Ferrara v. U.S.

456 F.3d 278

Vincent FERRARA, Petitioner, Appellee, v. UNITED STATES of America, Respondent, Appellant.

United States of America, Appellant, v. Vincent Ferrara, Defendant, Appellee.

No. 05-1736.

No. 05-1830

No. 05-1874.

United States Court of Appeals, First Circuit.

Heard May 3, 2006.

Decided August 10, 2006.

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.

Before BOUDIN, Chief Judge, COFFIN, Senior Circuit Judge, and SELYA, Circuit Judge.

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, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) — we affirm the judgment below.

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 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 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 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.

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. 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...