
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 94-1619                             WILLIAM MORRILL GILDAY, JR.,                                Petitioner, Appellant,                                          v.                  WILLIAM F. CALLAHAN, SUPERINTENDENT, MCI NORFOLK,                                Respondent, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Michael Avery for appellant.            _____________            William  J. Meade,  Assistant  Attorney  General, with  whom Scott            _________________                                            _____        Harshbarger, Attorney General, was on brief for appellee.        ___________                                 ____________________                                     July 5, 1995                                 ____________________               COFFIN, Senior Circuit Judge.  Petitioner William Gilday was                       ____________________          convicted  of first degree murder and two counts of armed robbery          for his involvement 25 years  ago in a notorious bank robbery  in          which Boston Police Officer Walter A. Schroeder was killed.  This          habeas  case, originally  filed  in 1981,  was reactivated  after          disposition  of the last of his four unsuccessful motions for new          trial in the Massachusetts courts.  The district court denied the          petition in a comprehensive opinion.   866 F. Supp. 611 (D. Mass.          1994).    After  carefully  reviewing the  case  authorities  and          relevant portions of the record, we affirm.                                    I. Background                                       __________               We  shall  provide  at  this  juncture  only  brief  factual          background, adding  more details  in later sections  as necessary          for  an  understanding  of  the  issues  discussed.    A  lengthy          description of the evidence presented at Gilday's five-week trial          is reported in  Commonwealth v. Gilday,  367 Mass. 474,  478-485,                          ____________    ______          327 N.E.2d 851, 854-58 (1975) ("Gilday I").  See also Gilday, 866                                          ________     ___ ____ ______          F. Supp. at 640-43.   A full chronology of the  proceedings since          his 1972 conviction is  set out in the district  court's opinion.          Id. at 615-16.          ___               Gilday  and five others were indicted  on robbery and murder          charges.1   Evidence  indicated  that the  group  had  planned  a                                        ____________________               1  The other defendants charged in the crime were Stanley R.          Bond, Robert J.  Valeri, Susan  E. Saxe and  Katherine A.  Power.          Michael Fleischer  was charged  as an  accessory after  the fact.          Bond,  who testified as a defense witness at Gilday's trial, died          in prison.   Valeri testified  as a Commonwealth  witness against          Gilday,  pled guilty eight  months later to  manslaughter, and is          now free.   Fleischer also testified  as a Commonwealth  witness,                                         -2-          series of bank  robberies to  raise funds in  support of  radical          political activities.   The Supreme Judicial  Court summarized as          follows the evidence supporting the Commonwealth's theory of what          occurred on the day of the robbery at issue here:               Bond, Valeri  and Saxe entered the  bank carrying guns,               robbed it and  drove off in  a blue Chevrolet  . . .  .               Gilday, armed with a semiautomatic rifle, was seated in               a white Ambassador  automobile across  the street  from               the  bank . . . .   [A]fter the other three had escaped               from the scene, Gilday  fired a number of shots  at two               policemen  who arrived,  and Officer  Schroeder thereby               sustained  the wounds from which  he died the next day.               Bond,  Valeri,  and  Saxe  later switched  to  a  third               vehicle,  a station  wagon  driven by  Power, and  made               their  escape.    Gilday  also  escaped  in  the  white               Ambassador.          367 Mass. at 477.               On  March 10,  1972,  Gilday was  convicted  by a  jury  and          sentenced to death.  Following  the United States Supreme Court's          decision in Furman v. Georgia, 408 U.S. 238 (1972), and his first                      ______    _______          motion  for  new  trial, the  death  sentence  was  changed to  a          sentence of life imprisonment.  His subsequent efforts  to obtain          relief from the original convictions have proven unsuccessful.               In this appeal, Gilday  argues that he is entitled to a writ          of   habeas   corpus  because   his   trial   was  replete   with          constitutional  error,  and  there  consequently  is  substantial          reason to  believe he was innocent of the charges on which he was          convicted.   We  have considered  each of  his claims  fully, but                                        ____________________          and  his  indictments ultimately  were  dismissed.   Saxe  was  a          fugitive for several years.   After her first trial ended with  a          hung  jury,  she pled  guilty to  manslaughter  and is  now free.          Power  surrendered to authorities in  1993, and is  now serving a          prison sentence.                                           -3-          cannot  say that any of the identifiable flaws in the proceedings          constituted a  deprivation of  rights warranting reversal  of his          convictions.   We  discuss most  of these  claims in  some detail          below.    As for  the others,  the  district court's  analysis so          closely  reflects our own thoughts that we find it unnecessary to          repeat the  discussion and,  therefore, adopt its  conclusions as          our own.                           II. Reasonable Doubt Instruction                               ____________________________               Gilday  claims a  host of  problems with  the trial  judge's          reasonable doubt instruction, several of which center on language          that has  been expressly and  repeatedly disapproved by  this and          other courts.   Because we agree that this  charge was flawed, we          have  studied its full text  and context with  particular care in          order to  answer the  relevant constitutional question:  "whether          there  is a  reasonable likelihood  that the jury  understood the          instructions to  allow conviction based on  proof insufficient to          meet the [reasonable doubt] standard," Victor v. Nebraska, 114 S.                                                 ______    ________          Ct. 1239,  1243 (1994).  Our review is  de novo.  See Ouimette v.                                                  __ ____   ___ ________          Moran, 942 F.2d 1, 4 (1991) (presumption of correctness for state          _____          court findings of  fact under 28  U.S.C.   2254  applies only  to          "`basic, primary or historic facts'" (citation omitted)).               As  we  previously  remarked when  evaluating  a  strikingly          similar instruction in Bumpus  v. Gunter, 635 F.2d 907,  910 (1st                                 ______     ______          Cir.  1980),2  "[i]t  is  to  be  remembered  .  .  .  that  [the                                        ____________________               2 The Bumpus trial  and Gilday's both occurred early  in the                     ______          1970s, and the same judge presided over them.                                         -4-          challenged]  remarks  have been  separately  culled  from a  very          lengthy  charge.   They, and  the emanations  from them,  must be          assessed  along with the rest of the charge . . . ."  The Supreme          Court recently reaffirmed the need to examine a charge in context          to determine whether language  possibly erroneous in the abstract          is cleansed  because "the rest  of the  instruction .  . .  lends          content to the phrase," Victor, 114 S. Ct. at 1247, 1250-51.  See                                  ______                                ___          also id. at 1243  ("`[T]aken as a whole, the  instructions [must]          ____ ___          correctly conve[y] the concept of reasonable doubt to the jury.'"          (quoting Holland v. United States, 348 U.S. 121, 140 (1954)).                   _______    _____________               In the end, we  have come to the conclusion that  the charge          overall  left  the  jury  with  an  accurate  impression  of  the          substantial burden  faced by the prosecution  in establishing the          defendant's  guilt beyond a  reasonable doubt.   As  shall become          apparent  from  our  discussion   below,  none  of  the  problems          identified by Gilday is, on its  own, of a severity that warrants          reversal of his  conviction.   Indeed, several of  the flaws  are          significantly ameliorated by  other aspects of the  charge.  And,          while the cumulative  impact of  the flaws is  itself a  separate          matter of  concern, we are persuaded that it does not rise to the          level of constitutional error.               The  charge, which  spanned  20 paragraphs  when reduced  to          writing,3  loosely may  be divided  into three  separate segments                                        ____________________               3 All  nineteen substantive paragraphs are  contained in one          of the three segments of  the instruction set off in blocks  from          the text of this opinion.  The twentieth, which simply introduces          the final portion of  the charge, is reproduced in  text on pages          15 and 16.                                         -5-          for purposes of our review.  We therefore begin our discussion by          reproducing the first five paragraphs:                    It is the burden  of the Commonwealth to establish               its  case beyond  a reasonable  doubt.   What  do those               words mean?    Well,  you give  to  them  their  common               ordinary meaning.  A doubt means an uncertainty of mind               or  a lack of  conviction.  And  reasonable means based               upon a reason.                    I  am going to discuss with you what our Court has               said it does not mean.  It does not mean a whimsical or               a fanciful  doubt; that is,  a doubt which  is conjured               up, which has no strength to tie it together, which has               no  foundation in fact.   It is floating  around in the               air.    And you  can't  pull it  down  and  root it  to               something solid in the evidence.  It is whimsical.                    It  is not beyond all doubt.  There are few things               in this world of ours which are capable of proof beyond               all doubt.  That is an impossible burden.   And if that               were the  burden that we placed  upon the Commonwealth,               no one who transgressed the laws of society or outraged               our populace would ever be convicted of a crime.  Don't               confuse  beyond  a  reasonable  doubt with  beyond  all               doubt.                    And  I sometimes  think  the jurors  take that  as               their  standard.   They must  be satisfied  before they               find a  defendant guilty  that there is  no possibility               that they are wrong before their full conviction.   And               so  again,   the  Court  has  said:   "Proof  beyond  a               reasonable  doubt is  not  beyond  the  possibility  of               innocence,"  because  I   suppose  almost  anything  is               possible.                    And if  you are  satisfied as I  define reasonable               doubt of the proof of  the Commonwealth's case beyond a               reasonable doubt  you should not hesitate  because of a               haunting thought  that there is a  possibility that you               might  be  wrong.    Because  then  you  place  on  the               shoulders  of the sovereign state  a burden it does not               have.                The  judge  thus began  simply,  telling the  jurors  that a          reasonable  doubt  is  an  uncertainty  "based  upon  a  reason."          Petitioner  argues that the charge contained  such a catalogue of          examples of what  was not reasonable doubt  that the jury  was in                                ___                                         -6-          effect improperly  influenced to assign whatever doubt  it had to          these  examples.  But tautology  is not multiplicity;  all of the          references  carried the  identical message:  that proof  beyond a          reasonable doubt is not beyond all doubt.  As we  said in Bumpus,                                                                    ______          635 F.2d at 911:               While   the  judge   placed  what   we  regard   as  an               uncomfortable degree  of emphasis on the  limits of the               government's burden, . .  . the charge in  its entirety               was  not so  unbalanced as  to undercut  the reasonable               doubt standard, nor was it basically inaccurate.               The  next  six  paragraphs  contain  all  of  the  troubling          language.   The section begins with a  rhetorical question: "[s]o          what does it [reasonable doubt] mean?"  The judge then answered:               Not one who is searching for a doubt to acquit; not one               who  has made  up his  mind that  the defendant  is not               guilty,  and then having decided the ultimate question,               to  satisfy  his  conscience  goes   back  through  the               evidence and  pores through  it to find  something upon               which  to  pin the  doubt which  he  already has.   No,               indeed.  It is  the doubt of a conscientious  juror who               is earnestly seeking the truth in the fullest discharge               of the oath  that he took. It is proof,  as our Supreme               Judicial Court has said, "To a moral certainty."                    That is not a  mathematical certainty; that is not               a  scientific certainty which  is capable of exactness,               because human beings are endowed with a  free will; and               they are capable of independent action.  And you  can't               take  their conduct and  put it into  a test  tube or a               computer and come out with a nice answer.                    When you  get all through analyzing this evidence,               it has to  be a  doubt nagging your  mind, leaving  you               with  an  uncertainty  of   conviction  to  that  moral               certainty  which you can stand up and argue in the jury               room with  principle and integrity and  honesty to your               fellow  jurors.    And  if  you  don't  believe  in  it               yourself, you haven't got a reasonable doubt.                    The Supreme  Court has expressed it  as, "The same               degree  of satisfaction  of  mind  and conscience  that               jurors should have  when they take action in  the major                                         -7-               affairs  of their  lives," the  major affairs  of their               lives.                    I  do not attempt to  define for you  what are the               major  affairs of  your  lives.   I  leave it  to  your               experience and I  leave it  to your wisdom.   When  you               take vital action in  your everyday lives certainly you               should be satisfied to a  moral certainty that what you               are doing is right.                    None of us have a crystal ball.  The future is not               ours to see.   All we can do is weigh  the pros and the               cons  against any  contemplated course  of  action; and               then with the wisdom and the intellect that we possess,               make a  decision.  We  may be  right; we may  be wrong.               But if we are satisfied to a moral certainty when we do               an act in our private lives, that it is the right thing               to do, we have  a settled conviction of mind.   That is               the  degree of  proof which  the law  contemplates when               they talk about "proof to a moral certainty."               Petitioner directs his fire  to four problem areas  in these          passages:  (1) the  use of  the term  "moral certainty,"  (2) the          comparison  of the  level of  certainty necessary  for a  finding          "beyond  a   reasonable  doubt"  with  the   level  of  certainty          applicable to personal decisionmaking,  (3) the suggestion in the          fourth paragraph that the jury need only  weigh the pros and cons          before making  a decision,  followed by the  statement suggesting          that  whether the  decision is  right or  wrong is  of equivalent          consequence;  (4)  the  possibility   that  the  third  of  these          paragraphs could be understood  as inverting the burden  of proof          by  requiring the  jurors to  find in  the evidence  so strong  a          "conviction" of doubt that they would  be able to argue for it to          their peers in the jury room.  We  address each of these in turn,          and then also consider their cumulative effect.               (1) "Moral  Certainty".  Equating the  concept of reasonable                   __________________          doubt  to  "moral certainty"  may  be,  in isolation,  reversible                                         -8-          error.  See Victor, 114 S. Ct. at 1250-51; Cage v. Louisiana, 498                  ___ ______                         ____    _________          U.S. 39,  41 (1990) (per  curiam); Commonwealth v.  Pinckney, 419                                             ____________     ________          Mass. 341, 345-49, 644 N.E.2d 973 (1995).   The Supreme Court has          discouraged use of  this phrase because of its ambiguous meaning,          see  Victor, 114  S.  Ct.  at  1247-48,  and  we  similarly  have          ___  ______          expressed  concern  because "the  jury  might  feel justified  in          convicting  based on  a feeling rather  than on the  facts in the          case," United States  v. Drake, 673 F.2d 15, 21  (1st Cir. 1982).                 _____________     _____          See also  United States v. Indorato, 628  F.2d 711, 721 (1st Cir.          ___ ____  _____________    ________          1980) ("[W]e have indicated  our uneasiness with this phraseology          and pointed out that it has been the subject of mixed reviews.").               Indeed,  in Cage,  the Supreme  Court reversed  a conviction                           ____          based on a  charge using "moral  certainty" language because  the          only  other meaning  ascribed  to reasonable  doubt equated  such          doubt to  "a grave uncertainty" or "an actual substantial doubt."          The Court felt that  those terms, in conjunction with  the phrase          "moral certainty,"  suggested a  higher degree of  doubt than  is          required for acquittal.               In  Victor, however,  the Court upheld  the validity  of two                   ______          separate  reasonable  doubt  instructions  that  contained "moral          certainty"  language,  observing  that that  language  "cannot be          sequestered from its surroundings" and finding that the remainder          of the charge lent appropriate content to the otherwise ambiguous          words.  114 S. Ct. at 1248.               As in Victor, the charge here contained far more explanation                     ______          than  was offered to the jury in Cage.  The paragraph immediately                                           ____                                         -9-          following the first reference  to "moral certainty" distinguishes          that level of certitude from mathematical certainty, harking back          to  the message from  the preceding section  of the  charge.  The          juxtaposition suggests  that  the requisite  level of  confidence          was, indeed, substantial, though not proof beyond all doubt.  See                                                            ___         ___          Pinckney, 419 Mass. at 347.4           ________               The  lengthy charge  also  offered  additional  formulations          emphasizing  the high  level of  proof necessary  for conviction.          Twice during  the course  of the  instruction, the  court charged          that the jury  must attain a "settled  conviction" of guilt.   In          Victor, the Supreme Court ruled that the use of a similar phrase,          ______          "abiding conviction,"  mitigated references to  "moral certainty"          and "substantial  doubt."   See 114  S. Ct.  at 1247 ("`The  word                                      ___          "abiding" here  has  the signification  of settled  and fixed,  a          conviction which may follow  a careful examination and comparison          of the whole evidence.' . . .  As used in this instruction, . . .          we  are  satisfied that  the  reference  to  moral certainty,  in          conjunction  with the  abiding conviction  language, `impress[ed]          upon the factfinder the need to  reach a subjective state of near          certitude of the guilt  of the accused.'" (quoting Hopt  v. Utah,                                                             ____     ____          120 U.S. 430, 439 (1887) and  Jackson v. Virginia, 443 U.S.  307,                                        _______    ________          315 (1979)).                                         ____________________               4 Although that same distinction was drawn in the reasonable          doubt instruction in Cage, the charge there did not elaborate any                               ____          further and, to the extent it did provide additional explanation,          could   not  overcome   the   "grave  uncertainty"   and  "actual          substantial doubt" language that the Court found unacceptable.                                         -10-               It  also is significant in evaluating the effect of the term          "moral certainty" that the  jury was told more than once that its          decision  must be based on  the evidence presented.   See Victor,                                                                ___ ______          114 S. Ct. at 1248, 1251.  In the third paragraph of this section          of the charge, the judge began by noting that "[w]hen you get all                                                         __________________          through analyzing this  evidence, it  has to be  a doubt  nagging          ________________________________          your mind, leaving you with an uncertainty of conviction . . . ."          Toward the  end of  the reasonable doubt  instruction, the  court          noted the jurors' oath to render "a true verdict according to the          evidence and the law," and earlier cautioned against "strain[ing]          the  evidence  to  any  conclusion  not  warranted  by  its  fair          convincing  force."   Thus,  as in  Victor, the  instruction here                                              ______          explicitly told the jurors that their decision had to be based on          the  evidence in the  case, minimizing  the possibility  that the          reference  to  "moral  certainty"   would  have  been  viewed  as          permitting  a conviction based "on  a feeling rather  than on the          facts in the  case," Drake, 673 F.2d  at 21.   See 114 S. Ct.  at                               _____                     ___          1248.  And, also as in Victor, other instructions reinforced this                                 ______          message.  See, e.g., Tr. at 4274 ("We look for a verdict which is                    ___  ____          dictated  by  your  logic and  your  common  sense  and not  your          heart.");  id. at  4276 ("It  is your  sworn duty to  presume the                     ___          defendant   innocent  and  to  give   him  the  benefit  of  that          presumption  all throughout the trial  and at every  stage of the          investigation  of  the evidence  in the  jury  room, until  it is          overcome  by  proof beyond  a  reasonable doubt.");  id.  at 4281                                                               ___          ("[I]n  the  last  analysis  it  comes  to  your  most  important                                         -11-          obligation,  and that is, to decide this  case on the body of the          evidence as I define it."); id. at 4283 ("[W]hen it comes time to                                      ___          base your verdict, find  a foundation in the evidence  upon which          it  must  rest.");   id.  at  4291   ("The  facts  must   exclude                               ___          innocence.").               (2)  "Vital  action  in  your everyday  lives".    Comparing                    _________________________________________          "beyond a reasonable  doubt" to  the "degree  of satisfaction  of          mind and conscience that jurors should have when they take action          in the major affairs of their lives" is an analogy that has drawn          criticism for decades.  See Drake, 673 F.2d at 20 (noting Supreme                                  ___ _____          Court's expressed displeasure of the "willing to act" instruction          in  Holland v. United  States, 348 U.S.  121 (1954)).   Even when              _______    ______________          framed in the  more accepted format of comparing reasonable doubt          to a doubt that would  cause a prudent person to hesitate  before                                                           ________          acting,  the  instruction  is  arguably unhelpful.    See,  e.g.,                                                                ___   ____          Victor,  114 S.  Ct. at  1252 (Ginsburg,  J., concurring).5   The          ______          instruction  here, however, did not include the sort of specific,          supposedly   comparable,  examples  that   have  been  viewed  as          prejudicially misleading to jurors.  Compare, e.g.,  Commonwealth                                               _______  ____   ____________          v.  Ferreira, 373  Mass. 116,  128-29, 364  N.E.2d 1264,  1272-73              ________          (1977)  (reversing  because a  number  of  examples of  important          personal  decisions "understated  and  tended  to trivialize  the                                        ____________________               5 The Supreme Court repeatedly has approved the "hesitate to          act" formulation, however, and  the majority in Victor relied  in                                                          ______          part on the trial court's use  of it as an alternative definition          of  reasonable   doubt  to   support  its  conclusion   that  the          instruction there was adequate.  The Court noted that it "gives a          common-sense benchmark for just how substantial such a doubt must          be."  114 S. Ct. at 1250.                                         -12-          awesome  duty of  the jury to  determine whether  the defendant's          guilt  was proved  beyond  a reasonable  doubt")  with Rogers  v.                                                            ____ ______          Carver, 833 F.2d 379, 382-83 (1st Cir. 1987) (no reversible error          ______          where  reference to  important decisions  was brief  and general,          with no specific examples) and Bumpus, 635 F.2d at 912-13 (single                                     ___ ______          example  of deciding  whether  to  have  heart  surgery  did  not          trivialize the jurors' duty or minimize the government's burden).          Because  no  such examples  were  used,  and  because the  charge          focused  on "vital"  or  "major" personal  matters,  we think  it          unlikely  that  this  aspect  of  the  instruction  deprived  the          defendant of the right to be found  guilty only upon proof beyond          a reasonable doubt.6               (3) Pros and cons; right and wrong.  Read on  their own, the                   ______________________________          opening  sentences   of  the  last  paragraph   in  this  section          unquestionably   present  an   inadequate  articulation   of  the          substantial and unique burden of proof born by the prosecution in          a  criminal case.  Read in  context, however, the thrust of these          passages was to inform  the jurors that a "settled  conviction of          mind"  must be reached to find the defendant guilty.  Immediately          following the reference to right and wrong, the judge stated:               But if we are satisfied to a moral certainty when we do               an act in our private lives, that it is the right thing               to do, we have  a settled conviction of mind.   That is               the  degree of  proof which  the law  contemplates when               they talk about "proof to a moral certainty."                                        ____________________               6 The judge's third reference to everyday decisionmaking was          not qualified with an  adjective such as "vital" or  "major," but          we think the need to  equate the criminal trial with a  matter of          grave importance was by that time clear.                                         -13-          This  explanation  makes  manifest that  the  previous  comments,          though  poorly framed,  were another  restatement of  the concept          voiced  repeatedly  by  the  judge that  absolute  certainty  was          unnecessary.  The jurors' decision will not necessarily be error-          free: "we may be wrong."   What is crucial, the jurors  are told,          is whether  they can reach  a "settled conviction" of  guilt.  We          therefore conclude  that the  language of this  paragraph, though          far from ideal, was unlikely to  be understood in its entirety in          theoverly casualway suggestedby theopening sentencesin isolation.               (4)  Inversion of burden of  proof.  The  third paragraph of                    _____________________________          this  section of the charge contained two sentences, the first of          which told the  jurors: you have a reasonable  doubt if, when you          finish analyzing the evidence, you have                a  doubt  nagging  your   mind,  leaving  you  with  an               uncertainty of conviction to that moral certainty which               you  can stand  up  and argue  in  the jury  room  with               principle  and integrity  and  honesty to  your  fellow               jurors.          The  second  sentence was  much more  direct:  "And if  you don't          believe in it yourself, you haven't got a reasonable doubt."               Although the district court viewed the second sentence as  a          mistake that may  have suggested  an inversion of  the burden  of          proof, it felt that the preceding sentence "plainly referred to a          `conviction'  that the defendant was guilty as charged," not to a          "conviction", i.e., a belief, in  a doubt.  866 F. Supp.  at 618.          It  therefore felt that no misimpression was  given.  Our view is          essentially the same.   The first sentence clearly refers  to the          certainty a jury must feel  as to conviction.  As for  the second                                         -14-          sentence, the concept of having a belief or a moral certainty  in          a doubt (which in itself is a state of uncertainty) is, we think,          a strange and awkward way  of referring to the strength of  one's          doubt.   The  likely effect  would have been  to confuse,  not to          encourage an inversion of the burden of proof.               In addition, this paragraph was one of twenty in the charge,          which began  with a  statement that  "[i]t is the  burden of  the          Commonwealth to  establish its  case beyond a  reasonable doubt,"          and  which  concluded  with several  paragraphs  emphasizing  the          defendant's  "absolute right  to  hold the  Commonwealth to  this          strictness of proof."  We therefore find no reasonable likelihood          that  the  jurors  entered  their deliberations  with  the  false          impression  that  petitioner had  the  burden  of establishing  a          reasonable doubt.               (5)  Cumulative effect.  As  we have discussed,  none of the                    _________________          multiple  deficiencies in the second portion of the charge was of          sufficient magnitude  to weaken the conviction.   Taken together,          however, their effect  is more substantial.   Reasonable doubt is          defined  with  the  imperfect  term "moral  certainty,"  and  one          alternative  explanation  of moral  certainty  is the  disfavored          formulation  concerning  personal  decisionmaking.   Yet  another          description of reasonable doubt and moral certainty suggests that          the jury's  task is simply a matter of weighing the pros and cons          to reach  a decision that  "may be right"  or "may be  wrong."  A          central    passage   defining   reasonable   doubt   is   largely          impenetrable,  though  its  language  taken  literally  could  be                                         -15-          understood  to impose a burden of proving doubt on the defendant.          And  we have expressed our  discomfort with the  first portion of          the   charge,  which   at  great   length  reiterates   that  the          government's burden should not be overestimated.               If these  two sections comprised the  entire instruction, we          might  well conclude  that  reversal  would  be  necessary.    Of          greatest  significance to  our  contrary conclusion  is the  fact          that, at  the conclusion of  the portions  of the charge  we have          quoted  so far,  the judge  essentially began  anew, telling  the          jury, "so there will just be no doubt about what reasonable doubt          means, I  am going to define it in the precise and more scholarly          language  of  our Supreme  Judicial Court."    In the  next eight          paragraphs,  he presents the then-acceptable charge on reasonable          doubt from Commonwealth v. Madeiros,  255 Mass. 304, 307-08,  151                     ____________    ________          N.E.  297 (1926), see Pinckney,  419 Mass. at  348, together with                            ___ ________          language  emphasizing  the  importance of  the  reasonable  doubt          standard to our system of jurisprudence.7                    "Proof beyond  a  reasonable doubt  does not  mean               proof  beyond all doubt,  nor beyond  a whimsical  or a               fanciful  doubt, nor  proof  beyond the  possibility of               innocence.                    "It is rarely, if ever possible, to find a case so               clear that there cannot  be a possibility of innocence.               If  an  unreasonable doubt  or  a  mere possibility  of                                        ____________________               7  The  Supreme  Judicial  Court has  since  criticized  the          Madeiros  language,  in  the  second paragraph  quoted  here,  as          ________          warning  the jury against holding  the prosecution to  too high a          standard  of proof.  See Commonwealth v. Pinckney, 419 Mass. 341,                               ___ ____________    ________          348,  644 N.E.2d 973  (1995) (citing cases).   In  this case, the          judge  remedied  that  deficiency  later in  the  instruction  by          warning the  jury against relaxing the  reasonable doubt standard          in response to concerns about public safety or shocking crimes.                                         -16-               innocence  were sufficient  to  prevent  a  conviction,               practically every  criminal would  be set free  to prey               upon  the  community.   Such  a  rule would  be  wholly               impracticable and  would break  down the forces  of law               and order, and make the lawless supreme.                    "A reasonable  doubt does  not mean such  doubt as               may exist in the mind of a man who is earnestly seeking               for  doubts or for an excuse to acquit a defendant; but               it  means  such  doubt as  remains  in  the  mind of  a               reasonable man who is earnestly seeking the truth.                    "A fact  is proved beyond a  reasonable doubt when               it  is proved  to a  moral certainty,  as distinguished               from an absolute or  mathematical certainty; when it is               proved  to a  degree  of certainty  that satisfies  the               judgment and consciences of the jury as reasonable men,               and leaves in their minds,  as reasonable men, a  clear               and  settled conviction of guilt.   But if  when all is               said  and done there remains  in the minds  of the jury               any reasonable doubt of the existence of any fact which               is  essential  to the  guilt  of the  defendant  on the               particular charge, the defendant must have the  benefit               of it and cannot be found guilty upon that charge."                    And if  you have a reasonable  doubt, your verdict               ought to be not guilty.                    I want  to say a  few more words  about reasonable               doubt.  A standard which produces great satisfaction to               me, and I  think should  to you, the  defendant has  an               absolute   right  to  hold  the  Commonwealth  to  this               strictness  of  proof.    No  consideration  of  public               safety,  nor righteous  indignation at  atrocious crime               which  shocks   the   community,  nor   zeal  for   the               suppression of crime can give to the Court and jury the               discretion,  or the  right  to relax  this standard  of               proof; nor to strain the evidence to any conclusion not               warranted by its fair convincing force.                    This is a government of laws  and not of men.   If               the guilty go unpunished today because  jurors observed               their oath and rendered a true verdict according to the               evidence  and the  law,  then the  community and  every               citizen in  it  is still  safer,  because the  law  has               prevailed.                    The Court cannot state this principle too strongly               as a principle to be observed, to guard the rights of a               defendant.  And  I would be remiss in my  duty if I did               not with equal  force remind you that the  community is               not safe if only the rights of those charged with crime                                         -17-               are  safeguarded and  protected and  the rights  of the               Commonwealth  to  have a  verdict  if  guilt is  proved               beyond a reasonable doubt is  just as absolute and just               as sacred as the right of a defendant to an acquit[t]al               if the proof does not meet that test.                To the extent  that specific portions of the instruction up          to this point  had been less than clear, the  jury explicitly was          told that this restatement was equivalent and complete.  Although          the judge repeated  in this  part of the  instruction the  "moral          certainty" phraseology, he contrasted a moral certainty only with          an absolute or  mathematical certainty.  See  Pinckney, 419 Mass.                                                   ___  ________          at 347  (finding that the identical  language "properly impressed          upon  the  jury the  need  to reach  a subjective  state  of near          certitude of the guilt of the accused").  See also supra at 9-10.                                                    ___ ____ _____          Moreover, the judge  again emphasized that  the proof must  leave          "reasonable men" with "a clear and settled  conviction of guilt,"          and,  failing that, the defendant  must be found  innocent.  With          the language  discouraging a  verdict for the  prosecution unless          based  on the law and  the evidence, this  alternative charge was          entirely correct.  In our view, even the cumulative effect of the          earlier imperfections was offset  by this lengthy and independent          charge, which the judge praised to the jury as "precise  and more          scholarly."                In sum, this instruction possessed a number of flaws, as did          the instructions reviewed in Victor.   As we look at some  of the                                       ______          less  defensible language,  we find  it difficult  to say  that a          juror could not have been led astray.  But as  the Court reminded          us in  Victor, 114 S.  Ct. at  1243, the standard  is not  "could                 ______                                         -18-          have"  but rather: is there a reasonable likelihood that the jury          understood the instruction as a  whole to permit conviction based          on a  level  of proof  below  that required  by the  Due  Process          Clause?    Our  review  convinces  us  that  there  was  no  such          likelihood in this case.   Accordingly, it provides no  basis for          disturbing Gilday's conviction.                                III. Brady/Giglio Claims                                    ___________________               Gilday contends  that the  government's failure  to disclose          cooperation  agreements with  two  accomplices  who testified  as          prosecution  witnesses, and  the failure  to correct  their false          testimony  that no  deals  were made,  violated  his due  process          rights  as  established in  Brady v.  Maryland,  373 U.S.  83, 87                                      _____     ________          (1963)  and  Giglio  v.  United  States,  405  U.S.  150,  154-55                       ______      ______________          (1972).8  He additionally raises  separate Brady claims based  on                                                     _____          the government's failure to disclose exculpatory statements by an          eyewitness  to the crime who did not  testify at trial and by two          trial  witnesses.  We have  examined these claims  with care, and          have concluded that  none of the asserted  nondisclosures nor all          of them cumulatively constitute reversible error.                We begin  our discussion by noting  the relevant standards.          A Brady  error occurs when the  prosecution suppresses "material"            _____          evidence that is favorable to the accused.  See Kyles v. Whitley,                                                      ___ _____    _______          No. 93-7927, 63 U.S.L.W.  4303, 4307 (U.S.  April 19, 1995).   In                                        ____________________               8 Brady  established a prosecutor's obligation  to turn over                 _____          exculpatory material.  In Giglio, the Supreme Court held that the                                    ______          obligation includes  evidence that would  impeach the credibility          of government witnesses.                                          -19-          most circumstances,  exculpatory evidence  is material  only "`if          there is  a reasonable  probability that,  had the  evidence been          disclosed to the defense, the result of the proceeding would have          been different,'" id.  (quoting United States v. Bagley, 473 U.S.                            ___           _____________    ______          667,  682,  685  (1985)).9    We refer  to  this  as  the  Bagley                                                                     ______          standard.               A standard  of materiality  more favorable to  the defendant          applies,  however, when  previously undisclosed  evidence reveals          that  the  prosecutor  knowingly   used  perjured  testimony  or,          "equivalently," knowingly failed to disclose  that testimony used          to convict the defendant was false.   Bagley, 473 U.S. at 678-80.                                                ______          In such situations, "`a conviction . . . is fundamentally unfair,          and must be set  aside if there is any reasonable likelihood that          the false  testimony  could have  affected  the judgment  of  the                                _____          jury,'"  Kyles, 63 U.S.L.W. at 4307 n.7 (quoting United States v.                   _____                                   _____________          Agurs,  427  U.S. 97,  103 (1976))  (emphasis added).10  We shall          _____          label this test the Agurs standard.                              _____                                        ____________________               9  This  standard  applies  when the  government  failed  to          respond to  a specific defense request  for exculpatory evidence,          and when the government  failed to volunteer exculpatory evidence          never requested, or  requested only in a  general way.   Kyles v.                                                                   _____          Whitley,  No. 93-7927,  63 U.S.L.W.  4303,  4307 (U.S.  April 19,          _______          1995).               10  Kyles  explicitly  refers  only to  the  knowing  use of                   _____          perjured  testimony, but we think it implicit that the Court also          ________          contemplated  application  of  this  test to  those  "equivalent"          circumstances  noted  in  Bagley.   We  have  applied  the  Agurs                                    ______                            _____          standard   in   a   non-perjury   setting,   when  a   prosecutor          intentionally withheld  materials relating  to a  witness's prior          criminal  record and to  the deals he  made with the  state.  See                                                                        ___          Ouimette v. Moran, 942 F.2d 1, 10-11 (1st Cir. 1991).          ________    _____                                         -20-               Although the tests for materiality suggest a harmless error-          like inquiry, it is  important to note that these  standards must          be   applied   to   determine   the   threshold   question:   has          constitutional  error  occurred?   Only  then does  the  issue of          harmlessness arise.  And, as the Supreme  Court's recent decision          in Kyles  makes clear, see  63 U.S.L.W. at 4308,  the approach to             _____               ___          harmless error in  the Brady/Giglio  context has  evolved as  the                                 ____________          Chapman formulation  of "harmless beyond a  reasonable doubt" has          _______          yielded in habeas cases to the softer Brecht test of  whether the                                                ______          error  "`had substantial  and  injurious effect  or influence  in          determining the  jury's verdict,'"  Brecht v. Abrahamson,  113 S.                                              ______    __________          Ct. 1710,  1722 (1993) (quoting  Kotteakos v. United  States, 328                                           _________    ______________          U.S. 750, 776 (1946)).               In Kyles, the Court observed that harmless error analysis is                  _____          inapplicable  to a  Brady/Giglio claim  arising in a  habeas case                              ____________          outside the perjury-related  context.  63  U.S.L.W. at 4307-08  &          n.7 (noting that "our  decision today does not address  any claim          under the  first Agurs  category [i.e., perjury-related]").   The                           _____          reason is compelling: the Bagley materiality standard necessarily                                    ______          requires   a  court  to  find  an  impact  on  the  jury  verdict          sufficiently  substantial to  satisfy the  Brecht  harmless error                                                     ______          test.  Thus, in the non-perjury setting,  all that is required or          appropriate  is  the  one-step  Bagley  inquiry  into  reasonable                                          ______          probability.               But a prosecutor's knowing use of false testimony presents a          different  analytical  situation.    As  Bagley  makes  clear,  a                                                   ______                                         -21-          petitioner is  given the benefit of a  friendly standard (hostile          to  the   prosecution)  to   establish  materiality:   whether  a          reasonable  jury could have been  affected.  473  U.S. at 678-80.                           _____          This is,  in essence, the old  Chapman inquiry.  Id.  at 679-80 &                                         _______           ___          n.9.  Applying this  standard in most cases involving  perjury or          its equivalent  will likely result in a finding of constitutional          error.   Scaling  that lower  materiality hurdle,  however, still          will  leave  the  petitioner  facing the  Brecht  harmless  error                                                    ______          inquiry  into  whether  the  perjured testimony  in  fact  had  a          substantial  and  injurious effect  or  influence  on the  jury's          verdict.11   In other  words, where  the Agurs  standard applies,                                                   _____          it is quite possible  to find a constitutional violation,  but to          conclude that it  was harmless.   When faced  with such a  claim,          therefore, our  inquiry is  necessarily two-pronged: was  there a          failure to  disclose material exculpatory evidence,  and, if yes,          was such failure harmless?               Having  laid out this framework, we now turn to petitioner's          claims.               A. Prosecutorial agreements with Fleischer and Valeri                  __________________________________________________               Petitioner argues that the government deliberately relied on          the  false testimony of two witnesses,  Fleischer and Valeri, who          denied  that any  deals had  been made  with the  prosecution for          their  cooperation.   The district  court, like  the Commonwealth          courts before it, concluded  that no error occurred with  respect                                        ____________________               11 It is the government's burden, of course,  to demonstrate          that the  error is harmless.  O'Neal v. McAninch, 115 S. Ct. 992,                                        ______    ________          995-98 (1995).                                         -22-          to Valeri because his acknowledgement at trial of "a  generalized          expectation  of  leniency"  (i.e.,  that  his  cooperative  trial          testimony would  be brought to  the court's attention)  served to          disclose  his possible  motivation to  testify favorably  for the          government.  We agree with this determination essentially for the          reasons  expressed by the district  court, and do  not address it          further.  See 866 F. Supp. at 634-36.                    ___               The Supreme  Judicial Court did conclude,  however, that the          government improperly  failed to  disclose a  deal made  with the          attorney for  the other witness, Fleischer.   Called in rebuttal,          Fleischer testified most crucially  that, in a discussion shortly          after  the  robbery,  Saxe  and  Power  accused  Gilday of  being          "trigger-happy"  and that Gilday said,  "What did you  want me to          do,  the cop was  right there, he was  only thirty seconds behind          you."               In cross-examination, Fleischer specifically denied that any          deals had been made for his testimony, and testified further that          his only promise from  the Commonwealth was that high  bail would          be  requested but not demanded.  In  fact, as found by a Superior          Court judge  following a hearing  on petitioner's motion  for new          trial,  the prosecutor  had  told Fleischer's  attorney that,  in          exchange  for Fleischer's testimony, he  would attempt to reach a          disposition of the charges against Fleischer that would leave him          with no criminal record.12   Commonwealth v. Gilday (Gilday  II),                                       ____________    ______  __________                                        ____________________               12  Petitioner   states  in  his  brief,   although  without          citation, that the nine indictments against Fleischer,  including          accessory after the  fact to  first degree murder,  in fact  were                                         -23-          382 Mass. 166, 175, 415 N.E.2d 797, 802 (1980).  The motion judge          also found that,  as the prosecutor and  Fleischer's attorney had          agreed,  Fleischer was not told of  this specific arrangement; he          knew only  that it would be  "in his best interest  to testify in          the case." Id.                     ___               The  Supreme Judicial Court noted that neither the lack of a          formal agreement with Fleischer nor Fleischer's lack of knowledge          of  the specifics of the understanding relieved the prosecutor of          his obligation to disclose  material facts concerning Fleischer's          credibility and possible bias.   Indeed, the court noted  that to          hold  otherwise would be "in  effect [to] approve  the evasion of          the Giglio  rule by means of  artful device."  382  Mass. at 177,              ______          415  N.E.2d at 803.  That court,  however, agreed with the motion          judge that the suppression  of this information had no  effect on          the jury and therefore did not require a new trial.  382 Mass. at          177-78, 415 N.E.2d  at 803-04.   The district  court reached  the          same conclusion in rejecting  the habeas petition.  866  F. Supp.          at 633.13               Our review of  the determination that  the prosecutor had  a          duty  to  disclose the  Fleischer arrangement  is  de novo.   See                                                             __ ____    ___          Ouimette,  942  F.2d  at  4.   We  apply  the  Agurs  standard of          ________                                       _____                                        ____________________          dropped  after he  testified  against Gilday  and  Saxe in  their          separate  trials.    The   Commonwealth  does  not  dispute  this          representation.               13 Neither the Supreme Judicial Court nor the district court          found  it necessary  to  state precisely  whether the  applicable          Brady  standard had been met and  a constitutional violation thus          _____          established because each found the asserted error harmless in any          event.                                         -24-          materiality,  more favorable  to the  petitioner, because  of the          prosecutor's  deliberate  strategy  to  misrepresent  Fleischer's          credibility  and  the knowing  acquiescence in  Fleischer's false          testimony.  See id. at 11; see also supra at 19-20.                      ___ ___        ___ ____ _____               As we have explained, the relevant inquiry  is whether there          is any  reasonable likelihood that the false testimony could have                                                                 _____          affected the judgment of the jury.  To put the question the other          way around:  can we say that  no reasonable jury could  have been          affected  by the undisclosed information?  We think the answer is          fairly obvious.  The information withheld by the prosecutor would          have provided  the basis for powerful  impeachment of Fleischer's          testimony.  Not  only did Fleischer deny that  any deals had been          struck on his behalf,  but he also claimed that he was testifying          only because  a man had been killed and he wanted to "see justice          done."               The fact that  his lawyer and the prosecutor had  come to an          understanding  would  have  markedly  strengthened  the defense's          claim that Fleischer was highly  motivated to implicate Gilday to          protect  himself.    First,  it  would  have  permitted  the jury          reasonably to infer that, even if the "wink and nod" deal had not          been  explicitly communicated  to  Fleischer, he  must have  been          given some  indication that  testimony helpful to  the government          would be helpful to his own  cause.  Cf. Bagley, 473 U.S. at  683                                               ___ ______          (making reward contingent upon outcome "served only to strengthen          any  incentive  to   testify  falsely  in   order  to  secure   a          conviction").   In  addition, evidence  of  the deal  would  have                                         -25-          reinforced  the  testimony  of   defense  witness  Bond,  another          accomplice, who implicated  Fleischer as the gunman.   The stakes          for Fleischer  were substantial  indeed if his  testimony blaming          someone  else could  secure  his release  entirely from  criminal          responsibility for a murder he  had committed; his motivation  to          lie could not have been greater.               Disclosure of the deal in all  likelihood would have reduced          substantially,  or  even   destroyed,  Fleischer's   credibility.          Because  the direct accusation of  an accomplice is  of more than          minimal consequence in a  case where the defense is  that someone          else was responsible for the charged crime,  we think it at least          reasonably  likely that  the suppression  of this  evidence could          have affected  the jurors' judgment.   Presumably, the government          agrees with  this  assessment; for  what other  reason would  the          prosecutor have gone to such lengths to keep the information from          them?               Recognition  of  error  does  not  end  our  task,  however.          Although  we  have  determined  that the  jury  might  have  been                                                          _____          affected by  knowledge of  Fleischer's  deal, and  thus that  the          prosecution's   suppression   of   the   evidence   violated  its          constitutional obligation  under Brady  and Giglio, we  also must                                           _____      ______          consider -- to restate  the Brecht standard -- whether  the error                                      ______          was  of  such  magnitude that  it  actually  casts  doubt on  the          integrity  of  the verdict.   This  is  the difference  between a          possibility  and a probability.   See O'Neal v.  McAninch, 115 S.                                            ___ ______     ________          Ct. 992, 994  (1995) (to find harmlessness, reviewing  court must                                         -26-          conclude  that error more  likely than not  had no effect  on the          verdict).  Our review of the evidence indicates that, even if the          jury  had  assigned  no  weight  to  Fleischer's  testimony,  the          substance  of the  case against  Gilday would  have  remained the          same.   The  other evidence,  moreover,  was considerable.    Cf.                                                                        ___          Giglio, 405  U.S. at  154-55 (government's case  depended "almost          ______          entirely"  on  witness  whose   deal  with  prosecution  was  not          disclosed).               Indeed, Fleischer was a rebuttal witness, and as such simply          repeated the  earlier testimony of another  witness, Valeri, that          Gilday  had admitted to being  the shooter.   Valeri had reported          that Gilday was at the scene of the robbery in the car from which          the shots  were fired,  that Gilday  possessed the murder  weapon          after the crime, and that  Gilday said that he had waited  at the          scene of  the robbery until  the police officers  arrived because          "he had always wanted to shoot a police officer."               Three  eyewitnesses  testified, all  disinterested outsiders          who  were in  close proximity  to the  shooting.   The strongest,          Becker,  made  an  in-court  identification of  Gilday,  who  was          sitting  unobtrusively  with  spectators.   He  also  had  chosen          Gilday's  picture from a spread  of photographs shown  to him two          months after the shooting.   He further recalled at  trial, after          having stood up to make his identification, that the gunman, like          himself (and like  Gilday), had a little bald spot  on the top of          his head.   Cross-examination elicited that  the only description          Becker had  given police at the time of the shooting was that the                                         -27-          gunman was a white  male and that  he probably had seen  Gilday's          picture in  the media;  while acknowledging the  possibility that          this influenced  him, he  insisted that his  identifications were          based solely on his observations at the time of the crime.               A second witness, Goddard, described  the gunman as a  white          male  in  his  late   thirties,  clean-shaven,  with  a  receding          hairline, hair combed straight  back, wearing an olive  jacket --          all consistent with Gilday's  appearance.  True, he did  not pick          out Gilday's picture  from spreads shown  him on the  day of  the          shooting,  or two weeks later.  On  the first occasion, he saw "a          couple of pictures that resembled the man that I saw" but did not          pick them out  because he was not sure.   On the second occasion,          he  had seen Gilday's picture in the  papers and recognized it in          the spread.               The  third witness,  Gaudette,  described the  gunman as  of          medium build, similar to himself, with  weight around 185 pounds,          height five feet six or seven inches, in his  thirties, with dark          hair.  He picked Gilday's picture out of a photospread two months          after  the  shooting.   Then,  in  the  courtroom,  he failed  to          identify  Gilday, who  was not  wearing glasses  at the  start of          Gaudette'sperusal butput themon asGaudette continuedhis scrutiny.               On the  whole, we  consider this eyewitness  evidence, while          not without  weaknesses, impressive.   Further, the  evidence was          overwhelming  that Gilday was involved in the  crime.  In his own          testimony, he  acknowledged that he had  bought the semiautomatic          weapon and one of the cars that  had been used in the robbery and                                         -28-          murder, that  he had  stolen a license  plate and  affixed it  to          another  car used by  the robbers, and  that he took  some of the          holdup money  from  an  apartment  where Bond,  Saxe,  Power  and          Fleischer  were  gathered after  the  crime.    In  addition,  an          acquaintance of  the group, McGrory, testified  to a conversation          with Gilday  after the robbery about McGrory's having figured out          who was responsible for  the crime.  McGrory stated  that, during          the exchange, Gilday  first claimed that he had not  heard that a          police officer had been critically wounded, but later said "I did          it" and warned  that even if Gilday were imprisoned on death row,          he would take care of McGrory if he said anything.               While neither  the activities to which  Gilday confessed nor          McGrory's  testimony  require  a  finding  that  Gilday  was  the          gunman14 --  or even at  the scene  of the robbery  -- the  other          evidence provided a strong  link between his confessed complicity          in  the  crime  and the  alleged  role  of  gunman.   Fleischer's          testimony on rebuttal corroborated  the government's case, but it          shed no new or different light on it.               Moreover, some  impeachment of Fleischer did take  place.  A                         ____          former  FBI   agent,  George   Bernard   Kennedy,  testified   in          surrebuttal that Fleischer  had told  him in the  spring of  1971          that Gilday had not shot the police officer.  In  addition, as we          have noted, Fleischer was implicated  by defense witness Bond  as          the gunman;  that testimony made  transparent a motive  to accuse                                        ____________________               14 Gilday  maintains that none of  this testimony explicitly          refers   to  his   being   the  gunman,   but  simply   indicates          participation generally in the group's pursuits.                                          -29-          someone  else.     Thus,  while  the   challenge  to  Fleischer's          credibility  would  have been  measurably  more  potent with  the          withheld information, he was already a sullied witness.               In  sum, we are persuaded  that suppression of the Fleischer          agreement did  not  have a  substantial and  injurious effect  or          influence in determining the  jury's verdict.  The nature  of the          other evidence makes it unlikely that even a stinging impeachment          of Fleischer based  on the  undisclosed deal would  have had  the          requisite impact  on the jury's  deliberations.15  The  error was          therefore harmless.16               B. Eyewitness and other statements.                    _______________________________               Petitioner also claims error  in the government's failure to          disclose   exculpatory  evidence  from  three  witnesses:  (1)  a          statement by Michael Finn shortly after the  crime that described          the gunman in terms inconsistent with Gilday's appearance; (2) an          FBI  report  that Bernard  Becker, who  identified Gilday  as the          gunman at trial, stated three weeks after the crime that he could          not  provide a  description  of the  gunman;  (3) a  report  that          Fleischer initially denied knowing Gilday when asked by the  FBI.                                        ____________________               15 Contrary  to petitioner's  suggestion, the references  to          Fleischer  in   the   prosecutor's  closing   argument  did   not          particularly  highlight his  testimony.    Indeed, Fleischer  was          significant  in the  prosecution's summary  of the  case in  part          because defense witness Bond indicated that he was the gunman.                16  Petitioner  urges  that   this  is  the  "unusual  case"          identified in Brecht as perhaps  warranting habeas relief even if                        ______          the  asserted error  did not  substantially influence  the jury's          verdict.  See  113 S. Ct. at 1722 n.9.   We do not find that "the                    ___          integrity of the proceeding"  was so infected here as  to justify          such an extraordinary remedy.                                         -30-          To  determine  the materiality  of  these  pieces of  undisclosed          evidence,  we  apply  the  Bagley  test:  whether  there  is  "`a                                     ______          reasonable probability  that, had the evidence  been disclosed to          the  defense,  the result  of  the  proceeding  would  have  been          different,'" Kyles, 63 U.S.L.W. at 4307 (quoting Bagley, 473 U.S.                       _____                               ______          at 682).               Only  two   merit  more  than  passing  discussion.17  While          recognizing that  Finn's first  description of the  gunman should          have been viewed by the prosecutor  at the outset of the trial as          significant  exculpatory  evidence  subject  to  disclosure,  the          vantage  of hindsight leads us to conclude that the likely impact          of suppressing  it turned out  to be slight.   At the  hearing on          petitioner's  second motion for new  trial, which was premised in          part on this asserted  Brady violation, Finn, who was  not called                                 _____          as  a witness  at  trial, gave  a  different description  of  the          shooter -- one consistent  with Gilday's appearance.   The motion          judge  found  that   Finn,  who  had  a  reputation   for  mental          instability  and  alcoholism,  would  have  been   an  unreliable          witness.   Gilday I, 367 Mass.  at 487-89, 327 N.E.2d  at 859-60.                     ________          The  district court credited this  finding, 866 F.  Supp. at 636,          and  we are  likewise inclined  to do  so.   Based on  the record          before  us,  it seems  most likely  that,  had Finn  testified at          trial, his impact on the jury would have been at best  equivocal.                                        ____________________               17 The  failure to  disclose Fleischer's false  statement is          measurably  less   significant  to   his  credibility   than  the          cooperation  agreement,  and  our  earlier  discussion concerning          Fleischer's testimony effectively resolves this issue as well.                                         -31-          We certainly cannot  say that there  is a reasonable  probability          that  his testimony would have materially changed the face of the          trial.               As  for Becker, while we  appreciate that statements made in          close  temporal  proximity  to   the  crime  are  significant  in          evaluating an eyewitness's reliability, see Kyles, 63 U.S.L.W. at                                                  ___ _____          4310 (citing Manson v.  Brathwaite, 432 U.S. 98, 114  (1977)), we                       ______     __________          think it  only of  modest importance that  his identification  of          petitioner  was preceded  by an  earlier inability  to provide  a          description.     The  fact  that  someone   cannot  articulate  a          description of  an individual does not  necessarily undermine the          accuracy  of  a  later  identification; the  challenge  would  be          substantially more potent had Becker given an earlier description          inconsistent with his trial testimony.               Moreover, Becker's testimony  at trial essentially reflected          the fact that he was unable to give a description at  the time of          crime.  He stated that  he told the police only that  the shooter          was "[a] white male," acknowledging  that he provided "[n]o other          distinguishing   characteristics  or  descriptions."    In  these          circumstances,  we think the withheld FBI report would have had a          minimal effect upon the jury.               C. Cumulative Impact.                  _________________               In its  recent decision  in Kyles  v.  Whitley, the  Supreme                                           _____      _______          Court  stressed  the  importance  of  considering the  cumulative          effect  of all suppressed evidence in determining whether a Brady                                                                      _____                                         -32-          violation  has occurred.    63  U.S.L.W.  at  4308.    The  Court          concluded  that,  had  the  prosecution  disclosed  to  competent          counsel  the substantial  amount  of evidence  at issue  there, a          different  result  would  have  been  reasonably probable;18  the          jury  would have been  considerably more likely  to have accepted          the defendant's theory that  he was framed by a  police informant          who  was actually  the murderer.   See id.  at 4306.19   Not only                                             ___ ___          would  disclosure  have  severely  discredited two  of  the  four          eyewitnesses who were "`the essence of the State's case,'" id. at                                                                     ___          4310 (quoting district court), but it also would have "entitled a          jury to  find that . .  . the most damning  physical evidence was          subject to suspicion, that the investigation that produced it was          insufficiently probing, and that the principal police witness was          insufficiently informed or candid."  Id. at 4313.                                               ___               The circumstances  here are  markedly different.   While the          various  pieces  of suppressed  evidence  in  Kyles fit  together                                                        _____                                        ____________________               18 Indeed, a  mistrial was declared in the defendant's first          trial because the jury  became deadlocked on the issue  of guilt.          63 U.S.L.W. at 4306.               19  The  undisclosed  evidence  in Kyles  consisted  of  six                                                  _____          contemporaneous    eyewitness    statements   with    significant          inconsistencies; records  of the informant's initial  call to the          police stating that  he had bought a  car like the  victim's from          the  defendant on  the day  of the  murder; a  tape recording  of          another conversation  between the  informant and  police officers          further incriminating the defendant;  a signed statement from the          informant  repeating matters  from the  tape-recorded discussion,          although  with inconsistencies;  a computer print-out  of license          numbers of  cars parked on the  night of the crime  at the market          where the murder occurred, which did not list the defendant's car          license number;  an internal memorandum directing  seizure of the          defendant's trash after the  informant had suggested the victim's          purse might be found there, and evidence linking the informant to          other crimes at the market and to an unrelated murder.                                         -33-          factually to make the defense theory of the case more likely, the          evidence  here taken cumulatively sheds no new light on the crime          or petitioner's involvement in it.  The suppressed  material went          primarily  to the credibility of  witnesses, one of whom (Becker)          acknowledged at  trial information equivalent  to the undisclosed          evidence.  The only significantly potent undisclosed material was          the  Fleischer agreement;20  we are  sufficiently  persuaded that          none of the other evidence adds to its effect in such a way as to          have  influenced the jury's judgment.  Here, unlike in Kyles, the                                                                 _____          whole of the challenge  to the prosecution's case was  no greater          than the sum  of its individual parts.   Accordingly, we find  no          remediable Brady violation.                     _____                                 IV. Sandstrom Claims                                     ________________               Petitioner argues that the trial judge's charge  to the jury          included five mandatory presumptions  of intent that violated his          due process rights  as established in  Sandstrom v. Montana,  442                                                 _________    _______          U.S.   510,  520-24  (1979).21     In  a   related  argument,  he          challenges a portion of the instruction foreclosing the jury from          considering    an   intoxication   defense,   arguing   that   it          unconstitutionally relieved  the Commonwealth  of  its burden  of                                        ____________________               20 Although we found  error in the prosecution's suppression          of the  Fleischer agreement,  our conclusion  that the error  was          harmless effectively is equivalent to  our finding that the other          evidence  withheld   did  not  satisfy  the   Bagley  materiality                                                        ______          standard.  We therefore reconsider the agreement in assessing the          cumulative effect of the government's non-disclosures.               21  Sandstrom  held that  a  jury  instruction containing  a                   _________          presumption  that has the effect of  relieving the prosecution of          the burden of proof on an element of a charged crime violates the          Due Process Clause.  442 U.S. at 520-24.                                         -34-          proof  on  the  issue of  intent  as  recognized  by the  Supreme          Judicial Court in  a series of cases  beginning with Commonwealth                                                               ____________          v.  Henson,  394  Mass.  584,  592-93,  476  N.E.2d  947,  953-54              ______          (1985).22               The  SJC reviewed the  instructions on  intent only  as they          related  to the issue of intoxication.   The court ruled that the          intoxication portion of the charge correctly reflected the law at          the time of  petitioner's trial, and that he was  not entitled to          retroactive application of a change in the law that was announced          thirteen years  later.  See Commonwealth v.  Gilday (Gilday III),                                  ___ ____________     ______  __________          409 Mass.  45, 47, 564 N.E.2d  577, 579 (1991).   The court found          that  no other  assertion of  instructional error,  including the          more general Sandstrom  claims, had been  raised in the  relevant                       _________          (fourth)  motion  for new  trial.   It  therefore held  that such          additional claims were  waived.  Id., 409 Mass. at  46 & n.3, 564                                           ___          N.E.2d at 578 & n.3.               The   district   court  did   not  explicitly   address  the          intoxication issue.   Petitioner raises  it on appeal  in limited          fashion, recognizing that we  previously have declined to disturb          the   SJC's  determination   that  Henson's  protection   of  the                                             ______          intoxication defense is not retroactive.  See Robinson  v. Ponte,                                                    ___ ________     _____                                        ____________________               22  The court stated in Henson  that "where proof of a crime                                       ______          requires  proof  of  a  specific  criminal  intent and  there  is          evidence  tending  to  show  that  the  defendant  was  under the          influence of alcohol or some other drug at the time of the crime,          the judge should instruct  the jury, if requested, that  they may          consider evidence of the defendant's intoxication  at the time of          the crime  in deciding whether  the Commonwealth has  proved that          specific  intent beyond a reasonable  doubt."  394  Mass. at 593,          476 N.E.2d at 954.                                         -35-          933 F.2d 101, 103-05 (1st Cir. 1991).  We decline to revisit that          precedent here, and the claim is therefore unavailing.23               As for the general Sandstrom claims, the district court gave                                  _________          two  reasons  for rejecting  them.    First,  it  concluded  that          petitioner was not entitled to protection from the Sandstrom rule                                                             _________          because that  case was decided after his conviction became final,          and, under Teague  v. Lane,  489 U.S. 288  (1989), the  principle                     ______     ____          established  there was not  retroactive.  Second,  the court held          that the SJC's refusal  to consider the "non-intoxication claims"          based   on   petitioner's  procedural   default   constituted  an          independent  state law  ground for  rejecting those  claims, thus          barring  habeas review    unless the  petitioner can  show "cause          for",   and   "prejudice  from"   his   noncompliance  with   the          Commonwealth's procedures.  See Wainwright v. Sykes, 433 U.S. 72,                                      ___ __________    _____          86-87  (1977);  Ortiz  v. Dubois,  19  F.3d  708,  714 (1st  Cir.                          _____     ______          1994).24                                        ____________________               23  To the extent that petitioner seeks to raise the federal          constitutional claim  directly on  appeal, we decline  to address          the  issue.    His brief  contains  only  two  paragraphs on  the          intoxication  instruction,  primarily  directed  to  the  Supreme          Judicial Court's caselaw  and our decision in  Robinson v. Ponte.                                                         ________    _____          His reference to arguments raised in  the district court, without          elaboration, is  insufficient to warrant  our review.   See  Cray                                                                  ___  ____          Communications  v. Novatel Computer Systems, 33 F.3d 390, 396 n.6          ______________     ________________________          (4th Cir.  1994) (adopting  by reference  memoranda filed in  the          district  court is  a practice  "that has  been consistently  and          roundly  condemned by the  Courts of Appeals");  United States v.                                                           _____________          Bales,  813 F.2d 1289, 1297  (4th Cir. 1987)  (noting that "other          _____          courts have stated that  arguments incorporated by reference need          not be considered on appeal").               24 Petitioner has not  argued that there was "cause  for" or          "prejudice  from" his failure to comply with the procedural rule,          relying instead on the assertion that no default occurred.                                         -36-               We need not  delve into the  retroactivity issue because  we          agree  with   the  district   court's  judgment  that   the  non-          intoxication   Sandstrom   claims   are    procedurally   barred.                         _________          Petitioner's fourth motion  for new trial  and his memorandum  in          support  of  the motion  focused entirely  on  the effect  of the          intoxication instruction on  the jury's determination  of intent.          Although the memorandum cited to Sandstrom and related precedent,                                           _________          i.e., In re Winship, 397 U.S.  358 (1970) and Mullaney v. Wilbur,                _____________                           ________    ______          421 U.S. 684  (1975), it is apparent to us  that those cases were          invoked  in support  of the  intoxication argument  and not  as a          basis  for a  general  challenge to  the  presumptions on  intent          contained in the instruction.  In these circumstances,  we cannot          contradict  the   SJC's  determination  that,  as   a  matter  of          Massachusetts  law, the  motion  did not  preserve the  Sandstrom                                                                  _________          claims  for appeal.  See  Ortiz, 19 F.3d at 713  n.5 ("the law of                               ___  _____          Massachusetts is what the SJC says  it is").  Cf., e.g., Williams                                                        ___  ____  ________          v.  Lane,  826  F.2d  654,  660  (7th  Cir.  1987)  (state  court              ____          determination of  waiver does not preclude  federal habeas review          where record  shows that  petitioner fully complied  with state's          articulated procedural  rules).  Accordingly, we  do not consider          them.25                                        ____________________               25  We suspect,  however,  that even  if  considered on  the          merits,  the Sandstrom  claims  would be  deemed harmless  error.                       _________          Petitioner's defense was  not that he  lacked the requisite  mens          rea to be found guilty on the crimes charged, but that he was not          the  gunman who shot Officer  Schroeder.  See  Bembury v. Butler,                                                    ___  _______    ______          968 F.2d  1399, 1402-1404  (1st Cir. 1992)  (instruction creating          mandatory presumption  of intent  was harmless where  question of          intent  never raised:  "[Defendant]  merely presented  an  alibi,          claiming he was not the culprit.")                                         -37-                                V. Pretrial Publicity                                   __________________               Petitioner contends that he  was denied his right to  a fair          trial  because  of  extensive  pretrial  publicity,  specifically          claiming  that the trial judge erred in denying his motion for an          additional  continuance of  the trial  date and  for a  change of          venue.26               Essentially  for   the  reasons  expressed  by  the  Supreme          Judicial  Court and  the district  court,  we find  no reversible          error in the trial judge's handling of the case in  this respect.          See Gilday I, 367 Mass. at  491-93, 327 N.E.2d at 861-62;  Gilday          ___ ________                                               ______          v. Callahan, 866 F. Supp. at 623-24.             ________                                    VI. Conclusion                                        __________               We have examined  with care each  of petitioner's claims  of          constitutional  error.   Having found  that the  only meritorious          claim  --  the  Brady  violation  in  suppressing  the  Fleischer                          _____          agreement -- was harmless, we affirm the judgment of the district          court denying petitioner's writ of habeas corpus.               Affirmed.               ________                                        ____________________               26  The trial  originally  was scheduled  to start  in April          1971, about six months  after the crime, but the  court granted a          continuance and it did not begin until February 1972.                                          -38-
