District fire chief acquitted in Boston pension fraud case

Mike Bello talks about the acquittal of Boston District Fire Chief James Famolare of pension fraud. (Alan Miller/Globe Staff)

A Boston district fire chief was acquitted today in federal court of pension fraud, the second firefighter to be vindicated in the pension scandal that rocked the department.

The case against retired District Fire Chief James Famolare was dismissed before it even went to the jury, with US District Court Senior Judge Edward F. Harrington ruling from the bench that there was insufficient evidence for a jury to find the defendant guilty.

"In light of all the evidence and in the light most favorable to the Government, the Court concludes that no rational jury could find the defendant guilty of a scheme to defraud beyond a reasonable doubt," Harrington wrote in his ruling.

Harrington, at the same time, lambasted the disability pension system, saying the department's physical standards were so tough and inflexible they rendered "almost every elderly fireman eligible for a disability retirement."

"This system is patently flawed and abuses the taxpayers of the City of Boston. It should not be allowed to continue in its present form. The United States Government deserves great credit for exposing this travesty of a disability system to public scrutiny," Harrington wrote.

Famolare, 67, who has been joined by his wife and two sons and other family members since the trial began Monday, was elated, his attorney said.

"He had a long, and honorable career," said his attorney, Thomas Drechsler. "This put a cloud over him, but he's glad it's been removed."

Federal prosecutors said they were disappointed. "After four days of trial, we believe the jury should have had the opportunity to come to its own conclusion about the evidence. These are difficult investigations and prosecutions, but today's dismissal will not deter us from exposing fraud that is committed against our public institutions," US Attorney Carmen M. Ortiz said in a statement.

It was the second acquittal of a Boston firefighter in the pension scandal. A federal jury acquitted former firefighter Albert Arroyo in August. Arroyo's case made headlines because Arroyo was a bodybuilder and pictures had surfaced of him flexing his muscles in a competition six weeks after he had filed for disability retirement in 2008.

Famolare was indicted in 2009 on six counts of pension fraud by mail fraud for allegedly conspiring to retire on disability at a pay scale higher than his regular pay. He had claimed he injured his back while picking up boxes while temporarily serving as a deputy fire chief in 2007. Under his union contract, he sought to retire on disability at the higher deputy chief scale, at 72 percent of that pay tax-free.

Under a normal pension, he would have received 80 percent of his district chief pay and would have had to pay taxes.

Famolare became embroiled in a pension scandal that rocked the department after a series of Globe stories highlighted several questionable pensions. Famolare eventually withdrew his application for the disability pension and instead went on regular pension, which he was eligible for after serving 37 years on the department.

Drechsler said today that Famolare never had any intent to commit fraud. He went through the typical review process, and three doctors agreed that he was "permanently and totally disabled," the attorney said. One of those doctors could not conclude that the disability was the result of any strain from picking up the boxes, but the other two said it was.

Drechsler said he sought the dismissal of the charges for lack of criminal intent, noting Famolare went through the proper process and that independent doctors agreed with him. The judge's ruling sided with that notion.

"I strongly felt the matter was insufficient as a rule of law," Drechsler said. "I argued there was no fraudulent intent or pretense, and the government could not overcome that as a rule of law."

Drechsler added, "My client is very relieved. He and his family are very pleased, and he is looking forward to resuming his life."

Martin Finucane of the Globe staff contributed to this report.

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