U.S. v. Flemmi, CR 94-10287-MLW.
| Decision Date | 30 August 2001 |
| Docket Number | No. CR 94-10287-MLW.,CR 94-10287-MLW. |
| Citation | 195 F.Supp.2d 243 |
| Parties | UNITED STATES of America v. Stephen FLEMMI |
| Court | U.S. District Court — District of Massachusetts |
Kenneth J. Fishman, Fishman, Ankner & Horstman, LLP, Boston, MA, Kimberly Homan, Boston, MA, for Stephen J. Flemmi.
Martin G. Weinberg, Oteri, Weinberg & Lawson, Boston, MA, for John V. Martorano.
A. Hugh Scott, Choate, Hall & Stewart, Boston, MA, for James A. Ring.
Jonathan M. Albano, Thomas J. Hennessey, Bingham, Dana & Gould, Boston, MA, for Globe Newspaper Co., Shelley Murphy, Kevin Cullen.
Paul W. Hodes, William E. Christie, Shaheen & Gordon, PA, Concord, NH, for John L. McIntyre.
John Cavicchi, Boston, MA, pro se.
John M. Thompson, Thompson & Thompson, P.C., Springfield, MA, Michael A. Fitzpatrick, Bridgeport, CT, for Louis Pugliano.
Joel J. Berner, Dept. of Correction Legal Dept., Boston, MA, for Michael T. Maloney.
Richard E. Briansky, Bernkopf, Goodman & Baseman, LLP, Boston, MA, for Homecomings Financia.
Michael W. Carroll, Schectman & Halperin, Providence, RI, for Household Finance Co.
Charles A. Perkins, Perkins & Associates, P.C., N. Chelmsford, MA, for Wellington Condominium Trust.
James M. Hughes, Devin & Drohan, Hingham, MA, for South Shore Savings Bank, Inc.
Fred M. Wyshak, Jr., Brian T. Kelly, James D. Herbert, John Durham, Richard L. Hoffman, U.S. Attorney's office, Boston, MA, for U.S.
The following is an edited version of the transcript of the decisions and remarks made by the court at the August 21, 2001 sentencing of Stephen Flemmi. Citations have been added.
* * * * * *
For the reasons I will explain, I hereby accept the parties' Federal Rule of Criminal Procedure 11(e)(1)(C) binding plea agreement.1
The plea agreement involves the dismissal of certain charges, including the RICO and RICO conspiracy charges in the Fourth Superseding Indictment that allege defendant Stephen Flemmi committed numerous racketeering acts, including murder. The plea agreement requires that the court impose a particular sentence. When dismissal of charges and a resulting lower sentence are involved, the court may reject the plea agreement if it is not reasonable and necessary to secure a legitimate and important prosecutorial interest or to serve another compelling interest.2 Generally, the court must decide if the agreed sentence is in the public interest.3
The agreement in this case is the result of arms' length negotiation between experienced counsel.4 I find that it is necessary to serve an important prosecutorial interest. It clears the way for Flemmi to be prosecuted on the RICO murder charges pending before Judge Richard Stearns.5 That prosecution could have been delayed a very long time if this case, the case before Judge Joseph Tauro, and the case before Judge Robert Keeton had to be tried first and perhaps appealed.6 The government has also explained that it is contemplated that Judge Stearns' case will be resolved before trials proceed in Oklahoma and Florida on murder charges against Flemmi.7
Moreover, as I wrote in 1999, the RICO and RICO conspiracy charges in the Fourth Superseding Indictment which will be dismissed are fundamentally flawed. They are premised on the theory that Flemmi and James "Whitey" Bulger were conspiring with members of La Cosa Nostra (the "LCN" or "Mafia") during a long period when they were Federal Bureau of Investigation ("FBI") Top Echelon informants against the Mafia. Despite repeated requests, the FBI refused to inform the United States Attorney whether Bulger or Flemmi was an informant until the day before the original indictment was returned.8 Then the United States Attorney, Donald Stern, did not tell the prosecutors in this case that they were informants for six months.9
The original RICO and conspiracy charges would have been very difficult, if not impossible, to prove. Flemmi has substantial defenses relating to whether he was authorized to engage in the conduct alleged to be criminal in the case before me.10 For example, before the charges were brought, an FBI review conducted by John Michael Callahan concluded that Flemmi was "at least tacitly authorized" to participate in "LCN policy-making."11
There are also substantial related questions regarding whether the conspiracies and RICO enterprise alleged existed.12 If the RICO enterprise were not proven, the racketeering acts, including those involving murders in the 1960s, would not be federal offenses.13 As I wrote in 1999:
All of these issues [] present serious impediments to the successful prosecution of this case. If the United States Attorney and other officials of the Department of Justice had been properly informed before the proposed indictment of Bulger and Flemmi was presented to the grand jury, perhaps Bulger and Flemmi would not have been charged at all, or different, more narrow charges might have been fashioned in an effort to reduce the risk that their indictment would prove to be fatally flawed. It is inconceivable to this court, however, that the case against Flemmi and Bulger as indicted in January, 1995 would have been brought by any reasonable prosecutor who was properly informed of their relationship with the FBI.14
The plea agreement allows the government to salvage something from this long and costly case, which involved arduous efforts by the Massachusetts State Police, the Internal Revenue Service, and others, including the prosecutors.
There are six extortion and one money laundering conspiracy counts in the Superceding Information. The charges to which Flemmi has pled guilty include the simplest charges against him that were in the original indictment in this case, the individual extortions. They are the charges on which the government would have had the best chance of prevailing at trial, although success on those charges was not certain in view of Flemmi's meaningful authorization defense.
The government represented at the change of plea colloquy15 and reiterated today that there is no relevant conduct to be included in calculating the Guideline range for Flemmi's sentence. Therefore, the agreed sentence for the charges in the Superseding Information is within the Guideline range. Accordingly, it is reasonable for the remaining charges. Moreover, if I erred in giving Flemmi a three-point reduction for acceptance of responsibility and his Offense Level is 32 and not 31, the sentence that has been agreed upon to is only a one-month departure. That would be reasonable in the circumstances of this case.
As a result of the plea agreement, members of Flemmi's family will have the government's claims against certain property released. The problems with proving the case before me evidently would have created complications concerning the money laundering conspiracy charges in Judge Keeton's case and the forfeiture counts in this case as well. This plea agreement assures that the government recovers about $2,000,000. In the totality of the circumstances, the approximately $1,500,000 that is released to Flemmi's family does not render the plea agreement unreasonable. Among other things, private litigants with claims against Flemmi are already making claims concerning those funds.
Therefore, I accept the binding plea agreement and impose the agreed-upon sentence as follows. In connection with the seven counts to which he pled guilty, I hereby sentence Stephen Flemmi to serve 120 months in the custody of the Attorney General of the United States, concurrent on each count. I am not imposing a fine because the parties have agreed, in effect, that Flemmi cannot pay a fine, even in installments. There is a $400 special assessment. In addition, I am ordering as part of Flemmi's sentence forfeiture as ordered in the Preliminary Order of Forfeiture.
I am not imposing any term of supervised release because none is provided for in the binding plea agreement. To the extent that is a departure, it is a reasonable departure. Supervised release is included in the plea agreement in the case before Judge Tauro. There is also the prospect, because of the pending charges, that Flemmi will be detained for a long time.
In view of the acceptance of the binding plea agreement, I am dismissing the Fourth Superseding Indictment with prejudice. I do retain jurisdiction regarding forfeiture and enforcement of Orders that I have entered previously.
It is customary at this point for the court to address the defendant. There is a great deal that I could, and ordinarily would, say to and about Flemmi. However, that is not going to be the focus of my remarks.
Flemmi thanked me. I think it is odd to thank someone for just doing his job. That is all I have done in this case.
There are murder charges pending against Flemmi. Therefore, I choose not to comment on his conduct. However, by not talking about Flemmi, I do not mean to excuse or minimize the seriousness of any of the crimes to which he pled guilty or any of the crimes that he may have committed.
Future trials will determine if Flemmi is proven to be a murderer. However, I will say this today, to some extent reiterating and amplifying what I have written before.
If Flemmi has committed any of the crimes with which he remains charged, he was able to do so largely because of the protection of the Federal Bureau of Investigation.16 It is clear to me that by the early 1970s Flemmi would have either been killed or in prison like Frank Salemme if FBI Special Agent Paul Rico had not, in 1969, tipped Flemmi off and encouraged him to flee just before he was indicted for the bombing of John Fitzgerald and the murder of Walter Bennett.17
All of the murders with which Flemmi is charged in the pending cases against him occurred after he was told by Rico in 1974 to return to Boston and, as promised, the charges against him were dismissed.18 The first of the murders Flemmi is alleged to have committed in the case before Judge Stearns occurred in October,...
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