William Kenney, Jr. v. USA CV-97-603-B 05/15/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
William F. Kenney, Jr.
Civil No. 97-603-B Opinion No. 2002 DNH 099 United States of America
MEMORANDUM AND ORDER
William Kenney was convicted of conspiracy to commit bank
robbery, armed and unarmed robbery, violation of the Hobbs Act,
and using and carrying firearms during the commission of crimes
of violence. He argues in a motion filed pursuant to 28 U.S.C. §
2255 that his convictions must be vacated because the government
withheld exculpatory evidence during his trial. I reject
Kenney's motion because he has not established that the
government's alleged misconduct prejudiced his defense.
FACTS
The government contended at trial that Kenney was a
participant in a conspiracy led by co-defendant Charles Flynn to
commit several armed robberies during the spring and summer of 1991. Kenney's exculpatory evidence claims relate specifically
to his convictions for the June 7, 1991 robbery of an employee of
a retail store known as the Dress Barn (the "Dress Barn
robbery"), the August 3, 1991 robbery of James Fitzpatrick's home
(the "August 3rd robbery"), the August 17, 1991 robbery of James
Fitzpatrick's person (the "August 17th robbery"), and the
September 9, 1991 robbery of the Stratham branch of the First New
Hampshire Bank (the "First N.H. robbery"). I summarize the trial
testimony and the allegedly withheld evidence that pertains to
each robbery in turn.
A. The Dress Barn Robbery
1. Trial Testimony
Linda Sherouse, a Dress Barn employee, was robbed on June 7,
1991 as she was attempting to deposit $763 into a night deposit
box at the First National Bank's North Hampton, New Hampshire
branch office. She testified at trial that her assailant was
between 18 and 22 years old, was approximately 5'8" tall, and
weighed between 150 and 160 pounds.1 She recalled that he was
1 Kenney is 5'11" tall. He was 22 years old when the robbery occurred and he weighed approximately 175 pounds at the time of trial.
- 2 - wearing jeans and a bright blue Patagonia jacket with an emerald
green collar. He also was wearing a white "woodworker's" mask
and was carrying a semi-automatic handgun.
The government relied on testimony from several co
conspirators to implicate Kenney as the perpetrator of the Dress
Barn robbery. Thomas McQueeney testified that Flynn asked
McQueeney during an evening in June to take Kenney to a spot in
North Hampton a few hundred yards from the site of the robbery.
Kenney was carrying a bag containing a white "painter's" mask and
a semi-automatic handgun when McQueeney dropped him off near the
bank. The next day, McQueeney overheard Flynn taunting Kenney by
claiming that he would rather rob a woman carrying only $600 than
a man carrying more money because he was too afraid to rob a man.
Kenney responded by stating that he had robbed a woman "because
that was who was there."
Another co-conspirator, Richard Ferguson, testified that
Kenney admitted that he had robbed several night depositories in
New Hampshire. Finally, co-conspirator Brian Raineri testified
that he had had discussions with Kenney concerning how to rob
night depositories.
- 3 - 2. Undisclosed Evidence
The officers investigating the Dress Barn robbery used a
police tracking dog to determine the path that the robber
followed as he left the scene. The dog picked up a scent and
followed it behind the bank to an asphalt walkway. There, the
dog lost the scent and police surmised that the robber left in a
car that may have been parked in a nearby lot. If, instead, the
robber had continued to walk south through a wooded area, he
could have emerged from the woods at the back of a nearby
restaurant. In an effort to determine whether anyone at the
restaurant had seen the robber, Hampton police detective, Philip
Russell, interviewed the restaurant's general manager, Timothy
Gilpin.
Detective Russell's interview report noted that Gilpin was
wearing glasses and a bright royal blue shirt, was 35 years old,
was 5'8" tall and had a small pot belly. Detective Russell also
noted that Gilpin's eyes were bloodshot and that his speech was
slow and slurred. Gilpen told Detective Russell that he had been
working in his office on the second floor at the time of the
robbery but had not witnessed anything suspicious.
- 4 - The government informed Kenney that a police dog had picked
up a scent at the scene and followed it to the asphalt walkway.
Kenney alleges, however, that the government withheld Detective
Russell's report of his interview with Gilpen. He claims that
the report is exculpatory because it provides a description of
Gilpen that is in some respects similar to Sherouse's description
of her assailant.
B. The August 3rd Robbery
James Fitzpatrick's residence in Hampton, New Hampshire, was
robbed on August 3, 1991, while he and other family members were
asleep in the residence. The robbers took a number of Hummel
figurines as well as a small amount of cash, various other
personal items, and an undetermined number of checks.
The government relied on testimony from two co-conspirators
to prove that Kenney participated in the robbery. Brian Raineri
testified that Flynn planned the robbery, he and Kenney committed
the robbery, and Flynn, McQueeney, and Brian's brother, Bruce
Raineri, provided transportation. McQueeney corroborated
Raineri's testimony and provided additional details concerning
- 5 - his planning sessions with Flynn. He also testified that Kenney
told him that he and Raineri had taken several Hummel figurines
from Fitzpatrick's residence.
2. Undisclosed Evidence
Detective Russell obtained videotape bank surveillance
pictures of a then-unknown person who was shown cashing several
checks that Raineri had taken from Fitzpatrick's residence during
the August 3rd robbery. The government also learned from Raineri
that he had sold the checks to Charles Petralia, a relative of
Raineri's by marriage. Petralia, who died in February 1991, had
a lengthy criminal record involving convictions for theft of mail
and armed robbery.
Kenney asserts that the government failed to disclose both
the bank surveillance pictures and Raineri's claim that he had
sold Fitzpatrick's checks to Petralia. He argues that the
withheld evidence is exculpatory because it suggests that Raineri
committed the robbery with Petralia, rather than Kenney.
C. The August 17th Robbery
On August 17, 1991, James Fitzpatrick was robbed of
- 6 - approximately $2,300 as he was attempting to enter his residence.
Fitzpatrick described his assailant as a white male who was 5'8"
to 5'9" tall and weighed approximately 155 pounds. Fitzpatrick
recalled that the robber wore a sweatshirt with a hood that he
had pulled over his head and tied down over his eyes and under
his nose.
At trial, another co-conspirator, Richard Ferguson,
testified that Kenney told him that he had robbed Fitzpatrick.
Richard Ferguson admitted at trial that he had been
convicted of armed robbery in 1980 and that he had had a
significant drug problem. He claimed, however, that he had not
committed any other robberies from 1986 until 1991,2 when he met
Flynn and became involved in the criminal conspiracy on which
Kenney's convictions are based.
Richard Ferguson's brother, James, later testified in an
unrelated case that, in 1990, Richard had driven with him and
2 Kenney argues that Ferguson testified that he had not been involved in anything illegal during this time period. A fair reading of the trial transcript, however, indicates that Ferguson stated affirmatively only that he had not been involved in any robberies between 1986 and 1991.
- 7 - three other men in two cars to the residence of a person who had
stolen $60,000 from one of his associates. James gave the three
men weapons and told them to "light up the house." After issuing
these instructions, James and Richard left the scene and the
three remaining men then fired a number of shots into the
residence.
Kenney claims that the government knew about this incident
prior to his trial and failed to disclose it. He argues that the
evidence is exculpatory because it would have been valuable
impeachment evidence given Ferguson's claim that he had not been
involved in any robberies between 1986 and 1991.
D. The First N.H. Robbery
Two men wearing masks robbed the Stratham branch of the
First New Hampshire Bank at approximately 7:45 a.m. on September
9, 1991. More than $200,000 was taken during the robbery. The
police, who investigated the robbery with the help of a tracking
dog, concluded that the robbers had approached the bank through a
nearby cornfield and entered through a rear window.
Three bank employees described the robbery at trial. Laura
MacPherson stated that she and a co-worker, Anita Ramsdell, arrived for work at 7:45 a.m. They entered the bank and
encountered two masked men, who informed them that they were
robbing the bank. MacPherson remembered that one of the men was
big and wore a red "Champion" sweatshirt, blue sweat pants, white
"Champion" sneakers, work gloves, and a knitted mask that covered
his face. She recalled the other man as being thin, and that he
wore a black sweatshirt, black sweat pants, black sneakers, and a
knitted mask that covered his face. She recalled that one of the
men had a black, semi-automatic handgun. Ramsdell's description
of the robbers was consistent with MacPherson's. Ramsdell
recalled that the man wearing black held the gun, and that the
man wearing a red sweatshirt did not have a weapon. The women
described the two robbers as white males.
A third bank employee, Kelley McCoy, testified that she
entered the bank while the robbery was in progress. McCoy
remembered that the thin man was approximately 6'0" tall, and
that he wore black sweat pants, a dark colored mask, black shoes
and brown gloves. McCoy also noticed that he had burrs stuck to
his shoelaces and that he had a black, semi-automatic handgun.
McCoy stated that the larger man with the red sweatshirt put the
money into a cardboard box, and that the man wearing black bound
- 9 - the three employees with duct tape. The man wearing black
demanded the keys to McCoy's car, a brown Pontiac Grand Am, and
the two men used the car to make their escape.
Three co-conspirators testified concerning Kenney's role in
the robbery. McQueeney told the jury that he, Flynn, and Kenney
had driven to several different banks in the Seacoast area in
June 1991, looking for potential targets. On two or three
occasions, McQueeney also drove Flynn and Kenney to the First New
Hampshire Bank office in Stratham. Flynn remarked during one of
these trips that the farmland adjacent to the bank would provide
excellent cover for Kenney's escape.
Two other co-conspirators, Arthur Cosgro and Ferguson,
testified that they committed the robbery with Flynn and Kenney.
Both men claimed that on the evening prior to the robbery, the
four robbers traveled to a side street near the bank and stopped
at a nearby cornfield. Kenney and Flynn then walked to the back
of the bank where they pried open a window with a crow-bar.3
After determining that the bank did not have an alarm system.
3 Cosgro testified that Kenney and Ferguson were the ones who pried open the window and that Kenney later returned to the bank with Flynn so that Flynn could inspect their work.
- 10 - both men returned to the vehicle. The four robbers then left the
scene and spent the night at a nearby motel, where Kenney signed
for a room using a credit card that Cosgro had stolen from a
health club in Rhode Island.
The four robbers returned to the bank at approximately 6:00
a.m. the next morning. Cosgro and Flynn dropped Kenney and
Ferguson at the edge of the cornfield. The two men then headed
toward the bank wearing ski masks and carrying duct tape and
semi-automatic handguns. Ferguson was wearing a red "Champion"
sweatshirt and white "Champion" sneakers. Once inside, they
waited until the bank's employees arrived for work and coerced
them into opening the vault. Ferguson testified that he and
Kenney took the available cash and escaped in a bank employee's
vehicle. They then drove to a designated meeting place,
abandoned the employee's car and left the scene with Flynn and
Cosgro.
The government produced substantial evidence to support the
co-conspirators' testimony. First, it called several state
police officers who placed Flynn and Kenney in the vicinity of
the bank under suspicious circumstances in the weeks prior to the
robbery. On July 31, 1991, officers observed Flynn drive alone
- 11 - past the First N.H. Bank, then turn around on Frying Pan Lane, a
road just north of the bank and adjacent to the cornfield. Later
that day, they observed Flynn following an armored car on Route
101. When the armored car pulled into the First N.H. Bank, they
observed Flynn pull over south of the bank, get out of his car,
and watch the armored car as it conducted business at the bank.
On August 2, 1991, the officers observed Flynn's vehicle sitting
unoccupied next to the cornfield adjacent to the bank. The
officers later saw Flynn and Kenney walking along a dirt road
near the bank, in the direction of Flynn's parked car. On August
6, 1991, the officers observed Flynn and Kenney park Flynn's
vehicle on a dirt road and walk into the woods adjacent to the
bank, where they stayed for approximately fifteen minutes. That
night, Flynn, Kenney and Ferguson were seen at Flynn's house in
Hampton, New Hampshire. The next morning, the three were
observed leaving Flynn's house together. Later that day, Flynn
was seen driving alone near the bank and then sitting in his car
on Frying Pan Lane. Still later in the day, Flynn was observed
on Frying Pan Lane with his car door open and a person standing
beside the door. Shortly thereafter, he was seen driving away
from Frying Pan Lane with Kenney and Ferguson as passengers. The
- 12 - officers last observed Flynn and Kenney near the bank on August
14, 1991. The two were in the parking lot at the Market Basket
on Route 101 while an armored car was parked at the bank. When
the armored car left the bank, Flynn and Kenney followed it
toward Exeter, New Hampshire.
Kenney and Flynn also were together shortly after the
robbery under circumstances that support the government's
contention that Kenney participated in the robbery. Tanya
Ferguson, Richard Ferguson's niece, testified that she
encountered Flynn and Kenney in mid-September 1991 at the home of
her mother, Patricia Ferguson, in Upland, California. Kenney
told Tanya Ferguson that he was in California because he and
Ferguson had robbed a bank in New Hampshire, and that the bank
robbery had been his "dream in life." On October 8, 1991, Tanya
Ferguson witnessed Flynn and Kenney counting a large sum of money
in an upstairs bedroom in her mother's home. Shortly thereafter,
she saw Kenney carry a black bag into the garage. She had
previously noticed the bag in the bedroom where the two had been
counting money, and had seen Flynn hand the bag to Kenney as he
said, "Don't let anything happen to this - we get caught for it,
we'll be in trouble."
- 13 - 2. Undisclosed Evidence
The farmer who owned the cornfield adjacent to the bank
testified at trial that he saw a small, red, foreign-made
hatchback or station wagon4 parked on Frying Pan Lane next to the
cornfield on the day prior to the robbery.
Kenney discovered after he was convicted that the government
at one time suspected that the car the farmer had seen parked on
Frying Pan Lane was a red Nissan Maxima owned by Glenn Kerivan.
The government developed this suspicion on September 14, 1991
after police officers investigating an unrelated robbery of a
Service Merchandise store noticed the Maxima parked outside a
Malden, Massachusetts hotel room occupied by Kerivan, Richard
Ferguson, and James Hufnagle. The officers entered the hotel
room and arrested Ferguson and Hufnagle for the Service
Merchandise robbery. The officers discovered that Ferguson and
Hufnagle each were carrying in excess of $3,000 in cash that
4 None of the other witnesses referred to the red car during the trial. McQueeney testified that he drove Flynn to the bank and several other possible robbery sites in a red Ford Festiva. While a Festiva is a small, foreign-made hatchback that corresponds to the farmer's description of the car he saw, the government did not argue at trial that any of the robbers drove the Festiva to the scene the day prior to the robbery.
- 14 - could not be tied to the Service Merchandise robbery. The police
also conducted a warrantless search of the Maxima. They
discovered a partially-used roll of duct tape and a tire changing
kit that contained a prybar. New Hampshire Police Sergeant Colin
Forbes used this information and other evidence he had collected
during his investigation of the First N.H. robbery to obtain a
warrant to search the Maxima. In the affidavit he submitted in
support of the warrant application, he concluded that "[t]he
subject red 1987 Nissan Maxima herein described may have been
used in the planning of [the First N.H.] robbery, particularly
when a red foreign car was observed in the cornfield immediately
adjacent to the bank."
Kenney argues that Forbes' affidavit and other police
reports pertaining to Ferguson's arrest5 and the search of the
Maxima are exculpatory because they suggest that Ferguson
committed the First N.H. robbery with Kerivan and/or Hufnagle,
5 Police searched bags of clothing taken by hotel management after Ferguson's arrest from the room he had rented. In the bags they found a red "Champion" sweatshirt, a pair of blue sweat pants, six pairs of white sneakers, and a pair of black "Converse Magic" jogging pants. I reject Kenney's argument that the presence of these clothes in Ferguson's hotel room at the time of his arrest implicates Kerivan and/or Hufnagle in the First N.H. robbery.
- 15 - rather than Kenney.
DISCUSSION
Kenney has presented four exculpatory evidence claims in
support of his motion for a new trial, each pertaining to one or
more of the robberies described above. Because Kenney did not
raise his claims during his direct appeal, he must show "cause"
for his procedural default and "prejudice" resulting from the
government's failure to disclose the allegedly exculpatory
evidence. See Sustache-Rivera v. United States, 221 F.3d 8, 17
(1st Cir. 2000) (applying cause and prejudice test to defaulted
claims asserted in a § 2255 petition); Strickler v. Greene, 527
U.S. 263, 289 (1999) (applying cause and prejudice test to
defaulted exculpatory evidence claim). To show "cause," "a
petitioner must demonstrate that some 'external impediment,
whether it be government interference or the reasonable
unavailability of the factual basis for the claim, must have
prevented [him] from raising the claim.'" Watkins v. Ponte, 987
F.2d 27, 31 (1st Cir. 1993) (citing McCleskev v. Zant, 499 U.S.
467, 497 (1991)) (alteration in original).
"[I]n order to show prejudice sufficient to overcome a
- 16 - procedural default, a habeas petitioner 'must convince [the
court] that there is a reasonable probability that the result of
the trial would have been different' absent the error." Prou v.
United States, 199 F.3d 37, 49 (1st Cir. 1999) (quoting
Strickler, 527 U.S. at 289). "The question is not whether the
defendant would more likely than not have received a different
verdict with the [wrongfully withheld] evidence, but whether in
its absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence." Id. (citing
Strickler, 527 U.S. at 289-90) (internal quotation marks omitted)
(alteration in original).
I will assume for purposes of analysis that Kenney can
establish "cause" for his failure to raise his exculpatory
evidence claims in his direct appeal.6 Thus, I will determine
with respect to each claim whether the government's alleged
failure to produce the evidence in question prejudiced his
defense.
6 I also assume, without deciding, that the government withheld the evidence and that it would have been admissible at Kenney's trial.
- 17 - A. The Dress Barn Robbery
Kenney's conviction for the Dress Barn robbery rests on a
substantial amount of evidence put forth at trial. Co
conspirator testimony revealed that Kenney: (i) discussed how to
rob night depositories; (ii) admitted to robbing several night
depositories in New Hampshire; (iii) was dropped off at a spot a
few hundred yards from the site of the robbery on an evening in
June, carrying a white "painter's" mask and a gun; and (iv)
admitted the next day that he had robbed a woman. Further,
Sherouse's description of the robber closely matched Kenney, who
was the same age and was only three inches taller and 15 pounds
heavier than the upper range of Sherouse's description of her
assailant.
In contrast, there is no evidence suggesting that Gilpin
committed the crime other than that he was working at a nearby
restaurant when the robbery occurred, he was approximately the
same height as the robber, and he was wearing a shirt that was
similar in color to the jacket that Sherouse claimed the robber
had worn. Absent more, this kind of "other suspect" evidence is
simply too insubstantial to give rise to "a reasonable
probability that the result of [his] trial would have been
- 18 - different" if Kenney had been able to introduce evidence about
Gilpin at trial. Prou, 199 F.3d at 49 (quoting Strickler, 527
U.S. at 289); see also Downs v. Hovt, 232 F.3d 1031, 1036-37 (9th
Cir. 2000) (concluding that petitioner did not show reasonable
probability that result of her trial would have been different if
prosecution had turned over pictures and names of other
suspects); Coleman v. Calderon, 150 F.3d 1105, 1116-17 (9th Cir.
1998), rev'd on other grounds, 525 U.S. 141 (1998) (holding other
suspects not material7 without direct or circumstantial evidence
linking them to actual perpetration of the crime).
Applying the same standards set forth in the previous
section, I conclude that Kenney fails to demonstrate prejudice
resulting from the prosecution's failure to disclose evidence
relating to Charles Petralia's possible involvement in the August
7 The same standard for determining prejudice applies to determining materiality. "Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. . . . [T]he conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial." Downs, 232 F.3d at 1037 (citing United States v. Bagiev, 473 U.S. 667, 678, 682 (1985)) (internal quotation marks omitted).
- 19 - 3rd robbery. Kenney's conviction for this robbery was based on
detailed co-conspirator testimony. One of these co-conspirators
also testified that he had sold or otherwise disposed of items
taken during the robbery. Thus, evidence that Petralia cashed
checks taken from Fitzpatrick's residence is in no way
inconsistent with the jury's finding that Kenney had participated
in the August 3rd robbery.
Kenney has offered no additional direct or circumstantial
evidence linking Petralia to the August 3rd robbery other than
that he cashed checks that one of Kenney's co-conspirators claims
he sold him. This scant evidence fails to suggest, had Kenney
introduced it at trial, a reasonable probability that the result
of his trial would have been different. See Downs, 232 F.3d at
1037 .
Kenney's conviction for the August 17th robbery of
Fitzpatrick's person rests almost entirely on the testimony of
co-conspirator Richard Ferguson. Kenney raises an exculpatory
evidence claim that the government withheld valuable impeachment
- 20 - evidence relating to Ferguson's criminal history.8 The
undisclosed evidence about Ferguson's involvement with a shooting
in 1990, however, fails to meet the standard for prejudice.
The facts here are similar to those at issue in Mastracchio
v. Vose, 274 F.3d 590 (1st Cir. 2001). In that case, a
government witness who was an incarcerated prisoner did not fully
inform the jury about the favorable treatment he received from
the government in return for his testimony. See id. at 593-96.
The First Circuit determined that one of the witness's answers to
a cross-examination question was clearly false, and that
knowledge of its falsity could be imputed to the prosecutor. See
id. at 602. Upon analysis, however, the First Circuit agreed
with the Rhode Island Supreme Court's conclusion that the
undisclosed evidence regarding the witness's favorable treatment
"would not have in any circumstance created a reasonable
probability that the jury's verdict would have been any
different." Id. at 603 (internal citation omitted). The court
considered the fact that the witness's testimony had been
8 This claim relates to all counts on which Kenney was convicted based in part on Ferguson's testimony. I discuss it here because the August 17th robbery rests almost solely upon testimony from Ferguson.
- 21 - consistent, and that his "credibility was a major focus of the
trial, and the jury knew that he was no choirboy." Id. at 604.
As in Mastracchio, the jury in Kenney's trial was aware of
Ferguson's criminal history, Ferguson's credibility was a major
issue at trial, and Ferguson's testimony was consistent. It is
true that Ferguson was an important witness in the prosecution's
case against Kenney. However, Kenney has not shown that there is
a reasonable probability that the result of his trial would have
been different if he had been able to impeach Ferguson with
evidence that Ferguson had been present with his brother during
the crime that occurred in 1990. Indeed, Ferguson's alleged
involvement in the 1990 incident is obviously not inconsistent
with his claim that he had not been involved in any robberies
between 1986 and 1991, because the 1990 incident was not a
robbery. Further, even if Kenney had been able to confront
Ferguson at trial with his brother's testimony about the 1990
incident, it is unlikely that any cross-examination on the
subject would have added significantly to Kenney's defense
because it is likely that Ferguson would claim that he was a mere
bystander who was not otherwise involved in his brother's
criminal activity. For all these reasons, Kenney fails to meet
- 22 - the prejudice standard necessary to present his claim at this
late stage of the proceedings.
Like Kenney's other exculpatory evidence claims, his
argument involving the red Nissan Maxima fails to meet the
prejudice standard. Nothing about the evidence he cites
contradicts the substantial evidence establishing his involvement
in the First N.H. robbery.
Police observed and took surveillance photographs of Flynn
and Kenney following an armored car and watching the First N.H.
Bank during the months prior to the robbery. Co-conspirators
testified about Kenney's involvement in the planning and
preparation for the robbery, and about his actual participation
as one of the two men who entered the bank. The bank employees
who were present at the time of the robbery gave a physical
description of the robber's height and weight that was consistent
with Kenney's build. Tanya Ferguson testified about Kenney's
presence in California after the robbery, Kenney's confession to
her that he had robbed a bank in New Hampshire, and about seeing
Kenney counting a large sum of money.
In light of this considerable evidence, Kenney cannot
- 23 - credibly claim that there is a reasonable probability that the
result of his trial would have been different if he had been able
to introduce evidence concerning the red Nissan Maxima.
Prosecutors would likely have countered Kenney's suggestion that
the duct tape found in the car was connected to the robbery with
the explanation that its owner had been using the duct tape to
seal a leak in the car's sunroof. In addition, prosecutors might
have pointed out that, while investigators at one point believed
the red Nissan Maxima could have been used in planning the bank
robbery, they later rejected this conclusion. Finally, it is
worth noting that while a Nissan Maxima is a foreign car, it is a
sedan that is unlikely to be characterized as a small hatchback
or station wagon, the type of car the farmer claims he saw.
Kenney can point to no additional evidence implicating either
Kerivan or Hufnagle in the First N.H. robbery. The allegedly
withheld evidence he cites falls far short of putting Kenney's
case "in such a different light as to undermine confidence in the
verdict." Strickler. 527 U.S. at 290 (citing Kvles v. Whitlev,
514 U.S. 419, 435 (1995) ) .
- 24 - CONCLUSION
Although I have analyzed Kenney's exculpatory evidence
claims individually, I also find that the claims do not call into
question the reliability of his convictions when they are
considered together. The government painted a compelling picture
at trial of Kenney's guilt. The few isolated pieces of allegedly
exculpatory evidence he cites could not possibly have affected a
reasonably jury's assessment of his guilt. Accordingly, I deny
his motion because he has failed to demonstrate that he was
prejudiced by the government's alleged failure to produce the
withheld evidence prior to his trial.
Kenney's motion for a new trial (doc. no. 22) is denied.
SO ORDERED.
Paul Barbadoro Chief Judge
May 15, 2 002
cc: Peter E. Papps, Esq. Bjorn Lange, Esq.
- 25 -