United States v. Bulger

United States Court of Appeals For the First Circuit

No. 13-2447

UNITED STATES,

Appellee,

v.

JAMES J. BULGER, a/k/a Jimmy, a/k/a Whitey, a/k/a Jim,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Thompson, Kayatta, and Barron, Circuit Judges.

Henry B. Brennan, with whom James H. Budreau was on brief, for appellant. Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

March 4, 2016

THOMPSON, Circuit Judge. After evading authorities for

fifteen-plus years, fugitive James "Whitey" Bulger, the head of an

organized crime syndicate in Boston from the 1970's to the 1990's,

was captured. Bulger, who had been indicted in connection with a

racketeering conspiracy while on the run, was brought to trial.

The jury found him guilty of the vast majority of charged crimes

and he was sentenced to life in prison. Bulger appeals the

conviction, claiming that he was deprived of his right to a fair

trial when both the government and trial court got a few things

wrong prior to and during trial. Having closely considered the

array of claimed errors, we affirm.

I. BACKGROUND

The factual underpinning of this case is considerable. The

events span decades and the cast of characters is large but this

appeal is circumscribed in scope making only certain details

pertinent. We chart the relevant origin and travel of the case,

saving the facts related to the maintained errors for later.1

A. The Indictment

In 2001, Bulger, who was on the run and had been for some

time, was charged with thirty-two counts of a racketeering

1 Bulger does not lodge a sufficiency of the evidence challenge. Rather his grievance relates to various evidentiary issues and, so, we present a more neutral summary of the facts up front, adjusting our approach as needed later. United States v. Flores- Rivera, 787 F.3d 1 , 9 (1st Cir. 2015).

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indictment along with Stephen Flemmi.2 It alleged that Bulger and

Flemmi were members of a criminal organization known as Winter

Hill (or some variation on this moniker) and part of a racketeering

conspiracy that extended from around 1972 to 2000 in South Boston.

Bulger, it said, participated in multiple racketeering acts,

including nineteen murders, extortion, narcotics distribution, and

money laundering.3 There were also an assortment of weapons

charges, e.g., possession of firearms and machineguns in

furtherance of a violent crime, possession of unregistered

machineguns, and transfer and possession of machineguns.

B. Arrest and Trial

Law enforcement finally caught up with Bulger in June of 2011,

finding him living under an assumed identity in California. He

was arrested and from there brought back to Massachusetts to stand

trial.

There was a good deal of pretrial skirmishing among the

parties and rulings from the court, the particulars of which we

will detail later. The same goes for the midtrial clashes and

edicts. We will chronicle those later too. For now we focus on

2 Flemmi's brother, Michael Flemmi, was also charged. Michael was said to have provided unlawful assistance to his brother and other gang members at various points, e.g., obstruction of justice and weapons possession.

3 The racketeering count alleged thirty-three underlying racketeering acts. Some acts were charged as a conspiracy, some acts as stand-alone substantive charges, and some as both.

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the substantive case that was presented to the jury over the course

of the three-month trial.

C. The Government's Case

The government called scores of witnesses: participants in

Bulger's operations, law enforcement officials, and forensics

experts. Some of the testimony came from Bulger's closest Winter

Hill associates -- Flemmi, John Martorano, and Kevin Weeks -- who

had all cut plea deals with the government, swapping their

cooperation for various benefits. The jury heard the following.

The government placed the start of the conspiracy at a 1972

meeting where Bulger's gang and another gang decided to go in

together on some kind of "gambling business" that targeted

individuals not affiliated with the mafia (also known as New

England La Cosa Nostra). A string of murders followed in the

ensuing years, which testimony linked Bulger to, along with other

criminal activities.

Then around 1975, according to government witnesses, Bulger

began acting as an informant to John Connolly, a Federal Bureau of

Investigation ("FBI") agent. At some point, their relationship

turned corrupt. Martorano and Flemmi (the latter, by his own

admission, had been an FBI informant dating back to the 1960's),

testified that Connolly began alerting Bulger to investigations

being made into Winter Hill's illegal conduct and Bulger, in turn,

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lavished Connolly with gifts and cash, with approximately

$230,000-plus going to Connolly over the years.4

For Bulger and his cohorts, the 1980's brought more murders

and the continued use of violence to extort large sums of money

from individuals. There were also a couple newer ventures: shaking

down drug dealers for a share of their profits and purchasing real

estate utilizing illegally obtained money.

The enterprise began to crumble in the summer of 1990 when

law enforcement arrested some individuals involved in Winter

Hill's drug venture. Fast forward a few years to 1994 when,

according to cohort Weeks, he was approached by Connolly who

informed him that indictments for Bulger and Flemmi "were

imminent." Weeks passed on the message to both. Bulger took heed

and fled, and after some short-term stops in New York and Chicago,

ended up in Santa Monica, California, where he remained until his

June 2011 arrest.

For his part, Flemmi stuck around and indeed was arrested in

January of 1995. He tried to avoid being prosecuted, arguing

during pretrial proceedings that he had been a secret FBI informant

and so was immune from prosecution. With the courts holding

otherwise, See United States v. Salemme, 91 F. Supp. 2d 141 (D.

4 Connolly was not the only compromised public official. According to the testimony, Winter Hill had similar quid pro quo arrangements with other corrupt law enforcement officers.

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Mass 1999); United States v. Flemmi, 225 F.3d 78 (1st Cir. 2000),

Flemmi agreed to cooperate with the government. In 2003, Flemmi

pled guilty to twelve murders, extortion, narcotics crimes, money

laundering, obstruction of justice, perjury, and firearms charges.

By the time of Bulger's 2013 trial, Flemmi was serving a federal

life sentence, as well as life sentences in Oklahoma and Florida.

Because of his agreement to assist the government, Flemmi avoided

the death penalty in those two states and got placed in a Federal

Bureau of Prisons segregated unit for government witnesses

(according to Flemmi, the living conditions are better there than

in general population).

Like Flemmi, Martorano was arrested in January of 1995.

Martorano, who had been a fugitive since 1979, was picked up down

in Florida. He pled guilty to various federal charges, including

ten federal murders, as well as two state murders. In exchange

for cooperating against Bulger (if apprehended) and Flemmi,

Martorano got just a fourteen-year sentence, to be served in a

special facility for government witnesses, with five years'

supervised release. On top of that, Martorano was allowed to use

property seized by the government to settle a judgment his ex-wife

had secured against him. He was released from prison in 2007.

Weeks was arrested in November of 1999 by the Drug Enforcement

Agency and Massachusetts State Police. He pled guilty to

racketeering crimes plus five murders, and received immunity for

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some state crimes, in exchange for his full cooperation. The plea

terms required him to testify in any case that was pending or

brought within three years of his plea agreement. Bulger's trial

marked the fifth or sixth trial that Weeks took the stand for.

As for Connolly, Bulger's FBI handler, he was indicted in

1995 (along with Bulger, Flemmi, and Martorano) for the murder of

a businessman that Winter Hill had dealings with. Connolly was

convicted by a jury some years later. At the time of Bulger's

trial, Connolly was serving his sentence down in Florida, after

having also been convicted of some federal charges in Massachusetts

stemming from his relationship with Winter Hill.

D. The Defense

Bulger's defense strategy was laid out during opening

statements. It was not a wholesale denial of any criminal

wrongdoing. Instead counsel tried to poke holes in the

government's case by casting doubt on the veracity of the

cooperating witnesses' testimony, namely Flemmi, Martorano and

Weeks. The defense harped on their background and character, as

well as "the unbelievable incentives the prosecution has given

these three men so that they will testify in the manner that the

government wants." It also sought to undercut the prosecution's

case by emphasizing the rampant corruption among federal law

enforcement at the time. And counsel vigorously disputed the

notion that Bulger had been an informant, instead claiming that he

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paid Connolly and other law enforcement members large sums of money

in exchange for information meant to ensure the continued

productivity of his criminal enterprise.

These themes continued through the defense's cross-

examination of government witnesses and direct examination of its

own witnesses, namely law enforcement agents. Bulger did not take

the stand.

E. The Verdict and Sentence

Eventually both sides wrapped up and after deliberating for

four days, the jury found Bulger guilty on all counts, save one

extortion count. With respect to the racketeering count in

particular, the jury found the government had proven some, though

not all, of the thirty-three racketeering acts alleged. The proven

ones included the murder of (and sometimes also the conspiracy to

murder) eleven individuals, multiple instances of extortion and

money laundering, and one act of narcotics distribution

conspiracy. Following a hearing, the trial judge sentenced Bulger

to life in prison, with an additional life and five-year sentence

to be served consecutively.

F. This Appeal

Bulger timely appealed. As alluded to above, he assigns error

to various court rulings and condemns certain actions of the

government. Bulger would have us find that standing alone, or

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cumulatively, the alleged miscues warrant reversal of his

conviction and a new trial.

II. IMMUNITY

Bulger's first claimed error relates to the court's pretrial

decision that barred Bulger from asserting at trial that he was

immune from prosecution, immunity, Bulger says, he was granted

long ago by a government attorney, one Jeremiah O'Sullivan. We

start with what happened below.

A. Background

Prior to trial, the defense filed a discovery motion seeking

all correspondence between various law enforcement agencies, e.g.,

FBI, United States Attorney's Office, Department of Justice

("DOJ"), and individual Winter Hill members, such as, Bulger,

Flemmi, and Martorano. As grounds for the request, Bulger

indicated that he "intend[ed] to show at trial that [he] had

immunity for the indicted conduct." Specifically, he claimed that

now-deceased former federal prosecutor, Jeremiah O'Sullivan, who

previously headed the DOJ's New England Organized Crime Strike

Force, promised Bulger that he would not be prosecuted for his

crimes.

The government opposed the request, calling the immunity

claim "frivolous and absurd," and asked the court to decide

pretrial that Bulger did not have an enforceable immunity agreement

with the government. In additional briefing, the government

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produced an affidavit from Associate Deputy Attorney General David

Margolis, who, in his capacity as Chief of the DOJ's Organized

Crime and Racketeering Section during O'Sullivan's tenure, had

been responsible for supervising O'Sullivan. Boiled down, the

affidavit said that O'Sullivan would not have had the authority to

confer immunity on Bulger. Margolis explained that certain

approval practices adhered to non-prosecution agreements and

grants of use immunity, and that O'Sullivan had never discussed

with him (or his deputies) the prospect of any agreement with

Bulger, nor sought the required authorization to enter into such

an agreement. Margolis stated that "if O'Sullivan did, in fact,

enter into any immunity or non-prosecution agreement with James

Bulger without obtaining the proper approvals, O'Sullivan would

have acted beyond the scope of his authority." The same went for

any purported agreement with O'Sullivan that contemplated immunity

for future violent criminal conduct, a concept Margolis deemed

"foreign."

The court (a different judge from the trial judge was

presiding over the case back then), after conducting a hearing,

ruled on the issue in March 2013. It found that pretrial

resolution of the immunity claim was warranted, and that Bulger's

claim of immunity for any crimes prospective to the grant (i.e.,

crimes that Bulger committed after O'Sullivan's purported promise)

was without authority and unenforceable. The court ordered

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supplemental briefing on the issue of historical immunity (i.e.,

crimes committed before the alleged immunity promise) so that

Bulger could properly respond to the recently produced Margolis

affidavit. The parties were also given the opportunity to request

an evidentiary hearing.

When the judge who made the initial ruling ended up recusing

from the case, and the ultimate trial judge took over, Bulger moved

to vacate the March 2013 order.5 After hearing argument, the court

issued its decision. Though it found no reason to vacate the

original order, it nonetheless decided to revisit the issues the

order had dealt with.

First, the court found that whether or not a valid immunity

agreement existed was indeed an issue for a judge's consideration,

as opposed to a jury's, for a few reasons. For one, it held that

immunity was a bar to prosecution that needed to be decided by the

court beforehand, as opposed to a defense that might go to the

jury. The court also concluded that the question of immunity was

entirely severable from the issue of whether Bulger was guilty or

5 The original judge was Judge Richard Stearns, whom Bulger petitioned to have recused given the judge's background in federal prosecution during the time period at issue in this case. This court granted that petition. In re Bulger, 710 F.3d 42 (1st Cir. 2013). To be clear, this court did not find (and there was no claim) that Judge Stearns was actually biased. Id. at 46, 49. Rather, this court concluded that "a reasonable person might question the judge's ability to preserve impartiality." Id. at 49. The ultimate trial judge, Judge Denise Casper, was assigned to take over.

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innocent of the charged crimes. Plus, deciding the issue pretrial

would either narrow the focus at trial, or, in the event things

went the other way, prevent an unnecessary trial.

As for the merits of Bulger's immunity claim, the court found

that Bulger had offered only a bare assertion (through defense

counsel's representations) that O'Sullivan gave him immunity

sometime before 1984, which extended until 1989 when O'Sullivan

left the United States Attorney's Office. Bulger provided no

evidentiary support, written or otherwise, for this claim and

declined the court's invitation for an evidentiary hearing. This

was inadequate, the court concluded. It stated that there was an

"insufficient proffer that any such promise of immunity was made

by a person with actual authority to make it or that Bulger

detrimentally relied upon such a promise, or that any such

agreement was enforceable as a matter of law."6

6 On appeal, Bulger suggests that the trial judge mistakenly assumed he intended to assert an all-or-nothing immunity defense for the charged crimes, and, according to Bulger, he "never made such a claim." The record belies this. The trial judge, in the written decision, wrote: "Bulger contends that O'Sullivan gave him immunity from prosecution of crimes in this district and that this agreement was entered into sometime before December 1984 and ended in 1989." This is a completely accurate characterization. In his brief to the trial court, Bulger alleged that the immunity agreement "bars federal prosecution of the defendant in the District of Massachusetts," and the "Dept. of Justice is therefore barred from prosecuting the defendant for any crimes that occurred prior to 1989." We do not see, and Bulger does not direct us to, any points below where he tried to pitch the matter to the court any differently. And, of note, Bulger does not actually come out and say how he intended to argue immunity, if not in an all-or-

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The court was also unpersuaded by Bulger's criticism of the

distinction the previous judge made between historical and

prospective immunity. According to Bulger (again this is just via

counsel's arguments and representations), the historical versus

prospective distinction made no sense because the grant of immunity

was actually "ongoing," in other words it extended from the grant

in 1984 until the end of O'Sullivan's tenure in 1989. The court

saw things otherwise. It concluded that regardless of whether

immunity was characterized as prospective, historical, or ongoing

from its alleged grant, Bulger's proffer was insufficient.

Finally, the court disposed of Bulger's argument that his

Sixth Amendment rights were being infringed by the court's

preclusion of his immunity claim, and by extension any testimony

in support thereof, since though restricted in his testimony,

Bulger was not actually barred from taking the stand to offer

pertinent and admissible testimony, and there is no constitutional

right to introduce irrelevant evidence.

With the immunity issue decided, the case went to trial.

Though not precluded from doing so, Bulger ultimately elected not

to testify. When questioned by the judge at the close of the

nothing fashion. He vaguely alludes to his being charged with a lot of crimes, and the court's ruling preventing him from "presenting an immunity defense for some crimes and relying on the government's burden of proof beyond a reasonable doubt of others." In any event, Bulger's revisionist view of what happened below gets him nowhere.

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defense's case about whether this election was voluntary, Bulger

stated: "I'm making the choice involuntarily because . . . I feel

that I've been choked off from having an opportunity to give an

adequate defense and explain about my conversation and agreement

with Jeremiah O'Sullivan. For my protection of his life, in

return, he promised to give immunity." After further lamenting

the court's decision and the "sham" trial he had received, Bulger

ultimately confirmed that he had decided not to testify.

B. Argument

On appeal, Bulger assigns error to the trial court's pretrial

immunity ruling. Broadly speaking (more to be said), Bulger argues

that whether he had immunity was a question solely for the jury

and should not have been taken up by the judge pretrial. The

judge's doing so, Bulger insists, ran afoul of both Federal Rule

of Criminal Procedure 12 and the Constitution, specifically the

protections the latter affords to an accused's rights to have a

trial by jury, testify, present a defense, and not self-

incriminate.7 In the alternative, even assuming this was a proper

pretrial matter, Bulger claims that the judge decided it wrongly

7 We will dig deeper into Rule 12's provisions later but for now it suffices to note that generally the rule sets forth the pleadings and pretrial motions procedures in criminal actions. Fed. R. Crim. P. 12. On a side note, Rule 12 was amended in December 2014 but "[n]o change in meaning [was] intended." Fed. R. Crim. P. 12(b)(1) advisory committee's notes to 2014 amendments. As a result, throughout this decision we cite to the 2013 version of the rule, which was in effect when this issue was decided below.

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because his proffer as to the existence of an immunity agreement

was sufficient.8 The government counters that immunity was

8 Within his immunity argument, Bulger makes passing reference to what is, as best we can tell, a tag-along claim. He argues not only that the pretrial ruling was wrong but also that the court also should not have, later on in the proceedings, prohibited him from testifying about "immunity-related matters," i.e., his relationships with DOJ officials, including O'Sullivan. Bulger does not flesh out this argument in his brief; what exactly he is talking about only became slightly clearer at oral argument. He pointed us generally to a day toward the end of the government's case against him where Flemmi, in response to a question from the prosecutor, indicated that in connection with his own criminal proceedings he initially (and falsely) made some type of authorization or immunity claim. Below, defense counsel zeroed in on this testimony, suggesting that since the prosecutor asked Flemmi about his prior claims of immunity, it somehow opened the door to Bulger taking the stand and being asked the same questions. The judge disagreed. Bulger did not object to the ruling nor did he present a proffer as to what precisely he would have testified about. See Fed. R. Evid. 103(a)(2); Fed. R. Crim. Proc. 51(b). Without a timely objection, we review Bulger's argument (charitably assuming it is crystalized enough) only for plain error. United States v. Delgado-Marrero, 744 F.3d 167 , 184 (1st Cir. 2014). Below defense counsel offered no proffer of Bulger's anticipated testimony and did not in any meaningful way explain why the testimony had suddenly become relevant, for example to rebut the government's claim that Bulger was an informant as he now suggests to this court (to be clear, we are not saying that such an argument should have carried the day). In light of the absence of any worthwhile offering from Bulger, it was reasonable for the trial court to conclude, as it did, that the proposed testimony would only be relevant insofar as it pertained to the issue of immunity. Because the court had already precluded Bulger pretrial from raising the immunity issue, and for reasons we will get into this decision was correct, the court's decision not to allow the testimony can hardly be characterized as an error, plain or otherwise. See United States v. Silva-Rosa, 275 F.3d 18 , 23 (1st Cir. 2001) (finding no error in the court's exclusion of testimony that was only relevant to the necessity defense, which the court had already properly excluded).

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correctly taken up pretrial and the judge properly, and without

impinging on Bulger's rights, precluded Bulger's immunity claim

based on an insufficient proffer.

C. Judge vs. Jury

The first question is whether the judge was right to take up

the immunity issue pretrial. The short answer is yes.

For one, our across-the-board research suggests that

resolving a defendant's claim that he is immune from prosecution

pretrial, as opposed to at trial, is more the norm than the

exception. See United States v. McLaughlin, 957 F.2d 12 , 15-16

(1st Cir. 1992) (affirming the trial court's pretrial denial of a

motion to dismiss an indictment based on immunity); United States

v. Silvestri, 790 F.2d 186 , 193-94 (1st Cir. 1986) (same); see

also United States v. Robertson, 736 F.3d 1317 , 1321, 1324-25 (11th

Cir. 2013) (same); United States v. Fishman, 645 F.3d 1175 , 1184-

85 (10th Cir. 2011) (same); United States v. Brimberry, 744 F.2d

580 , 586 (7th Cir. 1984) (holding that "[w]here a defendant

contends that his or her prosecution is precluded by a grant of

immunity, a motion to dismiss the indictment is the proper method

of raising the issue"). And Bulger does not direct us to any case

law that suggests otherwise.

What Bulger does contend, however, is that these cases are

inapposite because they involve instances where the defendant

sought to have the immunity issue decided pretrial, that is, moved

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to dismiss the indictment. Bulger claims that because he, unlike

those defendants, did not affirmatively seek to have the immunity

issue decided, it was inappropriate for the court to take up the

issue at the government's behest.

For support, Bulger points us to Federal Rule of Criminal

Procedure 12, which the government cited when it sought the

pretrial ruling. The rule provides that "[a] party may raise by

pretrial motion any defense, objection, or request that the court

can determine without a trial of the general issue." Fed. R. Crim.

P. 12(b)(2). Bulger claims that the plain language of this

particular subsection, and the corresponding advisory note make

clear that he can raise an immunity defense at trial without

seeking pretrial resolution of the issue. Bulger does not spell

out why he believes this to be the case. Our best guess is that

he is drawing our attention to the permissive "may" in Rule

12(b)(2) and the corresponding note, which explains that matters

falling under this provision may, at the defendant's option, be

raised before trial but failure to do so does not constitute

waiver.9 Fed. R. Crim. P. 12(b)(1), (2) advisory committee's notes

to 1944 adoption. But we fail to see how this is helpful to

Bulger's cause. That Bulger may raise immunity pretrial, and that

9 The next sub-section of the rule sets forth motions that must be made before trial, which do not include motions related to immunity. Fed. R. Crim. P. 12(b)(3).

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his failure to do so won't waive the issue, does not necessarily

mean that he and he alone can raise the issue, or that it was

improper for the court to consider the government's in limine

motion.

Not only does Bulger's argument make little sense but we see

no legal support for his position. To start with, it bears noting

that although Bulger did not file the actual motion seeking

pretrial resolution, it was he who put the issue into play,

indicating orally and in a filing before trial that "[t]he defense

intends to show at trial that James Bulger had immunity for the

indicted conduct." As a result, the government, as Rule 12

permits, requested that the court decide the issue pretrial. See

Fed. R. Crim. P. 12(b)(2) ("A party may raise by pretrial motion

any defense, objection, or request that the court can determine

without a trial of the general issue.") And immunity is

specifically cited as an example of one of those issues that can

be handled "without a trial of the general issue." Fed. R. Crim.

P. 12(b)(1), (2) advisory committee's notes to 1944 adoption. It

is logical for this to be so. Here, there was no need for a full

jury determination as to Bulger's guilt or innocence because he

argued that the immunity agreement barred his prosecution

regardless of any culpability on his part.

Simply said, we fail to see why the fact that Bulger was not

the one to file the motion or request the hearing, would

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automatically convert this limited immunity matter to one for the

jury. Nothing in Rule 12 itself requires this reading.

Indeed it would make little sense for the trial judge here,

when faced with Bulger's clear claim that he was barred from being

prosecuted in the very courtroom in which he sat, to conduct a

lengthy trial, only to have the jury potentially find that Bulger

should not have been prosecuted in the first place. A judge

plainly "'should be alerted to the possible superfluity of the

impending trial so that if the claim proves to have merit the time

and effort of a trial might be saved.'" Brimberry, 744 F.2d at

586 (alterations omitted) (quoting United States v. Buonomo, 441

F.2d 922 , 924-25 (7th Cir. 1971)).

Furthermore, despite Bulger's protestation otherwise, judges

can effectively make immunity determinations without usurping the

jury's fact-finding role.10 For one, judges are outfitted to make

factual findings (they of course do so regularly in varying

contexts) and Rule 12 contemplates that some factual

determinations might need to be made. Fed. R. Crim. P. 12(d)

("When factual issues are involved in deciding a motion, the court

must state its essential findings on the record."). Secondly, our

10Bulger suggests that there were outstanding issues of fact that should have been placed in the hands of a jury, namely whether he had immunity, whether O'Sullivan had the authority to grant it, and how far the immunity grant could extend.

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case law suggests that immunity agreements are appropriate fodder

for the court because, as we have explained in the context of an

immunity-in-exchange-for-cooperation agreement, such agreements

"are in the nature of contracts, their scope and effects are

strongly influenced by contract law principles," and the

defendant's rights under these agreements "are determined by the

terms and conditions of the bargain as found by the court."

McLaughlin, 957 F.2d at 16 (emphasis added); see also United States

v. Dudden, 65 F.3d 1461 , 1469 (9th Cir. 1995) (holding that the

district court properly refused jury instructions "ask[ing] the

jury to find whether an informal [immunity] agreement existed");

United States v. Gerant, 995 F.2d 505 , 510 (4th Cir. 1993) (finding

the defendant was not entitled to have a jury decide whether he

breached a non-prosecution agreement because that issue "involves

the right of the government to prosecute [the defendant] rather

than [his] guilt or innocence").

All of this securely undermines the notion that the judge was

wrong to consider immunity pretrial but a loose end remains. We

are still left with Bulger's vague claim that the court's decision

to take up immunity pretrial violated his constitutional rights,

namely, his Fifth Amendment right not to incriminate himself, and

his Sixth Amendment rights to have a trial by jury, present an

effective defense, and testify. However, we decline to address

these claims given that we think Bulger has a preservation problem,

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which proves dispositive. While Bulger points generally to some

cases to support the unarguable notion that the constitutional

rights he cites are important ones, he does not close the loop.

He fails to provide us with intelligible analysis, or case law, to

support his claim that the court's ruling in fact impinged on these

rights.11

Of course "we consider waived arguments 'confusingly

constructed and lacking in coherence.'" Rodríguez v. Mun. of San

Juan, 659 F.3d 168 , 175 (1st Cir. 2011) (quoting United States v.

Eirby, 515 F.3d 31 , 36 n.4 (1st Cir. 2008)). And constitutional

claims like the ones Bulger lobs are just the type of complicated

issues that call for some in depth treatment. See Tayag v. Lahey

Clinic Hosp., Inc., 632 F.3d 788 , 792 (1st Cir. 2011) ("This is

11 Bulger's most coherent constitutional argument is that, by requiring him to proffer evidence of the alleged immunity agreement pretrial, the court violated his Fifth Amendment right against self-incrimination. Even were we to suppose this particular claim preserved, Bulger loses on the merits. Bulger made this same claim below and the trial court disposed of it by invoking Simmons v. United States, 390 U.S. 377 , 390 (1968), which the court read to bar the government's use of Bulger's potential pretrial statements at trial. On appeal, Bulger says the court's offer of Simmons protection rang hollow given the potential derivative use of his testimony in other jurisdictions where he may have had criminal exposure. We are confused, and consequently unpersuaded, by this contention. Bulger's concern about the derivative use of any pretrial proffer does not square with his stated intent to testify in open court during trial about the very information the court asked for pretrial -- trial testimony which certainly could have been used later.

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hardly a serious treatment of a complex issue and is not adequate

to preserve the claim on appeal.").12

There is no need to say more. With the immunity issue

properly in the judge's hands, the only question that remains is

whether she resolved it correctly.

D. Merits

As we said, more typically a defendant who contends that an

immunity grant bars his prosecution would move pretrial to dismiss

the charges lodged against him. See McLaughlin, 957 F.2d at 15;

Silvestri, 790 F.2d at 193. In instances where the trial court

has denied the motion and allowed the case to proceed, appellate

courts assessing a challenge to that ruling have reviewed the trial

judge's factual determinations about the existence and scope of an

immunity agreement for clear error. United States v. Short, 387

F. App'x 308 , 312 (4th Cir. 2010) (reviewing for clear error

following the district court's denial of a motion to dismiss the

indictment based on a grant of immunity); United States v. Meyer,

157 F.3d 1067 , 1078 (7th Cir. 1998) (reviewing the trial court's

factual determination regarding the scope of an immunity agreement

for clear error); Silvestri, 790 F.2d at 193 (indicating that the

12 According to Bulger, the constitutional errors he alleges are structural in nature and, therefore, require automatic reversal rather than a harmless error analysis. Because we ultimately find his arguments waived, and to the extent his Fifth Amendment claim is preserved, without merit, we do not need to delve into this issue.

- 22 -

existence of a plea agreement that purportedly conferred immunity

on the defendant was a factual determination that could only be

set aside if clearly erroneous). We will borrow a page from that

playbook and do just that here. In doing so, we find that nothing

in this record persuades us that the court clearly erred.

As we explained, the trial judge found the factual record did

not establish that a legally enforceable promise of immunity was

made by someone with authority to do so or that Bulger

detrimentally relied on any such assurance. The court was not

clearly wrong. There was in essence no proffer from Bulger. He

did not offer, say by way of affidavit, particulars of the alleged

grant, such as when and where it was given, whether anyone else

was present, whether it was memorialized in some way, or whether

consideration was exchanged. The same goes for why immunity was

supposedly bestowed in the first place. Bulger did not proffer

any evidence as to what benefit he heaped on the government in

exchange for this extensive immunity grant.13 Nor did Bulger make

a plausible argument that O'Sullivan had actual authority to enter

13We are still hazy on the precise reason Bulger claims O'Sullivan purportedly gave him immunity. He has been vague on this point. For instance, in a discovery motion Bulger said the agreement was "in return for his assistance with a DOJ objective that did not include providing information about others" and that O'Sullivan "embraced" this objective. In his colloquy with the trial judge, regarding whether he was going to testify, Bulger said his protection of O'Sullivan's life was the impetus.

- 23 -

into the purported agreement.14 And as for whether Bulger relied

to his detriment on the alleged promise, perhaps by doing something

he would not have absent it, Bulger did not say one way or the

other. Instead the trial judge was left with a broad, bald

assertion from defense counsel lacking any particularized details

that Bulger entered into an immunity agreement with O'Sullivan

sometime prior to 1984, which barred Bulger's federal prosecution

in the District of Massachusetts.

Countering Bulger's rank assertion that he had been granted

immunity, we had the government's Margolis affidavit (though to be

clear the burden here is on Bulger, see Flemmi, 225 F.3d at 84),

which unambiguously provided that even assuming the unlikely event

of O'Sullivan entering into some agreement with Bulger, he would

not have been authorized to do so.

Bulger tries to poke holes in the Margolis affidavit, and the

government's position generally; however, he fails to convince.

For one, we do not find persuasive Bulger's conclusory challenge

to the DOJ regulations cited in the Margolis affidavit.15 The

14 We need not decide whether the supposed immunity grant Bulger describes would have been valid if O'Sullivan had the authority to enter into it.

15 The affidavit cites to the DOJ's Principles of Federal Prosecution, the Handbook for Prosecution of Racketeers, the Guidelines on the FBI Use of Informants and Confidential Sources, and a memorandum titled Use of Informants in Domestic Security, Organized Crime, and Other Criminal Investigations.

- 24 -

regulations, broadly speaking, addressed how informants and

cooperation agreements were handled in the department. Bulger

says these were simply internal guidelines that did not have the

force of law and were not binding on DOJ officials at the time of

this case. How Bulger reaches these conclusions is not entirely

clear. He briefly points us to both 28 U.S.C. § 547, which vests

United States Attorneys with the power to prosecute, and he talks

about the general notion "that the power to prosecute plainly

includes the power not to prosecute." Flemmi, 225 F.3d at 87.

These observations do not take Bulger far. That United States

Attorneys have the general ability to enter into immunity

agreements, hardly means that, one, O'Sullivan did so, two, that

in this particular instance he had the hierarchal authority to do

so or, more importantly, that Bulger came close to establishing

either thing. Moreover, though internal DOJ regulations do not

have the same force as the United States Code (a point we can all

undoubtedly get on board with), that does not render the

regulations inoperative or irrelevant to the inquiry we find

ourselves engaged in and therefore they were appropriately

factored into the mix below.16

16 In cursory fashion, Bulger also says that the government's contention that O'Sullivan had no authority to bestow immunity is irreconcilable with findings this court made in United States v. Winter, 663 F.2d 1120 (1st Cir. 1981), abrogated on other grounds by Salinas v. United States, 522 U.S. 52 (1997). He claims that in Winter -- a race-fixing case involving some of Bulger's

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Bulger's next contention is likewise unpersuasive. He argues

that the lack of any document memorializing the alleged immunity

agreement -- a fact the Margolis affidavit briefly pointed out --

should have been given little weight by the trial court in light

of the evidence showing that law enforcement, at the time, had a

history of manipulating files and fabricating evidence.17 Even

putting aside that the "evidence" he cites is a snippet of

testimony that came out after the court's pretrial immunity ruling,

and information that came out in other cases, the court below did

not appear to give much weight to the fact that no actual document

memorializing an immunity agreement ever turned up. Certainly the

lack of documentation was not stressed or highlighted in its

analysis. Rather the court focused on Bulger's failure to satisfy

cohorts -- this court upheld an informal grant of immunity by O'Sullivan. Notwithstanding the fact that Winter tells us nearly nothing about the scope of the immunity agreement (an agreement the government and cooperating witness acknowledged was consummated) or the process the attorney (who went unnamed) employed when entering into it, Bulger's read stretches Winter well beyond its holding. At most it stands for the proposition that United States Attorneys, as a general matter, can enter into informal immunity agreements in certain circumstances, see id. at 1132-35, and we do not conclude otherwise today. Rather we simply find that based on the facts of this particular case, Bulger did not establish that O'Sullivan entered into an agreement with him or that he would have had the authority to do so. Winter is simply not helpful to Bulger's cause.

17 Margolis wrote: "I am advised that a thorough search of the records of DOJ and the FBI disclosed no documentation that James Bulger was ever actually authorized to engage in any criminal activity."

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his burden of establishing the very existence of an enforceable

immunity agreement be it written or otherwise.

And the court was right to do so. Despite repeated

opportunities, Bulger declined to make a further proffer in support

of his immunity claim and likewise declined the court's offer of

an evidentiary hearing to test the Margolis affidavit. Bulger

took a calculated risk, choosing this course based on a strident

belief that the court was not authorized to decide the matter

pretrial, but, as we said above, that belief was misguided. Faced

with the scarcity of evidence offered by Bulger, and the Margolis

affidavit, we cannot say that the court clearly erred in finding

the evidence did not establish the existence of a valid and binding

immunity agreement.

That facet of the appeal decided, we soldier on.

III. THE MARTORANO CONCERNS

Bulger next presents a series of arguments that John

Martorano, Bulger's former Winter Hill compatriot turned

government witness, sits at the center of. We chart the relevant

background before proceeding to the arguments' particulars.

A. Background

As the reader now knows, Martorano cut a deal. He started

negotiating with the government back in 1998, ultimately admitting

to involvement in twenty murders, twelve of which stemmed from his

Winter Hill days. He pled guilty to ten (federally charged)

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murders, some other federal crimes, and two state murder charges.

In exchange for his guilty pleas, and his agreement to cooperate

in the prosecution of Bulger, Flemmi, and any corrupt law

enforcement members, Martorano walked away with just a fourteen-

year sentence plus five years' supervised release and by the time

of Bulger's trial, he was a free man. The information Martorano

provided ended up leading to murder charges against Bulger, Flemmi,

Bulger's FBI handler Connolly, and another FBI agent, Paul Rico.

Fast forward to October of 2012, when, about eight months

before Bulger's trial got underway, the government received an

anonymous letter. The letter alleged that Martorano (who of course

was a slated trial witness) was presently engaged in illegal

gambling activities and that his law enforcement handler,

Massachusetts State Police Lieutenant Stephen Johnson, was

impeding any attempts to investigate or prosecute this behavior.

The government filed an ex parte motion with the court alerting it

to the letter and indicating that an investigation would follow.

The investigation was completed by the State Police, which

detailed its findings in an extensive written report, a few months

later. The government informed the court of the end result, which

was that after interviewing a number of witness and reviewing

various exhibits, the investigators concluded that the anonymous

letter's allegations leveled against Lieutenant Johnson were

unfounded. The court granted a protective order for the anonymous

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letter, which prevented anyone else, including Bulger, from seeing

it.

A few months later, and about a month before trial, the

government alerted the defense to the allegations that Martorano

was gambling illegally and provided reports from some of the

investigation's interviews, including interviews with Martorano

and other involved individuals, which basically contained denials

of any wrongdoing.18 It did not provide the State Police's final

investigative report or the anonymous complainant's letter.

A few weeks after that (and the day before jury selection)

Bulger filed a motion, pursuant to Federal Rule of Criminal

Procedure 16 and Brady v. Maryland, 373 U.S. 83 (1963), seeking

all materials related to accusations of Martorano's ongoing

criminal conduct and Lieutenant Johnson's supposed shielding of

Martorano from investigation. According to Bulger, the materials

could be exculpatory and any investigative forbearance exercised

by law enforcement towards Martorano -- that is, Johnson protecting

Martorano and insulating his criminal activity -- would constitute

a promise, reward or inducement that should have been disclosed.

Bulger then filed a second motion seeking the full transcript of

the interview with the anonymous complainant, who had turned out

18During trial, defense counsel questioned Martorano regarding the allegations and he again denied any wrongdoing, indicating that he simply gambled with a friend at a casino.

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to be Massachusetts State Police Trooper Nunzio Orlando.19 He also

sought to stay the start of trial until these issues were resolved.

The trial judge reviewed the anonymous letter (Judge Stearns

had reviewed it the first time around) and the State Police

investigative report, which taken together we will refer to as the

ex parte materials. After doing so, the court issued an oral

ruling.

The court, which noted that a "full-fledged investigation"

had been undertaken by the State Police, found that the government

was not legally required to turn over materials related to the

tipster's allegations against Lieutenant Johnson since they "were

determined to be not just unsubstantiated . . . but, quote, false

and not factual." The court further found that, even if true, the

allegation that Johnson was protecting Martorano would only be

relevant if Martorano knew about this perk and there was no

suggestion that he had any such knowledge. As for Martorano's

alleged illegal gambling itself, the court noted that the

government had turned over documents to the defense related to

those allegations. After the court delivered its ruling, defense

counsel then questioned whether he would be allowed to call Trooper

Orlando (the formerly anonymous complainant who spurred the

19It is unclear precisely when it became known that Orlando was the complainant. The government in its brief to this court suggests that Bulger's attorneys had their own sources of information regarding Orlando's complaint.

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illegal gambling investigation) as a witness and the court

indicated that it would have to the give the question some further

thought.

With the issue resolved (at least as to the ex parte

materials), trial got underway and, as planned, Martorano was

called by the government to testify about Bulger's criminal past.

Not surprisingly, the deal he struck with the government also came

up. Martorano's 1998 plea agreement was entered into evidence,

and he was questioned by both the prosecution and defense about

his plea negotiations, along with the criminal conduct that put

Martorano in the spot he was in. More on the specifics later, but

for now it suffices to note that some of the questioning had to do

with which of his criminal cohorts Martorano was required to

provide information about, or testify against, pursuant to his

plea deal.

Meanwhile, as the trial plodded on, the parties quibbled over

potential witnesses. As we said, the judge had left open the issue

of whether Trooper Orlando could testify. With the issue still up

in the air, Bulger went ahead and placed Orlando on his trial

witness list. Citing various rules of evidence, the government

moved to preclude Orlando as a witness, along with others related

to the gambling investigation, arguing that they were being called

simply to rehash the false accusations.

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The court agreed. In a ruling from the bench, it precluded

Orlando from testifying, indicating that there was no basis for

admitting his testimony since the cover-up allegation had been

debunked. And assuming the defense wanted to impugn Martorano's

credibility with the testimony about the illegal gambling

allegations (as opposed to the supposed cover-up itself), the judge

opined that such evidence would be inadmissible under Federal Rule

of Evidence 608. See Fed. R. Evid. 608(b) (providing that

generally speaking "extrinsic evidence is not admissible to prove

specific instances of a witness's conduct in order to attack or

support the witness's character for truthfulness").

With the stage set, we proceed to the arguments Bulger makes

on appeal.

B. Martorano's Ongoing Criminal Conduct

Bulger remains unhappy with the court's restrictive decisions

relative to the supposed cover-up of Martorano's ongoing criminal

gambling conduct. He argues that he was entitled to the ex parte

materials (the anonymous letter and State Police investigative

report) under Brady and, hence, the court's decision to deny him

access to the materials was in error. For the same reasons Bulger

assigns error to that decision, Bulger also takes exception to the

court precluding Trooper Orlando from testifying.20 The government

20 Bulger's argument almost solely focuses on the exclusion of Orlando as a witness. However, he briefly mentions, and

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stands by the adequacy of its disclosure, arguing that it was not

required to turn over evidence relative to unfounded allegations

of investigative forbearance. And given that Orlando could only

testify about disproven allegations, he was properly excluded.

i. Ex Parte Materials

As to Bulger's access to the ex parte materials, "[w]e review

a district court's Brady determinations after its in camera review

for an abuse of discretion." United States v. López-Díaz, 794

F.3d 106 , 116 (1st Cir. 2015); United States v. Caro-Muñiz, 406

F.3d 22 , 29 (1st Cir. 2005).

Brady dictates that the government must "disclose 'evidence

favorable to an accused' that is 'material either to guilt or to

punishment.'" United States v. Cruz-Feliciano, 786 F.3d 78 , 87

(1st Cir. 2015) (quoting Brady, 373 U.S. at 87); see also Giglio

v. United States, 405 U.S. 150 , 150-51, 154-55 (1972) (requiring

the government to disclose evidence of a promise it made to a

witness). Favorable could mean exculpatory or impeaching in

nature, and material means "a reasonable probability that, had it

criticizes, the judge's decision to preclude as witnesses Neil Cherkas and Dominic Masella, two Martorano associates whose names came up in connection with the gambling investigation and who Bulger identified as potential witnesses. Because Bulger failed to develop this argument in any meaningful way, we deem it waived and focus (as he does) on Orlando. See Mazariegos v. Lynch, 790 F.3d 280 , 285 n.5 (1st Cir. 2015) (providing that failure to develop an argument waives it).

- 33 -

been disclosed, the result of the proceeding would have been

different." Cruz-Feliciano, 786 F.3d at 87.

Bulger contends that the ex parte materials qualify because

investigative forbearance that inured to Martorano's benefit,

which Bulger claims occurred, would not only call into question

Martorano's credibility but would fit squarely within the

defense's theory that the government was heaping benefits on

potential witnesses to secure certain convictions. Said another

way, Bulger thinks the ex parte materials were impeaching in nature

in the sense that they might affect the "jury's estimate of the

truthfulness and reliability of" Martorano, which could have meant

the difference here between acquittal and conviction. Conley v.

United States, 415 F.3d 183 , 189 (1st Cir. 2005) (quoting Napue v.

Illinois, 360 U.S. 264 , 269, (1959)).21

21Bulger's focal point, both as to the ex parte materials and the possible testimony of Trooper Orlando, is its potential to show that the government was heaping a benefit on Martorano by allowing his criminal activity to go unchecked, which might call his credibility into question. Bulger does not appear to argue that any tangential evidence of the alleged illegal gambling itself, which might be contained in the materials, or spoken to by Orlando, was relevant for that same purpose. To the extent he is, which we doubt and in any event would be an underdeveloped argument, it is not a particularly persuasive position. For starters, like we said above, the government turned over documents connected to the illegal gambling allegations themselves. To the extent Bulger was hunting for more, that evidence would be inadmissible, see Fed. R. Evid. 608(b) (providing, except in circumstances not relevant here, that "extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness"), which would cause problems not only for Orlando's testimony but also for the ex parte

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The theory Bulger floats necessarily requires a couple of

things. Johnson must have been complicit in ignoring some sort of

illegal gambling on Martorano's part, and Martorano must have been

aware that Johnson was looking the other way. The problem is this.

As the trial court found after reviewing the ex parte

materials -- and which our review confirms -- the allegations of

impermissible protection leveled against Lieutenant Johnson were

debunked. Specifically, the ex parte materials made clear that

the Massachusetts State Police conducted an extensive

investigation, which included a number of interviews, along with

evidence gathering and analysis. After all this, the investigators

concluded that the allegations aimed at Johnson were deemed, as

the court reported below, "false and not factual." And even had

some untoward behavior on Johnson's part been discovered, there

was no indication or even suggestion that Martorano knew what

Johnson was purported to be up to.

This being the state of things, we cannot conclude that the

court abused its discretion in holding that Bulger was not entitled

to the ex parte materials under Brady or Giglio (or any of their

progeny) and, as a result, in declining to stay the trial. See,

materials as well. See DeCologero v. United States, 802 F.3d 155 , 162 (1st Cir. 2015) ("Withheld information is material under Brady only if it would have been admissible at trial or would have led to admissible evidence.").

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e.g., United States v. Souffront, 338 F.3d 809 , 823 (7th Cir. 2003)

(finding that "[t]he failure to disclose untrustworthy and

unsubstantiated allegations against a government witness is not a

Brady violation"); United States v. Ray, 61 F. App'x 37 , 54 (4th

Cir. 2003) (finding that the government's delayed disclosure of a

statement did not violate Brady because the statement was "sheer

speculation"); United States v. Locascio, 6 F.3d 924 , 949 (2d Cir.

1993) (affirming the district court's conclusion that no Brady

violation occurred because, in part, the newly discovered

government reports contained "untrustworthy" allegations).

Orlando's allegations, which Bulger supposed were both

favorable and material, were disproven and allowing him to rummage

through the ex parte materials would have been just the type of

fishing exhibition that our jurisprudence does not contemplate.

See Caro-Muñiz, 406 F.3d at 29 ("Brady does not permit a defendant

to conduct an in camera fishing expedition through the government's

files.") (internal quotation marks omitted). The court did not

abuse its discretion in denying Bulger access to the materials.

That signals the end of this issue, but we think the following

bears mention. To be clear, our conclusion today by no means

suggests that the government can sidestep its Brady obligations

simply by conducting its own investigation and determining that

potentially discoverable allegations are unsubstantiated. Our

holding is limited to the facts of this case. Here, the court

- 36 -

conducted an in camera review of a significant amount of ex parte

materials, following a comprehensive internal State Police

investigation, which, by all indications, was conducted in the

ordinary course in response to a complaint lodged against one of

its officers. The court reviewed not only the final investigative

report, and the conclusions contained therein, but more impartial

documents, including interview summaries and excerpts. Based on

these, the court concluded, and our review confirmed, that not

only were the allegations dubious and unsupported but they were

false and not factual. Given all this, plus the absence of any

indication that the police investigation was conducted in bad faith

or skewed to reach a certain result, we cannot find that the

court's Brady ruling was an abuse of discretion.

ii. Excluded Witness

Similarly the court did not abuse its discretion in precluding

Trooper Orlando from testifying. See United States v. Occhiuto,

784 F.3d 862 , 867 (1st Cir. 2015) (providing that a district

court's denial of a defendant's request to call a witness engenders

abuse-of-discretion review). Orlando's testimony, Bulger says,

was further evidence of the government's charitable investigative

forbearance and therefore had the impeaching potential to impugn

Martorano's credibility. But, as explained above, the allegations

of a cover-up on Johnson's part were disproven and, therefore, any

testimony Orlando could offer relative to the issue would have

- 37 -

been irrelevant and highly prejudicial. See Fed. R. Evid. 402

("Irrelevant evidence is not admissible."); Fed. R. Evid. 403 ("The

court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of . . . unfair prejudice.").

With the proffered testimony failing to hit the essential

prerequisites for admissibility, the court's decision to exclude

it falls comfortably within its broad discretionary power to

exclude evidence. United States v. Maldonado-García, 446 F.3d

227 , 231-32 (1st Cir. 2006) (explaining that "district courts enjoy

wide latitude in passing upon the relevancy of evidence"); United

States v. Norton, 26 F.3d 240 , 243 (1st Cir. 1994) ("The district

court is vested with broad discretionary power to admit or exclude

evidence.").

We will not further belabor the point. This aspect of the

appeal disposed of, we continue on to Bulger's other Martorano-

based argument.

C. Martorano's Side Deal

As we mentioned earlier, Martorano was asked on the stand

about which of his cohorts he was expected to provide information

about, or testify against, pursuant to his plea deal.

Additionally, Massachusetts State Trooper Thomas Foley, who spent

much of his career investigating organized crime in Boston and who

also testified at Bulger's trial, was asked about his understanding

of Martorano's deal with the government. To this court, Bulger

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homes in on this testimony from Martorano and Foley. But bear

with us because his argument is hard to describe, hard to follow,

and difficult to square with the legal framework that he attempts

to fit it into.

As best we can tell, Bulger claims that the testimonies

Martorano and Foley gave in an entirely different case (a Florida

state case against Connolly, Bulger's FBI handler), which defense

counsel had Martorano and Foley read into the record during

Bulger's trial, establish that the government made a favorable

promise to Martorano when negotiating his plea agreement.

Specifically, in Bulger's opinion, the testimony reveals that the

government made some sort of side deal or off-the-books promise to

Martorano that he would never be required to testify against his

family or close friends, namely, his brother, James Martorano, or

friends Howie Winter and Pat Nee, who all had ties to Winter Hill.

This side deal, Bulger argues, was a benefit the government heaped

on Martorano that could have been impeaching in nature as it would

have cast doubt on his veracity.

Accordingly Bulger makes a couple of claims. One, the

government was required to disclose the supposed off-the-books

promise as impeachment evidence under Brady. And, two, the

prosecutor acted improperly by engaging in what Bulger suggests

were cagey lines of questioning that obfuscated the alleged back

door promise and allowed Martorano to testify falsely about who he

- 39 -

was obligated to testify against.22 The government denies any

wrongdoing but pays little attention to Bulger's Brady argument,

instead focusing on the false testimony piece. On that front,

according to the government, its examination of Martorano produced

only accurate information about who and what he was required to

testify about pursuant to his plea agreement. Regardless, we take

up both pieces of Bulger's claim.

i. Disclosure of an Agreement

The lack of accord between how the parties treat this issue

might stem from something we noted at the start of this side-deal

discussion: it is difficult to fit Bulger's argument into the legal

framework in which one typically finds a Brady failure-to-turn-

over-evidence claim. See United States v. Agurs, 427 U.S. 97 ,

107-08 (1976) (explaining the typical contexts in which Brady

claims arise).

The problem is a very basic one. We have no Brady decision

to review. By his own admission, when the purported non-disclosure

arose at trial, Bulger never asked the judge to decide whether an

off-the-books promise existed or whether any Brady violation had

22Bulger tacks on another "example of the prosecution's distortive practices" in his reply brief, claiming that the government repeatedly tried to elicit statements from FBI agent John Morris that contradicted testimony he gave in another case. Since this argument made its first appearance in the reply brief, we dispatch of it as waived. Soto-Padró v. Pub. Bldgs. Auth., 675 F.3d 1 , 8 (1st Cir. 2012).

- 40 -

occurred. This was so despite all of the evidence on which he now

relies -- Martorano's and Foley's Florida testimony -- being

available at trial. Left with no decision from the trial court,

we have no way to employ the abuse of discretion review that we

would normally apply to a trial court's Brady decision. United

States v. Celestin, 612 F.3d 14 , 22 (1st Cir. 2010); Caro-Muñiz,

406 F.3d at 29.

This being the state of things, we are left perplexed as to

what Bulger expects us to do with his claim of Brady error and he

does nothing to clear up this confusion. Bulger provides us with

no case law to support the notion that it is proper for us to take

up this issue in the first instance, and no law that would shed

any light on how such an inquiry might go. Left in the dark, we

decline to venture any farther. Whether you characterize Bulger's

Brady claim as unpreserved because he did not seek a ruling below,

or waived for failure to adequately develop it on appeal, his claim

fails. See, e.g., Mazariegos v. Lynch, 790 F.3d 280 , 285 n.5 (1st

Cir. 2015) (providing that undeveloped arguments devoid of legal

support are waived on appeal); Murray v. United States, 704 F.3d

23 , 32 n.10 (1st Cir. 2013) (suggesting, in connection with a writ

of coram nobis petition, that the petitioner's failure to timely

raise a Brady claim below might waive the issue).

- 41 -

ii. The Prosecutor's Questioning

That leaves us with the prosecutor's questioning, and whether

it brought out, or left uncorrected, false testimony about who

Martorano was required to testify against.

Courts have long held that prosecutors may not knowingly

present false evidence, including false testimony, or allow it to

go uncorrected when it happens. Giglio, 405 U.S. at 153; Napue,

360 U.S. at 269; United States v. Flores-Rivera, 787 F.3d 1 , 31

(1st Cir. 2015). Based on the record before us, we cannot conclude

that this is what happened here.

First, we disagree that the prosecutor, in actuality,

represented, or elicited testimony, that Martorano would be

compelled to testify against his friends and family, as Bulger

maintains. The prosecutor's lines of inquiry Bulger that points

to were not directed at whether Martorano was bound to testify,

but whether he had provided truthful information about all of the

individuals he was asked about. And the questioning that did

pertain to his testimonial obligations accurately pointed out in

what instances Martorano had to testify. This included a list of

targeted individuals, which on its face (and as the questioning

bore out), did not include James Martorano, Winter, or Nee.

Second, Martorano's and Foley's Florida testimony -- the

record evidence Bulger cites as establishing this supposed side

- 42 -

deal that the prosecutor was obfuscating and allowing Martorano to

testify falsely about -- was hardly conclusive.

For example, at defense counsel's urging, Foley read from the

transcript of his Florida testimony the following: "At the time we

were working on the case, realistically, John Martorano was not

going to testify against those individuals." Assuming "those

individuals" refers to some combination of James Martorano, Winter

and Nee, this sounds more like a general observation on Foley's

part as opposed to a firm indication that an actual agreement to

that effect existed. The Florida testimony that followed (again

Foley read this into the record), "I suppose it was part of an

agreement that his attorney made with the U.S. Attorney's Office,"

is equivocal at best. And when he was asked, in the Florida case,

whether the state police were on board with the agreement Foley

"suppose[d]" existed, he said: "Unfortunately, we were put in a

situation where we had to agree to that." The problem here is

that not only was Foley further expounding on a supposition, but

he later clarified that his understanding of Martorano's deal came

from the proffer period before Martorano's agreement with the

government was finalized.

Martorano's testimony, also yanked from the Florida state

case and read into the record below, was no more helpful.23 For

23 Defense counsel had Martorano read the Florida testimony into the record after Martorano, on the stand below, thrice responded

- 43 -

example, in the Florida case, Martorano was asked about having

told the government that James was with him during one murder and

whether "part of the plea agreement was that couldn't be used

against you," to which Martorano answered, "[p]ositively." He

responded the same when asked: "So that's something else you got

from the government?" The exchange is hard to follow but at most

seems to suggest that James's crime could not be used against

Martorano. And when asked, "[s]o part of the deal included

protection for your brother, James Martorano, right?" (again we

are still talking about the Florida testimony), Martorano

answered, "[s]ure." This testimony is probably the most supportive

of Bulger's position (at least as to a James-based side deal) but

we scarcely think it is enough. The response is inexact, as is

the nature of the protection.

We can hardly say that these vague snippets, plucked out of

context from another trial, establish that the prosecutor

elicited, or allowed to go uncorrected, false testimony about the

bargain Martorano and the government struck. And when we consider

the integration clause in Martorano's plea agreement, providing

that the written agreement contained the complete and only

agreement between the parties, and the government's consistent

"[n]o" when asked whether he thought he could protect his brother James, Winter, and Nee respectively.

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claim that it produced all Brady materials pretrial, Bulger's

position becomes even more untenable.

While we do not need to go any further, the following is worth

a mention. A "conviction obtained by the knowing use of perjured

testimony is fundamentally unfair, and must be set aside if there

is any reasonable likelihood that the false testimony could have

affected the judgment of the jury." Agurs, 427 U.S. at 103

(footnote omitted); see also Mastracchio v. Vose, 274 F.3d 590 ,

601 (1st Cir. 2001). Here the jury heard all about the litany of

incentives built into Martorano's plea agreement and his sweeping

criminal past. In other words, they had plenty of reasons to

question his veracity. It is hard to see how one additional

enticement would have upended the jury's estimate of Martorano's

credibility.

With that said, we plow on.

IV. PROSECUTOR'S SPEAKING OBJECTIONS

Bulger's final argument focuses on the prosecutor's continued

use of prolonged speaking objections during the trial. Bulger

maintains that the objections saturated the jury with improper and

inadmissible evidence and opinions. The government, for its part,

does not deny engaging to some extent in the verbose practice,

but, it insists, the judge intervened when needed and ensured that

both sides gave a balanced and fair presentation of the evidence.

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A. Background

At the final pretrial conference the judge cautioned both

sides: "In terms of objections, you know, object with a word or

two if you think its necessary and citation to the rule, but

otherwise, no speaking objections. If I need any more, I'll ask

for it." Despite the judge's stated preference, the government

sometimes ran afoul of this directive. For example, the prosecutor

was heard to say things like: "Objection, this is badgering," or

"And I object. There is no good-faith basis for that question, and

Mr. Brennan knows that." And (among others) there was: "I object

to that, that's an incorrect statement of the law." Despite

repeated admonishment from the judge, both in front of the jury

and at sidebar, the prosecutor's practice continued.

B. Analysis

Assuming favorably to Bulger that his claim of error is

preserved, our review of whether there was any prosecutorial

misconduct is de novo.24 United States v. Sepúlveda-Hernández, 752

F.3d 22 , 31 (1st Cir. 2014). If we conclude such misconduct did

occur, we then consider the prejudice piece, that is, "whether the

24The government contends that Bulger's claim is at best partially preserved because he did not formally object to all of the speaking objections. And although he did move for a mistrial based in part on the speaking objections, he never renewed that motion even though the government continued with its verbose practice. Given that Bulger did object on multiple occasions to the speaking objections, including moving for a mistrial, we will go ahead and assume the objection preserved.

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prosecutor's behavior so poisoned the well that the defendant must

be given a new trial." United States v. Vázquez-Botet, 532 F.3d

37 , 56 (1st Cir. 2008) (internal quotation marks omitted). Factors

include: "the egregiousness of the conduct; the context in which

it occurred; whether the court gave curative instructions and what

effect these instructions likely had; and the overall strength of

the Government's case." Id.

We have some doubts that the prosecutor's use of speaking

objections amounted to prosecutorial misconduct, but even assuming

it did, we cannot conclude that the conduct so poisoned the well

as to warrant a new trial.

First, the conduct is plainly not that egregious. Sure the

record shows that the prosecutor did not faithfully adhere to the

court's request for clipped objections, but to say, as Bulger does,

that counsel was misleading the jury or inserting improper evidence

is a stretch. Most of the objections Bulger points to involve

proper quibbles with the basis for defense counsel's question.

For example, there was: "And I object. There is no good faith basis

for that question, and Mr. Brennan knows it." The judge sustained

this objection. Or there was: "Objection. That's not a fair

characterization." The judge responded by asking defense counsel

to rephrase. As we have said, "[c]ounsel should not be held to

standards of perfection," Sepúlveda-Hernández, 752 F.3d at 32, and

the objections here were not so beyond the pale. Second, though

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Bulger points to a fair amount of speaking objections, we are

required to place them in context. The objections were made over

the course of a lengthy trial and, as the trial judge noted,

attorneys on both sides managed to work in some animated commentary

while questioning or objecting.

Third, while the court gave no curative instructions, Bulger

did not request any. And the court did give plenty of general

instructions about trial protocol. On the first day of trial, the

judge explained the concept of objections to the jury. The judge

indicated that a "lawyer may object," which "simply means that the

lawyer's requesting that I make a decision on a particular rule."

She clarified: "Statements and arguments by the attorneys are not

evidence. The lawyers are not witnesses." Similarly,

"[o]bjections are not evidence." The judge repeated the same

sentiment in the charge to the jury at the close of the case, and

we presume the jury to have followed all of these instructions.

See United States v. Gentles, 619 F.3d 75 , 82 (1st Cir. 2010) ("It

is a well established tenet of our judicial system that juries are

presumed to follow such instructions.").

Finally, the government's case was not a weak one. It

introduced numerous witnesses and exhibits all pointing towards

Bulger's guilt. Given all this, we have no trouble concluding

that even had the speaking objections constituted misconduct,

Bulger was not prejudiced.

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V. CONCLUSION

For the reasons spelled out above, Bulger got a fair trial

and none of the complained-of conduct on the court or government's

part warrant reversal of his conviction.25 We affirm.

25 In the interest of completeness, we note that Bulger raised a claim of cumulative error. Because we find no merit to the individual claims, as a matter of course there can be no cumulative error. United States v. Brown, 669 F.3d 10 , 28 (1st Cir. 2012).

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