United States v. Flemmi, 233 F. Supp. 2d 75 (D. Mass. 2000)

233 F. Supp. 2d 75 (2000)

UNITED STATES of America
v.
Stephen FLEMMI

No. 94-10287 MLW.

United States District Court, D. Massachusetts.

February 24, 2000.

*76 Richard M. Egbert, Law Office of Richard Egbert, Kenneth J. Fishman, Fishman, Ankner & Horstman, LLP, Kimberly Homan, Boston, MA, for Defendant.

Fred M. Wyshak, Jr., Brian T. Kelly, United States Attorney's Office Boston, MA, James D. Herbert, U.S. Attorney's Office Boston, MA, John Durham, U.S. Attorneys Office, Boston, MA, Richard L. Hoffman, United States Attorney's Office, Boston, MA, for U.S.

 
MEMORANDUM AND ORDER

WOLF, District Judge.

On January 28, 2000 defendant Stephen Flemmi filed a Motion to Dismiss and/or for Sanctions for Violations of Federal Rule of Criminal Procedure 6(e) ("Rule 6(e)") and Rule 83.2A of the Local Rules of the United States District Court for the District of Massachusetts (the "Motion"). The Motion is based on a series of newspaper articles, dating back to July 1998, which allegedly reveal matters occurring before one or more grand juries which have continued to investigate Flemmi since his indictment in this case in 1995. The articles also describe other matters prejudicial to Flemmi which are reportedly being discovered in the ongoing investigation of him. For example, as detailed below, the articles report, among other things, that Kevin Weeks, an indicted associate of Flemmi's, led investigators to the graves of two men and a woman that Flemmi had participated in murdering; the woman had been seduced by Flemmi when she was a teenager and killed years later when she threatened to tell her mother, with whom Flemmi was living; and this matter was representative of Flemmi's penchant for young women, at least one other of whom may also have been murdered by him. See, e.g., Ex. 5 hereto.

On February 11, 2000 the government filed its opposition to the Motion. In that opposition, the government represented *77 that it "shares the defendant's concerns about the extent of the recent publicity" regarding its continuing investigation of Flemmi and others. Gov. Opp'n at 1.

With its opposition, the government submitted affidavits from United States Attorney Donald Stern and nine other prosecutors. On February 18, 2000, the government filed additional affidavits from the investigators working with prosecutors in connection with the grand jury investigation being led by Department of Justice Attorney John Durham.^[1] Each of the affiants asserts that he or she did not disclose, or authorize the disclosure of, information the media has reported is being provided by several individuals said to be cooperating with the government. Nor, the affiants represent, did any of them provide to the media the Federal Bureau of Investigation ("FBI") 302 reports of witness interviews referenced in published articles. At least one of those reports was produced in discovery in this case and is subject to a protective order, issued on June 26, 1997, that prohibits its disclosure to the media, among others (the "Protective Order"). See United States v. Salemme, 978 F. Supp. 386, 390 (D.Mass. 1997). The information contained in that report was also discussed in a sealed, November 14, 1997 Order and in several conferences that were closed to the public.

The government affiants do not assert that they did not furnish the media with any of the information about which Flemmi complains. Rather, their affidavits address only the issues of the disclosure of information attributed to certain purported sources and several specified documents. Moreover, the government has not filed affidavits from law enforcement personnel who have obligations, described below, in addition to those imposed by Rule 6(e), not to release information that creates a danger of prejudice to a defendant's right to a fair trial. In addition, the affidavits submitted describe no effort by the government to determine whether improper disclosures to the media have been made by government personnel.

A hearing on the Motion was held on February 15, 2000. At the hearing, the prosecutors confirmed that, despite its concern about the recent publicity, the Department of Justice initiated no investigation regarding the possible improper disclosure of information by government personnel prior to the filing of the Motion on January 28, 2000. Feb. 15, 2000 Tr. at 5, 67. Nor does it appear that the government has conducted any such investigation since the filing of the Motion. The court was informed on February 15, 2000, however, that the United States Attorney is now requesting that the Department of Justice Office of Professional Responsibility conduct at least a civil investigation. Id.

As counsel for Flemmi pointed out, the government's inaction to date in this matter differs from its conduct when it has suspected that defendants or their counsel had violated the Protective Order restricting the disclosure of documents and information produced by the government in discovery in this case. In 1997, the government quickly conducted an investigation of an apparent violation of the Protective Order. As a result, this court promptly commenced a trial to determine whether to hold counsel for Flemmi's codefendant, Francis Salemme, in criminal contempt. See United States v. Salemme (Sept. 15, 1999, Clerical Corrections Dec. *78 23, 1999) at 434 n.65. In addition, with the approval of the court, the government has conducted a grand jury investigation of whether Salemme and codefendant Robert DeLuca have violated the Protective Order. As Salemme and DeLuca have been informed, their guilty pleas in the instant case have not extinguished the possibility that the court will conduct proceedings to determine whether they should be found guilty of criminal contempt and sentenced for violating the Protective Order.

As set forth below, Flemmi has presented a prima facie case that the government has violated Rule 6(e), and other relevant rules, regulations, and orders relating to pretrial publicity. Thus, the government is being ordered to respond further to Flemmi's request for sanctions. See In re Sealed Case No. 98-3077, 151 F.3d 1059, 1067-68 (D.C.Cir.1998).

Flemmi is now a defendant in this case and two others pending in this District Court, United States v. Flemmi, Cr. No. 97-10060-REK, and United States v. Connolly, et al., Cr. No. 99-10428-JLT. The court understands that Flemmi is also the subject of at least one continuing grand jury inquiry and other investigation which may lead to another case against him and/or additional charges against Flemmi being alleged in a Superceding Indictment in a pending case. See Sept. 15, 1995 Tr. (Under Seal) at 34; "U.S. judge withdraws from case," The Boston Globe (Dec. 21, 1999) ("Prosecutors told [Judge] Harrington that it is possible that a superceding indictment will be handed down [in United States v. Kevin J. Weeks and Kevin F. O'Neill, Cr. No. 99-10371] adding more defendants and charges to the case against Weeks and O'Neill.")^[2] In view of Flemmi's hybrid status as both an indicted defendant and the subject of continuing investigation, it is at this point most appropriate to permit the government to make certain filings, at least initially, ex parte and under seal for the court's in camera consideration in order to maintain the confidentiality of any pending grand jury or other investigation of Flemmi. See In re Sealed Case No. 98-3077, 151 F.3d at 1073.

The Motion implicates several rules, regulations, and orders which are intended, in whole or in part, to protect a defendant's right to a fair trial, untainted by prejudicial information that is not presented in court. Those requirements serve vital interests. As Justice Oliver Wendell Holmes wrote, "[t]he theory of our system is that conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether private talk or public print." Patterson v. Colorado ex rel. Attorney General, 205 U.S. 454, 462, 27 S. Ct. 556, 51 L. Ed. 879 (1907). Thus, as Justice Felix Frankfurter noted:

 

[t]o have the [government] feed the press with evidence ... is to make the State itself ... a conscious participant in trial by newspaper, instead of by those methods which centuries of experience have shown to be indispensable to the fair administration of justice.

Stroble v. California, 343 U.S. 181, 201, 72 S. Ct. 599, 96 L. Ed. 872 (1952) (Frankfurter, J. dissenting).

Rule 6(e) (2) prohibits a government attorney, or any government employee assisting *79 that attorney, from disclosing "matters occurring before the grand jury." Rule 6(e) (3) (b) requires that a government attorney:

 

promptly provide the district court, before which was empaneled the grand jury whose material has been [disclosed to federal state or local personnel], with the names of the persons to whom such disclosure has been made, and shall certify that the attorney has advised such persons of their obligation of secrecy under this rule.

See also In re Sealed Case No. 98-3077, 151 F.3d at 1076 n. 18.

As the Court of Appeals for the District of Columbia wrote in addressing issues arising out of the Independent Counsel's investigation of President Clinton, the phrase "matters occurring before the grand jury":

 

encompasses "not only what has occurred and what is occurring, but also what is likely to occur," including "the identities of witnesses or jurors, the substance of testimony as well as actual transcripts, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like."

In re Sealed Case No. 99-3091, 192 F.3d 995, 1001 (D.C.Cir.1999) (quoting In re Motions of Dow Jones & Co., 142 F.3d 496, 500 (D.C.Cir.), cert. denied, 525 U.S. 828, 119 S. Ct. 60, 142 L. Ed. 2d 47 (1998)). Rule 6(e) has been interpreted as covering matters "likely to occur" to prevent government officials from subverting the Rule by discussing testimony about to be presented to the grand jury, or disclosing the strategy and direction of an investigation in a manner which refers to testimony that is clearly anticipated. Id. at 1002-03. See also In Re Grand Jury Investigation, 610 F.2d 202, 216-17 & n. 4 (5th Cir. 1980) ("Lance"); In re Grand Jury Subpoena, 103 F.3d 234, 238 (2d Cir.1996).

The United States District Court for the District of Massachusetts has promulgated Local Rule 83.2A, captioned "Release of Information by Attorneys," to supplement Fed.R.Crim.P. 6(e). Local Rule 83.2A prohibits an attorney from making any extrajudicial statement that he or she should expect will be publicly reported about, among other things, the "character or reputation of the accused," "[t]he performance of any examinations or tests," or his or her opinion of "the evidence in the case." Local Rule 83.2A represents part of this District Court's response to the Supreme Court's direction that:

 

The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for the defense, the accused, witnesses, court staff nor law enforcement officers coming under the jurisdiction of the court should be allowed to frustrate its function.

Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966). See also Levine v. United States Dist. Court for the Cent. Dist. of California, 764 F.2d 590, 596 (9th Cir.1985).

As the Supreme Court observed in Sheppard, improper disclosures by law enforcement officers, as well as by attorneys for the government, threaten the integrity of judicial proceedings. Sheppard, 384 U.S. at 363, 86 S. Ct. 1507. Therefore, a court may regulate the conduct of law enforcement officers involved in a case before it. Id. The degree to which Local Rule 82.2A applies to the conduct of law enforcement officers may be debatable. At the February 15, 2000 hearing the government acknowledged that the Local Rule applies at least to a law enforcement officer acting at the direction of a prosecutor. Feb. 15, 2000 Tr. at 77. In any event, the court has the power to issue an order *80 restricting the comments of agents as well as attorneys. See Local Rule 83.2B, "Special Orders for the Protection of the Accused or the Litigants in Widely Publicized or Sensational Criminal or Civil Cases";^[3]Levine, 764 F.2d at 596; In re Sealed Case No. 98-3077, 151 F.3d at 1068.

In addition, the Department of Justice has promulgated a regulation which expressly governs the release of information by all personnel of the Department of Justice. See 28 C.F.R. § 50.2.^[4] That regulation states, in part, that:

 

(6) The release of certain types of information generally tends to create dangers of prejudice without serving a significant law enforcement function. Therefore, personnel of the Department should refrain from making available the following:

 

(i) Observations about a defendant's character.

 

* * * * * *

 

(iii) Reference to investigative procedures such as ... laboratory tests ...

 

(iv) Statements concerning the identity, testimony, or credibility of prospective witnesses.

 

(v) Statements concerning evidence or argument in the case, whether or not it is anticipated that such evidence or argument will be used at trial.

 

* * * * * *

Id.

At the February 15, 2000 hearing, the government expressed the tentative view that 28 C.F.R. § 50.2 is not judicially enforceable. Feb. 15, 2000 Tr. at 4. This may not be correct. It has been held that provisions of an agency's internal manual have no legal force. See Schweiker v. Hansen, 450 U.S. 785, 789, 101 S. Ct. 1468, 67 L. Ed. 2d 685 (1981) (the Social Security Administration's "Claims Manual is not a regulation. It has no legal force, and it does not bind the [agency]"); United States v. Caceres, 440 U.S. 741, 744-54, 99 S. Ct. 1465, 59 L. Ed. 2d 733 (1979) (Internal Revenue Service Manual provisions concerning procedures to be followed to obtain agency approval to record conversations consensually are not mandated by the Constitution or federal law and, therefore, are not judicially enforceable); Kugel v. United States, 947 F.2d 1504, 1507-08 (D.C.Cir.1991) (Attorney General's Guidelines on Criminal Investigations are part of an intra-office manual and, unlike official regulations, have no legal force.). Twenty-eight C.F.R. § 50.2, however, is a promulgated and published official regulation, rather than a standard that is merely included in an internal manual. Thus, it may create rights which Flemmi, and others similarly situated, may enforce in court an issue that the government is being afforded an opportunity to brief.

Finally with regard to the relevant standards, the Protective Order provides that the documents produced in discovery in this case, and the information that they contain, may be disclosed only to the defendants, counsel for the government and *81 the defendants and those assisting them, and may be used only for the purpose of litigating this case. See Salemme, 978 F. Supp. at 389-90.^[5] These restrictions also apply to documents filed under seal and to closed proceedings concerning matters subject to the Protective Order. It was the apparent violation of the Protective Order that prompted the criminal contempt proceedings concerning Salemme's attorney described earlier.

The Court of Appeals for the District of Columbia recently discussed in detail the scope and nature of proceedings to enforce the confidentiality requirements of Rule 6(e) (2) when issues arise during the course of a grand jury investigation. In re Sealed Case No. 98-3077, 151 F.3d at 1067-77. Those standards and procedures also provide an appropriate framework for addressing the alleged violations in the instant matter of Local Rule 83.2A, the Protective Order, and 28 C.F.R. § 50.2.

In essence, if a defendant presents a prima facie case of a violation of Rule 6(e) (2), or another rule, regulation or order intended to prevent prejudicial pretrial publicity, the court must conduct a "show cause" hearing to determine whether the government has engaged in misconduct. Id. (citing Barry v. United States, 865 F.2d 1317, 1321 (D.C.Cir.1989)); Levine, 764 F.2d at 596 ("the Sheppard Court unequivocally imposed a duty on trial courts to take affirmative steps to insure the fairness of a criminal proceeding in the face of excessive publicity.").

The moving party's burden of establishing a prima facie case is relatively light. In re Sealed Case No. 98-3077 151 F.3d at 1068 n. 7. The determination is typically based solely on an assessment of news articles. Id. at 1067.

 

The articles submitted need only be susceptible to an interpretation that the information reported was furnished by an attorney or agent of the government; in fact, "[i]t is not necessary for an article to expressly implicate [the government] as the source of the disclosures if the nature of the information disclosed furnishes the connection."

Id. at 1068, n. 7 (quoting Barry, 865 F.2d at 1325); see also Lance, 610 F.2d at 218.

In the instant case, Flemmi has presented a prima facie case that government attorneys and/or agents have violated Rule 6(e), Local Rule 83.2A, 28 C.F.R. § 50.2, and the Protective Order. Although the Motion is based on numerous published articles, which together form the basis of this conclusion, ten articles entered as exhibits at the February 15, 2000 hearing and attached hereto are particularly pertinent. The government has acknowledged that each of them is susceptible to the interpretation that a government attorney and/or agent was at least one source of the information reported. Feb. 15, 2000 Tr. at 58, 62.

For example, on September 25, 1998, The Boston Herald reported that: "One source familiar with [the grand jury investigation] said at least a half-dozen subpoenas had already been issued to current and former FBI agents." Ex. 1. The issuance of a grand jury subpoena is a matter governed by Rule 6(e). That is why motions to quash such subpoenas are typically addressed in proceedings that are closed to the public. See In re Grand Jury Subpoena, *82 103 F.3d at 238; Advisory Committee Notes to the 1983 Amendment to Rule 6. The report that at least six grand jury subpoenas had been issued to current and former FBI agents is susceptible to the interpretation that the information came from a government source familiar with the full range of the grand jury's activities. This interpretation is reinforced by another portion of the article, which reports that, "[s]ources also said Durham is looking closely at controversial former Special Agent H. Paul Rico." Ex. 1.

The court recognizes that, as the government argues, defense counsel are at times able to monitor grand jury investigations by getting reports from cooperative witnesses, who are not restricted by Rule 6(e). See Feb. 15, 2000 Tr. at 50-1. Thus, the mere presentation of a prima facie case cannot properly end the inquiry. However, when, as here, an article is susceptible to the reasonable interpretation that the information reported was furnished by an attorney or agent of the government, the court must require the government to show cause why it should not be held responsible for the publicity concerning the grand jury's proceedings. In re Sealed Case No. 98-3077, 151 F.3d at 1067; Barry, 865 F.2d at 1321.

The foregoing analysis is equally applicable to the articles attached hereto as Exhibits 2, 4 and 8. On October 11, 1999, The Boston Globe reported that:

 

Retired FBI Agent Roderick Kennedy, who interviewed [John] McIntyre in the fall of 1984, was called before the grand jury during the summer and asked whether he had ever told Connolly that McIntyre was cooperating against [Bulger and Flemmi], according to sources. Kennedy insists that he never told Connolly that McIntyre had implicated Bulger and Flemmi in the gun-running case, but knows that Connolly was aware of it at the time, sources said.

Ex. 2. The references to multiple sources for the information reportedly provided to the grand jury suggests that at least one of them may have been a government agent or attorney.

On January 14, 1999, The Boston Globe reported that:

 

Reputed Mafia boss Francis "Cadillac Frank" Salemme testified against Connolly, Flemmi, and Bulger before a federal grand jury according to the sources.

Ex. 4. This statement was made in an article which reports that three, specified law enforcement agencies had, according to "sources," spent the previous evening digging for the remains of John McIntyre and Arthur "Bucky" Barrett, and describes a search of Flemmi's mother's home. Id. Once again, read in context, the quoted statement is susceptible to the reasonable interpretation that at least one of the sources of the report concerning Salemme's alleged grand jury testimony was a government attorney or agent.

In addition, on January 20, 2000, The Boston Herald reported that:

 

A federal grand jury is probing a series of real estate transactions by former FBI agent John J. Connolly as part of an ongoing investigation into corruption and criminal wrongdoing in the FBI's Boston office.

 

Sources confirmed yesterday that the grand jury being run in Worcester by Assistant U.S. Attorney John Durham subpoenaed Connolly's real estate records in April. The subpoena sought records from Connolly's purchase and sale of a house on Thomas Park in South Boston, as well as records involving a vacation home in Chatham sources said.

 

* * * * * *

 

Meanwhile, sources said federal investigators also subpoenaed Connolly's expense account records from his employer, *83 Boston Edison, where he has worked as a lobbyist since 1990.

Ex. 8. Once again, the range of information concerning the grand jury's investigation suggests that at least one of the sources may have been an individual covered by Rule 6(e).

The court recognizes that none of the articles describing the activities of the grand jury investigation expressly states that any or all of the sources were government attorneys or law enforcement agents. If they did, the authors would have unambiguously revealed that a violation of Rule 6(e) had occurred and, in the process, discouraged past and potential sources from providing additional information. However, other articles by the same reporters, some of which are discussed below, explicitly rely on law enforcement sources. As in Barry, "this record contains a `whole spectrum of news articles' and `[t]he precise attribution of a source in one ... may give definition to a vague source reference in others because of their context in time or content.'" Barry, 865 F.2d at 1326 (quoting Lance, 610 F.2d at 219). Read in the context of all of the other relevant articles, each of the foregoing exhibits is susceptible to the reasonable interpretation that the information reported concerning the grand jury's activities was provided, at least in part, by an attorney or agent of the government. Thus, it is necessary and appropriate to require that the government seek to negate the inference that Rule 6(e) has been violated.

In addition, several articles describe information reportedly being provided to the government by Kevin Weeks, an indicted, alleged associate of Flemmi's. Exs. 3, 5, 10. To the extent that the reports are accurate, common sense suggests that Weeks is likely to testify before a grand jury concerning the same matters. Thus, disclosure to the media, by a government attorney or agent, of information that Weeks is providing may constitute a violation of Rule 6(e). In re Sealed Case, 99-3091, 192 F.3d at 1001-03; Lance, 610 F.2d at 216-17; In re Grand Jury Subpoena, 103 F.3d at 238. Moreover, a prima facie showing has been made that certain statements in the articles referring to Weeks violate the prohibitions in Local Rule 83.2A and 28 C.F.R. § 50.2 against commenting on a defendant's character or reputation, or the evidence in the case.

Two articles particularly illustrate these points. Ex. 5, 10. On January 16, 2000, The Boston Globe published an article, headlined, "A sinister new chapter in mobsters' story." Ex. 5. The article reports that Weeks, "a trusted aide" to Flemmi and Bulger, led investigators to a Dorchester grave where two men and a woman allegedly killed by Bulger and Flemmi were buried. Id. According to the article, "sources said [Weeks] is cooperating with authorities." If true, this is a fact which would ordinarily be reliably known only by Weeks, his attorney, and the government attorneys and law enforcement agents working with them. Id. It is not a matter that Weeks or his attorney would want publicized.

The article goes on to report that:

 

[Weeks] has said the female victim is Deborah Hussey, who was 26 when she disappeared in the fall of 1984, and the daughter of the woman Flemmi lived with for many years. The allegation that Bulger and Flemmi or both may have been involved in the murder of a woman is no surprise to law enforcement authorities, who say the pair have a history of seducing, then mistreating, women.

 

Flemmi, law enforcement sources said, has long been a suspect in the disappearance of Hussey and his former girlfriend, Debra Davis, who was also 26 when she vanished on Sept. 17, 1981. *84 Bulger and Flemmi "had a thing for young girls," one of those sources said. "Both Stevie and Jimmy have a reputation with young women to the point that it was well known in South Boston that you had to lock up your younger sister when they were around."

 

Hussey had allegedly been having sexual relations with Flemmi since she was a teenager, and was threatening to expose the relationship to her mother, sources said. Flemmi shared his Milton home with Marion Hussey and helped her raise her two daughters and two sons from an earlier marriage.

 

"The consensus of opinion is that he was scared because she was so young when it started," said one law enforcement source.

 

Digging through the night in Thursday's bitter cold, officials from the State Police, federal Drug Enforcement Administration, Internal Revenue Service, Boston Police, and Suffolk County Medical Examiner's office unearthed the remains in a gully along the Southeast Expressway across from Florian Hall.

 

Officials said they could not positively identify the victims until DNA testing is complete. The process could take up to two months, officials said.

 

But sources said Weeks led them to the burial site and identified the dead as Hussey, Arthur "Bucky" Barrett, and John McIntyre.

 

Bulger and Flemmi have long been suspects in the murder of Barrett, one of six men charged in the $1.5 million Depositors Trust Bank heist in Medford in 1980, and McIntyre, suspected of cooperating against Bulger in an ill-fated plot to run guns to the Irish Republican Army. Barrett disappeared in 1983 and McIntyre vanished in 1984.

 

Weeks, who has been described as Bulger's "surrogate son," has reportedly turned on Bulger since his own indictment on federal racketeering charges in November.

 

Weeks' cooperation is likely to lead to more charges against Bulger and Flemmi, who currently face two racketeering indictments, one returned in January 1995 and the other handed up last month.

Id.

Similarly, on January 26, 2000, The Boston Globe reported that "sources familiar with the investigation" reported that Weeks had identified the cellar of the former home of Bulger associate Pat Nee as the place where McIntyre, and possibly others, had been killed. Ex. 10. In addition, it was reported that "sources said Weeks claims the [three dead bodies discovered in Dorchester] are Arthur `Bucky' Barrett, John McIntyre and Deborah Hussey." Id. The article also reported that:

 

Investigators said they believe [McIntyre] was killed because word was leaked Bulger was cooperating with authorities and had admitted his role in an ill-fated Bulger-sponsored operation to smuggle 7 tons of weapons to the Irish Republican Army aboard the Gloucester fishing trawler Vallhalla.

Id.

The nature of the foregoing articles, and the degree of detail concerning the investigation that they include, strongly suggests that agents and/or attorneys participating in the investigation furnished at least some of the information reported, in violation of Local Rule 83.2A, 28 C.F.R. § 50.2, and, possibly, Rule 6(e).

If derived, in whole or in part, from government sources, the revelations concerning McIntyre are anomalous as well as improper. As described in the September 15, 1999 Memorandum and Order, in violation of this court's Orders, the government failed to produce in time for key witnesses *85 to be questioned documents relating to the issues of whether Brian Halloran and/or McIntyre were killed because agents of the FBI told Bulger and Flemmi that they were cooperating with the FBI, and providing information concerning Bulger and Flemmi's criminal activity. Sept. 15, 1999 Memorandum and Order, Clerical Corrections Dec. 23, 1999, at 18 n.3, 173-75. To the extent that the articles are accurate, they indicate that the government is now investigating important issues raised by this court's decision. The court does not wish to discourage such investigation. The government, however, has a duty to conduct any such investigation in a manner that is consistent with all applicable rules, regulations, and orders.^[6]

Finally, for the purposes of illustrating the issues now presented, a January 21, 2000 Boston Globe article reflects an apparent violation of the Protective Order, which may be attributable to the government. Ex. 9. It describes an FBI report that was produced in discovery. Feb. 15, 2000 Tr. at 87; May 22, 1998 Tr. (Under Seal) at 136. The information in that report was also referenced in a sealed order, and discussed several times in conferences that were closed to the public in order to maintain the confidentiality of sealed documents and information. Nov. 14, 1997 Order (under seal), ¶¶ 8 and 26; May 19, 1998 Tr. (under seal) at 179-80, 183-84; May 20, 1998 Tr. (under seal) at 145-48.

The article states, in part that:

 

an internal [FBI] document shows that former agent John Connolly, Bulger's handler, allegedly tried to steer police away from [Kevin] O'Neill, a key witness to the [Tim] Baldwin murder.

 

* * * * * *

 

In February 1992, Thomas Hughes, then head of the Boston FBI office, notified the investigatory agent John Gamel, about his concern that the inquiry into possible misconduct by Connolly was aimed at an agent who had retired. Connolly had left the bureau in 1990. Hughes also noted that "that statute of limitations may have run."

 

The matter was revived in 1997 and 1998 when investigators looking at possible FBI corruption again interviewed Bradley about his alleged meeting with Connolly. The encounter was originally scheduled to be revealed during hearings U.S. District Judge Mark L. Wolf held throughout much of 1998, but Bradley was one of a number of witnesses who were dropped after the judge urged both sides to trim the witness list.

Ex. 9.

The foregoing information refers to a document subject to the Protective Order *86 and accurately describes the essence of closed judicial proceedings. Some of the information reported could have been received from defendants and/or their counsel. However, the description of the conversation between FBI agents Hughes and Gamel, including a direct quotation from Hughes, indicates that at least one of the sources may be employed by the government. In the circumstances, a prima facie showing has been made of a violation of the Protective Order by the government.

If further inquiry demonstrates that Rule 6(e), Local Rule 83.2A, 28 C.F.R. § 50.2, and/or the Protective Order have been violated, there are a range of sanctions and remedies that may be imposed. These could include: (1) imprisonment for criminal contempt, see Fed.R.Crim.P. 6(e) (2) and Blalock v. United States, 844 F.2d 1546, 1558 (11th Cir.1988) (Tjoflat, J. concurring); (2) a prospective, permanent injunction against comments to the media by all government personnel, see Local Rule 83.2B, In re Sealed Case No. 98-3077, 151 F.3d at 1068, Barry, 865 F.2d at 1321-22, Levine, 764 F.2d at 599; or (3) dismissal of the case, see United States v. Williams, 504 U.S. 36, 46 & n. 6, 112 S. Ct. 1735, 118 L. Ed. 2d 352 (1992) ("the supervisory power can be used to dismiss an indictment because of misconduct before the grand jury, at least where that misconduct amounts to a violation of one of those `few, clear rules which were carefully drafted and approved by the Court and Congress to ensure the integrity of the grand jury' functions," such as Rule 6(e) (internal citation omitted)).

It is premature, at best, however, to focus on the appropriate remedy for possible government misconduct in the instant case. It is now uncertain whether government misconduct has occurred or, if it did occur, can be demonstrated. However, as described earlier, because a prima facie showing of such misconduct has been made, the government must further address the questions presented. In re Sealed Case No. 98-3077, 151 F.3d at 1067-68. The court is ordering the government to respond ex parte, at least initially, to that prima facie showing in order to minimize the risk that any continuing investigation will be injured unnecessarily.^[7]Id. at 1073-77. If the court finds that a violation of an enforceable standard has been established, Flemmi will be permitted to participate in the proceedings to determine the appropriate sanction or remedy. Id. at 1076.

In view of the foregoing, it is hereby ORDERED that, by March 17, 2000, the government shall file, ex parte and under *87 seal, for the court's in camera consideration:

1. An affidavit of the United States Attorney:

(a) identifying each grand jury that has since September 15, 1999, conducted an investigation in which Flemmi was a subject or target;

(b) identifying each attorney for the government with knowledge of "any matter occurring before" each such grand jury, as that phrase has been defined in this Memorandum;

(c) identifying each federal, state or local agent, officer, or employee to whom any matter occurring before each such grand jury has been disclosed;

(d) attaching each submission to the district court made pursuant to Federal Rule of Criminal Procedure 6(e) (3) (B) concerning each such grand jury;

(e) identifying each attorney, and federal, state, or local officer, agent, or employee who has since September 15, 1999, participated in, or been provided information from, any investigation relating to Flemmi, including but not limited to any search for buried bodies in Dorchester, Massachusetts, any search of Flemmi's mother's home, and any proffer from, or discussion with, any of the cooperating individuals whose names were redacted from the affidavits the government filed publicly in opposition to the Motion;

(f) identifying the state or local personnel who have been cross-designated as federal agents in any investigation relating to Flemmi;

(g) identifying each government attorney, agent, officer, and employee who was informed of the FBI 302 referenced in Exhibit 9 hereto, the November 14, 1997 sealed Order, and/or the closed proceedings relating to the matter discussed in the FBI 302;

h) describing the date(s) and substance of the instructions, if any, that were given to any or all of the government attorneys, agents, officers or employees participating in, or receiving information from, any investigation relating to Flemmi regarding the requirements of Rule 6(e), Local Rule 83.2A, 28 C.F.R. § 50.2, the Protective Order, and/or statements to members of the media or other individuals not participating in any investigation of Flemmi;

(i) describing (with the commencement date) any investigation that was conducted by the government; (i) prior to January 28, 2000; (ii) prior to February 15, 2000; or (iii) since February 15, 2000, to determine whether any government attorney, agent, officer, or employee was a source for any of the publicity which generated the Motion, including but not limited to Exhibits 1-10 hereto;

(j) describing the results of any such investigation; and

(k) describing the scope of any such continuing investigation.

2. An affidavit from each individual identified in response to ¶ 1 hereinabove, representing that he or she has read this Memorandum and Order, including Exhibits 1-10 hereto, and stating:

(a) his or her name and employment;

(b) if employed by a state or local agency, whether he or she has been cross-designated as a federal employee for the purpose of any investigation relating to Flemmi;

(c) whether he or she received any instruction concerning Rule 6(e), Local Rule 83.2A, 28 C.F.R. § 50.2, the Protective Order, and/or statements to members of the media or other individuals not participating in any investigation of Flemmi. If so, the date(s) and substance of such instruction shall be described;

(d) whether he or she was informed of any matter occurring before any grand *88 jury investigating Flemmi, among others, including but not limited to the grand juries which indicted the cases of United States v. Connolly, et al., Cr. No. 99-10428-JLT and United States v. Kevin Weeks, et al., Cr. No. 99-10371-RGS. If so, he or she shall state the source(s) of all such information;

(e) whether he or she discussed any matter occurring before any grand jury investigating Flemmi with anyone other than government attorneys, agents, officers or employees who had previously been identified as having been authorized to have access to such information in submissions to the court made pursuant to Rule 6(e) (3) (B). If so, he or she shall identify such individual(s), and describe the substance of the communication(s);

(f) whether he or she: (i) understood that a grand jury had issued subpoenas to current and former FBI agents; (ii) understood that former FBI agents H. Paul Rico, James Ring, and/or Nicholas Gianturco were subjects of a grand jury investigation; (iii) understood that a grand jury was investigating whether any FBI agent(s) had played any role in the possible murders of informants, including but not limited to John McIntyre; (iv) understood that former FBI agent Roderick Kennedy had testified before a grand jury; (v) understood that Francis Salemme had testified before a grand jury; (vi) participated in a search for buried bodies in Dorchester, Massachusetts, or received any information concerning such a search, including but not limited to the identities of the bodies being searched for or found; (vii) received any information that McIntyre or anyone else was killed in Pat Nee's former home or participated in a search of that property; (viii) participated in a search of Flemmi's mother's home; (ix) possessed or read any FBI report relating to the investigation of the murder of Brian Halloran or any communication between John Connolly and Boston Police Detective Brendan Bradley; or (x) received any information understood to have been provided to the government by John Martorano, Francis Salemme, or Kevin Weeks;

(g) whether he or she has since September 15, 1999 communicated with any member of the media, including any reporter from The Boston Globe or The Boston Herald, including but not limited to Ralph Ranalli, Shelley Murphy, Andrea Estes, Jonathan Wells, Jack Meyers, Dick Lehr, or John Ellement. If so, he or she shall describe: (i) the date of each such communication; (ii) what was said in each communication, including whether any matter reported in Exhibits 1-10 hereto was discussed; (iii) whether she or he provided any member of the media with any document(s); (iv) a description of any such document(s); and (v) whether any of the foregoing communications or disclosures were authorized by, or known to, any other government employee; and, if so, (vi) by whom;

(h) whether he or she has any information concerning any possible source of any of the information reported in Exhibits 1-10 hereto and, if so, describing that information.

3. An affidavit of the Special Agent in Charge of the Boston Office of the FBI describing (with commencement date(s)) any investigation that has been conducted to determine the source(s) for Exhibits 6, 7 and 10 hereto, the results of any such investigation, and the scope of any continuing investigation.

4. A memorandum addressing: (a) whether Rule 6(e), Local Rule 83.2A, 28 C.F.R. § 50.2, and/or the Protective Order have been violated; (b) whether additional investigation should be conducted to determine whether any such violation has occurred, and, if so, how that investigation should be conducted; and (c) whether the *89 court should issue an order expressly governing the extrajudicial statements which may be made by government agents, officers, and employees in addition to attorneys.

In addition, the government shall, by March 17, 2000, file for the public record a memorandum addressing: (a) the extent, if any, to which Local Rule 83.2A applies to government agents, officers, and employees in addition to attorneys; and (b) whether 28 C.F.R. § 50.2 is judicially enforceable.

 

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NOTES

[1] As discussed below, it appears that Flemmi may also be the subject of ongoing investigation by the grand jury which indicted Kevin Weeks and Kevin O'Neill. If there is such an investigation, affidavits have not been submitted by the attorneys and investigators with knowledge of the matters occurring before the grand jury.

[2] The indictment of Weeks and O'Neill is replete with references to alleged criminal conduct by Flemmi. See Indictment, Cr. No. 99-10371. Moreover, the Redacted Affidavit of Thomas B. Duffy in Support of Pretrial Detention of Defendants Kevin J. Weeks and Kevin P. O'Neill was evidently drafted, in part, in anticipation of Flemmi's indictment in that case. For example, in paragraph 24 Duffy states: "In my professional opinion, if Flemmi were freed from custody, violence likely would result between Bulger, Flemmi and their associates and persons allied or associated with the LCN."

[3] Local Rule 83.2B provides that:

In a widely publicized or sensational criminal or civil case, the court, on motion of either party or on its own motion, may issue a special order governing such matters as extrajudicial statements by parties and witnesses likely to interfere with the rights of the accused or the litigants to a fair trial by an impartial jury, the seating and conduct in the courtroom of spectators and news media representatives, the management and sequestration of jurors and witnesses, and any other matters which the court may deem appropriate for inclusion in such an order.

[4] The court has been informed that the continuing investigation of Flemmi involves federal personnel, and state and local law enforcement agents, some of whom have been cross-designated as federal agents. Feb. 15, 2000 Tr. at 8-9.

[5] On December 29, 1997, the court modified the Protective Order to permit documents subject to it to be shown to prospective witnesses and their counsel who agreed to be bound by the Protective Order. See United States v. Salemme, 1997 WL 810057 *4-5 (D.Mass. Dec. 29, 1997). The government has represented that no prospective witness was given a copy of any FBI report covered by the Protective Order. Feb. 15, 2000 Tr. at 89-90.

[6] Similarly, the government strenuously, and unsuccessfully, opposed disclosure to defendants and the court of certain relevant FBI reports containing information received from informants and cooperating witnesses, including Halloran, arguing among other things, the importance of maintaining the confidentiality of those documents. Some documents relating to Halloran's charges against Bulger and Flemmi were given for review to Boston Special Agent in Charge Barry Mawn and his Assistant, Mike Wolf, because they were deemed to be "singular and sensitive." Sept. 15, 1999 Memorandum and Order at 173-74. Those documents were not produced in discovery at the time required by this court's Orders. Id. As a result, relevant witnesses could not be questioned concerning them. Id.

On January 26, 2000, The Boston Herald reported on, and reproduced, an FBI report of an interview that allegedly relates to whether FBI agent John Connolly served as a "lookout" in connection with the Halloran murder. According to the prosecutors, however, the government has yet to conduct any investigation concerning the disclosure of that confidential document to the media. Ex. 6; Feb. 15, 2000 Tr. at 15, 67, 81.

[7] In view of the prima facie showing of violations of Rule 6(e), Local Rule 83.2A, 28 C.F.R. § 50.2, and the Protective Order, it would be permissible for the court to issue now an order enjoining all government attorneys, agents, and employees from making statements likely to generate publicity concerning the continuing investigation(s) of Flemmi. United States v. Eisenberg, 711 F.2d 959, 964 (11th Cir.1983); In re Sealed Case No. 98-3077, 151 F.3d at 1074. Indeed, in Eisenberg, 711 F.2d at 964, the Court of Appeals for the Eleventh Circuit stated that when a prima facie showing of a Rule 6(e) violation is made, such an order is required.

This court, however, believes that it retains discretion with regard to the issuance of an injunction. As Flemmi's counsel noted at the February 15, 2000 hearing, the barrage of publicity prejudicial to Flemmi has abated since the filing of the Motion on January 28, 2000. Feb. 15, 2000 Tr. at 12-13. In view of this fact, and the fact that the court is ordering that the government promptly file affidavits seeking to negate the inference that it is responsible for some or all of the publicity at issue, the court is not now issuing an order placing further restrictions on statements by government officials to the media. However, any recurrence of the problems which prompted the Motion may result in the issuance of such an injunction prior to the completion of the process being initiated by today's Order.