Filed: Jul. 08, 2005
Latest Update: Feb. 21, 2020
Summary: Patrick J. McGonagle, Stephen Burke, Anthony Shea, Matthew, McDonald and Michael K. O'Halloran, pro se, on memoranda in support, of applications for a certificate of appealability.5, The district court relied on United States v. McCall, 85, F.3d 1193 (6th Cir.add a new claim.
Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2441
PATRICK J. MCGONAGLE,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
No. 02-2467
STEPHEN BURKE,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
No. 03-1048
ANTHONY SHEA,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
No. 03-1055
MATTHEW MCDONALD,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
No. 03-1227
MICHAEL K. O'HALLORAN,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
[Hon. Steven J. McAuliffe, U.S. District Judge]
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Before
Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.
Patrick J. McGonagle, Stephen Burke, Anthony Shea, Matthew
McDonald and Michael K. O'Halloran, pro se, on memoranda in support
of applications for a certificate of appealability.
July 8, 2005
Per Curiam. These are five pro se applications for a
certificate of appealability (COA), filed by petitioners Anthony
Shea, Matthew McDonald, Stephen Burke, Michael O'Halloran, and
Patrick McGonagle. Petitioners were convicted at a joint trial of
various offenses related to a series of bank and armored-car
robberies and were sentenced to lengthy prison terms. Except in
one minor respect, this court affirmed their convictions and
sentences on direct appeal. United States v. Shea, 211 F.3d 658
(1st Cir. 2000). Petitioners then filed petitions under 28 U.S.C.
§ 2255 advancing an assortment of claims, mostly under an
ineffective-assistance-of-counsel rubric. The district court
denied relief in a comprehensive opinion and later declined to
certify the appeals. Our task is to determine whether petitioners
have raised one or more claims that are debatable among jurists of
reason. See, e.g., Miller-El v. Cockrell,
537 U.S. 322, 336
(2003). Finding that they have not done so, we deny the COA
applications substantially for the reasons enumerated by the
district court, adding only the following comments.
1. Petitioners complain that the district court allowed
the jurors to take written copies of the jury instructions home
with them, especially prior to closing arguments. At the outset of
trial, the court informed the jurors that they would receive a
written copy of the instructions at the appropriate time. At the
close of evidence, and with the acquiescence of all parties, the
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court chose to deliver the jury charge before the attorneys
delivered their closing arguments. On that date (a Monday), the
jurors were each given a written copy of the 94-page set of
instructions, which the court proceeded to read to them out loud.
The jurors were then excused for the day with the following
directives: that they could take the written copies of the charge
home with them; that if possible they should "try to familiarize"
themselves with the instructions when they had "a chance to be
quiet and think about" them; that they could make personal notes on
the written copies; and that they should not discuss the charge
with anyone. Closing arguments consumed the next three days, and
deliberations began on Friday morning. The jurors thus were in
possession of the written charge for four days (and evenings)
before actually starting to deliberate.
Petitioners do not now complain about written copies of
the charge being provided to the jury–-a practice endorsed by this
court. See, e.g., United States v. Parent, 954 F.2d 23, 24 n.1 (1st
Cir. 1992). Nor do they complain about the charge being delivered
before closing arguments–-a practice endorsed by Fed. R. Crim. P.
30(c).1 Instead, they argue that the procedure followed here made
it likely that one or more jurors consulted a dictionary or other
reference material while reviewing the instructions–-a form of
1
Rule 30(c) provides: "The court may instruct the jury
before or after the arguments are completed, or at both times."
Our Parent decision does not affect the operation of this rule.
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misconduct that in their view would amount to "structural error."
They fault trial and appellate counsel for not objecting to this
procedure, and they fault the habeas court for not undertaking a
suitable factual inquiry.
This claim fails because it is entirely conjectural.
Petitioners have adduced no evidence suggesting that such
consultation of extrinsic materials occurred. Nor is there any
particular reason to suspect that the court's procedure
significantly enhanced the likelihood of such an occurrence. For
one thing, the concern voiced by petitioners is not limited to
situations where jurors have been allowed to take a written charge
home with them. Even if the charge had only been delivered orally,
or even if a written charge had been distributed for use only in
the jury room, the possibility would still arise that a juror would
remember or write down specific words or terms to be researched at
home. For another thing, while petitioners are correct that the
court gave no cautionary instructions in this regard when
delivering the written charge to the jury, it did give explicit
such directives at the outset of trial.2 Although considerable
time thereafter elapsed before the written charge was distributed,
"[a]ppellate courts ordinarily presume that a jury will follow the
2
During its preliminary instructions, the court admonished
the jurors not to "engage in any outside reading of the case,"
"investigate the case on their own," "educate [themselves] on any
of the subjects that might come up," or "do any outside
investigative work, preparation, study, anything like that."
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trial judge's specific instructions." United States v. Bradshaw,
281 F.3d 278, 292 (1st Cir. 2002). And the court instructed the
jurors on the later date to follow "all of the instructions that I
gave during the course of the trial" and to decide the case based
"solely on the evidence received at trial."
On this record, the habeas court did not err in rejecting
petitioners' attempt to interrogate the jury members. When juror
misconduct is alleged, "a convicted defendant cannot lay claim to
a constitutional right to cross-question jurors in the absence of
an adequate evidentiary predicate." Neron v. Tierney, 841 F.2d
1197, 1205 (1st Cir. 1988) (habeas); accord, e.g., United States v.
Connolly,
341 F.3d 16, 34 (1st Cir. 2003) (holding on direct appeal
that court should only permit post-verdict interrogation of jurors
"when reasonable grounds for investigation exist, i.e., there is
clear, strong, substantial and incontrovertible evidence that a
specific, nonspeculative impropriety has occurred which could have
prejudiced the trial of a defendant") (internal quotation marks
omitted); Taylor v. Mabry,
593 F.2d 318, 320 (8th Cir. 1979) (per
curiam) (holding in habeas case that request for jury interviews
was properly denied where allegations of misconduct were
"speculative"; petitioner was "requesting permission to conduct a
fishing expedition") (quoted in
Neron, 841 F.2d at 1206).3
3
Petitioners' analogy to cases involving "structural error"
is also misplaced. See, e.g., United States v. Rogers, 121 F.3d
12, 17 n.5 (1st Cir. 1997) ("Courts that have considered the issue
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Petitioners also complain that the challenged procedure
encouraged jurors to start deliberating individually before
actually convening in the jury room.4 Yet as the district court
noted, there is nothing wrong with jurors engaging in "mental
deliberations" during trial–-in the sense of weighing evidence,
assessing credibility, and the like–-so long as they do not make up
their minds about guilt or innocence until the appropriate time.
Moreover, this same objection could be voiced whenever the charge
preceded closing arguments. Petitioners' grievance thus
effectively amounts to a challenge to that sequence of events–-
which, as mentioned, is specifically endorsed by Fed. R. Crim. P.
30(c).
2. Petitioners also fault their counsel for failing to
request, or object to the absence of, an alibi instruction. At
trial, Burke, O'Halloran, and McGonagle had each sought to
establish alibis regarding one or more of the offenses (mainly the
Hudson robbery). The habeas court rejected this claim for lack of
prejudice, citing three factors. First, the jury was properly
instructed on the presumption of innocence and the government's
of juror dictionary use have not generally considered such use to
be prejudicial per se.").
4
It is argued that the jurors' review of the charge on
Tuesday evening could have been especially prejudicial, since they
had only heard closing argument from the government by that time.
Yet defense counsel reasonably asked to wait until Wednesday to
begin their arguments, in order to avoid facing a fatigued jury.
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burden of proof. Second, counsel for petitioners, where
appropriate, addressed the alibi issue in their closings. And
third, the jury appears to have credited McGonagle's alibi defense
to the carjacking charge, insofar as its acquittal rested on a
conclusion that he was not physically present.5
While we think such analysis suffices to dispose of the
instant claim (particularly given the lack of rebuttal from
petitioners), we elaborate slightly as follows. The concern in
this area is that the jury will mistakenly believe that a
defendant's failure to prove an alibi defense is evidence of guilt-
–i.e., that the burden shifts to the defendant to prove an alibi,
rather than remaining with the government to disprove it. This
court, while declining to adopt any per se rule, has stated that
"alibi instructions should contain adequate safeguards against jury
confusion and should indicate that the burden of proof remains on
the government despite disbelief of the alibi witnesses." United
States v. Fortes, 619 F.2d 108, 123 (1st Cir. 1980). Yet the
circumstances here minimized any such concern about jury confusion.
The district court provided a general instruction about burden
shifting, stating:
5
The district court relied on United States v. McCall, 85
F.3d 1193 (6th Cir. 1996), which held on direct appeal that omission
of an alibi instruction is not plain error "as long as the jury is
otherwise correctly instructed concerning the government's burden
of proving every element of the crimes charged, and the defendant
is given a full opportunity to present his alibi defense in closing
argument."
Id. at 1196.
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The burden is always on the government to
prove guilt beyond a reasonable doubt. That
burden never shifts to a defendant. The law
does not impose upon a defendant in a criminal
case the burden or duty to call any witnesses
or to produce any evidence.
And the attorneys for Burke and O'Halloran emphasized this point in
their closings while discussing alibi evidence.
Even more important, the alibi defenses of the three
petitioners in question were insubstantial. Those offered by Burke
and O'Halloran, involving general references to daily routines
having been followed, were devoid of specificity. Only McGonagle
made more than a token effort in this regard, presenting several
witnesses that placed him in a neighboring state around the time of
the Hudson robbery. Yet this evidence was largely beside the
point, since his presence at the Hudson site was not an element of
any offense. The jury convicted McGonagle on four counts:
conspiring to commit, and aiding and abetting the commission of,
robbery and armed robbery. Various courts have held that, because
a conspiracy or an accomplice charge ordinarily does not require
proof of physical presence at the crime scene, the failure to give
an alibi instruction with regard thereto is harmless error (or not
error at all). See, e.g., United States v. Thomas, 34 F.3d 44, 50
(2d Cir. 1994); United States v. Agofsky,
20 F.3d 866, 871-72 (8th
Cir. 1994). Nor did the prosecution's theory of the case rest on
his presence at the Hudson site. Compare, e.g., United States v.
Burse,
531 F.2d 1151, 1153 (2d Cir. 1976). And the fact that
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McGonagle was acquitted of the carjacking charge suggests that the
jury credited his alibi evidence.
3. In a related argument, McDonald complains about the
failure of his counsel to present alibi evidence regarding the
Hudson robbery. Yet he acknowledges that counsel twice interviewed
the source of such evidence (McDonald's sister). His claim thus
fails, since "[t]he decision whether to call a particular witness
is almost always strategic." Lema v. United States, 987 F.2d 48,
54 (1st Cir. 1993); see also Strickland v. Washington,
466 U.S. 668,
690 (1984) ("strategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually
unchallengeable").
4. Petitioners advance a vague complaint involving
closure of the courtroom. At times, they seem to argue that the
courtroom was closed to the public during the entire voir dire
process. Yet the record instead indicates that the courtroom was
temporarily closed for a narrower purpose: to investigate a report
of tainted venire members. To the extent petitioners are faulting
counsel for not opposing this procedure, their claim is unavailing.
It is true that the guarantee of a public trial extends to voir
dire proceedings. See Press-Enterprise Co. v. Superior Court, 464
U.S. 501 (1984). Yet the temporary closure here was likely
permissible under the circumstances, especially where "a transcript
of the closed proceedings [was made] available within a reasonable
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time." Id. at 512. And even if not, counsel cannot be faulted for
thinking that private questioning of the two venire members would
be more conducive to eliciting candor about a possibly sensitive
topic. See, e.g., Horton v. Allen,
370 F.3d 75, 81-83 (1st Cir.
2004) (rejecting similar claim), cert. denied,
125 S. Ct. 971
(2005).
5. McGonagle raises a sentencing issue, challenging the
court's reliance on a cross-reference to the guideline for first-
degree murder. See U.S.S.G. § 2B3.1(c) (1996) (calling for
application of § 2A1.1 if victim was killed "under circumstances
that would constitute murder under 18 U.S.C. § 1111" had killing
taken place within jurisdiction of United States). On direct
appeal, the other four petitioners advanced a similar challenge.
They objected that it was unclear who had actually killed the
Hudson guards and whether any particular individual had intended to
cause their deaths. We responded that § 1111 "was intended to
adopt the felony murder rule" and that, under that rule, "the
killing of the guards in the Hudson robbery was first-degree murder
by those who perpetrated the robbery, regardless of who pulled the
trigger or any individual intent." Shea, 211 F.3d at 674; accord,
e.g., United States v. Martinez-Bermudez,
387 F.3d 98, 101 n.5 (1st
Cir. 2004).
McGonagle argues that a different result should obtain in
his case because of his relatively tangential involvement–-i.e.,
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because it is unclear that he was even present at the Hudson site.
In his view, a defendant who lacked intent to kill and was absent
from the crime scene cannot be held liable for first-degree murder
at sentencing. As support, however, he relies on inapposite case
law involving Eighth Amendment claims in death-penalty cases. See,
e.g., Enmund v. Florida, 458 U.S. 782, 797 (1982). His argument
overlooks the operation of the felony-murder rule, as explicated on
direct appeal, and ignores the fact that physical presence is not
necessarily required under an accomplice or conspiracy theory.
Instead, as the district court properly noted, the level of a
defendant's involvement is accounted for in the commentary to the
first-degree murder guideline. See U.S.S.G. § 2A1.1, cmt. n.1;
see, e.g., United States v. Hansen,
256 F. Supp. 2d 65, 71-72 (D.
Mass. 2003). The district court invoked this provision at
sentencing and departed downward accordingly.
6. Petitioners each filed their § 2255 petitions in
timely fashion. Some four months later, after the one-year
limitations period had expired, they each sought leave to amend to
add a new claim. The district court denied such leave on the
ground that the new claim did not "relate back" to the original
petitions under Fed. R. Civ. P. 15(c) and thus was time-barred. In
the alternative, it indicated that, even if timely, the proffered
claim would fall short on the merits. The district court's Rule
15(c) analysis has just recently been upheld by the Supreme Court.
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See Mayle v. Felix, ___ S. Ct. ___, 2005 WL 1469153 (June 23,
2005). And its alternative rationale proves equally supportable.
For the sake of completeness, we explain briefly.
Petitioners' new claim faults counsel for failing to
present additional impeachment material regarding John Ferguson,
one of the government's key witnesses. On the stand, Ferguson
recounted separate conversations he had had with Shea, Burke and
McDonald while jointly incarcerated with each of them–-testimony
which, inter alia, implicated all five petitioners in the Hudson
robbery. He was cross-examined at length over the course of two
days. In now claiming that such cross-examination was inadequate,
petitioners point to Ferguson's appearance shortly thereafter at an
unrelated bank-robbery trial in Massachusetts. See United States
v. Balsam, 203 F.3d 72 (1st Cir. 2000). In particular, relying on
a government memorandum filed in a habeas proceeding brought by a
Balsam defendant, they complain that Ferguson was there impeached
on various grounds that were never raised at their own trial.
This argument fails because there is no reasonable
probability that the results of the trial would have been different
had Ferguson been impeached more extensively. See, e.g., United
States v. Bagley, 473 U.S. 667, 682, 685 (1985) (plurality and
concurring opinions);
Strickland, 466 U.S. at 694. In part, this
is because of the extent to which he was impeached at petitioners'
trial. In addition to recounting his extensive criminal
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background, Ferguson there admitted, inter alia, to the following:
suborning perjury before several grand juries; testifying falsely
during a civil deposition; uttering myriad falsehoods under an
array of circumstances; and making inaccurate and incomplete
statements while being interviewed by investigators. The key
impeachment items presented for the first time at the Balsam trial
appear to be a pair of false affidavits, the circumstances
surrounding which are not explained. Regardless, such additional
evidence of Ferguson's mendacity would have been largely cumulative
of that adduced at petitioners' trial.
In any event, even if Ferguson's testimony were
discounted, the amount of other incriminatory evidence was
substantial. For example, all five of the petitioners were
implicated in the Hudson robbery by one or more other witnesses.6
Indeed, an analogous claim arose on direct appeal, involving new
evidence that might have further impeached John Burke (a named
defendant turned cooperating witness). In rejecting this claim, we
noted the following:
The evidence against the defendants was
substantial and rested on a number of
witnesses, much forensic evidence, and a
series of admissions and co-conspirator
statements. Further, John Burke was
extensively impeached ... [regarding] subjects
that might fairly cast doubt on his veracity.
6
We take particular note in this regard of the testimony of
Steven Connolly, Edwin McDonald, James Tracy, Michael Yandle, and
David Kelley.
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The outcome would not have changed [had the
new material been used].
Shea, 211 F.3d at 675-76. The instant claim fails for similar
reasons.
7. McDonald seeks to amend his COA application to
advance a claim under Crawford v. Washington, 541 U.S. 36 (2004).
It is doubtful that Crawford applies retroactively to cases on
collateral review. See, e.g., Murillo v. Frank,
402 F.3d 786, 789-
91 (7th Cir. 2005). It is also doubtful that the hearsay remarks
cited by McDonald constitute "testimonial" statements within the
reach of Crawford. See, e.g.,
Horton, 370 F.3d at 84. We need not
resolve these matters, however, since "a party may not unveil an
argument in the court of appeals that he did not seasonably raise
in the district court." David v. United States,
134 F.3d 470, 474
(1st Cir. 1998). While an appellate court does have discretion to
overlook this rule "in an exceptional case," Castillo v. Matesanz,
348 F.3d 1, 12 (1st Cir. 2003), the instant cases cannot be so
characterized. Whether McDonald or the other petitioners might be
able to file a second or successive petition seeking relief under
Crawford, should the Supreme Court ever make that decision
retroactive to cases on collateral review, is a matter we need not
decide.
8. We have reviewed petitioners' remaining claims and,
to the extent not explicitly addressed in the district court's
opinion, deem them unworthy of separate comment.
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The applications for a COA are denied, and the appeals
are terminated. McDonald's motion for leave to amend his COA
application and his motion for appointment of counsel are denied.
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