Case 1:94-cr-10287-MLW Document 2342

Filed 06/29/11 Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA v. JAMES J. BULGER

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CASE NO. 1:94-cr-10287-MLW

DEFENDANTS MOTION FOR CONSOLIDATION OF CASES Pursuant to Fed. R. Crim. P. 13 and Local Rule 40.1(J), defendant James J. Bulger moves to consolidate the related case of United States v. James J. Bulger,1:99-cr-10371-RGS (the 1999 Case) with the above-captioned action. In support of this motion, Mr. Bulger states as follows: The indictment in this case was returned in 1994. The Fourth Superseding Indictment (July 2, 1996) in this case alleges a racketeering enterprise and conspiracy, among other counts, against defendants James J. Bulger and Stephen J. Flemmi, among other defendants, spanning from 1967 to 1995.1 Three years after obtaining the Fourth Superseding Indictment in this case, the government sought to frame other charges. Having encountered difficult questions from this Court in lengthy hearings in the late 1990s, rather than have the newest allegations included in a Fifth Superseding Indictment in this case, the government chose to have the newest allegations returned in a separate indictment, so that it might be assigned a different docket and drawn to a different judge. As a result, in 1999, the government obtained a new indictment against James J. Bulger, Stephen J. Flemmi, and one other, also alleging a racketeering enterprise and conspiracy from in or before 1972 until 2000, among other counts. The allegations in the 1999 Case are

The other defendants are Francis P. Salemme, Robert P. DeLuca and James M.

Martorano.

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directly related to the allegations in this case and involve the same time period, overlapping defendants, and, in many cases, identical or effectively identical allegations. The governments apparent forum shopping is contrary to the public interest and undermines public confidence in the judicial process. The governments actions, choosing to pursue a new indictment, rather than a superseding indictment before this Court, reflect a manipulation of the case assignment process, which, if unchecked, would empower the government materially to change its odds on the random judicial assignment of cases. That is, had the government preferred this Court to hear the allegations brought in the 1999 Case, it could have sought and had the grand jury return a superseding indictment in this docket. If not, it could have chosen -- as it did -- to pursue a different indictment and a random draw for a new judge. If the government is permitted to choose either to supersede an existing indictment with new allegations and therefore have them heard before a known judge, or to bring a separate indictment to draw a different judge, with the unchecked ability then to dismiss the charges pending before the first judge, the government would be allowed to game the system. Such forum shopping is disfavored. This district has a strong policy against forum shopping embodied in, among other policies and decisions, the courts rule requiring the random assignment of judges. Inmates of Suffolk County Jail v. Kearney, 788 F. Supp. 623, 625 (D. Mass. 1992) (local rules and practices emphasize a policy of random assignment of cases and procedural protections against judge shopping); United States v. Mavroules, 798 F. Supp. 61, 61 (D. Mass. 1992) (process by which judges are randomly assigned prevents judge shopping by any party, thereby enhancing public confidence in the assignment process). To permit the government to choose a separate indictment, rather than a superseding indictment, to secure a different judge, raises precisely the type of forum shopping concerns that the random assignment 2

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process is designed to address. See, e.g., United States v. Carrasco, 968 F. Supp. 948, 951 (S.D.N.Y. 1997). Fed. R. Crim. P. 13 provides that the court may order that separate cases be handled together if all offenses and defendants could have been joined in a single indictment. In a variety of cases, the courts have permitted consolidation of separate indictments in situations, as here, where all offenses and defendants could have been joined in a single indictment. See, e.g., United States v. Gilmore, 284 F. Supp. 2d 393, 394-96 (W.D. Va. 2003) (consolidation of indictment against two defendants for conspiracy to murder with perjury indictment against a third defendant); United States v. Agboola, 2001 WL 1640094 at ** 6-7 (D. Minn. Oct. 31, 2001) (consolidation of indictments for bankruptcy fraud, obstruction of justice and conspiracy); United States v. Simmons, 739 F. Supp. 1040, 1042 (W.D.N.C. 1990) (consolidating bank robbery and attempted escape charges); United States v. Moriarty, 327 F. Supp. 1045, 1048-49 (E.D. Wis. 1971) (consolidating tax evasion charges covering overlapping time period). Consolidation would also save considerable judicial resources. This Court is familiar with the relationship between the parties and much of the factual predicate underlying the allegations in the 1999 Case, having presided over lengthy hearings and written considerably about these matters. See, e.g., United States v. Salemme, 91 F. Supp. 2d 141, 163 (D. Mass. 1999), revd in other part, 225 F.3d 78 (1st Cir. 2000), cert. denied, 531 U.S. 1170 (2001). It would save considerable judicial resources if this Court were to consolidate the 1999 Case with this action. Local Rule 40.1(J) provides that a motion for consolidation shall be made in the case first filed. This motion to consolidate is being made timely, three business days after Mr. Bulgers initial appearances in this matter and in the 1999 Case, and before arraignment in either 3

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docket. To avoid the forum shopping issue, the Court should first act on this motion to consolidate, and only thereafter act on the dismissal filed by the government on June 28, 2011. Consolidation would eliminate the forum shopping problem. For these reasons, Mr. Bulger requests the Court to consolidate the related case of United States v. James J. Bulger,1:99-cr-10371-RGS (the 1999 Case), with the above-captioned action. JAMES J. BULGER By his attorney, / S / Peter B. Krupp Dated: June 29, 2011 Peter B. Krupp B.B.O. #548112 Lurie & Krupp, LLP One McKinley Square Boston, MA 02109 Tel: 617-367-1970

CERTIFICATE OF CONFERENCE Pursuant to Local Rule 7.1(A)(2), I, Peter B. Krupp, certify that on June 29, 2011, I conferred with AUSA Brian Kelly about this motion and we were not able to resolve or narrow the issues presented herein. / S / Peter B. Krupp Peter B. Krupp

CERTIFICATE OF SERVICE I, Peter B. Krupp, hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing on June 29, 2011. / S / Peter B. Krupp Peter B. Krupp