Interview: Jim Boma

Jim Boma
Jim Boma was the Assistant U.S. Attorney in the Southern District of Florida who prosecuted Joey Settembrino.

If someone doesn't want to speak to us that's their right.  They have an absolute constitutional right to remain silent.  But there's nothing as a prosecutor that I can do for them in that circumstance. How did you get to Joey Settembrino?

[He] was ... brought in by the ... police department based on a undercover purchase of approximately 2,000 dosage units, or hits, of LSD.

How did it work, do you remember?

Well, what happened was the undercover officer learned that Settembrino had offered to sell another individual several thousand units of LSD. And then the officer basically contacted Settembrino and began negotiating with him. There were a series of two or three phone calls which led to a buy of the 2,000 hits of LSD.

Joey says he was set up.

I don't know. There could have been an informant, but I don't recall at this time. And I don't know if I'd call it ... a setup; he offered to sell it and the officer posed as a purchaser and bought it from him.

You don't remember?

Well, there may have been an informant. [In] a lot of cases we have informants, they contact an officer and tell them there's someone holding a large quantity of narcotics or drugs. And then the informant may introduce the undercover officer to the seller. But in this particular case I don't recall. ...

Why would informants do that?

Informants do it for a variety of reasons. They may have a case pending and they're trying to reduce their own exposure. They may be working for money. There are any number of reasons why they might be doing that, but primarily it's because they've been arrested and they offer to help the law enforcement authorities in an attempt to get their charges reduced or dismissed. ...

Doesn't that provide an incentive for dishonesty?

Well, I don't know. If you want to infiltrate a Boy Scout troop you'd use a Boy Scout. If you want to infiltrate a drug ring, unfortunately you go to informants. And they vary. I mean some informants are good, some are bad. And you always corroborate what they tell you. ...

Does the informant benefit?

Well in this particular case I don't recall what was done, whether there was money. If a case goes to trial we're required to gather that information and turn it over to the defense, as to whether the informant's paid, why they're working, what their motivation is, if they're going to testify at trial. In this particular case both defendants pled, so we never got to trial. ...

Why did Joey get 10 years?

It's based on the quantity of drugs. As I recall the laboratory reports, it was 30 grams approximately of lysergic acid diethylamide, or LSD. And the statute provides that [for] anything over 10 grams you will receive a 10-year mandatory minimum sentence. And in this case it was three times 30 grams. Three times the limit needed for a 10-year sentence.

Why not a downward departure?

... The only way to get a downward departure based on substantial assistance under 5K1.1 is to provide assistance to the government. And in this case Mr. Settembrino and his codefendant ... were approached. They were offered the opportunity to cooperate with the government. In an attempt to locate the source of the LSD, we had some information regarding the laboratory, but not enough to proceed with that prosecution. So we offered them the opportunity to cooperate with the government and they declined to do so. So if someone declines, there's no basis for a departure.

What if one declined because he doesn't know?

It's basically an objective standard. Either someone provides substantial assistance to the government and the prosecution or they don't. Because we never interviewed them it's hypothetical, I'm not sure what he knew or didn't know, or what he says he knew or didn't know... .

If he doesn't know, what do you do?

Since that time there have been some changes in the sentencing guidelines. If someone's a first-time offender they can qualify for what's known as the safety valve. [That provision] provides a two-level reduction and it allows the sentencing court to depart downward from the guideline range. So if it were a 10-year mandatory minimum it might move them down to 87 months or something like that.

But that provision is not retroactive?

No, it is not. And this case I believe was in 1992 ... and the safety valve and some of the other provisions weren't available. There are also role reductions [now]. If someone's a minor participant or a minimal participant they can qualify for role reductions. But in this case, this is the individual, Mr. Settembrino, who was dealing directly with the undercover officer and who did a hand-to-hand as we call it, basically exchanging over 2,000 hits of LSD for I believe it was $2,200 dollars ... .

What about the criticism that the more you're involved the more you know, and therefore those most guilty get the most taken off their sentences, while those that know nothing, and therefore can't cooperate, can't benefit?

Well the critics have said that ... basically the more you know the better position you're in to help yourself by providing substantial assistance. But then again, we're not mind readers. We offer people a chance to be interviewed. If they decline we can't speculate as to what they knew or didn't know. So they have to come forward and talk to us. And if they talk to us, we evaluate the information. ... But it's a rare occasion indeed where someone absolutely doesn't know anything. They usually have phone numbers, they have addresses, they have other information that they can provide. ... A lot of people say they don't know, but the few who don't know, that's an extremely rare situation.

But those at the higher levels know more ...

Sure, sure. And we try to weight that, at least I do and the agents that I work with. We weigh it based upon where we perceive this individual to be [within the organization] ... .

I think we're pretty fair, or at least I'd like to think we are. If someone does come in and does cooperate, we try to meet them more than halfway. And ... every agent I've worked with, ... they diligently work leads from people. And they will give it their best to try to make a case and to follow. Because that's what we do, we're not trying to take off the smaller people, we're trying to move upstream, if you will, and try to get into the multi-state international organizations. And that's basically what our mission is.

What about the scenario of higher level people informing down on those below, who know less and therefore have less to offer prosecutors?

Okay. I'll accept your scenario, but from my own personal perspective I have not seen that, because generally I will reach out or contact the people who I think are least culpable and give them the opportunity to cooperate first. And then move from that level up. ...

Critics say in reality it's not true that you go from the little guy to the big guy, that actually, it's the other way around.

[That] may be anecdotal, I don't know. You'd have to look at the Bureau of Prison statistics and that sort of thing. Generally I've found, just as a personal observation, when people are arrested they always try to make themselves appear smaller than they actually might be. So I guess ... some people are less than candid when they're arrested, and generally as time goes on and they get a level of comfort or they find out what the sentencing ranges are, they begin to talk. And that's the usual progression ... people initially may not want to talk and then once they get counsel, they sit down, they submit to debriefing. ...

Joey Settembrino didn't want to talk?

Based on my personal observation, which was limited, of him, I believe that he did not want to come forward and talk to us. He was offered the opportunity. He was relatively young man. When we have someone without a significant criminal history, we generally try to approach them because it's not in our interest to see someone go to prison for a long period of time, if they're willing to talk to us. And, again, I'm not a mindreader. Regarding Settembrino, he was offered the opportunity on several occasions, I wouldn't say that we begged him to talk to us, but we said repeatedly said, "Look, here's the statutory sentence you face, if you want to come in and talk to us." ...

Would it have made a difference?

Well, it would, but how are we to know [exactly what]? And people refuse to talk to us for any number of reasons. Some people don't want to inform on their friends or other associates or dealers. There may be family members involved, there wasn't in the Settembrino case. But there are any number of reasons why people choose not to talk to us.

Do you care what the reason is?

Well, how am I to know? Because if someone won't talk to me I can't gauge the depth of their knowledge. ...

What do you think of those who refuse to act as snitches?

As a person, I think everybody has individual responsibility and they have individual freedoms. It's a great country, you can talk or not talk. And we try to give them the opportunity because with the statutory system that's set up ... we need the information to feed ongoing investigations. And so it's in our interest and it's also in the defendant's interest to try to come to an agreement and speak to each other. ... And if someone doesn't want to speak to us, that's their right. They have an absolute Constitutional right to remain silent. But there's nothing as a prosecutor that I can do for them in that circumstance. They can go to trial, they can be convicted or acquitted by the jury. While we try the cases, the juries decide them and the courts sentence them. ...

Joey's father offered to cooperate, didn't he?

I do recall that there was some attempt by the family to provide cooperation, but the cooperation that was given, basically they wanted to hire an informant and have that informant then make cases. But after the local law enforcement officers looked at the background of the proposed cooperator, we declined to participate with that individual. We basically don't do mercenary type informant cases, where someone comes in and offers to provide someone else to us. He was just not deemed acceptable. ... What was offered initially ... the father was going to attempt to make some purchases. To the best of my recollection, and I would have to double-check the file and look at all the correspondence, but no such cooperation was tendered to the agent. ... There was a point of contact established and what the father was supposed to do with any information was to contact the agent. We would not refuse that cooperation ... anyone who's not charged could try to tender assistance on behalf of someone else. That is done.

Is there a law about that?

No, no. ... Someone can contact us, a friend, a family member, and offer to cooperate with our agents. And if they're able to make a case or help us, then we would use that credit ... to the benefit of the person being prosecuted.

What's the logic of letting someone else provide cooperation for a defendant?

Just so that [the defendant] could try to reach substantial assistance. If an individual can't, if they know of someone else who can offer assistance, we would look at that. We try to get them in a position where they can meet the standard substantial assistance. ... Oftentimes people are willing to help others to try to get, in this case, a sentence reduction. It would be the same if someone were starting a business and someone offered to help them start the business. In this case, we're talking cooperation. We're not going to shut doors on people who want to come in and try, and I stress the word try, because a lot of times it's not successful. But we try to pursue all reasonable avenues ... .

I guess the bottom line is that we're trying to gather information so that we can prosecute narcotics traffickers. ... Mr. Settembrino admitted to what he did. He came in and was sentenced, but under the guidelines he was facing a 10-year sentence. So the only way to get him down at that time, in 1992-93 time frame, was with cooperation. And if he wouldn't cooperate then someone else had to. I have no other mechanism available to me to reduce his sentence below 10 years. ...

Can anybody volunteer?

There's no real mechanism. Basically cooperation is limited only by what people can or cannot do under the law. ... The father here was trying to cooperate to help his son. He didn't want to talk to us and work with [us] except for the possibility that it might benefit his son.

Why agree?

Why would I agree? I would agree because it's a possibility that number one, we could gather information that we could use in an ongoing or a new investigation. And number two, it gives some possibility, however remote, that the person being charged might get a sentencing reduction and I want to give them that opportunity. If someone's trying to cooperate, I'm going to more than meet them halfway and try to do everything I can to follow up leads and to also give them feedback as to whether or not the information is of value or not. ...

It doesn't seem strange?

It does not seem strange. And again, because of the nature of the sentences that people are facing, I think that we owe them every reasonable opportunity to try to reduce their sentence. And the primary avenue of sentence reduction is through cooperation. For every story that you hear about someone getting 10 years, there are other people who were able to cooperate, testify against other individuals and they qualify for a significant sentencing reduction from the sentencing judge. So I know there are people that serve the mandatory minimum and there are many other people that do not. And some of them are big people, little people, it varies.

How do the mandatory minimum sentences work?

Well, the federal narcotics laws do set basically quantity based sentences. And, for instance, in the Settembrino case, with 30 grams of LSD, that's three times the quantity of drug that you need to trigger the 10-year minimum mandatory sentence, so once you get that quantity of narcotics, you're facing that kind of sentence. I can't speak for Congress, that's not my prerogative, ... but what it does is give some uniformity to the sentencing. Before the guidelines, before the mandatory minimums [were established] sentences were, if you will, all over the waterfront. Someone might be arrested in Rhode Island and receive probation, whereas if someone was in Des Moines, they might get five to eight years. And so what the Congress and the Sentencing Commission have tried to do is establish uniformity in sentencing, so that it's not as discretionary, to avoid, if you will, the lightning strikes. And, granted, the sentences are extreme, not extreme, but they're heavy. ...

Joey appealed his sentence, and broke the agreement with you that his father would try to supply substantial assistance...

Yes, the basic theory is it costs the United States government money when someone appeals a decision. And generally ... if there's some legitimate constitutional issue then we're [not] going to ... try to prevent an appeal, but this was a rather straightforward track pattern with a plea and a sentencing in accordance with the statute. So that it was, I won't call it cut and dried but it was pretty straightforward, basically a simple case. And generally if our office has to write an appeal, that costs the taxpayers and the government money. So someone gets a choice, either you cooperate and take your chances or you can appeal. ... [If the defendant chooses to appeal] we'll file the appeal and argue that case on its merits. And then the cooperation will be put on the shelf. So it's an economic decision, and also a workload decision. Basically people have to pick which horse they want to ride. Do they want to ride the cooperation horse or do they want to proceed with the appeal? ...

Does conspiracy law make drug cases easier to prove?

A conspiracy? Yes. What we need to establish is that people basically are involved in an agreement to violate the federal narcotics laws.

Do you need evidence of drugs for a conspiracy charge?

No. ... Some are known as wet and some are known as dry conspiracies. A wet conspiracy is where you actually have powder on the table if you will, or whatever the drug is. [In] a dry conspiracy ... basically individuals are arrested or we gather information [to] show that person X, person Y, person Z were moving quantities of cocaine during a set period. ...

Dry conspiracy means only oral testimony?

Generally a dry conspiracy, the way I use the term anyway, means that there were no drugs actually recovered. So you'd be relying on cooperating defendants, potentially informants. There's also a lot of grand jury work involved in terms of pulling records, different phone numbers, bank records and that sort of thing. So there's any number of ways that the evidence can be gathered.

Doesn't this create a possibility of abuses, relying solely on witnesses who have a great incentive to testify that someone else committed a crime?

Well, yeah. I guess my own personal rule of thumb and one that I've learned is you corroborate everything. You don't take anything at face value. So if someone were to testify, let's say, for instance, a cooperating defendant or an informant, if I can't corroborate that person or if they don't have a proven track record as being reliable and trustworthy in the past, I'm not going to call that person.

Would three informants be corroboration?

Three other informants? You mean in other words if you had four people telling you basically the same thing and it appears that they're totally independent from each other and isolated? Those are all factors that go in the mix. It depends on the circumstances. If I have four people outside the door and they're in a huddle over there and then they come in and tell me the same story, I'm not going to give it a lot of weight. But if you have different people in different locations telling you the same thing, then that would strengthen the corroboration. ...

My view of what an informant should do in the case is to establish an opportunity to introduce an undercover agent or officer. So my personal experience and practice would be to recommend that the informant be basically removed from the activity as soon as possible. So in other words, the informant is involved with someone else, they'll introduce an undercover agent or officer, say, "This is my friend Bill, or Frank, and I want you to deal with him." And at that point the informant exits stage left ... and then we have an undercover officer or agent who's a professional officer. And so that's the preference. It doesn't always work that way, but generally if you're creative you can establish scenarios where you can get someone inside. ...

So cases are not based solely on informant testimony?

No, not at all. I think you'd be hard-pressed to convict someone based on that. And personally, I have never had a case where it relied strictly on verbal testimony, never had one.


No. Not strictly on that. Generally with an informant you're trying to buy or pretend [to] sell someone drugs, so you're generally going to have ... video tape, audio tape, various electronic devices that you're going to be able to capture. It depends on the circumstances, but you're going to have corroboration ... .

But in most cases they don't.

The best ones do. ... You can't always do it, but the best case is a videotape. ...

You are in a very powerful position ...

First of all to clarify, I'm an assistant U.S. attorney working for the U.S. attorney. ... With the position comes responsibility, and prosecutors do have a great deal of discretion. I think the job is designed that way and it has to be that way. ... You're a public servant and you don't want to do things that are not in the public interest. So you should exercise that discretion very, very carefully and after weighing all the information. It's in no one's interest to try to bring someone to trial who we're not convinced was involved in criminal activity. So I think part of it's judgment, part of it's common sense and part of it's taking seriously your obligations because you can cause a great deal of problems in someone's life, and that's understood. And you have to be very cautious.

How do you feel about Joey Settembrino, personally?

From what I recall of him he was about 18 or 19 years old and had seemed like a very articulate young man for his age and educational background. Came from a good family. He seemed to me to be a nice person. ... I had very few dealings with him, but he seemed pleasant. I really don't have anything to say negatively about him personally, except for the fact that he was dealing the LSD. That's a significant problem for him, but in terms of personality he seemed to be a nice young man.

You weren't happy to see him go?

No, no, but I think it's clear he was involved in what he did and at some point he has to take individual responsibility for that. It bothers me to see anyone go to prison... . I will try, especially for the first offender, I really make every effort possible to work with them if at all possible. When someone's been convicted two or three times, [it] may be a little different story, but a first offender, especially someone younger or never involved before, you're going to go the extra mile if you can with that.

You try to work with them?

Things have changed to some extent because there's the safety valve and the role reductions [now] also. I'm not sure that this was available in '92, I don't recall, but there's a shock incarceration program or boot camp. So there are more mechanisms available over the last five years in dealing with people. And unfortunately most of them are not retroactive, they apply only when they're passed. But now ... we can try to factor and tailor the sentence a little bit more to the individual standing in front of the judge, because they all are individuals. ...

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