United States District Court, D. Massachusetts
Dustin J. DeNunzio, Defendant: Joshua S. Levy, LEAD ATTORNEY,
Ropes & Gray LLP, Boston, MA; Todd Foster, LEAD ATTORNEY, PRO
HAC VICE, Todd Foster Law Group, Tampa, FL; Aaron M. Katz,
Ropes & Gray LLP - MA, Boston, MA.
Anthony Gattineri, Defendant: Michael J. Connolly, LEAD
ATTORNEY, Laura B. Angelini, Rhiannon A. Campbell, Hinckley,
Allen and Snyder, LLP, Boston, MA.
Charles A Lightbody, Defendant: Charles W. Rankin, LEAD
ATTORNEY, Emmanuelle Deborah Debouverie, Michelle Menken,
Rankin & Sultan, Boston, MA; Timothy R. Flaherty, Flaherty
Law Offices, Boston, MA.
USA, Plaintiff: Kristina E. Barclay, LEAD ATTORNEY, U.S.
Attorney's Office, Boston, MA; David J. Rubin, Office of
the Attorney General, Boston, MA.
AND ORDER RE: DEFENDANTS' MOTION TO COMPEL AND REQUEST
FOR EVIDENTIARY HEARING (DOCKET ENTRY # 168)
B. BOWLER, United States Magistrate Judge.
Dustin J. DeNunzio (" defendant DeNunzio" ),
Anthony Gattineri (" defendant Gattineri" ) and
Charles A. Lightbody (" defendant Lightbody" )
(collectively " defendants" ) move to compel two
categories of exculpatory evidence under Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ("
Brady" ). (Docket Entry # 168). The government opposes
production. (Docket Entry # 178).
first category consists of purportedly exculpatory material
evidencing that Wynn Resorts, Ltd. (" Wynn" ) knew
that defendant Lightbody, a convicted felon, held an
ownership interest in a parcel of land in Everett,
Massachusetts. Defendants reason that if Wynn knew about
defendant Lightbody's interest before it signed an option
agreement, then defendant Lightbody's interest was not
material to its decision to purchase the property. The
Indictment charges inter alia that, as part of a conspiracy,
defendants concealed defendant Lightbody's financial
interest from Wynn via materially false representations
transmitted through wire communications from December 2012
through July 2013. Defendants therefore move to compel
documents and information relating to Wynn's knowledge of
defendant Lightbody's historical and continued interest
in the Everett parcel.
second category concerns any evidence and information
regarding an alleged
incident that occurred in the fall of 2013 and involved
Joseph Flaherty (" Flaherty" ) and Stephen Matthews
(" Matthews" ), both former members of the
Massachusetts State Police. Defendants maintain that
unidentified " members of the Massachusetts State Police
and/or the Massachusetts Attorney General's Office"
allowed Flaherty and Matthews " access to files
concerning an ongoing joint state and federal
investigation of the Defendants." (Docket Entry # 168)
(emphasis added). The files were housed at a secure location
" where wiretaps are performed" in the
Massachusetts Attorney General's Office. (Docket Entry #
181-2). The location is " often referred to as the
wiretap room." (Docket Entry # 181-2). Defendants submit
that Flaherty and Matthews worked for Wynn and that their
access to the wiretap room made them " part of the
investigatory team in this matter." (Docket Entry #
168). Because allowing these individuals, as members of the
investigatory team, access to the wiretap room "
probably amounts to a violation of Massachusetts criminal
law," evidence relating to the incident is exculpatory,
according to defendants. (Docket Entry # 168). Defendants
additionally argue that allowing Flaherty and Matthews, as
civilians and private investigators, access to the wiretap
room " raises serious concerns" and likewise
probably amounts to a violation of Massachusetts criminal
law, particularly in light of Flaherty's acknowledgment
that he worked for Wynn in October and November 2013. (Docket
Entry ## 169, 181, 178-2). Defendants also " request an
evidentiary hearing on the apparent agency relationship
between Matthews and Flaherty and the joint state/federal
investigation team." (Docket Entry # 169).
Indictment charges defendants with wire fraud in violation of
18 U.S.C. § 1343, aiding and abetting wire fraud in
violation of 18 U.S.C. § 2 and conspiracy to commit wire
fraud in violation of 18 U.S.C. § 371. As set out in
the Indictment, from December 2012 to July 2013 defendants
conspired to conceal defendant Lightbody's ownership
interest in the Everett parcel from Wynn and the
Massachusetts Gaming Commission (" MGC" ) " to
obtain money from Wynn for the Everett Parcel." (Docket
Entry # 3, ¶ 16). Defendants purportedly knew that
defendant Lightbody's financial interest in the Everett
parcel, given his criminal history, would adversely impact
negotiations by FBT Everett, LLC (" FBT" ), which
held title to the parcel, for " an option
agreement" and " Wynn's ability to secure"
a casino license. (Docket Entry # 3, ¶ 16). The
Indictment further states that defendants obtained money by
transmitting materially false representations in an email to
Wynn's General Counsel that only defendant DeNunzio,
defendant Gattineri and another individual had interests in
FBT. (Docket Entry # 3, ¶ ¶ 19, 30, 47).
in December 2012, defendants had defendant Lightbody's
name " removed from FBT ownership documents" even
though he " retained a financial interest" in the
parcel. (Docket Entry # 3, ¶ 17). At the same time,
defendant DeNunzio " asked FBT's attorney to draft
paperwork" reflecting a transfer of defendant
Lightbody's ownership interest to defendant Gattineri
" in exchange for a $1.7 million promissory note."
(Docket Entry # 3, ¶ 17). Between December 1 and 19,
2012, defendant DeNunzio " asked FBT's attorney to
tell Wynn's representatives
that" defendant Lightbody " no longer had an
interest or was transferring his interest" in the
Everett parcel to FBT. (Docket Entry # 3, ¶ 26).
December 19, 2012, Wynn and FBT entered into the option
agreement. (Docket Entry # 3, ¶ 12). The agreement
required Wynn to pay FBT $100,000 each " month for the
right to purchase the Everett Parcel" in the event MGC
awarded Wynn a " destination resort casino
license." (Docket Entry # 3, ¶ 12).
this time period, Wynn was working with a public affairs
consulting group known as ML Strategies, LLC (" ML
Strategies" ), " a wholly-owned subsidiary of Mintz
Levin." (Docket Entry ## 169-4, 169-5). ML Strategies,
which had worked with Wynn for a number of
years, served as a general advisor to
Wynn's " effort to secure a license . . . in
Massachusetts for a destination casino." (Docket Entry #
169-4). Before signing the option agreement, ML Strategies
helped Wynn identify potential sites for a casino, including
a location in Foxboro, Massachusetts. Wynn " withdrew
from that location" when it became clear that the
Foxboro community and Foxboro officials were not interested
in a casino. (Docket Entry # 169-4).
around the fall of 2012, Steven Tocci (" Tocci" ),
president of ML Strategies, explored a number of other
locations for Wynn. " [S]ometime in the fall of
2012," he became interested in the Everett parcel and
reached out to Wynn regarding the location. (Docket Entry #
169-4). Wynn instructed Tocci to query Everett officials in
order to avoid " go[ing] through the same experience
that [Wynn] had in Foxboro." (Docket Entry # 169-4).
Having received a receptive response, Tocci believed the site
" was worth a visit by the Wynn folks." (Docket
Entry # 169-4). Accordingly, Matt Maddox (" Maddox"
) of Wynn, accompanied by Tocci, " took a quick look at
the site" and the surrounding area.
in the fall, Tocci and Maddox returned to the site and met
with defendant DeNunzio and Paul Lohnes (" Lohnes"
), another owner, at or near the property. Meeting with
two of the owners at or near the property demonstrates that
Wynn was seriously considering locating a casino on the
Everett parcel. At the time of the meeting, Tocci understood
that defendant DeNunzio and Lohnes owned the property because
" they said it at that meeting" and Maddox or
someone else had " looked at the Registry of Deeds
records" and found out " the owners of the
property." (Docket Entry # 169-4). Tocci additionally
understood that defendant Gattineri was the third owner of
the property. (Docket Entry # 169-4).
Michael Flood (" Flood" ), an employee of the
DeNunzio Group, stated that he and defendant DeNunzio
met with two representatives of Wynn (Maddox and Kim Sinatra)
at the Everett parcel in the fall of 2012. Flood testified
that defendant DeNunzio told " 'the Wynn
folks'" that, " 'we have a partner who has
a checkered past, but we're in the process of getting him
out of the property.'" (Docket Entry # 169, p.
Towards December" 2012, Tocci acknowledged " there
was an inquiry from a reporter from the Boston Business
Journal " to Nancy Sterling (" Sterling"
) of ML Strategies asking whether she was " 'aware
of other possible owners'" of the property. (Docket
Entry # 169-5). Sterling relayed the information to Tocci,
which led Bob Havern (" Havern" ) of ML Strategies
to find out if there was any truth to the matter. According
to Tocci, Havern reported that there was " 'no truth
to it'" and there were " 'only three
owners.'"  (Docket Entry # 169-5). Tocci does not
remember any specific names mentioned as part of the inquiry.
(Docket Entry # 169-5). He did not consider the matter "
all that serious at that point, because" he knew the
Registry of Deeds had been checked and it listed the "
three people." (Docket Entry # 169-5). He also stated
that, " [I]f it was something, we should find out if
there's anything else we needed to know." (Docket
Entry # 169-5).
same day or a day later, Tocci advised Wynn that, "
'There's something going on. I'm not sure exactly
what it is.'" (Docket Entry # 169-5). The day after
the reporter's inquiry, Tocci spoke with Mayor DeMaria
about various matters and mentioned that a reporter from the
Boston Business Journal had contacted ML Strategies
about the ownership of the Everett parcel. (Docket Entry ##
169, 169-5). More specifically, Tocci told Mayor DeMaria that
a reporter " 'was chasing around about the land
deal'" and that, " 'If there is anybody in
that deal who has any kind of a criminal background, I know
Wynn, and they're not going forward.'" (Docket
Entry # 169, p. 9). Mayor DeMaria then asked Tocci, "
'Who are you talking about?'" and, when Tocci
replied that he did not know, Mayor DeMaria " said,
'Was it Lightbody?'"  (Docket Entry # 169,
p. 9). Tocci replied that he did not " 'know the
name.'" (Docket Entry # 169, p. 9). Tocci also
stated this was the first time he had heard the name
Lightbody and that, after the conversation and the
publication of a December 14, 2012 article in the Boston
Business Journal, Tocci focused on negotiating a host
agreement. (Docket Entry # 169-5). Tocci's grand jury
testimony reads that, " It was clear to us that there
were still three owners, the registered owners, and we had a
very tight timeline . . . to negotiate a host agreement, and
. . . carry on an election . . .." (Docket Entry #
169-5). At another point during his grand jury testimony,
Tocci explained that " sometimes" he does not
" place a lot of trust in newspaper articles."
(Docket Entry # 169-5).
January 14, 2013, after Wynn signed the option agreement, it
submitted an application to MGC along with a non-refundable
$400,000 license fee to locate a destination resort casino on
the Everett parcel. (Docket Entry # 3, ¶ 13). On January
17, 2013, defendant DeNunzio emailed Wynn's General
Counsel and " falsely" stated ...