McGonagle v. US, (1st Cir. 2005)

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Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 02-2441

PATRICK J. MCGONAGLE,

Petitioner, Appellant,

v.

UNITED STATES,

Respondent, Appellee.

No. 02-2467

STEPHEN BURKE,

Petitioner, Appellant,

v.

UNITED STATES,

Respondent, Appellee.

No. 03-1048

ANTHONY SHEA,

Petitioner, Appellant,

v.

UNITED STATES,

Respondent, Appellee.

No. 03-1055

MATTHEW MCDONALD,

Petitioner, Appellant,

v.

UNITED STATES,

Respondent, Appellee.

No. 03-1227

MICHAEL K. O'HALLORAN,

Petitioner, Appellant,

v.

UNITED STATES,

Respondent, Appellee.

[Hon. Steven J. McAuliffe, U.S. District Judge]

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Before

Boudin, Chief Judge,

Torruella and Lynch, Circuit Judges.

Patrick J. McGonagle, Stephen Burke, Anthony Shea, Matthew

McDonald and Michael K. O'Halloran, pro se, on memoranda in support

of applications for a certificate of appealability.

July 8, 2005

Per Curiam. These are five pro se applications for a

certificate of appealability (COA), filed by petitioners Anthony

Shea, Matthew McDonald, Stephen Burke, Michael O'Halloran, and

Patrick McGonagle. Petitioners were convicted at a joint trial of

various offenses related to a series of bank and armored-car

robberies and were sentenced to lengthy prison terms. Except in

one minor respect, this court affirmed their convictions and

sentences on direct appeal. United States v. Shea, 211 F.3d 658

(1st Cir. 2000). Petitioners then filed petitions under 28 U.S.C. § 2255 advancing an assortment of claims, mostly under an

ineffective-assistance-of-counsel rubric. The district court

denied relief in a comprehensive opinion and later declined to

certify the appeals. Our task is to determine whether petitioners

have raised one or more claims that are debatable among jurists of

reason. See, e.g., Miller-El v. Cockrell,537 U.S. 322, 336

(2003). Finding that they have not done so, we deny the COA

applications substantially for the reasons enumerated by the

district court, adding only the following comments.

1. Petitioners complain that the district court allowed

the jurors to take written copies of the jury instructions home

with them, especially prior to closing arguments. At the outset of

trial, the court informed the jurors that they would receive a

written copy of the instructions at the appropriate time. At the

close of evidence, and with the acquiescence of all parties, the

court chose to deliver the jury charge before the attorneys

delivered their closing arguments. On that date (a Monday), the

jurors were each given a written copy of the 94-page set of

instructions, which the court proceeded to read to them out loud.

The jurors were then excused for the day with the following

directives: that they could take the written copies of the charge

home with them; that if possible they should "try to familiarize"

themselves with the instructions when they had "a chance to be

quiet and think about" them; that they could make personal notes on

the written copies; and that they should not discuss the charge

with anyone. Closing arguments consumed the next three days, and

deliberations began on Friday morning. The jurors thus were in

possession of the written charge for four days (and evenings)

before actually starting to deliberate.

Petitioners do not now complain about written copies of

the charge being provided to the jury--a practice endorsed by this

court. See, e.g., United States v. Parent, 954 F.2d 23, 24 n.1 (1st

Cir. 1992). Nor do they complain about the charge being delivered

before closing arguments--a practice endorsed by Fed. R. Crim. P.

30(c). (1) Instead, they argue that the procedure followed here made

it likely that one or more jurors consulted a dictionary or other

reference material while reviewing the instructions--a form of

misconduct that in their view would amount to "structural error."

They fault trial and appellate counsel for not objecting to this

procedure, and they fault the habeas court for not undertaking a

suitable factual inquiry.

This claim fails because it is entirely conjectural.

Petitioners have adduced no evidence suggesting that such

consultation of extrinsic materials occurred. Nor is there any

particular reason to suspect that the court's procedure

significantly enhanced the likelihood of such an occurrence. For

one thing, the concern voiced by petitioners is not limited to

situations where jurors have been allowed to take a written charge

home with them. Even if the charge had only been delivered orally,

or even if a written charge had been distributed for use only in

the jury room, the possibility would still arise that a juror would

remember or write down specific words or terms to be researched at

home. For another thing, while petitioners are correct that the

court gave no cautionary instructions in this regard when

delivering the written charge to the jury, it did give explicit

such directives at the outset of trial. (2) Although considerable

time thereafter elapsed before the written charge was distributed,

"[a]ppellate courts ordinarily presume that a jury will follow the

trial judge's specific instructions." United States v. Bradshaw,

281 F.3d 278, 292 (1st Cir. 2002). And the court instructed the

jurors on the later date to follow "all of the instructions that I

gave during the course of the trial" and to decide the case based

"solely on the evidence received at trial."

On this record, the habeas court did not err in rejecting

petitioners' attempt to interrogate the jury members. When juror

misconduct is alleged, "a convicted defendant cannot lay claim to

a constitutional right to cross-question jurors in the absence of

an adequate evidentiary predicate." Neron v. Tierney, 841 F.2d

1197, 1205 (1st Cir. 1988) (habeas); accord, e.g., United States v.

Connolly, 341 F.3d 16, 34 (1st Cir. 2003) (holding on direct appeal

that court should only permit post-verdict interrogation of jurors

"when reasonable grounds for investigation exist, i.e., there is

clear, strong, substantial and incontrovertible evidence that a

specific, nonspeculative impropriety has occurred which could have

prejudiced the trial of a defendant") (internal quotation marks

omitted); Taylor v. Mabry, 593 F.2d 318, 320 (8th Cir. 1979) (per

curiam) (holding in habeas case that request for jury interviews

was properly denied where allegations of misconduct were

"speculative"; petitioner was "requesting permission to conduct a

fishing expedition") (quoted in Neron, 841 F.2d at 1206). (3)

Petitioners also complain that the challenged procedure

encouraged jurors to start deliberating individually before

actually convening in the jury room. (4) Yet as the district court

noted, there is nothing wrong with jurors engaging in "mental

deliberations" during trial--in the sense of weighing evidence,

assessing credibility, and the like--so long as they do not make up

their minds about guilt or innocence until the appropriate time.

Moreover, this same objection could be voiced whenever the charge

preceded closing arguments. Petitioners' grievance thus

effectively amounts to a challenge to that sequence of events--which, as mentioned, is specifically endorsed by Fed. R. Crim. P.

30(c).

2. Petitioners also fault their counsel for failing to

request, or object to the absence of, an alibi instruction. At

trial, Burke, O'Halloran, and McGonagle had each sought to

establish alibis regarding one or more of the offenses (mainly the

Hudson robbery). The habeas court rejected this claim for lack of

prejudice, citing three factors. First, the jury was properly

instructed on the presumption of innocence and the government's

burden of proof. Second, counsel for petitioners, where

appropriate, addressed the alibi issue in their closings. And

third, the jury appears to have credited McGonagle's alibi defense

to the carjacking charge, insofar as its acquittal rested on a

conclusion that he was not physically present. (5)

While we think such analysis suffices to dispose of the

instant claim (particularly given the lack of rebuttal from

petitioners), we elaborate slightly as follows. The concern in

this area is that the jury will mistakenly believe that a

defendant's failure to prove an alibi defense is evidence of guilt--i.e., that the burden shifts to the defendant to prove an alibi,

rather than remaining with the government to disprove it. This

court, while declining to adopt any per se rule, has stated that

"alibi instructions should contain adequate safeguards against jury

confusion and should indicate that the burden of proof remains on

the government despite disbelief of the alibi witnesses." United

States v. Fortes, 619 F.2d 108, 123 (1st Cir. 1980). Yet the

circumstances here minimized any such concern about jury confusion.

The district court provided a general instruction about burden

shifting, stating:

The burden is always on the government to

prove guilt beyond a reasonable doubt. That

burden never shifts to a defendant. The law

does not impose upon a defendant in a criminal

case the burden or duty to call any witnesses

or to produce any evidence.

And the attorneys for Burke and O'Halloran emphasized this point in

their closings while discussing alibi evidence.

Even more important, the alibi defenses of the three

petitioners in question were insubstantial. Those offered by Burke

and O'Halloran, involving general references to daily routines

having been followed, were devoid of specificity. Only McGonagle

made more than a token effort in this regard, presenting several

witnesses that placed him in a neighboring state around the time of

the Hudson robbery. Yet this evidence was largely beside the

point, since his presence at the Hudson site was not an element of

any offense. The jury convicted McGonagle on four counts:

conspiring to commit, and aiding and abetting the commission of,

robbery and armed robbery. Various courts have held that, because

a conspiracy or an accomplice charge ordinarily does not require

proof of physical presence at the crime scene, the failure to give

an alibi instruction with regard thereto is harmless error (or not

error at all). See, e.g., United States v. Thomas, 34 F.3d 44, 50

(2d Cir. 1994); United States v. Agofsky, 20 F.3d 866, 871-72 (8th

Cir. 1994). Nor did the prosecution's theory of the case rest on

his presence at the Hudson site. Compare, e.g., United States v.

Burse, 531 F.2d 1151, 1153 (2d Cir. 1976). And the fact that

McGonagle was acquitted of the carjacking charge suggests that the

jury credited his alibi evidence.

3. In a related argument, McDonald complains about the

failure of his counsel to present alibi evidence regarding the

Hudson robbery. Yet he acknowledges that counsel twice interviewed

the source of such evidence (McDonald's sister). His claim thus

fails, since "[t]he decision whether to call a particular witness

is almost always strategic." Lema v. United States, 987 F.2d 48,

54 (1st Cir. 1993); see also Strickland v. Washington,466 U.S. 668,

690 (1984) ("strategic choices made after thorough investigation of

law and facts relevant to plausible options are virtually

unchallengeable").

4. Petitioners advance a vague complaint involving

closure of the courtroom. At times, they seem to argue that the

courtroom was closed to the public during the entire voir dire

process. Yet the record instead indicates that the courtroom was

temporarily closed for a narrower purpose: to investigate a report

of tainted venire members. To the extent petitioners are faulting

counsel for not opposing this procedure, their claim is unavailing.

It is true that the guarantee of a public trial extends to voir

dire proceedings. See Press-Enterprise Co. v. Superior Court, 464

U.S. 501 (1984). Yet the temporary closure here was likely

permissible under the circumstances, especially where "a transcript

of the closed proceedings [was made] available within a reasonable

time." Id. at 512. And even if not, counsel cannot be faulted for

thinking that private questioning of the two venire members would

be more conducive to eliciting candor about a possibly sensitive

topic. See, e.g., Horton v. Allen, 370 F.3d 75, 81-83 (1st Cir.

2004) (rejecting similar claim), cert. denied, 125 S. Ct. 971

(2005).

5. McGonagle raises a sentencing issue, challenging the

court's reliance on a cross-reference to the guideline for first-degree murder. See U.S.S.G. § 2B3.1(c) (1996) (calling for

application of § 2A1.1 if victim was killed "under circumstances

that would constitute murder under 18 U.S.C. § 1111" had killing

taken place within jurisdiction of United States). On direct

appeal, the other four petitioners advanced a similar challenge.

They objected that it was unclear who had actually killed the

Hudson guards and whether any particular individual had intended to

cause their deaths. We responded that § 1111 "was intended to

adopt the felony murder rule" and that, under that rule, "the

killing of the guards in the Hudson robbery was first-degree murder

by those who perpetrated the robbery, regardless of who pulled the

trigger or any individual intent." Shea, 211 F.3d at 674; accord,

e.g., United States v. Martinez-Bermudez, 387 F.3d 98, 101 n.5 (1st

Cir. 2004).

McGonagle argues that a different result should obtain in

his case because of his relatively tangential involvement--i.e.,

because it is unclear that he was even present at the Hudson site.

In his view, a defendant who lacked intent to kill and was absent

from the crime scene cannot be held liable for first-degree murder

at sentencing. As support, however, he relies on inapposite case

law involving Eighth Amendment claims in death-penalty cases. See,

e.g., Enmund v. Florida,458 U.S. 782, 797 (1982). His argument

overlooks the operation of the felony-murder rule, as explicated on

direct appeal, and ignores the fact that physical presence is not

necessarily required under an accomplice or conspiracy theory.

Instead, as the district court properly noted, the level of a

defendant's involvement is accounted for in the commentary to the

first-degree murder guideline. See U.S.S.G. § 2A1.1, cmt. n.1;

see, e.g., United States v. Hansen, 256 F. Supp. 2d 65, 71-72 (D.

Mass. 2003). The district court invoked this provision at

sentencing and departed downward accordingly.

6. Petitioners each filed their § 2255 petitions in

timely fashion. Some four months later, after the one-year

limitations period had expired, they each sought leave to amend to

add a new claim. The district court denied such leave on the

ground that the new claim did not "relate back" to the original

petitions under Fed. R. Civ. P. 15(c) and thus was time-barred. In

the alternative, it indicated that, even if timely, the proffered

claim would fall short on the merits. The district court's Rule

15(c) analysis has just recently been upheld by the Supreme Court.

See Mayle v. Felix, S. Ct. , 2005 WL 1469153 (June 23,

2005). And its alternative rationale proves equally supportable.

For the sake of completeness, we explain briefly.

Petitioners' new claim faults counsel for failing to

present additional impeachment material regarding John Ferguson,

one of the government's key witnesses. On the stand, Ferguson

recounted separate conversations he had had with Shea, Burke and

McDonald while jointly incarcerated with each of them--testimony

which, inter alia, implicated all five petitioners in the Hudson

robbery. He was cross-examined at length over the course of two

days. In now claiming that such cross-examination was inadequate,

petitioners point to Ferguson's appearance shortly thereafter at an

unrelated bank-robbery trial in Massachusetts. See United States

v. Balsam, 203 F.3d 72 (1st Cir. 2000). In particular, relying on

a government memorandum filed in a habeas proceeding brought by a

Balsam defendant, they complain that Ferguson was there impeached

on various grounds that were never raised at their own trial.

This argument fails because there is no reasonable

probability that the results of the trial would have been different

had Ferguson been impeached more extensively. See, e.g., United

States v. Bagley,473 U.S. 667, 682, 685 (1985) (plurality and

concurring opinions); Strickland, 466 U.S. at 694. In part, this

is because of the extent to which he was impeached at petitioners'

trial. In addition to recounting his extensive criminal

background, Ferguson there admitted, inter alia, to the following:

suborning perjury before several grand juries; testifying falsely

during a civil deposition; uttering myriad falsehoods under an

array of circumstances; and making inaccurate and incomplete

statements while being interviewed by investigators. The key

impeachment items presented for the first time at the Balsam trial

appear to be a pair of false affidavits, the circumstances

surrounding which are not explained. Regardless, such additional

evidence of Ferguson's mendacity would have been largely cumulative

of that adduced at petitioners' trial.

In any event, even if Ferguson's testimony were

discounted, the amount of other incriminatory evidence was

substantial. For example, all five of the petitioners were

implicated in the Hudson robbery by one or more other witnesses. (6)

Indeed, an analogous claim arose on direct appeal, involving new

evidence that might have further impeached John Burke (a named

defendant turned cooperating witness). In rejecting this claim, we

noted the following:

The evidence against the defendants was

substantial and rested on a number of

witnesses, much forensic evidence, and a

series of admissions and co-conspirator

statements. Further, John Burke was

extensively impeached ... [regarding] subjects

that might fairly cast doubt on his veracity.

The outcome would not have changed [had the

new material been used].

Shea, 211 F.3d at 675-76. The instant claim fails for similar

reasons.

7. McDonald seeks to amend his COA application to

advance a claim under Crawford v. Washington,541 U.S. 36 (2004).

It is doubtful that Crawford applies retroactively to cases on

collateral review. See, e.g., Murillo v. Frank, 402 F.3d 786, 789-91 (7th Cir. 2005). It is also doubtful that the hearsay remarks

cited by McDonald constitute "testimonial" statements within the

reach of Crawford. See, e.g., Horton, 370 F.3d at 84. We need not

resolve these matters, however, since "a party may not unveil an

argument in the court of appeals that he did not seasonably raise

in the district court." David v. United States, 134 F.3d 470, 474

(1st Cir. 1998). While an appellate court does have discretion to

overlook this rule "in an exceptional case," Castillo v. Matesanz,

348 F.3d 1, 12 (1st Cir. 2003), the instant cases cannot be so

characterized. Whether McDonald or the other petitioners might be

able to file a second or successive petition seeking relief under

Crawford, should the Supreme Court ever make that decision

retroactive to cases on collateral review, is a matter we need not

decide.

8. We have reviewed petitioners' remaining claims and,

to the extent not explicitly addressed in the district court's

opinion, deem them unworthy of separate comment.

The applications for a COA are denied, and the appeals

are terminated. McDonald's motion for leave to amend his COA

application and his motion for appointment of counsel are denied.

1. Rule 30(c) provides: "The court may instruct the jury

before or after the arguments are completed, or at both times."

Our Parent decision does not affect the operation of this rule.

2. During its preliminary instructions, the court admonished

the jurors not to "engage in any outside reading of the case,"

"investigate the case on their own," "educate [themselves] on any

of the subjects that might come up," or "do any outside

investigative work, preparation, study, anything like that."

3. Petitioners' analogy to cases involving "structural error"

is also misplaced. See, e.g., United States v. Rogers, 121 F.3d

12, 17 n.5 (1st Cir. 1997) ("Courts that have considered the issue

of juror dictionary use have not generally considered such use to

be prejudicial per se.").

4. It is argued that the jurors' review of the charge on

Tuesday evening could have been especially prejudicial, since they

had only heard closing argument from the government by that time.

Yet defense counsel reasonably asked to wait until Wednesday to

begin their arguments, in order to avoid facing a fatigued jury.

5. The district court relied on United States v. McCall, 85

F.3d 1193 (6th Cir. 1996), which held on direct appeal that omission

of an alibi instruction is not plain error "as long as the jury is

otherwise correctly instructed concerning the government's burden

of proving every element of the crimes charged, and the defendant

is given a full opportunity to present his alibi defense in closing

argument." Id. at 1196.

6. We take particular note in this regard of the testimony of

Steven Connolly, Edwin McDonald, James Tracy, Michael Yandle, and

David Kelley.

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