US v. Bouthot, Cr. No. 87-293-WF.

• Decision Date: 08 April 1988
• Docket Number: Cr. No. 87-293-WF.
• Citation: 685 F. Supp. 286
• Parties: UNITED STATES of America, v. James T. BOUTHOT, Thomas P. Hughes, George P. Hughes, Kevin J. Brown, Roger G. Carr, Jr.
• Court: U.S. District Court — District of Massachusetts

685 F. Supp. 286

UNITED STATES of America, v. James T. BOUTHOT, Thomas P. Hughes, George P. Hughes, Kevin J. Brown, Roger G. Carr, Jr.

Cr. No. 87-293-WF.

United States District Court, D. Massachusetts.

April 8, 1988.

COPYRIGHT MATERIAL OMITTED

Norman Zalkind, Boston, Mass., for Joseph T. Bouthot.

Paul V. Kelly, Boston, Mass., for U.S.

Jeffrey Smith, Boston, Mass., for Thomas P. Hughes.

H. Hoover Garabedian, Worcester, Mass., for George P. Hughes.

Kevin J. O'Dea, Boston, Mass., for Kevin J. Brown.

Charles McGinty, Susan Crockin, Federal Defender's Office, Boston, Mass., for Roger G. Carr, Jr.

MEMORANDUM AND ORDER

WOLF, District Judge.

I. INTRODUCTION

The five defendants in this case are charged with being felons in receipt of firearms in violation of 18 U.S.C. § 922(h)(1). All except defendant Roger Carr, Jr. are also charged with being felons in possession of firearms in violation of 18 U.S.C.App. II § 1202(a), which for offenders with three prior convictions for robbery or burgulary involves a minimum mandatory fifteen year sentence. The defendants were prosecuted and incarcerated by the Commonwealth of Massachusetts for offenses arising out of the events alleged in the subsequent federal indictment in this case.

All of the defendants except George Hughes have moved to dismiss the indictment, alleging constitutional and other infirmities relating primarily to double jeopardy and their right to a speedy trial. After pre-hearing briefing, an extensive evidentiary hearing was held. This was followed by further briefing and oral argument.

For the reasons described below, the court has concluded that defendants' motions to dismiss should be denied.

II. FINDINGS OF FACT

Upon consideration of the evidence presented, including the credibility of the witnesses, the court finds the following facts established by a preponderance of the evidence.

This case arises out of defendants' alleged involvement in events which occurred on September 4, 1986 in Holden, Massachusetts. On September 4, 1986, one or more individuals entered the home of Kenneth Holtgren, stole guns and jewelry worth more than one hundred dollars, and fled in a van. Shortly thereafter, the five defendants in this case were arrested by Holden police officers for violations of the laws of Massachusetts: breaking and entering in the day time with intent to commit a felony; larceny of property over $100; receiving stolen property over $100; and carrying a firearm without a license. A complaint reflecting these charges was obtained by Holden Detective Albert Bourget.

Within twenty-four hours of defendants' arrest, after determining the state charges independently, Bourget called Agent Douglas Wenner of the United States Bureau of Alcohol, Tobacco and Firearms (the "ATF"). Bourget called Wenner because he thought the federal government might be interested in prosecuting some of all of the defendants under the new federal Armed Career Criminal statute, which imposes a mandatory minimum fifteen year sentence for a person convicted of receiving or possessing a firearm after having been previously convicted three times of robbery or burglary. See 18 U.S.C.App. II § 1202(a).

ATF is the federal law enforcement agency primarily responsible for investigating federal firearms cases. As such, it regularly works closely with state and local police, both assisting and receiving referrals from them. By such cooperation the federal government, in appropriate cases, contributes to the fight against violent crime, which is primarily a state and local responsibility.

The Armed Career Criminal statute was enacted in 1984. Its purpose is to segregate certain dangerous repeat offenders from society, and to deter others, by providing a mandatory minimum sentence much longer than the sentence ordinarily imposed in firearms cases in state or federal courts.

After the statute's enactment, the United States Attorney for the District of Massachusetts wrote a letter to many state and local law enforcement officials informing them of the law and asking them to advise ATF of cases which might be appropriate for investigation as potential federal Armed Career Criminal prosecutions. In addition, ATF agents explained the new statute to their state and local counterparts at their periodic meetings. Bourget had heard Wenner discuss the statute in the summer of 1986. This prompted Bourget's call after these defendants were arrested.

Wenner responded quickly to Bourget's call. After getting the police reports and Bourget's information concerning the defendants' criminal records, Wenner felt that the case was worthy of federal investigation and a good prospect for a federal Armed Career Criminal prosecution. Wenner told this to Bourget. They agreed that, to the extent it was up to them, they would like to see the state firearms charges dropped and federal firearms charges brought instead. They felt this was desirable in order to avoid the complications which they vaguely understood could arise from state and federal prosecutions of gun charges based upon the same incident. Wenner had often seen state gun charges dismissed in anticipation of a possible federal prosecution. Both Wenner and Bourget knew, however, that the state and federal prosecutors would each decide what charges would be pursued. More specifically, Wenner explained that an Assistant United States Attorney would have to decide whether to seek an indictment involving the minimum mandatory sentence provided by the Armed Career Criminal statute. The United States Attorney's Office had previously declined to seek indictments in some cases Wenner had recommended for prosecution.

Wenner opened a federal investigation of the defendants. This involved, among other things, interviewing eyewitnesses, seeking to find or speak to other individuals, tracing the guns' interstate nexus, compiling certified criminal records for each defendant, and acquiring fingerprint identifications to establish that the defendants were the individuals convicted of the offenses reflected on those criminal records.

Wenner's investigation was a federal investigation. It was not a joint investigation with state or local authorities. He did, however, receive assistance and cooperation from Bourget, who furnished information and documents, such as the relevant police reports. Wenner also conducted interviews of the victims in conjunction with Bourget, who had already established a relationship with them.

After learning of Wenner's interest in a possible Armed Career Criminal prosecution of defendants, Bourget asked the Assistant District Attorney then in charge of the state case, Neil Snyder, to dismiss the state gun charges. Snyder agreed to defer to the possible federal firearms prosecution and said he would dismiss the state firearms charges before trial. Snyder subsequently transferred the case to his colleague Thomas Landry, with a note that "the cases on carrying guns to be charged in Federal Court. Holden Police Department will speak to you about this." At all times, however, Bourget and the Assistant District Attorneys involved were determined to pursue the other state charges against the defendants in order to vindicate the interests of the victims, who they felt were depending on them.

On October 16, 1986, Wenner went with Bourget to the Worcester Superior Court. The defendants were scheduled to go on trial that day. Wenner spoke briefly to Landry. He told Landry that he was conducting a federal investigation concerning the stolen guns which he expected would result in an Armed Career Criminal prosecution, involving a fifteen year mandatory minimum sentence. After the discussion, Wenner expected Landry would dismiss the state firearms charges.

Wenner had come to court primarily to speak with defendant Roger Carr. Wenner wanted to request Carr's cooperation in the federal investigation of Carr's co-defendants in the state case. It appeared to Wenner that Carr's record might not qualify him for Armed Career Criminal treatment. Thus, Wenner hoped to get Carr's testimony against the others in exchange for a more lenient sentencing recommendation in the possible federal case against him. Wenner explained this to Landry, who said he had no objection to Wenner speaking to Carr's attorney William Meehan. Landry then introduced Wenner to Meehan.

Wenner did not ask Landry not to inform the defendants of the federal investigation or of his interest in speaking to Carr. He hoped, however, that Landry would not do so because he felt that disclosure would injure his chances of obtaining Carr's cooperation.

On October 20, 1986, Wenner spoke briefly with Meehan, identifying himself as an ATF agent and explaining his interest in speaking with Carr. Meehan said that he would prefer Wenner wait until the conclusion of the state prosecution, when Meehan's representation of Carr would be over and Wenner could approach Carr directly. Wenner accepted this response. He did not ask Meehan to keep their conversation confidential from Carr or his co-defendants. Meehan, however, apparently never told Carr of the conversation.¹ Indeed, Carr was not brought to court on October 20, 1986 and the trial was continued.

The trial was rescheduled for November 12, 1986. Prior to jury empanelment Landry attempted unsuccessfully to negotiate plea agreements with all of the defendants. He had not told them of his intention to seek dismissal of the gun charges in any event. Rather, he was using those charges as a bargaining chip. However, when those negotiations failed, before jury empanelment began, Landry told the judge that he wished to dismiss the gun charges and proceed to trial only on the other charges. Thus, when the jury was chosen and instructed, it was not informed of the gun charges.

After the jury was empaneled, court recessed until November 13, 1986. On November 13, 1986, plea negotiations resumed and agreements were reached which had the effect of...