USA v. Burke, et al.

• Court: District Court, D. New Hampshire
• Decided: May 6, 1998
• Docket: CR-96-050-M
• Status: Published

Opinion

USA v . Burke, et a l . CR-96-050-M 05/06/98 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

United States,

v. Criminal N o . 96-50-1-6-M

John P. Burke, Stephen G. Burke, Matthew McDonald, Patrick J. McGonagle, Michael K. O’Halloran, and Anthony M . Shea, Defendants

O R D E R

Pursuant to Rule 33 of the Federal Rules of Criminal Procedure, defendant Stephen Burke, joined by each of his co- defendants, moves for a new trial. Burke asserts that after the jury had begun its deliberations, defendants performed an Internet search and discovered documents suggesting that in the Spring of 1989 all of the DNA/serology examiners in the FBI laboratory, except one, failed an open serology proficiency test. He claims that the government destroyed the results of that test “so as to avoid controversy from defense attorneys.” Motion for new trial (document n o . 910) at 1 .

Burke also asserts that those documents contain information

suggesting that “band shifting” in certain DNA test results (an

issue raised by defense counsel at trial) was a known problem at

the FBI laboratory and the FBI accepted a 2 to 2.3 percent

variation in band matches (which, according to defendants, could lead to erroneous matches). On April 1 3 , 1998, the court

conducted a hearing on the matter, at which counsel presented

their legal arguments and made offers of proof with regard to the

testimony they expected certain witnesses would provide, if

called.

Burke claims that despite his pre-trial requests, the

government failed to produce this “exculpatory” information, in

violation of Brady v . Maryland, 373 U.S. 83 (1963). He says that

such information was central to his argument that the court

should exclude the PCR-based DNA evidence from trial under

Daubert v . Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993). He also claims that if the government had produced such

information, his ability to impeach key government witnesses

would have been substantially improved. Accordingly, Burke

asserts that the documents allegedly withheld by the government

were “material” to his defense and, therefore, the government’s

alleged failure to disclose them warrants granting a new trial.

See generally Kyles v . Whitley, 514 U.S. 419 (1995).

In response, the government has submitted the Affidavit of

Jenifer Lindsey-Smith, a Supervisory Special Agent of the FBI and

Chief of the FBI’s Nuclear DNA Analysis Unit. In her affidavit,

Special Agent Lindsey-Smith swore that:

[defendants’] argument is false in every respect. No FBI examiner has ever failed a DNA proficiency test. All records of these proficiency tests are preserved

2 and have always been available for review by defense counsel and their experts. In 1989 a serology proficiency test was given in which the sample to be tested was degraded, thus invalidating the proficiency test results. A new test was given to the serology examiners. No documents pertaining to either serology proficiency test were destroyed.

Lindsey-Smith affidavit, Exhibit 1 to government’s objection

(document n o . 938) at para. 3 (emphasis in original). Defendants

have not rebutted the affidavit of Special Agent Lindsey-Smith.

Nor have they contested the government’s assertion that D r .

Harold Deadman, its primary DNA expert witness and a former

member of the FBI laboratory, was never a serology examiner and,

therefore, could not have been one of the examiners who took the

test(s) in question.

Discussion

While newly discovered impeachment evidence may, under

appropriate circumstances, warrant a new trial, the court may

properly grant a new trial only when the newly discovered

evidence is “material” and would likely lead to a different

result. See Kyles v . Whitley, 514 U.S. at 433 (“evidence is material, and constitutional error results from its suppression

by the government, ‘if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the

proceeding would have been different.”) (quoting United States v .

Bagley, 473 U.S. 6 6 7 , 682 (1985)); United States v . Sepulveda, 15

F.3d 1216, 1219 (1st Cir. 1993) (“new trials based on newly

discovered evidence, or on evidence withheld by the prosecution,

3 require specified showings as to the likelihood of a different

result.”). See also United States v . Anderson, N o . 96-1635, 1998

WL 130158 (1st Cir. March 2 7 , 1998).

The evidence of defendants’ guilt produced at trial was both

substantial and compelling. S o , even if the court were to accept

Burke’s claims that the government wrongfully withheld

discoverable evidence (which it does n o t ) , neither Burke nor his

co-defendants have demonstrated that there is even a remote

possibility that the evidence in question might have altered the

jury’s verdict or that it in any way undermines confidence in the

jury’s verdict. See Sepulveda, 15 F.3d at 1220 (“nondisclosure

justifies a new trial if it is ‘material,’ it is ‘material’ only

if there is a ‘reasonable probability’ that the evidence would

have changed the result, and a ‘reasonable probability’ is ‘a

probability sufficient to undermine confidence in the outcome.’”)

(citations omitted). Similarly, the evidence in question would

not have affected the court’s admission of DNA evidence under

Daubert. At best, the “new” evidence (the probative value of

which i s , at most, de minimus) might have gone to the weight of the government’s evidence and the credibility of its witnesses,

not the admissibility of that evidence.

Finally, the court is unpersuaded by defendants’ arguments

with regard to the so-called newly discovered evidence and band

shifting. Defendants were well aware of the band shifting issue

4 and, both in pretrial motions and at trial itself, addressed it

with their own expert and in cross-examining the government’s

expert. Even viewing the facts in the light most favorable to

defendants, the “newly discovered” evidence regarding band

shifting is cumulative. Moreover, defendants have failed to

explain why additional evidence regarding the effect(s) of band

shifting on the accuracy of DNA test results could not have been

discovered prior to trial and/or addressed in greater detail by

one or more of their experts. At best, the so-called newly

discovered evidence is merely corroborative of defendants’ theory

regarding the accuracy of DNA test results. And, that theory

easily could have been adequately presented (or developed in

greater detail) at trial through one of defendants’ experts even

without the documents in question.

Conclusion

Accordingly, for the reasons set forth above and in the

government’s objection (document n o . 9 3 8 ) , Burke’s motion for a

new trial (document n o . 910) is denied.

SO ORDERED.

Steven J. McAuliffe United States District Judge May 6, 1998

cc: David A . Vicinanzo, Esq. Peter D. Anderson, Esq. Matthew J. Lahey, Esq. Bruce E . Kenna, Esq. Douglas J. Miller, Esq.

5 Michael J. Iacopino, Esq. Bjorn R. Lange, Esq. David H . Bownes, Esq. Edward D. Philpot, Jr., Esq. U.S. Marshal U.S. Probation