U.S. v. Salemme
| Decision Date | 22 May 1997 |
| Docket Number | Cr. No. 94-10287.,Cr. No. 97-10009. |
| Parties | UNITED STATES of America v. Francis J. SALEMME, et al. UNITED STATES of America v. John MARTORANO. |
| Court | U.S. District Court — District of Massachusetts |
The previously redacted and sealed portions of the May 22, 1997 Memorandum and Order provided to the parties are now being unsealed because Angelo "Sonny" Mercurio has testified, and the government has acknowledged, that he was an informant for the government in connection with the October 29, 1989 electronic surveillance of 34 Guild Street, Medford, Massachusetts.
Accordingly, it is hereby ORDERED that the previously sealed and redacted portions of the attached May 22, 1997 Memorandum and Order (in footnotes 3 and 9) are UNSEALED.
Defendants Francis P. Salemme, Stephen J. Flemmi, James M. Martorano, and Robert DeLuca have moved for hearings to determine whether particular intercepted and recorded conversations that the government proposes to introduce as evidence in this case should be suppressed because the government failed to satisfy its statutory obligations to disclose, or disclose adequately, in its applications for the relevant court orders authorizing electronic surveillance the availability of certain confidential informants and/or pertinent information provided by those informants. The defendants have submitted a series of affidavits in support of this motion. The government opposes the motion, in part because the requested hearings would require it to confirm or deny that particular individuals were secretly providing information to the government.
In addition, the defendants, except for Flemmi, have moved for an order directing the government to disclose whether James J. "Whitey" Bulger, who is charged as a codefendant but has not been arrested or appeared, was during any or all of the period relevant to this case an informant for the government. The defendants contend that in the context of this case, which charges Bulger and his codefendants with, among other things, constituting a RICO enterprise and conspiring to extort bookmakers and drug dealers, the fact, if true, that Bulger was cooperating with the government would be exculpatory information, and also be relevant to evidentiary rulings that it is foreseeable the court will be required to make at trial. Once again, the government opposes this motion based in meaningful measure on its institutional interest in maintaining the confidentiality of its sources of information.
As these motions involve allegations that specified individuals have secretly served as informants, they implicate the generally recognized interest of the government in maximizing the confidentiality of its sources in order to encourage the flow of information from informants and the interest of particular possible informants in their own safety. Thus, at the request of the parties, the court has temporarily sealed all filings concerning these motions, received ex parte some submissions by the government, and conducted several hearings that were closed to the public.
For the reasons described in detail in this memorandum, the court concludes that the defendants are entitled to evidentiary hearings on their motions to suppress electronic surveillance: (a) jointly conducted in 1984 and 1985, by the Drug Enforcement Administration ("DEA") and the Federal Bureau of Investigation ("FBI"), which targeted Bulger, Flemmi, and George Kaufman, among others; (b) conducted on October 29, 1989, by the FBI, at 34 Guild Street, Medford, Massachusetts; and (c) conducted on December 11, 1990, by the FBI, at the Hilton Hotel in East Boston, Massachusetts. In connection with these hearings, the defendants are entitled to discovery concerning whether Angelo "Sonny" Mercurio, Robert Donati, Bulger, Flemmi, Anthony St. Laurant, Kenneth Guarino and perhaps others were at relevant times secretly providing information to the government. These hearings may also involve the question whether Boston Detective Sergeant Frank Dewan provided false or misleading information that was included in the applications for any of the electronic surveillance at issue.
The government has informed the court, in camera, that at times it elects to dismiss a case rather than confirm or deny the existence of a cooperating individual; in other instances it has, respectfully, refused to obey an order directing the disclosure of an informant, understanding that it would as a result be held in civil contempt and thus be able to, in effect, appeal that order; and, in any event, it must obtain the authorization of the Deputy Attorney General to comply with a court order requiring the identification of an informant. See April 16, 1997 Transcript ("Tr."), at 30-52 (); 28 C.F.R § 16.21 et seq. The government requested an opportunity to consider these options if the court were to decide to grant the motions now at issue and, if appropriate, to obtain the necessary authorization to comply. The court is granting that request.
Therefore, the government is being ordered to inform the court by May 29, 1997, whether it intends to comply fully with the Order now being issued. In any event, a hearing will be held on June 3, 1997 at 10:00 a.m. to address the relevant issues, including the unsealing of this Memorandum and Order, and possibly other documents and transcripts. However, because the concerns which caused the initial sealing of the record regarding these motions continue and it is not certain whether the government will comply with the Order to disclose informants now being issued, this Memorandum and Order shall be at least temporarily sealed.
The defendants are charged in the present, Fourth Superseding Indictment ("4SI") with, among other things, from 1969 to January 1995, engaging in a conspiracy to violate, and violating, the Racketeer Influenced Corrupt Organization ("RICO") statute, 18 U.S.C. § 1961 et seq. See 4SI Counts 1 and 2. They are also charged with conspiring to extort, and extorting, bookmakers and drug dealers from 1979 to June 1994. See 4SI, Counts 3 to 18.
With regard to the RICO charges, the alleged Enterprise is neither the Patriarca Family of La Cosa Nostra nor the Winter Hill Gang, organizations that have, in effect, been proven to be RICO enterprises in prior prosecutions. See, e.g., United States v. Angiulo, 897 F.2d 1169, 1175 (1st Cir.1990) (Patriarca Family); United States v. Angiulo, 847 F.2d 956, 960, 969-70 (1st Cir.1988) (Patriarca Family); United States v. Winter, 663 F.2d 1120, 1127-28 (1st Cir.1981) (Winter Hill Gang). Rather, the five defendants are alleged to have been part of a unique association-in-fact Enterprise made up of individuals who joined together to use their respective relationships with either the Patriarca Family or the Winter Hill Gang to, among other things, facilitate the unlawful activities of the Enterprise and to coordinate the activities of the Patriarca Family and the Winter Hill Gang. 4SI, ¶ 1(k); February 14, 1997 Bill of Particulars; August 23, 1995 Government's Response to Magistrate Judge Cohen's Order dated August 23, 1995, filed ex parte and under seal, at 4.
In several motions to dismiss the defendants have vigorously attacked the adequacy of the allegations concerning the Enterprise alleged in this case. After argument concerning the alleged deficiencies in the Third Superseding Indictment, the government obtained the Fourth Superseding Indictment, which amplified the RICO allegations.
After subsequent hearings, the court held that the Fourth Superseding Indictment adequately alleged the existence of an enterprise, but that the government would, among other things, have to prove that the alleged Enterprise had an ascertainable structure separate and apart from the pattern of racketeering activity in which it engaged. See United States v. Salemme, 1997 WL 37530, *1 (D.Mass. January 13, 1997). The court also held that, "`[t]he function of coordinating the commission of several different offenses and other activities on an on-going basis is adequate to satisfy the separate existence requirement.'" Id. (quoting United States v. Console, 13 F.3d 641, 651 (3rd Cir. 1993)).
The court did, however, order that the government submit a bill of particulars concerning the purported structure of the alleged Enterprise. Id. In response to that filing, the defendants have renewed their motion to dismiss.
If the renewed motion to dismiss is not allowed, it is evident that one element of the defense of this case at trial will be that the existence of the specific Enterprise alleged in the Fourth Superseding Indictment has not been proven beyond a reasonable doubt. It is foreseeable that proving the criminal participation of defendants Bulger and Flemmi in the alleged Enterprise will be important to establishing its existence and structure, and, therefore, important to proving the criminal culpability of all of the...
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