A New York man who left a graphic death threat on the voicemail of the federal judge handling the high-profile criminal case against former Trump national security adviser Michael Flynn was sentenced Monday to 18 months in prison.
Frank Caporusso, 53, received the sentence during a hearing in federal court where the disturbing message was played aloud at the request of the judge who received it last May, Emmet Sullivan.
U.S. District Court Judge Trevor McFadden called the threat “heinous,” but said later he was “convinced” that Caporusso never actually planned to carry it out.
Still, McFadden said the threat itself caused significant harm to Sullivan and his staff and heightened the sense of danger felt by many federal judges amid a sharp spike in threats, as well as the shooting attack last year at the home of a federal judge in New Jersey. That assault left her son dead and her husband seriously wounded.
“Judicial robes aren’t bulletproof,” McFadden said.
McFadden said Caporusso’s threat was particularly outrageous because he specifically discussed plans to kill Sullivan’s staff. McFadden said the law clerks who work with federal judges are typically young lawyers who lack the limited protections judges have.
“They don’t have security systems in their apartments. They don’t have federal marshals guarding them,” said McFadden. “Your threat was despicable and it was calculated to instill a maximum amount of fear.”
As part of a plea deal with prosecutors, Caporusso admitted leaving the message on the voicemail of Sullivan’s chambers last year days after the Justice Department made a surprising move to drop the false-statement case Special Counsel Robert Mueller’s office filed against Flynn in 2017.
At the time of the call, Sullivan had recently indicated that he wouldn’t immediately drop the case and wanted a former federal judge to submit arguments on why the Justice Department’s filing might not require such a dismissal.
McFadden said it was clear Caporusso's threat was an attempt to affect Sullivan's decisions on the Flynn case. “It was intended to subvert the criminal justice system by intimidating him from a high-profile case,” McFadden said.
Assistant U.S. Attorney Rachel Fletcher described Caporusso’s threat as “frankly chilling.”
Moments earlier, Caporusso’s gravelly voice could be heard as the recording played on her laptop near a courtroom microphone.
“We are professionals. We are trained military people. We will be on rooftops. You will not be safe. A hot piece of lead will cut through your skull. You bastard. You will be killed, and I don’t give a f— who you are,” Caporusso said in the message left on the line in Sullivan’s chambers on May 14, 2020. “Back out of this bulls— before it’s too late, or we'll start cutting down your staff. This is not a threat. This is a promise.”
Caporusso also acknowledged that he called Sullivan’s chambers multiple other times on the same day and at least twice the following day.
In a statement Fletcher read to the court, Sullivan said the threat had a major impact on his life.
“The defendant before you threatened to murder me because he disagreed with my judicial decisions,” Sullivan said. “I feel fear now even though the defendant is in custody.”
Sullivan said he made major changes to his routine, dramatically curtailing both his social and professional engagements. “My sons took certain steps to enhance my security,” the judge said, without going into details.
Caporusso, clad in an orange jumpsuit from the Central Virginia Regional Jail, rose to address the court toward the end of the hour-long hearing and express “great remorse.” He said he suffered a serious injury last year, became addicted to opioids, then turned to alcohol prior to leaving the threat.
“I was not thinking well or doing well at that time,” Caporusso said. “I shudder to think that those words could actually come from me. … I humbly apologize to Judge Sullivan, his staff and their families.”
Defense attorney David Benowitz also said that when he and another attorney played the audio of the message for Caporusso, he seemed crushed by what he had done. “He looked like he had been hit over the head with an anvil,” the defense lawyer said.
Benowitz also argued that Caporusso fell victim to the “supercharged political climate” — an apparent reference to former President Donald Trump's frequent public criticism of Sullivan and the overall prosecution against Flynn.
Benowitz asked that Caporusso be sentenced to time served — the nearly 11 months he has spent in pretrial detention since his arrest last August. However, McFadden said he did not think that was adequate punishment. He sided with the prosecution, which recommended an 18-month sentence. McFadden also imposed two years of probation.
Under federal prison policies, Caporusso could be out in about four or five months.
Caporusso’s defense made no attempt to change the venue in the case or to seek an out-of-town judge, even though McFadden and Sullivan work in the same courthouse on a daily basis — or did prior to the pandemic.
However, McFadden offered a spontaneous assurance during Monday’s hearing that he was not being influenced by any pressure from Sullivan. “To be clear, he and I have never spoken about this case,” said McFadden. “He is a patriot. He did not deserve this and he certainly does not deserve to live in fear over your actions.”
For his part, Sullivan suggested no specific sentence in the statement he submitted to the court.
After a delay while Flynn’s lawyers pursued a petition at an appeals court, Sullivan finally held a hearing last September on the Justice Department’s unusual motion to dismiss the case against Flynn despite the fact he had already pleaded guilty. The judge’s decision was still pending when Trump issued Flynn a full and unconditional pardon about two weeks after the presidential election last November. Sullivan dismissed the case the following month.
One somewhat unusual aspect of the sentencing hearing was that neither Fletcher nor Benowitz referred to Sullivan by name, describing him simply as the judge who was the victim in the case, although details of Sullivan's background in the statement she read made his identity unmistakable. Caporusso was the first to mention Sullivan aloud by referencing him in his apology to the court. Then, as he imposed the sentence, McFadden also made several references to Sullivan by name.
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