
USCA1 Opinion

	




                                [Not for Publication]                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 97-1239                                    UNITED STATES,                                      Appellee,                                          v.                                 ALFRED W. TRENKLER,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Morris  M. Goldings, with whom Amy J. Axelrod,  R. David Beck, and            ___________________            ______________   _____________        Mahoney, Hawkes & Goldings, LLP, were on brief for appellant.        _______________________________            Kevin P.  McGrath, Assistant  United  States  Attorney, with  whom            _________________        Donald K. Stern, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                   January 6, 1998                                 ____________________                      STAHL, Circuit  Judge.   Defendant-appellant Alfred                      STAHL, Circuit  Judge.                             ______________            W. Trenkler appeals district court orders denying his various            motions for a  new trial, for an inquiry  into possible juror            misconduct, and  for an evidentiary  hearing on the  basis of            newly acquired evidence.  We conclude that the district court            properly denied the motions, and, therefore, we affirm.                                          I.                                          I.                                          __                             Facts and Procedural History                             Facts and Procedural History                             ____________________________                      On November 29,  1993, defendant  was convicted  of            conspiracy  under 18  U.S.C.     371,  receipt  of  explosive            materials under 18  U.S.C.   844(d), and  attempted malicious            destruction  of property  by means of  an explosive  under 18            U.S.C.   844(i), for  his role in creating  a pipe bomb  that            resulted in  the death of  one Boston bomb squad  officer and            the serious injury of another officer.                      In his appeal to this court, we held that the trial            court  had  erred  by admitting  evidence  from  a  Bureau of            Alcohol, Tobacco and  Firearms ("ATF") computerized  database            of  bombings ("EXIS"), which the government had introduced at            trial under the catch-all exception to the hearsay rule, Fed.            R. Evid. 803(24), to establish the identity of the bombmaker.            See  United States  v. Trenkler,  61  F.3d 45,  59 (1st  Cir.            ___  _____________     ________            1995).  We reasoned that the government had  not convincingly            demonstrated  the reliability of  the EXIS database evidence.            See  id.   We also  concluded,  however, that  the error  was            ___  ___                                         -2-                                          2            harmless  beyond a reasonable doubt, principally on the basis            that  a government witness and convicted felon, William David            Lindholm, had  testified that  defendant had  built the  pipe            bomb  at issue, but also on the basis that the government had            provided ample evidence, including out of court statements by            defendant's  alleged  co-conspirator,  Thomas  Shay, Jr.,  to            establish a relationship between defendant and Shay  Jr.  Id.                                                                      ___            at 60-61.                      Developments subsequent to defendant's appeal bring            him before us  once again.  First, defendant  learned from an            article in the Boston Globe  on August 1, 1995, that Lindholm            had been released from prison on September 30, 1994,  thirty-            seven months into his ninety-seven month sentence.  On August            8, 1995, defendant  filed with this court a  motion to remand            for  an  inquiry  into a  possible  undisclosed  deal between            Lindholm and the  government.   We denied  the motion because            the district court was the proper forum for the request.                      Second, on June  22, 1995,  we held  in Shay  Jr.'s            appeal  of his conviction arising from the same incident that            the district  court had erred  by excluding testimony  by Dr.            Robert Phillips that Shay Jr.'s incriminating statements were            unreliable because Shay Jr. suffered from a recognized mental            disorder known as  "pseudologia fantastica."  On  remand, the            district  court held  that the  doctor's  testimony was  both            reliable  and relevant and was, accordingly, admissible as an                                         -3-                                          3            "alternative,  non-incriminating explanation  for Shay  Jr.'s            seemingly  incriminating  statements."   The results  of Shay            Jr.'s appeal are  relevant to defendant Trenkler  because, on            the basis of  the district court's original  exclusion of the            statements in  Shay Jr.'s  trial,  defendant's trial  counsel            concluded that  it would be  futile to seek to  introduce the            doctor's  testimony in  defendant's trial  and  thus did  not            attempt to do so.                      Finally,  on  October 15,  1996,  defendant learned            that a woman  named Donna Shea had  notified the ATF  that an            alternate  juror  at  his  trial,  Ramona  Walsh,  had  known            defendant.   During  voir  dire  Walsh  had not  admitted  to                                 ____  ____            knowing defendant.  The government initiated an investigation            into  Shea's  allegations,  pursuant to  which  an  ATF agent            interviewed both Shea  and a third  party, Nancy Tolmie  (now            Nancy   Russell).    Shea  claimed  in  her  interviews  that            alternate  juror Walsh  had  been present  at  three or  four            cocaine sales that Shea had made to Tolmie twelve years prior            to the Trenkler  trial.  Further, she claimed  that defendant            may have been present at those sales.  Tolmie admitted in her            interview that she had purchased cocaine from Shea during the            time period in  question, but she denied that  Walsh had ever            accompanied  her on  those occasions.   In  an ATF  Report of            Investigation,   the   government   concluded   that   Shea's            allegations were groundless.                                         -4-                                          4                      Subsequently,  on  the  basis of  Lindholm's  early            release from prison,  and this court's evidentiary  ruling in            Shay Jr.'s appeal on the testimony of Dr. Phillips, defendant            filed in  the district court  on December 22, 1995,  a motion            for  a  new  trial  pursuant  to Fed.  R.  Crim.  P.  33  or,            alternatively, an evidentiary hearing based on newly acquired            evidence.   While that  motion was  pending, on  November 19,            1996, Trenkler filed a motion for inquiry into possible juror            misconduct  and  for a  new  trial  on  the basis  of  Shea's            allegations regarding Walsh.   The district court  denied the            motions, respectively, on February 4, 1997, and May 22, 1997.            This appeal followed.                                           II.                                         II.                                         ___                                      Discussion                                      Discussion                                      __________            A.  Juror Misconduct            ____________________                      Defendant  first  argues  that the  district  court            abused its  discretion in denying his motion for inquiry into            possible  juror  misconduct and  for a  new trial  because it            failed  to  conduct  an  independent  inquiry  regarding  the            misconduct allegation.   Specifically,  he contends that  the            court's  failure to  conduct an  inquiry and  to grant  a new            trial based on  the allegations of juror  misconduct violated            his  Sixth Amendment  right to  an impartial  jury.   He also            contends  that  the  court  improperly  based   its  findings                                         -5-                                          5            entirely on statements obtained for the government by the ATF            agent.                      We review a district court's determination  that no            juror misconduct occurred  for a patent abuse  of discretion.            See United States  v. Hunnewell, 891 F.2d 955,  961 (1st Cir.            ___ _____________     _________            1989).  We likewise  review the denial of a motion  for a new            trial for manifest abuse of discretion.  See United States v.                                                     ___ _____________            Tibolt, 72 F.3d 965, 972 (1st Cir. 1995).            ______                      As an initial  matter, we note  that the court  was            justified in  relying  on  the  report  of  the  ATF  agent's            interviews with Shea  and Tolmie.  As  the government rightly            points  out,  it was  the  government who  first  brought the            charge of juror  misconduct to the attention  of the district            court,  and defendant  failed to  present  any evidence  that            would place into question the accuracy of the report.                      We next turn  to the court's determinations.   When            there has been a  "nonfrivolous suggestion" of juror bias  or            misconduct, "the  district court must  undertake an  adequate            inquiry  to determine  whether the alleged  incident occurred            and if  so, whether  it was prejudicial."   United  States v.                                                        ______________            Gaston-Brito,  64 F.3d  11,  12  (1st  Cir.  1995)  (internal            ____________            citations  omitted).     Although   this  threshold   is  not            particularly high, see Neron v. Tierney, 841 F.2d  1197, 1202                               ___ _____    _______            n.6 (1st Cir.  1988), the district court shall not "intru[de]            into  the  sphere  of  jury privacy,"  id.  at  1205, without                                                   ___                                         -6-                                          6            evidence  "sufficient  to   undergird  genuine  doubts  about            impartiality," id. at 1202.                           ___                      Defendant has presented  no such evidence.   As the            district court observed,  Shea did not claim  that Walsh knew            anything about defendant  or had ever spoken to  him, nor had            she alleged  any other facts  that would lead one  to believe            that  Walsh would  recognize  defendant  twelve years  later.            Moreover, not  only did Tolmie contradict  Shea's allegations            but, in addition, Shea herself contradicted them by admitting            that defendant did not know "or have any dealings with" Walsh            during  the relevant  time period.    On the  basis of  these            circumstances alone we find that the district court committed            no   patent  abuse  of  discretion  in  finding  that  Shea's            allegations  of   misconduct  by  an  alternate   juror  were            conjectural and did  not trigger a duty to  investigate.  The            court therefore committed no abuse of discretion in denying a            new trial.            B.  Newly Discovered Evidence            _____________________________                      Defendant's  second argument  is that  the district            court abused its  discretion in denying his motion  for a new            trial  or, alternatively,  an  evidentiary  hearing based  on            newly  acquired  evidence,   because  it  used  inappropriate            standards  in  considering  the  newly  discovered   evidence            regarding Lindholm,  and  because it  improperly declined  to                                         -7-                                          7            recognize Dr. Phillips's testimony as "unavailable" to him at            the time of his trial.                        We  begin with  the  Lindholm  issue.    In  normal            circumstances,  a  motion for  a  new  trial based  on  newly            discovered  evidence  must  show that  the  evidence  was (1)            unknown or unavailable at the  time of trial, (2) despite due            diligence, (3)  material,  and (4)  likely  to result  in  an            acquittal upon retrial.  See  United States v. Ortiz, 23 F.3d                                     ___  _____________    _____            21, 27 (1st Cir. 1994).  A less stringent standard  of review            applies,   however,  when  the   new  evidence  was   in  the            government's  control and  its  disclosure was  withheld, and            when there is an allegation that a witness committed perjury.            In  particular, in  situations in  which  the government  has            withheld evidence, a court should  grant a new trial if there            is  a "reasonable probability"  that the evidence  would have            changed  the  result.   Tibolt,  72  F.3d  at 971.    Perjury                                    ______            allegations  should prompt  a  new trial  when  the court  is            "reasonably-well satisfied" that the testimony was false  and            that,  without  the  false testimony,  the  jury  "might have            reached a  different result."   United States v.  Wright, 625                                            _____________     ______            F.2d  1017, 1020 (1st Cir. 1980) (internal citation omitted).                      In this case, there is no basis for applying a more            lenient standard.   The district court rightly  observed that            nothing  in  the  record  indicates  that  Lindholm  perjured                                         -8-                                          8            himself or that his early  release from prison was the result            of a deal made  prior to the trial that the government failed            to  disclose.  Rather,  all evidence, including  an affidavit            from  an  assistant  U.S. Attorney  which  defendant  has not            challenged,  unequivocally  leads  to  the  conclusion   that            Lindholm's early  release arrangement was made several months            after the  Trenkler trial.   The district court's use  of the            more   stringent   standard    was   therefore   appropriate.            Furthermore,   that  there  is  no  evidence  of  perjury  or            nondisclosure  by  itself   suffices  to  defeat  defendant's            argument: there  is simply  no basis,  under the  first Ortiz                                                                    _____            factor, on which  to conclude that the "new  evidence" or any            agreement associated with it even  existed at the time of the            trial.  Accordingly,  our independent review of  the evidence            convinces us  that  the  district court  did  not  abuse  its            discretion in denying an evidentiary hearing and  a new trial            on this issue.                      Defendant's  next  claim  is  that  Dr.  Phillips's            testimony  regarding  Shay  Jr.'s  condition  of  pseudologia            fantastica  constitutes   newly  discovered  evidence.     In            particular, defendant argues that his trial counsel chose not            to  offer  the  testimony  because  the  district  court  had            excluded it at Shay  Jr.'s trial and  that our remand of  the            testimony issue  in  that  case to  the  district  court  for            further consideration rendered the testimony newly discovered                                         -9-                                          9            evidence.  We, like the district court, reject this argument.                                   Under no  interpretation  of the  standard was  Dr.            Phillips's  testimony unknown or  unavailable at the  time of            defendant's  trial.   That the  district  court excluded  the            testimony  in Shay  Jr.'s trial  and  that defendant's  trial            counsel believed it would be  futile to offer it in  light of            the prior trial do not excuse him from making the offer.  The            decision of defendant's  trial counsel  in this  case not  to            offer  the testimony  may have  been  part of  his reasonable            trial strategy: although  some of Shay Jr.'s  statements were            not favorable to  Trenkler, some of his  admissions supported            Trenkler's  defense.  Thus, trial counsel may have determined            that  it would  be  unwise to  risk  discrediting Shay  Jr.'s            admissions,  even for the sake of discrediting his statements            about the existence of a  co-conspiracy between Shay Jr.  and            defendant.   In any event,  the district court did  not abuse            its  discretion in  concluding  that the  proffered testimony            failed  to meet  the  first  prong of  the  Ortiz test,  thus                                                        _____            denying defendant's motion on this issue.                      In  sum, the  district  court  did  not  abuse  its            discretion with regard to any of the issues in this appeal.                        Affirmed.                      Affirmed                      ________                                         -10-                                          10
