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CENTER>DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA
CASE NO. 99-CR-10428-JLT
JOHN J. CONNOLLY, JR., Defendant
REPLY OF THE DEFENDANT JOHN J. CONNOLLY, JR.
TO GOVERNMENT’S RESPONSE TO MOTION FOR NEW TRIAL
INTRODUCTION
The Defendant, John J. Connolly, Jr. (hereinafter, the “Defendant”),
respectfully submits this reply to the government’s response (hereinafter, the
“Opposition”) to his Rule 33 motion for a new trial.
In the consideration of the merits of the Defendant’s Rule 33 motion
before this court there is no alternative other than to examine the “totality” of all
the evidence presented by the government at trial. The Opposition, taken in its
entirety, attempts to dismiss out of hand and marginalize as being of “no
moment” and/or irrelevant the subject Brady violations, and the newly discovered
evidence, as presented in the Defendant’s motion. The government has
asserted therein in support for their argument that the Defendant was found not
guilty of most of the charges and/or racketeering acts directly related thereto.
In the interest of justice and fairness, this narrow and limited review of the
Brady violations and newly discovered evidence is a position or argument that is
untenable -- and certainly is not one that they may rely upon in these
circumstances. The hypocrisy of this position is that on the appeal of this case in
United States v. Connolly, 341 F.3d 16, 23 (Ist Cir. 2003), the completely
opposite argument was made by the government in support of its successful
efforts to have the subject convictions affirmed. Several pertinent excerpts from
this Connolly decision are as follows to demonstrate this very point:
“Hence, the fact that nine of the fourteen enumerated racketeering acts were found “unproven’ does not compel a finding of no continuity in the enterprise. The evidence relating to those acts remained available to the jury in its evaluation of the enterprise element of the RICO charge.”
Additionally, in its opening statement at the trial the government emphasized to the jury that the Defendant could not be convicted on a “single piece of evidence… (because) (i)ts going to be complicated, and it’s built piece upon piece upon piece, and you have to look at all the evidence.” (Tr., p. 46). Despite the fact that the jury found most of the predicate acts alleged by the government not proven beyond a reasonable doubt, the government vigorously and persuasively argued before this Court, and the First Circuit Court of Appeals, that the “totality of the evidence” mandated the tripling of the Defendant’s statutory sentence, as well as a cornerstone for the denial of his appeal.
Notwithstanding the foregoing, the government has emphatically insisted on including in its Opposition the argument that when the Defendant refers to any one of these certain predicate acts, for which there is new and exculpatory evidence, “he ignores [an] important fact…[that] the jury did not find the …racketeering act to have been proven beyond a reasonable doubt, so the matter [Brady violation and/or newly discovered evidence] is of no moment.” (Opposition, p. 33). This is an argument clearly not advanced in good faith, particularly after this Court has sentenced the Defendant to 121 months based upon the erroneous assumption that these same facts are true. The First Circuit Court of Appeals refers to Kevin Weeks as “the government’s star witness,” and in its decision they relied upon the very same unproven alleged predicate acts which the government would now like to dismiss for purposes of this Rule 33 motion as being mere surplusage. (See, United States v. Connolly, 341 F.3d 16, 21-22 (1st Cir. 2003)). Additionally, the Connolly decision has recently been cited to support this position within the First Circuit relative to the significance and importance of even unproven predicate acts. (See, United States v. Cianci, 378 F.3d. 71 (1st Cir. 2004)).
In the final analysis, this Court has now been respectfully requested to determine whether or not John Connolly received a fair trial, and are the convictions obtained therein verdicts worthy of this Court’s confidence. Consequently, despite the government’s protests to the contrary in their Opposition, in the context of this trial and the subject convictions obtained, each and every element of the Rule 33 motion that has been presented before this court is indeed relevant and material. Therefore, every fact and document presented by the Defendant in support of his Rule 33 motion is worthy and deserving of this Court’s careful consideration.
In the context of all of the foregoing, the Defendant hereinafter specifically responds to each correspondingly enumerated subsection contained within the government’s Opposition as follows:
1. Frank Salemme (Def. Memo. at 7-20):
The Defendant in his memorandum in support of his motion for new trial has set forth in considerable detail the numerous admissions and statements made by Francis Salemme to a confidential witness, which collectively fatally undermine the integrity of the verdict returned in this case. This conclusion is inescapable, considering that the jury’s verdict necessarily rested on their believing Salemme’s testimony as having been truthful.
For example, the guilty verdicts which were returned on Racketeering Acts 12A and 12B, certainly relied upon the truth of Salemme’s testimony regarding the contents of his alleged conversation with Flemmi in the kitchen of his ex- wife’s residence – which otherwise was uncorroborated. See, May 17, 2002, Tr. at 70, with Salemme testifying that on January 5, 1995, while in the kitchen of his ex-wife’s residence, Flemmi told him that John Connolly advised him that the
indictments would be returned on January 10, 1995. Also, the jury relied upon his testimony as being truthful regarding the contents of his alleged conversation with Connolly in his [Connolly’s] office. See, May 17,2002, Tr. at 62-68.
It might be helpful to first note what the government does not dispute. First, the government does not dispute that Salemme lied and committed perjury while presenting his testimony during this trial, both on direct and cross- examination. (See, Opposition, p. 16). Instead, they contend that his perjurious testimony “concerns only the impeachment of Salemme,” which the government argues is presumptively immaterial. (Opposition, p. 17). Additionally, the government does not contest the accuracy of the statements attributed to Salemme by the confidential witness. This confidential witness was and remains a fellow inmate within the government’s Witness Security Program, and obviously an individual for whom the government itself has credited, vouched for and has relied upon in the past. (See, Opposition, pp. 4-5). In fact, he has been included and disclosed as one of the main government witnesses in the pending United States v. Francis P. Salemme, Jr., 04-10323-RSG.
Finally, the government has made a sweeping self-serving conclusion that several of Salemme’s statements are “internally inconsistent, or directly contradicted by unimpeachable testimony” provided at trial. However, these are merely a few immaterial and irrelevant selections carved out of the totality of this dramatic Salemme 302 Report. These include the statements referencing undisclosed benefits, the statement that he did not really know Connolly and needed the assistance of a picture to identify him, and the statement that he lied about paying money to Connolly.1 However, what the government fails to acknowledge in their criticism of such imperfection, is that the confidential witness was not familiar with this case, and that his memory and recall of these conversations that he had with Salemme could not be verbatim since they were not taped. In this context, this fact provides even more credibility to this confidential witness and what is before the court, since such imperfect recall of
1. In his original memorandum, the Defendant set forth the appropriate legal standards of review implicated by the issues identified in his pleading. To the extent the government argues different standards of review apply, they are wrong and the Defendant rests on the arguments made in his original pleading.
conversations is totally consistent with the common human experience – perfect factual accuracy of conversation that conforms to an existing known body of facts is inconsistent with the human experience. Additionally, this fact also demonstrates the integrity of the FBI Special Agent who authored the 302, since he obviously made no attempt to correct these obvious inconsistencies in order to create a self-serving picture perfect factually conforming report based the readily available information and knowledge of the Connolly trial that he had at his disposal. (Compare, Def. Memo., Exhibit F – O’Sullivan OPR 302, and the perfect verbatim testimony of government witness at the Connolly trial going back over two decades).
2. In their affidavits, the government advises that Salemme never expressed or exhibited any desire to “get even” with Connolly or that he hated him, see, e.g., Affidavit of John Durham at ¶10, but these statements do nothing to address whether those were Salemme’s true feelings.
The government’s arguments will be addressed as they have been presented. However, it may also be helpful to discuss statements attributed to Salemme that have not been specifically addressed or resolved by the government’s Opposition. In this regard, the confidential witness has advised that Salemme made the following comments, inter alia:
(1) Salemme said there was no way he would have been good friends with Connolly and know what Connolly was doing, because Bulger and Flemmi were ratting out Salemme to Connolly;
(2) Salemme said he was asked if he ever gave Connolly money by the prosecutors more than once, and as a result he figured out what it was the prosecutors wanted him to say;
(3) Salemme was told by the prosecutors that this payment of money was the most important part of his testimony;
(4) Salemme said he never gave Connolly money because he didn’t know the guy;
(5) Salemme said that Connolly was the “enemy;”2
(6) Salemme recognized that it was dangerous for him to talk about paying Connolly money because if he mentioned specific times that he paid him,
3. As noted infra, the government confirms this statement as being true. it could be easily checked to determine whether or not Connolly was on vacation or even in Boston during those periods of time;
(7) Salemme said that he would have said “anything” to get out of prison because “they had him boxed in;”
(8) Salemme said that during his debriefings with federal prosecutors, he related to them specific incidents, and that the federal prosecutors, on occasion, replied “are you sure it didn’t happen like this,” and then related to Salemme the details of events as they believed they occurred, which resulted in Salemme changing his story to match the prosecutors’ version;
(9) Salemme said there was “no way you can beat these people,” referring to the government, because “they put words in your mouth,” and lead witnesses to testify the way they want them to;
(10) Salemme said the prosecutors told him about the times Connolly received money to help Salemme “put it together;”
(11) Salemme said that prosecutors told him to testify that he was due to get out of jail in 2005, even without testifying against Connolly when questioned as to what kind of deal he struck with the government;
(12) Salemme said his testimony against Connolly was his chance to get even with Connolly, Bulger and Flemmi, and prosecutors told him that this was his chance to get even with Connolly for all that Connolly had done to him;
(13) Salemme said that he finally “got over on the FBI,” and told the CS that the FBI “looks like the shit they are;”
(14) Salemme called Connolly and Bulger “Irish bums,” and said that he hated Connolly;
(15) Salemme said he received money from the government;
(16) Salemme said that during one of his trips to Boston the prosecutors made arrangements for Salemme to see his family;3
(17) Salemme referred to Connolly as his “ticket home;”
(18) Salemme said he “killed 2 birds with one stone,” that they should call him “Machiavelli,” and that he should have written the book on being Machiavellian;
(19) Salemme said he had the prosecutors “by the balls,” in that they would have to release him as soon as he was done testifying;
(20) Salemme said he could not understand why the prosecutors were so worried about getting an FBI agent that they were willing to let him go on his murders, and weren’t interested in what “Baby Shanks” was doing;
(21) Salemme admitted that he (Salemme) should get “a thousand years” for perjury during Connolly’s trial;
(22) Salemme bragged that there was a murder that he committed with Bulger and Flemmi that he never told the federal prosecutors about;
(23) Salemme said he concluded that Bulger told Connolly where Salemme could be located in mid-1990’s when Salemme was on the run;
(24) Salemme said prosecutors were not concerned that Salemme was involved with Flemmi and Bulger in the murder of a person whose body was buried near the shopping center;
(25) Salemme said his brother and another individual [Halloran] killed a person in a restaurant in Chinatown area of Boston, that he and his brother later killed that other person because they believed he was going to rat, and Salemme did not have to tell the government about this murder as part of his deal;
(26) Salemme said he did not tell federal prosecutors about other murders so he could protect individuals still on the street;
(27) Salemme said he was responsible for 11 murders that he never told the government about;
(28) Salemme said prosecutors didn’t care about the murders because it was less to cross-examine him about during trial;
(29) Salemme said prosecutors told him that the “slate was wiped clean,” and that he would never have to worry about someone like Bulger or Baby Shanks cooperating in the future against him;
(30) Salemme said that he got a better deal than Sammy the Bull and Phil Leonetti because of all of the murders he did, for which he would never have to spend a day in jail;
(31) Salemme said prosecutors did not care about Baby Shanks, even though Salemme could have put him away;
(32) Salemme received money from Baby Shanks and other Boston wise guys while being incarcerated, which represented money Salemme had on the street;
(33) Salemme was asked how he could “make up that shit on Connolly” because Connolly had a family and Salemme said “fuck Connolly, that guy and the FBI are the enemy”, and further said he and his family suffered for years, now it’s Connolly’s turn, and that he (Salemme) got the last laugh by getting back at Connolly and clearing up all his “bodies;”
(34) Salemme said that prosecutors told him he would “die in prison” if he didn’t testify against Connolly, that they would charge him with contempt for which he would receive 18 months in prison, and that they would continue to charge him with contempt until he eventually died in prison;
(35) Salemme said prosecutors told him they would charge him with committing multiple murders if he didn’t cooperate against Connolly, and that Flemmi would testify against him about the murders;
(36) Salemme admits that from his perspective his only way out of prison was to testify against Connolly as the federal prosecutors requested him to do;
(37) Salemme said he would die in prison if he didn’t “say what they [federal prosecutors] wanted to hear;” and
(38) Salemme said that Bulger, Flemmi and Connolly had been screwing him for years.
A careful reading of the affidavits submitted by the government reveals that they certainly do not address most all of these admissions and statements of Salemme. For example, as noted, Salemme has stated that during his debriefings with federal prosecutors he related to them specific incidents, and the prosecutors occasionally replied, “Are you sure it didn’t happen like this,” and then they would relate to Salemme the details of certain events as they [federal prosecutors and/or investigators] believed them have occurred. This witness coaching resulted in Salemme, and presumably other witnesses in this case, changing the story to match the prosecutors’ suggested version, time line, etc. Likewise, Salemme said there was “no way you can beat these people” [federal prosecutors] because “they put words in your mouth,” and lead witnesses to testify the way they want them to.
These statements are not directly addressed in the affidavits submitted in support of government’s Opposition. Moreover, while the government advises that Salemme’s initial proffer was done over the telephone to AUSA Durham in the company of his attorney, there is no explanation regarding the events which led up Salemme’s cooperative efforts, i.e., statements and representations made to Salemme by the government (through his attorney) to induce his cooperation. Since Salemme was then being prosecuted by AUSA Fred Wyshak and Brian Kelly (“Exhibit A” attached hereto), there inexplicably is omitted affidavits from either them, nor from their investigators DEA Agent Dan Doherty and MSP Sergeant Johnson (Def, Memo., Exhibit J).
As for Salemme’s claims that he received money from the government, AUSA Durham merely states that he is aware of no payments of money that were not memorialized and disclosed by the government to the Defendant, but he does not deny that there were payments of money. (Affidavit of AUSA Durham at ¶6). The government cannot now deny that Salemme did harbor true animus against Connolly, and therefore have merely asserted that Salemme was wise enough to never disclose that animus to the government during his debriefings. Likewise, the government simply can not explain Salemme’s admissions, thought processes, opinions and conclusions, as he so eloquently and vociferously expressed to the confidential witness.
In its Opposition, the government offers a general criticism that Salemme’s statements “are internally inconsistent,” or they “are directly contradicted by unimpeachable testimony provided at Defendant Connolly’s trial.” However, a careful reading of the government’s response reveals that the government has chosen to ignore most of all of Salemme’s material admissions and statements. First, the government inexplicably tethers Salemme’s claims of improper government rewards and threats to his first proffer session. This initial event on September 28, 1999, leading to Salemme’s formal cooperation, apparently was conducted via telephone with government personnel present in the office of Salemme’s attorney. As noted, the government offers no insight regarding interviews and/or statements conveyed to Salemme through his attorney prior to this first. Moreover, it should be noted that by the date of his first proffer, Salemme was well aware of the government desire to prosecute John Connolly for not supporting their position that no authorization for certain criminal activities had been provided to Flemmi and Bulger, and that to succeed they needed an offense to be established within the statute of limitations.
In a hearing before Judge Wolf on April 24, 1998, in the matter of United States v. Salemme, Connolly’s then attorney Robert Popeo appeared in Court to address whether Connolly would invoke the Fifth Amendment if called as a witness during the hearings in that matter. At this time, the statute of limitations issue was extensively and clearly discussed and reviewed in open court in the presence of Salemme and his co-defendants. (See, April 24, 1998, Tr. at 3) (noting the presence of each of these defendants). The Court advised Attorney Popeo that “if the prosecution is barred by the Statute of Limitation, I think there’s no valid Fifth Amendment right.” (April 24, 1998, Tr. at 7). In discussing the Court’s view of the Statute of Limitations, Judge Wolf explicitly stated the following:
“There was a point in these proceedings in which Mr. Wyshak expressed a different view, particularly with regard to, for example, I think he used the possibility that if Mr. Bulger was tipped off and fled from this indictment—that would have been in 1994 and 1995—that would be within the Statute of Limitations. And somebody could be prosecuted for conspiring or aiding and abetting a violation of Section 1073, that makes it unlawful to flee to avoid prosecution.” (April 24, 1998 Tr. at 8). When the Court asked the government for its position regarding whether it would immunize Connolly, AUSA Wyshak responded, “It is not our intention to seek a grant of immunity for Mr. Connolly. We do think there are crimes here which were committed within the Statute of Limitations, and there are crimes that are currently under investigation by the government, and, therefore, we would not seek a grant of immunity for Mr. Connolly.” (April 24, 1998, Tr. at 9). Later, AUSA Wyshak, in discussing whether the government would ever consider immunizing Connolly, he stated the following in open court: “Let’s hear Mr. Flemmi tell us who tipped him and Mr. Bulger in 1994 and 1995. It it’s not John Connolly, well, perhaps we can evaluate our decision with those facts in mind. But right now this is a mystery in the case, and the defendants are the ones who have made it a mystery.” (April 24, 1998 Tr. at 17).
Given the foregoing, thanks to the educational comments in open court by AUSA Wyshak, Salemme clearly knew well before September 28, 1999 (the day of his first proffer), exactly what the government needed in order to pursue a prosecution against Connolly. Indeed, Salemme’s awareness and his decision to leverage to his personal advantage the government’s “Statute of Limitations” problem has also been confirmed by yet another confidential source. In support of its opposition to the Defendant’s motion for a new trial, the government attached a memorandum of contact with an additional confidential source. (See, Opposition, Exhibit 3). According to this confidential source, Salemme said that “the government was desperate for Salemme’s assistance because of a ‘statute of limitations’ problem.” (Opposition, Exhibit 3, Memorandum of Contact, p. 2). Hence, the fact that the first proffer occurred over the telephone at Attorney Cardinale’s office adds no support to now believe in Salemme’s credibility, other than what is reflected in his 302. This event also fails to provide any evidence that threats were not conveyed to Salemme to induce and continue his cooperation as he has stated and admitted to therein.
Second, it is worth noting that the affidavits attached in support of the government’s opposition actually confirm one of Salemme’s statements regarding benefits. Namely, according to the original FBI 302 report submitted in support of the Defendant’s motion for new trial, Salemme told the confidential witness that during one of his trips to Boston the prosecutors made arrangements for Salemme to see his family. (FBI 302 Report at 7). In the affidavit he filed in support of the government’s opposition to the Defendant’s motion for new trial, AUSA John Durham confirms that, “Salemme was allowed a brief visit to his mother’s gravesite by WITSEC personnel.” (Durham Affidavit at ¶6). Likewise, in his affidavit, Special Agent Gary M. Bald advises that not only did Salemme visit his mother’s gravesite, but, “Salemme’s wife, Donna, was allowed to visit with Salemme at the conclusion of two or three debriefing sessions conducted in the courthouse in Boston.” (Affidavit of Gary M. Bald, attached as Exhibit 1-D to government opposition, at ¶6).
While the government boldly asserts that Salemme’s admissions to the CW that he falsified his trial testimony “are equally absurd, and conclusively rebutted by a host of independent factors” (Opposition at 8), the government merely addresses a few of Salemme’s peripheral statements. In particular, the government focuses on Salemme’s statements that he did not really know Connolly, that he needed the assistance of a picture to identify him in court, and that he lied at trial about paying money to Connolly. (Opposition, at pp. 9-10). It should be noted that with regard to the latter issue, the government strains to argue that Salemme never testified that he paid money to Connolly. (Opposition, at 10, “The truth is, Salemme never testified that he paid money to Connolly”). This is a disingenuous argument, as Salemme testified regarding his supposed knowledge that in 1993 Flemmi paid Connolly $5000.00 on two occasions. (May 17, 2002 Transcript at 56). He was asked on direct, “Do you recall any specific instance or instances in which money was being paid to John Connolly?” His reply was that he recalled two such specific instances, and he went on to relate for the jury under oath two payments of $5,000.00, one in “late spring of ’93,” and another shortly “before or after Thanksgiving for Christmas” in 1993. (May 17, 2002, Tr. at 56-57). Indeed, in his closing argument, AUSA Durham explicitly argued to the jury that “you will recall—this again 1994---Salemme knew he and Flemmi had been paying money to John Connolly. In fact, on two occasions, the summer of 1993 and near Christmas of 1993, they had paid $5,000 out of their numbers business to Mr. Connolly.” (May 23, 2002 Tr. at 75). To argue that Salemme did not testify regarding the payment of money to Connolly starkly illustrates the deficiencies and inadequacy of the government’s Opposition to the Defendant’s Rule 33 motion.
Likewise, the government’s attempt to argue that Salemme’s trial testimony was corroborated by independent witnesses should be similarly rejected. The critical aspects of Salemme’s testimony—i.e., that Connolly told him he would keep him apprised of events through Flemmi (May 17, 2002 Tr. at 65-66), and that Flemmi told him that “John Connolly” advised him [Flemmi] that the indictments were imminent (May 17, 2002 Tr. at 69-70) -- was totally devoid of corroboration. While it is true that Kathleen Orrick and John Ford appeared to confirm a meeting with Connolly at his office, nobody could confirm Salemme’s version of the conversation during the meeting. Likewise, there was no corroboration for Salemme’s testimony that Flemmi advised him that Connolly had tipped them off. Indeed, what is absurdly false is Salemme’s version of these meetings. It is completely nonsensical that Connolly would inform Salemme that he would notify him of pending indictments through Flemmi, or that Flemmi would identify Connolly as his source of information, when Salemme had no idea whatsoever that Flemmi had been cooperating with the FBI and providing information against him for years -- a fact that he would not learn until many years later (during the Wolf hearings).
Moreover, the fact that Salemme’s trial testimony is supposedly confirmed by “events” is a red herring. (Opposition, at 13). Again, by the time he gave his proffer in September 1999, Salemme was well aware of the factual allegations against him as a result of discovery obtained in his own criminal matter, and the protracted Wolf hearings. Indeed, in the FBI 302 by Special Agent Bald that details Salemme’s initial proffer, it is made clear that “the purpose of the interview was to discuss some of Salemme’s knowledge of criminal allegations pertaining to former FBI Special Agent (SA) John Connolly.” (FBI 302 at 1). Clearly, Salemme knew by that time all of the material events that were at issue. Likewise, the government attempts to argue that animus or hatred towards Connolly did not enter into this trial testimony should be outright rejected. This fanciful argument defies logic, common sense and reality. At trial, Salemme testified that he did not blame Connolly for not warning him about the fact that his life was in jeopardy prior to being shot in 1989, and only blamed the FBI. (May 17, 2002, Tr. at 181-182). Salemme testified that when he ran into Connolly in the parking garage in the Prudential Building in 1994, “there were no hard feelings”. (May 17, 2002, Tr. at 184). Likewise, Salemme testified that he had no hard feelings against Mr. Connolly for keeping him in jail for up to 16 years, asserting that, “Mr. Connolly never got me in jail,” and that it was not Connolly’s fault. (May 17, 2002 Transcript at 184-85). In short, Salemme falsely denied during trial that he had any motive to fabricate evidence against Connolly, and that he was there simply to “tell the truth.” (May 17, 2002, Tr. at 16) (testifying that he intends to tell the truth to the jury as he did to the grand jury).
John Connolly is the agent who arrested Salemme in New York in 1972, and caused his incarceration for a lengthy (16 years) period of time. It was John Connolly who had used information received from Flemmi and Bugler—whom Salemme believed were his trusted criminal confidantes—for years to systemically disassemble the LCN of which he was a member and leader. Salemme rightfully felt betrayed.Plain and simple, in Salemme’s view of the world John Connolly was and is the “enemy.” His protestations to the contrary during the trial were “absurdly” false and perjured. The Defendant now has multiple witnesses who can confirm his animus towards the Defendant, including the fact that Salemme “hated Connolly”, that he considered him an “Irish bum” and “scum”, that he had no regrets for fabricating evidence against Connolly, and that he had no remorse for lying despite the fact that Connolly had a family, since Connolly and the FBI “are the enemy.” In the words of Salemme, he and his family had suffered for years, and it was now Connolly’s turn. (302 Report at 10). Salemme admitted that his testimony against Connolly was his chance to get even with Connolly, Bulger and Flemmi, and to “stick it up his ass” (Oppositon, Exhibit 3, p. 4). Obviously, if the jury knew Salemme’s true motivation for plausible grounds to rebut this newly discovered evidence of Salemme’s animus toward Connolly existing throughout his trial testimony. (See, United States v. testifying, had heard these words uttered by Salemme himself, knew of his intense dislike and hatred for Connolly, they certainly would have evaluated his testimony in a far different light. The government has presented no evidence or Boyd, 55 F.3d. 239, 244 (1995), as further discussed hereinafter).
Finally, the government attempts to trivialize Salemme’s perjury during trial in this case is without merit. The government argues that the perjury only “concerns Salemme himself and not Connolly.” (Opposition at 16). Obviously, the jury’s assessment of Salemme’s credibility would also have been significantly impacted if they had known that Salemme lied to them under oath, inter alia, about his involvement in murders, and that he had relinquished his life of crime. The government admits in its opposition that “Salemme has been indicted for withholding from the government his knowledge of his and others’ participation in the murder of DiSarro in 1993.” (Opposition at 16). To contend the jury would not have assessed Salemme’s credibility differently had it known that he in fact was responsible for additional undisclosed murders from his time in the LCN stretches credulity. Moreover, in addition to knowing that he in fact is capable of taking another human’s life, the jury would assess Salemme’s credibility in a far different light had it known that he fabricated a story that placed the blame of a murder on another individual.
The government argues that Salemme’s obstruction of justice and his providing false statements does not exculpate Connolly. (Opposition at 17). In this regard, it is important to note the government does not dispute that Salemme did not simply falsely deny any involvement in the DiSarro murder during his debriefings with government personnel, but he actually wove an affirmative, false story that implicated others in DiSarro’s death. He falsely advised the government personnel that he made it known to his underlings that murdering DiSarro was “out of the question,” but that Bianco wanted DiSarro eliminated because he was concerned that DiSarro was going to be indicted and feared he would cooperate against him (Bianco). (Salemme Indictment at ¶i). Clearly, if the jury knew that Salemme was capable of weaving affirmative false stories that falsely implicated others -- and that the government conceded this fact -- there is more than a reasonable probability that the jury would not have believed his fanciful fiction about conversations on January 5, 1995, etc.
The ancillary but significant issue here is that this undisclosed information about Salemme’s involvement in additional murders was well known to the government, but undisclosed to the Connolly defense, prior to this trial. This fact is evident from the colloquy between AUSA Wyshak and Judge Wolf at Salemme’s sentencing on January 24, 2003 (Exhibit A), being just four months following Connolly’s sentencing before this court. Certainly, the failure to disclose this information, evidence and concerns that the government itself had relative to this issue of Salemme’s involvement in additional murders, and his credibility and truthfulness in their interactions and plea deal with him, should have all been provided to Connolly’s defense as required under Brady. Disclosing such information to Judge Wolf at Salemme’s sentencing four months later certainly did not satisfy the government’s responsibilities and obligations thereto.
The government’s argument glosses over the fact that the Defendant stands convicted because the jury accepted the testimony of Salemme. Indeed, the indictment itself could only have been timely brought as the result of his testimony before a grand jury as noted herein. Our government should not passionately implore a jury to accept the word of an individual it later claims obstructed justice and provided false statements to them, and then argue that evidence constituting the obstruction of justice and lies is not relevant to the individual’s testimony at the subject trial, or that the jury would not have evaluated his testimony differently had they been presented with evidence of such conduct.
The fact that Salemme was involved in other murders, and that he lied about these facts, is not cumulative impeachment material. Rather, it is highly material to the jury’s assessment of Salemme’s overall credibility. If he can lie about material facts to federal officers in obtaining his plea deal, would not the jury have the right to reconsider whether of not this same individual had been lying to them. It cannot be lost that the government is now passionately arguing that Salemme is a serial liar, whose proclivity and ability to deceive and manipulate is so great that the government hazards that if “a canvass of the entire inmate population with whom Salemme was incarcerated were made, it may well be discovered that Salemme claimed to receive from the government the winning numbers to the Massachusetts State Lottery, and all the prizes behind Door Number One and Door Number Two.” (Opposition at 5). This is the same government that had argued at the Connolly’s trial that Salemme’s testimony was “compelling” (an argument the jury obviously accepted in large part), and that if he perjured himself “he will go back to prison, and in all likelihood die in prison.” (May 23, 2002 Tr. at 74).
AUSA Durham argued:
I suggest to you if you look at Salemme’s demeanor on the stand, he was forthright. Did he look like he hesitated to answer questions? Did he answer whatever question was asked of him by the prosecution or the defense openly and candidly in this matter? That’s for you to determine, but I would ask you to try to recollect Mr. Salemme’s appearance and demeanor on the stand and whether you think he was withholding or not withholding information.” (Emphasis supplied). (May 23, 2002 Tr. at 74). Clearly, in an effort to convince the jury to accept Salemme as a credible witness, the government vouched for Salemme’s credibility, and told the jury that Salemme would “die in prison” if he perjured himself. The government now concedes that Salemme committed perjury, yet incredibly argues it had no effect on the verdict returned in this case. Interestingly enough, this is same phrase (“die in prison”) used by Salemme in his conversation with the confidential source.
Coincidental?
New Exclupatory Evidence:
In support of its opposition, the government offers reports from two newly disclosed sources of information. According to an FBI 302 report detailing interviews from September 15, 2004, November 11, 2004 and November 26, 2004, an individual in a position to testify advised law enforcement that he was incarcerated with Salemme and Salemme related the following, among other things: (1) Salemme blames Connolly for the fact that there was an attempted murder of Salemme, saying he felt that Connolly was actually in the area when Salemme was shot, (FBI 302 at 2); (2) Salemme was looking forward to testifying against Connolly and wanted to get back at him for what he felt was a conspiracy to kill him, (FBI 302 at 2); and (3) Salemme believed Connolly set him up in connection with an unrelated indictment, (FBI 302 at 2). Of course, these statements and the report created as the result of an independent investigation ordered by the Department of Justice only serve to further corroborate the statements made by the confidential witness that is the subject matter of the Defendant’s motion for new trial.
Additionally, the government has provided the Defendant with a memorandum of contact between a confidential source, Assistant United States Attorney Mitchell Mars, and other law enforcement agents that occurred on February 8, 2005. Among other things, this confidential source advised that Salemme considered Connolly a “scumbag” and he was going to “stick it up his ass,” that Salemme had received approval from LCN figures to testify against Connolly because he was an FBI agent, that the government “was desperate for Salemme’s assistance because of a ‘statute of limitations’ problem”, and that Salemme would receive money, immunity, and would be released from prison shortly after he testified. (Memorandum of Contact attached as Exhibit 3 to Government Opposition). Again, these statements corroborate the statements Salemme made to the other confidential witnesses.
Inexplicably, none of the foregoing was provided to the Defendant prior to
his two years (May 27, 2005) for filing a Rule 33 motion, and the government
filing its Opposition herein on August 1st, despite the obvious exculpatory nature
of these interviews, and the fact they had been prepared and available to be
disclosed as required at least back to February 2005. Salemme has now
confirmed with multiple sources his animus towards Connolly, the fact that he
falsely denied that motivation during trial, and that there certainly were
undisclosed benefits conferred upon Salemme in return for his testimony. See,
Boyd, Id.
Necessity for an Evidentiary Hearing:
In the final analysis, the material disputes as to the testimony of Francis Salemme at the center of the Defendant’s motion for new trial and Opposition thereto, if any, may be further resolved with an evidentiary hearing to be held at the discretion of this Court. Predictably, as it does in every case, the government vehemently opposes an evidentiary hearing, despite the fact that substantial issues have been raised and documented by the Defendant’s pleadings. Indeed, the government’s response does not address most of these factual admissions and statements attributed to Salemme. In this context, if an evidentiary hearing is not deemed necessary, then the Court is respectfully requested to carefully examine the documentary evidence which has already been presented to this Court by the Defendant. Certainly, carefully crafted and narrowly circumscribed self-serving affidavits, prepared in the safe and sterile confines of one’s office, simply do not constitute an adequate Opposition in these circumstances, and is not a substitute for an evidentiary hearing and effective cross-examination on any material disputed factual issues. An evidentiary hearing is “the greatest legal engine ever invented for the discovery of truth.” California v. Greene, 399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).
Stated simply, the government’s submission of broad, conclusory affidavits and statements in its Opposition is insufficient as a matter of law to avoid this Court from allowing the requested relief in granting a new trial. This is especially true considering that the government has failed to address most all of the important, relevant and material aspects of Salemme’s statements to the various confidential witnesses. Respectfully, the Court may grant the Defendant’s motion for new trial without the need for an evidentiary hearing, but the Defendant certainly is ready, willing and able to proceed with same should the Court in its discretion deem it necessary and appropriate in these circumstances. Before assessing the need for an evidentiary hearing in these circumstances, the Court is directed to several references relative to the appropriate legal standards when, as has been alleged in these circumstances, the jury likely understood the witness to have said something that was, as the prosecution knew or should have known, was false. Conley v. United States, 415 F. 3d 183 (2005); United States v. Wright, 625 F. 2d 1017, 1020 (1980); Larson v. United States, 24 F.2d 82, 87 (7th Cir. 1928); Hameric v. Bailey, 386 F.2d. 390, 394 (4th Cir. 1967); Ronald L. Carlson, “False or Suppressed Evidence: Why a Need for the Prosecutorial Tie?” 1969 Duke L.J. 1171, 1186 n. 42; David Wolf, Note, “I Cannot Tell a Lie: The Standard for New Trial in False Testimomny Cases, “83 Mich. L. Rev. 1925, 1926 n. 7, 1943 (1985); cf. Giglio v. United States, 405 U.S. 150, 153, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972); United States v. Anderson, 574 F.2d 1347, 1355 (5th Cir. 1978).
2. Report of the House Subcommittee on Government Reform (Def. Memo. at 20-22):
It is inexplicable how the government can assert that the Report of the House Subcommitee on Government Reform “covers a lot of interesting topics, but none of them is directly related to the Connolly trial.” In the interest of efficiency and the avoidance of redundancy, reference is hereby made, inter alia, to the following Section 3 (Jeremiah T. O’Sullivan) and Section 5 (Robert Daddeico), in addition to the discussion that has been previously set forth in the Defendant’s Memorandum.
3. Claims Regarding Attorney Jeremiah T. O’Sullivan (Def. Memo. at 22-27):
The government attempts to dismiss as irrelevant the withholding of highly exculpatory evidence from the defense, and the knowing and intentional providing to the defense, and others, fabricated and misleading evidence (OPR 302). These subject documents relate generally to Jeremiah T. O’Sullivan. In context, it is significant to first look at the subject indictment which charged the Defendant at Count One – Racketeering (John J. Connolly, Jr.), which reads in pertinent part as follows:
PURPOSE OF THE ENTERPRISE
13. The Enterprise, through its members and associates, acted to protect James Bulger, Stephen Flemmi and their associates, including Francis P. Salemme and those in the Winter Hill Gang, from arrest and prosecution for criminal activities, including murder, loan sharking, illegal gambling, extortion, obstruction of justice, and bribery, and it acted to facilitate those criminal activities of Bulger, Flemmi, and their associates.
The central issues involving Attorney O’Sullivan are: (1) that the government provided the Connolly defense with their critical OPR 302 Report of July 31, 1997, being an interview of O’Sullivan; that they presumptively knew that material statements and representations reflected there were misleading and/or false; and further, that the Connolly defense would rely upon same to their detriment in being able to provide effective assistance of counsel to him; and (2) the government failed to provide the Connolly defense with the exculpatory documents (which would have directly contradicted the O’Sullivan OPR 302) contained within the so-called race fix case, including, but not limited to, those referenced (Def. Memo. Exhibit B, p. 138, footnote 1026) as the memorandum dated January 29, 1979, from Gerald E. McDowell, Attorney in Charge, and Jeremiah T. O’Sullivan, Prosecutor, Organized Crime & Racketeering Section, Boston U.S. Dept. of Justice Field Office, to Gerald T. McGuire, Deputy Chief, Organized Crime & Racketeering Section, U.S. Dept. of Justice. As commented upon in the said Def. Memo. Exhibit B, at p. 139, “But for the Committee’s perseverance, the final word on prosecutorial discretion pertaining to Stephen Flemmi and James Bulger would have been the incorrect [O’Sullivan] 1997 OPR report.”
By way of background, Jeremiah T. O’Sullivan was unavailable to provide testimony before Judge Wolf during the so-called Wolf hearings in 1997. Therefore, the false OPR 302 of O’Sullivan became part of that record in those proceedings, and unfortunately provided one of the supporting documents for the ultimate decision rendered by the court in that matter. Jeremiah T. O’Sullivan was also medically debilitated in May of 2002, and was therefore unable to appear as a witness at the Connolly trial. (See, Opposition, p. 22, footnote #12). Finally, as a result of the record of House Subcommittee on Government Reform proceedings and testimony following the Connolly trial, we know that in December of that same year (2002) he traveled in the company of AUSA John H. Durham to Washington, D.C., where he gave certain testimony before the House Subcommittee, which Report has been referenced in the Defendant’s Memorandum as “Exhibit B.”
The government disingenuously disregards the fact that the very foundation upon which they prosecuted and tried John Connolly was to portray him as a rogue agent who, acting independently, had no authority to authorize Bulger and Flemmi, as FBI Top Echelon Informants, to commit low level non- violent crimes. Indeed, the theory that the prosecution diligently pursued throughout the course of the trial was to further establish that nobody else in law enforcement (FBI, U.S. Attorney’s Office and the Department of Justice) had any knowledge of the fact that Connolly had granted this so-called authority (“authorized conduct”) to Bulger and Flemmi, that there was no reason to suspect them of involvement in murders, or that they were engaged in criminal conduct of any kind while having the status as Top Echelon Informants. Certainly, maintaining this façade was one of the critical elements necessary for the government to sustain their burden in establishing their case – particularly as to the RICO count.
As discussed in detail in the Defendant’s Memorandum, it is now clear the government knew that Bulger and Flemmi were informants, that there was reason to believe that they were at various times involved with murders, and that they were continually involved in the book making and loan sharking businesses.
Undoubtedly, the truthful testimony of Jeremiah O’Sullivan would have materially affected and impacted the jury’s verdict in this case. He would have testified that he, amongst others all the way to Washington, D.C., knew all of these sordid facts about Bulger and Flemmi, and that notwithstanding such knowledge they all overlooked their conduct and participation in the so-called race fix case, and institutionally decided to extend to them “prosecutorial discretion” by excluding them as defendants in that indictment, and for that matter their other well know criminal activities. He would have testified that his actions were done with the knowledge, approval and authorization of FBI and the Department of Justice in Washington, all as reflected in the said House Report.
Had the jury been told that the FBI and Department of Justice Offices from Washington, D.C., on down were part of this decision not to pursue Flemmi and Bulger because of their perceived value as informants against the Mafia, surely the outcome of this trial would have been different.
The extent to which the testimony of Jeremiah O’Sullivan would have impacted the entire trial and the outcome of the Connolly trial is not a matter of mere speculation. It is evident from the dramatic and extraordinary efforts to which the government itself undertook to hide this truth from Judge Wolf in the first instance, the Office of Professional Responsibility in the second instance (Def. Memo. Exhibit F), this Court in the third instance, and finally before Congress (by going to the extreme of hiding for several months behind a claim of Executive Privilege which they requested and obtained from President George W. Bush).
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