MEMORANDUM AND ORDER
WOLF, District Judge.
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.
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For the reasons I will explain, I hereby accept the parties’ Federal Rule of Criminal Procedure 11(e)(1)(C) binding plea agreement.
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.
Generally, the court must decide if the agreed sentence is in the public interest.
The agreement in this case is the result of arms’ length negotiation between experienced counsel.
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.
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.
The government has also explained that it is contemplated that Judge Stearns’ ease will be resolved before trials proceed in Oklahoma and Florida on murder charges against Flemmi.
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 Nos-tra (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.
Then the United States Attorney, Donald Stern, did not tell the prosecutors in this case that they were informants for six months.
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.
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.”
There are also substantial related questions regarding whether the conspiracies and RICO enterprise alleged existed.
If the RICO enterprise were not proven, the racketeering acts, including those involving murders in the 1960s, would not be federal offenses.
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.
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 Su-perceding 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 colloquy
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 fíne 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 wiil 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.
It is clear to me that by the early 1970s Flemmi would have either been killed or in prison like Frank Sa-lemme 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.
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.
The first of the murders Flemmi is alleged to have committed in the case before Judge Stearns occurred in October, 1974, just months after Flemmi returned.
As I wrote in my September, 1999 decision, if Flemmi had been prosecuted in 1969 for the Fitzgerald bombing or the William Bennett murder, his role as an FBI informant might have been disclosed and examined more than 30 years ago.
Rico prevented that from happening.
As I also wrote in 1999, Rico’s partner, Dennis Condon, was the main mentor for both FBI Special Agents John Morris and John Connolly.
It was Connolly, assisted by Condon, who forged the partnership between Bulger and Flemmi that has been the focus of this case for many years.
The evidence in this and other reported cases indicates that the FBI’s relationship with Bulger and Flemmi was not an isolated, aberrant occurrence attributable to Bulger and Connolly’s shared South Boston roots. Rather, while hopefully extreme in degree, it may have been typical
of the relationship that the FBI had with a number of its Top Echelon informants.
As I found based on convincing evidence in this case, Sonny Mercurio received similar protection from the FBI and was allowed to flee his indictment in 1989.
As described in footnote 6 of my decision, I also received convincing evidence that another FBI informant, not handled by any of the agents who testified in this case, was told by his FBI handler about investigations concerning him, including wiretaps on his telephone.
I provided that information to Attorney General Reno.
I do not know what, if anything, was done with it. Similarly, in 1997, United States District Judge Jack Weinstein of the Eastern District of New York found that an FBI supervisor had improperly provided law enforcement information to a Top Echelon informant in the midst of an LCN war for control of the Colombo family.
I doubt that Judge Weinstein and I have discovered the only instances of such abuse. Rather, I expect much more misconduct has been masked by the secrecy in which the FBI has operated its confidential informants and the deference it has demanded and almost always received from the Department of Justice.
I also do not view this case as a problem of what the prosecutors have at times re
ferred to as a few “bad apples.” The evidence in this case has persuaded me, as I wrote in my 1999 decision, that more than a dozen officials of the FBI in Boston and in Washington engaged in various forms of misconduct to protect Flemmi and Bulger.
Those officials included Larry Potts, who later became the Acting Deputy Director of the FBI.
As I understand it, Mr. Potts ultimately resigned because of controversy concerning misconduct involving the FBI’s investigation of the events at Ruby Ridge that cost Marshal Bill Degan of Boston his life.
The reported comments of two United States Senators at the confirmation hearings of Robert Mueller, the new Director of the FBI, had particular resonance for me. Senator Arlen Specter said, “I believe there is a culture of concealment in the FBI.”
Senator Charles Grassley said, “The FBI is suffering from a management culture so arrogant that ignoring the rules and covering up is the order of the day.”
I do not know the context of those remarks, or the particular events that the Senators had in mind. However, I would say that this case tends to validate those general views.
The evidence in this case has demonstrated a long pattern of the FBI: ignoring the government’s Constitutional and statutory duties to be candid with the courts in seeking warrants for electronic surveillance, among other things;
refusing to be candid with prosecutors, like Gary Crossen and Diane Kottmyer, who had to represent the government in discharging those duties;
and ignoring directions from the Attorney General of the United States by refusing to obey the Guidelines concerning confidential informants issued by Attorneys General Edward Levi and Benjamin Civelletti, among other things.
Contrary to the suggestions of some, the evidence in this case indicates that this culture is enduring and exists today. Once again, as I wrote in my September, 1999 decision, beginning in 1997,1 issued general orders that had the effect of requiring the production of FBI documents memorializing Brian Halloran’s claim that Bulger and Flemmi were responsible for the murder of Roger Wheeler.
When found by
Special Agent Stanley Moody, those documents were given to Barry Mawn, the Special Agent in Charge of the FBI in Boston, to review because, Moody said in an affidavit, they contained information that “was obviously highly singular and sensitive.”
They were not, however, produced in discovery in this case in time for the key witnesses, Rico and Morris, to be questioned about them.
Rather, they were belatedly disclosed after repeated inquiries by the court.
Similarly, important FBI documents concerning John McIntyre were also improperly withheld by agents of the Boston FBI until it was too late to question relevant witnesses concerning them.
However, despite my published judicial findings of misconduct, Mawn has been promoted to Assistant Director of the Federal Bureau of Investigation.
This contributes to my sharing the concerns expressed by Senators Grassley and Specter, and to sensing that this case is a symptom of a culture in the FBI which has a long history and which endures.
This case has taken a long time, more than six years. It undoubtedly would have gone faster if the prosecutors had persuaded me in eight hearings conducted during two months in 1997 not to order the disclosure that Bulger was a confidential informant.
It also would have gone faster if the prosecutors’ repeated efforts to persuade me not to grant evidentiary hearings had succeeded.
After this long time, it is natural to wonder whether anything has been accomplished by the arduous effort that this case represents. I have thought about this question a great deal.
I think some things of value have been achieved. I understand that it has been important for Mrs. Emily McIntyre to find out more, although not everything, about what happened to her son John. As it was explained to me at a hearing in June, 2000, Mrs. McIntyre lived in Nazi Germany during World War II. At the end of the war, she worked for the Justices at the Nuremberg War Crimes trials. She married an American citizen, and moved to the United States so her son could grow up in a democracy.
Now, fifteen years after he disappeared, she at least knows that her son is no longer alive
Similarly, reportedly largely as a result of this case, Joseph Salvati and others have been vindicated in their claim that they were not fairly convicted and sentenced to death for murdering Teddy Dee-gan because agents of the FBI covered up evidence indicating that their informants had killed Deegan and had testified falsely about the murder.
I give a great deal of credit for this to an attorney I have never encountered personally, John Caviechi, who began writing to me persistently in June, 2000, about my findings concerning the Deegan murder. I also give credit to another man I have not met, Victor Garo, who represented Mr. Salvati for many years.
I believe these discoveries are real accomplishments. I am, however, skeptical about whether anything of institutional importance has been achieved by this case.
I know that Attorney General Reno issued new informant Guidelines to address virtually all of the problems presented by this ease.
However, that effort reportedly began after Bulger was revealed to be an informant in 1997.
The new Guidelines were not issued until just before the Attorney General left office in January, 2001. I do not know if there is now a serious effort to implement those Guide
lines by the current administration of the Department of Justice.
I also do not know whether implementing the Guidelines will only cause FBI agents dealing with Top Echelon-type informants not to document their work. This ease demonstrated that much relating to Flemmi was not documented by the FBI for many years, and he was operated as an informant even when he was closed on the books of the FBI.
Moreover, I am not aware of any Congressional Committee examining' whether the Guidelines are being implemented.
What I do know is that the Attorney General for whom I worked, Edward Levi, issued his informant Guidelines in December, 1976, one month before he left office.
Mr. Stern and Assistant United States Attorney James Herbert at various times have acknowledged that, if obeyed, those Guidelines would have prevented the abuses revealed in this case.
However, as I found, there was overwhelming evidence that they were routinely disregarded with respect to Flemmi, Bulger, and other Top Echelon informants.
Moreover, I know that Attorney General Levi was an assistant to Attorney General Francis Biddle, who tried to curb misconduct by J. Edgar Hoover’s FBI in the 1940s.
Yet that did not spare Attorney General Levi from having to contend with widespread abuses by the FBI that had recurred in the 1960s and 1970s.
I have long recognized that, as Justice Louis D. Brandéis wrote, “Sunshine is said to be the best of disinfectants.”
However, I doubt that in this case that alone is enough.
Nevertheless, I do believe there is intrinsic value in the struggle to give integrity to the ideal of justice under law. Many people have contributed significantly to that effort in this case.
I would like to thank the Court Security-Officers, who have been with me, for their support and encouragement. I would like to thank the Marshals for their professionalism and sensitivity to issues that have arisen.
I would also like to commend my staff. I wrote every word of the 661 page decision I issued in 1999. However, my secretary, Margaret Priestley, typed every word, often many times. My heroic court reporter, Judith Twomey, has performed under pressure to produce a prodigious number of important transcripts.
I have also had a succession of law clerks. They only stay for one year. None of them could have a panoramic view of this case. I am reluctant to single out any one of them because they have all contributed significantly. However, Dan Weintraub, who was here during the hearings in 1998, has come back today. He had many assignments concerning this case. Among other things, every day he made a list of what I had ordered the parties to do, including a list of what I had ordered the government to produce. Day after day, month after month, at the bottom of the list, unaddressed, were the issues of the Brian Halloran documents and then the John McIntyre documents. But for Dan’s meticulous attention to detail at a tumultuous time, perhaps those Halloran documents would still be in Mawn’s desk.
I would also like to commend Kenneth Fishman for his highly professional representation of Flemmi. He took Flemmi as a paying client in 1995. Since 1997, he has continued to represent Flemmi as Criminal Justice Act counsel at sharply reduced rates of remuneration.
This consuming case has undoubtedly injured his practice and had an adverse financial effect on his family. Yet his dedication to his client and to the adversary system of justice has not wavered.
In representing Flemmi, Mr. Fishman has extended a great tradition in this country. In 1770, a young patriot trying to develop a fledgling law practice took a case that no other attorney would accept. John Adams agreed to represent the English soldiers accused of murder in what came to be known as the Boston Massacre. He knew it would be unpopular.
However, as he said in opening his successful defense of almost all of his clients: “I am for the prisoners at the bar and shall apologize for it only in the words of the Marquis Beccaria. Tf by supporting the rights of mankind, and of invincible truth, I shall contribute to save from the agonies of death one unfortunate victim of tyranny, or ignorance, equally fatal, his blessing and years of transport shall be sufficient consolation to me for the contempt of all mankind.’ ”
The difficulty that this United States District Court had for about nine months in finding another attorney to represent Flemmi in the case before Judge Stearns demonstrates that we cannot take the tradition represented by John Adams and Mr. Fishman for granted.
I am encouraged,
however, to have recently received from Mr. Fishman an application to join our Criminal Justice Act panel in order to take regular CJA appointments in the future. Apparently, this case has strengthened rather than diminished his commitment to the adversary system of justice.
Finally, I would like to commend the people of this community who have taken an interest in this case. My sense is that they naturally recognize what this case is most fundamentally about. They have a deep concern and admirable common sense about what is truly significant rather than merely sensational.
As I have written before, when Attorney General Harlan Fiske Stone established the FBI in 1924, he warned that, “There is always the possibility that a secret police may become a menace to free government and free institutions because it carries with it the possibility of abuses of power which are not quickly, apprehended or understood.”
That risk is greatly magnified if people are indifferent to abuses of power or, indeed, hostile to the exposure of those abuses.
In 1949, Judith Coplon, an employee of the Internal Security Section of the Department of Justice, was convicted in New York of providing stolen documents to the Soviet Union. She was arrested by the FBI while delivering some of those documents to a Soviet spy. There was no question about her guilt. However, she had been arrested without a judicial warrant. In addition, on grounds of national security, she had been denied access to documents that may have demonstrated that all of the evidence against her was derived from illegal wiretaps.
Despite the pervasive popular fear of the Soviet Union, a unanimous Court of Appeals for the Second Circuit reversed Coploris conviction, primarily because the trial court had not required the FBI to disclose how it had obtained the evidence against her. In explaining that decision, one of the most distinguished judges in our nation’s history, Learned Hand, wrote that, “A society which has come to wince at [the] exposure of the methods by which it seeks to impose its will upon its members has already lost the feel of freedom..."
I believe, and am impressed, that the people of this community have not lost their feel of freedom. Rather, they understand the wisdom of Justice Felix Frankfurter’s observation that, “It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.”
I have found many things about this case to be profoundly disturbing and dispiriting. However, the reaction of the people of this community gives me hope.
My role in this case has essentially ended. I trust, however, that the dedication of the public to demanding law enforcement that is fair as well as effective, even when dealing with the most dangerous crimes and criminals, will endure.