Ferrara v. U.S.
| Decision Date | 12 April 2005 |
| Docket Number | No. Civ. 00-11693-MLW.,Civ. 00-11693-MLW. |
| Citation | 384 F.Supp.2d 384 |
| Parties | Vincent FERRARA v. UNITED STATES of America |
| Court | U.S. District Court — District of Massachusetts |
TABLE OF CONTENTS
I. SUMMARY ....................................................................387
II. FACTS ......................................................................390
III. ANALYSIS ...................................................................408
A. Summary of Analysis .....................................................408
B. Ferrara Has Stated A Claim On Which Relief May Be Granted And That
Claim Is Not Barred By The Teague v. Lane Doctrine ....................410
C. The Reasonable Probability Standard Applies .............................421
D. Ferrara Was Denied Due Process And Is Entitled To Relief.................423
E. Remedy ..................................................................433
IV. CONCLUSION .................................................................440
V. ORDER ......................................................................441
This is the latest — and hopefully the last — in a series of related cases that have demonstrated extraordinary misconduct by the Department of Justice in its investigation and prosecution of members of the Patriarca Family of La Cosa Nostra (the "LCN"). See, e.g., United States v. Salemme, 91 F.Supp.2d 141 (D.Mass.1999); United States v. Flemmi, 195 F.Supp.2d 243 (D.Mass.2001); United States v. Connolly, 341 F.3d 16 (1st Cir.2003). In this case, petitioner Vincent Ferrara has proven that he was denied Due Process when the government, led by Assistant United States Attorney Jeffrey Auerhahn, violated its clearly established constitutional duty to disclose to him, before trial, important exculpatory information that directly negated his guilt on charges that he had directed his codefendant Pasquale Barone to murder Vincent James Limoli.
More specifically, the government did not disclose that Walter Jordan, the only source of direct evidence on those charges, had told the government at least twice that Barone told him that Ferrara had not ordered the Limoli murder, and that Barone and Jordan had to flee Boston because Ferrara was going to kill them for murdering Limoli without his permission. Jordan provided this information to Auerhahn's colleague, Boston Police Detective Martin Coleman, and then repeated it for Coleman and Auerhahn. Jordan's statements were memorialized in a contemporaneous memorandum, handwritten by Coleman, which was given to Auerhahn but not produced to Ferrara and his codefendants in connection with their trials and sentencings in 1992, 1993, 1994 and 1995. Rather the memorandum, and the information it contained, were disclosed for the first time during the evidentiary hearings concerning Ferrara and Barone's petitions for habeas corpus that were conducted in September 2003.
In the context of this case, the information that the government improperly withheld was highly material. The government was very interested in proving that Limoli was killed as part of Ferrara's racketeering activity on behalf of the Patriarca Family. Ferrara was about 40 years old when he was indicted in 1989. If he was convicted of the Limoli murder charges, or held responsible for them as relevant conduct at sentencing, the Guideline range for his sentence would be raised from possibly as little as 151 months to life in prison. In addition, if the Limoli murder could be proved to be an LCN "hit," it had the potential to raise the sentence for the Boss of the Family, Ferrara's codefendant Raymond J. Patriarca, from about seven years to life in prison.
In its Trial Brief, the government informed Ferrara, Patriarca, Barone, and their codefendants that Jordan would testify that Ferrara had directed Barone to murder Limoli. Jordan testified to that effect at Barone's trial. Based almost exclusively on Jordan's testimony, in October 1993, Barone was convicted of conspiring with Ferrara to kill Limoli. Barone was sentenced to life in prison for that crime.
In January 1992, after the commencement of their trial, Ferrara and his codefendants, except for Patriarca and Barone, entered into linked, binding plea agreements. The plea agreements provided important benefits to the government, including eliminating the need for a lengthy trial, assuring the defendants' convictions, providing long sentences for them, and preserving the confidentiality of fearful witnesses. See United States v. Carrozza, 807 F.Supp. 156, 161 (D.Mass.1992). In return, the defendants were to be given what were deemed to be significant downward departures. For example, Joseph Russo, the Consigliere of the Patriarca Family who accepted responsibility for murdering Joseph Barboza, was provided a downward departure from life to sixteen years in prison.
Ferrara pled guilty to the Limoli murder charges, among others. These charges raised the Guideline range for his sentence to life in prison. His plea agreement provided for a substantial downward departure to a twenty-two year sentence. However, shortly after pleading guilty, Ferrara informed the Probation Department that he had not been involved in the Limoli murder, but pled guilty to those charges because he was in an "untenable" position. The court now understands that Ferrara's position was "untenable" because he felt compelled to plead guilty to the Limoli murder charges or face a real risk of what he adamantly asserts would have been a wrongful conviction resulting in a life sentence. The court did not address this issue at Ferrara's sentencing. In accepting the linked, binding plea agreements, the court sentenced Ferrara to serve twenty-two years in prison after finding that sentence was a well-justified and reasonable downward departure.
The discovery in 2003 that the government had withheld Jordan's repeated statements that Barone had asserted that Ferrara had not ordered the Limoli murder, and the related ruling that Barone had therefore been denied Due Process, led to Barone's prompt release from prison, pursuant to an agreement with the government. The government has argued, however, that Ferrara's guilty plea deprives him of any right to relief for the same serious misconduct the court has found in his case. This contention is incorrect.
A guilty plea generally extinguishes a defendant's right to collaterally attack independent claims of constitutional violations that do not relate to actual guilt. See e.g., Tollett v. Henderson, 411 U.S. 258, 266, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). A guilty plea does not deprive a defendant of his right to relief where, as here, he demonstrates that misrepresentation or other impermissible conduct by the government deprived him of his ability to decide intelligently whether to plead guilty. See Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).
As many Circuits have recognized, in Brady v. United States, 397 U.S. at 757-58, 90 S.Ct. 1463, the Supreme Court authorized collateral relief for cases in which there is proven government misconduct that creates a reasonable probability that an innocent individual, advised by competent counsel, has falsely pled guilty to avert the risk of a wrongful conviction and a much longer sentence. This is such a case.
The government's failure to disclose Jordan's statements that Ferrara had not ordered the Limoli murder utterly undermines the court's confidence in the outcome of Ferrara's case. The court now seriously doubts that Ferrara ordered Barone to kill Limoli. In any event, if the required disclosures concerning Jordan's statements had been made, there is a reasonable probability that Ferrara would not have pled guilty to the Limoli murder charges, would not have been convicted of them or of any other racketeering act involving murder, and would not have been held responsible for any murders at sentencing.1 In view of the compelling reasons for the linked, binding plea agreements providing for downward departures for Ferrara and his codefendants, there is also a reasonable probability that the government and Ferrara would have resolved his case by agreeing to a sentence of much less than twenty-two years if the required disclosures concerning Jordan had been made. Therefore, Ferrara is entitled to appropriate, equitable relief.
This conclusion is not altered by the fact that collateral relief cannot be granted in a case announcing a new constitutional rule. See Teague v. Lane, 489 U.S. 288, 299-300, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Ferrara's right to relief is based on rules rooted in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Brady v. United States, supra, which were long and clearly established in 1992, when Ferrara's conviction became final.
As the parties agree, a retrial is not now feasible. Rather, Ferrara must be resentenced. As the parties also agree, the resentencing is governed by the law that now exists after United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which rendered the Guidelines advisory. The court finds that the evidence is insufficient to hold Ferrara responsible for the Limoli murder, or any other murder, in calculating the advisory Guideline range for his sentence.
Ferrara contends that, absent the murder charges, the Guideline range for his sentence is 151-188 months. The government argues that, without the murders, the Guidelines suggest a sentence of 210-262 months. In view of the reasons for the substantial downward departures agreed to and granted in 1992 for...
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