Prosecutions plunge in tenure of US attorney

US Attorney Michael J. Sullivan, who has long honed a reputation as a hard-nosed crimefighter, has brought fewer criminal cases almost every year since he was appointed to his post in 2001 as the ranking prosecutor in Massachusetts, according to federal statistics.

Sullivan, in a series of interviews, said the number of prosecutions has declined in part because he has focused on fighting white-collar crime, which often involves complex, time-consuming cases. But other statistics show that white-collar prosecutions have plunged even more precipitously under his stewardship, falling by nearly half from 2002 to 2006.

Sullivan - a law-and-order Republican who has been acting head of the Bureau of Alcohol, Tobacco, Firearms, and Explosives for the past 13 months while remaining US attorney - also attributed the declining prosecutions to staff vacancies he had been unable to fill and a soaring number of appellate and civil cases,

"There's nothing here with regard to these trend numbers, other than the fact that we've had some challenges, that is a concern to me," he said in a recent interview. "I'm shocked we're not down more."

Still, others expressed concern. US District Court Judge Nancy Gertner said she was not as troubled by the number of cases Sullivan has prosecuted as much as the type. Echoing criticism by another federal judge several years ago of Sullivan, Gertner said she sees more small-time, nonviolent drug offenders who used to be prosecuted in state courts and face far longer mandatory sentences in federal court.

"Federal sentencing is a bludgeon, and the question is when is it appropriately used," she said. "Federal courts typically dealt with white-collar cases. I don't see a large number of white-collar cases at all."

Critics of Sullivan, who is awaiting Senate confirmation as permanent director of the ATF, pointed to findings collected separately by a statistical division of the federal judiciary and by a nonprofit research group that says it obtains its data from federal prosecutors.

Since he took office in September 2001, the number of criminal cases brought by Sullivan, the former Plymouth County district attorney, has fallen from 508 in 2002 to 336 in 2006, according to the Administrative Office of the US Courts in Washington.

Meanwhile the number of defendants prosecuted in new white-collar cases is roughly half of what it was during Sullivan's first full year in office, plummeting from 134 in 2002 to 75 in 2006, according to the Transactional Records Access Clearinghouse, an independent research organization based at Syracuse University that charts monthly Justice Department prosecution statistics.

Sullivan said some of the data from the administrative office conflicts with his own data, and he rejects the clearinghouse's findings.

Still, the numbers from the judiciary and the clearinghouse bolster the assertion of defense lawyers and judges at federal courthouses in Boston, Worcester, and Springfield who say Sullivan has concentrated more on street crimes such as drug-dealing than on the white-collar fraud and financial crimes that have traditionally been the bailiwick of federal prosecutions.

"He brought the priorities of a local district attorney's office and has deemphasized the areas where federal prosecutors used to be uniquely involved, particularly white collar," said Joseph F. Savage Jr., a defense lawyer who left the US attorney's office in 1996.

The clearinghouse's statistics indicate that prosecutions of white-collar crimes have fallen nationwide since the terrorist attacks of Sept. 11, 2001, as the Bush administration directed the US Department of Justice to focus increasingly on preventing and combating terrorism.

In 2002, federal prosecutors filed cases against 9,628 white-collar defendants, compared with 7,267 in 2006, a 25 percent decrease, according to the clearinghouse.

But the decline in Massachusetts has been steeper: 44 percent, according to the clearinghouse. The research group uses the Justice Department's definition of white-collar crime, including more than two-dozen categories ranging from healthcare fraud to securities fraud. Sullivan said he had no idea whether the categories were the same used by his office. The clearinghouse said it uses the same categories he does.

Sullivan said his office's data show that white-collar prosecutions actually increased slightly during his tenure and added that the Justice Department has challenged the reliability of the clearinghouse's data.

"It's difficult to deal with perceptions," he said yesterday at his Boston office. "I think there was a perception early on that `Sullivan is tough on violent crime' - which I am, and I'm not going to apologize for it - but it has not been to the detriment of our white-collar program."

At the same time that prosecutions in general and white-collar prosecutions in particular appear to be falling, the number of cases going to trial has risen sharply, both in raw numbers and as a percentage of all cases handled by his office, according to the administrative office of the courts.

Data from that office show that the percentage of federal defendants who have gone to trial has climbed from 3.4 percent of the cases handled by Sullivan's office in 2002 to 11.5 percent of the cases in 2006.

Sullivan's prosecutors had 236 trials in the five-year period, compared with 175 trials in the last five years under US Attorney Donald K. Stern, who immediately preceded Sullivan, according to the office. The vast majority of federal criminal cases are still resolved through guilty pleas.

The increase in trials, said several defense lawyers, reflects Sullivan's insistence that prosecutors file the most serious provable charges and resist plea bargaining. As a result, defendants face long potential prison sentences, sometimes 30 years or more, and are more likely to go to trial, defense lawyers say. Because there are more trials, they say, prosecutors have less time to investigate and file new cases.

"They only have so many resources, and if you're spreading those resources among a lot of trials, they obviously have less time to spend on preparing cases and filing cases," said Jonathan Shapiro, a defense lawyer.

In three recent interviews, Sullivan said his office's internal data show that the new criminal cases overall fell from 418 in 2003 to 350 in 2006, not nearly as dramatically as the data from the administrative office.

Sullivan cited data from the administrative office when it backed his assertion that he is focusing on white-collar prosecutions. He said that the total of embezzlement and fraud cases listed by the administrative office showed that white-collar prosecutions had climbed from 122 in 2002 to 130 in 2006.

Some defense lawyers, analyzing the same data, said the embezzlement and fraud cases Sullivan cited include unsophisticated crimes such as theft of cash by bank tellers, which legal specialists do not typically consider a white-collar offense.

Rather than retreating from prosecuting white-collar criminals, Sullivan said, his office has made it a top priority. He cited more than $4 billion in healthcare fraud settlements since 2000 and a $600 million settlement last year with Prudential Financial Inc. in a market timing case.

He also said he assigned four of his staff of more than 100 prosecutors to work full-time on an investigation of fraud in the Big Dig project about two years ago. Aggregate Industries NE Inc. pleaded guilty in August to supplying substandard concrete on the Big Dig and agreed to pay a $50 million settlement as a result of an investigation by federal and state prosecutors. Sullivan declined to say whether any other charges will be brought in the investigation of Big Dig overruns.

Through most of his tenure, Sullivan said, he has also had to grapple with depleted resources. He said federal budget cuts had made it impossible to fill vacancies that at one point cut his staff of 114 lawyers by at least 16.

John E. Bradley Jr., a Plymouth County prosecutor who worked in the US attorney's office for 18 months, praised Sullivan for prosecuting gun cases that used to be handled by state prosecutors, saying the harsher federal sentences deters other gun crimes.

"I know from my own experience that they're taking more gun cases from us than ever before," Bradley said. "We find it has a significant impact on the local community."

Other defense lawyers said Sullivan's hard-line stance might have more to with his own career than with justice.

"It's politically expedient to be able to say, 'I don't make deals with criminal defendants,' " said Timothy Watkins, a federal public defender. "And for him, the proof's in the pudding: He's going to be director of ATF."

Sullivan chuckled when the comment was relayed to him but dismissed it. "Well, first off, becoming acting director of ATF came as a complete surprise," he said. "I'm honored to be here. But it has nothing to do with politics, in terms of charging."

Jonathan Saltzman can be reached at jsaltzman@globe.com.