U.S. v. Flemmi

• Decision Date: 05 July 2000
• Docket Number: No. 94-10287-MLW.,94-10287-MLW.
• Citation: 108 F.Supp.2d 39
• Parties: UNITED STATES of America v. Stephen FLEMMI, et al.
• Court: U.S. District Court — District of Massachusetts

108 F.Supp.2d 39

UNITED STATES of America v. Stephen FLEMMI, et al.

No. 94-10287-MLW.

United States District Court, D. Massachusetts.

July 5, 2000.

Richard M. Egbert, Boston, MA, Kenneth J. Fishman, Fishman, Ankner & Hirstman, LLP, Boston, MA, Thomas J. Hennessey, Bingham, Dana & Gould, Boston, MA, for Defendant.

Fred M. Wyshak, Jr., Brian T. Kelly, U.S. Atty's Office, Boston, MA, for U.S.

MEMORANDUM AND ORDER

WOLF, District Judge.

I. SUMMARY

The defendant Stephen Flemmi has moved to dismiss this case because, he alleges, after the return of the Second Superceding Indictment the government improperly used the grand jury to investigate the Racketeer Influenced Corrupt Organization ("RICO") crimes with which he had already been charged.¹ Alternatively, Flemmi requests more limited relief, including the exclusion at trial of evidence that was obtained as a result of the alleged abuse of the grand jury.

Upon consideration of a series of submissions and the arguments presented at several hearings, Flemmi's motion is being allowed in part and denied in part. The case is not being dismissed. Certain evidence will, however, be excluded at trial. The reasons for this decision are described in detail in this Memorandum. They are summarized as follows.

The government may not call a witness before a grand jury primarily or exclusively to obtain additional evidence that an indicted defendant has committed a crime with which he has already been charged. The government may, however, use the grand jury to investigate other federal offenses that a defendant may have committed or to investigate whether other individuals should be added as defendants to the existing charges. The government may at the trial of a previously pending indictment use evidence incidently gained by a grand jury primarily investigating other federal crimes.

In this case, Flemmi was charged in the First and Second Superceding Indictments with committing RICO and RICO conspiracy offenses. With regard to the RICO charges, it was alleged from the outset that he was part of an Enterprise that engaged in murder and extortion from 1967 to 1995. It was also alleged that Flemmi participated in the affairs of that Enterprise through a pattern of racketeering activity consisting primarily of violent crimes, particularly, in the Second Superceding Indictment, sixteen extortions and the attempted murder of John Fitzgerald in 1968.

Prior to obtaining the First and Second Superceding Indictments the government had been investigating whether Flemmi participated in the 1967 murders of Edward "Wimpy" Bennett, Walter Bennett, and William Bennett. When those indictments were returned, the government did not have sufficient evidence to charge the murders as racketeering acts. The government did, however, intend to attempt to introduce at trial the testimony of Robert Daddieco concerning those killings in order to prove that the Enterprise had, as alleged, engaged in murder. The government also intended to seek to introduce evidence of a race-fix scheme in the 1970s in order to prove the existence of the alleged Enterprise.

Following the return of the Second Superceding Indictment, the government called a series of witnesses before the grand jury to testify about the race-fix scheme. The primary purpose of calling those witnesses was to develop substantive sports bribery charges against Flemmi's then codefendant John Martorano. Evidence concerning Flemmi's involvement in the race-fix scheme was acquired incidental to what became a successful investigation of Martorano. As a result, the Third Superceding Indictment charged Flemmi with participating in the race-fix scheme as part of his pattern of racketeering activity, but not as a substantive offense. Contrary to Flemmi's contention, this was permissible. Therefore, evidence concerning the race-fix scheme acquired by the grand jury after the return of the Second Superceding Indictment in connection with the investigation of John Martorano may be used at Flemmi's trial.

Following the return of the Second Superceding Indictment the government also used the grand jury improperly to investigate the existing RICO charges against Flemmi. More specifically, the government used the grand jury to immunize, compel, and freeze the otherwise unavailable testimony of Hugh Shields and a witness referred to as John Doe 2 regarding Flemmi's alleged role in the 1967 murders of the Bennett brothers and William Grasso. In the Third Superceding Indictment the murders were alleged as additional acts constituting part of Flemmi's pattern of racketeering activity.

The grand jury's investigation of Flemmi's possible role in the murders of the Bennett brothers and Grasso would have been permissible if the killings constituted potentially prosecutable federal criminal offenses. However, in 1967 murder in aid of racketeering was not a federal offense. Therefore, the killings were relevant to the grand jury's investigation only as additional evidence that the alleged Enterprise engaged in murder and as crimes under state law that could constitute possible additional racketeering acts.

The use of the grand jury to compel the testimony of Shields and John Doe 2 also would have been permissible if the addition of the four murder racketeering acts caused the RICO crimes charged in the Third Superceding Indictment to be different crimes than those charged in the Second Superceding Indictment. They did not, however, have this effect.

In order for the RICO charges in the Third Superceding Indictment to constitute new crimes, they would have had to allege either a different Enterprise or that Flemmi participated in the affairs of the Enterprise through a distinctly different pattern of racketeering activity. However, the Second and Third Superceding Indictments allege exactly the same Enterprise — an Enterprise that engaged primarily in murder and extortion.

The addition of the murder racketeering acts to the Third Superceding Indictment did not alter the statutory elements of the offenses with which Flemmi was charged, RICO and RICO conspiracy. Moreover, the government would not be required to prove any of the new murder racketeering acts in order to secure Flemmi's conviction on the RICO charges in the Third Superceding Indictment. Rather, it would be sufficient for the government to prove any two of Flemmi's alleged Racketeering Acts common to the Second and Third Superceding Indictments in order to establish the pattern of racketeering activity required to convict Flemmi on the substantive RICO charge. The government need not prove any of the alleged Racketeering Acts to prove the alleged RICO conspiracy.

The addition of the four murder racketeering acts to the Third Superceding Indictment also did not render the pattern of racketeering activity alleged to be truly distinct from the pattern alleged in the Second Superceding Indictment. The time periods and individuals allegedly involved remained the same. The heart of Flemmi's alleged pattern of racketeering activity remained violent crimes, particularly the same sixteen extortions. The four murders were close in time and comparable in nature to the attempted murder of Fitzgerald. They are also events for which the government could and would have sought to have Flemmi punished at sentencing as part of his underlying racketeering activity if he were convicted on the RICO charges in the Second Superceding Indictment. Although alleging the murders as Racketeering Acts raises the statutory maximum penalty for each RICO charge from twenty years to life in prison, as the government acknowledges Flemmi's "conviction on multiple counts [in the Second Superceding Indictment] could result in consecutive sentences that essentially amount to a life sentence."

In these circumstances, Flemmi's pattern of racketeering activity alleged in the Third Superceding Indictment is not sufficiently different from the pattern alleged previously to cause the RICO charges to be new and different from the RICO crimes of which he was accused in the Second Superceding Indictment. Therefore, by using the grand jury to compel the otherwise unavailable testimony of Shields and John Doe 2, the government employed it to obtain additional evidence of the RICO offenses with which Flemmi was already charged. This was not permissible.

Although an abuse of the grand jury has been proven, it is not appropriate to grant Flemmi's request to dismiss this case because of that abuse alone. Rather, the court is ordering the exclusion at trial of the testimony of Shields and John Doe 2, and of any evidence derived from the information that they provided to the grand jury.

This decision does not necessarily mean that Flemmi, in effect, is being allowed to "get away with murder" if he participated in the killings of the Bennett brothers and Grasso. Both uncharged conduct and charges of which a defendant has been acquitted may be considered at sentencing. In addition, there are circumstances in which evidence excluded at trial, such as illegally seized drugs or weapons, has been deemed admissible at sentencing. The government already has expressed its intention to attempt to use at sentencing the evidence concerning the murders provided by Shields and John Doe 2 if Flemmi is convicted of a RICO offense. While it is at least premature to decide now what evidence may be considered at sentencing, the fact that Shields and John Doe 2 will be prohibited from testifying at trial does not necessarily mean that they will be prohibited from testifying at a sentencing hearing if the evidence that is admitted at trial proves that Flemmi is guilty.

In any event, it is the duty of the court to apply the well established law to the facts as it has found them and to provide Flemmi the remedy for the violation of his rights to which any other defendant would be entitled. This is a fundamental function that courts are constituted to perform.

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