USCA1 Opinion

[Not for Publication]

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,

____________________

Morris M. Goldings, with whom Amy J. Axelrod,

R. David Beck,
_____________

Mahoney, Hawkes & Goldings, LLP, were on brief for appellant.

United

States

Attorney, with

Donald K. Stern, United States Attorney, was on brief for appellee.

_______________

____________________

January 6, 1998
____________________

STAHL, Circuit
STAHL, Circuit

Judge.
Judge.

Defendant-appellant Alfred

______________

W. Trenkler appeals district court orders denying his various

motions for a

new trial, for an inquiry

misconduct, and

for an evidentiary

newly acquired evidence.

into possible juror

hearing on the

basis of

We conclude that the district court

properly denied the motions, and, therefore, we affirm.

I.
I.
__

Facts and Procedural History

On November 29,

conspiracy

under 18

materials under 18

destruction

U.S.C.

U.S.C.

U.S.C.

of property

844(i), for

1993, defendant

371,

receipt

844(d), and

by means of

was convicted

of

explosive

attempted malicious

an explosive

his role in creating

of

under 18

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

Alcohol, Tobacco and

of

evidence

from

Firearms ("ATF") computerized

Bureau of

database

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
_____________

1995).

id.
___

61

F.3d 45,

We reasoned that the government had

demonstrated

See
___

v. Trenkler,
________

the reliability of

We also

concluded,

59 (1st

Cir.

not convincingly

the EXIS database evidence.

however, that

the error

was

-22

harmless

that

beyond a reasonable doubt, principally on the basis

a government witness and convicted felon, William David

Lindholm, had

bomb

testified that

defendant had

built the

pipe

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

article in the Boston Globe

learned from an

on August 1, 1995, that Lindholm

had been released from prison on September 30, 1994,

seven months into his ninety-seven month sentence.

8, 1995, defendant

for

an

inquiry

Lindholm and the

filed with this court a

into a

possible

government.

On August

motion to remand

undisclosed

We denied

thirty-

deal between

the motion because

the district court was the proper forum for the request.

Second, on June

appeal

22, 1995,

we held

in Shay

Jr.'s

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."

that the

remand, the

district

court held

reliable

and relevant and was, accordingly, admissible as an

-33

doctor's

On

testimony was

both

"alternative,

seemingly

non-incriminating explanation

incriminating

Jr.'s appeal are

the basis of

The results

relevant to defendant Trenkler

the district court's original

statements in

Shay Jr.'s

concluded that

doctor's

statements."

for Shay

it would be

testimony in

trial,

of Shay

because, on

exclusion of the

defendant's trial

futile to seek to

defendant's trial

Jr.'s

and

counsel

introduce the

thus did

not

attempt to do so.

Finally,

that a woman

alternate

defendant.

on

October 15,

named Donna Shea had

juror

at

During

his

voir
____

trial,

dire
____

1996,

defendant learned

notified the ATF

Ramona

Walsh

Walsh,

had not

had

that an

known

admitted

to

knowing defendant.

into

Shea's

The government initiated an investigation

allegations,

interviewed both Shea

Nancy

Russell).

alternate

pursuant to

and a third

Shea

juror Walsh

claimed

had

which

an

ATF agent

party, Nancy Tolmie

(now

in

interviews

that

three or

four

her

been present

at

cocaine sales that Shea had made to Tolmie twelve years prior

to the Trenkler

trial.

Further, she claimed

may have been present at those sales.

that defendant

Tolmie admitted in her

interview that she had purchased cocaine from Shea during the

time period in

accompanied

question, but she denied that

her on

Investigation,

the

those occasions.

government

allegations were groundless.

In

Walsh had ever

an ATF

concluded

that

Report of

Shea's

-44

Subsequently,

release from prison,

on

the

basis of

Lindholm's

and this court's evidentiary

early

ruling in

Shay Jr.'s appeal on the testimony of Dr. Phillips, defendant

filed in

for

the district court

new

trial

pursuant

on December 22, 1995,

to Fed.

R.

Crim.

P.

a motion

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

allegations regarding Walsh.

trial

on

the basis

The district court

of

Shea's

denied the

motions, respectively, on February 4, 1997, and May 22, 1997.

This appeal followed.

II.
II.
___

Discussion
Discussion
__________

A. Juror Misconduct
____________________

Defendant

abused its

first

argues

that the

district

court

discretion in denying his motion for inquiry into

possible

failed

juror

to

misconduct and

conduct

an

misconduct allegation.

court's

failure to

trial based on

his

that

independent

new trial

inquiry

Specifically,

conduct an

the

right to

court

-55

the

he contends that

the

to grant

a new

misconduct violated

an impartial

improperly

because it

regarding

inquiry and

the allegations of juror

Sixth Amendment

contends

for a

based

jury.

He also

its

findings

entirely on statements obtained for the government by the ATF

agent.

We review a district court's determination

juror misconduct occurred

See United States

1989).

for a patent abuse

v. Hunnewell, 891 F.2d 955,

We likewise

of discretion.

961 (1st Cir.

review the denial of a motion

trial for manifest abuse of discretion.

that no

for a new

See United States v.

Tibolt, 72 F.3d 965, 972 (1st Cir. 1995).

As an initial

justified in

relying

matter, we note

on

the

report

that the court

of

the

ATF

was

agent's

interviews with Shea

and Tolmie.

points

the

out,

it was

charge of juror

court,

As

the government rightly

government who

first

misconduct to the attention

and defendant

failed to

present

brought the

of the district

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

misconduct, "the

district court must

inquiry

and if

to determine

so, whether

Gaston-Brito,
____________

citations

whether the alleged

11,

12

Although

(1st

United States v.
______________

Cir.

this

adequate

incident occurred

it was prejudicial."

64 F.3d

omitted).

undertake an

or

1995)

threshold

particularly high, see Neron v. Tierney, 841 F.2d

(internal

is

not

1197, 1202

n.6 (1st Cir.

into

the

1988), the district court shall not "intru[de]

sphere

of

jury privacy,"

id.
___

at

1205, without

-66

evidence

"sufficient

to

impartiality," id. at 1202.

undergird

genuine

doubts

about

Defendant has presented

no such evidence.

district court observed,

Shea did not claim

anything about defendant

or had ever spoken to

she alleged

that

any other facts

Walsh would

Moreover, not

recognize

that Walsh knew

that would lead one

defendant

him, nor had

to believe

twelve years

only did Tolmie contradict

As the

later.

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

allegations

abuse

of

of

discretion

misconduct

conjectural and did

by

in

an

finding

alternate

not trigger a duty to

that

Shea's

juror

investigate.

were

The

court therefore committed no abuse of discretion in denying a

new trial.

B. Newly Discovered Evidence

Defendant's

court abused its

second argument

or, alternatively,

newly

acquired

in

the district

discretion in denying his motion

trial

standards

is that

evidence,

considering

regarding Lindholm,

and

an

evidentiary

because

the

newly

because it

-77

it

for a new

hearing based

used

on

inappropriate

discovered

evidence

improperly declined

to

recognize Dr. Phillips's testimony as "unavailable" to him at

the time of his trial.

We

begin with

circumstances,

discovered

the

motion for

evidence

must

material,

acquittal upon retrial.

new

show that

unknown or unavailable at the

diligence, (3)

Lindholm

In

trial based

the

on

evidence

normal

newly

was (1)

time of trial, (2) despite due

and (4)

See
___

issue.

likely

to result

in

an

United States v. Ortiz, 23 F.3d

21, 27 (1st Cir. 1994).

applies,

however,

government's

A less stringent standard

when

the

control and

its

new

evidence

disclosure was

of review

was

in

the

withheld, and

when there is an allegation that a witness committed perjury.

In

particular, in

situations in

which

withheld evidence, a court should

is

a "reasonable probability"

changed

the

allegations

result.

Tibolt,
______

should prompt

the government

grant a new trial if there

that the evidence

72

F.3d

new trial

at 971.

when

would have

Perjury

the court

"reasonably-well satisfied" that the testimony was false

that,

without

reached a

F.2d

the

false testimony,

different result."

has

the

is

and

jury

"might have

United States v.
_____________

Wright, 625
______

1017, 1020 (1st Cir. 1980) (internal citation omitted).

In this case, there is no basis for applying a more

lenient standard.

nothing

in

the

The district court rightly

record

indicates

that

observed that

Lindholm

perjured

-88

himself or that his early

release from prison was the result

of a deal made

to

disclose.

from

an

prior to the trial that the government failed

Rather,

assistant

challenged,

more

U.S. Attorney

unequivocally

Lindholm's early

after the

all evidence, including

stringent

that

nondisclosure

by

there

was

is

has not

conclusion

therefore

no

evidence

itself

suffices

is simply

no basis,

to

that

Accordingly,

of the

appropriate.

of

perjury

or

defeat

defendant's

under the

first Ortiz
_____

to conclude that the "new

agreement associated with it even

trial.

the

The district court's use

standard

Furthermore,

factor, on which

to

defendant

release arrangement was made several months

Trenkler trial.

argument: there

leads

which

an affidavit

evidence" or any

existed at the time of the

our independent review of

the evidence

convinces us

that

the

district court

did

not

discretion in denying an evidentiary hearing and

abuse

its

a new trial

on this issue.

Defendant's

testimony

fantastica

regarding

next

Shay

constitutes

claim

Jr.'s

newly

is

that

condition

discovered

Dr.

Phillips's

of

pseudologia

evidence.

In

particular, defendant argues that his trial counsel chose not

to

offer

the

testimony

because

excluded it at Shay

Jr.'s trial and

testimony issue

that

in

case to

the

court

had

that our remand of

the

the

district

district

court

for

further consideration rendered the testimony newly discovered

-99

evidence.

We, like the district court, reject this argument.

Under no

Phillips's

defendant's

testimony

interpretation

testimony unknown or

trial.

in Shay

That the

standard was

unavailable at the

district

Jr.'s trial

counsel believed it would be

of the

and

time of

court excluded

that defendant's

futile to offer it in

Dr.

the

trial

light of

the prior trial do not excuse him from making the offer.

decision of defendant's

offer

the testimony

trial counsel

may have

trial strategy: although

not favorable to

Trenkler's

that

admissions,

some of Shay Jr.'s

be

its

to

his reasonable

statements were

admissions supported

unwise to

risk

discrediting Shay

Jr.'s

even for the sake of discrediting his statements

co-conspiracy between Shay Jr.

In any event,

discretion in

failed

case not

Thus, trial counsel may have determined

about the existence of a

defendant.

part of

Trenkler, some of his

defense.

it would

been

in this

The

to meet

the district court did

concluding

the

first

that the

prong of

and

not abuse

proffered testimony

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
________

-1010