United States Court of Appeals

For the First Circuit

No. 00-1968

UNITED STATES OF AMERICA,

Appellant,

v.

STEPHEN J. FLEMMI,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

 Selya, Lynch and Lipez,

Circuit Judges.

Elizabeth D. Collery, Attorney, United States Dep't of Justice,

with whom Donald K. Stern, United States Attorney, Fred M. Wyshak, Jr.,

Brian T. Kelly, and James D. Herbert, Assistant United States

Attorneys, were on brief, for appellant.

Kimberly Homan, with whom Sheketoff & Homan, Kenneth J. Fishman,

and Fishman, Ankner & Horstmann were on brief, for appellee.

March 30, 2001

1This is the second interlocutory appeal in this case. On an

earlier occasion, we reversed a different suppression order. See

United States v. Flemmi, 225 F.3d 78 (1st Cir. 2000).

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SELYA, Circuit Judge. Stephen J. Flemmi, one of Boston's

most notorious gangsters, served surreptitiously as an informant for

the Federal Bureau of Investigation (FBI). In the end, however, there

was a falling-out and the government indicted him. This appeal,

brought pursuant to 18 U.S.C. § 3731 (a statute that allows the United

States, before trial, to appeal orders "suppressing or excluding

evidence"), follows on the heels of a district court order barring the

government from introducing certain evidence at Flemmi's trial.1 The

court based the suppression order on its conclusion that the

government, in obtaining the evidence, had abused the grand jury

process. United States v. Flemmi, 108 F. Supp. 2d 39, 43 (D. Mass.

2000). We reverse.

I. BACKGROUND

The district court has done a significant public service by

bringing to light the tangled relationship between Flemmi and the FBI,

and the details of that unholy alliance make for fascinating reading.

But those facts are by now old hat, e.g., United States v. Flemmi, 225

F.3d 78, 80-82 (1st Cir. 2000); United States v. Salemme, 91 F. Supp.

2d 141, 148-315 (D. Mass. 1999), and it would serve no useful purpose

to rehearse them today. This appeal requires only that we limn the

procedural history antecedent to the suppression order.
2This indictment dropped two defendants, added a new defendant,

left intact the charges previously lodged against Flemmi, and tagged

him with three more predicate acts based on alleged extortions.

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The grand jury originally indicted a single defendant on

October 25, 1994. It subsequently broadened its horizons, naming

several additional defendants, including Flemmi, in a superseding

indictment returned on January 10, 1995. In that indictment, the grand

jury charged Flemmi with, among other things, racketeering and

racketeering conspiracy under the Racketeer Influenced and Corrupt

Organizations Act (RICO). See 18 U.S.C. § 1962(c), (d). To make these

charges stick, the prosecution had to prove that Flemmi engaged in a

"pattern of racketeering activity," id. § 1962(c), by participating in

the commission of no fewer than two predicate acts within a ten-year

time frame, id. § 1961(5). Those predicate acts had to constitute

crimes of the type specifically enumerated in the statute. Id. §

1961(1).

To pave the way for this showing vis-à-vis Flemmi, the first

superseding indictment designated fifteen predicate acts: one that

involved attempted murder, one that involved suborning perjury, and

several others that involved gambling or extortion. This specification

was augmented when the grand jury returned a second superseding

indictment on August 1, 1995.2 The third superseding indictment,

however, was a horse of a different hue. Because the grand jury
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proceedings leading up to this indictment lie at the heart of the

district court's suppression order, we rehearse the relevant facts.

Even before the grand jury handed up the second superseding

indictment, the government had heard whispers that Flemmi, in

conducting his racketeering enterprise, may have participated in four

murders (dating back to 1967). The government subsequently contacted

Hugh "Sonny" Shields (who had been acquitted, along with Flemmi, in an

earlier state court case involving one of the murders). Although

Shields persuaded the prosecutors that he possessed salient information

about Flemmi's role in the slayings, he refused to testify unless he

received immunity.

The government arranged for a grant of use immunity and

hauled Shields before the grand jury in October of 1995. His testimony

not only implicated Flemmi in all four homicides but also pointed

prosecutors to another potential witness, referred to as "John Doe No.

2." The government brought Doe No. 2, duly immunized, before the grand

jury in November of 1995. His testimony likewise inculpated Flemmi in

respect to the murders.

Word of the grand jury's renewed activity apparently leaked,

and Flemmi moved to dismiss the indictment on the ground that the

government was playing fast and loose by employing the grand jury as a

vehicle for trial preparation. Before this motion could be

adjudicated, the grand jury returned a third superseding indictment.
3The government did not seek to indict Flemmi for the crime of

murder because there is no federal statute that can be applied to the

1967 slayings without violating the Ex Post Facto Clause. This fact,

however, does not prohibit reference to the slayings as predicate acts

in connection with the RICO counts. See United States v. Brown, 555

F.2d 407, 416-17 (5th Cir. 1977) (upholding, against constitutional

challenge, government's use of predicate acts occurring prior to RICO's

effective date in conjunction with predicate acts occurring after that

date).

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This indictment, handed up on May 21, 1996, added five new predicate

acts to the racketeering charges against Flemmi: one dealing with the

rigging of horse races (a charge not at issue here) and the other four

dealing with the murders.3 Flemmi responded by moving to suppress the

testimony of Shields and Doe No. 2, as well as any evidence derived

therefrom.

The district court quite sensibly treated Flemmi's motions

as a unit and heard oral arguments late in 1996. The court thereupon

took the matter under advisement until July 5, 2000. At that time, the

court concluded that the only tangible work product of the challenged

grand jury sessions — the third superseding indictment — did not alter

the fundamental character of the crimes charged because the added

materials did not accuse Flemmi of having committed any new federal

crime, but merely attributed more predicate acts to him. Flemmi, 108

F. Supp. 2d at 41-43. This rendered unavailable a safe harbor that the

government had sought to reach and set the stage for further inquiry.

The court conducted that further inquiry and found that the government

had used the grand jury process in the fall of 1995 and thereafter
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principally for trial preparation, that is, as a means to "compel and

freeze the otherwise unavailable testimony" of Shields and Doe No. 2.

Id. at 42.

In reaching the conclusion that the safe harbor for "new

charges" was unavailable, the court relied on a double jeopardy

analysis that indicated, to its satisfaction, that the offenses charged

in the second and third superseding indictments were precisely the

same. Id. at 57-60. This meant, the court reasoned, that the

embellishments to the indictment were no more than additional evidence

of the felonies with which Flemmi already had been charged. Id. at 60.

Deploying the grand jury as a mechanism for collecting such

information, the court ruled, constituted trial preparation (and,

accordingly, sufficed to ground a finding of abuse). Id. at 62

(suggesting that the inclusion of additional predicate acts did no more

than "impermissibly strengthen[] already-existing charges"). Deeming

suppression a condign remedy, the court granted Flemmi's motion to

exclude the evidence gleaned from Shields and Doe No. 2.

II. STANDARD OF REVIEW

Claims of grand jury abuse raise a unique set of concerns.

The relevant inquiry, strictly speaking, is neither a pure question of

fact nor a pure question of law. In re Grand Jury Proceedings

(Fernandez Diamante), 814 F.2d 61, 71 (1st Cir. 1987). To the

contrary, the inquiry most often comprises a hybrid in that it
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typically involves an "application of a legal standard designed to

ensure that the grand jury, a body operating peculiarly under court

supervision, is not misused by the prosecutor . . . ." Id. (quoting In

re Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985 (Simels), 767

F.2d 26, 29 (2d Cir. 1985)).

Given this reality, appellate tribunals have crafted an

intermediate standard of review for evaluating district court orders

accepting or rejecting claims of grand jury abuse. Under that

standard, we accord respect to the lower court's findings, but

scrutinize them somewhat less deferentially than we would if either the

traditional "abuse of discretion" or "clearly erroneous" rubric

applied. See United States v. Leung, 40 F.3d 577, 581 (2d Cir. 1994);

Fernandez Diamante, 814 F.2d at 71. This intermediate level of

appellate scrutiny is akin to what we have in other contexts termed

"independent review." E.g., United States v. Tortora, 922 F.2d 880,

882-83 (1st Cir. 1990) (describing independent review as "an

intermediate level of scrutiny, more rigorous than the abuse-ofdiscretion or clear-error standards, but stopping short of plenary or

de novo review," and deeming such review appropriate for appellate

oversight of pretrial detention orders).

III. ANALYSIS

Although the grand jury operates under judicial supervision,

it is essentially an independent institution. In recognition of this
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status, courts afford grand jury proceedings a presumption of

regularity. United States v. Johnson, 319 U.S. 503, 513 (1943). This

presumption attaches even after the grand jury has returned an initial

indictment. After all, superseding indictments setting forth new

charges or adding new defendants are familiar fare. E.g., United

States v. Melendez, 228 F.3d 19, 21 (1st Cir. 2000) (superseding

indictment added two new defendants); United States v. Peña-Lora, 225

F.3d 17, 23 (1st Cir. 2000) (superseding indictment set forth new

charges); United States v. Bender, 221 F.3d 265, 267 (1st Cir. 2000)

(superseding indictment added two counts); United States v. Li, 206

F.3d 56, 59 (1st Cir. 2000) (en banc) (superseding indictment added

four new defendants). It follows logically that, as a general rule,

"evidence obtained pursuant to [an ongoing grand jury] investigation

may be offered at the trial on the initial charges." Leung, 40 F.3d at

581.

Notwithstanding the presumption of regularity, prosecutors

do not have carte blanche in grand jury matters. However, a party

asserting a claim of grand jury abuse must shoulder a heavy burden.

See id.; United States v. Badger, 983 F.2d 1443, 1458 (7th Cir. 1993);

United States v. Jenkins, 904 F.2d 549, 559 (10th Cir. 1990). One way

to carry this burden is to show that the government used the grand jury

principally to prepare pending charges for trial. See Fernandez

Diamante, 814 F.2d at 70 (explaining "that a grand jury may not conduct
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an investigation for the primary purpose of helping the prosecution

prepare indictments for trial").

This proposition is more simply stated than applied. While

it is easy to say that the court's inquiry must focus on the primary

purpose underlying the grand jury's involvement, there is a fine line

between an improper "trial preparation" use of a grand jury and a

proper "continuing investigation" use. This fine line is difficult to

plot and, in most instances, determining whether a prosecutor has

overstepped it will depend on the facts and circumstances of the

particular case.

To assist in the inquiry, courts have devised certain

proxies. Thus, if a grand jury's continuing indagation results in the

indictment of parties not previously charged, the presumption of

regularity generally persists. United States v. Gibbons, 607 F.2d

1320, 1328-29 (10th Cir. 1979). So too when the grand jury's

investigation leads to the filing of additional charges against

previously indicted defendants. In re Grand Jury Proceedings

(Johanson), 632 F.2d 1033, 1041 (3d Cir. 1980). These are purposes

befitting the accepted institutional objectives of the grand jury, and

their presence bears convincing witness to the propriety of the

prosecutor's stewardship. See United States v. Sasso, 59 F.3d 341,

351-52 (2d Cir. 1995); In re Maury Santiago, 533 F.2d 727, 730 (1st

Cir. 1976); United States v. Dardi, 330 F.2d 316, 336 (2d Cir. 1964).
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Cognizant of this line of cases, the court below concentrated

on whether the third superseding indictment — which admittedly haled no

new parties into court — altered the nature of the charges previously

lodged against Flemmi. The court concluded that the indictment charged

no new crime. Flemmi, 108 F. Supp. 2d at 42. Laying that potential

proxy to one side, the court then found that the raison d'être for the

ongoing grand jury investigation was trial preparation, specifically,

what the court believed was the government's desire to bolster its

existing case by memorializing the testimony of Shields and Doe No. 2.

Id.

The district court's finding of improper purpose flowed from,

and depended upon, its finding that the third superseding indictment

did not charge a new offense. See id. at 62. But the court based the

underlying finding on a double jeopardy analysis. See id. at 57-60.

It asked, in effect, whether Flemmi would be protected from prosecution

under the charges laid in the third superseding indictment had he

previously been tried under the second. See id. at 61-62. Answering

that query affirmatively, the court concluded that the two indictments

necessarily charged the same offenses. See id.

This approach is innovative, but unsound. The Double

Jeopardy Clause "embodies a triumvirate of safeguards: It protects

against a second prosecution for the same offense after acquittal. It

protects against a second prosecution for the same offense after
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conviction. And it protects against multiple punishments for the same

offense." United States v. Ortiz-Alarcon, 917 F.2d 651, 653 (1st Cir.

1990) (citation omitted). When, as now, the question is whether the

prosecutor's evidence-gathering constituted an abuse of the grand jury,

none of these concerns is implicated. The jurisprudence of the Double

Jeopardy Clause is therefore inapposite, and we eschew the lower

court's misplaced reliance on it. The appropriate method of analysis

is more straightforward.

This case turns on whether the facts, viewed objectively,

reveal a proper justification for the government's continued resort to

the grand jury. In the circumstances at hand, that analysis, as the

district court recognized, centers on the grand jury's work product and

requires a frank comparison of the charges contained in the third

superseding indictment and those contained in the immediately preceding

indictment. At this juncture, however, we part company with the lower

court; that contrast should take place not by means of a mechanical

invocation of double jeopardy principles, but with an eye toward

determining whether the new matter contained in the later indictment,

assayed in a practical, commonsense manner, demonstrates that the

government's ongoing use of the grand jury was primarily for a proper

purpose.

Here, the results of the comparison are telling. As said,

accusations of grand jury abuse can be conclusively rebuffed by a
4To be sure, a sentencing judge may consider uncharged predicate

acts in a RICO case, e.g., Carrozza, 4 F.3d at 80, but the judge

nonetheless must stay below the maximum penalty allowed under the

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showing that the challenged proceedings led to the joinder of new

defendants or the inclusion of new charges. E.g., Johanson, 632 F.2d

at 1041; Gibbons, 607 F.2d at 1328-29. Here, the resumed grand jury

proceedings led to the inclusion in the indictment of material that

both added new RICO predicate acts and increased the maximum penalty to

which Flemmi was exposed. This is analogous to a superseding

indictment that adds a new charge — a permissible use of a grand jury

that yields a sufficiently substantial change to defeat an accusation

of grand jury abuse. We explain briefly.

Adding the four predicate acts of murder to the RICO counts

fundamentally altered the character of the indictment not only because

their inclusion contemplated new proof but also because their inclusion

increased the maximum sentence that could be imposed upon Flemmi in the

event of a guilty verdict. A person convicted of a RICO violation

ordinarily "shall be . . . imprisoned not more than 20 years." 18

U.S.C. § 1963(a). If, however, "the violation is based on a

racketeering activity for which the maximum penalty includes life

imprisonment," then the maximum available penalty stretches to life.

See id. The measurement is restricted to those predicate acts charged

in the body of the indictment. See United States v. Carrozza, 4 F.3d

70, 81 (1st Cir. 1993).4
charges delineated in the indictment and submitted to the jury. See

Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63 (2000); United States

v. Robinson, ___ F.3d ___, ___ (1st Cir. 2001) [No. 00-1674, slip op.

at 11-12]; see also Carrozza, 4 F.3d at 81 (acknowledging that "the

statutory maximum sentence must be determined by the conduct alleged

within the four corners of the indictment").

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In this case, the previous versions of the indictment

specified no predicate act that carried a potential sentence of life

imprisonment. A murder committed in Massachusetts at the relevant time

(and today, for that matter) carries such a penalty. See Mass. Gen.

Laws ch. 265, §§ 1, 2 (1959). Thus, the insertion of the murders as

predicate acts in the third superseding indictment effectively raised

the stakes by increasing the statutory maximum applicable to the

existing RICO charges against Flemmi from twenty years to life. To

that extent, the indictment entailed greater jeopardy. Cf. Apprendi v.

New Jersey, 120 S. Ct. 2348, 2365 n.19 (2000) (declaring in a related,

but not identical, context that any fact that increases the defendant's

exposure beyond the prescribed statutory maximum "is the functional

equivalent of an element of a greater offense").

This set of circumstances puts to rest any notion that the

government was abusing the grand jury process. Since the third

superseding indictment contained charges analogous to a new offense,

the investigation leading to it constituted a proper use of the grand
5Although the district court rejected this line of reasoning, see

Flemmi, 108 F. Supp. 2d at 60-61, it did so without any party having

cited to it the Supreme Court's hot-off-the-presses Apprendi decision

— and Apprendi undermines the district court's rationale for rejection.

See Apprendi, 120 S. Ct. at 2354.

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jury.5 Any different result would unfairly hamstring the government in

its pursuit of legitimate law enforcement objectives.

Let us be perfectly clear. We agree with Flemmi that the

appropriate inquiry is a matter of substance, not form. A prosecutor's

renewed resort to the grand jury for evidence-gathering purposes cannot

be validated simply by having the grand jury return any old superseding

indictment. If, say, a superseding indictment merely corrects

peripheral details or adds something trivial to the pending charges, an

inquiring court has every right to be skeptical. But when the new

indictment charges new crimes, adds new defendants, or otherwise works

a major change in the prior indictment that is sufficiently analogous,

for these purposes, to charging new crimes or adding new defendants, it

adequately evinces the propriety of the prosecutor's purpose and thus

becomes a safe harbor for the government.

IV. CONCLUSION

We need go no further. Because the third superseding

indictment was sufficiently analogous to the lodging of a new criminal

charge, we conclude that no abuse of the grand jury process occurred.

Since the district court's decision suppressing the testimony of
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Shields and Doe No. 2 (and the fruits thereof) rests on a contrary

premise, it cannot stand.

Reversed.