U.S. v. Ryan, Criminal Action No. 96-10128-NG.
| Decision Date | 28 March 1997 |
| Docket Number | Criminal Action No. 96-10128-NG. |
| Citation | 964 F.Supp. 526 |
| Parties | UNITED STATES of America, Plaintiff, v. Thomas RYAN, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Bernard Grossberg, Boston, MA, Joseph J. Balliro, Jr., Balliro & Mondano, Boston, MA, for Defendant.
Fred M. Wyshak, Jr., U.S. Attorney's Office, Strike Force, Boston, MA, James D. Herbert, U.S. Attorney, Strike Force, Boston, MA, Brian T. Kelly, U.S. Attorney's Office, Strike Force Division, Criminal, Boston, MA, for Plaintiff.
Thomas Ryan was subpoenaed by a grand jury to appear as a witness in an investigation of Francis P. Salemme ("Salemme") and others associated with the so-called Winter Hill Gang, a Boston area organized crime group.
Notwithstanding a grant of immunity pursuant to 18 U.S.C. § 6003, Ryan refused to testify. He was held in civil contempt by the U.S. District Court, Judge Robert E. Keeton, for which he spent sixteen months in prison.
On May 7, 1996, a one-count indictment was returned in the U.S. District Court in Boston, charging Ryan with criminal contempt. The indictment alleged that on or about May 20, 1993, and September 12, 1994, the defendant unlawfully, knowingly, and intentionally disobeyed the order issued by Judge Keeton compelling him to testify before a grand jury in violation of 18 U.S.C. § 401(3). On November 6, 1996, the defendant was found guilty.1
The sentencing guidelines, recognizing that the offense of contempt is fact specific, make no effort to prescribe a specific offense level. Rather they direct the Court to the guideline which the Court determines, under all the circumstances, to be the most analogous to the defendant's offense. This question — the most analogous guideline — is the central issue in the sentencing of Mr. Ryan.
The starting point of analysis is U.S.S.G. § 2J1.1 (Contempt), which directs a court to what can only be described as the miscellaneous guideline, § 2X5.1, labelled "Other Offenses." Section 2X5.1 calls for the application of the guideline most analogous to the defendant's offense.2 The application note to § 2J1.1 explains why contempt is treated in this fashion:
Because misconduct constituting contempt varies significantly and the nature of the contemptuous conduct, the circumstances under which the contempt was committed, the effect the misconduct had on the administration of justice, and the need to vindicate the authority of the court are highly context-dependent, the Commission has not provided a specific guideline for this offense.3
The case law describes a continuum for evaluating the range of "contemptuous conduct" covered by 18 U.S.C. § 401: At one end is obstruction of justice (§ 2J1.2); at the other is failure to appear as a material witness (§ 2J1.5); in the middle is misprision of a felony (§ 2X4.1).
The continuum is defined by the defendant's conduct and his intent. On the least culpable end is the defendant who acted in good faith; this could include a defendant who may have feared reprisals, and who, consequently, did not intend to obstruct justice. See United States v. Underwood, 880 F.2d 612, 620 (1st Cir.1989) (). At the other end is a defendant who not only intended to avoid testifying, but who also sought in bad faith to interfere with an ongoing investigation or prosecution. See United States v. Remini, 967 F.2d 754 (2d Cir.1992) (). In between is the defendant who simply refuses to testify without providing a reason for his refusal. See United States v. Cefalu, 85 F.3d 964 (2d Cir.1996) ().4
Not surprisingly, the defendant argues that Underwood should be the template for my analysis. In Underwood, 880 F.2d 612, 620 (1989), the First Circuit held that the defendant's refusal to testify despite his grant of immunity may constitute failure to appear by material witness, and not obstruction of justice, where there was evidence the defendant was motivated by a good faith reason. The defendant in Underwood feared that his testimony before the district court, even if immunized, would bear first on the same court's decision to accept his plea agreement, and then on his sentencing. Id. at 615. In that case, the First Circuit reasoned that the obstruction of justice guideline was inapplicable. The defendant did not intend to obstruct justice; he "simply intended not to testify."5 Id. at 620.
The government contends that the offense most analogous to Ryan's contempt charge is obstruction of justice under the "omnibus clause" of 18 U.S.C. § 1503,6 as the Second Circuit found in Remini, 967 F.2d 754 (1992). In Remini, facing entirely different facts than faced the court in Underwood, the Second Circuit declined to follow the First Circuit's holding. Remini was given immunity and ordered to testify in the prosecution of Thomas Gambino. Id. at 755. The defendant refused, and was prosecuted for contempt. In sentencing Remini, the court applied § 2J1.2 (obstruction of justice) after determining that "[t]here was an intent to obstruct justice" and not merely an intent not to testify. Id. at 756. Compare Cefalu, 85 F.3d 964, 967 (2d Cir.1996); Underwood, 880 F.2d at 620. The court made this determination after hearing a taped conversation in which John Gotti (a Gambino crime family leader) told a third party that he had instructed his lawyers to Remini, 967 F.2d at 756. The district court specifically found that "the electronic intercepted conversations between John Gotti and Mr. Remini indicated a lack of good faith on the part of Mr. Remini." Id.
In Cefalu, 85 F.3d 964 (2d Cir.1996), the court distinguished both Remini and Underwood and sentenced the defendant under § 2X4.1 (misprision of felony). See also United States v. Versaglio, 96 F.3d 637 (2d Cir.1996) (same). The defendant, without explanation,7 refused to testify against a member of the Gambino crime family despite his grant of immunity. Cefalu, 85 F.3d at 965. Turning first to Underwood and Remini, the court looked to whether the defendant acted in good faith or bad faith. The court determined that Cefalu, unlike Underwood, did not have a "good faith belief that there was a legal basis for refusing to answer." Id. at 967. That finding, however, did not mean that § 2J1.2 (obstruction of justice) must be applied.
As in Underwood, the district court was persuaded that the obstruction of justice guideline was not "sufficiently analogous because the examples provided in the obstruction guideline deal with affirmative acts of wrongdoing, indicating that something more than the mere failure to answer a question may be required."8 Cefalu, 85 F.3d at 967. At the same time, however, the court found that the offense of failure to appear by material witness was also not sufficiently applicable "because it did not address the seriousness of the crime being prosecuted in the [underlying organized crime] case." Id. at 966. Accordingly, the court determined that misprision of felony was more analogous than any other guideline. Misprision of felony, "though not a perfect fit, was similar because it addresses the defendant's withholding information concerning a crime." Id. at 969.
In the case at bar, I agree with the court in Cefalu that misprision of a felony is the most analogous offense. Indeed, the facts here and in Cefalu are nearly indistinguishable. Both defendants refused to testify in spite of a grant of immunity and a judicial order.9 Further, neither defendant offered any affirmative explanation for his refusal to testify. See Cefalu, 85 F.3d at 967. In the absence of any affirmative showing of a good faith belief that he was not lawfully required to testify, or even a good faith belief that his life was in jeopardy, the Underwood analysis is inapplicable. The sentencing guideline for failure to appear by material witness is thus inappropriate. Compare Underwood, 880 F.2d at 620.
Nor is there any evidence on the other side — of affirmative bad faith or bad acts on the part of the defendant comparable to those highlighted by the court in Remini. The government produced audio surveillance tapes of the defendant discussing what appears to be bookmaking activities with George Kaufman, a member of the so-called Winter Hill Gang. Kaufman collected extortion payments from bookmakers and loan sharks for James J. Bulger and Stephen Flemmi, of the Winter Hill Gang. Indictment in United States v. Salemme, 94-10278-MLW. While these tapes show that Ryan may have been involved with some of the organized crime activities in the underlying indictment itself, they do not constitute the kinds of admissions found in Remini. There is no "overt act" by Ryan designed to help Salemme and the defendants in the underlying RICO case.
Indeed, the government seeks to characterize Ryan in these proceedings in a fashion wholly at odds with the way he is characterized in the Salemme indictment. In the indictment Ryan, like the other bookmakers extorted by the Winter Hill Gang, is characterized as a victim, threatened and coerced into paying protection money — known as "rent" — to the Winter Hill Gang. See ¶¶ lg, 6, 13, 24, 31, Id.10 According to that picture, it would not be unreasonable for him to fear reprisals if he testified. At sentencing, however, the government suggested that Ryan was a more central player in the general scheme, that he had expressly chosen not to testify in order to undermine the Salemme investigation and protect his own...
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