A federal appeals court has denied a prisoner’s bid to vacate a 29-year old conviction based on Boston mobster James “Whitey” Bulger’s corrupt relationship with law enforcement.
On January 4, the U.S. Court of Appeals for the First Circuit in Murray v. U.S. affirmed a denial of Michael Murray’s petition to vacate a 1984 conviction for conspiracy to possess marijuana. Murray’s ultimate goal was to reduce his sentence for a later crime—which the conviction involving Bulger as an informant was used to enhance—and thus secure immediate release from prison. But the court rebuffed his unusual legal maneuver.
In 1984, Murray and six other defendants were convicted for the marijuana scheme after the FBI and the Drug Enforcement Agency (DEA) seized the drugs from two vehicles, a garage in Dorchester, Mass., and a warehouse in South Boston.
At the time, the court found that the warrant to search of the warehouse was supported by probable cause based on direct observation by law enforcement, marijuana evidence seized from the vehicles and information from three confidential informants.
Murray’s four-year sentence was cut to 18 months, the time served at the time of his deal.
Ten years later, that conviction factored into Murray’s 30-year sentence, when he was convicted of marijuana distribution.
In 2007, Murray filed a rare legal petition—one for a writ of error coram nobis, which is used to fix “fundamental errors of fact or law.” Murray claimed that Bulger was one of the confidential informants law enforcement relied on in the warrant application and that FBI agents learned of the warehouse filled with marijuana from Bulger.
He claimed that if the FBI disclosed Bulger’s name and his relationship with the FBI, it would have materially affected the suppression hearing and discredited the agents’ testimony at trial.
In November 2011, Judge William Young of the District of Massachusetts denied Murray’s petition, and in March 2012, he denied Murray’s motion for reconsideration. Murray appealed.
Chief Judge Sandra Lynch wrote the opinion, joined by Senior Judge Norman Stahl. Judge Michael Boudin heard oral arguments in the case but did not participate in the opinion.
Lynch detailed the circuit’s three-part test to determine eligibility for coram nobis: A petitioner must explain the failure to seek relief earlier, show significant damage from the challenged judgment and demonstrate that a fundamental error caused the judgment. Then, a fourth step is to determine whether the facts and circumstances of the case warrant a writ.
The panel made “certain assumptions in Murray’s favor” to conclude that he met the first two parts of the test. But Lynch wrote that Murray’s 1984 conviction did not rest on a fundamental error because the omitted and allegedly false statements in the affidavit in support of the warrant were not material for the warrant. She also noted that “other evidence strongly pointed to Murray’s guilt.”
“The issue of whether or not the FBI agents were untruthful regarding how they first learned of the warehouse, and regarding Bulger’s role in providing that knowledge, does not undermine confidence in the conviction,” Lynch wrote.
She observed that even if there were errors in the trial, under the fourth part of the test it was “entirely appropriate” that Murray’s current sentence take into account a previous crime.
Lynch concluded by noting that the First Circuit does not “excuse or condone the FBI’s illicit involvement with Whitey Bulger.…But the connection to Murray’s 1984 conviction, for a crime he did commit, is too attenuated to support his petition.”
Rosemary Scapicchio, a Boston solo practitioner who argued for Murray, said she was disappointed because she thought her argument that Whitey Bulger was the sole connection between Murray and the warehouse that was searched was clear.
“The court found that the two other informants gave information about the warehouse when in fact neither of those informants said anything about he warehouse and each of their information was more than a year old,” Scapicchio said.
The U.S. Attorney’s Office for the District of Massachusetts did not respond to requests for comment. Assistant U.S. Attorney Randall Kromm argued for the government.
Sheri Qualters can be contacted at firstname.lastname@example.org.