U.S. v. Flemmi

Decision Date08 February 2001
Docket NumberNo. 00-1968,00-1968
Parties(1st Cir. 2001) UNITED STATES OF AMERICA, Appellant, v. STEPHEN J. FLEMMI, Defendant, Appellee. Heard
CourtU.S. Court of Appeals — First Circuit

Elizabeth D. Collery, Attorney, United States Dep't of Justice, with whom Donald K. Stern, United States Attorney, Fred M. Wyshak, Jr., Brian T. Kelly, and James D. Herbert, Assistant United States Attorneys, were on brief, for appellant.

Kimberly Homan, with whom Sheketoff & Homan, Kenneth J. Fishman, and Fishman, Ankner & Horstmann were on brief, for appellee.

Before Selya, Lynch and Lipez, Circuit Judges.

SELYA, Circuit Judge.

Stephen J. Flemmi, one of Boston's most notorious gangsters, served surreptitiously as an informant for the Federal Bureau of Investigation (FBI). In the end, however, there was a falling-out and the government indicted him. This appeal, brought pursuant to 18 U.S.C. § 3731 (a statute that allows the United States, before trial, to appeal orders "suppressing or excluding evidence"), follows on the heels of a district court order barring the government from introducing certain evidence at Flemmi's trial.1 The court based the suppression order on its conclusion that the government, in obtaining the evidence, had abused the grand jury process. United States v. Flemmi, 108 F. Supp. 2d 39, 43 (D. Mass. 2000). We reverse.

I. BACKGROUND

The district court has done a significant public service by bringing to light the tangled relationship between Flemmi and the FBI, and the details of that unholy alliance make for fascinating reading. But those facts are by now old hat, e.g., United States v. Flemmi, 225 F.3d 78, 80-82 (1st Cir. 2000); United States v. Salemme, 91 F. Supp. 2d 141, 148-315 (D. Mass. 1999), and it would serve no useful purpose to rehearse them today. This appeal requires only that we limn the procedural history antecedent to the suppression order.

The grand jury originally indicted a single defendant on October 25, 1994. It subsequently broadened its horizons, naming several additional defendants, including Flemmi, in a superseding indictment returned on January 10, 1995. In that indictment, the grand jury charged Flemmi with, among other things, racketeering and racketeering conspiracy under the Racketeer Influenced and Corrupt Organizations Act (RICO). See 18 U.S.C. § 1962(c), (d). To make these charges stick, the prosecution had to prove that Flemmi engaged in a "pattern of racketeering activity," id. § 1962(c), by participating in the commission of no fewer than two predicate acts within a ten-year time frame, id. § 1961(5). Those predicate acts had to constitute crimes of the type specifically enumerated in the statute. Id. § 1961(1).

To pave the way for this showing vis-a-vis Flemmi, the first superseding indictment designated fifteen predicate acts: one that involved attempted murder, one that involved suborning perjury, and several others that involved gambling or extortion. This specification was augmented when the grand jury returned a second superseding indictment on August 1, 1995.2 The third superseding indictment, however, was a horse of a different hue. Because the grand jury proceedings leading up to this indictment lie at the heart of the district court's suppression order, we rehearse the relevant facts.

Even before the grand jury handed up the second superseding indictment, the government had heard whispers that Flemmi, in conducting his racketeering enterprise, may have participated in four murders (dating back to 1967). The government subsequently contacted Hugh "Sonny" Shields (who had been acquitted, along with Flemmi, in an earlier state court case involving one of the murders). Although Shields persuaded the prosecutors that he possessed salient information about Flemmi's role in the slayings, he refused to testify unless he received immunity.

The government arranged for a grant of use immunity and hauled Shields before the grand jury in October of 1995. His testimony not only implicated Flemmi in all four homicides but also pointed prosecutors to another potential witness, referred to as "John Doe No. 2." The government brought Doe No. 2, duly immunized, before the grand jury in November of 1995. His testimony likewise inculpated Flemmi in respect to the murders.

Word of the grand jury's renewed activity apparently leaked, and Flemmi moved to dismiss the indictment on the ground that the government was playing fast and loose by employing the grand jury as a vehicle for trial preparation. Before this motion could be adjudicated, the grand jury returned a third superseding indictment. This indictment, handed up on May 21, 1996, added five new predicate acts to the racketeering charges against Flemmi: one dealing with the rigging of horse races (a charge not at issue here) and the other four dealing with the murders.3 Flemmi responded by moving to suppress the testimony of Shields and Doe No. 2, as well as any evidence derived therefrom.

The district court quite sensibly treated Flemmi's motions as a unit and heard oral arguments late in 1996. The court thereupon took the matter under advisement until July 5, 2000. At that time, the court concluded that the only tangible work product of the challenged grand jury sessions -- the third superseding indictment -- did not alter the fundamental character of the crimes charged because the added materials did not accuse Flemmi of having committed any new federal crime, but merely attributed more predicate acts to him. Flemmi, 108 F. Supp. 2d at 41-43. This rendered unavailable a safe harbor that the government had sought to reach and set the stage for further inquiry. The court conducted that further inquiry and found that the government had used the grand jury process in the fall of 1995 and thereafter principally for trial preparation, that is, as a means to "compel and freeze the otherwise unavailable testimony" of Shields and Doe No. 2. Id. at 42.

In reaching the conclusion that the safe harbor for "new charges" was unavailable, the court relied on a double jeopardy analysis that indicated, to its satisfaction, that the offenses charged in the second and third superseding indictments were precisely the same. Id. at 57-60. This meant, the court reasoned, that the embellishments to the indictment were no more than additional evidence of the felonies with which Flemmi already had been charged. Id. at 60. Deploying the grand jury as a mechanism for collecting such information, the court ruled, constituted trial preparation (and, accordingly, sufficed to ground a finding of abuse). Id. at 62 (suggesting that the inclusion of additional predicate acts did no more than "impermissibly strengthen[] already-existing charges"). Deeming suppression a condign remedy, the court granted Flemmi's motion to exclude the evidence gleaned from Shields and Doe No. 2.

II. STANDARD OF REVIEW

Claims of grand jury abuse raise a unique set of concerns. The relevant inquiry, strictly speaking, is neither a pure question of fact nor a pure question of law. In re Grand Jury Proceedings (Fernandez Diamante), 814 F.2d 61, 71 (1st Cir. 1987). To the contrary, the inquiry most often comprises a hybrid in that it typically involves an "application of a legal standard designed to ensure that the grand jury, a body operating peculiarly under court supervision, is not misused by the prosecutor . . . ." Id. (quoting In re Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985 (Simels), 767 F.2d 26, 29 (2d Cir. 1985)).

Given this reality, appellate tribunals have crafted an intermediate standard of review for evaluating district court orders accepting or rejecting claims of grand jury abuse. Under that standard, we accord respect to the lower court's findings, but scrutinize them somewhat less deferentially than we would if either the traditional "abuse of discretion" or "clearly erroneous" rubric applied. See United States v. Leung, 40 F.3d 577, 581 (2d Cir. 1994); Fernandez Diamante, 814 F.2d at 71. This intermediate level of appellate scrutiny is akin to what we have in other contexts termed "independent review." E.g., United States v. Tortora, 922 F.2d 880, 882-83 (1st Cir. 1990) (describing independent review as "an intermediate level of scrutiny, more rigorous than the abuse-of-discretion or clear-error standards, but stopping short of plenary or de novo review," and deeming such review appropriate for appellate oversight of pretrial detention orders).

III. ANALYSIS

Although the grand jury operates under judicial supervision, it is essentially an independent institution. In recognition of this status, courts afford grand jury proceedings a presumption of regularity. United States v. Johnson, 319 U.S. 503, 513 (1943). This presumption attaches even after the grand jury has returned an initial indictment. After all, superseding indictments setting forth new charges or adding new defendants are familiar fare. E.g., United States v. Melendez, 228 F.3d 19, 21 (1st Cir. 2000) (superseding indictment added two new defendants); United States v. Pena-Lora, 225 F.3d 17, 23 (1st Cir. 2000) (superseding indictment set forth new charges); United States v. Bender, 221 F.3d 265, 267 (1st Cir. 2000) (superseding indictment added two counts); United States v. Li, 206 F.3d 56, 59 (1st Cir. 2000) (en banc) (superseding indictment added four new defendants). It follows logically that, as a general rule, "evidence obtained pursuant to [an ongoing grand jury] investigation may be offered at the trial on the initial charges." Leung, 40 F.3d at 581.

Notwithstanding the presumption of regularity, prosecutors do not have carte blanche in grand jury matters. However, a party asserting a claim of grand jury abuse must shoulder a heavy burden. See id.; United States v. Badger, 983 F.2d 1443, 1458 (7th Cir. 1993); United States v. Jenkins, 904 F.2d 549, 559 (10th Cir. 1990). One way to carry this burden is to show that...

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