Quincy judge in flap over sentence
US says she called ruling a 'present' to drug defendant
Outraged federal prosecutors accused a state judge yesterday of trying to help a convicted drug dealer involved in a Boston police corruption case evade federal sentencing guidelines by tossing out one of his prior convictions, then advising his lawyer to "tell him it was an early Christmas present."
US Attorney Michael J. Sullivan said District Court Judge Diane E. Moriarty dismissed Matthew West's 2001 conviction for assault and battery during a session in Quincy District Court on the morning of Sept. 24, without any prosecutors present.
Prosecutors said they were stunned when West showed up in federal court for his sentencing on cocaine charges later that afternoon and his lawyer announced that his old conviction had been dismissed, meaning that instead of facing 21 to 27 years in prison on the federal charges, he would face less than two years.
"This conduct by the state judge calls into question the integrity of judicial proceedings," said the statement from Sullivan, whose office got West's sentencing hearing postponed until Oct. 10 while staff members investigate Moriarty's ruling. He added that it appeared Moriarty was participating in an effort by West's lawyer to keep a federal judge from considering West's prior record at sentencing.
But West's lawyer, Timothy R. Flaherty, fired back that federal prosecutors have been trying to punish West unfairly because he refused to cooperate in an ongoing investigation into police corruption and are now trying to intimidate Moriarty for exercising her discretion to dismiss the old conviction.
"They have taken her jocular remarks totally out of context, attempting to assign some sinister motive behind her order, which was made entirely within her lawful discretion and in the very best interest of justice," Flaherty said.
Joan Kenney, a spokeswoman for the Massachusetts trial court, said it would be inappropriate to comment because the case is pending.
A single justice of the Massachusetts Supreme Judicial Court is weighing a petition that the state filed Monday, seeking to reverse Moriarty's ruling.
West, 38, of Saugus, was convicted by a federal jury in March of two counts of cocaine distribution for arranging the sale of 21 grams of the drug to an FBI informant. The same informant was involved in an FBI sting that led to cocaine-trafficking charges against three Boston police officers, who were arrested in July 2006 on charges of protecting truckloads of cocaine for agents posing as drug dealers. One of the officers, Carlos Pizarro, recently pleaded guilty, and the other two, Roberto Pulido and Nelson Carrasquillo, are awaiting trial on federal charges.
Pulido, the alleged ringleader, was accused of running after-hours parties with West in Hyde Park, where uniformed Boston police officers mingled with drug dealers and prostitutes.
Flaherty said prosecutors pressured West to cooperate in the ongoing probe, insisting he must know which officers attended the parties, but he has refused.
"They want him to testify against police officers," Flaherty said. "The US attorney's office tried to intimidate Matt West, and he wouldn't cooperate, and now they want to punish him for it. And now they're trying intimidate Judge Moriarty, who is a well-respected, learned, and just member of the trial court."
Under federal sentencing guidelines, a defendant with at least two prior convictions for certain offenses may be treated as a so-called career offender when facing new charges in federal court, paving the way for a much lengthier sentence.
Federal prosecutors said Flaherty urged Moriarty to vacate West's 2001 conviction after a Roxbury District Court judge refused to rule on his petition after a hearing in which Suffolk County prosecutors objected to it. They said Flaherty then appealed to Moriarty during an ex parte hearing, with no prosecutors present. Flaherty disputed that, saying that a Norfolk County prosecutor was present before Moriarty.
Flaherty said he urged a Roxbury District Court judge on Sept. 21 to dismiss West's assault and battery conviction, then was directed by the court to file his motion with Moriarty, who had presided over the original case.
Flaherty said West was accused of shoving someone after coming to the aid of his girlfriend, who was attacked following an auto accident. He said West never should have pleaded guilty to the assault charge and was not aware it would carry dire consequences.
In a filing in federal court, Assistant US Attorney John T. McNeil said a transcript of the hearing before Moriarty indicated that she knew it was improper to vacate a plea for not advising a defendant of the future consequences of his conviction. According to a transcript cited by McNeil, Moriarty also said her decisions had been reversed for similar rulings, and predicted, "when this goes up [on appeal] they're going to overturn me."
But, according to McNeil's filing, Flaherty told Moriarty that if the appeals court later reversed her decision, then West would plead guilty to the old charges again, rather than go to trial.
"The transcript of the hearing reflects the tawdry reality of the 'cottage industry' in vacating prior state convictions," wrote McNeil. He cited another federal judge, who said that state convictions that are vacated because of looming federal sentences were "like a Las Vegas marriage, annulled when they become burdensome." 