Ferrara v. U.S.

• Decision Date: 13 May 2005
• Docket Number: No. Civ.00-11693-MLW.,Civ.00-11693-MLW.
• Parties: Vincent FERRARA v. UNITED STATES of America
• Court: U.S. District Court — District of Massachusetts

372 F.Supp.2d 108 Vincent FERRARA
v.
UNITED STATES of America No. Civ.00-11693-MLW. United States District Court, D. Massachusetts. May 13, 2005.

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David Z. Chesnoff, Goodman & Chesnoff, Las Vegas, NV, David A. Nickerson, San Rafael, CA, Martin G. Weinberg, Oteri, Weinberg & Lawson, Boston, MA, for Vincent M. Ferrara.

James F. Lang, Robert E. Richardson, United States Attorney's Office, Boston, MA, for United States of America.

MEMORANDUM AND ORDER CONCERNING RESENTENCING

WOLF, District Judge.

I. SUMMARY

As described in the April 12, 2005 Memorandum and Order, petitioner Vincent Ferrara has proven that he was denied Due Process when the government violated its clearly established constitutional duty to disclose to Ferrara, before trial, important exculpatory information that directly negated his guilt on charges that Ferrara had directed his codefendant Pasquale Barone to murder Vincent James Limoli. See Ferrara v. United States, 2005 WL 903196 (D.Mass., April 12, 2005). This Memorandum should be read in the context of that decision.

In summary, the government did not disclose that Walter Jordan, the only source of direct evidence on the Limoli murder charges, had told the government at least twice that Barone told him that Ferrara had not ordered the Limoli murder. Nor did it disclose the handwritten memorandum of Boston Police Detective Martin Coleman memorializing these statements by Jordan to lead prosecutor Jeffrey Auerhahn and Coleman. Instead, the government represented that Jordan would testify that Barone claimed that Ferrara had ordered Barone to kill Limoli. Fearing what he asserts would have been a wrongful conviction that would have resulted in a life sentence, Ferrara entered into a binding plea agreement providing for a twenty-two year sentence, as part of a series of linked, binding plea agreements by members of the Patriarca Family of La Cosa Nostra (the "LCN") which provided important benefits to the government. See United States v. Carrozza, 807 F.Supp. 156, 161 (D.Mass.1992).

As the court wrote in the April 12, 2005 Memorandum and Order:

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

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for any murders at sentencing. 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.

Ferrara, 2005 WL 903196 at *3. The parties agree that, at this time, the only feasible remedy is to resentence Ferrara. They disagree on what the corrected sentence should be.

The court's equitable power to devise a remedy for the violation of Ferrara's constitutional rights is broad and flexible. The court's goal is to fashion a remedy that will, as much as possible, place Ferrara in the position that he would have been in if the government had not violated his constitutional right to Due Process. As part of that effort, the court must consider the advisory Guidelines range for Ferrara's sentence and the statutory sentencing factors set forth in 18 U.S.C. § 3553(a) as well.

In the April 12, 2005 Memorandum and Order, the court addressed the major resentencing issues that had been raised in connection with the April 1, 2004 hearing in this case and indicated that Ferrara appeared to be entitled to be resentenced to time-served. The government responded to the April 12, 2005 Memorandum and Order by raising a myriad of additional sentencing issues that it could and should have presented previously. Nevertheless, on May 3, 2005, the court conducted a six-hour resentencing hearing and has, in this Memorandum, addressed all of the issues presented.

As described below, Ferrara, who has earned all available "good time" credits, has been incarcerated for almost sixteen years. This is the equivalent of the time he would have served if he had been sentenced in 1992 to 213 months, or almost eighteen years in prison. However, as now properly calculated, the Guidelines range for his sentence is 151-188 months, or about twelve to sixteen years.¹ Therefore, the court concludes that the government's unconstitutional conduct has caused Ferrara to serve several more years in prison than the advisory Guidelines contemplate.

The § 3553(a) factors do not support a sentence greater than time-served. Indeed, they indicate that even if a sentence of time-served, 213 months, were not above or within the Guidelines range, it would be the most reasonable and appropriate sentence to impose.

Ferrara will, therefore, be resentenced to time-served.

II. THE LEGAL FRAMEWORK FOR FERRARA'S RESENTENCING

As this case is in an unusual procedural posture, it is important to recognize the legal standards that are now applicable.

Resentencing, or correction of Ferrara's original sentence, is the remedy that the court has ordered, pursuant to 28 U.S.C. § 2255, for the government's violation of Ferrara's constitutional right to Due Process. See Ferrara, 2005 WL 903196 at *47-54. Section 2255 directs that where, as here, the prisoner has proven that his constitutional rights have been violated,

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"the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate."

The First Circuit has emphasized:

the broad leeway traditionally afforded district courts in the exercise of their § 2255 authority. "The § 2255 remedy is broad and flexible, and entrusts to the courts the power to fashion an appropriate remedy." United States v. Garcia, 956 F.2d 41, 45 (4th Cir.1992) (citing Andrews v. United States, 373 U.S. 334, 339, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963)). This is so because a district court's power under § 2255 "is derived from the equitable nature of habeas corpus relief." United States v. Handa, 122 F.3d 690, 691 (9th Cir.1997) (internal citations omitted); see also Schlup v. Delo, 513 U.S. 298, 319, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) ("[H]abeas corpus is, at its core, an equitable remedy.").

United States v. Torres-Otero, 232 F.3d 24, 30 (1st Cir.2000).

While the court's discretion to devise an equitable remedy is considerable, "the remedy `should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.'" United States v. Gordon, 156 F.3d 376, 381 (2d Cir.1998) (quoting United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981)).² A remedy tailored to the constitutional violation is "one that as much as possible restores [Ferrara] to the circumstances that would have existed had there been no constitutional error." United States v. Carmichael, 216 F.3d 224, 227 (2d Cir.2000). See also Gordon, 156 F.3d at 381.

As argued by the government, see Apr. 1, 2004 Tr. at 108,³ and explained in

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Ferrara, 2005 WL 903196 at *48, 53-54, in the circumstances of this case it is most appropriate to "unbundle" the sentencing package that resulted from Ferrara's unlawfully obtained plea agreement and resentence him or correct his sentence. See United States v. Rodriguez, 112 F.3d 26, 29-30 (1st Cir.1997); Handa, 122 F.3d at 692. "After the unbundling the district court is free to put together a new package reflecting its considered judgment as to the punishment the defendant deserves for the crimes of which he is still convicted." Handa, 122 F.3d at 692. See also Rodriguez, 112 F.3d at 30 ("the sentencing judge[ ] is in the best position to ... redefine the package's size and shape.").

In addition, as the parties recognize, this resentencing is governed by the law as it now exists after the Supreme Court's decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See Ferrara, 2005 WL 903196 at *49. The Sentencing Guidelines are, therefore, advisory. Booker, 125 S.Ct. at 757. The court must consider the Guidelines range but is permitted "to tailor the sentence in light of other statutory concerns as well, see § 3553(a) (Supp.2004)." Id.

This means that normally the court should calculate the Guidelines range. See United States v. Crosby, 397 F.3d 103, 113 (2d Cir.2005); United States v. Mares, 402 F.3d 511, 518 (5th Cir.2005); United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir.2005).

In one circumstance, however, precise calculation of the applicable Guidelines range may not be necessary. Now that the duty to apply the applicable Guidelines range is not mandatory, situations may arise where either of two Guidelines ranges, whether or not adjacent, is applicable, but the sentencing judge, having complied with section 3553(a), makes a decision to impose a non-Guidelines sentence, regardless of which of the two ranges applies. This leeway should be useful to sentencing judges in some cases to avoid the need to resolve all of the factual issues necessary to make precise determinations of some complicated matters ...

Crosby, 397 F.3d at 112. See also Haack, 403 F.3d 997, 1002-03 ("We, like the Second Circuit, realize that there may be situations where sentencing factors may be so complex, or other § 3553(a) factors may so predominate, that determination of a...