld information must be material; evidence is

material "when there is a reasonable probability that, had the

evidence been disclosed, the result of the proceeding would have

been different." Id. at 630 (quoting Cone v. Bell, 556 U.S. 449,

470 (2009)) (internal quotation mark omitted). Importantly, a

reasonable probability does not mean the defendant "would more

7
For example, in George, this court exercised its discretion
to deny the writ -- assuming arguendo that petitioner had satisfied
the three-part test -- where petitioner had waived indictment, pled
guilty, and declined to take a direct appeal or petition for habeas
review, then alleged in his coram nobis petition that the record
was insufficient to show that he had violated the relevant statute
under a later-issued Supreme Court decision clarifying the
definition of the crime at issue. See 676 F.3d at 258.

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likely than not have received a different verdict with the

evidence." Kyles v. Whitley, 514 U.S. 419, 434 (1995). It means

only that suppression of the evidence must have "undermine[d]

confidence in the outcome of the trial."8 Id. (quoting United

States v. Bagley, 473 U.S. 667, 678 (1985)) (internal quotation

marks omitted).

Of course, a showing that material evidence was withheld

in a criminal proceeding would not alone be enough to establish

that there was a fundamental error in the conviction, given the

extraordinary nature of the writ of coram nobis. Like the three-

part eligibility test, materiality is a necessary but not a

sufficient condition for sustaining a petition for coram nobis on

a nondisclosure theory. An error regarding evidence that was not

material necessarily fails to be fundamental; an error implicating

material evidence might, but does not necessarily, qualify as

fundamental. That depends on the particular facts of the case --

for instance, if the withheld evidence supported a colorable claim

of actual innocence. No such claim is made here.

8
The parties agree that in one portion of the district
court's opinion, it articulated the incorrect standard. The
district court analyzed the materiality of the allegedly false
testimony by asking whether there was a reasonable likelihood that
Murray would have been acquitted had its alleged falsity been
revealed, rather than whether there was a reasonable likelihood
that the testimony could have affected the judgment of the jury.
See Murray, 821 F. Supp. 2d at 470-71. This misstatement does not
affect the outcome of this appeal.

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C. Application of Standards to Facts

The district court captured Murray's essential theory:

He alleges that, contrary to the statements
and testimony of the federal agents, the FBI
had prior knowledge of the location of the
Warehouse because of information provided by
Bulger. He claims that to avoid disclosing
that Bulger was acting as an informant, the
agents lied in the warrant affidavit, perjured
themselves at the motion hearing and trial,
and failed to disclose to him exculpatory
information about the source of the
information. This misconduct, Murray claims,
caused violations of his Fourth, Fifth, and
Sixth Amendment rights, rendering the
proceedings leading to his 1984 conviction
fundamentally flawed and necessitating the
issuance of a writ of coram nobis.

Murray, 821 F. Supp. 2d at 466 (citations omitted).

Murray argues that these "lies" were material to the

motion to suppress as well as to the agents' testimony at trial.

He asserts he was denied a fair trial and should be released, or at

least granted resentencing.

As to his petition, we make certain assumptions in

Murray's favor. First, we will assume that his assertions about

Bulger and the FBI were timely and could not have been reasonably

made before the time he brought his petition.9 We next assume in

Murray's favor that this petition is not an attempt to evade the

9
Murray relies on information from a 2006 civil trial in the
District of Massachusetts, which concerned the FBI's relationship
with Bulger. See McIntyre v. United States, 447 F. Supp. 2d 54 (D.
Mass. 2006). The district judge in that case found that Bulger had
provided the FBI with the location of the South Boston warehouse as
retaliation against a criminal competitor. Id. at 94.

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restrictions on federal post-conviction relief under 28 U.S.C.

§ 2255. See Trenkler, 536 F.3d at 95-100; Barrett, 178 F.3d at 54-

57. We also assume Murray may apply for the writ despite the fact

that he is still in custody, because of the considerations outlined

in Morgan. See 346 U.S. at 512-13 ("Although the term has been

served, the results of the conviction may persist. Subsequent

convictions may carry heavier penalties . . . .").

The district court, too, made a number of assumptions in

favor of Murray. Most particularly, the court credited Murray with

having made a "substantial preliminary showing" that Agent Cleary

did have prior knowledge of the location of the warehouse and lied

about how he came to know of it. Murray, 821 F. Supp. 2d at 468

(quoting Franks v. Delaware, 438 U.S. 154, 155 (1978)) (internal

quotation marks omitted). For purposes of this appeal only, we

will assume so arguendo, although the evidence for the assumption

is weak.

These various assumptions would establish the first two

prongs of the coram nobis test in Murray's favor, and so we turn to

the third. On the question of whether Murray's 1984 conviction

rested on a fundamental error, we conclude that it did not.

Further, on the fourth element of the coram nobis inquiry, we

conclude the writ should not issue.

The district court likewise determined that Murray had

not demonstrated fundamental error relating to the issuance of the

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search warrant, the agents' trial testimony, or the government's

Brady disclosures. Id. at 468-74. We need not repeat the many

grounds of the district court's analysis, but limit ourselves to a

few.

First, we conclude, as did the district court, that the

omitted and allegedly false statements in the affidavit in support

of the warrant were not material to the issuance of the warrant.

There was ample probable cause to search the warehouse and no basis

to suppress. As the district court pointed out, the warrant was

supported by information from two other CIs who were not Bulger and

who offered more detailed information about a large-scale marijuana

conspiracy. Id. at 469. There was no basis for any insinuation

that the CIs fabricated this information. Id. at 468-69. Further,

the warrant affidavit included eyewitness observations by multiple

agents about the unusual behavior of individuals and vehicles on

April 5 and 6, 1983, which eventually led to the agents observing

two vehicles leaving the warehouse and discovering that those

vehicles contained bales of marijuana. Id. at 463-65. The

surveillance combined with the marijuana in the vehicles gave the

agents probable cause to believe that the warehouse contained

additional marijuana and evidence of trafficking. See id. at 466.

From these facts, the district court concluded that even

if Bulger had been identified as the third CI (and thus the

information linked to him been rendered unreliable), and even if

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Agent Cleary's purportedly false story about discovering the

warehouse had been omitted, the remainder of the affidavit readily

established probable cause. Id. at 468-70. We agree. And because

the allegedly withheld information was not material, it cannot be

the basis for a finding of fundamental error.

In a variant on his core argument, Murray argues that had

Bulger's identity and relationship with the FBI been disclosed, he

would have had more ammunition to cross-examine the federal agents

at trial. Even if we assume this to be so, this line of argument

ignores the fact that other evidence strongly pointed to Murray's

guilt. A blue van registered to Murray had appeared multiple times

in the course of the federal agents' surveillance of the suspected

conspirators. Id. at 463. The agents had observed Murray driving

a white van out of the warehouse; they had seen him stopping the

van and handing the keys to another suspect; and when the agents

pulled the white van over shortly thereafter, they found that it

contained sixty bales of marijuana. Id. at 464-65. The warehouse

itself was filled with more marijuana. Id. at 465. There was

strong and direct evidence of Murray's guilt, unaffected by the

claimed new ability to impeach.10

10
The same conclusion applies to Murray's argument that
certain withheld documents would have helped him to impeach
government witnesses because those documents did not list him as a
member of "the Joe Murray crew" (the criminal group under
investigation for marijuana trafficking). First, it appears that
Murray did not raise this argument in the district court until
after the court had entered its order denying the petition. But

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 We see no basis for impugning the original verdict of

guilt in light of that evidence. The issue of whether or not the

FBI agents were untruthful regarding how they first learned of the

warehouse, and regarding Bulger's role in providing that knowledge,

does not undermine confidence in the conviction.

The fact remains that Murray did eventually accept a

reduced sentence for the 1984 conviction rather than pressing his

case after remand from the Supreme Court. There is, and can be, no

serious argument that Murray's post-remand agreement was not

knowing or voluntary. As we pointed out in United States v.

George, 676 F.3d 249, those who have pled guilty are subject to

higher standards for issuance of coram nobis. See id. at 256-57.

Although Murray's agreement may or may not be rightly characterized

as a "guilty plea" as such, see note 3 above, it shares the

characteristics of such a plea that are relevant to the coram nobis

inquiry, including the abandonment of claims he could have raised

on appeal and implication of the interests of finality. See

George, 676 F.3d at 256-57.

even if we do not treat the argument as waived, the evidence to
which Murray refers was not material under Brady. The documents,
which contain notes about information Bulger provided to the FBI,
do not purport to include complete lists of all members of the Joe
Murray crew. In fact, at one point the notes specifically state
that the named crew members are "[a]mong others." At no point do
the documents indicate that Michael Murray was not a member of the
Joe Murray crew, as Murray now claims in his briefing. Again,
given the overwhelming evidence of Murray's guilt, these documents
would not have been material to Murray's conviction.

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 In the end, Murray's petition for coram nobis is based on

the thoroughly improbable theory that the FBI agents lied about

everything in Murray's case, not just about how they knew the

location of the warehouse, and that despite the other bases for the

warrant affidavit, and all of the direct evidence of Murray's

guilt, those lies were material. Like the district court, we note

that this is sheer speculation, see Murray, 821 F. Supp. 2d at 472-

74, and is certainly not enough to support issuance of the writ of

coram nobis.

Even if there were trial errors, and we do not suggest

there were, Murray's case would fail under the fourth element of

the coram nobis inquiry. Issuance of the writ would not be

warranted under the facts and circumstances of this case. See

George, 676 F.3d at 255. Indeed, the interests of justice are best

served by denial of the petition. It was entirely appropriate that

Murray's sentence for his current conviction take into account a

previous crime he committed.

In rejecting this petition, we in no way excuse or

condone the FBI's illicit involvement with Whitey Bulger. See

generally United States v. Connolly, 341 F.3d 16 (1st Cir. 2003)

(affirming racketeering conviction of FBI agent who conspired with

Bulger). But the connection to Murray's 1984 conviction, for a

crime he did commit, is too attenuated to support his petition.

Affirmed.

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