U.S. v. Salemme

• Decision Date: 06 June 1997
• Docket Number: Cr. No. 94-10287-MLW.
• Citation: 978 F.Supp. 364
• Parties: UNITED STATES of America v. Francis P. SALEMME, et al.
• Court: U.S. District Court — District of Massachusetts

978 F.Supp. 364

UNITED STATES of America v. Francis P. SALEMME, et al.

Cr. No. 94-10287-MLW.

United States District Court, D. Massachusetts.

June 6, 1997.

Anthony M. Cardinale, Boston, MA, for Robert P. DeLuca.

MaryEllen Kelleher, Law Office of Richard Egbert, Boston, MA, Anthony M. Cardinale, Boston, MA, for Francis P. Salemme, Sr.

Kenneth J. Fishman, Bailey, Fishman & Leonard, Boston, MA, Richard M. Egbert, Boston, MA, for Stephen J. Flemmi.

Michael C. Bourbeau, Boston, MA, Robert A. George, Boston, MA, for James M. Martorano.

Martin G. Weinberg, Oteri, Weinberg & Lawson, Boston, MA, Anthony M. Cardinale, Boston, MA, for John V. Martorano.

Fred M. Wyshak, Jr., U.S. Attorney's Office, Boston, MA, for U.S.

MEMORANDUM AND ORDER

WOLF, District Judge.

I. Summary

On May 22, 1997 this court allowed defendants' motions for evidentiary hearings concerning their motions to suppress certain electronic surveillance that the government proposes to introduce as evidence in this case. For the reasons described in detail in the court's forty-nine page Memorandum, in connection with those hearings the court ordered the Attorney General or her designee to disclose whether James J. "Whitey" Bulger, Angelo "Sonny" Mercurio, Robert Donati, Kenneth Guarino, and/or Anthony St. Laurant has at any time in the period from 1967 to the present served as a confidential source of information (however internally designated) for any agency, agent, or attorney of the United States Department of Justice, including but not limited to the Federal Bureau of Investigation ("FBI"). At the request of the defendants and the government the submissions relating to defendants' motion and the May 22, 1997 Memorandum and Order were placed, at least temporarily, under seal.

After requesting and receiving two extensions of time to respond, on June 3, 1997 the government, in a series of sealed submissions: (1) disclosed to defendants that Bulger was an FBI informant during a substantial part of the time during which he is alleged to have committed the crimes charged in the Fourth Superseding Indictment in this case; (2) conceded that there was a proper basis for the court to have ordered evidentiary hearings on the defendants' motion to suppress electronic surveillance; (3) respectfully declined to confirm or deny the informant status of any individual other than Bulger at the direction of Acting Deputy Attorney General Seth P. Waxman, exercising the authority vested in him by 28 C.F.R. § 16.21 et seq.; and (4) filed a motion and memorandum requesting that the court reconsider and revise its May 22, 1997 Memorandum and Order that the government disclose whether Mercurio, Donati, Guarino and/or St. Laurant were informants.

A hearing on the motion to reconsider, among other things, was held on June 3, 1997. Defendants oppose that motion. In addition they have moved to have the Acting Deputy Attorney General held in civil contempt for his failure to obey the May 22, 1997 Order. Defendants Francis P. Salemme Robert DeLuca, and James Martorano have also moved to have the May 22, 1997 Order, related submissions, and transcripts of related proceedings unsealed. The government agrees to the proposed unsealing to the extent that it relates to Bulger and defendant Stephen Flemmi, but otherwise opposes it. Flemmi generally opposes the motion to unseal.

The court has seriously considered further its decision to require that the government disclose whether Mercurio, Donati, Guarino and/or St. Laurant were informants, as well as the other pending motions. For the reasons set forth below, the government's motion for relief from the Order requiring it to confirm or deny the status of certain individuals as informants is being denied. The court's May 22, 1997 Order, however, is being revised. The Acting Deputy Attorney General is now being ordered to, by 12:00 noon on June 12, 1997:(1) make the required disclosures; or (2) inform the court whether the Department of Justice agrees to the dismissal of this case or the exclusion at trial of the electronic surveillance relating to the alleged informants now at issue and any evidence derived from it, see 18 U.S.C. § 2515. The Acting Deputy Attorney General shall then also submit an affidavit and memorandum seeking to show cause why defendants' motion that he be held in civil contempt should not be granted.

In addition, the motion to unseal the May 22, 1997 Memorandum and Order is being allowed.¹ A decision on the request to unseal all related submissions and transcripts of related proceedings is being reserved pending a review of those materials.

II. The Motion to Reconsider

After the defendants' March 11, 1997 oral motion for evidentiary hearings concerning certain electronic surveillances and, in connection with them, a statement of whether specified individuals were government informants who were not disclosed or adequately described, as required by federal law, in the applications for the Orders authorizing those electronic surveillances, the court received a series of submissions from the parties, including some government filings that were allowed to be made ex parte for the court's consideration in camera. As indicated earlier, at the request of the government and the defendants, these filings and related proceedings were not open to the public at least pending resolution of the defendants' motion. The court held eight hearings or conferences concerning defendants' motion, two of which involved only government counsel, prior to taking the matter under advisement. The court then carefully considered the positions of the parties, decided the merits of the motion, wrote a fifty page Memorandum and Order, issued the decision to the parties in a forty-nine page form that redacted certain information furnished by the government to a magistrate judge in camera, and placed that decision temporarily under seal, in meaningful measure based upon the representation of Paul Coffey, Esquire, Chief of the Organized Crime Section of the Department of Justice, that in comparable cases the government had declined to obey orders to disclose informants and either dismissed the case or, in effect, appealed those orders after being held in civil contempt. April 16, 1997 Transcript ("Tr.") at 38 (in camera colloquy between Coffey and the court).

The government's motion to reconsider essentially repeats and reemphasizes arguments it has unsuccessfully made previously. Nevertheless, as described in the May 22, 1997 Memorandum and Order at 13-15, the court has been, and remains, keenly sensitive to the fact that there is a public interest in maintaining the confidentiality of informants which is overcome only if a defendant has made a specific showing that "the disclosure of an informant's identity, or the contents of his communication is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause." Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 628, 1 L.Ed.2d 639 (1957). See also United States v. Formanczyk, 949 F.2d 526, 529 (1st Cir.1991); United States v. Estrella, 567 F.2d 1151, 1153 (1st Cir.1977). Therefore, the court has again carefully considered the government's renewed arguments. Once again, however, the court finds that the interests favoring continued confidentiality of whether Mercurio, Donati, Guarino, and/or St. Laurant were informants are outweighed by the fact that disclosure of their status is essential to resolving substantial allegations of government misconduct which, if proven, could result in the exclusion of important evidence and, defendants will likely argue, the dismissal of this case. Therefore, the relief sought by the government is not justified.

The reasons for these conclusions remain essentially as stated in the May 22, 1997 Memorandum and Order. The court will, however, address further some of the points the government reemphasizes in its motion to reconsider.

A. The October 29, 1989 FBI Electronic Surveillance at 34 Guild Street

The government "concedes that defendants have made a substantial showing that Mercurio was a government informant and may have been in possession of information about the location of the so-called Mafia induction ceremony prior to entry of the roving order by Judge Nelson on October 27, 1989." Government's Motion for Reconsideration of the Court's May 22, 1997 Order at 7-8. ("Gov. Motion for Reconsideration"). If, as the defendants' evidence indicates, Mercurio was an informant and learned on October 25, 1989 that the induction ceremony would be held at 34 Guild Street on October 29, 1989, this court would be required to reconsider its findings in denying the motion to suppress in United States v. Ferrara, 771 F.Supp. 1266 (D.Mass.1991), that the violations of 18 U.S.C. § 2518 that the court found resulted from good faith errors, id. at 1309, and, in any event, were not material to whether a roving warrant would have been issued by a judge who had all of the legally required information, id. at 1310-11. See May 22, 1997 Memorandum and Order at 33-34. More significantly, the government's memorandum in support of its motion to reconsider does not address directly the important point that the omitted fact that a government informant was planning to attend the October 29, 1989 induction ceremony arguably could have influenced a judge to have found that no electronic surveillance, roving or fixed, was justified. Id. at 34.

The government does, however, suggest that, if necessary, it will stipulate to certain facts, including the facts that it had a confidential informant at the induction ceremony, but that he was unwilling to testify. Gov. Motion for Reconsideration at 10 and Attachment A. The government also proposes that the defendants stipulate to the government's version of the date on which it learned the location of the induction ceremony. Id. The short answer to this proposal is that at the June 3,...