Judge: Mark L. Wolf’s letter

WOLF Judge: Mark L. Wolf

According to United States Chief Judge: Mark L. Wolf’s letter to United States Attorney General: Roberto Gonzales: dated December 8, 2006, stated:

Dear Attorney General Gonzales: In United States v. Ferrara , 384 F.Supp.2d 384 (D.Mass.2005), I found that Assistant United States Attorney: Jeffrey Auerhahn INTENTIONALLY engaged in professional misconduct which required the release from prison of a Capo in the Patriarca Family. I also found that Mr. Auerhahn’s testimony in 2003 may have been perjuries. id. at 397 n.10.

The Ferrara decision formalized and amplified findings I made on October 3, 2003 in the companion case of United States v. Barone, which led to Mr. Barone’s , an Associate of the Patriarca Family, being released later that month from a life sentence, with the agreement of the government.The First Circuit has recently affirmed my decision in Ferrara, characterizing Mr. Auerhahn’s actions as “egregious,” “outrageous,” “feckless,” and as “paint[ing] a grim picture of blatant misconduct.” United States v. Ferrara, 456 F.3d 278, 291, 293 91st Cir.2006).

In an October 2, 2003 letter, United States Attorney Michael Sullivan urged me not to make certain findings and, implicitly, not to take disciplinary action against Mr. Auerhahn, who is a member of the bar of this District Court, pending what Mr. Sullivan promised would be “an objective and thorough inquiry” by the Department of Justice Office of professional Responsibility (“OPR”).

In doing so, Mr. Sullivan stated that “a determination of good or bad faith by government personnel..is appropriately a matter of great concern to the Court, the Department of Justice and {the United States Attorney’s] office.’I made all of the documents and information in the Ferrara and Barone cases available to OPR several years ago.no information on the status of any results of the OPR investigation has been provided to me.The media reports that the Department of Justice has declined to comment on whether the OPR investigation is complete or whether any disciplinary action has been taken against Mr. Auerhahn.

See P. Gelzinis, “Prosecutor Well-acquainted With Corruption, Boston Herald, Aug. 13, 2006 at 10;

Shelley Murphy, Judge Throws Out Mobster’s Sentence, The Boston Globe, April 13, 2005 at A1.

Moreover, I do not know if any criminal investigation of Mr. Auerhahn’s  possible perjury, which i understand from 28 C.F.R. Section 0.29c(a) would be conducted by the Department of Justice Office of Inspector General rather than OPR, has been conducted.In any event, as the gelzinis Colum indicates, the apparent inaction of the Department of Justice   regarding  Mr. Auerhahn has generated considerable concern about the administration of justice in the District of Massachusetts.

Canon 3(B)(3) of the Code of Conduct for United States Judges states that “a judge should initiate appropriate action when the judge becomes aware of reliable evidence indicating the likelihood of unprofessional conduct by a …lawyer,” therefore, I am writing to bring this matter to your attention in the hope that further action by me will not be necessary.

The following should provide some context for your consideration of this matter. As I wrote at the outset of my April, 2005 Ferrara decision;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.

See, e.g., United States v. Salemme, 91 F.Supp.2d 141, 261-311 (exhibits: 188-246) (D.Mass.1999); United States v. Flemmi, 195 F.Supp.2d 243 (D.Mass.2001); United States v. Connolly, 341 F.3d 16-29 (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 Pasqual 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.

Government’s witness Jordan provided this information to Assistant United States Attorney Jeffrey Auerhahn’s (District of Massachusetts/Boston), colleague, Boston Police Detective Martin Coleman, and the repeated it for Coleman and AUSA: Auerhahn.Jordan’s statements were memorialized in a contemporaneous memorandum, handwritten by Detective Coleman, which was given to Auerhahn but NOT produced to Ferrara and his codefendants in connection with their trails and sentencing’s 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.

384 F.Supp.2d at 387-88. As indicated earlier, my findings in Ferrara formalized and amplified those that I made orally on October 3, 2003 in the companion case of United States v. Barone, Civil Action number: 98-11104.

In Ferarra, I held that Assistant United States Attorney Jeffrey Auerhahn had INTENTIONALLY withheld from Ferrara, Barone and their codefendant: Raymond J. “Junior” Patriarca the Coleman memorandum, a far less detailed and damaging version of it that AUSA: Auerhahn personally prepared, and the vital exculpatory information that government’s witness: Jordan had provided in a recantation of his earlier statements to the government (AUSA: Auerhahn & Boston Police Detective Coleman).Id at 394-97and n.10. Also note On October 3, 2003, I did not state my conclusion that AUSA: Auerhahn’s misconduct was intentional, in part in deference to U.S. Attorney: Mr. Sullivan’s October 2, 2003 request that I do NOT do so until the (OPR) Office of Professional Responsibility of the Department of Justice’s internal affairs had an opportunity to investigate the matter. See Oct. 3, 2003 Transcript at 19-20, 79-80, 85-88. in support.

While expressly identifying the serious issue, I (Chief Judge Wolf (D.Mass/Boston) did not decide whether AUSA: Auerhahn’s testimony that he did NOT recall either the important information government’s witness Jordan provided, the Boston Police Detective Coleman memorandum, or the memorandum he himself prepared constituted perjury. Id at 397 n.10.With the agreement of the government, Barone was released from prison on October 24, 2003, from his unlawfully obtained life sentence. Id. at 408; see also, October 24, 2003 Transcript.

My decision to order the release of Ferrara after 16 years in prison was affirmed by the United States Court of Appeals for the First Circuit in Boston, Massachusetts.

See Ferrara, 456 F.3d 278 (1st Cir.2006).

In doing so, the First Circuit wrote with regard to Assistant United States Attorney: Mr. Auerhahn’s misconduct:Here, we are dealing with more than simple neglect to turn over exculpatory evidence; the government (AUSA: Auerhahn) manipulated the witness (Jordan) into reverting back to his original version of events, then effectively represented to the Court and the defense that the witness was going to confirm the story (now known by the prosecution to be a manipulated tale) that the petitioner was responsible for killing Limoli.These egregious circumstances make this one of those rare instances in which the government’s failure to turn over evidence constitutes sufficiently parlous behavior to satisfy the misconduct prong of the involuntariness test for determining whether a guilty plea is invalid).
Id. at 291.

The First Circuit concluded that:

The sad fact is that the government promised the petitioner (Ferrara) that it would carry out fully its obligation to produce exculpatory evidence but instead manipulated a key  witness, deliberately chose NOT to reveal to the Petitioner the stunning evidence concerning Jordan’s recantation, yet represented falsely to the petitioner that it had kept its promise. id. at 297.The misconduct by Assistant United States Attorney (AUSA): Jeffrey Auerhahn that resulted in the release of Barone and Ferrara was part of a pattern of similar misconduct by him.

In 1991, I (Chief Judge: Mark L. Wolf, U.S. District Judge District of Massachusetts/Boston), held that Mr. Auerhahn had attempted to mislead the defendants (Ferrara, Barone, Patriarca) and the Court (Judge: Wolf) concerning a motion to suppress evidence of a LCN electronic surveillance.See United States v. Ferrara, 771 F.Supp.2d 1266, 1308 (D.Mass1999); Ferrara, 384 F.2d at 391-92.As a result of lengthy hearings in another case in 1998 (U.S. v. Salemme, 91 F.Supp.2d 141, 261-311 (D.Mass.1999), I discovered that Mr. Auerhahn DID NOT in 1991 complete of fully correct the record regarding the motion to suppress even after that misconduct was discovered.See United States v. Salemme, 91 F.Supp.2d 269-89 (D.Mass.1999); Ferrara, 384 F.2d at 392. In addition:

During the [1993 Barone] trial, it was discovered that AUSA: 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 government’s witness: Jordan’s testimony.See Oct. 18, 1993 Barone transcript at 35-6. AUSA: Auerhahn was responsible for each of them. Id at 48-9.

The Court (Judge: Wolf) informed the jury of the discovery violations that had been discerned. See Oct. 18, 1993 Barone Transcript at 51.
Ferrara, 394 F.Supp.2d at 402.

jaAUSA: Jeffrey Auerhahn

Assistant United States Attorney: Jeffrey Auerhahn has been a member of the bar of the United States District Court for the District of Massachusetts since 1980. As such, he was prohibited from violating the ethical requirements and rules concerning the practice of law in the Commonwealth of Massachusetts. See Local Rule 83.6(4)(B) of the Local Rules of the United States District Court for the District of Massachusetts.

In the period 1991 to 1998, The Massachusetts Rules of Professional Conduct, DR 7-103(B) stated that:A public prosecutor or other government lawyer in  criminal litigation shall make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence, known to the prosecutor of other government lawyer, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.The Rules also included “Standards Relating to the Prosecution Function which, in PF 7(A), reiterated this requirement.In addition, PF 1 provided that, “It is unprofessional conduct for a prosecutor intentionally to misrepresent matters of fact or law to the Court.”The  current counterparts of the relevant standards are in Rule 3:07 of the Massachusetts Rules of Professional Conduct, including Rules 3.4(a) and 3.8(d).

The United States Court of Appeals For The First Circuit and I (Chief Judge: Wolf), have, in effect, found that AUSA: Jeffrey Auerhahn violated these ethical obligations and did so INTENTIONALLY.I, (Chief Judge: Wolf) understand that the  Department of Justice has dealt seriously with comparable misconduct.more specifically, I know that in United States v. Kourbriti, Criminal Action #01-80778 (E.D.Mich.) the Department of Justice agreed that a new trial was necessary for the first alleged terrorist tried after the September 11, 2001 attacks in the “Detroit Cel case,” and that the Assistant United States Attorney who WITHHELD important exculpatory evidence in that case is now being prosecuted.

Therefore, I hope and trust that directing this matter to your attention now that the Ferrara case is concluded will prove to be sufficient to satisfy my obligation to initiate appropriate action concerning misconduct by a lawyer. (Assistant United States Attorney: Jeffrey Auerhahn, United States Attorneys Office District of Massachusetts/Boston.

To facilitate consideration of this matter I have enclosed the Ferrara and Barone decisions, and other documents referenced in this letter (to U.S. Attorney General). Knowing of the many demands on you as Attorney General, I am also sending a copy of this letter and the enclosures to other officials of the Department of Justice  who I understand have responsibility for taking action concerning Assistant United States Attorney Jeffrey Auerhahn’s criminal misconduct.I (Chief Judge: Mark L. Wolf, District of Massachusetts/Boston), thank you in advance for your attention to this serious matter and will look forward to hearing from you or one of your colleagues concerning it.

Sincerely yours,

Mark L. Wolf.
U.S. District Judge
District of Massachusetts/Boston

cc: H. Marshall Jarrett, office of professional Responsibility (OPR)Glenn Fine, Office of the Inspector General Michael Sullivan, United States Attorney, District of Massachusetts/Boston,Jeffrey Auerhahn, Assistant United States Attorney, District of Massachusetts/Boston.

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