United States v. Anthony M. Shea, United States of America v. Michael K. O'HallOran United States of America v. Patrick J. McGonagle United States of America v. Stephen G. Burke, United States of America v. Matthew McDonald

Citations: 211 F.3d 658; 53 Fed. R. Serv. 1353; 2000 U.S. App. LEXIS 8770Docket: 98-1568

Court: Court of Appeals for the First Circuit; May 2, 2000; Federal Appellate Court

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In the case United States v. Shea et al., the First Circuit Court of Appeals addressed appeals from six defendants convicted of federal offenses linked to a series of bank and armored car robberies occurring from 1990 to 1996. The trial, which began on September 16, 1997, followed a superseding indictment from May 1, 1997. The defendants included Anthony Shea, Stephen Burke, Matthew McDonald, Patrick McGonagle, and Michael O'Halloran, with one defendant pleading guilty during the trial. 

The prosecution's case relied on extensive evidence, including over 150 witness testimonies and numerous exhibits, demonstrating that Shea, McDonald, and an accomplice initiated a series of bank robberies in 1990. By 1992, Burke and O'Halloran joined the group, which shifted its focus primarily to armored car robberies, particularly noted for a violent incident in Hudson, New Hampshire, in August 1994, where two armored car drivers were kidnapped and killed.

Key evidence against the defendants came from Steven Connolly, a former friend of some defendants, who testified about their criminal activities, techniques, and statements made by them. The government charged the defendants with specific armored car robberies in New Hampshire and used additional robberies as evidence to establish their involvement in a racketeering enterprise under the RICO statute, along with charges of conspiracy to commit robbery, carjacking, and various firearms offenses. Notable statutes cited included 18 U.S.C. §§ 371, 922(g)(1), 922(g)(3), 924(c), 1951, 1962(c), (d), 2113(d), and 2119.

About two months into the trial, the district court, with the government's consent, granted a judgment of acquittal on several counts and one racketeering act for certain defendants, as well as one racketeering act for all defendants. The remaining charges, minus certain acts with no evidence presented, were submitted to the jury under a redacted indictment with 14 counts. On December 22, 1997, the jury convicted all five defendants on all submitted charges except for McGonagle, who was acquitted of carjacking related to the Hudson robbery. All defendants were convicted of conspiracy to commit armed robberies and the Hudson robbery, while all except McGonagle were also convicted of operating a racketeering enterprise, engaging in a racketeering conspiracy, carjacking related to the Hudson robbery, and various firearms offenses. Shea, Burke, and O'Halloran faced additional convictions for the Seabrook armored car robbery.

On May 8, 1998, the court sentenced each defendant to life imprisonment, except McGonagle, who received a 360-month sentence. The defendants appealed, raising claims regarding the sufficiency of evidence for certain counts, pretrial and trial rulings, jury composition and instructions, and sentencing issues. Regarding sufficiency, individual defendants argued that the evidence was inadequate for a reasonable jury to convict and that their motions for acquittal should have been granted. The review standard is de novo, considering evidence in the light most favorable to the prosecution. The evidence was deemed sufficient for the contested counts, with some being overwhelming.

McGonagle did not contest the sufficiency of evidence for bank robbery and conspiracy to commit the Hudson robbery but argued against being linked to a broader conspiracy to commit armed robberies. Testimony indicated that Shea had identified him as a conspirator, and there was evidence linking him to a separate armored car robbery prior to the Hudson incident. McDonald, along with O'Halloran and Burke, argued that the government did not prove the existence of a single racketeering enterprise or conspiracy, suggesting only smaller, changing conspiracies existed. Courts assess overarching conspiracies based on common goals, overlapping participants, and interdependence, allowing for a general scheme despite variations in personnel and roles over time.

Evidence established a single overarching conspiracy involving multiple individuals, including Shea, Burke, McDonald, and O'Halloran, with Shea and Burke committing the most crimes. McDonald and O'Halloran were both significantly involved in the conspiracy, which included racketeering and armed robbery, despite interruptions in McDonald's participation due to imprisonment and O'Halloran's late entry. The court allowed the jury to consider separate counts for a RICO enterprise and broader conspiracy based on the continuity of aim, operations, and personnel.

McDonald faced three gun-related charges from the Hudson armored car robbery, arguing insufficient evidence. However, constructive possession sufficed, supported by testimonies including McDonald indicating his intent to participate and displaying a handgun prior to the robbery. O'Halloran similarly claimed insufficient evidence for his firearm charges in both the Hudson and Seabrook robberies, but witness testimonies confirmed his possession of weapons during those incidents, validating the jury's consideration of the firearm counts.

Shea objected to the admission of evidence from a 1990 search of his residence, which yielded weapons and other items, arguing the search warrant lacked sufficient basis. The district court invoked the good faith exception to the exclusionary rule, deeming reliance on the warrant reasonable despite any defects, and the evidentiary basis provided by a reliable informant was deemed sufficient. Shea contested the affidavit’s lack of detailed circumstances regarding the informant's observations and the absence of explicit confirmation of his residency at the searched address.

The informant's reliability was established through a history of prior assistance, supporting the claim of having seen a shotgun in Shea's apartment on three occasions. Although the affidavit lacks explicit details on how the informant knew Shea resided at the apartment, this omission is considered a minor error, as the informant's observations provide a sufficiently small gap in evidence to apply the Leon standard.

Shea contests the use of evidence from a vehicle search conducted during an unrelated attempted bank robbery in Wakefield, Massachusetts, which included weapons and paraphernalia. He argues that this evidence, along with testimony linking him to the Wakefield incident, amounted to a retrial for that crime, infringing on his constitutional rights under the Double Jeopardy Clause. However, evidence of other crimes relevant to the charged offenses is permissible and not subject to double jeopardy claims. The seized weapons were directly tied to racketeering and conspiracy charges, as they were previously used in another bank robbery, a predicate act for the current charges.

The government’s rationale for introducing other evidence from Shea's vehicle, such as a walkie-talkie and police scanners, lacks clarity, but Shea did not adequately raise a relevance objection at trial. Even if this evidence was improperly admitted, it was deemed harmless given the substantial evidence against him.

References to Shea's involvement in the Wakefield robbery were brief and primarily introduced by co-defendants to support their defense, and the district court acted within its discretion by not granting a mistrial based on these fleeting mentions. Additionally, Shea claims that incriminating statements made to a fellow inmate, who was a government informant, should have been suppressed, arguing this violated his Sixth Amendment right to counsel since he was represented in the Wakefield case.

At the time statements were obtained from Shea, he had not yet been charged with the Hudson robbery, and his right to counsel had not 'attached,' as established in relevant case law (McNeil v. Wisconsin; United States v. LaBare). This position effectively counters claims regarding the right to counsel, and there is no indication from the Supreme Court of an intention to expand this right.

McDonald contests the district court's decision to not suppress DNA evidence obtained from samples collected under a warrant, asserting that the supporting affidavit failed to establish probable cause due to material misrepresentations. Despite these allegations, the court found sufficient evidence in the warrant to support probable cause independent of the contested fiber match evidence.

Burke, joined by McDonald, Shea, and O'Halloran, argues that the district court improperly allowed expert testimony from Dr. Harold Deadman, who linked DNA from Burke and McDonald to evidence from various crime scenes. They claim that Deadman's failure to acknowledge a faint allele in a sweat sample undermined his credibility. The district court conducted a thorough Daubert hearing and determined that any methodological flaws in Deadman’s testimony affected weight, not admissibility. This approach aligns with prevailing circuit interpretations that allow for challenges to the evidence through cross-examination and contrary evidence rather than outright exclusion.

Lastly, there is a dispute regarding a latent thumbprint attributed to Burke that was found on a truck associated with the Hudson incident. Burke contended that the print was improperly attributed as it was concealed during initial inspections, leading him to argue that the government's return of the truck hindered his ability to prove his assertion.

Burke's claim of spoliation regarding the return of a truck is dismissed, as the government provided explanations for the delay and return, lacking any indication of bad faith, which is essential for a spoliation claim. While extraordinary cases may warrant remedies for lost evidence, typical police procedures do not mandate the preservation of crime scenes from which prints are lifted, and Burke had alternative means to present his defense. 

During the trial, hearsay evidence was introduced through statements made by co-defendants, which were admissible as admissions by the makers but constituted hearsay for others unless they fell under co-conspirator exceptions or statements against penal interest. Only Shea contested the admissibility of certain statements, arguing they did not advance the conspiracy. However, the district court found these statements likely made in furtherance of the conspiracy, thus not committing clear error.

Statements admitted against penal interest were also upheld by the district court, aligning with established precedent. The Supreme Court's decision in Lilly v. Virginia, which addressed hearsay statements made under police questioning, was considered but deemed inapplicable to this case as the statements at issue were made to friends, not police, and did not involve blame shifting. Furthermore, the district court's admission of these statements was supported by their trustworthiness, as required by precedent, indicating that even if Lilly's implications were broader than interpreted, they would not alter the outcome of this case.

Four defendants argue that the jury-selection process was flawed due to the district court's failure to timely empty and refill the master jury wheel, as mandated by the Jury Selection and Service Act of 1968. This Act requires that the wheel be emptied and refilled every four years to ensure juries represent a fair cross-section of the community based on recent data. In New Hampshire, the jury selection plan stipulates that names must be collected every four years from voter registration and driver license records, with the refilling occurring within nine months after a general election.

The key timeline includes the compilation of a list on June 16, 1993, its implementation on August 1, 1993, and its use for mailing juror summonses on July 24, 1997. The defendants claim the list was over four years old, violating the statute. However, the district court interpreted the statute to mean that the names had not been used for more than four years, as they were only utilized from August 1, 1993, to July 24, 1997. While the district court's reading is technically correct, it raises concerns about the freshness of the data, which was based on the November 1992 election lists. The New Hampshire plan addresses this concern by allowing reasonable delays in data collection and insertion into the wheel.

Additionally, the defendants contend that the use of outdated data compromised the randomness of juror selection, potentially underrepresenting younger jurors and recent transplants to New Hampshire. However, the Supreme Court has previously dismissed similar claims regarding the representation of young individuals in jury pools. 

Another objection raised by Shea and the other defendants pertains to a juror who expressed fear of them during voir dire. The decision to dismiss a juror for cause is typically a matter of the district judge's discretion. Upon reviewing the voir dire transcripts, it was determined that the district court did not abuse its discretion in retaining the juror in question.

Defendants' assertion that district court personnel acted beyond their authority by dismissing potential jurors acquainted with counsel is unfounded; such delegation is acceptable as long as the court maintains general oversight, as supported by precedent. The trial judge approved these dismissals, indicating no violation of the Act. Regarding the prosecutor's opening statement, the district judge noted that the emotional description of the Hudson robbery and murder lacked clarity, potentially misleading the jury about the nature of the evidence versus personal belief. Although the judge deemed the prosecutor's conduct not willful, they issued strong cautionary instructions instead of granting a mistrial, which the appellate court found justified based on the judge's discretion and assessment of jury impact.

During the trial, defendants Burke, O'Halloran, and McDonald sought to cross-examine witnesses to argue that Shea acted independently in robberies, suggesting multiple conspiracies rather than a single overarching conspiracy. The district court denied their request to introduce evidence of Shea's prior conviction for the Wakefield robbery, viewing it as prejudicial to Shea and minimally relevant to the defendants' case. On appeal, the defendants claimed undue restriction on their cross-examination rights and requested a severance from Shea, which the government contested, arguing that the defendants had waived their claims by not pressing the multiple conspiracy argument earlier. The appellate court acknowledged some relevance in showing Shea's separate conviction but noted it was marginal to the defendants' defense and highly prejudicial to Shea, underscoring the complexity of assessing the relationship between the crimes involved.

The right to cross-examination is significant but may be limited for valid reasons. In United States v. Boylan, the First Circuit affirmed that severance is not guaranteed solely to provide a defendant a slight advantage, as established in Zafiro v. United States. The court found that the evidence at issue had limited relevance, and the justifications for restricting cross-examination and denying severance were compelling, thus upholding the district court's decisions under the abuse of discretion standard.

Two defendants claimed inadequate legal representation. One, McDonald, requested new counsel shortly before trial, citing concerns related to his lawyer's partner being appointed Attorney General of New Hampshire. The district court deemed this concern insufficient for a change of counsel, noting the lack of a conflict and that McDonald waited too long to raise his issue. 

The second claim came from Burke, who argued his counsel was ineffective for not moving for a judgment of acquittal on felon-in-possession charges due to insufficient proof of a prior felony conviction. However, evidence of Burke's criminal history existed, and the strategic decision to stipulate to a prior conviction was reasonable, rendering Burke's claim baseless.

Regarding sentencing, four defendants challenged their convictions for carjacking under 18 U.S.C. § 2119, arguing that the requirements for sentencing were not met as the jury was not instructed to find that death resulted from the crime. The carjacking statute specified that if death occurs, it leads to a potential life sentence. The district judge imposed life sentences based on the understanding that this was a sentencing issue, a view later conflicted by the Supreme Court's ruling in Jones v. United States, which identified three distinct offenses under the carjacking statute, including one for cases resulting in death. The defendants contended that their life sentences should be vacated due to the absence of jury instructions on this crucial element.

The failure to instruct the jury on the 'if death results' requirement was deemed an error under the precedent set in Jones but was considered harmless due to overwhelming evidence presented at trial, including graphic photographs and uncontested witness testimonies confirming that the guards were killed during the robbery. 

McDonald was convicted on separate counts of being a felon-in-possession and a drug user-in-possession of firearms, resulting in concurrent life imprisonment and a 120-month sentence. He argued that these counts were multiplicitous, violating the Double Jeopardy Clause, but the court found that each count contained distinct elements, thus not barring multiple convictions under the Blockburger test. However, several circuits have interpreted Congress's intent to avoid imposing multiple punishments in cases involving a drug-using, former felon with a firearm. The government agreed to vacate the shorter sentence and associated assessment but contended that the convictions should remain since no objection was raised pre-trial regarding multiplicity, which would constitute a waiver of the claim.

Shea’s double jeopardy claim concerning his convictions for carjacking and using a firearm during a violent crime was rejected, as it was already foreclosed by existing circuit precedent. Lastly, O'Halloran and three other defendants challenged the court's sentencing calculations, particularly its reliance on guidelines for first-degree murder, indicating a need for further clarification on this objection.

All defendants were found liable for offenses related to the Hudson robbery, which were categorized as closely related counts under U.S.S.G. 3D1.2(b). In determining the offense level, the guidelines typically apply the base offense level of the highest crime in the group, adjusted for specific offense characteristics. However, under U.S.S.G. 2B3.1, if a victim is killed in a manner that constitutes murder under 18 U.S.C. 1111, the guideline for first-degree murder (U.S.S.G. 2A1.1) applies. The district court classified the killings of the guards as felony murder, thereby assigning a high offense level for first-degree murder to all defendants, independent of individual intent.

The defendants contended that the court improperly found "malice aforethought" and shifted the burden to them to prove they did not intend to kill. However, under the felony murder rule, the killings were classified as first-degree murder due to the robbery, regardless of who fired the weapon. The district judge's comments suggested a potential for downward departure based on a defendant's lack of intent to commit murder.

Ultimately, McGonagle received a downward departure because he was acquitted of carjacking, indicating he was not present during the murders, a decision the government did not appeal. The other four defendants appealed the denial of their requests for downward departures, but such denials are largely unreviewable unless the court misunderstands its authority.

Additionally, the district court imposed a $250,000 fine on each defendant. Although they claimed financial inability to pay the fine, the court was not convinced due to unaccounted robbery proceeds and potential future earnings from interviews and literary rights. Their appeal is limited to asserting a lack of ability to pay.

The district court's assessment of the defendants' ability to pay fines is a factual determination subject to clear error review. The defendants bore the burden of proving their inability to pay. The court found that the defendants had stolen more than the fines imposed and did not account for a significant portion of the stolen money, which supported the district court's ruling. The defendants' claims of having no money were deemed less credible, as the court could dismiss their self-serving denials.

Regarding the defendants' second motion for a new trial, it arose after John Burke, brother of defendant Stephen Burke, pleaded guilty to conspiracy during the trial and later testified for the government. The defendants contended that the government failed to disclose discussions about possibly dismissing Burke's federal charge in exchange for his testimony, which they argued constituted impeachment evidence under *Brady v. Maryland* and *Giglio v. United States*. However, the record indicated no explicit discussion of a charge dismissal before his testimony, only a generalized expectation of leniency.

The district court noted that while the government was not legally compelled to disclose this potential dismissal, it would have been better practice to do so if considered. Ultimately, the court ruled that even if there was an obligation to disclose, a new trial was unnecessary because it was not "reasonably probable" that such disclosure would have changed the trial outcome. The evidence against the defendants was robust, involving numerous witnesses and substantial forensic evidence. The court affirmed the convictions and sentences of the defendants, except for vacating McDonald's sentence on one count, which was remanded with instructions to merge it with another sentence without a separate mandatory assessment fee.

During the pre-trial Daubert hearing, Dr. Deadman testified that DNA testing on sweat from a cap matched Stephen Burke's blood sample, asserting that only a "B" allele dot was present. His conclusion was based on Burke's blood being typed as "BB." On cross-examination, Dr. Deadman acknowledged he typically would not conclude a match if a weak dot of a different type was present. Defense expert Dr. Randell Libby pointed out a faint "A" allele dot that Dr. Deadman had overlooked, arguing this mixture negated the match conclusion. Dr. Deadman conceded the existence of the weak "A" allele dot but maintained that its faint intensity did not change his conclusion of a match to Burke's DNA. 

Additionally, 18 U.S.C. § 1111(a) defines murder as the unlawful killing of a human being with malice aforethought, including various premeditated forms of killing and those occurring during felonies such as arson or robbery. Case law, including United States v. Nichols and others, supports this definition. The court noted that defendants bear the burden of proving justification for any departure from standard sentencing guidelines.