RICHARD STEARNS, District Judge
A preliminary note: Turner's insistence that because the court gave an entrapment instruction more generous than the facts warranted, it is now bound to his view of the law of entrapment as the "law of the case" is based on a fundamental confusion of the two different aspects of the doctrine.
One branch [of the law of the case doctrine] involves the so-called mandate rule (which, with only a few exceptions, forbids, among other things, a lower court from relitigating issues that were decided by a higher court, whether explicitly or by reasonable implication, at an earlier stage of the same case). The other branch . . . provides that "unless corrected by an appellate tribunal, a legal decision made at one stage of a civil or criminal case constitutes the law of the case throughout the pendency of the litigation."
Ellis v. United States,
313 F.3d 636, 646 (1st Cir. 2002) (citations and internal quotation marks omitted). That is not, however, to say that under the second branch, a trial court is forbidden from reconsidering its previous orders.
Interlocutory orders, including denials of motions to dismiss, remain open to trial court reconsideration, and do not constitute the law of the case.
Union Mut. Life Ins. Co. v. Chrysler Corp.,
793 F.2d 1, 15 (1st Cir. 1986) (citing 1B James W. Moore et al.,
Moore's Federal Practice ¶ 0.404[4.1], at 124 n. 4
("[U]ntil entry of judgment, [interlocutory orders] remain subject to change at any time.
The doctrine of law of the case does not limit the power of the court in this respect.") (emphasis added) (2d ed. 1993));
see also Commerce Oil Refining Corp. v. Miner,
303 F.2d 125, 128 (1st Cir. 1962) ("a ruling denying a motion to dismiss is not the law of the case, and is not final even in the district court"). Second, although the law of the case doctrine implements an important judicial policy against reconsidering settled matters, it "is neither an absolute bar to reconsideration nor a limitation on a federal court's power."
United States v. Rivera-Martinez,
931 F.2d 148, 150-151 (1st Cir.),
cert. denied,
112 S.Ct. 184 (1991).
Perez-Ruiz v. Crespo-Guillen,
25 F.3d 40, 42 (1st Cir. 1994).
Even under the first branch of the doctrine, it is always open to a district court to correct an error resulting from intervening law. "We have, therefore, recognized that a district court may, as an exception to the law of the case doctrine, reexamine a previous ruling when `controlling authority has since made a contrary decision of the law applicable to such issues.'" CPC International, Inc. v. Northbrook Excess Surplus Ins. Co., 46 F.3d 1211, 1215 (1st Cir. 1995) (quotingRivera-Martinez, supra at 151).
That said, the exercise is somewhat beside the point. The court's instruction was based on a theory of vicarious entrapment, as expounded in United States v. Valencia, 645 F.2d 1158 (2d Cir. 1980). As summarized in Valencia, a defense of vicarious entrapment arises in the following circumstance: "[i]f a person is brought into a criminal scheme after being informed indirectly of conduct or statements by a government agent which could amount to inducement, then that person should be able to avail himself of the defense of entrapment just as may the person who receives the inducement directly." Id., 645 F.2d at 1168. Cf. United States v. Hollingsworth, 27 F.3d 1196, 1204 (7th Cir. 1994) ( en banc) ("[W]hen a private individual, himself entrapped, acts as agent or conduit for governmental efforts at entrapment, the government as principal is bound."). But see United States v. Thickstun, 110 F.3d 1394, 1399 (9th Cir. 1997) ("There is no reason to distinguish between a defendant induced to commit crime by a self-motivated private person and one induced by an entrapped private person. In neither case does the inducer realize that he is working on behalf of the government, and neither case implicates the policies behind the entrapment defense."). The Valencia formulation of the theory was explicitly rejected in United States v. Bradley, 820 F.2d 3, 8 (1st Cir. 1987) ("[W]e decline to follow the divided opinion in [Valencia], and would not extend the defense to a remote defendant without, at least, a showing that pressure had been put upon him by the intermediary at the instruction of the government agent."). In United States v. Rogers, 102 F.3d 641, 645 (1st Cir. 1996), the case on which Turner relies, the First Circuit again rejected Valencia's "constructive agent" rule, albeit with a caveat. "Under the case law the government would be responsible if Cunniff [the government agent] told Oberlander [the unsuspecting intermediary] to apply the pressure or inducement later deemed improper, and perhaps if Cunniff knowingly tolerated it, but not if Cunniff were ignorant of it." Id., 102 F.3d at 645. It is on the tentative "perhaps" that the decision to give Turner an entrapment instruction hung.
Hollingsworth reflects the usual understanding of "derivative entrapment," the theory which the court explained in its June 17, 2003 Order did not apply in Turner's case because of the undisputed evidence that Merlino, the conduit, was not entrapped.
Turner's overheated hypothetical, in which he posits a predisposed and therefore unentrapped intermediary threatening to kill a remote defendant unless he agreed to participate in a robbery, would not, if the threats did not originate with the government, be cause for an entrapment instruction, although it would likely give rise to a defense of coercion. Cf. id., 102 F.3d at 645 ("[T]he entrapment `defense' applies only if the improper inducement derives from the government. . . . Otherwise, the defendant has available only more difficult-to-prove defenses such as coercion and necessity. . . ."). But the hypothetical assumes facts that are irrelevant to Turner's case. The Loomis Fargo robbery had been conceived by Merlino long before he had been approached by Romano with the suggestion of an "insider" contact at the Loomis Fargo facility and visions of a multi-million dollar heist. Indeed, according to Merlino, Turner had accompanied him to the facility on a surveillance mission long before Romano appeared on the scene. Nor was there any evidence (other than Turner's sloth in returning telephone calls) to suggest any lack of willingness on his part to join in the robbery. See id. ("[E]ven undue pressure or inducement is irrelevant where the defendant was already predisposed to commit the crime."). There is no evidence that Merlino threatened Turner or offered any inducement other than a proportional share of the proceeds of what Merlino had been led to believe would be a particularly lucrative robbery. Nor is there any evidence that Romano or his FBI handlers were privy to any undue pressure brought by Merlino on Turner (indeed the evidence is that there was none). The most that can be said is that Romano may have endorsed and encouraged Merlino's idea of including Turner as a member of the brigandage. It is the absence of any evidence to suggest that Turner was not predisposed to commit the robbery that led to the court's observation that the entrapment instruction, even under the most expansive view of Rogers, was more generous than Turner deserved. See United States v. Rodriguez, 858 F.2d 809, 814 (1st Cir. 1988) (explaining that a defendant's entry level burden to be entitled to an entrapment instruction requires the production of "hard evidence" supporting a claim both of government inducement and the absence of predisposition).
There is simply no defense of private entrapment as Turner's hypothetical seems to suggest. United States v. Emmert, 9 F.3d 699, 703 (8th Cir. 1993). Cf. Colorado v. Connelly, 479 U.S. 157, 166 (1986) (Even "[t]he most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause.").
Against this background, I see no reason to revisit the subject of attempting to elicit testimony from the reluctant Chicofsky. Even assuming that Chicofsky could be persuaded to waive his Fifth Amendment privilege and testify, in Turner's most hopeful vision, Chicofsky would only provide further confirmation that the FBI believed that Merlino had access to the stolen Gardner paintings. The FBI's suspicion that Merlino had played a pivotal role in the Gardner robbery was fully aired at the trial as a possible motive for attempting to ensnare Merlino (and Turner) into the Loomis Fargo plot. Chicofsky's testimony would thus, at best, have been merely cumulative of evidence already before the jury, and given Chicofsky's record of unreliability, more likely hurtful than helpful to Turner's defense.
The same can be said with respect to the supposedly exculpatory evidence recently produced by the government. That the FBI sought the assistance of other federal agencies in its investigation of Merlino and Turner and their possible involvement in the Gardner Museum robbery is not surprising, and nothing in the ATF file naming Turner as a key suspect in the murder of a witness in an unrelated trial, or indicating that the ATF had sought (unsuccessfully) to persuade the U.S. Attorney's office to apply for judicial authorization to place a tracking device on Turner's car could be said to be helpful in any material sense. "[E]vidence 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. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome [of the trial]." United States v. Bagley, 473 U.S. 667, 682 (1985). See also Kyles v. Whitley, 514 U.S. 419, 434 (1995). Evidence that Turner was a suspect in a murder would have been unlikely to provide any sway to the jury in its assessment of Turner's motive and predisposition in gathering an arsenal of lethal weapons to commit a robbery. Turner's defense at trial was entrapment. The defense was laid out for the jury and rejected. That Turner was a "person of interest" to the FBI was not a state secret, and in the light most favorable to Turner, may explain the FBI's satisfaction at his enlistment by Merlino as an accomplice in the Loomis Fargo robbery. But no amount of motive on the FBI's part can overcome the fact that Turner was fully predisposed to commit the crime.
ORDER
For the foregoing reasons, the motion to reconsider is DENIED. The court agrees with the government that inviting further briefing of the motion for a new trial, it intended only that the parties supplement the arguments that have already been developed. There is no reason to reinvent the wheel.
SO ORDERED.