225 F.3d 78 (1st Cir. 2000), 99-2292, US v. Flemmi

Docket Nº:99-2292
Citation:225 F.3d 78
Party Name:UNITED STATES OF AMERICA, APPELLANT, V. STEPHEN J. FLEMMI, DEFENDANT, APPELLEE
Case Date:September 11, 2000
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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225 F.3d 78 (1st Cir. 2000)

UNITED STATES OF AMERICA, APPELLANT,

V.

STEPHEN J. FLEMMI, DEFENDANT, APPELLEE

No. 99-2292

United States Court of Appeals, First Circuit

September 11, 2000

Heard June 5, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Mark L. Wolf, U.S. District Judge]

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[Copyrighted Material Omitted]

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Elizabeth D. Collery, Attorney, United States Dep't of Justice, with whom Donald K. Stern, United States Attorney, and Fred M. Wyshak, Jr., Brian T. Kelly, and James D. Herbert, Assistant United States Attorneys, were on brief, for appellant.

Kenneth J. Fishman, with whom Fishman, Ankner & Horstmann, Kimberly Homan, and Sheketoff & Homan were on brief, for appellee.

Before Selya and Lynch, Circuit Judges, and Schwarzer,[*] Senior District Judge.

Selya, Circuit Judge

This appeal arises out of a relentless effort by the Federal Bureau of Investigation (FBI) to infiltrate, and eventually to smash, the New England branch of La Cosa Nostra (LCN). To achieve its goal, the FBI struck a Faustian bargain with two reputed organized crime figures, James "Whitey" Bulger and Stephen Flemmi. We concentrate on Flemmi, because he is the protagonist in this appeal.

For thirty years, Flemmi - one of Boston's most notorious gangsters - functioned behind the scenes as an FBI informant. Eventually, however, the government severed the tie. It later indicted him (along with several others) on multiple counts of racketeering and kindred offenses. Flemmi's double life began to emerge during the protracted pretrial proceedings that ensued.

Once the cat was out of the bag, Flemmi sought to turn his informant status to his advantage. His efforts were rewarded

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when the district court found that his FBI handlers had promised him use immunity in respect to the fruits of electronic surveillance conducted at three specified locations. See United States v. Salemme, 91 F.Supp.2d 141, 164-65, 329, 400 (D. Mass. 1999). Based on this finding, the court prohibited the government from using that evidence against Flemmi. See id. at 400. This interlocutory appeal followed.

In its present posture, the case turns principally on an important question of first impression in this circuit: Do FBI agents, acting independently, have the authority to confer use immunity on a confidential informant? After carefully considering the arguments advanced by the parties, we conclude that they do not. Thus, the alleged promise of use immunity, even if made, was unauthorized (and, therefore, unenforceable), and the district court erred in suppressing the evidence in question.

I. BACKGROUND

We recount the background facts, focusing on the circumstances relevant to this appeal. We refer the reader who hungers for greater insight into the seamier side of law enforcement to the district court's more exegetic treatment. See id. at 148-315.

Flemmi long has been a fixture in Boston's organized crime hierarchy, reputedly engaging in (or overseeing) activities as varied as loan-sharking, extortion, gambling, drug trafficking, and homicide. For much of that period, he and Bulger, as the leaders of the Winter Hill Gang (also known as the Irish Mob), did extensive business with LCN. In the 1960s, Flemmi and Bulger saw a chance to hamstring their competitors and simultaneously ingratiate themselves with the authorities. Accordingly, they began talking to FBI sources about LCN activities. By 1967, the FBI had designated both men as top-echelon informants - a term defined at the time, according to a knowledgeable witness, as encompassing individuals who "could provide a continuous flow of quality criminal intelligence information regarding the leaders of organized crime." The data that Flemmi and Bulger provided enabled the FBI to make significant progress in its investigation and prosecution of major LCN figures.

Many of the particulars of this uneasy alliance are disputed, and Flemmi often attributes promises and assurances to FBI agents who deny having made them. For present purposes, we accept the district court's resolution of these conflicts - but we do so arguendo, without critical examination of the supportability of the court's findings.

Flemmi claims that his initial FBI handler, Agent Paul Rico, promised him protection against prosecution. When a state grand jury indicted Flemmi in 1969 for a car bombing and a murder, Rico supposedly suggested that he flee. Flemmi took the advice and remained a fugitive for over four years, returning only when Rico assured him that he would be released on bail and that the indictments thereafter would be dismissed. These predictions proved to be prescient.

Once back in town, Flemmi continued to provide information to the FBI. Agent John Connolly became his handler, and Flemmi developed a cordial (some might say cozy) relationship with Connolly and Connolly's supervisor, John Morris. Flemmi testified that both men afforded him "protection" in various ways: they warned him about electronic surveillances and wiretaps, interceded with the authorities to fend off charges, and stonewalled investigators who were looking into Flemmi's activities.

A prime example of this protection occurred in 1979. Jeremiah O'Sullivan, a federal prosecutor who headed the Organized Crime Strike Force in Boston, spearheaded an investigation into a race-fixing scheme. When indictments seemed imminent, Morris and Connolly divulged to O'Sullivan that Flemmi was an FBI informant.

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Others were indicted, but Flemmi was not.

In 1980, the FBI purposed to introduce an electronic listening device into a redoubt on Prince Street, reputed to be LCN's regional headquarters. Morris and Connolly asked Flemmi and Bulger to visit the site and gather information regarding alarms, locks, and other security devices. The agents allegedly assured them that, once the bug became operational, nothing on the ensuing tapes would be used against them.1 The two informants carried out this mission and, in addition, supplied information on which the government relied to establish probable cause for the necessary warrant. See 18 U.S.C. § 2518(1), (3). Although Morris and Connolly warned Flemmi to avoid the Prince Street location, and he did so, the electronic surveillance yielded taped conversations that implicated Flemmi in multifarious criminal activity.

In 1986, the FBI obtained information from Flemmi that established probable cause for electronic surveillance of Vanessa's Restaurant (where LCN meetings supposedly were taking place). Flemmi claims that Morris and Connolly asked him to provide a diagram of the meeting room. Although he received no express assurances, he asserts that he "reasonably understood" that the same promises applied here as at Prince Street. Flemmi also asserts that he understood the Prince Street promises to pertain to his 1989 role in securing a "roving bug" that memorialized an LCN induction ceremony at 34 Guild Street in Medford, Massachusetts.

In 1990, the FBI "closed" Flemmi as an informant. Not too long thereafter, a federal grand jury began probing the activities of Flemmi, Bulger, and others. In August 1994, Bulger warned Flemmi that an indictment was imminent, and the two men fled. Bulger remains at large and has not testified in the proceedings below. Conversely, Flemmi returned a few months later and the FBI arrested him. On January 10, 1995, a federal grand jury handed up an indictment against Flemmi, Bulger, and several other defendants. The indictment charged Flemmi with suborning perjury, Hobbs Act extortion, conspiracy to commit extortion, racketeering, and racketeering conspiracy. See 18 U.S.C. §§ 1512, 1951, 1962(c)-(d). The case was assigned to Judge Wolf.

For the next two years, Judge Wolf was unaware that Flemmi had been an FBI informant. The facade crumpled in March of 1997, when the judge came across sealed submissions identifying Flemmi as such. Judge Wolf spoke privately with Flemmi on April 16, 1997, and soon thereafter Flemmi disclosed his informant status to his counsel and his co-defendants. The government, responding to the district court's order, then confirmed that Flemmi had been an FBI source.

In due course, Flemmi filed a series of motions seeking to dismiss the charges against him due to government misconduct or, alternatively, to suppress evidence derived directly or indirectly from statements he had provided to the government. The district court convened an evidentiary hearing and took testimony from January 6 to October 30, 1998.

On September 15, 1999, Judge Wolf issued a 661-page opinion. He concluded, inter alia, that the FBI had promised Flemmi both use immunity and derivative use immunity anent the conversations intercepted at Prince Street, Vanessa's Restaurant, and Guild Street. See Salemme, 91 F.Supp.2d at 164-65, 329, 400. In reaching this conclusion, the judge found that Morris and Connolly had expressly promised Flemmi that none of the evidence overheard at Prince Street would be used against him "directly or indirectly."

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Id. at 400. Based on this assurance, the judge reasoned that, although Morris and Connolly had not made any equivalent promises with respect to Vanessa's Restaurant and Guild Street, Flemmi "had an agreement implied in fact from the promise concerning 98 Prince Street and the conduct of the government that there would be no direct or indirect use against him" of the evidence intercepted at those locations. Id. at 329.

Having determined that promises were made, Judge Wolf ruled that these promises were enforceable. He grounded this ruling in the thesis that FBI agents have authority to promise immunity as part of their power "to investigate federal crime" and...

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