Early Morning Report – July 18, 2012

1950_mercury_monterey-pic-34186 (1)Longer line than usual at courthouse to get into building. It seems Benji Ditchman is one of those freak attractions at a traveling carnival. The way the federals do things, for his cooperation he might be out a few months after he testifies, and will be walking on the street among us. Who knows, perhaps they can assemble the old Winter Hill gang. Murderman, Benji, Howie Winter (is he out on bail for his recent extortion?), Murderman’s brother Jimmy.  Frankie Salemme is no longer the boss of the Mafia so maybe as an old member of the Roxbury gang he may be invited to join the group.

As for Whitey, my take is that Benji just hung around with him because Frankie was in Walpole. Once Frankie his boyhood friend and thug got out of Walpole, after doing his 16 years for blowing up Attorney John Fitzgerald,  they started to get together, as we heard Weeks testify in the John Connolly trial that Whitey frequently complained about Benji spending too much time with Frankie, and as we saw in the photographs Billy McDermott, the Brookline detective took of them. So Whitey can be replaced by another person known to be capable, Pat Nee. Once the federals manage to spring Benji, who may still be a top echelon informant, things can go back to the way they were in the good old days.

Today we will start off with a testy exchange between Carney and Wyshak over Wyshak’s motion filed last night to cut Carney’s witness list down by 26 of his witnesses alleging that they are not relevent. The judge may delay the argument until later but Carney will not be too happy that it was filed.

After that exchange we will begin to hear the final part of the testimony of William David Lindholm, one of the most unlikable witnesses ever to grace a witness stand. I assume he will be cross-examined by Brennan who I hope goes into some of the deals that he made with the government that allowed him to put in a jail house confession of some guy and then walk free and to continue the rest of his marijuana dealings.  Sometimes I think if all these guys who have deals with the government and those who are federal informants were taken off the street the crime rate would drop substantially.

I should explain the nickname I’ve put on Flemmi.  As a young man I spent over a year at NAS Atsugi which was just outside Tokyo. When I got there I had the good fortune to be able to purchase a 1950 Mercury Monteray for $100. I would sell it for the same amount when I left 13 months later. I used to drive outside the base often going to Tokyo or over to Tachikawa that had the best PX in the Far East.

The hazards of driving the Japanese roads that were mostly two lanes was not only the narrowness of the road, the unending lines of gravel trucks as the country tried to rebuild after the war, but also the steering wheel in the Mercury was on the wrong side. Each side of the road was lined with benji ditches that carried the sewerage. If one of the many gravel trucks happened to veer toward you, not only would you go off the road but you’d end up probably upside down in a smelly situation. Being young I was never deterred from driving the car, which was like a tank, over those road but I always knew that one mistake would be very detrimental.

When I recently thought of Flemmi one day and his life, the benji ditch filled of foul sewerage came back to mind. It seemed to fit perfectly what Flemmi was all about, a pit of swill. A man should be known by his deeds and to me Flemmi will always be Benji Ditchman.

As for needing to hit people with a nickname, that’s a product of my youth where every kid I hung around with had a moniker. There were two kids within three houses we called Muggsy, across the street lived Jake,Wimpy, and Luke, whose real name was Pete. I never had one because you couldn’t find another Matthew at that time within all of Dorchester or South Boston. I never met another Matthew until after I got out of the service after college. Now the name is ubiquitous.

I did pick up two nicknames when I started to work with the detectives in the units doing undercover work. They reminded me of the kids I hung around with.  One group called me Fletcher and another Monte. There are stories behind those names but that’s for another time.

The lawyers are assembling; Brennan was just talking to Wyshak; Whitey will soon be in the courtroom. He just came in dressed all in black with the black jersey. We should have an interesting day.

13 thoughts on “Early Morning Report – July 18, 2012

  1. Here is the Motion To Strike Carney’s Witnesses

    UNITED STATES DISTRICT COURT
    DISTRICT OF MASSACHUSETTS
    UNITED STATES OF AMERICA )
    )
    v. ) Crim. No. 99-10371-DJC
    )
    JAMES J. BULGER, )
    )
    Defendant. )
    GOVERNMENT’S MOTION TO PRECLUDE DEFENSE WITNESSES BEING OFFERED
    ON IRRELEVANT AND COLLATERAL ISSUES
    The parties have conferred regarding the defendant’s
    proposed witness list and it now appears that there are at least
    eight witnesses who can be removed from the list filed on July
    16, 2013 (ECF Dkt. No. 1150).1
    Nevertheless, there remain numerous defense witnesses who do not appear to have any relevant, admissible testimony to offer and the government
    respectfully requests that this Court preclude the defense from
    calling any such witnesses.
    By way of example, it is government counsel’s understanding that: Witness #1 (Albano) is being called to testify about how John Connolly and John Morris pressured him to not commute the sentence of Peter Limone; Witnesses #2 (Anderson) and #4 (Campbell) are being offered as unspecified impeachment of David Lindholm; Witnesses #5 (Cherkas), #21 (Johnson), #28 (Massella) and #31 (Orlando) are being called to rehash the false accusations lodged against MSP Lt. Johnson and John Martorano
    which were previously submitted to the court in camera; Witness
    #6 (Cloherty) is being called to give impeachment evidence on a
    non-government witness, Pat Nee; Witnesses #7 (Crawford) and #8
    (Cronin) are being called to give impeachment evidence on a nongovernment witness, John Connolly; Witness #10 (Daly) is being
    recalled to testify about the alleged past-posting of bets by
    Richard Castucci; Witnesses #11 (Davis), #16 (Fitzpatrick), #23
    (J. Kelly), and #35 (Sideropolous) are being called to give
    unspecified testimony on the handling of informant files in the
    Boston FBI office; Witness #12 (DePalma) is being offered as
    unspecified impeachment of Richard Buccheri; Witnesses #13
    (Doherty), #19 (M.Hussey), and #20 (S.Hussey) are being offered
    as unspecified impeachment of Stephen Flemmi; Witness #22 (E.
    Kelly) is being offered as unspecified impeachment of Michael
    Solimando; Witness #24 (Lesar) is an out-of-state attorney who
    fancies himself an expert on FBI corruption and who, in the
    past, has contended that James Earl Ray, despite pleading
    guilty, was the victim of a government conspiracy and was not
    the assassin of Martin Luther King, Jr.; Witnesses #26 (Mahar)
    and #32 (Pelton) are being offered as unspecified impeachment of
    Kevin O’Neil; Witness #27 (Marra) is being re-called to testify
    regarding documents that he has already been extensively crossexamined about; Witness #30 (Nee) is being called to force him to invoke his Fifth Amendment privilege in public; Witnesses #33
    (Richards) and #36 (Siracusa) are being offered as unspecified
    impeachment of Kevin Hayes. Finally, it is entirely unclear why
    Witness #18 (Healey) is being called as a witness.
    Neither the Constitution nor the Federal Rules of Evidence
    permit a defendant to call witnesses to testify regarding facts
    which are not of consequence to the case. FED. R. EVID. 401;
    United States v. Snow, 670 F.2d 749, 752 (7th Cir. 1981).
    Evidence which is not relevant is not admissible. FED. R. EVID.
    402; United States v. Flemmi, 402 F.3d 79, 86 (1st Cir. 2005).
    Moreover, even if certain defense witness testimony is
    marginally relevant, it should be excluded when it will confuse
    the issues, mislead the jury, and waste time. FED. R. EVID. 403;
    United States v. St. Pierre, 599 F.3d 19, 23 (1st Cir. 2010)
    (Rule 403 was properly applied and evidence excluded where
    proposed evidence had a potential to confuse and mislead the
    jury); United States v. Hatch, 514 F.3d 145, 157 (1st Cir. 2008)
    (District court properly rejected further testimony by the
    defendant because it was irrelevant, would simply confuse the
    jury, and might cause it to make unwarranted assumptions);
    United States v. Brown, 500 F.3d 48, 58 (1st Cir. 2007)
    (District court did not abuse its discretion in excluding
    marginally relevant testimony which would raise a significant
    risk of confusing the issues).
    Assuming arguendo that Rules 401, 402, and 403 do not bar
    the defendant’s witnesses, the witnesses should be excluded
    under Fed. R. Evid 608(b) because they are being offered to give
    extrinsic evidence to impeach another witness on a collateral
    matter. United States v. Beauchamp, 986 F.2d 1, 3 (1st Cir.
    1993). Bulger is attempting to introduce testimony that would
    distract the jury from the main issues and add little practical
    value to the defense; the Court should accordingly use its
    discretion to exclude such an attempt to present extrinsic
    evidence on a collateral matter. Beauchamp, 986 F.2d at 4.
    First Circuit case law clearly bars witness testimony
    offered simply to impeach the credibility of another witness.
    United States v. Perez-Perez, 72 F.3d 224, 227 (1st Cir. 1995)
    (finding the district court did not err in refusing to permit
    defense to offer witness testimony to impeach the credibility of
    a government witness based solely on extrinsic evidence); United
    States v. Gomes, 177 F.3d 76, 81 (1st Cir. 1999) (“Extrinsic
    evidence of specific bad acts is not admissible to show
    truthfulness (citing FED. R. EVID. 608 (B))…or to contradict the
    witness on a collateral matter”). Similarly, in United States
    v. Thomas, the court affirmed the district court’s refusal to
    allow defense counsel to call a witness in order to show that a
    separate witness, a confidential informant, was lying. 467 F.3d
    49, 56 (1st Cir. 2006). Allowing defense witnesses to testify Assuming arguendo that Rules 401, 402, and 403 do not bar
    the defendant’s witnesses, the witnesses should be excluded
    under Fed. R. Evid 608(b) because they are being offered to give
    extrinsic evidence to impeach another witness on a collateral
    matter. United States v. Beauchamp, 986 F.2d 1, 3 (1st Cir.
    1993). Bulger is attempting to introduce testimony that would
    distract the jury from the main issues and add little practical
    value to the defense; the Court should accordingly use its
    discretion to exclude such an attempt to present extrinsic
    evidence on a collateral matter. Beauchamp, 986 F.2d at 4.
    First Circuit case law clearly bars witness testimony
    offered simply to impeach the credibility of another witness.
    United States v. Perez-Perez, 72 F.3d 224, 227 (1st Cir. 1995)
    (finding the district court did not err in refusing to permit
    defense to offer witness testimony to impeach the credibility of
    a government witness based solely on extrinsic evidence); United
    States v. Gomes, 177 F.3d 76, 81 (1st Cir. 1999) (“Extrinsic
    evidence of specific bad acts is not admissible to show
    truthfulness (citing FED. R. EVID. 608 (B))…or to contradict the
    witness on a collateral matter”). Similarly, in United States
    v. Thomas, the court affirmed the district court’s refusal to
    allow defense counsel to call a witness in order to show that a
    separate witness, a confidential informant, was lying. 467 F.3d
    49, 56 (1st Cir. 2006). Allowing defense witnesses to testify Assuming arguendo that Rules 401, 402, and 403 do not bar
    the defendant’s witnesses, the witnesses should be excluded
    under Fed. R. Evid 608(b) because they are being offered to give
    extrinsic evidence to impeach another witness on a collateral
    matter. United States v. Beauchamp, 986 F.2d 1, 3 (1st Cir.
    1993). Bulger is attempting to introduce testimony that would
    distract the jury from the main issues and add little practical
    value to the defense; the Court should accordingly use its
    discretion to exclude such an attempt to present extrinsic
    evidence on a collateral matter. Beauchamp, 986 F.2d at 4.
    First Circuit case law clearly bars witness testimony
    offered simply to impeach the credibility of another witness.
    United States v. Perez-Perez, 72 F.3d 224, 227 (1st Cir. 1995)
    (finding the district court did not err in refusing to permit
    defense to offer witness testimony to impeach the credibility of
    a government witness based solely on extrinsic evidence); United
    States v. Gomes, 177 F.3d 76, 81 (1st Cir. 1999) (“Extrinsic
    evidence of specific bad acts is not admissible to show
    truthfulness (citing FED. R. EVID. 608 (B))…or to contradict the
    witness on a collateral matter”). Similarly, in United States
    v. Thomas, the court affirmed the district court’s refusal to
    allow defense counsel to call a witness in order to show that a
    separate witness, a confidential informant, was lying. 467 F.3d
    49, 56 (1st Cir. 2006). Allowing defense witnesses to testify in an attempt to impeach the credibility of another witness
    would start a “trial within a trial” or a mini-trial based on a
    collateral matter. Thomas, 467 F.3d at 56; United States v.
    Coplin, 463 F.3d 96, 104 (1st Cir. 2006). Of course, as a
    matter of law under Fed.R.Evid. 701, the credibility of
    witnesses is exclusively for the determination by the jury, and
    witnesses may not opine as to the credibility of the testimony
    of other witnesses at trial. United States v. Akitoye, 923 F.2d
    221, 224 (1st Cir. 1991) (It is not the place of one witness to
    draw conclusions about, or cast aspersions upon, another
    witness’ veracity).
    Accordingly, the government respectfully requests that the
    Court limit the number of defense witnesses to those individuals
    who actually have relevant testimony to non-collateral issues in
    dispute at this trial.
    Respectfully submitted,
    CARMEN M. ORTIZ
    United States Attorney

    1
    Witnesses who can be removed: #3 (Burke), #9 (Cronin-Watson), #14
    (Edwards), #15 (Egan), #17 (Foley), #25 (Luongo), #29 (Mullen), #37 (WatsonHarris).

  2. Did the ” Fletcher ” nickname have anything to do with the infamous Chevy Chase movie ? I would assume it may not but I can’t not think of that movie whenever I hear the word ” Fletch ” or ” Fletcher “. Great last couple of posts by the way, and the underworld story was pretty amazing. Reading that they have and probably still do read your blog I am wondering what they think about your writings ? and in hearing that, has it changed or altered the way you think in terms of what you will write in the future ?

    1. Craig:

      Fletcher came from the guys thinking that I would have been better off had I attended the Fletcher School of Diplomacy at Tufts – one never sees himself but the guys thought I was less than diplomatic in dealing with them and others at times. The Underworld post was fun. A lot more people read this blog than I had imagine would. I’m told the prosecutors hate me, the cops that work for them won’t look at me, some in the media pretend I don’t exist, some have no idea who I am, the defense team reads me off and on. I can’t change how I think. I do hold back at times — not because of any outside influence or pressure – but I’m mindful that many of the participants in here have children and I wouldn’t want to write something that would diminish a parent in a child’s eye. I also am very strick not to disclose anything I’m told off the record or things I see or haar in the overflow press room. I won’t change if that’s your question but I have to wonder what is the future when I read the blog’s title.

      1. I also wonder what the future holds in terms of the trial. I also wonder and can imagine you have hit the nail on the head directly so many times with almost every blog you have written, and that’s why you have more fans and readers than you expected ( also because what you write makes sense ). All the people you mentioned that have a distaste for your writings and direct approach I believe just want to live in the fantasy world and the world of pretend that you have written about in the past, and you, like myself and many other of you readers want to hear and speak the truth, especially when it comes to things like the Whitey fiasco and everything surrounding it. And as far as the media is concerned we all know they NEVER let the truth get in the way of a good story. You are one if not the only one I have found writing about this the way you do, and have the experience and knowledge to back up your writings and ways of thinking.

      2. “A lot more people read this blog than I had imagine would. I’m told the prosecutors hate me, the cops that work for them won’t look at me, some in the media pretend I don’t exist”.

        Well we love you Matt and your family loves you so that is all that matters. Don’t change your ways – there will always be someone who hates you.

  3. Dear Matt,

    Thanks for posting this. I find this objection to be laughable: “Witness #30 (Nee) is being called to force him to invoke his Fifth Amendment privilege in public…” Even assuming arguendo that this assertion holds merit, how does it contravene the Federal Rules of Evidence for a declarant to be called and invoke constitutional protections on the record?

    Matt, was this ever a practice in your experiences as a prosecutor in which a witness would still be called even if it was a known fact that the Fifth Amendment privilege would be invoked? It would be interesting to hear some perspective in how the Federal Government’s arguments here would fare in the Commonwealth’s local courts, under state criminal procedure law.

    Does the mere fact that a witness intends to invoke the Fifth Amendment make calling that witness a nullity? In my humble layman’s opinion, I would imagine that this would defeat the purpose of the Fifth Amendment to exist in the first place. I mean, it exists to be invoked as needed, doesn’t it? I am unaware of instances in which the mere suggestion that it may be invoked — or even will be invoked — suddenly deems it to be unnecessary to compel a witness to invoke it.

    Your sage insight would be most appreciated.

    Sincerely,
    Jay

    1. Jay:

      We could call witnesses even if we knew they would invoke their 5th. We’d ask as many questions of her as we could until the judge finally shut us down. But the witness had to actually do it, we would not accept a representation to that effect.

      think most of the witnesses will be allowed to testify since they will be short, unless the prosecutors lose perspective and forget what the case is about and conduct lengthy cross-examination. The judge should know Whitey is dead meat so why not let him have two or three more days to come up with witnesses whose testimony may or may not be relevent. I think the judge would feel it best not to interfere with the defendant’s case.

    2. Pleading the 5th? Its like an intentional walk. You have to throw the four pitches because you just never know.

      The one thing about Benji Ditchman that bothers me is that it is kind of close phonetically to Lionel Hitchman, who was one of the all time great Bruins.

  4. Benji Ditchman. That’s brilliant. I hope that’s his name in hell.

    I truly appreciate this blog and the insight you provide. Many, many thanks.

    1. Kristi:

      Thanks for reading. I’m assured that they have retired that name as they wait for him to appear. I hope whoever is there to see him off says to Benji the same words he said to Debbie Davis: “You’re going to a better place Benji” but then adds “and you’ll never be cold again.”

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