U.S. v. Flemmi

• Decision Date: 18 September 2003
• Docket Number: No. CR.A. 99-10371-RGS.,CR.A. 99-10371-RGS.
• Citation: 283 F.Supp.2d 400
• Parties: UNITED STATES v. Stephen J. FLEMMI
• Court: U.S. District Court — District of Massachusetts

283 F.Supp.2d 400

UNITED STATES v. Stephen J. FLEMMI

No. CR.A. 99-10371-RGS.

United States District Court, D. Massachusetts.

September 18, 2003.

Brian T. Kelly, United States Attorney's Office, Colin G. Owyang, United States Attorney's Office, Fred M. Wyshak, Jr., United States Attorney's Office, Boston, MA, for Plaintiff.

Page Kelley, Federal Defender's Office, Charles P. McGinty, Federal Defender's Office, Boston, MA, Judith H. Mizner, Newburyport, MA, for Defendant.

Christopher T. Meier, Sloane and Walsh, LLP, Boston, MA, for Michael J. Donahue, Interested Party.

Edward T. Hinchey, Sloane & Walsh, Boston, MA, for Michael J. Donahue, Movant.

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS ON GROUNDS OF RES JUDICATA

STEARNS, District Judge.

Defendant Stephen Flemmi has been the subject of a running series of indictments highlighting a criminal career that has, by admission or allegation, run the gamut of the offenses typically associated with organized crime: murder, extortion, illegal gambling, bribery, money laundering, narcotics trafficking, perjury, and obstruction of justice. As portrayed in the various indictments, Flemmi's criminal career has followed a tortuous path. A 1994 indictment, 94-CR-10287-MLW, in its various permutations, described the roles played by Flemmi and a fugitive codefendant, James Bulger, in a criminal enterprise variously known as the Winter Hill Gang or South Boston (or more lately as the "Bulger Group"), and their treacherous, if lucrative, criminal partnership with Francis Salemme and an Italian criminal syndicate known as the Patriarca family. Framed principally under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962, the 1994 indictment charged a scheme under which the two criminal organizations milked the proceeds of illegal gambling, loansharking, and corrupt labor activity in Boston and elsewhere by extortionate means including murder and attempted murder. The 1994 indictment set out a murder conspiracy and four murders as predicate acts, together with twenty extortions, each involving a different victim. The instant 1999 Third Superseding Indictment is largely a sequel to the 1994 action, although according to the government:

[T]he 1999 Action alleged both a RICO enterprise and a pattern of racketeering activity that bore no meaningful similarity to its counterparts in the 1994 Action. The enterprise at issue in the 1999 Action consisted exclusively of Flemmi, Bulger and their Winter Hill Gang.... Gone was any mention of Salemme and his LCN organization which constituted a sizeable portion of the enterprise in the 1994 Action. Gone too was any mention of Carucci, Flemmi's partner in the in the 1997 Action. Consistently, the pattern of racketeering activity in the 1999 Action differed throughly ....

Government's Opposition, at 7.

The 1999 predicate acts name thirty-six victims of the Bulger Group, nineteen of whom were murdered, and another seventeen who escaped with their lives, but not their property. The 1999 indictment further expands on the Bulger Group's crimes by focusing on a money laundering scheme involving property at 295 and 309-325 Old Colony Avenue and 337 West Fourth Street, the South Boston Liquor Mart, and the Rotary Variety Store in South Boston, the distribution of narcotics in South Boston, and specific instances of perjury and obstruction of justice. Nonetheless, as Flemmi points out, as between the two indictments, the enterprises alleged are similar in terms of their alleged means and objectives and the nature of the crimes committed in furtherance of their affairs; the members and victims overlap; and many of the witnesses who are expected to testify at the trial of the 1999 action were also slated to testify at the trial of the 1994 indictment.¹

It is the overlap between the 1994 and the 1999 indictments that gives rise to the instant motion, which seeks dismissal of the racketeering, extortion, and money laundering counts on "principles of res judicata." What the motion requires this court to decide is whether a prior action of a district court purporting to dismiss the unresolved counts of the 1994 action "with prejudice" acts as a bar to the prosecution of all or some of the substantive counts contained in the 1999 indictment.²

The essential background is as follows. The 1994 proceedings were prolonged and punctuated by sensational revelations regarding the involvement of agents of the Federal Bureau of Investigation (FBI) in a corrupt arrangement to protect James Bulger and the worst excesses of his gang. See United States v. Salemme, 91 F.Supp.2d 141 (D.Mass.1999). As pretrial proceedings progressed, the government, capitalizing on information unearthed by Judge Wolf's meticulous excavations, on November 17, 1999, initiated the instant action. On April 27, 2001, Flemmi accepted an offer from the government to dispose of the 1994 and 1997 indictments by entering a plea of guilty to a superseding information tailored to six counts of extortion and the separately charged money laundering conspiracy. In its relevant particulars, the plea agreement recited as follows.

The parties also agree that the fact of Defendant's plea of guilty, and any admissions pursuant to Defendant's plea of guilty, will not be used as evidence directly against Defendant in the case pending before the Honorable Richard G. Stearns as Criminal No. 99-10371-RGS. Further, the U.S. Attorney agrees not to file a superceding indictment in Criminal No. 99-10371-RGS which contains any counts to which Defendant has plead guilty in this case ... or any counts or racketeering acts dismissed pursuant to this plea agreement. None of the extortion victims named in the Superseding Information will be called by the U.S. Attorney as witnesses at trial in Criminal No. 99-10371-RGS nor will the U.S. Attorney attempt to use the grand jury testimony of the extortion victims named in the Superseding Information as evidence at trial in Criminal No. 99-10371-RGS.... The parties agree that this agreement does not preclude the U.S. Attorney from calling any extortion victims not named in the Superseding Information as witnesses at trial in Criminal No. 99-10371-RGS.

The parties agree that this agreement does not preclude other government witnesses at trial in Criminal No. 99-10371-RGS from referring to any of the extortion victims named in the Superseding Information or preclude government counsel at trial in Criminal No. 99-10371-RGS from eliciting testimony or other evidence about the extortion victims named in the Superseding Information. The parties further agree that this agreement does not preclude the U.S. Attorney from impeaching Defendant at any trial at which Defendant testifies, including Criminal No. 99-10371-RGS, and such impeachment may include references to or use of Defendant's plea of guilty and any admissions made pursuant to Defendant's plea of guilty.

At the plea colloquy, Judge Wolf, while outlining his understanding of the terms of the plea agreement, cautioned that the agreement (and a companion agreement in a related case before Judge Tauro³) "do not address the RICO murder charges against Mr. Flemmi in the case before Judge Stearns except by excluding the use of certain evidence in certain circumstances." May 16, 2001 Tr. at 7.⁴ On August 21, 2001, at Flemmi's sentencing hearing, Judge Wolf accepted the plea agreement (which had been offered pursuant to former Fed.R.Crim.P. 11(e)(1)(C)), imposed the agreed sentence, and then proceeded to dismiss the outstanding First, Second, Third and Fourth Superseding Indictments by endorsing the government's Rule 48(a) motion to dismiss with a margin note indicating that the dismissals were "with prejudice." It is this last action that prompted Flemmi's claim that under the doctrine of "res judicata," a dismissal of the instant action is mandated.

Res judicata is a concept of merger and bar that originated in the civil law to prevent litigants from prolonging a lawsuit by splitting claims and defenses that arise from the same transaction into separate (and serial) causes of action. See Puerto Rico Maritime Shipping Auth. v. Federal Maritime Commission, 75 F.3d 63, 66 (1st Cir.1996). In its simplest terms, res judicata "refers to the effect of a judgment in foreclosing litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit." Migra v. Warren City School Dist. Bd. of Ed., 465 U.S. 75, 77 n. 1, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). In modern usage, courts have come to understand that "res judicata" consists of two components, claim preclusion (merger and bar), and the separate doctrine of collateral estoppel or issue preclusion.⁵ A legacy of imprecise usage, however, has been the source of much confusion, much of it engendered by the Supreme Court itself. In United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161 (1916), Justice Holmes, in rejecting the government's contention that "res judicata" had no application in criminal cases beyond the constitutional protection against double jeopardy, addressed the preclusive consequences of the defendant's successful interposition of a statute of limitations defense.

Upon the merits the proposition of the Government is that the doctrine of res judicata does not exist for criminal cases except in the modified form of the Fifth Amendment that a person shall not be subject for the same offense to be twice put in jeopardy of life or limb; and the conclusion is drawn that a decision upon a plea in bar cannot prevent a second trial when the defendant has never been in jeopardy in the sense of being before a jury on the facts of the offence charged.... It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt. It cannot be that a judgment of acquittal...