FBI The Set Up (Part two)


Prosecutors later tried to use those words to prove that Turner had taken part in schemes like this before — and so wouldn't have blinked at taking part in this one. Merlino had said as much several times on tape, calling him a “veteran” who was “good with” guns. But those statements were hearsay. Prosecutors needed more to prove that Turner walked willingly into the Loomis robbery and that this wasn't what his lawyer claimed it was: entrapment.

It's one of the first rules of law enforcement: Police can't perpetrate crimes in order to catch criminals. That's why the cops on TV don't sleep with prostitutes or deal coke on street corners. In reality, of course, it's never that simple. To prove entrapment in court, a defendant must show that he was targeted (someone wanted him to do it), coerced (somebody pressured him to do it), and not predisposed (he wouldn't have done it if somebody hadn't encouraged him). That's why entrapment defenses almost always fail. The bar is set too high. But this case seemed to have all the necessary pieces. The FBI confirmed to lawyers that Merlino and Turner had been targeted as suspects in the Gardner robbery since 1992. The FBI's Cronin, during questioning, even admitted that he believed that if Turner was facing heavy charges, he could provide information on the Gardner robbery — though he later said at trial he didn't have “any information at that point indicating that David Turner had access to the paintings.”

But Merlino's defense weakens under the weight of a year's worth of informant reports saying that the repair shop manager was cajoling his subordinate Romano to find him a “clean” insider at the armored car facility. When Romano finally said he had the insider, Merlino did initially balk at the plan, saying, “It ain't for me.” But he was soon dictating the terms of the plot himself. And if Merlino was predisposed to committing the crime, then the other men he recruited lose any claim that they were entrapped.

All of them, that is, except Turner. Of Merlino's three coconspirators, Turner is the only one who could say that the FBI directly targeted him because of his suspected role in the Gardner robbery. He could also say he was coerced to participate, since Romano pushed Merlino to get in touch with him. (In legal terms, this is called “vicarious entrapment” — when a government agent directs an unwitting intermediary to put pressure on a third party to commit a crime.) As for whether he would have committed the crime on his own, without a nudge from the FBI, the evidence is split.

In addition to the fact that he had not said anything incriminating on the tapes, Turner could point out that he had never actually been convicted of any serious crimes. His previous convictions include only drug and a few gun charges. And he had a good job at the time he was recruited, working construction on the Big Dig. He'd just bought a plot of land in Canton and was building a house. Whatever he had done in the past, it didn't appear that he was looking for trouble — until an insistent friend kept dangling a $50 million score before his eyes.

At trial, however, prosecutors argued that Romano was hardly hell-bent on recruiting Turner — on tape, he told Merlino only that they would need more guys, and asked several times whether he'd been able to reach Turner. That, they argued, was hardly coercion. “This isn't a case done as a means to an end,” assistant U.S. attorney James Lang told the Boston Herald. “The government didn't bring a hand grenade, five pistols, assault rifles, walkie-talkies, and masks to an armored car depot.” And that's where Turner's argument falls apart, say prosecutors. The agency didn't stash Turner's car with enough firepower to start a small army. He did.

In a small victory for Turner, the judge did give the jury instructions to consider his “vicarious entrapment” defense. But the jury apparently was uninterested. Three jurors in the case, reached separately, all say that they barely considered entrapment in their deliberations. “I felt the Gardner had nothing to do with it,” says one, who asked not to be identified. “I believe that the other jurors didn't either.”

Billy Merlino's mother broke down crying after she heard the verdict read in court on October 24, 2001. All four men, guilty. Carmello Merlino got 47 years. Stephen Rossetti, 51 years, 10 months. Billy Merlino got 13 years, 4 months. But Turner's sentencing hearing has been delayed twice, as his lawyer fights to get him a new trial. It turns out that even with all the evidence introduced in court, the FBI kept some to itself — evidence that suggests its agents were more interested in Turner than they let on. Evidence about a character known as the “Fat Man.”

The group that would walk through the door at TRC Auto Electric on any given day could put The Sopranos' Bada Bing to shame. If there was a Big Pussy character among them, it had to be the corpulent Richard “Fat Richie” Chicofsky. An FBI informant since the 1960s, he had been recruited by Paul Rico, the same agent who cultivated Whitey Bulger and now faces trial for helping him murder an Oklahoma businessman. In the late 1990s, however, Fat Richie was assigned to Special Agent Neil Cronin, who he was helping with the investigation into the Gardner Museum robbery.

It was a period of hope for the retrieval of the paintings. The Boston Herald ran stories almost weekly about the negotiations with Myles Connor and William Youngworth III. After those public negotiations had failed, however, far more private discussions were taking place at TRC Auto Electric. According to FBI informant reports, Chicofsky was talking constantly to Merlino about returning the paintings, even bringing him a contract that specified when and where the booty would be handed over.

In fact, while Romano was gathering information for the FBI about the Loomis, Fargo robbery, he was noting the comings and goings of Fat Richie, unaware that he, too, was an FBI informant. And Merlino wasn't the only one Chicofsky suspected of having knowledge of the Gardner crime. According to reports filed in court, he told agents he believed that Turner was one of the people who actually stole the paintings, and that Turner would collect a portion of the reward money for their return. Once, Chicofsky even met with Turner. “Would you be willing to do something with me, work with me?” Turner allegedly asked Chicofsky. Chicofsky, the report says, “was 100 percent sure Turner was referring to the return of the Gardner Museum paintings.” None of this was revealed at Turner's trial, even though the defense had asked for all documents that named Turner or Merlino in connection with the Gardner robbery and even though it refutes the agents' assertions that they had no specific information linking Turner to the paintings. “The government had possession of the very evidence that was requested by the defendant pretrial and that would have supported his defense, but they failed to disclose that evidence,” Turner's lawyer Robert Goldstein argued in papers filed in court.

The FBI blamed a faulty indexing system for its failure to reveal the “Fat Man” reports. Besides, the agents added, FBI policies compelled them to protect the identity of an active informant, a point Turner's lawyer finds preposterous. “FBI institutional guidelines do not trump a person's constitutional right to have evidence brought forward that could exonerate him,” Goldstein says. Put on the stand in a hearing after the trial, Special Agent Nadolski struggled to explain the omission. “Would you ever testify falsely or misleadingly to protect the identity of an informant?” Goldstein asked him. “No,” Nadolski said. But Goldstein reminded the agent of his testimony during trial that the FBI was getting information that Merlino had access to the paintings only through Romano. Goldstein asked, “That's not true, is it?” Nadolski said nothing for several seconds. “No,” he finally said, “I would have to say that we were also getting that information through Chicofsky.” Goldstein pounced. “So you failed to disclose the fact that there was, in fact, another confidential informant?” “I did not talk about Chicofsky.” After that admission, the defense tried to put Chicofsky himself on the stand, but the Fat Man refused to testify. The judge let him off, saying, “It is doubtful that the failure of the government to produce the Chicofsky . . . reports prior to trial, while lamentable, in any way prejudiced Turner's right to a fair trial.” The judge's reasoning was, in effect, that while they may have provided more evidence that Turner had been directly targeted by The Dutch Room in the Isabella Stewart Gardner Museum is an eerie place. No impressionist flowers or ballerinas here: The portraits are as dark and heavy as the furniture. “Bloody Mary” Tudor glowers with pursed lips of accusation. The enigmatic face of Van Dyck's A Lady with a Rose — the so-called “Gardner Mona Lisa” — seems to conceal more than it reveals. And a self-portrait of Rembrandt stares with eyes like black marbles at the opposite wall, where only the backdrop of a faded tapestry fills a golden frame carrying his name.

The question comes up on practically every tour. This afternoon, a heavyset woman with a southern accent and a rainbow tie-dyed T-shirt asks it. Why are those frames empty? The guide explains that Mrs. Gardner left strict instructions in her will that nothing in the museum could be moved, or the entire collection would be sold. So when two thieves disguised as police officers broke into the museum at 2 a.m. after St. Patrick's Day 1990 and cut several paintings out of their frames, the frames were left hanging in place. “Thankfully,” says the tour guide, “she didn't stipulate anything about art being stolen.” Among the pieces lifted were Vermeer's The Concert, Rembrandt's The Storm on the Sea of Galilee, and a later Rembrandt self-portrait. Together, the 13 works are now worth an estimated $500 million — making the heist, some say, the largest art theft in history. Any hopes of speedily recovering the artwork were dashed in a twisting investigation littered with colorful suspects. There was Myles Connor, an art thief convicted for shooting at a police officer. There was William Youngworth III, an antiques dealer and sometime car thief. Then there was Carmello Merlino, a career criminal who robbed a Brinks truck in 1968, and more recently ran a million-dollar cocaine ring out of the auto repair shop he managed in Dorchester — TRC Auto Electric.

Into this cast stumbled an oily lowlife named Anthony Romano, whose rap sheet reads like the U.S. Criminal Code. Then a 40-year-old car mechanic, he'd been convicted several times for assault and armed robbery, among other crimes. In court he freely admitted having been a heroin addict for most of his life. In short, he was a perfect FBI informant.

Romano called the feds when he was serving time in Concord, New Hampshire. He claimed to have a bead on some books stolen from the Adams Historical Museum in Quincy, and, sure enough, the tip panned out, the museum got back its books, and Romano got parole. So when in the fall of 1997 he called again with some information on the infamous Gardner Museum robbery, he earned a meeting with Neil Cronin, the FBI's lead agent on the case. Romano explained that a fellow convict, Carmello Merlino, had talked about the paintings as if he knew where they were. He mentioned another suspect, too: a guy in Merlino's crew by the name of David Turner.

Coincidentally, Romano had called his old friend Merlino after getting out of jail — completely on his own initiative, he says — and got a job at TRC as a mechanic. For a few hours every morning, the two worked alone, bullshitting about lottery tickets, teenage girls, and rumors of potential scores. It was then, Romano says, that Merlino asked him if he knew anyone “clean” who might be willing to get a job at an armored car drop-off. “What are you looking at, anyways?” Romano asked. “The joint in Easton,” answered Merlino. Romano knew the spot. The Loomis, Fargo depot in Easton seemed the perfect score. It was in a quiet, rural area mostly ignored by police, and was rumored to hold up to $50 million. Or so Romano told David Nadolski, of the FBI's Bank Robbery Task Force, who he says he promptly called to report Merlino's plan. For the next year, Romano continued working double shifts as a mechanic for TRC and as an informant for the FBI. At the same time, the FBI was negotiating with Merlino for return of the paintings. Agent Cronin visited him three times, twice with Nadolski in tow, but was unsuccessful in securing the booty. Then, in the fall of 1998, Nadolski asked his informant, Romano, a question: Would he wear a wire to secretly tape conversations with Merlino about the Loomis robbery?

The day after Thanksgiving that year, Romano told Merlino that a “gambling fucking degenerate” he knew had gotten a job as a guard at the depot and would let them past the door. Over the next few weeks, Romano insisted the robbery would be a breeze. The vault was always open, he told Merlino, and there were few alarms. As the plan came together, Merlino said he'd recruit his nephew Billy as the getaway driver, and they would all split the cash. Romano didn't think that would be enough manpower. “You gotta have five or six guys,” he said. “You're gonna have to have a fuckin' donkey chain lugging them fuckin' bags.” It's unclear who first raised David Turner's name — that conversation occurred off tape — but once Turner's name had surfaced, Romano asked Merlino several times about his attempts to reach him. Merlino complained that Turner wasn't answering his pages until, finally, in early January, he said angrily: “I'll call him once more today, and that will be the end of it.” The next day, Merlino had good news: Turner had called back.

David Turner grew up in a middle-class neighborhood in Braintree and worked side-by-side with his father to fix up a tired house on Sagamore Street. Then one day when he was 13, he found his father lying on the floor, dead of a heart attack. “David was devastated for months,” says Joan Moran, a former neighbor. “He became very shy and very withdrawn.” It wasn't until high school that he blossomed. He was nicknamed “crackerjack” because he seemed to excel at everything. “Whatever he did, he was the best at it,” says Chris Ruggiero, a longtime friend of Turner. Voted “most unique” in the high school yearbook, Turner was a star on the football and basketball teams, and well liked by teachers, coaches, and girls.

He also attracted some less savory admirers. At night in the park near his home, he hung out with Charles Pappas, a neighborhood kid who had also recently lost his father — a drug dealer, shot dead in Chinatown in 1981. When Turner and Pappas ventured into Kenmore Square, Pappas would tap his connections to get them into the clubs. Turner's friends say that's where their mischief stopped. But police say Pappas introduced Turner to Carmello Merlino and the two became “right-hand men” in his drug empire, selling cocaine at area motels.

Try as they might, however, police couldn't get the goods on Turner. In 1985, Pappas and Turner were charged, but acquitted, of murdering a gay New Bedford social worker who allegedly offered them a ride from Provincetown. Six years later, Turner was charged with a daring robbery of nearly $50,000 from two safes at Boston's Bull & Finch Pub, better known as the inspiration for the Cheers TV show — but again a jury found him innocent.

Even more chilling, in 1990 two hoodlums burst into a Canton home, handcuffed a woman to the stairway with a gun to her head, and stole $130,000 in cash and jewelry. The woman, Andrea Freedman, identified Turner as the man who held the gun and agreed to testify. Pappas, too, agreed to testify against Turner. But Charlie Pappas died in a hail of bullets in Braintree a few weeks before the trial. Turner's alleged accomplice turned up dead in the trunk of a car in East Boston, at which point Freedman and her boyfriend changed their minds about testifying. Turner walked. Friends say rumors of Turner's exploits are nothing more than guilt by association. “When Charlie started hanging out with us, that's when all these bad accusations came to be,” says his friend Ruggiero. He confirms that Pappas introduced them to Merlino and his crew, but says they were merely casual acquaintances. “We used to stop there on a summer day,” he says, “and listen to the old-timers and their stories. That would be the extent of it.”

A 1996 Boston Globe story offered a different opinion, calling Turner “the Teflon gangster of the South Shore” for his ability to squirm out of convictions. With Merlino scheduled to be released from jail the following year, the article went on to say: “Police have a hunch the two men might revive their working relationship.” None of the diners at the Bickford's underneath the Southeast Expressway in Dorchester on January 28, 1999, were aware of the conspiracy in their midst. Silverware clinked as families and elderly couples finished off southwestern scrambles and fisherman's platters, paying little attention to the four men hunched over coffee at a green Formica tabletop.

Merlino was worried about the guards. “Just supposing whatever fuckin' freaky thing happened that these two motherfuckers or one of them can get up,” he blustered. Romano shifted in his seat, conscious of the FBI wire hidden underneath his denim jacket and jeans. “He's not gonna get up,” said a shifty-looking guy in a dark shirt and tan vest. “I'll make sure these guys are secured.” This was Stephen Rossetti, a wiseguy who had robbed an armored car in Revere in 1982. The guards, Rossetti explained, could be tied with nooses that would tighten if they moved. That was enough to ensnare Rossetti in the conspiracy. Wearing a red jacket, David Turner sat quietly, listening to Merlino and Rossetti brag about their scores. He added only a few words, saying that the cops would know something was up if he and Merlino were seen together, and that during robberies “a half-hour feels like three hours.”

Prosecutors later tried to use those words to prove that Turner had taken part in schemes like this before — and so wouldn't have blinked at taking part in this one. Merlino had said as much several times on tape, calling him a “veteran” who was “good with” guns. But those statements were hearsay. Prosecutors needed more to prove that Turner walked willingly into the Loomis robbery and that this wasn't what his lawyer claimed it was: entrapment.

It's one of the first rules of law enforcement: Police can't perpetrate crimes in order to catch criminals. That's why the cops on TV don't sleep with prostitutes or deal coke on street corners. In reality, of course, it's never that simple. To prove entrapment in court, a defendant must show that he was targeted (someone wanted him to do it), coerced (somebody pressured him to do it), and not predisposed (he wouldn't have done it if somebody hadn't encouraged him). That's why entrapment defenses almost always fail. The bar is set too high. But this case seemed to have all the necessary pieces. The FBI confirmed to lawyers that Merlino and Turner had been targeted as suspects in the Gardner robbery since 1992. The FBI's Cronin, during questioning, even admitted that he believed that if Turner was facing heavy charges, he could provide information on the Gardner robbery — though he later said at trial he didn't have “any information at that point indicating that David Turner had access to the paintings.”

But Merlino's defense weakens under the weight of a year's worth of informant reports saying that the repair shop manager was cajoling his subordinate Romano to find him a “clean” insider at the armored car facility. When Romano finally said he had the insider, Merlino did initially balk at the plan, saying, “It ain't for me.” But he was soon dictating the terms of the plot himself. And if Merlino was predisposed to committing the crime, then the other men he recruited lose any claim that they were entrapped. All of them, that is, except Turner. Of Merlino's three coconspirators, Turner is the only one who could say that the FBI directly targeted him because of his suspected role in the Gardner robbery. He could also say he was coerced to participate, since Romano pushed Merlino to get in touch with him. (In legal terms, this is called “vicarious entrapment” — when a government agent directs an unwitting intermediary to put pressure on a third party to commit a crime.) As for whether he would have committed the crime on his own, without a nudge from the FBI, the evidence is split.

In addition to the fact that he had not said anything incriminating on the tapes, Turner could point out that he had never actually been convicted of any serious crimes. His previous convictions include only drug and a few gun charges. And he had a good job at the time he was recruited, working construction on the Big Dig. He'd just bought a plot of land in Canton and was building a house. Whatever he had done in the past, it didn't appear that he was looking for trouble — until an insistent friend kept dangling a $50 million score before his eyes.

At trial, however, prosecutors argued that Romano was hardly hell-bent on recruiting Turner — on tape, he told Merlino only that they would need more guys, and asked several times whether he'd been able to reach Turner. That, they argued, was hardly coercion. “This isn't a case done as a means to an end,” assistant U.S. attorney James Lang told the Boston Herald. “The government didn't bring a hand grenade, five pistols, assault rifles, walkie-talkies, and masks to an armored car depot.” And that's where Turner's argument falls apart, say prosecutors. The agency didn't stash Turner's car with enough firepower to start a small army. He did.

In a small victory for Turner, the judge did give the jury instructions to consider his “vicarious entrapment” defense. But the jury apparently was uninterested. Three jurors in the case, reached separately, all say that they barely considered entrapment in their deliberations. “I felt the Gardner had nothing to do with it,” says one, who asked not to be identified. “I believe that the other jurors didn't either.” Billy Merlino's mother broke down crying after she heard the verdict read in court on October 24, 2001. All four men, guilty. Carmello Merlino got 47 years. Stephen Rossetti, 51 years, 10 months. Billy Merlino got 13 years, 4 months. But Turner's sentencing hearing has been delayed twice, as his lawyer fights to get him a new trial. It turns out that even with all the evidence introduced in court, the FBI kept some to itself — evidence that suggests its agents were more interested in Turner than they let on. Evidence about a character known as the “Fat Man.”

The group that would walk through the door at TRC Auto Electric on any given day could put The Sopranos' Bada Bing to shame. If there was a Big Pussy character among them, it had to be the corpulent Richard “Fat Richie” Chicofsky. An FBI informant since the 1960s, he had been recruited by Paul Rico, the same agent who cultivated Whitey Bulger and now faces trial for helping him murder an Oklahoma businessman. In the late 1990s, however, Fat Richie was assigned to Special Agent Neil Cronin, who he was helping with the investigation into the Gardner Museum robbery. It was a period of hope for the retrieval of the paintings. The Boston Herald ran stories almost weekly about the negotiations with Myles Connor and William Youngworth III. After those public negotiations had failed, however, far more private discussions were taking place at TRC Auto Electric. According to FBI informant reports, Chicofsky was talking constantly to Merlino about returning the paintings, even bringing him a contract that specified when and where the booty would be handed over.

In fact, while Romano was gathering information for the FBI about the Loomis, Fargo robbery, he was noting the comings and goings of Fat Richie, unaware that he, too, was an FBI informant. And Merlino wasn't the only one Chicofsky suspected of having knowledge of the Gardner crime. According to reports filed in court, he told agents he believed that Turner was one of the people who actually stole the paintings, and that Turner would collect a portion of the reward money for their return. Once, Chicofsky even met with Turner.

“Would you be willing to do something with me, work with me?” Turner allegedly asked Chicofsky. Chicofsky, the report says, “was 100 percent sure Turner was referring to the return of the Gardner Museum paintings.” None of this was revealed at Turner's trial, even though the defense had asked for all documents that named Turner or Merlino in connection with the Gardner robbery and even though it refutes the agents' assertions that they had no specific information linking Turner to the paintings. “The government had possession of the very evidence that was requested by the defendant pretrial and that would have supported his defense, but they failed to disclose that evidence,” Turner's lawyer Robert Goldstein argued in papers filed in court.

The FBI blamed a faulty indexing system for its failure to reveal the “Fat Man” reports. Besides, the agents added, FBI policies compelled them to protect the identity of an active informant, a point Turner's lawyer finds preposterous. “FBI institutional guidelines do not trump a person's constitutional right to have evidence brought forward that could exonerate him,” Goldstein says. Put on the stand in a hearing after the trial, Special Agent Nadolski struggled to explain the omission. “Would you ever testify falsely or misleadingly to protect the identity of an informant?” Goldstein asked him. “No,” Nadolski said. But Goldstein reminded the agent of his testimony during trial that the FBI was getting information that Merlino had access to the paintings only through Romano. Goldstein asked, “That's not true, is it?” Nadolski said nothing for several seconds. “No,” he finally said, “I would have to say that we were also getting that information through Chicofsky.” Goldstein pounced. “So you failed to disclose the fact that there was, in fact, another confidential informant?” “I did not talk about Chicofsky.” After that admission, the defense tried to put Chicofsky himself on the stand, but the Fat Man refused to testify. The judge let him off, saying, “It is doubtful that the failure of the government to produce the Chicofsky . . . reports prior to trial, while lamentable, in any way prejudiced Turner's right to a fair trial.” The judge's reasoning was, in effect, that while they may have provided more evidence that Turner had been directly targeted by the FBI, the reports wouldn't provide any new evidence about Turner's predisposition to commit the crime. The three jury members interviewed agreed. When told of the new information about Chicofsky, all three speculated that it wouldn't have changed their verdict.

The revelation does, however, provide another example of the Boston FBI's coddling of informants that goes beyond the case of Whitey Bulger. In congressional hearings on the subject last year, witnesses offered up damning testimony of what Congressman and former U.S. Attorney Bill Delahunt called the Boston bureau's ongoing “culture of concealment.” Even while those hearings were being held in Washington, it was apparently business as usual back in Boston.

FBI special agent Neil Cronin was killed in September, not by a gun-toting thug, but by a tractor-trailer that collided with his Toyota Camry while he was driving on I-495 in Wrentham. The next day, September 4, David Turner's sentencing was again postponed. The judge is set to deliver a ruling on Turner's latest motion for a new trial this month. Turner's lawyer says that however unsavory his client may seem, he still deserves a trial based on all available evidence. “Today it could be David Turner; tomorrow it could be someone else,” Goldstein says. “When people stop playing by the rules, the system breaks down.” Convincing a judge that Turner was merely an innocent pawn caught up in an FBI sting, however, will be difficult. A car filled with loaded guns heading to the scene of an imminent $50 million heist is a hard image to shake. Cronin's death, meanwhile, is a major setback to the Gardner investigation — but not the end of it. Another agent will pick up the trail, untangling a web of suspects with two fewer strands to consider. Some day, perhaps soon, that agent may succeed where others have failed in recovering the stolen Rembrandts and the Vermeer. Until then, the frames will hang empty in the Dutch Room. As the tour guide tells the woman in the rainbow tie-dyed shirt: “In some ways [the frames on the walls are] a tribute to the paintings coming back. But now it's getting on from the event, and they still don't have any idea who did the deed.”