JUSTICE FOR JOHN
MOTION FOR NEW TRIAL Continued Attached as “Exhibit B” is a copy of a pertinent sections of the deposition transcript of Jeremiah T. O’Sullivan taken on October 24, 2005. Certain additional supporting facts and testimony was elicited in the course of his testimony as follows:
Tr., p. 100:
Q. In January of 1979, did FBI Agents John Connolly and John Morris inform you that James “Whitey” Bulger and Stephen Flemmi were FBI informants?
A. At some point they did, but I don’t remember the date, but, yes.
Q. Would January 1979 be approximately the time period when that happened?
A. I really don’t remember. It was before the [W]inter [Hill] indictment returned, so it probably was about that time. The Winter [Hill] indictments were returned in February of ’79.
Tr., p. 101: Q. So, it was before then?
A. Yes.
Q. In fact, you wrote a prosecution memorandum on January 29, of 1979, in connection with the winter race-fixing scheme; is that correct?
A. Yes.
Q. And Stephen Flemmi and Whitey Bulger were not indicted in that case; is that correct?
A. That’s correct.
Tr., p. 102: Q. And by that time, in other words, February of 1979, did you know that Whitey Bulger had been involved with some murders?
A. Yes, I remember all of the people in the Winter Hill Gang were involved in murder, so I had no specific memory of him being involved in that particular murder, but I believe he was a murderer, yes.
Q. Flemmi and Bulger were not prosecuted in the Winter Hill race fixing case as a result of your exercise of prosecutorial discretion; is that correct?
A. Yes.
Tr., p. 105: Q. Now, when Agents John Connolly and John Morris spoke to you about the fact that Whitey Bulger and Stephen Flemmi were informants, they asked you not to indict them in the race fixing scheme; is that correct?
Tr., p. 106: A. Yes, that is what they did.
Q. And they also asked you for permission to tell Bulger and Flemmi that they had spoken to you on their behalf, did they not?
A. Yes.
Q. And what reply did you make to that?
A. I said, “They’re informants, they can do whatever they want as informants.”
Tr., p. 124: Q. Mr. O’Sullivan, were you ever interviewed by the Justice Department Task Force that John Durham was setting up?
A. Yes.
Q. How many times were you interviewed by them?
A. More than once. I can’t remember how many times. At least twice.
Tr., p. 127: Q. Well, have there been correspondence by and between representatives of the Department of Justice and your attorney concerning you and information that you might have?
A. I believe so, but I don't know for a fact.
Q. You mentioned Jamie Herbert as an Assistant United States Attorney that you had hired; is that correct?
A. When I hired him, I hired him as a Special Attorney of the Strike Force. I think he's now an Assistant United States Attorney. I didn't hire him as an Assistant United States Attorney.
Q. Have you, in the course of your preparing to testify today or at any time, had conversations with Mr. Herbert?
A. I've had conversations with Mr. Herbert, not in connection with my testimony today, but at some point I've had conversations with Mr. Herbert.
Tr., p. 128:
Q. Did you have any conversations with Mr. Herbert prior to your being interviewed by Agents Walsh, Reynolds and Special Agent John Hess in 1997?
A. I think so, but I'm not quite sure of the sequence of time.
Q. Do you recall that Mr. Herbert was with you during that interview?
A. He was not with me; he was with the agents.
Q. He was present at that interview; is that correct?
A. That's correct.
Q. Have you reviewed the Federal Bureau of Investigation 302 report, dated July 31, 1997?
A. I'm not quite sure what that report is about, so I have to --
Q. MR. LONERGAN: Let me offer that as an exhibit (Exhibit No. 18, FBI 302 Report, marked.)
Tr. 129: A. I see it, Mr. Lonergan.
Q. Have you seen this before?
A. No.
Q. Would you take a moment to go through it. please?
A. (Witness complies.) I have been through it a little bit, Mr. Lonergan, and it looks like it's replete with errors.
MR. SCOTT: Could we have a minute? I would like to read the document since we have not seen it before.
(Brief Pause Taken.)
A. I've read it, Mr. Lonergan.
Q. Thank you, Mr. O'Sullivan. I won't ask you at this moment to review all the errors, since it is replete, but I would ask you to confirm that it is in error where it says "O'Sullivan had no involvement in the Lancaster Garage Title III investigation until after the fact."
Tr., p. 130: A. That's an error.
Q. Right. And when it says on Page 3, "O'Sullivan thought that Bulger and Flemmi were informants for the FBI, but he was never specifically told while he was a Government prosecutor," that would be in error; is that correct?
A. That's correct.
Q. In fact, you were informed, as you testified earlier, by Morris and Connolly, that they were, in fact, informants?
A. That's right.
Q. And, in fact, you prepared a memorandum in [1979] which acknowledged that there was knowledge in your office that all members of Winter Hill Gang -- I think that was your language and that would obviously include Flemmi and Bulger -- were involved in murders; is that correct?
A. I'm not quite sure what -- I didn't understand your question, Mr. Lonergan.
Q. It's my memory of what you testified to earlier is that you knew in [1979] that Bulger, Flemmi and all the other members of the Winter Hill Gang were involved in murders?
Tr. p. 131: A. Yes.
Q. Thank you. In May of 2002, during the trial of John Connolly, is it fair to say that you had a physical condition that prevented you from being available to testify?
A. Yes.
Q. So, if, in fact, the transcript has a statement from Prosecutor Durham that says "O'Sullivan is available to testify" that would be in error; is that correct?
A. I don't know.
Q. Well, were you physically able to testify during the John Connolly trial in May of 2002?
A. May of 2002? (Pause.) Probably not.
Q. Probably not. So that when the office of John Durham in a recent pleading confirmed that you were unavailable to testify, that would be true, correct?
Tr. p. 132: A. Yes.
LONERGAN: That's all I have. Thank you.
MR. AVERY: Any other counsel have questions? I have a question just provoked by this exhibit then, if no one else does.
FURTHER EXAMINATION BY MR. AVERY:
Q. Can you tell us what the other errors are that are in here, Mr. O'Sullivan? That would be Exhibit 18.
MR. SCOTT: Well, I mean, if we are going to do that, then we need a recess where you let the witness look at this. He hasn't seen this document ever before. It's four pages of single-spaced text.
MR. AVERY: Well, he said --
MR. SCOTT: Is there anything else material you would like to ask him about it if it's correct or not. I'm not going to have him go through and say, you know, the guy's name is misspelled and, you know, the grammatical structure is wrong on this sentence, and so forth. I mean, if there's a material question, if you look at it and say, is it accurate in regard to this, then fine, let us answer it. But I think it's inappropriate to have him critique the writing style basically.
Tr. p. 133: MR. AVERY: I don't think anybody here thinks I was asking Mr. O'Sullivan to critique the writing style.
Q. But I will put my question this way: What were you referring when you said "it was replete with errors"?
A. The statements that Mr. Lonergan brought to my attention.
Q. Yes. Anything else?
A. I haven't read it in any detail, but at least the major focus of these four pages, you know, for instance, I had no involvement within the Lancaster Street Garage until after the fact. We established that at least here that I had some substantial involvement
Tr., p.134: Q. Right.
A. "O'Sullivan thought that Bulger and Flemmi were informants for the FBI, but was never specifically told while he was a government prosecutor," that's wrong as well.
Q. Is it accurate that "There were probably 15 to 25 instances where the identities of FBI informants were revealed to O'Sullivan." That's on Page 4.
A. Yes.
Q. And that you "traveled on several occasions to testify on behalf of informants"?
A. Yes.
The dissemination and distribution of this materially false OPR 302 Report significantly and adversely affected the ability of the Defendant to present a meaningful defense. It interfered with, inter alia, presenting evidence regarding “authority” and “prosecutorial discretion” within the FBI, the U.S. Attorney’s Office, and in Washington, which could have been offered through the truthful testimony of former AUSA O’Sullivan, had that opportunity been available to the defense. In a broader perspective, had the true extent to which federal prosecutors and FBI superiors actually all knew and condoned this informant relationship in their zeal to get the Mafia, despite everything, the otherwise unexplained actions of Connolly as the handler for Bulger and Flemmi in not arresting them for their criminal conduct would have significantly impacted the jury, the defense strategy, and indeed the outcome of the trial itself.
First, we now know post-Connolly trial that O’Sullivan had exercised prosecutorial discretion in 1972 with respect to Bulger and Flemmi, that he among the many others in higher authority, knew of the informant status of Bulger and Flemmi, and that they were suspected of committing murderers. Second, we also know that none of this information in any form was ever provided to the defense through the present date. Third, what was provided to the defense was an OPR 302 of O’Sullivan which totally and completely misled the defense in believing this was not an inquiry that was available to them, and further, that the government knew that the OPR 302 was false and misleading, and as such likely to mislead the defense in their discovery and preparation for trial efforts. The fact that the OPR 302 was false was withheld from the defense, including providing the contradictory and exculpatory race fix case memoranda.
In fact, the knowing and intentional providing by the government to the defense the fraudulent 302 Report of O’Sullivan (Def. Memo. Exhibit F) was little more than a curve ball to keep the defense at bay in pursuing this issue as an essential component of their defense. Had the government complied with their Brady obligations, and provided to the defense O’Sullivan’s prosecutorial memoranda which he had prepared and filed in the race fix case, there is no doubt that the defense of this case, including the list of witnesses that would have been called by the defense, and its outcome, would have been significantly different. There is also no doubt that the defense would not have been blind- sided as they were by the government providing them with an OPR 302 Report that the government knew contained false and misleading statements that were highly significant to the entire case in a litany of material ways. However, the government had a real problem in producing for the defense copies of the O’Sullivan prosecutorial race fix memoranda, and the entire race fix file in general (which ultimately was first and reluctantly produced before the Congressional Subcommittee after the Connolly trial). There is no doubt that in these circumstances the government had been absolutely mandated to provide all this documentation under Brady, as this information was indeed well within the purview of exculpatory information and documents. The horn of the government’s dilemma was that this information directly contradicted the O’Sullivan 1997 OPR 302 interview (Def. Memo. Exhibit F). Notwithstanding, this critical government 302 Report has now been proven by the Congressional Subcommittee to contain information that simply is not true, and indeed confirmed by the recent admission of O’Sullivan himself in his own words during his deposition (Exhibit A), wherein he candidly admits that his 302 Report is “replete with errors.“
Certainly, nobody disagrees that this false 302 report was coincidently highly self-serving for the government at this point in time. In context, this was the period where the OPR investigation in question had been requested by Judge Wolf to determine this very issue of “authorized conduct” and “prosecutorial discretion.” This particular report, as written, conveniently supported the government’s response to Defendant Flemmi’s defense before Judge Wolf, requesting that his indictment should be dismissed on the basis that it charged “authorized conduct” while acting in his capacity as an informant. Certainly, a truthful OPR 302 Report of O’Sullivan as reflected in his ultimate testimony before the House Subcommittee, and in his attached deposition, would have supported Flemmi’s defense back in 1997. Therefore, someone, somewhere along the way engaged in conduct that was de facto obstruction of justice by providing, creating and disseminating such a false document and disinformation.
Again, the pursuit of those responsible for creating such a false 302 Report is not an issue that is now before the Court. However, Connolly’s defense in this case clearly became one of the victims of this false report – intended or unintended. This is certainly newly discovered evidence and Brady violations that go far beyond being just material – these were all crucial exculpatory documents, including the O’Sullivan prosecutorial memorandum and file documents from the so-called race fix case. These truthful disclosures at a new trial, together with the additional testimony that would now be available as a result of the truth being disclosed, would certainly affect a jury in the “totality” of these circumstances. The omission in failing to initially provide all of the truthful information and content to the defense certainly undermines any confidence one may have in this verdict -- if left standing.
4. Robert Daddeico (Def. Memo. at 27):
There is agreement here with the first sentence of the government’s response in that, “The relevance of Robert Daddeico to the Connolly prosecution is difficult to identify.” Consequently, it is equally difficult to explain why such an extraordinary effort was expended by the government to hide and shield him from Congress and the Connolly defense. As noted in this section of the Defendant’s Memorandum, two AUSA from the Boston Office had interviewed Robert Daddeico in 1997, presumably related to the so-called Wolf hearings. Additionally, AUSA Attorney John H. Durham during the Connolly trial referred to Daddeico as a “critical witness” in his direct examination of Francis Salemme. However, no discovery was produced to the Connolly defense which related to this “critical witness,” Robert Daddeico. Additionally, just three months after the Connolly trial, AUSA Durham appeared before the Congressional House Subcommittee incredulously disavowing any knowledge or ability to identify a “Robert Daddeico” in Justice Department files. In this context, something was definitely amiss, in the context of the totality of evidence presented in the motion, one can reasonably assume the genesis of such devious actions was the hiding of more exculpatory evidence by the government.
The overall concern about the conduct of the government throughout these Connolly proceedings is not merely the run-of-the-mill withholding of exculpatory information, as has been complained about in far too many decisions within the District, but in the case of the O’Sulliavan 302 it is their actual fabrication of disinformation. In this background, and given the track record of government before this court in so many recent instances, it has resulted in the unfortunate fact that nothing they do may be placed above suspicion.
In this instance, in response to AUSA Durham’s incredulous disavowal to Congress of having any knowledge about a “Robert Daddeico,” reference is hereby made to the comments appearing on p. 136 of the House Subcommittee Report (Def. Memo. Exhibit B):
“There are five clear reasons why the Justice Department should have no trouble deciding which ’Robert Daddeico’ the Committee was interested in: (1) a Justice Department employee contacted Daddeico to inform him that the Committee wanted to interview him; (2) a few days before the Committee interviewed Daddeico the FBI offered him a payment of $15,000; (3) a number of currently employed Justice Department personnel have personally interviewed Daddeico; (4) in the last few years Daddeico has been in personal contact with the FBI’s former number two official; and (5) Daddeico has been living for 30 years under an assumed name known to the government, and he had maintained frequent contact with FBI officials.
It is hardly unreasonable for the Committee to expect prompt production of documents related to Robert Daddeico, and it is hard to believe, given all of these facts, that the Justice Department was uncertain which “Robert Daddeico” the Committee was interested in. The failure to produce this information in a timely fashion is inexcusable.”
Of course, had the Congressional Committee been aware that just several months earlier AUSA Durham was examining his own witness (Frank Salemme) in the Connolly trial about this “critical witness” Robert Daddeico, they would have added a 6th reason why the Justice Department should have had no trouble identifying this person. The significance here is that the government seemingly has no problem with withholding information from Congress, no problem in making misrepresentations to Congress, and no problem even going to the President of the United States to continue post-trial efforts to withhold the disclosure of highly exculpatory evidence in this case. If the government can demonstrate such a lack of respect for even Congressional and Presidential authority, what chance does an individual defendant have with little or no financial resources to pursue truth and justice? Would they have the ability, as Congress fortunately had in this case, to get an order of Executive Privilege overturned in Washington, D.C., to discover exculpatory evidence and the truth?
Unfortunately, with all of this prosecutorial misconduct and disregard of the most basic and fundamental rules and obligations as officers of the court, how could this Court ever be certain and have confidence that the government has finally come clean and provided all of the exculpatory evidence that Connolly is entitled to at a new trial? All of these manipulations of facts and documents makes one believe that the government sees prosecutions as some sort of game, the goal of which apparently is simply to win at all costs.
It is indeed a discouraging prospect to try to fathom what went wrong from: (a) the initial decision to bring this indictment in the first instance; (b) throughout the trial of case; and (c) the cover-up of exculpatory evidence that continued following the trial. The withholding of the additional interview documents (which had been available almost 5 months earlier) regarding Francis Salemme from Defendant’s counsel until the day following the government having filed its Response herein was yet another completely and totally inexcusable instance of refusing to timely provide exculpatory evidence.
5. Patrick Nee (Def. Memo. at 27- 30):
There is attached hereto as Exhibit C, is the affidavit of John Doe #1. His affidavit sets forth the substance of a most interesting and curious conversation that he had with Patrick Nee sometime during the fall of 2001. The existence of this conversation did not come to the Defendant’s attention until many months after his trial. However, in the context of what has already been submitted to this Court in the Defendant’s Memorandum at pp. 27-30, this certainly is not such a surprising event.
As an aside, it is interesting that the government witnesses all seem to have a certain remarkable verbatim recall of conversations with precise dates, exact times, and specific places, while the defense seems to be unable to find witnesses who can recall such events with the same surgical precision – a curious and interesting contrasting experience. In any event, by way of background, there has been set forth in the Defendant’s Memorandum and exhibits now before this Court numerous documented references to serious acts of violence in which the name Patrick Nee has intimately been involved and implicated therein. These include direct involvement in several of the murders to which Kevin Weeks has previously admitted to in his plea deal, including the McIntyre, Halloran and Donahue murders. As to Halloran and Donahue, it is now obvious that Kevin Weeks has perjured himself during his trial testimony, inter alia, in an attempt to protect his good friend Patrick Nee, including the incredulous testimony that one of the shooters [Patrick Nee] wore a ski mask. (See, Def. Memo. Exhibit K – Kevin Weeks DEA-6).
However, what is even more disturbing is that based upon John Doe #1’s affidavit, it appears that the government itself may have inexcusably been complicit in this scheme between Kevin Weeks and Patrick Nee in arranging for this testimonial fiction, and perhaps other presently undisclosed matters. Additionally, all this new, credible and material evidence supports the fact that Kevin Weeks was indeed accorded certain undisclosed “special benefits” by prosecutors (de minimus, the opportunity to communicate in private with Patrick Nee “to straighten everything out”). This “benefit,” and perhaps others, were certainly never disclosed to the Defendant at any time. By way of engaging in understatement, these embarrassing disclosures would have been of immense significance and importance during the cross-examination of Kevin Weeks. After all, how could the government explain their arranging and permitting Kevin Weeks, an admitted serial killer, to directly communicate in any manner with a fellow gang member murderer at any time while in custody? For what possible reason -- particularly when Patrick Nee was then, and still remains, walking around free as a bird along the streets of South Boston? What possible interest in the pursuit of truth and justice could possibly have been served by allowing such communication(s) between these two career criminals, murderers and fellow gang members? These are certainly not privileges available to any other federal prisoner while being incarcerated and awaiting trial or sentencing. See, United States v. Boyd, 55 F.3d. 239, 244 (1995). “Disclosure of these benefits, of course known only to the prosecution (the source of the benefits), would have helped the defendants by undermining the credibility of key witnesses against them. The rule of Brady applies to evidence usable only to impeach the credibility of the prosecution’s witnesses, and not just to direct evidence of innocence.” (Citing therein, United States v. Bagley, 473 U.S. U.S. 667, 676-77 (1985); Giglio v. United States, 405 U.S. 150 (1972); and United States v. Douglas, 874 F.2d. 1145 (7th Cir. 1989)).
Finally, the government, like everything else, dismisses the importance of the article appearing in the May 25, 2005, edition of the Boston Herald, which is included as “Exhibit I” to the Defendant’s Memorandum. It is factually accurate, but irrelevant, for the government to confirm and reference specific documents provided to the Defendant and noted as Bates Nos. 15250-15252, 26319-16320 and 29122-29135. However, this recitation of superfluous data misses (intentionally or unintentionally) the point of the immense significance and importance of this issue. These documents (Docket #782, Exhibit A) referenced by the government were all interviews of the witness Jamie S. Parker taken back in 1982, being within days after the murders of Halloran and Donahue. What is even more important is that none of those interviews involved this eye witness to the murders being asked the question as to whether or not any of the shooters who were involved in the Halloran and Donahue murders “wore a ski mask.”
However, the pivotal question, and the response made by Jamie Parker confirming that none these shooters wore “ski masks,” was first asked of him during his recent interview by law enforcement after the Connolly trial. (See, Def. Memo., Exhibit I). This interview was made in response to the contradictory and perjured testimony of Kevin Weeks at the Connolly trial stating that one of the shooters “wore a ski mask” which prevented him from identifying who [Patrick Nee] it was. In this context, this is indeed newly discovered evidence, which, had it been available, would have dramatically and effectively further impeached the credibility of Kevin Weeks.
6. Purported Additional Newly Discovered Evidence (Def. Memo. 30-38): (a) John McIntyre Related Claims (Def. Memo. At 30):
The discussion regarding John McIntyre in the Defendant’s Memorandum is intended to once again demonstrate that the testimony of Kevin Weeks regarding this incident, inter alia, is simply not credible. What Exhibit P of Defendant’s Memorandum reveals and confirms is the opposite of Week’s testimony. Connolly filed this 209 prior to McIntyre’s disappearance, which warned the pertinent government agencies (Customs and DEA) involved in that investigation that his informant (Bulger) believed that there was an informant aboard the subject vessel which had been seized. Further, as has been disclosed in the significant discovery obtained in the related civil cases, that in reliance upon Connolly’s 209, together with information having been received from other independent sources confirming this concern, Customs and the DEA offered McIntyre the witness protection program, which unfortunately he refused. Additionally, the truth of this incident is that this was not an FBI investigation, and Connolly had no knowledge as to whether or not any agency had an informant aboard this vessel, let alone the identity of McIntyre. This is just more the uncorroborated fiction that was thrown against the prosecutorial wall to impugn the character of Connolly by innuendo, etc.
(b) Defendant’s Exhibit J. (Def. Memo. At 30):
The government attempts to dismiss the significance of Exhibit J as being irrelevant. This argument is untenable since during the prosecution of Connolly the government attempted to portray through its witnesses that the Defendant was a sole source of providing certain confidential information to Bulger and others. However, what was not provided by way of exculpatory evidence was that there were indeed numerous sources of confidential information that was being provided to Bulger and others. For example, on p. 34 of Vol. I of the OPR Report of 1997 (Def. Memo., Exhibit G), it states:
“In reviewing the Bulger and Flemmi CI/CW files, as well as eight other CI/CW files, which detailed 49 separate allegations of ‘leaks,’ it is apparent that these FBI informants [Bulger and Flemmi] had their own network of sources in law enforcement. According to the reporting, the law enforcement sources included members of the FBI, MSP, BPD, Medford PD, DOJ in Washington, D.C., the U.S. Coast Guard, Suffolk County Clerk’s Office, the USAO, U.S. Probation and the U.S. Marshalls’ Office. These CI/CW’s had sources in the telephone company with specific knowledge of wiretaps by law enforcement agencies. They were also receiving information from federal courthouse employees. This information was evaluated and disseminated to other law enforcement agencies when deemed appropriate by the SAC.
The following is a list of possible law enforcement leaks developed from the information provided by these CI/CW’s:
13. FBI Stenographer ….
14. MSP Trooper John Namovich ….
15. Then-AUSA (now U.S. District Judge) Mark Wolf and a female who works for the USAO ….
16. Unknown MSP Trooper ….
17. Anthony Cardinale ….
18. Federal Parole Officer ….
19. FBI Clerk ….
20. AUSA David Twoomey ….
Consequently, the relevance of Exhibit J is to further demonstrate that Bulger and Flemmi had almost unlimited sources of information, from Washington, D.C. down to the federal courthouse itself. Indeed MSP Schneiderhan was yet another such continuous source of insider law enforcement information being provided to Bulger and Flemmi (WHG).
Collectively, all these additional sources, and all investigative documentation related thereto that had been identified by the government prior to the Connolly trial, was exculpatory evidence that was required to be provided to the defense, particularly when they were accusing him of being “the source” in many instances. As has already been discussed in the Defendant’s Memorandum, Kevin Weeks in his deposition (Def. Memo., Exhibit K) stated that he provided AUSA Wyshak with the name of yet another one these sources, but the identity of that source also was never provided to the Connolly defense. When viewed in light of the totality of all these Brady violations, it is clear that Connolly never had the opportunity to prepare and present a meaningful defense, and that lost opportunity was due primarily to the conduct of the government throughout these proceedings.
(c) Defendant’s Exhibit G (Def. Memo. At 30):
Once again the government wishes to dismiss this exhibit on the basis that a copy of it had been provided to the Connolly defense. Although this is a true statement, what is relevant is that it also demonstrates, as noted in the preceding section, that there were many references to certain conclusions that are on their face exculpatory in nature. However, the actual documentation upon which such conclusions were predicated were not provided to the defense as required under Brady. Another such example is as follows:
We reviewed substantive files referencing sources reporting on Bulger and Flemmi to determine if other sources of information were reporting on their criminal activity. The purpose of this search was to determine whether that information triggered a written finding by the Boston FBI office, evaluating the continued use of the informants. This source reporting covers over 25 years of investigative effort (1970-1997). A total of 157 separate reports were provided by 49 separate informants. Eighty-four of these reports reflected some degree of criminal activity by Bulger and Flemmi. These activities include their involvement in bookmaking, gambling, and loan sharking. There were 39 reports between 1981 and 1990, and 24 references to separate criminal acts. Thirteen of those are of a violent nature (for example, extorting rent from bookmaking, gambling, and drug activity) and four of those relate to murder. Although the accuracy of the reports could not be determined, and it is unclear in some instances whether they are derived from first-hand knowledge or rumor, it is virtually certain Bulger's and Flemmi's handler and/or the handler's supervisors were aware of some of the reports. Although there is no specific record that they did, much of the information was sent to OC control files which should have been read by the OC supervisor. Further, the information involving Bulger and Flemmi could have been located through an indices search. In fact, SSA Ring stated he "assumed Bulger and Flemmi were involved daily in illegal conduct," but Ring only wanted to know when they had been arrested.
More problematic are the 20 instances of self-reporting by Bulger and Flemmi between 1980 and 1989, all indicating involvement, with varying degrees of specificity, in criminal activity. There were also four instances of Mercurio's self-reporting. The crimes referred to were loan sharking, gambling, and bookmaking. In these cases, the handler was obviously aware of the illegal conduct (Connolly was the handler for all three), and there was little need to do a credibility assessment. This information should have triggered the required status review.
2. Non-authorized criminal activity by Bulger or Flemmi reported by FBI Boston sources was not properly disseminated and/or acted upon.
As discussed above, based on an indices search, criminal investigative substantive files that contained source information regarding criminal activity of Bulger or Flemmi were identified. Forty- nine individual sources were found that provided this type of information during the period 1970 through the present. These criminal case files reflect that the information that was provided during the past 27 years ranges from general intelligence and historical data to informant information linking Bulger and Flemmi to murder. Fifty percent of the information provided was before 1990.
All the above informant information that was reviewed had been put into indices. This information had been disseminated to substantive files depending upon the type of violation. For example, specific gambling information went to an independent file if attributed to an active investigation. General information provided by a source would be disseminated into a control or "zero" file. There is no information directed to Bulger or Flemmi's informant file, and it could not be ascertained whether during the time Bulger and Flemmi were open as informants any of this information was acted on.
Although information was placed into files, the handling agent, management, and others may not have received this separate source information. Even with the current Automated Case Support (ACS) system, the "silent hit" feature has not improved dissemination because it responds only to inquiries, not indexing.
As previously discussed, however, with self-reporting by Bulger and Flemmi, or with other informants reporting on Bulger and Flemmi and handled by the same squad or handler, it is almost unavoidable that there was an awareness that there was informant information implicating Bulger and Flemmi in criminal activity. We believe there should have been written determination(s) of whether continued use of the informant is justified," MIOG (137-5), based on the information reported by other informants concerning Bulger and Flemmi. This was not done by the management of the Boston Division. We conducted informant file reviews of other informants. The Angelo Mercurio file reflects information regarding gambling and loan sharking by Bulger and Flemmi received on October 17, 1987. SA John Connolly, the handling agent for Mercurio, Bulger, and Flemmi, received this information; however, he did not disseminate it until May 2, 1988. Other inserts in the Mercurio file reflect the gambling activity of Bulger or Flemmi. SA Connolly disseminated this information on a more timely basis to the organized crime control file or to a substantive case file but did not initiate the required status review based on reports of criminal activity by Bulger and Flemmi.
The issues raised in this portion of Exhibit J (1997 OPR Report) demonstrate that the FBI Boston Office was replete with files and reports reflecting the ongoing criminal activities of Flemmi and Bulger, and that the Defendant Connolly himself was the author and source of many of these reports chronicling these criminal activities. Additionally, other FBI Agents were also filing reports on Bulger and Flemmi based upon information obtained from their own informants, all of which information and data was processed by the FBI. All such information worked its way all the way to FBI Headquarters in Washington, where it was reviewed at least twice a year to maintain top echelon status. There was no secret about who and what Bulger and Flemmi were, and Connolly made no effort to hide their activities from anyone – including the Boston FBI Office. The documents referenced in this OPR Report establish that fact through the actual documentation upon which these conclusory statements and opinions were based.
These documents referenced herein were indeed exculpatory evidence, and should have been provided to the Connolly defense. At a minimum, if introduced into evidence they would have demonstrated to the jury, and questioned the government’s own premise, that anyone who is reporting on the criminal activities of anyone in the usual course of their employment in law enforcement is unlikely to be involved in a criminal conspiracy with those same individuals. It would defy logic for any juror to think otherwise. (d) Chart Regarding Trial Testimony and Post-Trial Discovery (Def. Memo. 31-38):
The government provides a masterful job of attempting to confuse the obvious. It is readily apparent herein that the government witnesses cannot repeat the same facts concerning the same event twice in a row – not even from the morning session of their deposition testimony to that of their afternoon testimony. As a review of this chart dramatically shows, they certainly do not corroborate each other, they cannot get their facts and time lines to coincide, etc.
Kevin Weeks in his deposition repeatedly could not even remember what he testified to at the Connolly trial. At the time of his deposition he constantly needed to be shown copies of the trial transcript to “refresh” his memory. He is the witness who supposedly first knew about the indictments coming down “over the holidays” (which did not happen) from Connolly. However, as the discovery file documents reveal, when he saw on television that Flemmi had just been arrested that evening of January 5th, he immediately rushed and jumped out of a window in the bar he had been in – which reaction does not seem like someone who really had the heads-up about any indictments as he testified to at this trial.
The government has also commented on the “corroborating” in part the deposition testimony of Stephen Flemmi with that of the trial testimony of John Martorano. Indeed, what is true is that John Martorano and Stephen Flemmi do share certain things such as the team of AUSA Wyshak, DEA Agent Dan Doherty and MSP Sergeant Johnson (Def, Memo., Exhibit J), who incidentally have not provided affidavits as part of government’s Opposition. This team even traveled all the way to New York City in April of this year, for some inexplicable reason, just to attend and sit in on the civil deposition of Flemmi (Def. Memo., Exhibit M).
Notwithstanding that characterization of Flemmi’s ability to corroborate anyone, being accepted as having been made in the spirit of advocacy, nothing could possibly be further from reality. Even with the militant coaching supplied by AUSA Wyshak, which he so dramatically exhibited during his direct examination of Flemmi at his deposition (Def. Memo., Exhibit K), Stephen Flemmi still could not get his testimony straight. In the morning he testifies somewhat consistent with his testimony and affidavits which he had offered before Judge Wolf, but after the lunch break that testimony substantively changes -- despite being under oath in all these instances. For example, Flemmi first testified and acknowledged the content of his affidavits that he was tipped off to the indictment by Bulger, who allegedly had heard it from “Vino.” However, after his lunch break refresher course, his deposition testimony changes like the seasons to suddenly become that he heard about these indictments from Weeks – albeit ten or so days later than what Weeks had testified to at trial. Of course what never gets explained by Flemmi is that if he did know at any time about indictments coming down against him from anyone, why did he stick around to be arrested --- especially a guy with a history of going on the lam to avoid arrest. Additionally, his testimony commented upon in the media about a campaign contribution being made to Senator Kerry, an event that not only never happened, but never could have happened, would have been a wonderful source of humor had it not been under oath. His farcical deposition testimony about having providing money to every FBI Agent he ever came in contact with would be another source of humor, were it not again a statement that was made under oath. He is simply an amoral individual who has demonstrated that he will say anything about anybody at any time -- as long as there is something in it for him. Certainly, it goes to demonstrate what the truth and being under oath means to these witnesses – nothing.
Then of course there is John Martorano who never even laid eyes on John Connolly before the Connolly trial. He provided testimony that appropriately was rejected in its entirety by the jury. The bottom line is, like Francis Salemme, there is no surprise or shock that these particular witnesses were each ready, willing and able to tell the government, and testify to, whatever they thought was being asked of them -- provided only that it got them on the street, and/or out from under a death sentence in the case of Flemmi and Martorano. When they heard all they had to do to earn their pass was to testify against an FBI Agent (law enforcement), it must have been music to their ears – as it certainly was to Frank Salemme. The government has also comments herein that Flemmi’s deposition testimony has now corroborated in part John Martorano’s trial testimony. However, perhaps the real question with respect to Martorano’s testimony concerning Castucci is how and why his murder was included in this indictment in the first instance. What is now known, through the courtesy of 170,000 pages of discovery documents and well over 50 depositions in these related civil cases, was that:
(a) Every single FBI Agent interviewed, including Special Agents Daly and Scanlon as the Castucci handlers, confirmed that Connolly could not possibly have known that Castucci was an informant;
(b) That numerous FBI 209’s, reports filed with FBI Offices all over New England (including Connecticut, Rhode Island and New Hampshire), and New York, together with reports from local and Massachusetts State Police, all confirmed without exception what was widely known in the streets -- Castucci was killed by John Martorano (with Flemmi and Bulger present) over gambling debts in excess of $100,000 (as illustrative only, see a few such examples in “Exhibit D” attached hereto);
(c) Connolly had never met either Flemmi or Martorano prior to Castucci’s murder;
(d) If Castucci had been killed due to his informant status, it would have been well known and broadcast all over the streets in order to make him an example as to what happens to informants, and certainly that information would undoubtedly have shown up in the various 209’s and law enforcement reports filed subsequent thereto – but there is not a single report that reflects other it was about money; and finally;
(e) If, hypothetically, Bulger, Flemmi and Martorano found out in December, 1976, that Castucci was telling law enforcement that Sims and MacDonald were on the lam at an apartment in Greenwich Village, they all knew that such information was not true; Sims had already taken off late summer or early September and was of parts unknown to all, and Joe McDonald had been living on the lam in New Hampshire for previous several months at that point in time. Therefore, if Castucci were providing such disinformation to law enforcement, it would only have been helping their cause, assuming they really were concerned about the likelihood of either of these individuals getting arrested -- hardly the motivation required to murder someone. Finally, to the extent Flemmi may be believed about anything, he does reluctantly admit in his deposition (Def. Memo., Exhibit M) that indeed a significant sum of money was owing between Castucci and the Winter Hill Gang at the time of his murder.
It is within this context, one cannot but ask the question concerning the motivation behind pursuing a criminal process against anyone is these circumstances where there is a mountain of consistent investigative documentary evidence within all of the pertinent law enforcement agencies, that each and every person within law enforcement who was interviewed in this investigation confirmed the circumstances of this murder -- it was strictly over money. The only evidence to the contrary was that recently contrived by John Martorano, being the actual perpetrator of the murder, an admitted sociopathic serial killer (21 admitted murders), and one who at the time of his testimony was seeking to avoid the death sentence and hit the street. Additionally, what he had to say about this recently contrived informant disclosure was allegedly a single self- serving uncorroborated hearsay conversation with Bulger – which fabrication never appeared at a prior time on any law enforcement reports. How could the murder of Castucci, for the reason that he was an informant, been kept so secret all those years, spanning over two decades? Also, how could so many people in law enforcement be so uninformed and wrong in continuing to believe, as they reported, that Castucci had been murdered by this crew over money?
Finally, as this chart indicates, there are far too many inconsistencies and contradictions for anyone who reviews all of this post-trial testimony to feel confident in the verdict entered in this case. There can be little doubt that had the jury been aware of all these post-trial contradictory statements, changed testimony even though under oath, and the inexplicable lapses in memory from prior testimony, the outcome of this case would have been quite different in favor of the Defendant.
7. Additional Claims Arising Out of the House Committee on Government Reform Report (Def. Memo. at 38-40)
The government in its response to this section has managed to avoid any discussion of the substance of what has been presented to the Court in this corresponding section of the Defendant’s Memorandum. Finally, one can only assume that they have now adopted the facts and comments made therein. Finally, the comment and aside of the government noted herein that Stephen Flemmi has corroborated the testimony of anyone is simply a characterization that one cannot accept as being supported in any manner. He is incapable of corroborating even his own testimony in his appearances before one court to that of another, or even from his morning deposition testimony to his testimony on the same subject matter that same afternoon. Upon the reading of his depositions (Exhibits M and N), and as set forth in pp. 31-39 of Defendant’s Memorandum, no person could conclude other than that he is a pathetic emotionally depraved individual who simply cannot get his testimony straight despite the vigorous coaching. This is true whether he is discussing fictitious campaign contributions to Senator John F. Kerry by the Winter Hill Gang, paying off every FBI Agent he ever came in contact with, or the yanking out of teeth of dead bodies and the removal of their appendages to avoid identification by law enforcement. As was kindly commented upon by the understatement of AUSA James D. Herbert set forth in pertinent part in his affidavit dated May 13, 2003, submitted in Stephen M. Rakes, et al. v. United States of America, et al., Civil Action No. 02-10480-WGY:
“Flemmi is capable of abusing federal rules of procedure, and capable of obstructing justice, in a variety of way, including perjury and witness tampering, and is willing to do so. This is not a matter of speculation. …
Judge Wolf found that Flemmi had lied during his testimony in the 1998 evidentiary hearings in the Salemme case. Flemmi is currently charged in the RICO case pending before Judge Sterns with having perjured himself and obstructed justice during the Salemme hearing, and also with having tampered with evidence in the year 2000 bearing on the then ongoing RICO murder investigation and prosecution. Flemmi is also charged with murdering individuals ….”
SUMMARY AND CONCLUSION The Defendant’s motion for a new trial has been advanced in good faith and supported by the relevant case law and the facts. The motion clearly evidences, inter alia, that this Court and the jury were unwittingly misled due to the government’s own misconduct and Brady violations, the result of which the Defendant did not receive a fair trial. This motion challenges the credibility of each and every one of the government’s principal witnesses, presents evidence disclosing substantive and material Brady violations, and reveals material and relevant newly discovered evidence which, collectively:
• Reflects prejudicial prosecutorial misconduct and Brady violations, motivated solely by the desire to convict at any cost, and by any means;
• Newly discovered evidence which completely undermines the government’s prosecution of the case as submitted to this Court and the jury;
• Includes material that simultaneously impeaches the credibility of all of the principal government witnesses, and compellingly contradicts significant facts essential to support the verdict; and,
• Reveals that the verdict is not worthy of the confidence of this Court, and in all probability would not likely be replicated had all this additional evidence, as presented in this motion for a new trial, been available to the jury for their consideration.
Respectfully submitted,
JOHN J. CONNOLLY, JR.
By his attorneys,
/s/ Robert M. Goldstein ____________________________
Robert M. Goldstein, Esquire BBO # 630584 20 Park Plaza (Suite 903) Boston, MA 02116
/s/ Edward J. Lonergan ________________________ Edward J. Lonergan, Esquire BBO #303960 101 Merrimac Street (Suite 800) Boston, MA 02114-9601
/s/ E. Peter Mullane _________________________ E. Peter Mullane, Esquire BBO #360000 MULLANE, MICHEL & McINNES 132 Mount Auburn Street Cambridge, MA 02138-5736
DATED: November 4, 2005
CERTIFICATE OF SERVICE
I, Edward J. Lonergan, hereby certify that a true copy of the foregoing Motion to Dismiss or New Trial and Memorandum was duly served this 4th day of November, 2005, upon John H. Durham, Assistant U.S. Attorney, by first class mail, postage prepaid, addressed as follows:
John H. Durham, Asst. U.S. Attorney U.S. Attorney’s Office 157 Church Street (23rd Floor) New Haven, CT 06510
/s/ E. Peter Mullane ____________________
E. Peter Mullane
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