Citing ‘speech in debate’ clause, Martineau seeks early release from federal prison

By JIM BARON

PROVIDENCE — Just a week shy of one year since he began serving a 37-month sentence for mail fraud in the federal prison at Fort Dix, N.J., former Woonsocket State Rep. Gerard Martineau is asking to be set free.

Martineau is not trying to overturn his conviction or clear his name, only to be let out of jail. If his motion in U.S. District Court is successful, Martineau could be released at once. The U.S. Attorney must respond to the motion by March 23.
Invoking the “speech in debate” defense used successfully by former Senate President William Irons in state court to avoid facing RI Ethics Commission charges, the former Majority Leader of the House of Representatives presents a “nearly identically situated fact pattern.
“The actions of the defendant herein are so on point to the Irons case, it would be difficult to distinguish them on any level,” Martineau wrote in an 8-page memorandum that accompanied his motion. He notes that the issue in his case and Irons,’ the issue was their legislative action on a Pharmacy Freedom of Choice Bill in the late 1990s and early 2000s and states, “Of further coincidence is the fact that both Irons and (Martineau) had business relationships with identical pharmacy providers, CVS and Blue Cross Blue Shield (of RI).”
Irons was also a target of the FBI’s “Operation Dollar Bill” investigation into corruption in state government that netted Martineau, but he received a letter last fall from U.S. Attorney Robert Corrente saying he was no longer a target. The reason Irons ceased to be a target was never released publicly.
A Superior Court judge held that a provision in the RI Constitution called the “speech in debate” clause prevents Irons from being prosecuted for legislative
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action (there is a similar provision in the U.S. Constitution), but that ruling has been appealed to the RI Supreme Court, which is scheduled to hear arguments in the case May 23.
Martineau could not wait for that appeal to be heard because under federal law he must file for his sentence modification within one year. He filed the motion pro se, meaning on his own behalf without an attorney.
The basis for Martineau’s request for an early release involves the arcane arithmetic of federal sentencing guidelines. He claims he was sentenced to 37 months based on a sentencing guideline level of 24 minus a three-level reduction for a “net level” of 21 that was based in part on the state calculating a loss to the state of Rhode Island of just under $1 million 
Martineau argues in the memo that he “acted within the scope of his legislative duties and should be afforded the protection of the speech in debate clause. Therefore, the loss calculated to the State of Rhode Island should be reduced from $911,435.24 to Zero.” For that reason, Martineau says, the sentencing guideline should be reduced from a net 21 to 10, which would entitle him to immediate release.
He says the $911,435.24 figure was based on his total income from CVS in the years 1999-2002 and argues he would have earned that amount despite the behavior for which he was convicted. In fact, he points out, he made more money from CVS in the five years after he left the House of Representatives than he did while he was a legislator.
Martineau claims, “The government has never alleged or implied that Defendant received a bribe or quid pro quo.”
The company Martineau owned, The Upland Group, had a deal to sell paper and plastic bags to CVS and Blue Cross Blue Shield. In the case of Blue Cross, 8 million of the 10 million bags they paid for were never made. Prosecutors noted that he would bill CVS for bags (units of 1 million or 3 million for about $20,000 per million) at the start of legislative sessions.
The Woonsocket native represented a section of the city in the House of Representatives from 1987 to 2002. In 1998 he was elected Majority Leader, the number two position in the House, under then-Speaker John Harwood of Pawtucket. He pled not guilty to two counts of influencing legislation in favor of CVS and Blue Cross and began serving his sentence March 14 of last year.