First Circuit Dismisses Appeal of Court’s Failure to Sanction Federal Prosecutor

by Matt Clarke

On July 22, 2013, the First Circuit Court of Appeals dismissed an appeal by the Massachusetts Bar Counsel challenging the failure of a district court and a three-judge disciplinary panel to discipline an Assistant U.S. Attorney who allegedly withheld exculpatory evidence in a federal criminal case.

Jeffrey Auerhahn was a U.S. Department of Justice (DOJ) special attorney for the investigation and prosecution of Boston’s Patriarca crime family in the New England Strike Force’s Organized Crime and Racketeering Section. He worked closely with Boston police detective Martin Coleman.

In investigating the 1985 murder of Vincent Limoli, who worked for Patriarca soldier Vincent Ferrara, the Strike Force was able to develop an informant named Walter Jordan, who, along with Pasquale Barone, was seen with Limoli shortly before he was killed. In exchange for almost complete immunity and being allowed into the witness protection program, Jordan told Coleman and Auerhahn that Ferrara had ordered the hit on Limoli, Jordan had helped set up the hit and Barone had “whacked” Limoli.

Connecting Ferrara to the Limoli hit was crucial in prosecuting him on organized crime charges. Without evidence that Ferrara had ordered the hit on Limoli to move up in the Patriarca crime family, the RICO prosecution would have been compromised.

While waiting to testify in the trials of Ferrara and Barone, Jordan met with Detective Coleman and informed him that after the murder, Barone told him Ferrara had not given him permission to kill Limoli, and they had to flee Boston because Ferrara wanted to kill them both for murdering Limoli without authorization. Jordan admitted having withheld this information, and Coleman memorialized Jordan’s admission in a handwritten memo.

Coleman then met privately with Auerhahn and was very upset about Jordan’s potential testimony, which threatened to derail the prosecution. Auerhahn claimed he did not ask about the details of what was wrong because Coleman was so upset that Auerhahn thought he might have a heart attack.

Coleman then initiated a phone call between him, Auerhahn and Jordan to talk about Jordan’s testimony, and Jordan again stated that Barone said Ferrara had not given him permission to kill Limoli. Auerhahn later prepared a “significantly toned-down version” of Coleman’s memo that was less damaging to the prosecution’s case (the “Auerhahn memo”). At a subsequent meeting with Auerhahn present, after being pressured Jordan once again stated that Barone had denied Ferrara had given him permission, but said Barone had then immediately passed it off as a joke.

After Ferrara pleaded guilty, Auerhahn revealed Jordan’s statements in a separate, related prosecution. Meanwhile, Barone was convicted and sentenced to life plus 20 years. Jordan contacted the Strike Force in 2002, claiming that he had been intimidated into giving false testimony against Ferrara and Barone. They both eventually received habeas corpus relief and were released from prison; Barone had served 10 years while Ferrara had served 13.

In affirming the district court’s grant of habeas relief, the First Circuit stated, in Ferrara’s case, that “...we are dealing with more than simple neglect to turn over exculpatory evidence; the government manipulated the witness (Jordan) into reverting back to his original version of events, then effectively represented to the court and the defense that the witness was going to confirm the story (now known by the prosecution to be a manipulated tale) that [Ferrara] was responsible for killing Limoli.”

The appellate court also noted that “[a]t the evidentiary hearing, Auerhahn claimed never to have seen the Auerhahn memo. The District Court rejected this self-serving disclaimer, finding explicitly ‘that Auerhahn not only saw the document, he prepared it.’” See: Ferrara v. United States, 456 F.3d 278 (1st Cir. 2006).

The DOJ launched an investigation into the botched prosecution, and the DOJ’s Office of Professional Responsibility released a 112-page report in 2005 that found Auerhahn had acted in reckless disregard to discovery obligations and failed to comply with a court order to produce all of his notes of his meetings with Jordan. The U.S. Attorney issued a letter of reprimand.

Finding that a reprimand was inadequate, in 2007 the district court asked the state Bar Counsel to initiate disciplinary action against Auerhahn. Bar Counsel determined that Auerhahn had violated several state bar disciplinary rules and recommended that he be disciplined. The court appointed a three-judge panel to determine an appropriate sanction; however, the panel found that Bar Counsel had “failed to prove by clear and convincing evidence that Auerhahn ever learned of [Jordan’s] statement, if it was made at all.”

Bar Counsel appealed the decision, but the First Circuit determined there was no standing for the appeal, as Bar Counsel “was not a party to Auerhahn’s disciplinary proceedings and thus may not appeal the Panel’s decision.” Consequently, the appeal was dismissed for lack of jurisdiction. See: In re Auerhahn,724 F.3d 103 (1st Cir. 2013).

Auerhahn remains employed with the U.S. Attorney’s office in Boston.

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