Professional Documents
Culture Documents
Appellee,
v.
EDWARD W. WELCH, JR.,
Defendant, Appellant.
___________________
No. 93-1262
UNITED STATES OF AMERICA,
Appellee,
v.
KEVIN CULLINANE,
Defendant, Appellant.
____________________
No. 93-1263
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTOPHER DRIESSE,
Defendant, Appellant.
____________________
No. 93-1280
UNITED STATES OF AMERICA,
Appellee,
v.
RICHARD LABRIE,
Defendant, Appellant.
___________________
No. 93-1281
UNITED STATES OF AMERICA,
Appellee,
v.
SHANE WELCH,
Defendant, Appellant.
____________________
-2-
No. 93-1282
UNITED STATES OF AMERICA,
Appellee,
v.
ERNEST F. LANGLOIS,
Defendant, Appellant.
___________________
No. 93-1283
UNITED STATES OF AMERICA,
Appellee,
v.
TONY ROOD,
Defendant, Appellant.
__________________
No. 93-1284
UNITED STATES OF AMERICA,
Appellee,
v.
CHERYL T. JOHNSON,
Defendant, Appellant.
__________________
No. 93-1285
UNITED STATES OF AMERICA,
Appellee,
v.
ARLINE S. WELCH,
Defendant, Appellant.
___________________
-3-
-4-
BOUDIN,
Circuit Judge.
______________
On
12 defendants
in this
convicted the
possess
cocaine
defendants,
with
David
intent
to
Sepulveda,
June
December
motion
10,
seeking
1992, the
dismissal
discovered evidence.
was
also
a new
from the
denial
the
of
conspiracy to
one
of
convicted
21 U.S.C.
filed
trial
jury
the
on
846, 848.
a post-trial
based
on newly
case of
defendants
or
1991,
distribute;
3,
judgments of
post-trial
motion,
and
the
and from
the
cases
were
Cir., Dec. 20, 1993), this court has affirmed the convictions
of
and
sets forth in
addresses
the
That decision
convictions.
challenging the
We
for resentencing.1
conclude
In
this opinion, we
that
the district
court
properly
denied the
____________________
1In United States v. Sepulveda, Nos. 92-1368 and 92-1370
_____________
_________
(1st Cir. 1993), filed simultaneously with this opinion, this
court has affirmed the convictions of the remaining two
defendants
but remanded
one of
the
two cases
for
resentencing.
-5-5-
a new trial
nor a dismissal of
the
Among the
government
at the
testified
that he
trial
had
to
Joseph
dealt in
Baranski.
cocaine as
secure
period 1985-1986.
drugs in
Nashua,
New
that
incriminating
references
with David
times in the
co-defendant
to
Hampshire, and
user and
made
Baranski
of supply.
Sepulveda
was
Edgar
Baranski also
several
other
with
counsel managed
rather effectively.
the
government that
to impair
Baranski's
explain
why he
was
Manchester,
New Hampshire,
and in
cocaine trafficking.
Baranski said that Noe, who was also a witness, had asked him
to testify and that he had obliged.
-6-6-
Asked
government,
Baranski said
soda.
assistant United
The
defense
counsel
that
Administration showed
1986 and
that he
States
records
again in 1988
examination and
made to admit
one
he said
the
was recalled
he
did
Drug
had been
for assisting it in
Baranski
bought a
attorney then
of
that Baranski
prosecutions.
earlier
had been
for
advised
Enforcement
paid $500
in
drug arrests or
further
diet
recall.
cross-
payment; the
His
testimony
the
trial
and
State of
described
New
Manchester.
$20,000 in
cash.
dated September
In
that document,
Baranski
convictions,
Hampshire.
a raid by New
resulting
a sworn complaint
the
There the
Baranski's
and about
store
had no
on to say
enforcement
would not be
it
Baranski,
according
agreed to
assist the
off."
"reluctantly
to
state
complaint,
in its
then
anti-drug
-7-7-
operations.
Since
of New Hampshire."
money
their
motion
Baranski's complaint
of the
as
an
The
him
unconstitutional
taking
of
1992,
the
property.2
In
defendants
argued
filed
that
The
the
on
December
10,
information
set
forth
motion
claimed
that
the
in
great
information
Defense counsel
charged the
directly or through
its agents.3
and
relationship
law
with
enforcement
concealed his
authorities
and
his
The
the cases
or a new trial.
____________________
2Based on this
information, defense counsel
then
searched the state court records pertaining to the search
warrant that had authorized the raid of February 10, 1988. A
state police property receipt showed that
the amounts
specified in Baranski's complaint had indeed been seized.
3Brady v. Maryland, 373 U.S. 83 (1963), is the standard
_____
________
statement
of the prosecutor's obligation to turn over
exculpatory material.
In Giglio v. United States, 405 U.S.
______
_____________
150 (1972), the Supreme Court said that the obligation
includes evidence that would impeach the credibility of
government witnesses.
-8-8-
A flurry of
The prosecutors
denied that they or the case agents assisting them had during
the
of an arrangement
and
the
for
state
police
him
to
between Baranski
cooperate
with
law
enforcement authorities.
additional impeaching
effect of
such information, if
true,
of the trial,
motion
to any
to
produce
agreements with
Baranski or
all
materials
Noe as
to the
February 25,
motion for
dismissal
record provided an
The court
1993, the
or a
district
new trial.
court denied
the
ruled that
the
It
pointed out
the motion.
testified at
trial and
secured
themselves.
evidence as
by
information
about
the
raid, could
funds
seizure
-9-9-
due diligence
information in
The
information provided by
so
the
defendants
necessary showing
for a
The
The
if presented to the
failed
new trial.
to make
the
Indeed, the
minimum
district
elimination of
Baranski's testimony
would
The
the search
and seizure of
records of
would not
Baranski's complaint.
of a different
result.
The defense
has not
start by
putting to
one
side any
claim that
the
The prosecutors
-10-10-
represented that neither they nor any of the case agents were
aware
of any
deal between
authorities
that
Baranski
cooperating
with the
briefs gives
Baranski and
would
state or
regain
the New
Hampshire
seized
anyone else.
funds
The
district
reason
to question
by
in the
it or
to
in
seeking further
to discredit
Baranski.
authorities that
this federal
prosecution
would
have
been
treated
as
cooperation by
the state
or facilitated
the recovery,
but
point and
the jury might have believed that Baranski would benefit from
his testimony.
Further,
information
derived
from
the
state
court
lying
at
trial
in his
vague
and
equivocal
It is
-11-11-
the
two
$500
payments
by
DEA
to
Baranski
for
earlier
Still, as
Baranski's failure
the
state police
discrediting,
and
with
the $500
to disclose the
would
the
probably
jury
payments
from DEA,
might
been
have
portrayed
drawn
such
as
an
inference.
Thus, we have no difficulty in regarding the evidence as
suggests.
defendant seeks a
If it
government, then--other
must create
have
an actual
resulted if the
States
______
v. Slade,
_____
the instant
discovered evidence.
the
newly
probability that
evidence had
980 F.2d
erected by
27, 29
evidence
an acquittal
been available.
(1st Cir.
would
United
______
1992); United
______
because the
leading Supreme
Court
difficult, in
case produced
two
____________________
4Baranski's reference to a diet soda was made in
response to rather loosely worded questions.
The two $500
payments were apparently
for his assistance
on prior
occasions, and the defense brief points to no clear evidence
that Baranski had any deal with any law enforcement agency as
to this case, or received any compensation apart from the
____
diet soda for his testimony in this case.
____
-12-12-
plurality
opinions.
(1987).
The usual
Justice Blackmun's
new
"a reasonable
changed
probability"
the result,
probability
outcome."
and a
sufficient
that
the
evidence
"reasonable
to
would
have
probability" is
undermine
"a
confidence
in
the
confidence"
formula
Id. at 682.
___
This
somewhat
suggests
delphic "undermine
produce an
and
acquittal.
the
penalty
undisclosed
After
significant,
evidence creating
one
(for
is close
might
think
that
example)
a 33
percent
the result.
And
weight to other
while
Bagley appears
______
to give
little
fault on the
is
ignored.
not entirely
Cf.
___
clear
that
these
variables must
be
all
events,
we
need
not
wrestle
with
these
uncertainties in
with
little
this case.
basis
in
We will
this
assume arguendo
________
record)
that
the
(but
federal
-13-13-
information in
question.
Nevertheless, we
agree with
the
information
had been
available
to
defense
Thus, whichever
standard is
of
the
defendants
concerned
the
Sepulvedas'
own
trafficking
some
David
cases
Baranski
Sepulveda
alone,
obtained
cocaine
for
(even if true)
In any
event,
in 1985 and
of these
witnesses'
trips
with
the
Sepulvedas--so
the
government
that
trafficking of the
establish
the
single
conspiracy
fact
another
drug
dealer
witness,
Michael
and
respects
his
testimony
by various law
was
corroborated
enforcement agents.
in
But
Lacerte,
these
and
different
The "critical
argue
demanding--test of
been different
for a
more favorable--that
likelihood
if the
that the
new information
is, less
outcome would
had been
have
available,
1990).
requisites
for
There, the
a
evidence, including
new
court described
trial
based
on
the ordinary
newly
discovered
defendant show
that the new evidence would probably have altered the result.
However, Wright went
______
a defense witness
-15-15-
may
be enough to
justify a new
defendant to
Id. at 1020.7
___
new information: it
that Baranski
We will
establishes a
where
special rule
post-trial evidence
lied at trial.
case because
with a
shows
that Wright
______
more favorable
that an
standard
important witness
court complaint
does not
show that
denial of
Baranski's
trial
assessment
that
almost
from the
all the
available to
brief,
by able defense
and our
testimony,
the post-trial
own
confirm
Baranski's credibility
material
for
making
counsel.
reading
the
was
that
motion
of
trial
The
all of
judge's
dubious.
But
assessment
was
In the
____________________
7Wright derived this "arguably applicable" standard for
______
perjured testimony from a 1928 Seventh Circuit decision,
Larrison v. United States, 24 F.2d 82 (7th Cir. 1928).
See
________
_____________
___
625 F.2d at 1020.
-16-16-
end, there is
Affirmed.
The stay of mandate previously entered in
________________________________________________________
United States v. Sepulveda, No. 92-1362, et al. (1st Cir.,
_____________________________________________________________
Dec. 20, 1993), is dissolved.
____________________________
-17-17-