I. SUMMARY

This is the latest – and hopefully the last – in a series of related cases that have demonstrated extraordinary misconduct by the Department of Justice in its investigation and prosecution of members of the Patriarca Family of La Cosa Nostra (the "LCN"). See, e.g., United States v. Salemme, 91 F. Supp.2d 141 (D. Mass. 1999); United States v. Flemmi, 195 F. Supp. 2d 243 (D. Mass. 2001); United States v. Connolly, 341 F.3d 16 (1st Cir. 2003). In this case, petitioner Vincent Ferrara has proven that he was denied Due Process when the government, led by Assistant United States Attorney Jeffrey Auerhahn, violated its clearly established constitutional duty to disclose to him, before trial, important exculpatory information that directly negated his guilt on charges that he had directed his codefendant Pasquale Barone to murder Vincent James Limoli.

More specifically, the government did not disclose that Walter Jordan, the only source of direct evidence on those charges, had told the government at least twice that Barone told him that Ferrara had not ordered the Limoli murder, and that Barone and Jordan had to flee Boston because Ferrara was going to kill them for murdering Limoli without his permission. Jordan provided this information to Auerhahn's colleague, Boston Police Detective Martin Coleman, and then repeated it for Coleman and Auerhahn. Jordan's statements were memorialized in a contemporaneous memorandum, handwritten by Coleman, which was given to Auerhahn but not produced to Ferrara and his codefendants in connection with their trials and sentencings in 1992, 1993, 1994 and 1995. Rather, the memorandum, and the information it contained, were disclosed for the first time during the evidentiary hearings concerning Ferrara and Barone's petitions for habeas corpus that were conducted in September 2003.

In the context of this case, the information that the government improperly withheld was highly material. The government was very interested in proving that Limoli was killed as part of Ferrara's racketeering activity on behalf of the Patriarca Family. Ferrara was about 40 years old when he was indicted in 1989. If he was convicted of the Limoli murder charges, or held responsible for them as relevant conduct at sentencing, the Guideline range for his sentence would be raised from possibly as little as 151 months to life in prison. In addition, if the Limoli murder could be proved to be an LCN "hit," it had the potential to raise the sentence for the Boss of the Family, Ferrara's codefendant Raymond J. Patriarca, from about seven years to life in prison.

In its Trial Brief, the government informed Ferrara, Patriarca, Barone, and their codefendants that Jordan would testify that Ferrara had directed Barone to murder Limoli. Jordan testified to that effect at Barone's trial. Based almost exclusively on Jordan's testimony, in October 1993, Barone was convicted of conspiring with Ferrara to kill Limoli. Barone was sentenced to life in prison for that crime.

In January 1992, after the commencement of their trial, Ferrara and his codefendants, except for Patriarca and Barone, entered into linked, binding plea agreements. The plea agreements provided important benefits to the government, including eliminating the need for a lengthy trial, assuring the defendants' convictions, providing long sentences for them, and preserving the confidentiality of fearful witnesses. See United States v. Carrozza, 807 F. Supp. 156, 161 (D. Mass. 1992). In return, the defendants were to be given what were deemed to be significant downward departures. For example, Joseph Russo, the Consigliere of the Patriarca Family who accepted responsibility for murdering Joseph Barboza, was provided a downward departure from life to sixteen years in prison.

Ferrara pled guilty to the Limoli murder charges, among others. These charges raised the Guideline range for his sentence to life in prison. His plea agreement provided for a substantial downward departure to a twenty-two year sentence. However, shortly after pleading guilty, Ferrara informed the Probation Department that he had not been involved in the Limoli murder, but pled guilty to those charges because he was in an "untenable" position. The court now understands that Ferrara's position was "untenable" because he felt compelled to plead guilty to the Limoli murder charges or face a real risk of what he adamantly asserts would have been a wrongful conviction resulting in a life sentence. The court did not address this issue at Ferrara's sentencing. In accepting the linked, binding plea agreements, the court sentenced Ferrara to serve twenty-two years in prison after finding that sentence was a well-justified and reasonable downward departure.

The discovery in 2003 that the government had withheld Jordan's repeated statements that Barone had asserted that Ferrara had not ordered the Limoli murder, and the related ruling that Barone had therefore been denied Due Process, led to Barone's prompt release from prison, pursuant to an agreement with the government. The government has argued, however, that Ferrara's guilty plea deprives him of any right to relief for the same serious misconduct the court has found in his case. This contention is incorrect.

A guilty plea generally extinguishes a defendant's right to collaterally attack independent claims of constitutional violations that do not relate to actual guilt. See e.g., Tollett v. Henderson, 411 U.S. 258, 266 (1973). A guilty plea does not deprive a defendant of his right to relief where, as here, he demonstrates that misrepresentation or other impermissible conduct by the government deprived him of his ability to decide intelligently whether to plead guilty. See Brady v. United States, 397 U.S. 742, 757 (1970).

As many Circuits have recognized, in Brady v. United States, 397 U.S. at 757-58, the Supreme Court authorized collateral relief for cases in which there is proven government misconduct that creates a reasonable probability that an innocent individual, advised by competent counsel, has falsely pled guilty to avert the risk of a wrongful conviction and a much longer sentence. This is such a case.

The government's failure to disclose Jordan's statements that Ferrara had not ordered the Limoli murder utterly undermines the court's confidence in the outcome of Ferrara's case. The court now seriously doubts that Ferrara ordered Barone to kill Limoli. In any event, if the required disclosures concerning Jordan's statements had been made, there is a reasonable probability that Ferrara would not have pled guilty to the Limoli murder charges, would not have been convicted of them or of any other racketeering act involving murder, and would not have been held responsible for any murders at sentencing.¹ In view of the compelling reasons for the linked,

____________________

¹¹ As RICO racketeering acts, but not as separate substantivecrimes, Ferrara was also accused of participating in the 1977murder of Giacomo DiFronzo and the 1979 murder of AnthonyCorlito. Ferrara did not plead guilty to committing either ofthese crimes. The government's evidence concerning them wassparse and weak. Its case against Ferrara on these murder chargesdepended heavily on Jordan's credibility. If it had beendisclosed that Jordan had claimed to have committed perjury intestifying to the grand jury that Barone had said Ferrara orderedthe Limoli murder, Jordan's already limited credibility wouldhave been destroyed. Therefore, there is a reasonable probabilitythat Ferrara would not have been convicted of the racketeeringacts relating to the DiFronzo and Corlito murders or held

binding plea agreements providing for downward departures for Ferrara and his codefendants, there is also a reasonable probability that the government and Ferrara would have resolved his case by agreeing to a sentence of much less than twenty-two years if the required disclosures concerning Jordan had been made. Therefore, Ferrara is entitled to appropriate, equitable relief.

This conclusion is not altered by the fact that collateral relief cannot be granted in a case announcing a new constitutional rule. See Teague v. Lane, 489 U.S. 288, 299-300 (1989). Ferrara's right to relief is based on rules rooted in Brady v. Maryland, 373

U.S. 83 (1963), and Brady v. United States, supra, which were long and clearly established in 1992, when Ferrara's conviction became final.

As the parties agree, a retrial is not now feasible. Rather, Ferrara must be resentenced. As the parties also agree, the resentencing is governed by the law that now exists after United States v. Booker, 125 S.Ct. 738 (2005), which rendered the Guidelines advisory. The court finds that the evidence is insufficient to hold Ferrara responsible for the Limoli murder, or any other murder, in calculating the advisory Guideline range for his sentence.

responsible for them at sentencing. Accordingly, those crimescannot be relied upon to calculate the advisory Guideline rangefor Ferrara's sentence and, more specifically, to raise it tolife in prison.

Ferrara contends that, absent the murder charges, the Guideline range for his sentence is 151-188 months. The government argues that, without the murders, the Guidelines suggest a sentence of 210-262 months. In view of the reasons for the substantial downward departures agreed to and granted in 1992 for Ferrara and the defendants on trial with him, it seems clear that, at most, a sentence at the low-end of the range as calculated by the government would now be appropriate.

Ferrara has earned all available "good time" credits, which entitle him to a 15% reduction in his sentence. If he had been sentenced to 188 months in prison, he would have been released in July 2003. If he had been sentenced to 210 months in prison, he would have been released in February 2005. In either case, Ferrara has evidently now served extra time in prison because of the government's unconstitutional conduct. Therefore, Ferrara will be resentenced promptly.

II. FACTS The following facts have been proven, pursuant to the Federal Rules of Evidence, by a preponderance of the evidence.

On March 22, 1990, Ferrara was indicted on racketeering and related charges with six other alleged members and an alleged associate of the Patriarca Family of La Cosa Nostra. More specifically, Ferrara, Raymond J. Patriarca, Joseph Russo, Robert Carrozza, Dennis Lepore, Carmen Tortora, Pasquale Barone, and Angelo Mercurio, who was, significantly, a fugitive, were charged with violating the RICO statute, 18 U.S.C. §1961 et seq., by conspiring to participate in the affairs of a racketeering enterprise, and doing so, through a pattern of racketeering acts that included murder, extortion, and other crimes, some of which were also charged as separate substantive offenses.

Ferrara was charged in thirty-five counts. The RICO violations were alleged in Counts 1 and 2. Racketeering Act A-3 alleged that in 1985, "Vincent M. Ferrara and Pasquale Barone did wilfully and unlawfully conspire together with each other and with others known and unknown to the Grand Jury to assault and beat Vincent James Limoli, Jr. a/k/a "Jimmy," with intent to murder him . . . ." Count 3 charged Ferrara with conspiring with Barone to murder Limoli for the purpose of maintaining and increasing their positions in the Patriarca Family. Count 4 charged Ferrara with aiding and abetting the murder of Limoli in order to maintain and increase his position in the Patriarca Family.

Proving the Limoli murder charges was very important to the government. If Ferrara, who was about forty years old when he was indicted, was not held responsible for a murder, the Guideline range for his sentence might have been as little as 151 to 188 months.² However, if convicted of the charges relating to the Limoli murder, or another murder, the Guideline range for Ferrara's sentence would be raised to life in prison.

In addition, the government wanted to obtain a lengthy sentence for Patriarca, the Boss of the Family. The Guidelines prescribed a sentence of about seven years for his own charged criminal activity. See United States v. Patriarca, 807 F. Supp. 165, 178 (D. Mass. 1992), rev. sub nom. United States v. Carrozza, 4 F.3d 70, 72-84 (1st Cir. 1993), cert. denied, United States v. Patriarca, 511 U.S. 1069 (1994); United States v. Patriarca, 912 F.2d 596, 599-600 (D. Mass. 1995). However, if the Limoli murder could be proved at sentencing to be a racketeering act committed on behalf of the Family, in furtherance of Patriarca's jointly undertaken activity and reasonably foreseeable to him, the government believed that the Guidelines would require that he receive either a thirty-year sentence or a sixty-five year

²The issues relating to the calculation of the possibleGuideline ranges for Ferrara's sentence are discussed in §III.Dinfra.

sentence. See Patriarca, 807 F. Supp. at 178; Patriarca, 912 F. Supp. at 602.

Ferrara was also charged with Racketeering Acts involving the murder of Giacomo DiFronzo in 1977 (R.A. A-1), and the murder of Anthony Corlito in 1979 (R.A. A-2). Ferrara was not charged in a separate count with substantive crimes concerning those murders. As described infra, the government's evidence concerning Ferrara's involvement in them was sparse and weak. Moreover, the government did not contend that the DiFronzo or Corlito murders were relevant conduct for which Patriarca should be held responsible. See Patriarca, 807 F. Supp. at 185-86; Patriarca, 912 F. Supp. at 600. Therefore, proving that Ferrara conspired with Barone to murder Limoli on behalf of the Patriarca Family was especially important to the government's goal of incapacitating Ferrara and Patriarca for life.³

The Limoli murder, however, was not central to the extensive pretrial litigation in Ferrara's case. While many issues were presented, the most consuming related to the defendants' motion to suppress the electronic surveillance evidence of an LCN induction

³³In addition, the government attempted in another case touse the Limoli homicide to obtain the pretrial detention ofAnthony "Spucky" Spagnolo, who was also a member of the PatriarcaFamily. This effort was unsuccessful because, the evidenceshowed, the government was wrong in asserting that Spagnoloparticipated in killing Limoli. See United States v. DiGiacomo,746 F. Supp. 1176, 1189 (D. Mass. 1990); Patriarca, 912 F. Supp.at 623.

ceremony conducted on October 29, 1987, at 34 Guild Street, Medford, Massachusetts. The defendants claimed that the "roving" intercept provision of the statute ("Title III") authorizing the electronic surveillance, 18 U.S.C. §2518(11)(a), was unconstitutional and, in any event, that the intercepted evidence should have been suppressed because the government deliberately presented materially misleading information to the judge who issued the warrant for the electronic surveillance. See United States v. Ferrara, 771 F. Supp. 1266, 1271 (D. Mass. 1991).

To obtain an order authorizing roving electronic surveillance, which could be used at various locations at which named targets were conversing, the government was required to make a "full and complete statement" to the judge that demonstrated that it was not practical to specify the place or places to be bugged. See 18

U.S.C. §2518(11)(a)(ii); Ferrara, 771 F. Supp. at 1307. This court held the roving intercept provisions were constitutional. See Ferrara, 771 F. Supp. at 1272, 1282-96.

The roving warrant that was obtained did not specify a particular place to be bugged because the government had represented that it was not practical to describe in advance the place at which Ferrara and other targets would be intercepted. Therefore, it was important for the motion to suppress that the defendants and the court know when the government had identified 34 Guild Street as the likely location of the LCN induction ceremony and, particularly, whether that location had been identified before the order authorizing the roving electronic surveillance had been issued on October 27, 1989. Id. at 1307.

The government did not initially inform the defendants and the court that it had identified the likely location of the ceremony, and therefore the place it intended to surveil electronically, before the roving order was issued. Id. at 1271, 1308. In a memorandum signed by the lead prosecutor, Jeffrey Auerhahn, on behalf of Assistant United States Attorneys Gregg Sullivan, James Herbert, and himself, the government argued that it was not required to apply for a standard, rather than roving, "Title III order if, after issuance of a roving order, but before its implementation, the government learns, less than twenty-four hours in advance of the meeting, the intended probable location." Id. at 1308 n. 16; Gov. Response to Defendants Patriarca's and Ferrara's Motions to Suppress All Evidence Derived from Oral Intercept Order in M.B.D. 89-1015 and to Dismiss Indictment (Docket No. 404). Only after inquiry by the court did the government reveal that it had actually learned that the induction ceremony would be held at 34 Guild Street two days in advance, on October 27, 1989, before the roving order had been issued in reliance upon the representation that it would be impractical to identify the place to be electronically surveilled. Id.. at 1271, 1277-79, 1308.

Thus, the court wrote: The government not only failed to inform Judge Nelson [who issued the order authorizing the roving electronicsurveillance] of the information it had received regarding 34 Guild Street prior to his issuance of the Warrant, it also did not initially inform the defendantsor this court that it had such information. The government's initial memorandum opposing the motion tosuppress addressed the issue whether the court shouldhave been furnished with information concerning 34 GuildStreet acquired after the warrant issued, but did notdisclose all of the relevant facts in this case. Althoughthe government corrected and completed the record wheninvited by the court to file affidavits concerning whenit first learned of 34 Guild Street as the possiblelocation for the ceremony, the government's initial lackof candor was--and remains--disturbing to this court.

Id. at 1308 (emphasis in original) (citation omitted).

As discussed infra, as a result of lengthy hearings conducted

in 1998, in Salemme, this court discovered that the government had

not in 1991 completed or fully corrected the record in Ferrara's

case. See Salemme, 91 F. Supp. 2d at, 269-89. Rather, as this

court wrote in 1999:

At all times prior to October 29, 1989, the FBI,personified by [Supervisory Special Agent James] Ring,knew that there would be at least one informant,Mercurio, at the ceremony. The FBI sought a warrant fora "roving" bug that could be used at multiple,unidentified locations, rather than authorization toconduct electronic surveillance at 34 Guild Street alone,in order to protect the identity of its sources. The FBIhad no intention of using that warrant to interceptconversations more than once [as it had represented inits application]. Rather, at the time the application wasdrafted, the FBI intended to arrest the participantsimmediately after the ceremony. The FBI had substantial,corroborated "rock solid" information that the ceremonywould be held at 34 Guild Street several hours before [the applicants] met with the judge to obtain the warrantauthorizing roving surveillance based upon the representation that it was then "impractical" to identify

the location to be bugged. Id. at 270 (footnote omitted).

In addition, after the ceremony, the FBI alerted Mercurio to his forthcoming indictment so that he could flee, and did not attempt to apprehend him. Id. at 263-93. Permitting him to flee unlawfully rewarded Mercurio for his assistance to the government, and reduced the risk that it would be discovered that the government had improperly withheld information from the judge who issued the order authorizing the roving electronic surveillance. Id.

However, based on the incomplete information presented in Ferrara's case, the court did not suppress the electronic surveillance of the LCN induction ceremony. Rather, the court erroneously found that the government did not deliberately mislead the judge who issued the roving order. Ferrara, 771 F. Supp. at 1274, 1306-11. Moreover, the court concluded that an order authorizing interceptions at 34 Guild Street would have been issued if the judge had been fully informed. Id.

In 1991, Barone, who was an alleged "associate" of the Patriarca Family, was serving a state sentence for participating in the Limoli murder. Barone fled following that crime. This court ordered the suppression of certain statements made after Barone was apprehended. See United States v. Barone, 968 F.2d 1378, 1379 (1st Cir. 1992). The government appealed that decision, which was affirmed in 1992. Id. However, the court severed the charges against Barone, and initially scheduled the trial of Ferrara and his other codefendants to begin in September 1991.

Walter Jordan, Barone's brother-in-law, was the crucial witness for the government with regard to the Limoli murder charges against Barone, Ferrara and, by implication, Patriarca. With regard to Racketeering Act A-3, the government was required to prove that Ferrara conspired with Barone to murder Limoli. With regard to Counts 3 and 4, the government was required to prove that the purpose of that conspiracy was to maintain or increase Ferrara and Barone's positions in the Patriarca Family. Jordan was the only witness who presented direct evidence that Ferrara conspired with Barone to murder Limoli.

Like Barone, Jordan had fled following the Limoli murder. When captured, Jordan agreed to cooperate with the government in exchange for immunity and protection. On July 27, 1988, Jordan testified to the grand jury that Limoli had been working under Ferrara in the LCN and had "gotten the 'X'" because he had stolen drugs and cash that belonged to another member of the LCN. See July 27, 1988 Transcript of Grand Jury Testimony of Walter Jordan, attached as Exhibit A to Petitioner's First Amended Motion Pursuant to 28 U.S.C. §2255 to Vacate and Set Aside Sentence, at 11-12. Jordan also told the grand jury that Ferrara had "ordered, or told [Barone] that he had to clip [Limoli]." Id. at 16; see also id. at 15. Jordan stated that he helped arrange a purported drug deal with Limoli, after which Barone shot Limoli in the head. Id. at 17-33. Jordan informed the government that Barone had said that Ferrara ordered him to kill Limoli. As the court stated at Barone's trial, "Walter Jordan's credibility [was] essential" to proving that Barone killed Limoli at Ferrara's direction. United States v. Barone, 89-00289-MLW, Oct. 18, 1993 Tr. at 50-51 ("Barone Tr. __").⁴

Jordan was in the Witness Security Program. To prepare for the trial of Ferrara and his codefendants, Auerhahn, Sullivan, FBI Special Agent Michael Buckley, and Boston Police Detective Martin Coleman, who was serving as a member of the federal Organized Crime Task Force, met with Jordan in Salt Lake City, Utah, in July 1991. Coleman was the member of the prosecution team who was closest to Jordan.

On their last evening in Salt Lake City, Jordan told Coleman that Barone had not obtained Ferrara's permission to murder Limoli and had never said that Ferrara had ordered that Limoli be killed. Coleman knew that this recantation was very important.

When he returned to Boston, Coleman told Auerhahn about his conversation with Jordan. Auerhahn and Coleman then had a telephone conversation with Jordan, who reiterated what he had told Coleman

⁴Cited Transcripts from proceedings in United States v.Ferrara, Cr. No. 89-289-MLW, and from the proceedings concerningFerrara's §2255 petition are identified only by date.

in Salt Lake City.

Coleman told his partner, Boston Police Detective William

Dickinson, what Jordan had said. Neither Coleman nor Auerhahn told

Sullivan.

Coleman rarely wrote memoranda. However, he recognized that

Jordan's recantation was extraordinary and important. Therefore, he

promptly prepared a handwritten memorandum to the file, which was,

on September 5, 2003, admitted as Exhibit 17 in the evidentiary

hearings on Ferrara and Barone's petitions for habeas corpus.⁵ The

memorandum stated:

To: file
From DET. MARTIN E. COLEMAN
SUBJECT LIMOLI MURDER
 

ON WEDNESDAY, JULY 24, 1991 AT ABOUT 11:30

P.M. MT [Mountain Time], WHILE HAVING A CONVERSATION WITH TONY JORDAN, A GOVERNMENTWITNESS, MR. JORDAN STATED TO ME THAT PATTY'S⁶ BARONE HAD FUCKED UP AND DID NOT GET PERMISSION TO KILL JIMMY LIMOLI.

ON THURSDAY, JULY 25, 1991, WE TRAVELED BACKTO BOSTON, AND I TOLD AUSA MR. AUERHAHN THAT IHAD TO SEE HIM ON FRIDAY ABOUT TONY JORDAN. ON FRIDAY, JULY 26, 1991, I TALKED TO AUSAAUERHAHN AND TOLD HIM WHAT MR. JORDAN HAD SAID TO ME.

⁵Because Coleman did not recall everything that was said inthe telephone conversation that occurred about twelve yearsbefore his testimony, the memorandum was admitted as pastrecollection recorded pursuant to Federal Rule of Evidence803(5).

⁶Barone was generally known as "Patsy."

ON MONDAY, JULY 29, 1991 AT ABOUT 10:30 AM,MR. JORDAN RETURNED A CALL TO MR. AUERHAHN'S OFFICE, AND I ASK HIM TO REPEAT TO AUSAAUERHAHN WHAT HE HAD SAID TO ME ON JULY 24.

AT THIS TIME, MR. JORDAN STATED THAT HE KNEWTHAT PATTSIE BARONE HAD NOT GOTTEN PERMISSION TO KILL JIMMY LIMOLI. HE FOUND THIS OUT AFTER JIMMY'S WAKE PATTY'S AND HE GOT INTO A CAR WITH VINNY FERRARA AND A JOE THE JEWELER.

VINNY SAID TO PATTY'S “WHO'S NEXT ME.”

JORDAN FURTHER STATED THAT SOME TIME LATER THAT WEEK THAT PATTY'S GOT CALLED OVER TO FRANCHESCO'S⁷ AND VINNY TOLD HIM HE WAS DEAD. AT THIS TIME PATTY'S RAN OUT OF FRANCHESCO'S A REST. ON N. WASH ST. AND OVER TO HIS APARTMENT WERE JORDAN WAS AND TOLD JORDAN THAT THEY HAD TO GET OUT OF TOWN BECAUSE VINNY WAS GOING TO KILL THEM. JORDAN THEN SAID WHY IS HE GOING TO KILL US AND PATTY'S SAID BECAUSE I DID NOT GET PERMISSION TO KILL JIMMY.

Coleman gave a copy of this memorandum to Auerhahn. Auerhahn

recognized that Coleman's memorandum memorialized exculpatory

information that was very damaging to the government's case. The

prosecutor asked Coleman if he, Auerhahn, could "clean it up."

September 24, 2003 Tr. at 19. Coleman thought that Auerhahn merely

wanted to correct the spelling and grammar, so he did not object.

Id. at 25.

As a result of the telephone conversation, Auerhahn arranged

another meeting with Jordan. That meeting was held in Minneapolis,

Minnesota, in August 1991. Auerhahn did not bring Sullivan to the

⁷Franchesca's was a restaurant in the North End of Boston,near Barone's home.

meeting. However, Buckley and Coleman were there.

As the meeting involved further trial preparation, Auerhahn knew that, pursuant to standard operating procedure, Buckley would not take any notes or prepare an FBI report, known as a "302." Auerhahn also correctly expected that Coleman would not take any notes or write a report.

It had been Auerhahn's consistent practice to take detailed notes when he was preparing a witness for trial. He departed from that standard practice and took no notes, other than possibly writing on his pre-existing trial outline, during the Minneapolis meeting. Auerhahn did not want to create a record of the changes in Jordan's testimony.

In Minneapolis, Jordan began to recant his grand jury testimony that Ferrara instructed Barone to kill Limoli. Buckley became upset, and Jordan was sent to the hallway. Coleman was soon sent to speak with Jordan and "straighten him out." Sept. 4, 2003 Tr. at 28-9, 86, 107, 180-81.

Jordan then had a well-founded fear of losing the protection of the government. At that time he was in the Witness Security Program because there was a legitimate concern that he would be murdered if he were not protected. Jordan was also concerned about losing his immunity. He had told the prosecutors about his participation in the Limoli homicide. His cooperation agreement with the government required that he be truthful. If the government decided he was not being truthful, it could use his statements to prosecute him for the Limoli murder. After his discussion with Coleman, Jordan returned to the hotel room. He was repeatedly urged to give a story that would conform to his prior testimony and statements, and Jordan reversed his recantation.

After the Minneapolis hearing, Auerhahn prepared a typed memorandum that was purportedly written by Coleman. It stated:

TO: FROM:	FILE MARTIN F. COLEMAN BOSTON POLICE DEPARTMENT SPEC. DEPUTY U.S. MARSHAL
RE: DATE:	STATEMENTS OF WALTER A. JORDAN SEPTEMBER 4, 1991

On July 24, 1991, I concluded several days of debriefingof Walter Jordan with Assistant U.S. Attorneys JeffreyAuerhahn and Gregg Sullivan and Special Agent Michael J.Buckley of the FBI at a neutral and secure locationoutside the Boston area. At approximately 11:30 p.m. onthat date, Jordan told me that some things he told usduring the debriefing were not true. He told me that at one point Barone told him that the Limoli homicide wasnot ordered by Vincent Ferrara. He further told me that when Barone returned from Franchesca's the night beforethey fled the Boston area, Barone told him that they hadto leave right away because Ferrara would kill thembecause Barone had “fucked up”.

On Thursday, July 25, 1991, we returned to the Bostonarea and I told Attorney Auerhahn that I needed to talkwith him concerning Walter Jordan. On Friday, July 26,I told AUSA Auerhahn of my conversation with Mr. Jordan.

On Monday, July 29, 1991, Mr. Jordan, pursuant to arequest that was transmitted to him through the MarshalsService, called AUSA Auerhahn and myself. Jordan repeatedwhat he had told me the previous Wednesday night. Jordan was informed that we would make arrangements to meet withhim again to discuss the facts surrounding the Limolihomicide and his conversations with Barone both before

20 and after the murder.

On Tuesday, August 27 and Wednesday, August 28, 1991,AUSA Auerhahn and SA Buckley and I met with Walter Jordanat a neutral and secure location outside the Boston area. The relevant statements made by Jordan during thesemeetings will be memorialized in a 302 report by SABuckley.

Exhibit 16 (Sept. 5, 2003).⁸

Auerhahn testified that he did not recall ever seeing this

document. See Sept. 5, 2003 Tr. at 185. The court is persuaded,

however, that Auerhahn not only saw the document, he prepared it.⁹

This memorandum was Auerhahn's effort to "clean up" Coleman's

⁸Exhibit 16 was not admitted for the truth of the information it included and, therefore, was not hearsay. See Fed.

R. Ev. 801(c).

⁹Coleman did not write or type Exhibit 16, even though itstates that it is a memorandum from him. It does not sound as if it was written by the same person who wrote the handwrittenmemorandum, Exhibit 17. Rather, it is written in an entirelydifferent style and employs distinct diction, using such phrasesas "neutral and secure location" and "will be memorialized." Moreover, Coleman credibly testified that if he had writtenExhibit 16, he would have signed it after it was typed. See Sept.5, 2003 Tr. at 275.

Coleman did not have a word processor or typewriter.Kathleen Reilly, who generally typed any memoranda Coleman wrote,did not write the memorandum, nor did she type it from anyhandwritten document given to her by Coleman. The format of thismemorandum does not match the format that she invariably usedwhen typing memoranda.

Contrary to a suggestion by the government, Dickinson didnot write this memorandum. Sullivan could not have written this memorandum because he was not informed of the changes in Jordan'stestimony, or included in the Minneapolis meeting.

Thus, the credible evidence convinces the court thatAuerhahn wrote and typed Exhibit 16.

handwritten memorandum -- to "sanitize" it to be less damaging to the government than Coleman's handwritten memorandum if it were produced to the defendants. It was intended to tone down what Coleman had written in Exhibit 17 and to explain why Coleman was not making a record of what was said in Minneapolis. The memorandum states that Buckley was going to prepare a 302 report. This was false and was known by Auerhahn to be false. As each witness in the evidentiary hearings testified, it was well known that if an attorney was conducting a trial preparation session, an FBI agent would never take notes or prepare a 302.

If it had been disclosed, the typewritten memorandum would not have been nearly as harmful to the government's case as the handwritten memorandum, which is much more specific and directly refutes the charges that Ferrara ordered Barone to murder Limoli. However, neither the typed nor handwritten memorandum, nor the information that they contained, was disclosed to Ferrara, Barone, or their codefendants in connection with their trials or sentencings. Rather, they were only disclosed after Coleman testified in the hearings in this §2255 case on September 5, 2003.

The failure of the government to disclose the information contained in the two documents, particularly the accurate and complete information in the handwritten memorandum prepared by Coleman, violated the government's duty to Ferrara and, as described infra, deprived him of Due Process. The Local Rules of the United States District Court for the District of Massachusetts provided for automatic discovery. Although slightly revised in 1990, they at all times relevant to Ferrara's case required that the government produce automatically, within fourteen days of arraignment, "all exculpatory evidence within the meaning of Giles

v. Maryland, 386 U.S. 66 (1967), and Brady v. Maryland, 373 U.S. 83 (1963)." Local Rule 42(a)(5) (1986 version); Local Rule 116.1(A)(5) (1990 version). In 1963, Brady v. Maryland, 373 U.S. at 87, clearly established that the government has a duty to disclose to a defendant exculpatory evidence that is material to guilt or punishment. Coleman's memorandum contained such information.

In addition, the Local Rules explicitly provided that, "[a]ny duty of disclosure and discovery set forth herein is continuing." Local Rule 42(c) (1986 version); Local Rule 116.1(C) (1990 version). This continuing duty required the government to supplement its disclosures if, among other things, it obtained after its initial disclosures material information tending to negate guilt.

As discussed infra, the government acknowledges that if, as the court finds, Jordan's recantation is material evidence that directly negates guilt on certain charges, the government was constitutionally required to disclose it to him before trial. See Apr. 1, 2004 Tr. at 53-4. Cf. footnote 11, infra.

The trial of Ferrara and his codefendants was rescheduled to begin in January 1992. Prior to that trial, Patriarca pled guilty

without any agreement with the government.

On October 16, 1991, as ordered in response to defendants'

motion for a bill of particulars, the government filed a 254-page

Trial Brief that was signed by Auerhahn. The Trial Brief identified

Jordan as a cooperating witness and described his anticipated

testimony concerning the Limoli murder. See Trial Brief of the

United States (Docket No. 683) (hereinafter "Trial Brief") at 207

11. Among other things, the government stated that Jordan would

"testify to Barone's statement that Limoli was killed on the orders

of Vincent Ferrara." Id. at 208. The government did not in the

Trial Brief, or in any other way, disclose that Jordan had recanted

this contention before reverting to his earlier version of events.¹⁰

¹⁰In September 2003, Auerhahn testified that he did notrecall Jordan ever telling him that, upon returning fromFranchesca's, Barone said that Ferrara was going to kill thembecause he, Barone, did not get Ferrara's permission to murderLimoli. See Sept. 5, 2003 Tr. at 162, 164. As described earlier,Auerhahn also testified that he did not recall seeing the typedmemorandum, Exhibit 16. See Sept. 5, 2003 Tr. at 185. A witnesswho falsely testifies that he does not recall a material fact hascommitted perjury. See United States v. Collatos, 798 F.2d 18, 19(1st Cir. 1986).

Regardless of whether in 2003 Auerhahn recalled Jordan'srecantation, he recognized that it was directly inconsistent withthe charges in the Superceding Indictment which in effect allegedthat Ferrara had ordered Barone to kill Limoli. See Sept. 5, 2003Tr. at 164. He testified that he also knew that this information had to be disclosed to the defendants "at some point." Id. at

163. The court finds that Auerhahn was, in late 1991 and 1992,well-aware of Jordan's important recantation and intentionallydid not disclose it to Ferrara. In addition, the court finds thatAuerhahn would not have disclosed this information to Ferrara

The Trial Brief made it clear that the government's case concerning the Limoli murder depended heavily, if not exclusively, on Jordan's testimony. He was the only witness concerning Limoli identified in the Trial Brief. Pretrial discovery revealed that there was no electronic surveillance implicating Ferrara in the Limoli murder. Nor was there any scientific evidence that would be used against him.

It would have been evident to competent counsel that Limoli's sister, Elizabeth DiNunzio, was on the witness list to testify about his murder. It would also have been clear, however, that she was not likely to have any personal knowledge of the events at issue, and that getting statements of Limoli admitted through her would be a challenging task. As discussed infra, the accuracy of such an assessment of the evidence concerning the Limoli murder was demonstrated at Barone's trial.

The Trial Brief also indicated that the government had little evidence to prove that Ferrara had participated in the murders of DiFronzo or Corlito. Id. at 211-14. DiFronzo was murdered in 1977

even if his case had been tried to a verdict, in part becauseAuerhahn did not disclose it to Barone before or during hiseleven-week trial in 1993, or in connection with Barone'ssentencing.

For the purposes of determining whether Ferrara has beendenied Due Process, however, it does not matter whether thegovernment's failure to produce the material exculpatory evidencewas deliberate or inadvertent. See Brady v. Maryland, 373 U.S. at87; United States v. Agurs, 427 U.S. 97, 110 (1976).

and Corlito was killed in 1979. No one had ever been prosecuted, let alone convicted, for those crimes. Each was charged only as a racketeering act, rather than as a substantive offense. No witness to either murder was mentioned in the Trial Brief. Nor was there any scientific or electronic surveillance evidence concerning those crimes.

Therefore, the Trial Brief would have indicated to competent counsel that Jordan was the key witness concerning the DiFronzo and Corlito killings, as well as the Limoli murder. It would also have been evident that Jordan's credibility would be critical to the government's effort to prove all of the murder charges at any trial or sentencing, and that any information that tended to negate Ferrara's guilt and/or impeach Jordan's credibility was important to Ferrara.

In January 1992, the trial of Ferrara and his codefendants, except for Patriarca and Barone, began. See Carrozza, 807 F. Supp. at 157. After the impanelment of a jury, on January 22, 1992, all five of the defendants entered into linked, binding plea agreements with the government.

The plea agreements provided, among other things, thateach defendant would: (1) remain silent with regard tothe factual basis for his plea and, particularly, not sayanything with regard to the existence of, or hismembership in, the LCN; (2) plead guilty to all, orvirtually all, of the charges against him; (3) berequired to serve a substantial term of incarceration;

(4) be placed on Supervised Release for three to fiveyears after serving his sentence; and (5) except forTortora, forfeit a substantial sum of money. Some of the plea agreements provided for sentences constituting adownward departure from the otherwise applicableSentencing Guidelines. Each plea agreement was contingentupon acceptance by the court of all four of the otheragreements, reflecting the government's view that eliminating the need for any trial was a major purposeand benefit of each agreement.

Id. (footnote omitted).

Four of the five agreements provided for what were understood to be significant downward departures. More specifically, they provided for downward departures from life (for the murder of Barboza) to sixteen years for Russo; from up to 293 months to 228 months for Carrozza; from more than seventeen years to thirteen years for Tortora; and from life to twenty-two years for Ferrara. Id. at 158-59.

Just before the court began the plea colloquy, Russo insisted on making a public statement that he was not acknowledging the existence of the LCN. To secure the global pleas, the government promptly renegotiated its agreement with Russo and permitted him to make that statement in return for his agreeing to serve an additional year in prison. Id. at 157 n.2; Patriarca, 807 F. Supp. at 178.

Ferrara's trial counsel, Oscar Goodman, Esq., now states that Ferrara at all times told him that he had not ordered the Limoli murder. See Ferrara's Post Hearing Memorandum in Support of Amended Motion to Vacate Judgment (Docket No. 103), Appendix B, Declaration of Oscar Goodman, ¶10. If Ferrara were not held responsible for the Limoli, Corlito, or DiFronzo murders, his lawyers assert that the Guideline range for his sentence would have been 151-188 months (or about twelve to sixteen years) in prison. See Ferrara's Post Hearing Memoranda in Support of Amended Motion to Vacate Judgment (Docket No. 103) at 10 and Appendix A; Apr. 1, 2004 Tr. at 58, 9192, 97.

Nevertheless, Ferrara agreed to plead guilty to the RICO charges, the racketeering acts involving the Limoli murder, and the related substantive charges in Counts 3 and 4, among others. Id. at 158; Jan. 22, 1992 Tr. at 61-2. He did not, however, agree to plead guilty to the racketeering acts concerning the DiFronzo and Corlito killings. See Jan. 22, 1992 Tr. at 61-2. Ferrara's guilty plea on the Limoli murder charges generated a Guideline sentence of life imprisonment absent a downward departure. See Carrozza, 807 F. Supp. at 158-159. Thus, the alleged racketeering acts concerning the DiFronzo and Corlito murders were not material to calculating the Guideline range for Ferrara's sentence. The parties agreed to what was described as a significant downward departure to a sentence of twenty-two years in prison for Ferrara. Id. This was, however, a sentence of six to ten years longer than the sentence Ferrara's counsel believed the Guidelines would prescribe if he were not held responsible for the Limoli murder and received credit for acceptance of responsibility.

Although he in effect pled guilty to ordering Barone to kill Limoli, Ferrara promptly asserted his actual innocence by informing

the Probation Department that he had not done so. He also did not

admit to participating in the Corlito or DiFronzo murders. Rather,

Ferrara's Presentence Report stated, in pertinent part, that:

Acceptance of Responsibility

(3)

To most of the acts charged in the counts in which heis named in the indictment, the defendant takes littleexception in terms of accepting responsibility.

(4)

He does however take issue with the allegation thathe is ultimately responsible for the murders of the threeindividuals named in Racketeering Acts A-1(a)(b); A2(a)(b); A-3(a)(b). To preserve his position on thesematters, the defendant insists that the following beincorporated into the report and that the distinctionstherein are made with certainty: James DiFonzo [sic] and Anthony Corlito were “despicablehuman beings. They were heroin addicts, killers, andJames DiFonzo [sic] was a rapist." They were in short"low lifes." Without conceding any responsibility fortheir deaths, the defendant "does not care, if peoplethink that (he) did it."

(5)

His admission (in terms of a guilty plea) to havingcontracted for the death of James Limoli, is particularlytroubling to the defendant. In fact, prior to enteringthe plea, he spoke with the decedent's father, andexplained the untenable position he was in and why hefound it necessary to acknowledge his involvement inJames Limoli['s] death, even though he disavows anyplanning or participation in the killing.

Presentence Report at 105-106 (emphasis added).

The court now realizes that Ferrara was asserting that he was

in the "untenable position" of having to risk a jury verdict based

on false testimony by Jordan that could result in a sentence of

life in prison or plead guilty to a crime that Ferrara was claiming that he did not commit, and accept a twenty-two year sentence, in order to avert that risk. Ferrara also offered the Probation Department "an historical account" of his association with Limoli. Presentence Report at 106. Among other things, Ferrara stated that he "disclaims any complicity in this murder; it was a spontaneous act the culmination of an argument between Limoli and Barone." Id. at 107. Nevertheless, Ferrara did not object to the recommendation in the Presentence Report that the Guideline range for his sentence be calculated as if he were responsible for the Limoli murder. See Addendum to Presentence Report.

Ferrara, Russo, Carrozza, Lepore, and Tortora were sentenced on April 29, 1992. The issue of Ferrara's responsibility for the Limoli homicide was not discussed at the sentencing hearing. See Apr. 29, 1992 Tr. at 1-69. The court did not focus on this issue.

The court did note that a benefit of the pleas to the government was the fact that they eliminated the risk that guilty individuals might be acquitted. Id. at 40. Referencing particularly Russo's acceptance of responsibility for the Barboza murder, the court stated that it was "fully satisfied there was a proper basis for the guilty pleas, and . . . satisfied that the defendants are guilty of the offenses they pled to." Id. The court would not have made this statement with regard to Ferrara's responsibility for the Limoli murder if the government had disclosed Jordan's statements that Barone had told him that he had not received permission from Ferrara to murder Limoli. The court now seriously doubts that Ferrara ordered the Limoli murder. The court also has no confidence that, if Jordan's recantation had been disclosed, Ferrara would have attempted to plead guilty to the Limoli charges or that the court would have accepted such a plea. Moreover, the court is persuaded that the government would not have been able to prove fairly Ferrara's involvement in Limoli's murder even by a preponderance of the evidence.

However, in 1992, the court accepted the binding, global plea agreements. Id. at 35-43; Carrozza, 807 F. Supp. at 159-65. The court found that significant downward departures for Ferrara and other defendants were justified and reasonable in part because they assured convictions and substantial sentences, protected the confidentiality of fearful witnesses, and allowed limited prosecutorial and judicial resources to be devoted to other important matters. See Carrozza, 807 F. Supp. 159-61.

Patriarca was sentenced on June 16, 1992. The government sought to have him held responsible for the Limoli murder as relevant conduct. See Patriarca, 807 F. Supp. at 178. The government initially argued that if the Limoli homicide was relevant conduct of Patriarca, the Guideline range for his sentence would be raised from about seven years to thirty years in prison. Id. The government's theory was that: Ferrara had ordered Barone to kill Limoli; an LCN murder could not be committed without the approval of the Boss; and, therefore, Patriarca authorized the

Limoli murder. Id. at 201. Thus, the government's theory required

that it prove that Ferrara ordered Barone to kill Limoli.

As indicated earlier, in 1992 it had been long and clearly

established that the government must disclose exculpatory evidence

that is material to punishment as well as guilt. See Brady v.

Maryland, 373 U.S. at 87. However, the government, led by Auerhahn,

did not disclose to Patriarca the highly material Coleman

handwritten memorandum, Auerhahn's own sanitized version of it, or

the information that they contained in connection with his initial

sentencing in 1992.¹¹ This important information was also not

¹¹In anticipation of Patriarca's original sentencing, on May8, 1992, Auerhahn did write to Patriarca's counsel that:

On several occasions prior to the murder of VincentJames Limoli, Jr., Pasquale G. Barone explained, insome detail, to Walter A. Jordan, or to another inJordan's presence, the motive for the Limoli homicide.Shortly after the murder, Jordan fled Boston at thedirection of Barone. (Barone fled as well.) Some timelater, Jordan learned the reason why he and Barone wereforced to flee. Jordan learned that Barone was supposedto use Jordan to set up Limoli and then kill Limoli andJordan on the night of October 28, 1985. For failing tofollow the order from Vincent M. Ferrara, and forsparing the life of his brother-in-law, Barone hadincurred the wrath of Ferrara and proven to beunreliable. Therefore, both Barone and Jordan were injeopardy if they remained in Boston. On one occasion,however, Barone provided a different reason whichcompelled Barone and Jordan's flight from Boston. Priorto learning that he too was to be killed, Jordan wastold by Barone that they had to leave Boston becauseBarone did not get permission to kill Limoli. WhenJordan pressed Barone on this, Barone immediatelyretracted the statement, and reiterated that the murder revealed by Auerhahn in connection with the 1995 hearings relating

to the resentencing of Patriarca in which the government

unsuccessfully contended that the court was required to sentence

Patriarca to sixty-five years in prison because the Limoli murder

constituted relevant conduct for which he was responsible. See

Patriarca, 912 F. Supp. at 602.

In 1993, the court conducted an eleven week trial of the

charges against Barone. Once again, neither Coleman's memorandum

regarding Jordan's recantation, Auerhahn's sanitized version of it,

nor the highly material information that they contained was

disclosed to Barone.

The government fully understood that it would be both

was at Ferrara's direction. Thereafter, Barone never

again stated that the murder was anything but a

sanctioned hit.

Ex. 14 (Sept. 5, 2003), May 8, 1992 letter from Assistant U.S.Attorney Jeffrey Auerhahn to Martin Weinberg, Esq.

This statement to Patriarca's counsel was false and misleading in many respects. It refers to a statement that Jordanmade to the government in North or South Carolina, not to thestatements Jordan made to Coleman in Salt Lake City or bytelephone to Auerhahn and Coleman following the Salt Lake Citymeeting. The conversation in North or South Carolina preceded themeeting in Salt Lake City and the telephone conversation.Auerhahn's notes do not reflect that Jordan said in North or South Carolina that Barone retracted his statement that they hadto leave Boston because he had not received Ferrara's permissionto kill Limoli.

In any event, even the false and misleading informationprovided to Patriarca in the May 8, 1992 letter was not disclosedto Ferrara, who was sentenced on April 29, 1992.

essential and challenging for it to prove that Ferrara ordered Barone to kill Limoli. As Auerhahn stated at Barone's trial: "[O]ne of the potential defenses in this case is that . . . maybe Patsy Barone killed Limoli, but not for Ferrara. So, it's very important to establish that Barone did commit murder for Ferrara." Sept. 7, 1993 Barone Tr. at 665. It was equally obvious to the government that it was vital to its case that the jury find Jordan to be a credible witness.

During the trial, it was discovered that Auerhahn had repeatedly improperly failed to disclose exculpatory evidence to Barone. Seven or eight of the discovery violations concerned the failure to disclose exculpatory information relating to Jordan's testimony. See Oct. 18, 1993 Barone Tr. at 35-6. Auerhahn was responsible for each of them. Id. at 48-9. The court informed the jury of the discovery violations that had been discerned. See Oct. 18, 1993 Barone Tr. at 51.

In addition, the court explained to the prosecutors, who were strenuously resisting an in camera review by the court of their notes, why exculpatory information might be discoverable even if it were not in an agent's report. See Sept. 28, 1993 Tr. at 133. More specifically, the court stated to Auerhahn:

if Jordan had said to you on this [hypothetical] walk inthe woods . . . I've made up half of what I told MikeBuckley because I don't want to get prosecuted for theLimoli murder, that would be exculpatory even though itwas in your notes and not in Buckley's notes.

Id. However, even this description of his duty to produce exculpatory information did not prompt Auerhahn to disclose Jordan's recantation, Coleman's handwritten memorandum, or Auerhahn's sanitized version of it.

The testimony at Barone's trial disclosed that there had been a trial preparation meeting with Jordan in Salt Lake City. Jordan's subsequent telephone call with Coleman and Auerhahn and the Minneapolis meeting were not divulged. Nevertheless, the court ordered Auerhahn and Sullivan to review their notes and was later told that they did not contain any exculpatory information. See, Sept. 30, 1993 Barone Tr. at 3-4.

Despite the fact that the government had improperly withheld Jordan's statements that Barone had said that he did not get Ferrara's permission to murder Limoli, Jordan was vigorously cross-examined for at least five days. See Oct. 18, 1993 Barone Tr. at

51.¹² The court repeatedly characterized Jordan's credibility as "important" and, indeed, as "essential" to the government's case. See, e.g., Oct. 18, 1993 Barone Tr. at 35-6, 50-1.

As the end of the trial approached, the government recognized that its evidence concerning the Limoli murder was weak. Thus, it for the first time argued that the charges did not require that it

¹²After concluding his trial testimony, Jordan told anotherindividual that he had lied and blamed the government forcoercing him to do so. See August 12, 2003 Order (Under Seal)(Docket No. 60).

prove that Ferrara ordered the Limoli murder in order to convict Barone. See Oct. 19, 1993 Barone Tr. at 2-6. The court rejected this contention. Id.

The court also denied Barone's motion to acquit concerning the Corlito murder and another charge relating to the robbery of a credit union. This court rarely grants such motions. However, it found the evidence concerning the Corlito murder to be barely sufficient to survive even under the very deferential Rule 29 standard, which required the court to assume that the jury would believe Jordan's testimony. See, e.g., United States v. Serrano, 70 F.2d 1, 5 (1st Cir. 1989). As the court stated:

The motion to acquit is genuinely competitive on both theCorlito murder and the credit union robbery. I have tolook at the evidence in the light most favorable to thegovernment and, basically, Walter Jordan, if believed,says things which I believe are sufficient for those twopredicate acts to remain in the case; that is, takingthat as a part of all the evidence, if the jury believedit, the jury could find beyond a reasonable doubt thatthe events occurred and had a sufficient nexus with the alleged RICO enterprise.

Oct. 7, 1993 Barone Tr. at 6-7.

The jury had great difficulty in deciding the Barone case. The court received a question from the jury on the Limoli murder charges. The jury twice reported that it was deadlocked. The court gave two modified "Allen charges," urging the jury to resume its deliberations. The jury ultimately convicted Barone of the RICO charges and of conspiring with Ferrara to murder Limoli. It did not, however, return a verdict on the charge that Barone actually killed Limoli, indicating that the jury did not fully believe Jordan's testimony. All of Jordan's testimony would have been substantially undermined if his recantation had been divulged.

On appeal the First Circuit found that this court improperly admitted some of DiNunzio's testimony, but that the errors were harmless in part because Jordan had said the same things. See United States v. Barone, 114 F.3d 1284, 1299 (1st Cir. 1997). Barone's conviction was affirmed. Id. at 1309. Thus, Barone was required to serve the sentence of life in prison that had been imposed.

As described earlier, in 1989 Mercurio was the informant who told the government that the LCN induction ceremony was planned for October 29, 1989, at 34 Guild Street, before the government filed its application for a roving order by representing that it was impractical to identify the place to be bugged. The FBI later alerted Mercurio to his forthcoming indictment in order to prompt and permit him to flee, and did not attempt to apprehend him.

However, in 1994, Mercurio was arrested in Georgia and sentenced there on state drug charges. In 1995, after Mercurio was returned to Boston, Auerhahn, who represented the government in Mercurio's case:

informed Magistrate Judge Lawrence Cohen, who was handling pretrial discovery matters, that Mercurio hadserved as an FBI informant and requested authority todisclose certain statements previously made by Mercurioto him directly, rather than through his lawyers.Salemme, 978 F.Supp. at 357 n. 9. The magistrate judge granted the request, and impounded the motion and Order.Id. Neither the magistrate judge nor the governmentinformed this court, to which Mercurio's case was assigned, of these matters or of Mercurio's status as aninformant. Id.

* * *

When Mercurio fled in 1989, he believed that if he wereever apprehended, he would be dealt with more lenientlythan if he had been arrested with his codefendants. Mercurio Aug. 5, 1998 [United States v. Salemme] Tr. at137-38. Mercurio was correct. Russo, Ferrara, Carrozza,Lepore, and Tortora received sentences of between thirteen and twenty-two years in prison. Carrozza, 807F.Supp. at 158-59. The government [represented byAuerhahn], however, entered into a binding plea agreementwith Mercurio, pursuant to Fed.R.Crim.P. 11(e)(1)(C), andpersuaded the court to depart downward and impose theagreed-upon 110-month sentence, which in accordance withthe government's plea agreement was to be served concurrently with Mercurio's Georgia sentence. Salemme,978 F.Supp. at 357. Thus, in 1996, Mercurio receivedlittle, if any, punishment for his federal offenses,while his role as an informant, and its implications forthe legality of the bugging of 34 Guild Street, remainedmasked from this court.

Salemme, 91 F. Supp. 2d at 293.

Mercurio's status as an FBI informant was eventually revealed

in the course of the prosecution of Frank Salemme, Stephen Flemmi

and others. In that case, this court ordered the government to

disclose whether James "Whitey" Bulger, Flemmi, and Mercurio were

informants because their status was relevant to pending motions to

suppress electronic surveillance evidence, including the evidence

of the October 29, 1989 LCN induction ceremony. See Salemme, 978 F.

Supp. at 347-58; Salemme, 91 F. Supp. 2d at 309-10. The Acting

Deputy Attorney General refused to obey that order with regard to Mercurio. Mercurio, however, testified that he was cooperating with the government in connection with the