US v. Carrozza, Cr. No. 89-289-WF.
| Decision Date | 07 May 1992 |
| Docket Number | Cr. No. 89-289-WF. |
| Citation | 807 F. Supp. 156 |
| Parties | UNITED STATES of America, Plaintiff, v. Robert CARROZZA, Vincent M. Ferrara, Dennis Lepore, Joseph Russo, and Carmen Tortora, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Jeff Auerhahn, James Herbert and Gregg Sullivan, Asst. U.S. Attys., New England Organized Crime Strike Force, Dept. of Justice, Boston, MA, for plaintiff.
Oteri, Weinberg & Lawson, Martin G. Weinberg, Boston, MA, John F. Cicilline, Providence, RI, for defendant Raymond Patriarca.
Balliro, Mondano & Balliro, Joseph J. Balliro, Boston, MA, Henry D. Katz, Chelsea, MA, for defendant Robert Carrozza.
Elliot M. Weinstein, Boston, MA, for defendant Dennis Lepore.
Joseph Russo, pro se.
Defendants Robert Carrozza, Vincent Ferrara, Dennis Lepore, Joseph Russo and Carmen Tortora were in March, 1990, charged in a Superseding Indictment with violating the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., and with committing certain substantive crimes on behalf of the RICO enterprise of which they were alleged to be a part.1 More specifically, the defendants were charged with being members of a RICO enterprise known as the Patriarca Family of La Cosa Nostra (the "LCN" or the "Mafia"). Counts 1 and 2 of the Superseding Indictment charged each of the defendants with committing certain specified racketeering acts on behalf of the Patriarca Family. Counts 3 through 65 of the Superseding Indictment charged that many of those alleged racketeering acts also constituted crimes independent of RICO, including murder, extortion, distribution of narcotics, and obstruction of justice. However, the Superseding Indictment did not allege that all of the defendants participated in, or were criminally responsible for, each of the substantive crimes in Counts 3 through 65 allegedly committed on behalf of the Patriarca Family. Rather, each of the defendants was charged in Counts 3 through 65 with only those substantive crimes arising out of the racketeering acts in which he allegedly personally participated.
All five defendants were detained pending trial, some for more than two years. After taking testimony and receiving other evidence, the court in December, 1991 denied their motions to be released on Due Process and Sixth Amendment grounds. See, United States v. Zannino, 798 F.2d 544, 548-49 (1st Cir.1986); United States v. Accetturo, 783 F.2d 382, 388 (3rd Cir.1986).
As the foregoing suggests, this case involved intensive and lengthy pretrial proceedings. Many of the pretrial motions raised novel issues of constitutional and statutory law. See e.g., United States v. Ferrara, 771 F.Supp. 1266 (D.Mass.1991) (). It was estimated that the trial would take six months to a year. After the selection of a jury, which took nine days, all five of the defendants entered into binding plea agreements with the government pursuant to Fed.R.Crim.P. 11(e)(1)(C).
The plea agreements provided, among other things, that each defendant would: (1) remain silent with regard to the factual basis for his plea and, particularly, not say anything with regard to the existence of, or his membership in, the LCN;2 (2) plead guilty to all, or virtually all, of the charges against him; (3) be required to serve a substantial term of incarceration; (4) be placed on Supervised Release for three to five years after serving his sentence; and (5) except for Tortora, forfeit a substantial sum of money. Some of the plea agreements provided for sentences constituting a downward departure from the otherwise applicable Sentencing Guidelines. Each plea agreement was contingent upon acceptance by the court of all four of the other agreements, reflecting the government's view that eliminating the need for any trial was a major purpose and benefit of each agreement.
After a hearing on April 29, 1992, the court determined that there were "justifiable reasons" for each of the agreed-upon downward departures, see, U.S.S.G. § 6B1.2(c)(2), and that the degree of each departure was reasonable. Accordingly, the court accepted the plea agreements and imposed the required sentences. The court's reasons for accepting the plea agreements are explained below.
As indicated earlier, the government and the defendants agreed that a specific sentence was appropriate for each defendant. See, Fed.R.Crim.P. 11(e)(1)(C). Thus, the court was required either to accept each plea agreement and impose the sentence on which the parties had agreed or reject the plea agreements and afford the defendants an opportunity to withdraw their pleas of guilty. See, Fed.R.Crim.P. 11(e)(3) and (4); U.S.S.G. § 6B1.3. As also indicated earlier, by virtue of their terms, the rejection of one plea agreement would have operated to abrogate all of the others.
Prior to the introduction of Sentencing Guidelines, the rejection of a binding plea agreement required a "reasoned exercise of discretion in order to justify a departure from the course agreed upon by the prosecution and the defense." United States v. Ammidown, 497 F.2d 615, 622 (D.C.Cir. 1973); see also, United States v. Noble, 653 F.2d 34, 36 (1st Cir.1981) (). Although the court's discretion concerning the acceptance of a plea agreement specifying a downward departure has been defined and limited by the Sentencing Guidelines, courts have encouraged the use of plea agreements providing for a specific sentence in appropriate cases, in part as a means of promoting certainty and fairness in the administration of the Sentencing Guidelines. See, United States v. Wright, 873 F.2d 437, 441 (1st Cir.1989); United States v. Mak, 926 F.2d 112, 113 (1st Cir. 1991); United States v. Pimentel, 932 F.2d 1029, 1033-34 (2d Cir.1991).
Under the Sentencing Guidelines, if the sentence specified in a binding plea agreement involves a downward departure, the court may accept it if it is satisfied that "the agreed sentence departs from the guidelines range for justifiable reasons." U.S.S.G. § 6B1.2(c). The Commentary to § 6B1.2 indicates that "justifiable reasons" are those described in 18 U.S.C. § 3553(b), which authorizes a departure where there exists "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from the described in the Guidelines." The Court of Appeals for the First Circuit has elaborated this standard by explaining that "a departure may be based upon circumstances which, though considered by the Sentencing Commission, are present `to a degree' or weight `neither readily envisioned nor frequently seen in connections with the offender and/or the offense of conviction'." United States v. Citro, 938 F.2d 1431, 1440 (1st Cir.1991) (quoting United States v. Sklar, 920 F.2d 107, 115 & n. 7 (1st Cir.1990)).
Generally, where circumstances justifying a departure exist, the court must also consider whether the degree of that departure is reasonable. United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir. 1989); United States v. Aguilar-Pena, 887 F.2d 347, 350 (1st Cir.1989).
In this case there are circumstances favoring departure which exist to a degree not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines. In addition, the degree of the downward departure specified in each relevant plea agreement is reasonable.
The agreement that Dennis Lepore be sentenced to fourteen years (168 months) in prison does not involve a downward departure. The court assumed, however, that the remaining four agreements specified a sentence less than the otherwise applicable Sentencing Guidelines.
Joseph Russo is 60 years old. In addition to pleading guilty to all of the other charges against him, Russo tendered, and the court entered pursuant to the standards set forth in North Carolina v. Alford, 400 U.S. 25, 31-3, 91 S.Ct. 160, 164-65, 27 L.Ed.2d 162 (1970), a judgment of guilty on the charge that Russo murdered Joseph Barboza, although he did not admit committing the crime. If Russo had been convicted of murdering Barboza, the Sentencing Guidelines would require that he be imprisoned for life. His plea agreement specified that he be sentenced to 16 years in prison.
Vincent Ferrara is 43 years old. He pled guilty to charges including the murder of James Limoli. If he had been convicted of the Limoli murder, he too would have been sentenced to life imprisonment pursuant to the Sentencing Guidelines. His plea agreement provided for a sentence of 22 years in prison.
Carmen Tortora is 44 years old and suffers from several serious medical problems. If he had been convicted of all of the charges against him, his prior record would have caused him to be sentenced as a Career Offender, see, U.S.S.G. § 4B1.1, and to serve more than 17 years in prison. Tortora previously served six years in prison for one of the three crimes constituting the pattern of racketeering included in the RICO charges against him in this case.3 Tortora's plea agreement specified a 13 year prison sentence.
Finally, Robert Carrozza is 52 years old. He pled guilty to charges including extortion and drug trafficking. In the Presentence Report, the Probation Department calculated Carrozza's Sentencing Guidelines to be 151 to 188 months. The government, however, contended that the proper calculation of Carrozza's Sentencing Guidelines was 235 to 293 months. Carrozza's plea agreement specified a sentence of 228 months, or 19 years, in prison. The court analyzed his plea agreement on the assumption that the required sentence...
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