$102 Million Ruling Against FBI For Violating The Law With Its Spy Program
$102 Million Ruling Against FBI For Violating The Law With Its Spy Program
TABLE OF CONTENTS
MEMORANDUM AND ORDER RE: BENCH TRIAL
July 26, 2007
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . -1-
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V. DAMAGES . . . . . . . . . . . . . . . . . . . . . . . -180-
A. Facts . . . . . . . . . . . . . . . . . . . . . . -181-
1. Limone Plaintiffs . . . . . . . . . . . . . -181-
a. Peter Limone Sr. . . . . . . . . . . . -181-
b. The Family . . . . . . . . . . . . . . -184-
2. Salvati Plaintiffs . . . . . . . . . . . . . -188-
a. Joseph Salvati . . . . . . . . . . . . -188-
b. The Family . . . . . . . . . . . . . . -189-
3. Tameleo Plaintiffs . . . . . . . . . . . . . -192-
a. Henry Tameleo . . . . . . . . . . . . . -192-
b. The Family . . . . . . . . . . . . . . -193-
4. Greco and Werner Plaintiffs . . . . . . . . -194-
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I. INTRODUCTION
the death penalty was vacated. They accused the United States,
decades.
1
In many of the early documents, including the Deegan trial transcripts
themselves, Louis Greco’s name is spelled "Lewis Grieco." I use that
alternate spelling only when quoting from those documents.
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1995.
which the law allows -- damages for their loss of liberty, for
their pain, and the pain of their loved ones. They brought this
prosecution.
far, longer than I would have wished. It has taken much more
record with special care in order that the public, and especially
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the way up to the FBI Director -- knew that Barboza would perjure
evidence in the FBI’s possession at the time -- and the FBI had
plans for the Deegan murder before it had taken place, plans that
from informants, including the very killers who were the FBI’s
And even though the FBI knew Barboza’s story was false, they
2
Barboza went by several aliases, including Joseph Baron and Joseph
Bentley. I refer to him as "Barboza" unless I am quoting from a document
where a different moniker was used.
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suborned that perjury. They met with Barboza long before the
much he lied. When Barboza told them he would not accuse the man
who had never been linked to this murder, they were undaunted.
agent Dennis Condon even told the Deegan jury that he was "always
Nor did the FBI’s misconduct stop after the plaintiffs were
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the FBI could have disclosed the truth -- the perfidy of Barboza
more and more evidence surfaced casting more and more doubt on
very men the FBI knew to be innocent. In the 1980s, Agent Rico
and his FBI handlers flourished. The FBI agents were given
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did not flinch. After all, the killers they protected -- Jimmy
LCN war. To the FBI, the plaintiffs' lives, and those of their
human being may be traded for another. Our system cherishes each
3
La Cosa Nostra, or LCN, is the way the FBI refers to the Mafia or
"Italian organized crime syndicate." See McIntyre v. United States, 447 F.
Supp. 2d 54, 58 (D. Mass. 2006). Other monikers include "The Office," the
"Italian Element," and "the Mob."
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address them. But this case goes beyond mistakes, beyond the
decisions like these rarely see the light of day. The public
officials.
these.
4
Judge Mark Wolf in United States v. Salemme, 91 F. Supp. 2d 141 (D.
Mass. 1999), rev'd in part by 225 F. 3d 78 (1st Cir. 2000), cert. denied sub
nom.; Flemmi v. United States, 531 U.S. 1170 (2001).
5
Victor Garo, Joseph Salvati’s attorney. Salvati was the first to be
freed by dint of Garo's efforts in 1997.
6
Dan Rea, reporter for CBS4 Television Stations, relentlessly pursued
the cause of Salvati's innocence.
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saying is that it was the state’s fault -- not theirs -- for not
7
Roberta Werner, Greco’s ex-wife, is Administratrix of the Estate of
Louis Greco; Saverio Tameleo, Tameleo’s son, is Administrator of the Estate of
Henry Tameleo.
8
The family members who have filed claims are: Olympia Limone, Peter
J. Limone, Jr., Paul Limone, Carolyn Limone Zenga, Janine Limone Arria,
Saverio Tameleo (on his own behalf and as Administrator of the Estate of
Jeannette Tameleo), Marie Salvati, Maria Sidman, Gail Orenberg, Sharon
Salvati, Anthony Salvati, Roberta Werner (on her own behalf and as
Administratrix of the Estate of Louis Greco Jr.), and Edward Greco. See infra
note 193 (discussing the family member claims).
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the FTCA.
they cite does not apply to the extraordinary facts of this case.
charging decisions but the framing of four innocent men, not the
plaintiffs for a crime they did not commit. They, and not the
trial. They, and not the state, vouched for Barboza to law
enforcement and to the very jury hearing the murder case, even
account.
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the damages.
was murdered. He was found with six gunshot wounds from at least
at 26. On October 25, 1967, more than two years later, six men -
began on May 27, 1968. All the defendants, including the four
9
Ronald Cassesso is also called "Ronald Cassessa" in some of the
documents. I refer to him as Cassesso unless quoting a source that provides
otherwise. See Trial Transcript ("Tr.") vol. 6, 32.
10
Each man faced slightly different charges. French and Greco were
indicted for the murder of Deegan, conspiracy to murder Deegan, and conspiracy
to murder Anthony Stathopoulos Jr., Deegan’s associate. Limone, Tameleo,
Cassesso, and Salvati were indicted as accessories before the fact to the
murder of Deegan, conspiracy to murder Deegan, and conspiracy to murder
Stathopoulos. Barboza was indicted only on the two conspiracy counts. See
Exh. 338, ¶¶ 46-48
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death penalty was imposed for Limone, Tameleo, and Greco, but was
to life in prison.
motions for a new trial. Each time they were denied relief.
the Boston office of the FBI and two of the most notorious
11
Greco was found guilty of murder in the first degree, and Limone,
Tameleo and Cassesso were found guilty as accessories before the fact. All
four were also found guilty of conspiracy to murder Deegan and Stathopoulos.
Salvati was found guilty of being an accessory after the fact. French was
found guilty of first degree murder. See Exh. 338 at ¶¶ 50-51.
12
See Commonwealth v. French, 259 N.E.2d 195 (Mass. 1970), judgments
vacated as to death penalty sub nom., Limone v. Massachusetts, 408 U.S. 936
(1972).
13
See supra note 4. Stephen Flemmi was a defendant in the Salemme
case. He was accused of racketeering and extortion, among other crimes.
Beginning in 1965, Flemmi served as a very "valuable and valued confidential
informant for the FBI" and was, in return, protected by the FBI in many ways.
Salemme, 91 F. Supp. 2d at 148-9. He claimed that his FBI "handlers" had
authorized him to engage in the criminal conduct alleged in Salemme. The
judge, after extensive hearings, and voluminous submissions, concluded that he
was not. However, the hearings, on that issue and others, disclosed the
relationships between killers Stephen Flemmi, James Bulger and the FBI over an
extended period.
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3.
The documents had been wrongly kept from the Suffolk County
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that there was a substantial likelihood that the jury would have
at trial.
agreed and filed nolle prosequis for both Limone and Salvati, the
14
The cases of Greco and Tameleo were posthumously nolle prossed by the
state several years later. See Exh. 3G; Exh. 3H.
15
Salvati’s sentence had been commuted earlier by Governor William Weld
(February 5, 1997), after he had served twenty-nine years in jail. See Exh.
340, ¶¶ 19-20.
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16
The government contested both the admissibility and the weight to be
given to this report. The plaintiffs’ sought to admit it in connection with
the public records exception to the hearsay rule, Rule 803(8), Fed. R. Evid.,
and on the authority of Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 167-68
(1988)(conclusions of JAG report about the causes of Navy airplane accident
were properly admitted). I admitted the evidence as a public record, see,
e.g., Tr. vol. 3, 72-73, leaving open the question of the weight to be given
it in my final opinion.
I have found that the House Report proceedings were, in some respects,
duplicative of the proceedings before me -- similar evidence, similar
witnesses, similar questions -- but surely not subject to the same evidentiary
rules and standards as is this Court. Indeed, the record I reviewed was
considerably more complete than the record before the House Committee. By the
time of this bench trial, the government had agreed to lift many of the
redactions to the documents.
As such, while I have admitted the Report, and have reviewed it, I have
not adopted its conclusions as my own. To the extent that evidence before the
House -- e.g. sworn testimony of government agents -- was independently
admissible under the Federal Rules of Evidence, I have considered it.
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Exh. 171.
April of 2003,17 and the Salvati plaintiffs filed their case that
This case has been litigated for five years and resulted in
Nostra. It sets the stage for the Deegan trial and the instant
17
Roberta Werner, as Administratrix of the Estates of Louis Greco and
Louis Greco Jr. filed separately from her son Edward Greco.
18
See docket entries ## 151, 216.
19
Defendant filed two motions to dismiss, resolved in Limone v. United
States ("Limone I"), 271 F. Supp. 2d 345 (D. Mass. 2003) aff’d sub nom.,
Limone v. Condon, 372 F.3d 39 (1st Cir. 2004), and Limone v. United States
("Limone II"), 336 F. Supp. 2d 18 (D. Mass. 2004), and a motion for summary
judgment, resolved in open court and through Electronic Orders dated Aug. 18,
2006 and Sept. 11, 2006. Several amended complaints have been filed by the
various plaintiffs. I held that I would allow motions to conform the
pleadings to the evidence at the close of the trial, meaning that I will treat
similarly-situated plaintiffs as bringing uniform claims.
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important was the task that the FBI was willing to enlist killers
secret that not only state law enforcement but also other
divisions within the FBI would not have access to it, and to
boss, and its "Top Echelon Criminal Informant Program" the FBI
received information not only about crimes that had taken place
but those that were about to take place. Indeed, when Barboza
everywhere.
the role of FBI agents H. Paul Rico and Dennis Condon in the
even used their conduits to get information from the defense camp
20
Vincent James "Jimmy" Flemmi ("Jimmy Flemmi") and his brother Stephen
Flemmi ("Stephen Flemmi"). Flemmi has been referred to as "Stephen Flemmi" in
the Salemme case and McIntyre v. United States, 447 F. Supp. 2d 54 (D. Mass
2006). The parties refer to him as "Stevie." I will adopt the approach of
the other cases and refer to him as "Stephen Flemmi."
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testify nonetheless.
"poster boy" for the FBI’s new witness protection program, the
linchpin for the Bureau’s and the Boston office’s most important
constant, direct access -- meeting with him before his grand jury
representative present.
evidence in the FBI's files from the Patriarca wire, through the
21
See Salemme, 91 F. Supp. 2d at 180.
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the plaintiffs in the murder, that he was lying. They knew that
kill him. They knew that they had never even heard of Salvati
before Barboza uttered his name. They knew that Greco and
rewarding him for his efforts. And they vouched for him to the
Barboza there was no case. Without the FBI there was no Barboza.
testimony was the only link to the plaintiffs. And his testimony
false. Only the FBI had the means to prove Barboza's falsity,
and they were not talking. Even when Barboza testified that "the
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The FBI's role at trial went far beyond the failure to share
only when it was inconsistent with reports the defense was likely
lied about Jimmy Flemmi, his demands upon the government, not to
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to vouch for him, just as Condon had done in the Deegan trial --
the FBI had yet another reason to suspect perjury -- Rico had
fortunate.
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Informant Program.
1. Patriarca Wire
Providence and Boston offices would send the tape recording from
the wire, along with the log created by the agents, to Special
22
In February 1961, Attorney General Robert F. Kennedy sent a list of
top echelon racketeers to the Commissioner of the IRS for targeting.
Patriarca was the only individual on the list with his base of operations in
New England. See Exh. 7. The FBI Director wrote to the Special Agent in
Charge ("SAC") of the Boston office on March 12, 1962, emphasizing the
priority of the program -- "[t]his case is to continue to receive full time
attention and every effort must be made on a daily basis to develop any
criminal violation which Patriarca is committing or has committed with [sic[
any relevant statute of limitations period." Exh. 10.
23
An airtel is an inter-FBI teletype sent by air mail between local FBI
offices and headquarters in Washington, D.C. See United States v.
Taglianetti, 274 F. Supp. 220, 223 (D.R.I. 1967) (describing the history of
that surveillance); Exh. 339.
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Boston office from 1962 to 1971. See Exh. 193A at 29; Exh. 341.24
The FBI made every effort to keep the fact of the wire
24
During the relevant period, Rico and Condon were special agents in
the Boston office, assigned to the Organized Crime Squad. Kehoe was their
immediate supervisor (Supervisory Special Agent) from 1962 to 1971. James L.
Handley ("Handley") was the Special Agent in Charge ("SAC") of the Boston
office from 1964 to 1973. See Exh. 341.
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not only meant that its existence would be kept secret from the
25
Hoover described the program in a signed memorandum: "To insure that
the Bureau meets its responsibilities in connection with the Criminal
Intelligence Program, it is mandatory that the development of quality criminal
informants be emphasized and the existing program be implemented and greatly
expanded." Exh. 8B at 3.
The Boston office was not among the eleven offices originally required
to participate in the program as of June 1961. See Exh. 8B. However, Hoover
also stated, "[e]very office is being advised of this program since in the
future it may be appropriate to expand it to include additional offices."
Exh. 8B at 8. Massachusetts soon became part of that expansion. SA Rico was
assigned exclusively to the development of the Top Echelon Informant Program.
Condon was his partner. See supra Section III.B.1.
26
"Informants of this type should be developed not only to obtain new
cases for prosecution but for utilization on a long range basis in order to
provide continuous intelligence information concerning organized crime." Exh.
8A.
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This was not just any old tip related by unnamed informants on an
27
No dissemination of information could be made unless the informant
was "fully protected." See Exh. 8B at 8.
28
Exhibit 11, a letter from Washington to the FBI SACs, dated April 10,
1962, noted:
Indeed, that policy continued to the present, and affected the very
trial of this case. The attorneys representing the government were not
permitted access to unredacted documents even though they were obliged to
certify that all relevant information had been turned over under Rule 26, Fed.
R. Civ. Pro. That charade ended when I ordered that lawyers with an
appearance in this case had to have access to all of the information in
unredacted form. See Tr. vol. 5, 11.
29
Condon described it as the "most informative microphone coverage . .
. up to that date, and not only on a local basis, but on a national basis."
Exh. 193A at 19.
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good.
Rico was in the FBI from February 26, 1951, to May 27, 1975.
Condon was in the FBI from January 29, 1951, to May 20,
30
The Racketeering Influenced and Corrupt Organizations Act ("RICO")
was not passed until 1970. See Organized Crime Control Act of 1970, Pub. L.
No. 91-452, 84 Stat. 922 (Oct. 1970) (codified at 18 U.S.C. § 1961 et seq.).
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organized crime, including the Patriarca wire and the Top Echelon
even after Rico moved to Miami. See Exh. 170 at 205; Exh. 192 at
176.
By the time of the instant trial, Rico had died; Condon was
31
The government objected to the admission of this testimony as
hearsay, arguing that, since Rico and Condon were no longer agents of the
government at the time of their testimony, their statements were not
admissions under Fed. R. Evid. 801(d)(2)(D)
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was not able to see these witnesses, I was able to evaluate their
To the extent that Rico’s and Condon’s statements are used not to
establish the truth of their statements, but to show their knowledge of or
belief in what they testified to, they are obviously not hearsay at all. Fed.
R. Evid. 801(c); see, e.g., Ramirez Rodriguez v. Boehringer Ingelheim Pharms.,
Inc., 425 F.3d 67, 76-77 (1st Cir. 2005).
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turn, was close to Barboza. The FBI used the relationships among
the three to get Barboza to testify, and turned a blind eye when
murder. Indeed, the agents were praised and promoted for their
III.D.1.
a. Jimmy Flemmi
see Exh. 19A, the FBI -- and in particular, agent Condon -- had
32
For example, the following facts were reported to the FBI:
May 22, 1964: Condon learned from an informant that Jimmy Flemmi told
him "all [Flemmi] wants to do is kill people, and that it is better than
hitting banks." That same month a letter from the Boston office to the
Director indicated that an informant reported Jimmy Flemmi would probably
become the "contract man" in the Boston area.
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activities, the FBI targeted him for the Top Echelon program
three days before the Deegan murder. Indeed, on the very day of
the Deegan murder, March 12, 1965, Jimmy Flemmi was assigned to
Agent Rico as a Top Echelon informant. See Exh. 19A; Exh. 19B;
cut off his head; when Barboza approached Flemmi with the information, Flemmi
replied that he had heard the same about Barboza.
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Jimmy Flemmi's victims did not matter to the FBI. All that
mattered was that Flemmi "has been in contact with RAYMOND L.S.
at 3.
whose name and signatures are all over the Jimmy Flemmi
34
The list also included Frank Benjamin, John Murray, George Ashe,
Joseph Francione, "Iggy" Lowry, and a fellow inmate at MCI Walpole.
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documents, see, e.g., Exh. 38, Exh. 19A, Exh. 19B, Exh. 44, lied
221. Condon, he insisted, may have been the one to open Jimmy
b. Stephen Flemmi
See Exh. 50B.35 Stephen Flemmi was assigned to Rico, see Exh. 166
criminal informant). See Exh. 304; Exh. 192 at 176; Exh. 177 at
35
His final designation as a Top Echelon informant was made in a report
from Boston to the Director on February 8, 1967. See Exh. 61B.
36
Stephen Flemmi was given the informant symbol number "B-955-C-TE."
See Tr. vol. 8, 87.
37
Baione was also known as Illario Zannino. See Salemme, 191 F. Supp.
2d at 141.
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even available "to other field divisions." Exh. 61B. Nor was
Stephen Flemmi was rewarded not only with money, see Exh.
67, but, according to Flemmi, agent Rico and others39 promised him
Exh. 189 at 62-63; Exh. 192 at 157.40 Flemmi testified (in the
McIntyre case) that in 1969 Rico tipped him off that he was about
See Exh. 189 at 71-72. Flemmi further testified that even while
38
Stephen Flemmi was reported to be the "leader of the group formerly
headed by EDWARD "WIMPY" BENNETT, who, according to informants, had been
murdered and buried around 1/19/67." Exh. 61B.
39
John Connolly ("Connolly"), John Morris ("Morris"), and James Ring
("Ring"). Connolly was Stephen Flemmi’s handler from 1980 to 1990. See Exh.
166 at 14-15. Morris was the supervisor of the Boston Organized Crime Squad
from December 1977 to January 1983 and served as Flemmi’s alternate handler.
See Exh. 188 at 15, 16, 17, 22. Ring was supervisor of the squad after Morris
from 1983 to 1989. See Exh. 188 at 40-41.
40
This allegation was critical to the hearings before Judge Wolf in the
Salemme case and Judge Lindsay in the McIntyre case. See infra notes 4, 13.
41
See infra note 109.
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he was "on the lam," he was in regular contact with Rico, who
months, all charges were dropped. See Exh. 189 at 75-76, 78.
157.44
42
See Exh. 167B at 97-99. Nevertheless, Judge Lindsay credited
Flemmi’s testimony to this effect, based on Flemmi’s testimony and on the
parties' agreed statement of facts, filed in United States v. Flemmi, CR.
99-10371 (Oct. 14, 2003), Exh. 182-3. The statement noted, "This corruption
[of federal, state and local law enforcement officers]. . . allowed [Stephen
Flemmi and other members of the Winter Hill Gang] to evade detection and avoid
prosecution for decades. See McIntyre v. United States, 447 F. Supp. 2d 54,
62 n. 9, 66. See also Salemme, 91 F. Supp. 2d at 111, 112 n. 30 ("The
government does not dispute the court’s findings that Rico told Flemmi of the
forthcoming indictments so that he could flee."), 121.
43
I also find Condon’s testimony concerning Stephen Flemmi to be wholly
incredible. He testified that he was not aware in November 1965 that Stephen
Flemmi was an FBI informant. See Exh. 193A at 72, Exh. 304. Nor did he know
that Stephen Flemmi was approved as a Top Echelon informant. See Exh. 193A at
77. He claimed that he did not learn of Stephen Flemmi’s status until the
Salemme hearings. See Exh. 193 at 77.
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See Exh. 167A at 50-51, 72-73.45 Indeed, Barboza was the most
important witness Rico had ever developed, see Exh. 167A at 87,
one for whom he and Condon would receive praise, promotions, and
Connolly. See Exh. 166 at 14. In fact, Exhibit 166, the inquiry conducted by
the Office of Professional Responsibility of the DOJ described above, reports
that Stephen Flemmi’s status as an informant was reopened on September 12,
1980, closed again on September 23, 1982, because of investigations into two
murders, reopened on July 10, 1986, and finally closed on December 3, 1990,
because of Connolly’s retirement. See Exh. 166 at 14-15.
45
In effect, the only reason why Barboza was not a "Top Echelon
informant" was because he had limited ability to access other LCN members. He
was imprisoned on one charge, awaiting trial on two others. See Exh. 72. He
was considered for designation years later when he was released from prison.
See Exh. 114.
46
In his testimony before Judge Wolf, Rico agreed that he used the
information from sources to persuade Barboza to be a witness but denied that
he told Barboza that Patriarca was going to "take out" his compatriots. See
Exh. 167A at 78. His statement contradicts the record. Rico agreed that he
received information from Stephen Flemmi about threats to Barboza’s crew from
Patriarca, see Exh. 59, and that as a result of receiving that information, he
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Exh. 59. Over the next year, Rico and Condon worked relentlessly
them. See Exh. 59, Exh. 167A at 72-75, Exh. 51C at 2-3; Exh.
51D.
for a time, was in the same prison as Barboza.47 Rico thus had a
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First, the sheer number: Rico and Condon met with Barboza
more than thirty times between March of 1967 and his grand jury
him, sometimes "just checking in." See, e.g., Exh. 71A; Exh.
mentioned in any of the documents Rico and Condon had about the
Deegan trial).
48
This figure is based on the recorded meetings entered into evidence.
There may well have been more in connection with meetings with other
witnesses. See infra, Section III.C.2 (FBI arranging meetings between Barboza
and other prosecution witnesses). The FBI also continued to meet with Barboza
during the course of the trial. See, e.g., Exh. 71B-57; Exh. 71B-58.
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Exh. 71B-1.
49
This was documented in a March 10, 1967, FBI 302, Exh. 71B-1. A 302
is an FBI form used for reporting an interview with a potential witness or
suspect or to record other actions taken by or observations of an agent. See
Exh. 339, ¶ 4. Exhibit 71B includes notes from a series of FBI interviews
with Barboza from March 8, 1967, to October 14, 1968.
50
The defense seeks to introduce this statement by Barboza for the
truth of the matter stated -- as a statement of Barboza’s state of mind and
admissible under Fed. R. Evid. 803(3), and Mutual Life Insurance Co. v.
Hillmon, 145 U.S. 285 (1892). This Rule establishes a hearsay exception for
statements of the declarant’s "then existing state of mind, emotion,
sensation, or physical condition," as well as statements about conditions such
as the declarant’s "intent, plan . . . design." 5-803 Jack Weinstein,
Weinstein's Federal Evidence § 803.05 (2d ed. 1987). The question in Hillmon
was the identification of a dead body as belonging to the insured, Hillmon.
The insurance companies maintained that the body was not Hillmon, but a man
named Walters who had disappeared at the same time. They offered in evidence
letters from Walters indicating that he intended to leave with "a certain Mr.
Hillmon." The Court held that the letters should have been admitted to show
that before Walters left, he had the intention of going with Hillmon, which
made it more probable that he indeed did go with Hillmon.
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193B at 95, Exh. 229.51 There is no question that they and their
one. The reports revealed what Rico likely already knew -- that
Whether or not this statement is admitted for the truth of the matter --
that Barboza in fact intended not to incriminate Flemmi -- it is clear that
the agents had notice of it (a non-hearsay purpose) at the time when all
evidence pointed to Jimmy Flemmi’s participation. The agents clearly
understood that Barboza’s comments meant that he would not implicate Jimmy
Flemmi.
51
When asked by the House Committee why he did not ask Barboza if
Flemmi was involved, Rico responded: "Well, he'd already said he will not tell
us right? . . . He already said that he would not give us anything that would
be harmful to Jimmy Flemmi." Exh. 170 at 220.
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At the March 21, 1967, meeting with Rico and Condon, Barboza
FBI’s overtures and even discussing who might testify about what.
was more eager to provide information to the FBI than he had been
The supposed motive for Deegan's murder was that he had been
52
The March 20, 1967 Barboza Correlator Report compiled all FBI reports
and information on Barboza gathered since the last correlator was generated on
June 14, 1965. See Exh. 73. Rico reviewed them both. See Exh. 45 (Rico’s
signature appears on the lower right-hand corner of the first page, indicating
that he received the report on March 20, 1967). See supra note 32 for the
definition of "Correlator Report."
53
The two talked about Barboza's plan to get the co-defendant in his
pending gun charge to testify in two murders. Jimmy Flemmi approved. See
Exh. 72 at 2.
54
"If I ever testified, you people would have to find me an island and
make a fortress out of it." Exh. 71B-2 at 12. As it turned out, the FBI was
up for the challenge. See infra, Sections III.D.3, III.D.6.
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Exh. 72 at 4. The target of the "hit" was not only Deegan, but
STATHOPOULOS was able to take off and get out of the area." Exh.
72 at 4. Barboza did not tell Rico and Condon who that was, and
true to form, the agents did not ask. See Exh. 193A at 86.
with his brother the next day.57 Two days later, Barboza repeated
55
Sacrimone and Donati were two other organized crime figures.
56
The interview on March 21, 1967, began at 7:30 a.m. and ended at 3:30
p.m. Barboza was put in front of the grand jury between 2:00 p.m. and 2:15
p.m. and invoked his Fifth Amendment privilege against self-incrimination. An
airtel was sent on March 28, 1967, with a detailed description of the March 21
interview. See Exh. 72. In that airtel, Rico and Condon detail Barboza’s
conversation with Jimmy Flemmi about Barboza’s possible cooperation with the
FBI. See Exh. 72. The agents did not record that information in the 302
documenting that same interview. See Exh. 71B-2.
57
Rico instructed Stephen Flemmi to "tell JIMMY that the Italian
element is still trying to work against JOE BARBOZA and JERRY ANGIULO is
trying to use his connections to see that BARBOZA gets ‘buried through the
Suffolk County District Attorney’s Office.’" Exh. 76 at 1-2. See also Exh.
167B at 79-81.
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what he had been fed by the Flemmi brothers to Rico and Condon.
indicating that he had "heard" a police officer had left the door
that he was cooperating with the FBI. See Exh. 71B-12. He did
not discuss the Deegan murder further until the end of July 1967,
but offered the FBI information about other crimes. See Exhs.
71B-5 - 71B-17.60
58
During this interview, he also discussed the attempted murder of
Willie Marfeo ("Marfeo").
59
Barboza mentioned Patriarca, Henry Tameleo, Gennaro Angiulo, Peter
Limone, and Larry Baione, among others.
60
Barboza would ultimately testify in two other cases -- one state, one
federal -- in addition to the Deegan trial. The first, a state case, involved
the murder of prizefighter Rocco DiSiglio ("DiSiglio trial"). Gennaro Angiulo
and three others were acquitted. The second, United States v. Patriarca,
("federal Marfeo trial" or "Marfeo case") involved conspiracy to murder Marfeo
and unlawful gambling, resulted in the conviction of Patriarca, Tameleo and
Cassesso. They were sentenced to five years. Exh. 2338 at 105. The Deegan
trial was the last of the three.
In August 1967, after Rico testified before a Suffolk County grand jury
about his conversations with Barboza concerning the DiSiglio murder, the
Boston SAC sent an urgent teletype to the Director at 1:03 a.m. As with the
Deegan case, see infra Section III.D.1, the FBI’s responsibility for this
prosecution was clear: The SAC noted that Suffolk County District Attorney
Garret Byrne commented that this "TREMENDOUS PENETRATION INTO THE LCN AND THE
HOODLUM ELEMNET [sic] WAS EFFECTED THROUGH THE OUTSTANDING INVESTIGATIVE
EFFORTS OF THE FBI AND HIS OFFICE." Exh. 91. The SAC added, "THIS ENTIRE
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51C at 2.61
to him, expressing their concerns for his welfare and that of his
testimony, then and only then did they invite Suffolk County
(italics supplied).
CASE WHICH WAS PRESENTED TO THE GRAND JURY BY DA BYRNE WAS DEVELOPED THROUGH
THE EFFORTS AND THE ABLE HANDLING OF BARBOZA BY SA H. PAUL RICO AND DENNIS M.
CONDON . . . . I KNOW THAT THIS INDICTMENT WOULD NOT HAVE BEEN POSSIBLE IN
ANY SENSE OF THE WORD IF IT WERE NOT FOR THE EFFORTS OF THESE AGENTS AND THE
FBI AT BOSTON." Id. Accordingly, the SAC recommended commendations for Rico
and Condon, as well as a commendation for Kehoe "WHO SUPERVISED THIS ENTIRE
PROGRAM AND WAS INVOLVED DEEPLY IN THE DEVELOPMENTS AND THE PLANNING RELATIVE
TO BARBOZA AND THE MATTERS ATTENDANT TO THIS INDICTMENT." Id.
61
See also Exh. 45 at 7-8 (Boston airtel reporting that Barboza was
heard on the wire asking Patriarca for permission to kill a man by setting his
house on fire, despite the fact that the man’s mother lived there as well);
Exh. 170 at 189. (Rico noted: "I'm not a big supporter of Barboza." He was a
"stone killer" but the "instrument that we had.").
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On June 30, 1967, and July 31, 1967, Barboza met with Rico,
could "talk" on, including the Deegan murder. See Exh. 71B-17;
See infra Section III.B.4.b.3. It was only after Rico and Condon
62
The Deegan murder had a special importance since, of the murders
Barboza could testify about, it stood out by virtue of its many participants.
In the others, either Barboza was the only assailant or the crime was
committed with Jimmy Flemmi, whom Barboza would not implicate. For example,
the FBI had information that: Eaton was murdered by Barboza, see Exh. 57 at
15; Francione was murdered by Barboza, see Exh. 57 at 24; DiStasio and O'Neil
were murdered by Barboza, accompanied by Jimmy Flemmi, see Exh. 57 at 37-38.
Exhibit 57 is a January 1966 FBI report entitled, "Boston Gangland Murders:
Criminal Intelligence Program," which contains ample information on many of
the Gangland murders.
63
The meeting was documented in an airtel from the SAC to the Director.
See Exh. 89.
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prosecution.
prosecutions (two state, one federal), see supra note 60, his
credibility was essential. The FBI was not about to let him out
64
According to the FBI, the McLaughlin-McLean feud was responsible for
"many" of the "prominent" Gangland murders in Boston. The origins of the feud
are summarized in the FBI’s 1966 Gangland Murders Report. See supra note 62.
"A review of the files of the Boston Office reflect that the feud originally
started over a fight that took place in a cottage in Salisbury Beach,
Massachusetts, approximately three years ago. In attendance at the party was
GEORGE MC LAUGHLIN who made a pass and used very vulgar language to the wife
of one of the other individuals at the party. As a result of this, a fight
ensued." Exh. 57 at 4. According to FBI documents, Barboza and the Flemmi
brothers were aligned with the McLean faction. See, e.g., Exh. 50A. The LCN,
however, was not involved. A November 11, 1965, FBI memorandum reporting a
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County’s star witness clearly did not mean that Rico and Condon
that both federal and state law enforcement had from their
contact with an especially valued and reliable Top Echelon informant states
that at that time, "the LCN in this area has not actively taken part in this
gang war," although there was concern they might become involved in the
future. Exh. 50A at 1. If anything, the concern at the end of 1965 --
several months after the Deegan murder -- was that the LCN would intervene on
the McLaughlin side.
Thus, when Barboza asserted that the motive behind the Deegan killing
was Deegan’s affiliation with the McLaughlins, and that the LCN therefore
wanted him "rubbed out," the FBI plainly knew that this was likely false.
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was lying.
I describe first, what the FBI knew about the Deegan murder
because Deegan owed his brother money.65 While the FBI informed
(b) October 20, 1964 (five months before the murder): The
agents learned from the Patriarca wire that Limone, rather than
65
This information was available to the FBI in three forms: an October
19, 1964, memorandum by Rico, an October 19, 1964, airtel to the Director, and
the April 22, 1965, Flemmi Correlator. See Exh. 14 at 1; Exh. 4 at LIM010-
0247; Exh. 38 at 2-3.
66
This information was documented in an airtel from the SAC Boston to
the Director dated October 23, 1964, written by Kehoe on October 20, and
initialed as read by Rico, among others, see Exh. 15A, as well as in the April
1965 Flemmi Correlator, see Exh. 38 at 1-2, Exh. 4 at LIM010-0240.
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Deegan.67
and Barboza were overheard asking for the "ok" to hit Deegan.
Deegan and then to contact Angiulo who would give them a final
answer.68
(e) March 10, 1965 (two days before the murder): A Top
given the "ok" to hit Deegan and a "dry run" had already been
67
This was documented in an airtel to the Director on March 10 which
was written by Kehoe and initialed as read by Rico, among others. See Exh.
20. It was also documented in the April 1965 Jimmy Flemmi Correlator. See
Exh. 38 at 1, 8-9; Exh. 4 at 10, 17-18.
68
This was documented as information collected from the wire in a March
12, 1965, airtel drafted by Kehoe and sent by the Boston SAC to the Director
and the SACs at Albany, Buffalo, and Miami. The airtel was initialed as read
by the SAC, the ASAC, and Agents Finnegan, Brady, Murphy, Reppucci, Lardner,
Dunn and Opley. See Exh. 18B; Exh. 18C; Exh. 18D. It was also documented in
the April 1965 Jimmy Flemmi Correlator, see Exh. 4 at 17-18; Exh. 38 at 9, and
the June 1965 Barboza Correlator, see Exh. 45 at 3.
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murder. See Exh. 4 at 4; Exh. 26; Exh. 29.69 The Deegan murder
69
This information -- though not from the wire -- was especially
reliable. It was reported by one of the FBI’s most valued Top Echelon
informants. Although his identity was not disclosed, the record reflects he
was developed by Rico, used by Rico to develop Stephen Flemmi, and credited by
the FBI with providing them with "a wealth of information regarding high-level
organized crime," Exh. 51I, and "accurate and authentic data regarding
gangland strife." Exh. 51D. See also Exh. 348 (listing the FBI documents for
which this informant was the source).
At the close of the bench trial, I ruled that the parties would be
allowed to reopen the evidence with respect to a narrow set of issues --
namely, to allow the plaintiffs to introduce less-redacted versions of the
trial exhibits, as well as new exhibits, the relevance of which only became
apparent in light of other lifted redactions, which had been the subject of a
long standing discovery dispute. Plaintiffs have filed sealed motion [docket
entry #558] to reopen the evidence and offer sealed Exhibit 348 as a party
admission. That motion was granted, and Exhibit 348 admitted. See Electronic
Order dated July 25, 2007. Plaintiffs also filed a motion [docket entry #551]
to admit a series of less-redacted substitute exhibits, as well as three
documents -- proposed Exhibits 344, 346, and 347 -- not previously marked as
exhibits. The plaintiffs submitted a list of the government's objections and
their responses. The plaintiffs' motion was also granted, over those
objections. See Id.
Plaintiffs contend that the second page was not originally part of the
March 15 memorandum. That second page is identical to the second page of
Exhibit 28, which is a different March 15 memorandum authored by Rico,
reflecting an informant conversation the day after the murder, March 13.
Plaintiffs point to the fact that Exhibit 28 was comprised of two pages when
submitted to the plaintiffs as part of the Durham documents, Exhibit 4 and as
Exhibit 77 to the House Committee on Government Reform, whereas Exhibit 26 was
always comprised of just the one page -- when produced as part of the Durham
documents and as Exhibit 72 to the House Committee. That the second page of
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(a) March 13, 1965 (the day after the murder): One of
Rico’s most valued Top Echelon informants, see supra note 69,
The plan was for Barboza, Jimmy Flemmi, Cassesso, Martin and
French to kill Deegan and Stathopoulos when the latter two were
had approved the "hit," and a dry run had been taken. French,
group know when and where the Deegan robbery would occur. With
Deegan and French in the alley outside the finance company, and
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Cassesso and Martin did the shooting was that they wanted to
indicated that they did an "awful sloppy job." Exh. 28. See
also Exh. 4 at 5.
71
Rico documented this information in a March 15, 1965, memorandum,
which was read by Kehoe. See Exh. 27.
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Barboza confessed that he had shot Deegan with a .45 caliber gun.
The informant also stated that "JIMMY FLEMMA [sic]" had gone to
that Barboza and "FLEMMA [sic]" were very friendly. See Exh.
34.72
72
This information was documented in a April 6, 1965, memorandum to the
SAC Boston, read by Charles Reppucci, see Exh. 34, the April 1965 Jimmy Flemmi
Correlator Report, see Exh. 38 at 1, 24; Exh. 4 at 10, 25, and the June 1965
Barboza Correlator, see Exh. 45 at 1, 10.
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that they had before the killing -- that it was Flemmi and
wire. Nor would they identify their Top Echelon informants and
(f) June 1965 and July 1965: The critical Patriarca wire
73
The government points to language in a March 24, 1965, memorandum,
Exh. 33, to argue that local authorities effectively knew what the FBI knew.
Exhibit 33 notes that the FBI provided Captain Renfrew of the Chelsea Police
with "the same information, as furnished by" the Top Echelon informant
described in footnote 69. It goes on to say, "[t]his informant also furnished
basically the same information as did BS 837-C* relative to the murder of
EDWARD DEEGAN on 10/17/64. This information was furnished to Inspector HENRY
DOHERTY of the Everett, Mass. PD on 10/18/64." Exh. 33.
The March 24 airtel response also summarized information that had been
collected by the Chelsea Police. It noted that Chelsea’s investigation
"reflected" that Stathopoulos was at the scene but left because he thought the
Chelsea police were about to arrest Deegan and French attempting to commit a
burglary. Stathopoulos called attorney Al Farese who called the Chelsea
Police Department to bail out Deegan and French. But Deegan and French had
not been arrested. When the Chelsea police found Deegan's body, they
immediately looked for French. French reported that he was at the Ebb Tide
all night, but their investigation indicated that after French got a call at
8:45 p.m., he left the Ebb Tide with Barboza, Flemmi, Cassesso, Martin, and
Imbruglia - returning about 45 minutes later. A Chelsea Police officer
identified Martin’s car as being parked at the scene with two men inside.
See Exh. 33.
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each case, the account of the Deegan murder there mirrors all of
I find that Rico, Condon, and the FBI hierarchy were well
III.B.2.75
74
See (I) the June 14, 1965 Barboza Correlator, Exh. 45 at 7, a report
initialed as read by D.V. Shannon, and signed by Rico as retrieved and read on
March 20, 1967 (the day before Rico and Condon’s second meeting with Barboza),
Exh. 45 at 1; (ii) a June 6, 1967, prosecution memorandum in United States v.
Patriarca, written by Walter Barnes and Edward Harrington, Exh. 81 at 1, 18;
(iii) a July 18, 1967, report on Barboza from Boston to headquarters, prepared
by Agent Thomas H. Sullivan, Exh. 68; (iv) a July 20, 1965 report prepared by
Charles Reppucci, a Boston agent, sent from Headquarters to the U.S.
Attorney’s Office in Providence, the FBI offices in Boston and New York, and
the Assistant Attorney General, Criminal Division, Organized Crime and
Racketeering Section, and approved by SAC Handley, Exh. 46; (iv) the Boston
Gangland Murders report of January 1966, Exh. 57.
75
At one point in his testimony Rico denied even knowing about the
Patriarca wire, a preposterous claim given its importance to his job, see Exh.
170 at 188. When asked if he knew about Jimmy Flemmi’s involvement in the
Deegan murder before the killing, he equivocated saying, "it’s possible that I
had information that he might have been involved or going to be involved . .
." Id. at 161. After being confronted with documents with his name on them
he conceded, "evidently, I did [know that Deegan was to be killed]," and that
Jimmy Flemmi was involved. Id. at 189.
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76
Indeed, in one of the most troubling parts of his already troubling
testimony before the House Committee, Rico conceded "now that everything is
said and done it appears that [Barboza] didn’t tell the whole truth." Exh.
170 at 187. Further, asked specifically about Salvati, he acknowledged that
after he heard all of the facts at the House hearing, he believed Salvati was
not guilty. See Exh. 170 at 157-158. In fact, his testimony could not be
more disingenuous. The information before the House Committee comprised the
memoranda Rico generated, initialed or about which he had to have been
familiar. Whatever Rico learned at the House Committee hearing was hardly new
to him; he had to have known that Barboza’s account of the plaintiffs’
complicity in the Deegan murder contradicted all of the FBI’s intelligence.
As for Salvati, he conceded that he had had no information, much less
derogatory information, before Barboza mentioned his name. See Exh. 170 at
189, 193, 211.
77
There is some question as to whether an adverse inference may be
drawn against the defendant from Rico’s invocation of his Fifth Amendment
right. Were Rico the defendant here, there would be no question that his
silence could support such an inference. Baxter v. Palmigiano, 425 U.S. 308,
318 (1976); Brink's, Inc. v. City of New York, 717 F.2d 700, 709 (2d Cir.
1983). As discussed in supra note 31, defendant here is not only Rico’s
employer; it stands in his shoes under the FTCA.
Adverse inferences may also be drawn against the government in its role
as Rico’s former employer. It is true that the existence of the employment
relationship without more does not subject an employer to adverse inferences
based on its employees’ silence. See Veranda Beach Club Ltd. v. Western Sur.
Co., 936 F.2d 1364, 1374 (1st Cir. 1991)(declarant invoking the Fifth
Amendment did so in relation to wrongdoing in which his employer had little,
if any, involvement); cf. Data Gen. Corp. v. Grumman Sys. Support Corp., 825
F. Supp. 340 (D. Mass. 1993) (evidence suggesting that the employer had
benefitted from and tacitly approved the wrongdoing of the employee). Here, it
is reasonable to infer that Rico invoked the Fifth Amendment in response to
questions about Flemmi, Barboza and the Deegan murder trial, to protect not
only himself but the government as well. His wrongdoing was done with the full
knowledge and approval of his superiors, and redounded to their benefit.
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193B at 21, 57. This was so even though he admitted his initials
that Rico shared any information with him about Deegan’s death,
see Exh. 193B at 21, or that he knew what the wire disclosed
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individuals as did the FBI.81 What they did not know was how
know that the information came from a valued informant with whom
81
There is absolutely no doubt that they did not have access to the
Durham documents, and surely, not to the broader record developed in this
case. See supra Part II.
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("Kozlowski") of the Chelsea Police saw a red car with the rear
licence plate folded over near the crime scene. He saw two men
inside -- the man in the back seat had dark hair with a bald spot
on the center of his head. See Exh. 21. Lieutenant Thomas Evans
went to the Ebb Tide with Captain Renfrew and Detective Moore,
where they saw a red car with the rear license plate creased down
said the car looked like the one he had seen earlier, but did not
call around 9:00 p.m., shortly after which he left the Ebb Tide
82
A City of Boston informant report put Barboza, French, Cassesso and
Stathopolous together on the night of the murder -- but not Jimmy Flemmi. See
Exh. 24. A certain "Officer Robson" reported that Stathopolous said "he saw
Cassesso with a gun in his hand that night." Exh. 25. The government points
to two other local police reports -- the "Cass Report," Exh. 2047 and the
"Stuart Report," Exh. 2050. The Cass Report restates the information in the
Evans Report. Detective Lieutenant Inspector Richard Cass was sent by the
Massachusetts State Police to aid in the investigation on March 13, 1965.
This document is a report to his supervisor summarizing what the Chelsea
Police had learned. (Exhibit 2050 is the same document as Exhibit 24.)
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years later.
joined by Doyle and Walsh, and for the first time Barboza named
moment for the FBI, one that cast profound doubt on Barboza, his
83
Moreover, the state authorities had no witness who placed Jimmy
Flemmi at the murder scene. See Exh. 21; Exh. 22; Exh. 23; Exh. 24; Exh. 57
at 26-27.
84
Exhibit 2060 is an August 10, 1965 letter from Massachusetts State
Police Lieutenant John Colling to New Hampshire State Police Detective William
Smith. The letter explains that on March 17, 1965 (the week of the murder), a
New Hampshire officer responded to Evans’ inquiry regarding local gun
merchants. Colling instructed the New Hampshire police not to look into the
matter further; Evans would take it up when he returned from vacation. The
letter is the only indication that any investigative effort was made after the
few days following the murder.
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plaintiffs.
(b) The motive was the fact that Deegan had robbed an
Angiulo-affiliated bookmaker.
(a) Greco was at the Ebb Tide before the murder and left
with Martin.
85
The FBI 302 documenting this interview includes state investigator
Doyle’s September 11, 1967 write-up, without comment by Rico or Condon
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(c) Greco drew a map of the area for Barboza, left the Ebb
Tide before Barboza, wore a brown topcoat, and shot Deegan with a
.45.
86
Doyle’s report was dated September 11, 1967.
87
Another teletype sent later that day reiterated Barboza’s story, and
promised to keep headquarters apprised. See Exh. 92.
88
On September 12, 1967, the investigators were joined by both Rico and
Condon, and on October 16, 1967 by Rico. See Exh. 71A-2; Exh. 71A-3.
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reported that the man in the back seat of Martin’s car had a bald
spot -- and Jimmy Flemmi fit the bill, as Rico knew. See Exh.
reversed himself -- Greco had not been at the Ebb Tide with the
rest of the men; Martin had gone to pick him up. Barboza had
reports excluding Greco from the group at the Ebb Tide. Nor
could Barboza recall what Greco was wearing. By the time of the
such reports or told him about them so that he could adapt his
89
Condon denied to the House Committee that Barboza was ever shown any
report to help him with his testimony. See Exh. 193B at 8. In fact, he
testified at the Deegan trial that he took pains not to "impart any
information that I might have concerning the circumstances surrounding the
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presence.
with information from their files, and even information from the
case." Exh. 105C at 5813. Barboza was positively indignant at the suggestion
during his Deegan trial testimony. See Exh. 105A at 4489. Later he conceded
that he had been shown an airline ticket by U.S. Attorney Markham, and that
Zalkind may have read from transcripts but did not let him look at them. Id.
at 4660.
90
The FBI not only had direct access to Barboza before and during the
Deegan trial, they also had indirect access through the Flemmi brothers. Rico
used that access to keep abreast not only of the prosecution’s case, but also
the defense’s. See Exh. 167B at 83. Stephen Flemmi told Rico that Jimmy’s
lawyer, Joseph Balliro, was trying to turn Jimmy against Barboza. See Exh.
167B at 82; Exh. 86 (Rico FBI memo in which Stephen Flemmi reports that
Balliro was trying to get Jimmy to destroy Barboza’s credibility. Rico used
the interview as yet another occasion to shore up the loyalty of the Flemmi
brothers, suggesting that "the organization" was behind this, and that they
would "use anyone to save their own skin.") Flemmi also reported concerning
defense efforts to discredit Barboza because of his mental condition, see Exh.
97, and to line up prisoner witnesses against Barboza. See Exh. 100.
91
The record is not clear as to why Barboza singled out these men.
Clearly the FBI was interested in prosecuting Tameleo and Limone. Even if
Rico did not suggest the names to Barboza, the FBI was clearly thrilled when
he implicated them. See Exh. 92 (reporting that Barboza had fingered Limone
and that he, like Angiulo, would likely be held without bail); Exh. 106
(reporting that Tameleo and Limone were prominent members of the Patriarca
family and that Tameleo was a "capo."); supra note 60 (Tameleo was also named
in the Marfeo case.) The only explanation for why Barboza would not
implicate Patriarca would be the FBI’s concern about deriving the prosecution
from the illegal wire.
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On October 25, 1967, French and Greco were indicted for the
Walsh. See Exh. 71B-43. Barboza told a different story, that Greco asked him
to slap Marvin Karger in the face. See Exh. 210.
Salvati testified in the bench trial that he barely knew Barboza; their
only connection was $400 that Salvati had borrowed from Barboza, which Salvati
refused to pay back, despite a series of threats. See Tr. vol. 16, 78-83.
His testimony was buttressed by the affidavit of Roxsan Ambrosini -- quoting
Barboza saying that Salvati had "burned" him out of $400 and that because of
revenge he got back at Salvati by falsely testifying about his being involved
in the Deegan murder. See Exh. 297; infra Section III.D.6.
F. Lee Bailey ("Bailey") testified that Barboza told him he had gotten
in touch with Rico because he wanted to make a deal with the feds after "two
of his lieutenants were murdered and his bail money was stolen." Tr. vol. 8,
28. Rico told him he would have to finger "somebody pretty big because he,
Barboza, was pretty big." Tr. vol. 8, 28. Barboza told Bailey that several
names were suggested to him, including Limone and Tameleo. Further, he was
told that if he named two people the FBI wanted, Barboza could name two of his
own. Barboza told Bailey he chose Greco and Salvati because Greco had either
beaten him up or embarrassed him at a night club, and Salvati owed money. See
Tr. vol 8, 28-30.
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could not have been more junior. This was his first murder case.
See Tr. vol. 7, 26. Despite his testimony that the FBI "really
104.
Barboza at just about any time. The FBI agents were his
93
Barboza, he remarked, "was such an unreliable person that he might
accuse me if he ever decided to become an alien witness that he might accuse
me of having shaped his testimony so I didn’t want that to be a factor." Tr.
vol. 6, 22.
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him, see Tr. vol. 7, 108, what they said to him both before
Suffolk County had any access to him, and after. See Tr.7, vol.
79. He did not know that Rico and Condon were present at every
and Condon -- were made after consulting with the FBI. See,
seat. See supra Section III.B.3. Rico agreed that he and Condon
were "on top of the [Deegan] case right from the start," Exh.
94
Nor did Zalkind even have any role in the "deal" Barboza was offered
for his testimony. See Tr. vol. 6, 10. Barboza was facing a habitual
criminal charge in connection with a stabbing. He was facing a sentence of
more than 80 years. See Tr. vol. 6 at 8-9; Exh. 105B at 5902. That charge
was later dropped.
95
Again, Rico’s testimony before the House Committee was pure
sophistry: "We were not involved in the - to my knowledge, in the preparation
of the trial," he said. But when reminded that Agent Condon had testified he
stated: "Well, it depends on what you’re talking about preparation. I think
that we made Barboza available at a time when they came to interview him, we
would be there, but it wasn’t as if we’re directing the investigation." Exh.
170 at 196. Condon denied even knowing what Barboza would testify to, see Exh.
193B at 86, which I find wholly improbable.
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critical witness for the prosecution, was the FBI’s "boy." Tr.
had contact with Fitzgerald long before Zalkind ever did. See
Tr. vol. 7, 123. And, as with Barboza, Zalkind did not know what
jury that Barboza had not been coached or had been given any of
the facts of this case by the FBI." Tr. vol. 6, 16. Of course,
Zalkind had absolutely no idea whether this was true. Given the
They did not have to. The FBI offered Suffolk law enforcement a
96
When pressed, Zalkind conceded that while he conferred with "his"
people, Doyle and Walsh, see Tr. vol. 7, 103, they were regularly conferring
with the FBI. See Tr. vol. 7, 104. Doyle was present with the FBI when
Barboza was interviewed long before Zalkind ever talked to him. Walsh met
with another witness, John Fitzgerald, along with Condon. See Tr. vol. 7,
121-22.
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had stalled. More significantly, this was a witness for whom the
FBI was vouching and Zalkind relied on that. See Tr. vol. 7,
104-05.
as any good trial lawyer would do, that preparation could not
See Exh. 22; Exh. 2167.97 But when Barboza extended the circle
(1) When Barboza told Zalkind that one motive for Deegan’s
97
The documents that were shown to Zalkind to buttress the government’s
position that Zalkind did an "independent" investigation could not be weaker.
For the most part, they supported the view that without Barboza, the state
authorities had little or no evidence on which to base a prosecution. See
Exh. 2167. For example, French was initially in the sights of state law
enforcement when attorney Alfred Farese received a call from a client that
Deegan and Roy French were arrested while doing a "B & E." Farese called the
Chelsea police and was told that Deegan had been killed. See Exh. 22. His
call inadvertently focused police attention on French who was then arrested
but released.
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Tr. vol. 7, 40, but he had to rely on Barboza for the link
had been used, but he had to rely on Barboza for who had wielded
shop or a donut shop in Revere. See Exh. 2106; Exh. 2176; Tr.
-- both from his own investigation and from the FBI -- was the
information the FBI kept from him.99 Zalkind did not know the
98
That was the pattern: Barboza would say something; Zalkind would
corroborate it -- at the periphery. Barboza said that Peter Limone did not
like Deegan, an Irish kid "shaking up" Italian boys, that Limone once gave
Deegan $1,000 for someone’s defense and now Deegan was just shaking him down
for the money. Fitzgerald confirmed only that Limone had given him $1,000.
See Tr. vol. 7, 42. Barboza said that the reason he was testifying was that
he was supposed to borrow money from Ralph Lamatino, that "Lamatino" then
killed someone who was to give him bail money, that that was an "office" [LCN]
hit. Tr. vol. 7, 49. Zalkind confirmed that Lamatino was murdered, but not
the Lamatino-Barboza connection. See Tr. vol. 7, 44. Barboza said that
Deegan was killed because he had robbed Puopolo. See Tr. vol. 7, 53. Zalkind
confirmed that Puopolo had been robbed. See Tr. vol. 7, 49, 95. And when
Greco’s alibi involved his wife, Zalkind could corroborate that a divorce
proceeding had been pending. See Exh. 2023.
99
He vaguely remembered seeing something about Fitzgerald, where he was
staying or something like that, but it had no real consequence to the trial
itself or to the evidence. See Tr. vol. 6, 12. In any event, as with Barboza,
Zalkind agreed that Fitzgerald’s handlers, the people that had the most
contact with him, were Condon and Rico. See Tr. vol. 6, 12, 13.
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Program, or the Patriarca wire. See Tr. vol. 7, 94. He did not
have any FBI reports on anything, see Tr. vol. 7, 121, 123, much
who had never been linked to this offense. See Tr. vol. 7, 101-
02.100
Zalkind surely did not know what the FBI had overheard on the
Jimmy Flemmi hit, Limone’s efforts to warn Deegan, the fact that
connection with the Deegan murder. See Tr. vol. 6, 14, 25; Tr.
100
Zalkind did not know that no report mentioned that Limone had called
for or offered to pay for the murder of Edward Deegan. See Tr. vol. 7, 110.
Nor did he know the reports documented just the opposite -- that Limone tried
to warn Deegan. There was nothing remotely suggesting that Tameleo had
approved the hit for Barboza, that Limone offered an additional $2,500 for the
murder of Stathopoulos; no one put Greco in the alley at the time of the
Deegan murder, see Tr. vol. 7, 111; nothing in the reports corroborated
Barboza’s claim that Salvati was sitting in the back of the car in a bald wig.
Zalkind did not even know that Jimmy Flemmi was bald. See Tr. vol. 7, 88. He
did not know that the only incident confirmed at the Ebb Tide did not concern
Deegan pulling a gun on someone, but concerned Barboza doing so. See Tr. vol.
7, 99.
101
He did not know that three days before the murder Jimmy Flemmi had
been overheard on an illegal wiretap in the company of Joseph Barboza saying
that Deegan was an arrogant nasty sneak, see Tr. vol. 7, 102, or that Limone
had been overheard saying that Jimmy Flemmi was out of control and about to
murder Deegan. Id.
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the wiretap summaries that Rico and Condon had before the Deegan
bound" to disclose that to the defense, and that they would have
testified that "the case would have been dismissed or I would have
102
By late summer 1971, the existence of the illegal wiretap had been
made public -- featured in an article in The Boston Globe article. See Exh.
135A (an FBI memorandum explains that The Globe had first acquired copies of
the logs during the Marfeo trial in 1968). Indeed, following the article,
local law enforcement -- including Boston Police Commissioner Edmund McNamara
and Suffolk County DA Garrett Byrne -- requested access to the information
gathered over the wire. They were flatly denied, due to the need for "strict
adherence" to the "Department’s long-standing policy of non-disclosure of
sensitive intelligence information." See Exh. 135A; Exh. 135B; Exh. 135C;
Exh. 135D; Exh. 135E; Exh. 135F. That is to say, it is likely that Zalkind
knew about the existence of the wire some time before the Salemme hearings or
the House Committee proceedings, but after the Deegan trial. He surely did
not know the information that had been gleaned from the wire and its
significance.
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2. The Trial
The Deegan murder trial started on May 27, 1968, and was
completed on July 31, 1968. See Exh. 338 ¶ 49. The FBI was a
the strings they pulled behind the scenes advising Zalkind and his
illegal wire and Top Echelon informants, which they hid from the
103
Condon testified that he was in court only on the day he testified at
the Deegan trial, because of a witness sequestration order. See Exh. 2338 at
13. He did not need to be physically in Barboza’s presence every day of the
trial to exercise control over him. He had clearly helped to prepare
Barboza’s testimony before the trial. See Exh. 71A-5 (discussing some "points
of information" concerning the Deegan murder with Walsh, Rico and Condon). He
had monitored Zalkind’s encounters with Barboza. See Exh. 71A-6 (statements
made by [Barboza] to Zalkind, Rico and Walsh on February 21, 1968). He had
monitored the discussions of another Assistant District Attorney in Zalkind’s
office. See Exh. 71B-32 (telling Barboza to be "polite and responsive"); Exh.
71A-7 (more discussion of the case with Zalkind, Walsh, Rico and Condon on
March 29, 1968); Exh. 71A-8 (same, 4/10/68). He had even dealt with Barboza’s
complaints about Zalkind on the eve of trial, see Exh. 71B-52 (Barboza
complaining that Zalkind did not spend enough time with him preparing for the
case (5/29/68), and during the trial, see Exh. 71B-54 (same, 6/12/68). And
while reports during the trial are few and far between, and do not say much
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initiating the "hit," Salvati for Flemmi (in the car with Barboza
and Cassesso), and Greco for Cassesso (as Deegan’s actual shooter,
murder, see Exh. 105A at 3280, 3288-89, and Limone and Tameleo's
that he would not get indicted "on a case," and that they would
(to record conversations about Barboza’s testimony during the trial would have
been to violate the sequestration order), FBI reports confirm that Condon met
with Barboza regularly, even during this period of time. See Exh. 71B-58
(7/5/68); Exh. 71B-61 (meetings during July, 1968 while awaiting the
"finishing of testimony").
104
He also acknowledged that he had only been indicted for a misdemeanor
in connection with his role in the Deegan murder, see Exh. 105A at 3806, 3835,
while the others were indicted for capital murder, and that he was serving a
four to five year concurrent sentence at Walpole for possession of a firearm,
and was facing a "habitual criminal" charge, which could mean more than 80
years. See id. at 3806, 3834, 4039, 4667; see also, M.G.L. c. 279 § 25.
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or the defense counsel. For example: the FBI knew that the "bald
man" Captain Kowzlowki had seen was Flemmi. They allowed Barboza
to testify that Salvati wore a "bald wig." They knew that Limone
They allowed Barboza to testify that Limone had ordered the "hit."
got certain dates wrong.105 They knew that Greco had never been
question. Exh. 105A at 3306; Exh. 27. They knew that informant
they knew that the LCN was not involved at all in those battles.
the FBI did not disclose the extent to which Barboza and his
105
Barboza told Rico and Condon that he had met Limone the first week in
February 1965 to arrange the deal, see Exh. 71A-l. At trial, he changed that
to mid January, see Exh. 105A at 3206, after he was shown an airline voucher
by USA Markham, placing him in Florida on the original date. See Exh. 105A at
3583-3586, 3597, 3668-70. Barboza also testified that Walsh had shown him the
ticket. See Exh. 105A at 3584, 4676-77.
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Nor did the FBI disclose perhaps the most extraordinary part of
Jimmy Flemmi.
106
On money: AUSAs Barnes and Harrington acknowledged in a letter dated
February 12, 1970 to Deputy Assistant Attorney General of the Criminal
Division Henry E. Petersen, "I think it fair to state that it was agreed by
all in the Department of Justice that at the time [Barboza] was released from
Government protection every effort would be made to provide him with a job and
an unspecified sum of money." Exh. 117A at 2. Henry Petersen indeed recalled
that Barboza "expected a $10,000 payment at the time his testimony was
concluded." Exh. 117B.
On immunity: There was an oral promise "at the very beginning" that the
authorities would bring the extent of his cooperation to the attention of any
sentencing court. Exh. 2341 at 42-44. The Justice Department determined that
even Barboza’s future crime -- his 1970 murder of Clay Wilson -- came under
that promise. Id.; see also infra Section III.D.6.
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5831-5832.107
with Barboza, he had never shown Barboza any reports or told him
105C at 5803-04, see also supra note 89, the comment strained
Barboza.
Both agreed that they had met with the FBI before their testimony,
107
That same rationale obviously applied to the Durham documents as
well.
108
He represented Stathopolous, Deegan, and Barboza at various times.
See Exh. 2312 at 4882, 5168-69.
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by the FBI.
vol. 7, 120, met with the FBI fifteen to twenty times beginning in
and Greco had offered Barboza a bribe in July of 1967 to keep him
from testifying in the Deegan case.110 The FBI well knew that the
109
On January 30, 1968, John Fitzgerald was critically wounded when his
car exploded as he attempted to start the ignition. His right leg had to be
amputated. See Exh. 291. An FBI teletype sent to the Director that same day
reported that Stephen Flemmi had previously advised that Patriarca was
"incensed" at Fitzgerald, and that he was on the "hit parade." Id. In
addition to serving as an important witness in the Deegan trial, Fitzgerald
was also a key witness in the government’s case against Patriarca. It is
believed that the "hit" was orchestrated to prevent him from testifying. He
was in federal protective custody.
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Exh. 89.
12, 1965, and was asked to identify the man he saw coming out of
the alleyway where Deegan was killed. He saw French and a second
person, and heard a voice he did not recognize say, "Get him too."
had never been able to identify anyone from a photo array, see
Exh. 2351, and indeed, in earlier reports, had noted that it was
Cassesso and Martin he had seen, see Exh. 25, at trial, he pointed
5027-28.
3723. But what the defense did not know was that these federal
witnesses were corroborating a story that the FBI knew was false.
or memoranda were provided. See Tr. vol. 6, 37; Tr. vol. 9, 9.112
112
Joseph Balliro ("Balliro"), who represented Tameleo, testified that
he had never seen documents indicating: that Patriarca had authorized Deegan’s
murder, see Tr. vol. 9, 10, Exh. 26, that Jimmy Flemmi admitted to an FBI
informant that he was involved in killing Deegan, along with French, Martin
and Cassesso, see Tr. vol. 9, 11-12, Exh. 28, that the FBI had multiple
informants who reported to them that these individuals were responsible for
the Deegan murder, see Tr. vol. 9, 13, Exh. 31, that Limone warned Deegan
about Jimmy Flemmi and that Flemmi had gone to Providence to get permission to
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about the existence of the illegal Patriarca wire, see Tr. vol. 9,
wire; it would be unlikely that they would have disclosed any more
kill Deegan, see Tr. vol. 9, 17, 19, Exh. 38. The defense was not aware that
Jimmy Flemmi and Stephen Flemmi were informants, see Tr. vol. 9, 24, Exh. 34,
or that Barboza told agents that he was one of the shooters, see Tr. vol. 9,
26. Nor did they know that the FBI used Stephen Flemmi and Jimmy Flemmi to
monitor defense preparation in the Deegan murder trial. See Exh. 86; Exh. 97;
Exh. 100. See supra note 90. Balliro testified that he had no idea that
whatever communications he had with Jimmy Flemmi were relayed to Stephen
Flemmi and then to Rico and Condon. See Exh. 27; Exh. 86; Exh. 89; Exh. 97;
Tr. vol. 9, 25.
113
See Order of the Court, dated September 18, 1967, Exh. 2014. The
order refers to "transcripts of logs." However, only summary "airtels" were
produced.
114
The parties agreed that Exhibits 306 and 307, for example, were
included in the federal production in the Marfeo case. Although Balliro
remembered nothing about the content of the materials he had been shown in the
earlier case, I admitted these documents for the limited purpose of showing
what some of the airtels in the Marfeo case consisted of.
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have withdrawn from the Deegan case. See Tr. vol. 9, 28-29. In
information. Jimmy Flemmi had admitted that he was the "bald man"
in the back of Barboza’s car on March 12, 1965. See Tr. vol. 9,
about whether the man in the car was Jimmy Flemmi rather than
Salvati, see Tr. vol. 9, 52, because ethical rules prohibited him
was only with Judge Hinkle’s order that Balliro revealed what
Flemmi had told him. But whether or not Balliro ought to have
3. The Verdict
115
He did not have information from any other witnesses that Jimmy
Flemmi had been a participant in the Deegan murder. See Tr. vol. 9, 57.
116
Greco was found guilty of murder in the first degree, and Limone and
Tameleo (along with Cassesso) were found guilty as accessories before the
fact. All four of these men were also found guilty of conspiracy to murder
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four to five year term he was serving on other charges. See Exh.
294 at 6.
Deegan verdict was its behavior afterwards. The FBI took credit
for Barboza’s testimony from the very start. See, e.g., Exh. 111
at 5. The day that Barboza testified before the Deegan grand jury
the agents of the Boston office." Exh. 94A.118 When the Deegan
Deegan and Stathopoulos. Salvati was found guilty of being an accessory after
the fact. French was found guilty of first degree murder. See Exh. 338, ¶¶
50-51.
117
USA Markham was present at the plea. Zalkind represented that
Barboza’s cooperation had been essential in the federal prosecution of
Patriarca, Tameleo and Cassesso, as well as the Deegan trial. See Exh. 294 at
6.
118
Likewise, at the time of the indictment, Suffolk DA Byrne commented
that the "entire case" was "developed through the efforts and able handling of
Barboza" by Rico and Condon. Indeed, he added, "this indictment would not
have been possible" but for their efforts. Exh. 91.
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Exh. 106 (italics supplied). The SAC added that Rico and Condon
51G.119
Both Rico and Condon were recommended for quality salary increases
119
Agent William T. Boland was also cited for his testimony undermining
the alibi testimony of Greco’s wife. See Exh. 106.
120
In the memorandum, Stephen Flemmi is referred to by his informant
symbol number - BS 955 C-TE. See Tr. vol. 2, 87.
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1968 for his work developing Barboza); Exh. 193A at 133 (Condon
their efforts. See Exh. 51D (recommending Rico and Condon for
incentive award); Exh. 53D (informing Rico that he has been given
an incentive award).
121
At this point, Barboza had not yet agreed to testify in the Deegan
matter. SAC Handley’s recommendation memo refers to the indictments against
Patriarca, Tameleo, and Cassesso in the Marfeo case. Barboza told Agents
Condon and Rico that he could testify in the Deegan matter on July 31, 1967.
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After each meeting with Barboza, Rico and Condon would sit
See Exh. 193A at 183; Exh. 71B. The reports were then sent to
Exh. 193A at 74, 99, 230-33. Boston SAC Handley had custody of
state Deegan trial, see supra Sections III.B. and III.C., and all
the way through the defendants’ motions for new trials and parole
122
These reports are referred to as "302s." Exh. 339, ¶ A4.
123
Condon testified that it was likely that Kehoe read the reports. See
Exh. 193A at 153.
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poster boy" for the nascent program. See Exh. 2341 at 44. When
life for him in Santa Rosa, California. See, e.g., Exh. 121A. On
February 12, 1970, AUSA Walter Barnes and Deputy Chief Edward
124
For example, the Boston office and Headquarters continued to keep
tabs on the Deegan prosecution long after the trial ended. On November 23,
1970, the Boston SAC sent an airtel to the Director alerting him that the
defendants’ motions for a new trial had been denied. The airtel indicated
that additional motions were expected to be filed and the "Bureau will be kept
advised." Exh. 133.
125
Edward Harrington was an Assistant United States Attorney in the
District of Massachusetts until he became Deputy Chief of the United States
Organized Crime Strike Force in May of 1969, and Chief in October 1970. He
left the government on March 31, 1973, to go into private practice. See Exh.
2341 at 7-8. He returned to serve as the United States Attorney for the
District of Massachusetts from 1977-1981. He currently serves as a Senior
Judge on the United States District Court for the District of Massachusetts.
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retract his testimony given in the aforesaid cases126 and will make
known to the press that the Government did not give him a fair
126
The Deegan murder was one of the cases mentioned.
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the truth were known there were probably more involved than were
that several months earlier Barboza had admitted that Greco was
County contacted AUSA Harrington who then reported to the FBI that
127
The interview was apparently conducted in response to accusations
made by Boston City Police Officer William Stuart. William Stuart filed an
affidavit, Exh. 2049, reporting that he had informed Detective Doyle of his
belief, based on his informants, that Greco, Limone, Salvati and Tameleo were
innocent. The government sought the affidavit's admission as proof of yet
another Suffolk County independent investigation. While there is no
indication that the FBI had this report, Rico plainly knew why he was being
interviewed, namely that informant information in the possession of the state
authorities was at war with Barboza’s testimony.
128
In more recent testimony, Rico confirmed that given all the
information he had about the Deegan murder, it was "logical" that Jimmy Flemmi
was involved. See Exh. 170 at 193.
129
All this was recorded in a June 22, 1970, FBI airtel from SAC Boston
to the Director, noting that the Bureau would be kept advised of all future
developments. See Exh. 119.
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days later the charges against him were nolle prossed, but his
him there. See Exh. 121C; see also Exh. 121B (a July 21, 1970
information).
By the summer of 1970, the news about Barboza was worse. The
130
The memorandum was copied to five other individuals in the FBI --
Sullivan, Bishop, Gale, Staffeld, and Benjamin -- as well as the Deputy
Attorney General and the Assistant Attorney General for the Criminal Division.
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note indicating that Doyle from the Suffolk County DA’s office
inadmissible and there was no "valid reason" why they should allow
relationship with the FBI, I have no doubt that the FBI was aware
131
Harrington testified at his deposition that Barboza had originally
requested to meet with Barnes and Condon, but Condon was unavailable so
Harrington went in his stead. See Ex. 2341 at 19-20.
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Barboza told them that he was still on the government’s side, and
only signed the affidavit because the LCN paid him to. He agreed
not to take the polygraph. See Exh. 126; Exh. 2341 at 19-20.132
conduit for the LCN bribe. See Exh. 2341 at 25.133 Significantly,
Barboza.134
to his original story. See Exh. 2341 at 30. The facts suggest
revocation warrant brought by the Suffolk D.A. The FBI plainly was
the airtel (reporting Bailey's lawsuit), the FBI could not have
132
Barboza also requested that his wife be relocated and that he be
taken into federal custody at Fort Knox. See Exh. 126.
133
Plaintiffs object to Barboza’s statements being offered for truth.
See Exh. 2341A. The government responds that they offered it for the non-
hearsay purpose of simple notice to the government of that charge, and I
agree.
134
Bailey testified that he became aware of the Harrington and Barnes
meeting with "his" client some time before September 4; plainly, that meeting
was the basis for his withdrawal. See Tr. vol. 8, 17.
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been more clear. It noted that "[i]n view of" Bailey's motions,
The memorandum noted that the FBI had decided not to do anything
Barboza's "parole violation time" was about to run out, the "DA's
ensure his presence in the area. See Exh. 127. It also had the
new trial in the Deegan case were resolved. Barboza plainly got
the message.
135
The memo, Exhibit 124B, says "invoke" instead of "revoke." In
context, this is clearly an error.
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refused to take the polygraph because Harrington asked him not to.
To be sure, the FBI knew that the LCN was not above bribing
note 109.
was entirely consistent with everything that the FBI had in their
136
Harrington indicated that he believed this was a false recantation
because Barboza's trial testimony in the federal prosecution of Patriarca had
been consistent with the wire information. But he acknowledged that he knew
nothing about the Deegan case. Nor did he check to see if the wire had
confirmed the Deegan testimony. See Exh. 2314 at 26-27. If he had, he would
have learned that it did not.
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FBI sent him to Santa Rosa, California where they "cared for" him.
Exh. 186 at 10-11.137 But their "caring for" him did not stop him
Under the alias "Joseph Bentley," Barboza met Clay Wilson and
Ambrosini lest they interfere with his plans. The content of his
that." Exh. 184 at 24. He warned them that no one "burned" him
and got away with it. Id. He told them "that Salvati 'burned' him
137
Deposition of Tim Brown, Detective Sergeant in the Sonoma County
Sheriff’s Department.
138
Deposition of Roxsan Ambrosini.
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Id. He then told them that Salvati "was never going to get out of
297.139
in front of his wife, shooting him in the head. See Exh. 184 at
139
Wilson and Ambrosini took it as a threat -- "if he did that to
Salvati because of $400, what do you think he would do to Clay if [he] got
burned for a million -- for millions of dollars." Exh. 184 at 25 (quoting
from Exh. 297). Barboza also showed Ambrosini "papers and news clippings and
pictures of this man lying in a pool of blood and things like that." Exh. 184
at 28. According to Ambrosini, Barboza kept a closet in his house full of
"artifacts" - scrapbooks, papers - from the "Deegan/Salvati thing." Exh. 184
at 31-32.
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56.
great interest in the Wilson case. On October 13, 1970, the San
Santa Rosa police that Barboza killed Clay Wilson. See Exh.
Detective Sergeant Brown learned from the press that two agents
from the FBI were to be called as witnesses for Barboza. See Exh.
140
The document indicates it was read by Clyde Tolson and Sullivan of
the FBI.
141
October 15, 1970 memorandum from Boston to San Francisco and Director
regarding developments in the Wilson case.
142
He added, "[w]hen and if F.B.I. agents testify as defense witnesses,
it would be appreciated that they do me the courtesy of contacting me first
and allowing me to interview them concerning their possible testimony." Id.
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do in the Wilson trial was precisely what Condon had done in the
Clay Wilson allegations in the context of reports that two LCN hit
men had traveled to Santa Rosa to kill Barboza. And they sought
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from first to second degree murder. See Exh. 186 at 71-72; Exh.
motion for a new trial, but that Barboza’s "cooperation with the
143
Brown testified that he "believed" that the federal authorities
testified because they feared Barboza would recant his prior testimony. He
based his belief on a statement from Agent Ahlstrom, a California FBI agent.
See Exh. 186 at 55. I have no other details about the Ahlstrom statement --
who he was, when it was made, etc. -- and therefore cannot consider it.
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serving less than five years. See Exh. 144A. He died several
By 1988, the FBI should have had even greater concerns about
its LCN initiative and the methods employed. That year, the
(R.I. 1988), Exh. 301, found, among other things, that Rico had
145
Harrington testified that he had appeared before the parole board
after he returned to private practice on March 31, 1973, see Exh. 2341 at 8,
and was given a special designation by the Department of Justice to do so.
Id. at 57-58. In fact, Harrington recalls that he was "almost explicitly, if
not explicitly" asked to testify before the Board by the Attorney General.
Id. at 57. (I find this testimony responsive, over plaintiffs’ objection.
See Exh. 2341A.)
Although the series of 134 exhibits were not admitted for their truth,
Harrington’s statements made before he left government practice at the end of
March 1973 may be taken for their truth as admissions of a party under Fed. R.
Evid. Rule 801 (d)(2).
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during the Manocchio trial, Kelley stated that his armorer had
actually "cut down" the shotgun. Kelley said that Rico had
because the armorer was a valuable FBI informant that Rico wanted
Id. at 1090-91. The court also found that Rico had caused Kelley
to lie about the promises that Rico had made to obtain his
vouched for Kelley on the stand, just as Condon had vouched for
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developed witnesses.147
constant contact with the FBI, in particular Agent Rico. See Exh.
189.)
crime group, from the late 1970s to the early 1990s. "[T]he long
146
The Rhode Island revelation puts Rico’s 1970 comments into context.
Rico told the Suffolk investigators he believed "that the case, Deegan, was
accurate as could possibly be, that unless perjury were committed there was no
way to free the three men [Detective] Stuart claims were the wrong guys.
Limone, Greico, Tameleo." Exh. 118. He was correct - the only way to free
the wrongfully convicted plaintiffs was for the FBI’s secret information,
showing that Barboza had committed perjury, to come out.
147
The Rhode Island decision, Exhibit 301, is admitted as notice to the
FBI.
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before me compels the same inference. The Bureau did not abide by
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his status was upgraded to Top Echelon that December. See Exh.
more important to the FBI than any of the crimes they knew him to
FBI only became more and more embroiled with Flemmi and his
public view.148
tried to clear their names, first through motions for new trial,
148
Some of the findings here rely on Exhibit 182, the parties agreed-
upon statement of facts in United States v. Flemmi, submitted in connection
with Stephen Flemmi's plea agreement in that case. Initially, I admitted it
as an admission by the government. See Tr. vol. 4, 117. Alternatively, it is
admissible under the residual hearsay exception, Fed. R. Evid. 807, which
allows for hearsay that is not covered under Rules 803 or 804 but has
"equivalent circumstantial guarantees of trustworthiness." The statement of
facts was agreed upon by both Flemmi and the United States. There is no
reason to question its credibility. Rule 807 requires that the government be
given notice in advance of trial that the exhibit was to be offered. They
were. See docket entry #448, plaintiff's preliminary exhibit list (Trial
Exhibit 182 was Exhibit 1591 on the initial list). Parties are entitled only
to notice that evidence will be offered; they do not need to be told all of
the possible theories that the evidence may be admitted under. See Piva v.
Xerox Corp., 654 F.2d 591, 596 (9th Cir. 1981); United States v. Evans, 572
F.2d 455, 489 (5th Cir. 1978).
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Barboza.
Governor with advice and consent from the Governor’s Council. The
to the Governor’s Council, and finally, the Parole Board. See Tr.
10, 24. The FBI never provided the Advisory Board with any of the
149
Under Massachusetts law, inmates could seek commutation of their
sentences and release on parole. See Tr. vol. 10, 21.
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Greco, and Salvati. See Tr. vol. 10, 26, 29, 31-34. To the
FBI hamstrung the Advisory Board and the Governor just as it had
all the more true after Barboza’s demise in 1976. The key to the
150
His first was filed in November 1975 and denied on March 10, 1976;
the second was filed in March 1976 and denied on March 2, 1977; the third was
filed on February 5, 1979 and denied on February 23, 1979; the fourth was
filed in July 1980 and denied on November 11, 1980; the fifth was filed on
November 13, 1985 and although the Board initially voted to grant a hearing,
the petition was denied without one. See Exh. 258; Exh. 259; Exh. 260; Exh.
261; Exh. 262A; Tr. vol. 10, 24.
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the FBI. See Exh. 262C. The FBI responded only by informing the
Board that Salvati had been seen with a certain individual at the
information from the FBI again. See Exh. 262F. On June 7, 1989,
the DA’s office also wrote to the FBI requesting "any information
that your office has with regard to Mr. SALVATI’S involvement with
copy of the document indicates that "[John] Ford [of the DA’s
further information. See Tr. vol. 10, 27. Not deterred, Curran
151
The letter indicated that the Massachusetts State Police had already
forwarded information concerning that individual to the Parole Board. No
further information was provided in the record before me.
152
"As in the cases of Peter LIMONE and Louis GRECO, we are preparing a
response concerning [Salvati’s] petition for executive clemency." Exh. 335.
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and the Parole Board granted Salvati parole on February 26, 1997.
four months, and 23 days in prison. See Exh. 267A; Exh. 266A.
information contained in its files. See Tr. vol. 10, 28, 31.
office. At no time during this visit did they provide him with
153
No further information was provided to me on the content of that
visit. However, when coupled with the FBI's refusal to provide exonerating
information, then-U.S. Attorney Weld's letter to Governor Dukakis "strong[ly]"
recommending that Limone's petition be denied, and Connolly and Morris's
evident interest in protecting Stephen Flemmi and his secret status, see supra
Section III.D.8, it is clear as day that the agents went to Albano to get him
to deny Limone's petition.
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154
"On February 11, 1976, Joseph Barboza Baron was executed in gangland
fashion . . . . This murder continues to be actively investigated by the
Federal Bureau of Investigation, the New England Organized Crime Strike Force,
and the San Francisco Authorities." Exh. 277C. The very next sentence
reported that Limone was an important organized crime figure still.
155
"Confirming our conversation of earlier today, it is the understanding
of this office and of the Boston Organized Crime Strike Force that top-level
members of organized crime in Boston desire to have Peter Limone assume charge
of the day-to-day operations of organized crime in this area, if Mr. Limone is
released from prison and if these top-level members should become involved in
litigation with the Government." Exh. 277F.
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commutation with the Advisory Board. See Exh. 340, ¶ 22; Tr. vol.
10, 32. Two subsequent petitions were filed by Greco with the
Advisory Board. See Exh. 340, ¶¶ 24, 26; Tr. vol. 10, 32-33.
Again, the Board sought information from the FBI, See Tr. vol. 10,
4, 5.
January 19, 1993. His third petition, filed on November 21, 1995,
See Exh. 340, ¶26, became moot. Greco died in prison on December
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30, 1995. Id., ¶ 27. On January 3, 1996, Greco’s third and last
skein: Had the FBI come forward about Barboza’s perjury in the
years]." Exh. 117A. Had the FBI come forward with their secret
Echelon informant program and its members would have been exposed,
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extinguished.
In short, the FBI was intent on keeping the lid on the very
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the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346 and 2671-
Mass. 2003) ("Limone I"), aff'd Limone v. Condon, 372 F.3d 39 (1st
proceed. Now that they have proceeded through trial, the question
I find that they have been proved. The FBI was responsible
for the framing of four innocent men. They suborned perjury and
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A. Prior Issues
156
The government addressed only a limited number of issues in its final
briefing, noting that it continued to stand on all defenses it had raised
previously. See United States' Proposed Report - Trial Findings of Fact and
Rulings of Law, docket entry # 544 at 42 n. 27. Defenses raised perfunctorily
may not be considered on appeal. See Muniz v. Rovira, 373 F.3d 1, 8 (1st Cir.
2004) ("It is a bedrock appellate rule that issues raised perfunctorily,
without developed argumentation, will not be considered on appeal.").
157
Specifically, defendant targeted plaintiffs’ claims 1) for negligent
supervision, 2) based on the decisions to use Barboza and Flemmi as
cooperating witnesses/informants, 3) based on failure to investigate or
prosecute Flemmi’s criminal activity, and 4) based on failure to disclose
exculpatory information to the Deegan defendants or state agencies.
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Because "the party who sues the United States bears the
apply here. Williams v. United States, 50 F.3d 299, 304 (4th Cir.
F.2d 1155, 1162 n.6 (1st Cir. 1987). Plaintiffs have carried this
the FBI’s conduct, of which those claims are only a part. That
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country stands.
158
The Court must ask "whether the challenged acts . . . are of the
nature and quality that Congress intended to shield from tort liability."
United States v. Varig Airlines, 467 U.S. 797, 813 (1984).
159
This is not to say that defendant’s violation of plaintiffs’ due
process rights is per se actionable under the FTCA. The conduct alleged must
still fulfill the elements of a tort as to which Congress has waived
government immunity. For the purposes of the FTCA, that such conduct is
unconstitutional means only that it can never be protected as a "discretionary
function."
160
FBI rules provide that "no employee shall engage in criminal,
infamous, dishonest, immoral, or notoriously disgraceful conduct or other
conduct prejudicial to the Government." Exh. 178 at LIM007-1521, FBI Manual
of Rules and Regulations ("MRR"), Part I, Section 1(D)(18). In addition, the
FBI’s Manual of Instructions ("MOI") states that "[w]hile it is proper for the
FBI to use informants in appropriate investigations, it is imperative that
special care be taken not only to minimize their use but also to ensure that
individual rights are not infringed and that the government itself does not
become a violator of the law." Exh. 177 at LIM007-1256, MOI Section 108(IV).
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There were also extensive FBI rules and regulations regarding sharing of
information with state law enforcement agencies.
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Claims for intentional torts are barred only when the claims
before 1974.
post-1974 misconduct brings its acts within the ambit of the FTCA.
B. Malicious Prosecution
Under the FTCA, the United States may be sued for torts
161
Before the FTCA was enacted, the common law immunized the federal
government from liability to a person injured by the negligence of an
employee. Compensation for government negligence required private bills, a
substantial burden to Congress. 92 Cong. Rec. 6370 (1946) (remarks of Sen. La
Follette). The FTCA was enacted in 1946 to provide a better procedure to deal
with such claims. Title IV of the Legislative Reorganization Act of 1946,
Pub.L. 601, tit. IV, 60 Stat. 812, 842 (1946).
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must be one for which a private person could be sued under "the
law of the place where the act or omission occurred," and must
28 U.S.C. § 1346(b)(1).
"the law of the place" for FTCA purposes. To prove a claim for
Until the 1974 amendments, the FTCA waived the government’s sovereign
immunity only for negligent actions of government agents acting within the
scope of their employment -- not for intentional torts. That changed on March
16, 1974 after a series of highly publicized and plainly illegal home raids by
federal agents in Collinsville, Illinois, see 1974 U.S.C.C.A.N. 2789, 2791
(1973). As a result, Congress amended the FTCA by allowing a lawsuit for
certain intentional torts committed by federal law enforcement agents, notably
including malicious prosecution.
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to be able to handle the case from there on," Exh. 170 at 186,
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are protected. But the FBI was more -- far more -- than an
control of this prosecution. The same FBI that praised Rico and
163
In Limone I, I addressed the government's argument that the Greco and
Tameleo plaintiffs had not met the favorable termination prong because they
died in prison before their convictions could be officially reversed. I
determined that position to be absurd and fundamentally unjust. "First,
government wrongdoing that effectively denied access to post-conviction
remedies would excuse the failure to show favorable termination. Second, in
the unique factual circumstances of this case, I find that Greco and Tameleo
have satisfied the ‘favorable termination’ requirement under a theory of
constructive reversal. The reasoning behind the court decision vacating
Limone's conviction and the nolle prosequi formally issued in favor of Limone
apply in at least equal measure to them." Limone I, 271 F. Supp. 2d at 361.
Since that decision on July 17, 2003, Suffolk County has entered nolle
prosequis for both Greco (September 23, 2004) and Tameleo (January 25, 2007).
See Exh. 3G; Exh. 3H.
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witness." Exh. 51G. And apart from encomiums heaped on the two,
words, the FBI said "just trust us" to the state, and then vouched
thirty years, all the while supporting Barboza until his death,
filed motion after motion for a new trial, the courts that
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what had happened, who Barboza was, or how false his testimony had
only what Barboza said to the state authorities, but what the FBI
that did not amount to probable cause to believe that these men
had been involved in the Deegan murder. On the contrary, the FBI
had proof -- substantial proof -- that they had not been involved.
which the FBI was fully complicit. Not only did the FBI
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IV.B.2.b.2.
case makes it clear. Nor was there any other intervening cause --
Section IV.B.2.b.3.
1. Initiation
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Office, for whom they are not responsible. Jack Zalkind, the ADA,
their own to initiate the prosecution. All that the FBI did was
responsibility.
617, 617 (Mass. 1901). On the one hand, the community’s interest
papers, swore out the complaint, etc. The case law requires that
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2d at 215).
information be truthful:
164
Indeed, the case law even recognizes the law of inducement. Where
one party, for example, acts to induce a police officer to bring charges, that
party may well be responsible for the initiation. Tangney v. Sullivan, 39
N.E. 799, 799-800 (Mass. 1895).
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Jones, police officers cannot hide behind the officials whom they
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admitted that Barboza was "the most important witness" he had ever
the FBI. Since Barboza was Rico’s most important witness, in the
Boston FBI’s most important program, Rico and Condon were not
about to yield any control over him. And they did not. They were
Section III.B.4.b.3. It was only after the FBI had met with
Barboza myriad times, pumped him for information over five months
protection to him and his family, and made decisions about the
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argument goes, it made sense that Rico and Condon did no more than
testimony that they just did not remember seeing information that
language in FBI memoranda from the summer of 1967, after the FBI
165
Harrington said as much several years later. He believed in
Barboza’s veracity because what he said in the Marfeo case checked out with
the Patriarca wire. See Exh. 2341 at 26.
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"talk" on, including the Deegan murder. See Exh. 71B-17; Exh. 89.
The notion that the FBI was just a bystander in the meetings
including the Deegan murder. The FBI had first pick. See supra
Cassesso. But that choice does not suggest that the two state
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case, the conclusion is the same: The FBI agents were in complete
utter callousness with which the FBI dealt with the plaintiffs.
They were indifferent to the fact that four innocent men would be
Barboza did so on his own. The FBI knew Barboza was lying on
166
See supra note 35. Indeed, the DiSiglio indictment in August of
1967, which was based on Rico’s account of Barboza’s testimony, resulted in a
flurry of congratulatory messages noting that this "tremendous penetration
into the LCN and the Hoodlum Elemnet [sic] was effected through the
outstanding investigative efforts of the FBI and this office." Exh. 91. See
supra note 60.
167
See supra note 91. The FBI’s interest in Limone is suggested by a
teletype singling him out and indicating that he "like Angiulo, when indicted,
will be detained indefinitely awaiting trial and bail will not be granted to
him." Exh. 92.
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the jury, rewarded and supported him, helped him withstand cross-
effort. And significantly, when it was all over, the FBI took
credit, not simply for Marfeo, but for Deegan. See supra Section
described in the case law, the FBI did not merely provide a
witness and stand back, letting local law enforcement do the rest.
To the extent that Rico and Condon denied knowing about the
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partner Condon and the FBI hierarchy -- through Kehoe, the head of
the Organized Crime Squad, the SAC, or even the Director -- never
2006), for example, the court held that where FBI agents had
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law as well. Cf. Mason v. Jacot, 127 N.E. 331, 332 (Mass. 1920)
168
The cases the government relies on are unavailing. Interpreting
Puerto Rican law, the First Circuit concluded in Negron-Rivera v. Rivera-
Claudio, 204 F.3d 287 (1st Cir. 2000), that just reporting a crime to the
police and cooperating with the ensuing investigation is not enough to meet
the initiation element. See Negron-Rivera, 204 F.3d at 290. But the Court
added a caveat: "It is conceivable, in a different case, that a defendant
could ‘instigate’ an otherwise independent prosecution." Id. at n.1 (internal
citations omitted) (italics supplied). Nor is Senra v. Cunningham, 9 F.3d 168
(1st Cir. 1993), supportive of the government’s argument. Interpreting Rhode
Island law, the First Circuit held that "[t]he chain of causation is broken if
the filing of the information [criminal complaint] by the attorney at the
state Attorney General’s office was free of pressure or influence exerted by
the police officers or knowing misstatements made by the officers to the
Attorney General’s office." Senra, 9 F.3d at 174 (italics supplied).
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weeks following the murder, and the second conducted by Doyle and
Walsh two years later. The first investigation was a dud; it left
story -- a story that the FBI knew to be false. Since the proof
confirm it. As the fact findings show, the most Zalkind could do
Zalkind admitted as much: What he was not told was far more
information the FBI had, he would have done what the present
he had shared that information with the defense, the judge in the
169
To be sure, the FBI now argues that it disseminated "the essence" of
its information to the local police during the initial 1965 investigation.
This was not the case. Again, the best proof is what the state authorities
said in their submissions to the Suffolk Superior Court and former ADA
Zalkind's comments in the case at bar.
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Deegan trial might well have done what Judge Hinkle did - put an
need the information that the FBI was withholding. The argument
hamstring Zalkind.
Napue v. Illinois, 360 U.S. 264, 269 (1959). If the jury could
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As the record reflects, the FBI’s efforts did not stop with
170
This situation is not remotely analogous to that in Correllas v.
Viveiros, where the information-giver was herself involved in the crime.
Viveiros was a suspect in the very same theft and the police knew that.
Whatever information the police could glean from her implicating another was
information that they could independently evaluate based on their knowledge of
her bias. See 572 N.E.2d at 10.
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Rico, and Harrington vouched for Barboza again, telling the jury
what he had done to help the FBI and how threatened he was. (3)
just Rico's belief that Jimmy Flemmi "probably" was involved. (4)
for a new trial, they might well have been successful. The
plaintiffs' innocence. (5) And finally, if the FBI had shared the
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and the parole authorities did: Ask the FBI. And the FBI was not
talking.
171
The government has introduced a number of exhibits dealing with
plaintiffs’ other alleged "bad acts." The parties hotly disputed the
admissibility and relevance of these exhibits at trial. I admitted them in an
effort to allow the government wide latitude to make its probable cause
defense. The government has not used any of these exhibits in its Proposed
Findings of Fact and Rulings of Law. Indeed, none of these exhibits, 2228-
2302, relate to the Deegan murder. None of them counter plaintiffs’ proof of
lack of probable cause. In fact, they prove the opposite. To the extent that
the FBI had derogatory information about the men, it had a motive to encourage
their prosecution regardless of how flimsy the basis. Relying on these "bad
acts" comes close to saying that it did not matter if these men were innocent
of this crime; they committed others, and that’s good enough. Our system does
not work that way.
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testimony was perjured and the FBI suborned that perjury. I will
Exh. 170 at 189. They knew that he would lie about Jimmy Flemmi’s
information that Flemmi and Barboza were about to kill Deegan, see
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information that the FBI had from their extraordinary sources that
and Martin. See supra Section III.B.4.b. It was also the way in
that should have alerted them to his perjury (assuming that they
the "hit" with Tameleo approving it, although the wire indicated
that Limone had expressly warned Deegan about the threats and it
was Patriarca who had approved the action. In fact, the FBI knew
from Patriarca, who told them to get final approval from Angiulo.
The FBI had every reason to believe that Barboza had constructed
(3) Greco
topcoat. The FBI knew none of the witnesses had seen Greco on the
scene or at the Ebb Tide. See e.g., Exh. 33. In short order,
172
Indeed, as I find in Section IV.B.2.b.1, the record suggests that the
FBI went further, supplying Barboza with reports and other information to
shore up what they knew to be false testimony. I want to make clear, however,
that even if Barboza had altered the story without their aid, the FBI had no
probable cause to pursue this prosecution.
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meeting in the bar and, indicating that he could not remember what
(Greco left the Ebb Tide at the same time as the others) and Exh.
71A-3, Exh. 95 (dated October 16, 1967) (Greco did not go to the
Deegan and shot him with a .45 caliber gun, the FBI had
Exh. 28, and indeed, that Barboza had claimed that he had shot
Deegan with the only .45 on the scene. See Exh. 34; Exh. 68; see
(4) Salvati
173
Barboza had specifically noted that the car he was in had been
approached by a "Chelsea Police Captain," information he could only have had
if law enforcement had told him about it. Kowzlowski had been off-duty on
that night, not in uniform. See Exh. 2312 at 4680. Captain Kowzlowski
reported the man in the car had a bald spot. Rico knew that that fit Flemmi’s
description, and Barboza would not implicate Flemmi. By his October 16, 1967
statement, Barboza explained that Salvati wore a bald wig.
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The FBI did not have probable cause to believe that the
Ramos v. Gallo, 596 F. Supp. 833, 840 (D. Mass. 1984). Put
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from the history of the Durham disclosure and its seismic impact
head of the DOJ’s Justice Task Force, sent the plaintiffs’ then-
attorneys and Suffolk ADA Mark Lee the five Durham documents, he
admit him to bail. Judge Hinkle granted the motion for a new
trial "on the basis of . . . the FBI records, nothing more." Exh.
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ethically" to proceed with the cases. See Exh. 3B; Exh. 3D.
prosecution claims.
In the instant bench trial, however, there was far, far more
more clear. The verdict in this case was impeached by the FBI’s
process.
(1) Subornation
The government argues that "even if" Agents Rico and Condon
knew that Barboza’s story was false -- and I find that they did --
Petite v. U.S., 262 F.2d 788, 796 (4th Cir. 1959). Subornation
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realm. The witness had told one story and then offered a
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witness’ independent act. Thus, Rico and Condon need not have
that he would never let Jimmy Flemmi "fry," the government went
lie about Flemmi, they pressed him to move from being a source of
jury (on March 21, 1967), long before he had agreed to testify.
lie.
of thin air, the FBI did not contradict him, confront him,
question him about the change in his story, much less tell the
showing again by what they said and did that adding these names
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against the LCN, dependent upon the FBI for his physical
on the part of the FBI with regard to Barboza. The FBI clearly
testimony about Salvati and the bald wig; the fact that no
agents had visited Karger, and so on. See supra note 91. They
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Barboza’s perjury.
knowing that Barboza was lying; they stood by, knowing he was
his lying, shoring up the story they knew to be false, showing him
rewarded him for his lies; they sought to corroborate his lies
with other witnesses whom they controlled; they did all this and
then vouched for the veracity of his lies -- to the DA and to the
jury.
the First Circuit described it, "we are unsure what due process
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Holohan, 294 U.S. 103, 112 (1935) (due process "is a requirement
the state for his testimony. The prosecutor knew this testimony
was false but did not correct it. See Napue v. Illinois, 360 U.S.
174
The Court was addressing these issues in connection with the FBI’s
claim of qualified immunity. The analysis is similar: The allegations if
proved were so egregious that no reasonable officer could have believed his
conduct was immunized. I find that they have been proved.
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in a given case. See Napue, 360 U.S. at 269 (attributing the duty
F.2d 1349, 1350-51 (5th Cir. 1969) (police officers violate this
knowledge); Curran v. Delaware, 259 F.2d 707, 713 (3d Cir. 1958)
The FTCA, of course, does not hold the government liable for
cause.
probable cause.
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There was some evidence against Tameleo and Greco, but upon
and Greco attempted to bribe Barboza into not cooperating with the
because the FBI knew this testimony to be false to the extent that
testified in other Boston cases. See Exh. 287; Exh. 288; Exh.
witness and, again, did not disclose the FBI reports that
175
See supra Section III.C.2.
176
Information with respect to the bribe was uncovered by the FBI in
July of 1967. Documents generated at the time suggest that the bribe involved
the Marfeo prosecution and Barboza’s testimony against Patriarca and Tameleo.
See Exh. 287.
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Stathopolous said, however, was that Greco "look[ed] like" the man
e.g., Commonwealth v. Bishop, 401 N.E.2d 895, 898 (Mass. App. Ct.
c. No Other Evidence
that the convictions came about not because of FBI misconduct, but
was a conviction, it was their fault, not the FBI’s. The FBI's
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and the informant reports -- from the present Suffolk County ADA
the Patriarca wire had become public in the Marfeo case, see supra
nothing about the Deegan case was disclosed. Indeed, Condon was
as counsel for both Tameleo and Jimmy Flemmi, they do not excuse
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N.E.2d at 1039 n.9). See also Seelig v. Harvard Coop. Soc’y, 246
Malice has plainly been shown in this record. The FBI wanted
about what they knew and when they knew it. They were indifferent
to the outcome of the Deegan case. Either way, they threw away
the liberty of these four men with wilful disregard for their
for the lives and families they sacrificed at the alter of their
177
One Congressman asked how these men could have gone to death row on
the basis of Barboza's testimony, adding: "As an experienced law enforcement
officer, isn't that shaky, even by confidential informant standards?" Rico
answered, "Well, there isn't any good answer to that." Exh. 170 at 199.
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Exh. 3B; Exh. 3D; Exh. 3G; Exh. 3H. See also Wynne v. Rosen, 494
case that they could neither legally nor ethically pursue the
402 F.3d 50, 58 (1st Cir. 2005) ("Under the FTCA, the relevant
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be brought under the FTCA: In Bolduc, the First Circuit held that
178
In that case, plaintiffs brought a negligence claim against the
government (standing in the shoes of employee FBI agents) for the FBI’s
failure to turn over Brady documents. FBI Agents Craft and Craig investigated
a bank robbery at the Southgate mall in Wisconsin. The agents gathered
eyewitness and showed them photographs of potential perpetrators; the photos
did not include pictures of the men eventually prosecuted and convicted for
the crime. One 302 report, written by Craft, recorded that the witnesses
found two of the photos "similar" to the robbers. Another 302, written by
Craig, described the identification as "identical." See Bolduc, 402 F.3d at
52. Craft was responsible for reviewing the reports and correcting any
errors, after which he was to put them in the case file. Craft, however,
excluded the reports from the file. Later, two other men -- Bolduc and Larken
-- were arrested, charged, and convicted. The witnesses who had made the
prior "similar" or "identical" IDs, now fingered Bolduc and Larken for the
crime. The prosecution never mentioned the previous contradictory
identifications. Eventually, the exculpatory reports were made known, someone
else confessed to the crime, and Bolduc and Larken filed a suit under the
FTCA.
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179
Of course, a plaintiff may bring a claim under the FTCA if the state
would impose tort liability on a private person in sufficiently similar
circumstances. Therefore, in Bolduc, the court next asked whether Wisconsin
would impose tort liability on "a person who comes into possession of
exculpatory evidence as part of an official investigation and carelessly fails
to disclose that evidence to prosecutors (and, ultimately, to the accused)."
Bolduc, 402 F.3d at 57. In a like case, the Wisconsin Supreme Court
determined that where a doctor’s negligent performance of an autopsy resulted
in the plaintiff’s wrongful prosecution, "he is still not held liable to the
person who has been subjected to unjustifiable prosecution in the absence of
malice." Bolduc, 402 F.3d at 59 (quoting Bromund v. Holt, 129 N.W.2d 149, 153
(Wisc. 1964)). The First Circuit concluded that Wisconsin law would not
impose tort liability for the negligent failure to disclose exculpatory
evidence, and so the FTCA claim necessarily failed.
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ground that such claims do not survive the death of the victim,
Life Ins. Co., 396 N.E.2d 987 (Mass. 1979). In Harrison, the
180
The government also tries to use Bolduc to argue that because
plaintiffs have not cited a Massachusetts case imposing private tort liability
for "failure to disclose exculpatory evidence," the plaintiffs have no FTCA
standing. Again, the government misstates the plaintiffs’ claims, which sound
in malicious prosecution. There is ample Massachusetts precedent for imposing
liability on these facts, fully discussed in Section IV.B.1.
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at 989.181
C. Civil Conspiracy
181
It is within my authority to predict the course of the Supreme
Judicial Court if "state law is sufficiently clear" to allow such a
prediction. See Hugel v. Milberg, Weiss, Bershad, Hynes & Lerach, LLP, 175
F.3d 14, 18 (1st Cir. 1999). See also Fischer v. Bar Harbor Banking & Trust
Co., 857 F.2d 4, 7 (1st Cir. 1988) (citing Michelin Tires, etc. v. First
National Bank of Boston, 666 F.2d 673, 682 (1st Cir. 1981)) (Even in the
absence of a "definitive ruling" by the highest state court, federal courts
may draw on "analogous decisions, considered dicta, scholarly works, and any
other reliable data tending convincingly to show how the highest court in the
state would decide the issue at hand."). In fact, if I am able to predict
their course, I am bound to. See Bi-Rite Enterprises, Inc. v. Bruce Miner
Co., 757 F.2d 440, 443 n.3 (1st Cir. 1985) ("Although Massachusetts allows
certification of difficult questions of state law to the Supreme Judicial
Court, it is inappropriate for a federal court to use such a procedure when
the course state courts would take is reasonably clear."). In this instance
it is clear. I conclude that in the case at bar, the SJC -- if presented with
the question of the survival of a malicious prosecution action -- would rule
as it did in Harrison, and find that the tort survives.
182
Plaintiffs also bring a claim for tort-based civil conspiracy, which
requires a predicate tort, and is essentially another vehicle for imposing
joint or vicarious liability. See Robinson v. Bodoff, 355 F. Supp. 2d 578,
585 ("ascrib[ing] liability to those who substantially assist or encourage
others to commit torts"); Aetna Cas. Sur. Co. 43 F.3d at 1564 (requiring "a
common design or agreement," express or implied, "and second, proof of some
tortious act done in furtherance of the agreement"); Stock v. Fife, 430 N.E.2d
845, 849 n. 10 (Mass. App. Ct. 1982) (referring to "a common plan to commit a
tortious act where the participants know of the plan and its purpose and take
affirmative steps to encourage the achievement of the result"); Zereski v.
American Postal Workers Union, 1998 Mass. Super. LEXIS 507, 27-28 (Mass.
Super. Ct. 1998).
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they would not have had if they had acted alone." Robinson v.
government is the defendant here and because Rico and Condon were not renegade
actors. Kehoe, Handley, and the entire FBI supervisory structure was in on
the wrongdoing. Because all of those actors played a part in the commission
of the underlying tortious conduct during the entire period challenged, the
conspiracy claim is redundant.
183
The FBI did not bother to argue this claim in their closing papers,
resting on the erroneous conclusion that it rises and falls on the fate of the
malicious prosecution claim.
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coercion" than the FBI’s actions here. Together with Barboza and
the Flemmi brothers, the FBI created a trap that was impossible
from changing his story. They used their unique status as federal
memoranda which would have disclosed the truth. They created the
unwitting pawn in their end game. Only the FBI and Barboza (and
testimony.
184
In Fleming, the Court concluded that the exercise of normal business
prerogatives could not create the "coercion" necessary to cross the line into
tortious behavior. "That power consisted in nothing more than the power to
make decisions as to foreclosures by a bank (a power which must be exercised
by someone in behalf of every bank) and the power to exercise in some manner
not stated ‘a commanding influence’ in the decisions of the selectmen as to
granting permits. We see nothing in the exercise of these powers by Dane and
Cousens in association with each other and with the other defendants as
alleged which gives to their acts in combination any greater or different
tortious quality than would be ascribed to the same acts if performed by
separate individuals only." Fleming, 22 N.E.2d at 611-12. Compare Willett,
136 N.E. at 370 (holding that it is tortious for "a combination of bankers to
inflict injury upon the business or credit of an individual by acts which
become illegal because of the influence and power they wield").
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edges -- to verify the parts that were not fabricated with the
Barboza, Rico and Condon obviously could not have influenced the
could not have been as effective. If they had not vouched for
him, if they had not coached him, if they had not shored up his
County, the prosecution would not have gone forward. Had their
185
See, e.g., Kurker, 689 N.E.2d at 836 (wrong is in the particular
combination of defendants achieving what individuals could not).
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at 1563. For the most part, courts find that its elements are not
plead that she was "coerced" into accepting the tobacco industry's
186
The plaintiff in Wajda did allege that the defendants inflicted
nicotine addiction on her -- a claim which could be construed as coercive.
But the Court determined there was no peculiar power at play -- that each
tobacco company, acting alone, could have done just the same. Wajda, 103 F.
Supp. 2d at 37.
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the tobacco industry did collude to suppress the truth about the
new trial and commutation petitions -- the FBI was the wall the
may appear to be two sides of the same coin, but the claims are
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four innocent men behind bars. The FBI, Barboza, and Flemmi
win appeals and pardons. The FBI, Barboza, and Flemmi conspired
prosecutions and expose the Top Echelon program and the wire. And
187
The plaintiffs characterize the conspiracy as a conspiracy "to
procure the testimony of Joseph Barboza in the Deegan murder case knowing that
Barboza would not truthfully relate the details of the Deegan murder to
Suffolk County investigators," Tr. vol. 22, 36-37, or as a conspiracy to
provide continued high quality LCN information to the FBI.
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wished to punish him for Wilson’s murder. Had Stephen Flemmi come
relationship with the FBI in general, all the secrets would have
They continued to commit crimes, for sure, but they refrained from
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(Mass. 1997) (quoting Payton v. Abbott Labs, 437 N.E.2d 171, 180
(Mass. 1982)).
executed, another that he would live the rest of his natural born
188
Section V, Damages, describes the myriad of other emotional harms
inflicted on the plaintiffs by virtue of their wrongful imprisonment -- their
loss of years with their spouses, the loss of watching their children grow,
the heartbreak of watching the effects of suffering on their families.
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of law because the IIED claims "arise out of" the same conduct as
that would not bar the IIED claims. The government's reliance on
that because the plaintiff's only injury in that case was his
under § 2860(h), his IIED claim was barred as well. See Metz, 788
F.2d at 1535. The government argues that I must conclude the same
here. But Metz is not the law of the First Circuit, which has in
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Defense, 984 F.2d 16, 20 (1st Cir. 1993), the First Circuit held
Block v. Neal, 460 U.S. 289, 298 (1983) ("the partial overlap
that if one is excepted under the Tort Claims Act the other must
315 (1957).
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waters, without end. The problem for the law is to limit legal
Airborne Freight Corp., 690 N.E.2d 413, 414 (Mass. 1998) (quoting
Tobin v. Grossman, 249 N.E.2d 419, 424 (N.Y. 1969). To curb the
Defendant argues that the family members have failed to show the
or a wrongful conviction for which the FBI was the likely culprit,
44-45.
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Inc., 10 Mass. L. Rep. 738 (Mass. Super. Oct. 15, 1999); Heinrich
IIED claims only where plaintiffs did not learn of the harm to the
occurred
Deegan defendants.190
189
Defendant cites no case on this point in its final brief.
190
In Limone II, I made a separate ruling on an independent issue based
on plaintiffs’ knowledge. There, I held that the statute of limitations for
claims based on the FBI’s conduct during the Deegan trial was tolled because
plaintiffs could not have known of that conduct until years later. Limone II,
336 F. Supp. 2d at 46. As I wrote in that decision, "Greco's argument that he
knew enough to maintain his emotional distress claim and did not know enough
to bring suit" are not mutually exclusive. Id.
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Even if plaintiffs had not shown that they had the required
knowledge -- which they have done many times over191 --I find that
keep the conduct secret from the plaintiff "we lay little stress
deciding this issue."); Quinn v. Walsh, 732 N.E.2d 330, 333 (Mass.
members were not fully aware that something unjust was happening to their
husbands and fathers. Emotions do not wait on the same burdens of proof as
courts of law. Plaintiffs knew enough to suffer the mens’ wrongful
convictions, but not enough to compel a court to act -- which is exactly where
the defendant knew they would be and made sure to keep them.
191
Discussed more fully in Part V.
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life; to listen while the date of his death is set; to have him
credit that it does not attempt to argue that such distress was
insufficiently severe.
emotional distress.
E. Negligence
plaintiffs must show (1) that defendant owed them a duty of care;
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suffered damage; and (4) that defendant’s breach was the proximate
Store, 557 N.E.2d 1166, 1168 (Mass. 1990). Defendant contests the
(1965) provides that "if the actor does an act, and subsequently
57 (Mass. 2002).
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Dist. Court, 995 P.2d 951, 957 (Mont. 2000) (A person may be
recently held that § 321(1) and Levesque could apply to FBI agent
Id. at 90-91.
b. Breach
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prosecutors in June 1967, they knew that they had on their hands a
started the fire and then increased the risk of harm from that
with what they knew -- the state authorities came to them, and
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more than the ever-present risk that a witness will lie. Rico and
Condon did just the opposite of what a reasonable person would do:
that they turned him over anyway. That is why they are liable.192
192
It is also important to distinguish the First Circuit’s rejection in
Bolduc of a claim based on the negligent failure to disclose exculpatory
evidence. See supra Section IV.B.4. First, that decision was based on
Wisconsin law, not Massachusetts law. Second, and more to the point, the
First Circuit in Bolduc was referring to the negligent failure of a private
person to realize that they were holding exculpatory evidence at all, which is
exactly the opposite of what the FBI did in this case. Specifically, the
First Circuit cited Bromund v. Holt, 129 N.W.2d 149, 153 (Wisc. 1964), in
which a private doctor negligently performed an autopsy, failing to notice
what should have been exculpatory physical evidence. The doctor in Bromund
did not know that he was withholding exculpatory evidence. In stark contrast,
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testimony.)
have shown that defendant’s breach was the proximate cause of the
and without which the event would not have occurred." Roberts v.
Southwick, 614 N.E.2d 659, 663 (Mass. 1993). Had the FBI notified
perjury either would not have occurred or would not have been
credited.
the parole board do not break the chain of causation here, because
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Horan v. Watertown, 104 N.E. 464 (Mass. 1914). The FBI knew that
plaintiffs; they knew that his testimony would carry a great deal
2. Negligent Supervision
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Thompson Tool Co. v. United States, 836 F.2d 721 (1st Cir. 1988).
action; they did not take delayed or selective action; they did
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supervisory role.
plaintiffs must show (1) that the persons whose actions form the
employer; (2) that the agents and employees came into contact with
and (4) that the failure to use such reasonable care was the
62 N.E. 964, 964 (Mass. 1902); Foster v. The Loft, Inc., 526
N.E.2d 1309, 1310 (Mass. App. Ct. 1988). Plaintiffs have carried
this burden.
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are of course employees of the FBI who regularly come into contact
could have prevented Rico and Condon from handing Barboza over to
supervision.
Complex as the FBI hierarchy and protocols may have been, the
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would have come to the inevitable conclusion that his agents would
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foreseeable events.
1501, MRR Part I, Section 1.A.1. If the Boston SAC at any time
break laws, violate rules, and ruin lives, interrupting only with
V. DAMAGES
193
The family member plaintiffs did not originally bring identical
claims, however, conforming the pleadings to the evidence, I treat them
uniformly. See supra note 19.
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it does not have to explain its basis. With few exceptions, the
explain it.
1, 8 (1st Cir. 2004). The case law suggests that the amount
Caraballo, 929 F.2d 31, 35 (1st Cir. 1991). Candidly, the task is
a staggering one.
194
There is one exception: The United States may not be held liable for
punitive damages or pre- or post-judgment interest. See 28 U.S.C. § 2764;
Richards v. United States, 369 U.S. 1, 14 (1962).
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are based,195 the framework for evaluating damages, and then the
award.
A. Facts
1. Limone Plaintiffs
For five years he lived under the threat of the death penalty,
even more severe than those of the general population. Each cell
small table. See Exh. 308RRR; Exh. 308SSS. Inmates had to remain
in those cells twenty-three and a half hours a day; they left only
vol. 15, 183. On the floor above death row was the segregation
their toilets and sinks, which would flood the cells below.
195
My findings are primarily drawn from the testimony of the surviving
plaintiffs and their families. See Tr. vol. 11 - Tr. vol. 17; Exh. 312 (video
deposition of Saverio Tameleo).
196
Limone v. Massachusetts, 408 U.S. 936 (1972).
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were not able to visit him often because he did not want to expose
about them.
197
In November 1971, Limone was transferred to general population at
Walpole after another inmate won a lawsuit limiting stays on death row to the
period immediately proceeding executions.
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officers and the governor. See Exh. 313D; Exh. 313H; Exh. 313I;
the hospital staff pleaded for his return, but all requests were
denied. See Exh. 314G; Exh. 314H; Exh. 314I; Exh. 314J; Exh.
198
Despite its initial success, the prisoner furlough program was
discontinued by the Massachusetts Legislature in April 1988.
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b. The Family
Together they had four children -- Peter Jr., Paul, Carolyn, and
Janine. Limone was overjoyed when his children were born; family
weekends Limone would watch the children, play with them in the
weeks due to kidney problems. His father visited him twice a day
caring for their children, the Limones also spent time alone as a
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visited twice a week but aside from those visits rarely left the
house. She stopped being a Cub Scout den mother and stopped going
to church. She cried night and day, imagining what life would be
like without her husband. The children asked repeatedly why their
father could not come home; Olympia had no answer. The boys were
When Olympia left for court on the morning the verdict was to
be announced, she told her son Peter Jr. that his father would be
coming home at the end of the day. When the death sentence was
his wife. After she came to, Olympia was so distraught that she
The children were eight, six, four, and one when their father
was convicted. When Limone was finally released, they were forty-
own.
different times, given their different ages. She told Peter Jr.,
Charles Street Jail during the trial. She told Paul just before
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thought that her father was in the hospital until she was old
enough to read the signs on the front of the prison. And Janine,
the youngest, found out from a boy down the street who called her
father a murderer. But she did not know that he had been
first, the children did not visit their father often. Death row
near the holidays, and over the summer. Prison played an integral
degraded by the guards, having to sit across from him, seeing how
But these were the moments when the Limone children could have
family events; Carolyn and Janine took turns having their father
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with his father; he was not able to have those visits until he got
his driver’s license -- over seven years after his father was
their hockey games, and Paul at his basketball and baseball games.
For Janine, they shaped her sense of self worth; she felt as if
hopes would be raised. Each time one was denied, they would be
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dashed. When Tameleo and Greco died in prison, the family worried
2. Salvati Plaintiffs
a. Joseph Salvati
Deegan?" Tr. vol. 16, 71. For weeks after the arrest, Salvati
had no lawyer until his friends ran a raffle to raise money for
was released.
Prison with the other defendants. He spent the first night just
going to tell [them]." Tr. vol. 16, 90. Even though no one was
was tested the lights in the facility would dim, no one would
speak.
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commissary.
the critical events of the rest of his family. His father died
years.
b. The Family
on their family: Salvati did the time on the inside, she and the
Joseph and Marie Salvati met in their late teens and married
three years later on August 23, 1953. Together they had four
Salvati was a devoted husband and father. Salvati and Marie had a
time was spent with their children, but they managed to find time
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Anthony, only five when his father was taken away, does not
heard from someone on the street that Salvati had been arrested.
Gail, nine when her father was arrested, was told that her father
worked in jail which was why he was not home -- but even she knew
Salvati in prison. The prison trips were an ordeal for Marie and
her kids; prison was a terrifying place for adults, let alone
children, who were frisked and patted down by the guards each
time. Maria remembers that the first time she went to visit her
father in jail -- she was so scared that she vomited and cried.
Once she was a parent herself, the prison guards made her open her
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When the furlough program was cancelled for inmates serving life
Salvati that could only take place within the prison walls.
3. Tameleo Plaintiffs
a. Henry Tameleo
particularly death row -- all the more difficult for him. (He was
199
Eight grandchildren and one great-grandchild were born into the
Salvati family while Salvati was in prison.
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cannot undergo another gas barrage." Exh. 197. But he was not
"havoc" on his health. See Exh. 198. He was a "sick, lonely old
and bells palsy. See Exh. 199; Exh. 197; Exh. 200. On February
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Exh. 199. The doctor predicted that Tameleo had two to three
died six months later, on August 18, 1985. His son Saverio, then
b. The Family
October 21, 1919. See Exh. 326A. In October 1967, Tameleo was
indicted and arrested. Tameleo told his wife and his adult son
most of his life savings to pay for his father’s legal costs.
prison. In 1973 she underwent open heart surgery, and two years
later she had another surgery for a blood clot. She died on May
husband was unable to be there to take care of her, ease her pain,
say goodbye.
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mood as "that of a ‘wronged’ man, who had suffered much but wished
at being here on the word of one man and at the authorities on the
outside who he feels are responsible for his being here." Exh.
216B.
He spent the last three years of his life being shuttled among
200
His death sentence was vacated on May 20, 1975. See Exh. 218.
201
It appears that starting in 1977 the two were in different prisons.
However, this Court is well aware of the conditions in the state prisons now
and in the last several decades.
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cat. When Greco became too ill to be able to work in the gardens
garden.
had sustained during World War II. In 1990 he had a total hip
himself without assistance. See Exh. 220G. During the last three
months of his life, Joseph Salvati helped care for him, cleaning
him up after he could no longer control his bowels. Greco had his
check to his sister Marie so that his children could be cared for.
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He explained that Roberta, his then-wife, just took off "and left
man and that he wanted to live one day as a free man, just one
day." Tr. vol. 10, 36. He filed at least eight motions for a new
trial, three appeals, two pro se motions for a new trial, and a
Greco also took two lie detector tests -- one on July 1, 1978 that
228C.
b. The Family
and his brother Louis Jr., born January 25, 1955, had a happy,
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his father as he could -- playing with him and their dog, helping
him with the chickens on their chicken farm, reading, and watching
TV. The boys played in a fort that their father built for them
and visited their Aunt Marie’s home with the entire family every
Sunday. Greco would take them to the movies, baseball games, and
When Eddie was ten, Greco was indicted and taken away.
Eddie’s mother told him that his father was in Florida when the
coming home soon. When he learned that his father had been
bags around my head. I was beating myself with my fist, I did all
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Eddie, she stopped doing laundry or cooking food. Eddie took over
the household duties and cared for his older brother, who was a
school; any lunch money he had he would give to Louis Jr. Roberta
on Eddie. "She would have rings on her fingers, and she would
pound the hell out of me, and I would try to curl up in a ball to
after his father was incarcerated. Eddie did the best he could to
more so.
In 1970, Roberta abandoned Eddie and Louis Jr. She left and
made no provisions for their care. The boys only discovered her
departure when Eddie returned home one day and the house was
empty. The boys went to live with their Aunt Marie and Uncle Sam,
presence in his home. Eddie was thirteen years old, Louis Jr.
fifteen. When Eddie was sixteen, Aunt Marie became critically ill
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with kidney disease. She died in 1974, and Uncle Sam threw both
drug charges and went to prison himself. The brothers lost touch.
Jr. was too distraught. On December 27, 1997, Louis Jr. took his
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that summer.
Roberta testified at the Deegan trial that Greco was with her
before the jury. Roberta blamed herself and the telephone cord
202
The government points out that Louis Greco filed his answer to
Roberta’s divorce complaint on March 12, 1965 -- casting doubt on how
reconciled they really were.
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terrible that I had called the police because they made such an
issue of that at the trial. I felt that I was to blame for his
Roberta testified that Greco thought she and the boys should
divorce him but she again refused. In 1969 Greco requested that
contacted the VA and had the checks rerouted back to her. Greco
off with the money he had saved from his paper route. On November
9, 1970, she filed for divorce. Less than a year later Roberta
friendship. She and her new husband even visited Greco in 1980 or
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B. Law
the government.
The loss of the ability to care for and nurture their children.
undertake.
society has valued these harms. I note also that damage and
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Giblin, 2002 Cal. App. Unpub. LEXIS 10494 at *74 (Cal. App. 2
Chicago, 1987 U.S. Dist. LEXIS 10510 at *1 (N.D. Ill, Nov. 10,
1987) aff’d, 856 F.2d 985 (7th Cir. 1988) ("$71,100 for false
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See Exh. 2334 (U.S. v. Strauss, 443 F.2d 986, 990-991 (1st Cir.
203
Wrongful death suits have also resulted in similarly large awards.
In 2004 a jury awarded a woman $122 million dollars (reduced to $70 million on
appeal) after she was paralyzed when the roof of her Ford Explorer collapsed
when the vehicle rolled over, leaving her paralyzed from the waist down.
Buell-Wilson v. Ford Motor Co., 141 Cal. App. 4th 525 (Cal. Ct. App. 2006).
As have cases involving great injury, but not death. In Novak v. State of New
Jersey et al., No. BUR-L-10003-03 2006, Jury Verdicts and Settlements (Mealey)
2424, (N.J. Super., Burlington Co. Dec. 19, 2006), the Plaintiff, Taylor
Novak, was seriously injured from being aggressively shaken while in foster
care. Novak suffered brain damage, and as a result was rendered blind, was
unable to walk or speak, suffered periodic seizures, and suffered severe
cognitive impairment. Id. He was awarded $21 million as a result. Id.
Finally, in a case different from this one in claims and facts, but similar in
theme and outrage, Abner Louima received an $8.75 million settlement after
being brutalized by police officers. See Louima v. City of New York, 2004
U.S. Dist. LEXIS 13707 (E.D.N.Y., 2004) (Louima originally sought $50 million
in compensatory damages for his own injuries and $5 million in loss of
services to his wife).
204
See Exh. 2133 (Feb. 6, 1972 letter from Tameleo to the Department of
Corrections, noting that his five year sentences had not been "activated" and
requesting that be corrected).
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Olsen sued the city and officers under 42 U.S.C. § 1983, the City
189 F.3d at 55. The Court reasoned that both the limits of
§1983206 and the law of proximate cause (the valid plea was the
While it is true that had Tameleo and Limone not been serving
time for the Deegan murder, they still would have been imprisoned
205
I understand that -- particularly at a time when sentences were
indeterminate, and parole and good time were readily available -- terms of
five years and seven years did not necessarily equate with imprisonment for
that period of time. Nevertheless, nothing in the record suggests what the
actual term consisted of, as opposed to the formal sentence.
206
Heck v. Humphrey, 512 U.S. 477 (1994) imposed, a limit on the
availability of 1983 actions by adopting a favorable termination requirement
similar to that found in the malicious prosecution context.
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Olsen. The time Olsen wrongly served on his murder conviction was
Olsen did not contest the term of years on the manslaughter, and
wrongful one. They have not only contested the validity of the
and Limone served time there under far harsher conditions than
207
To be sure, whatever sentences they received may well have been more
harsh because of their conviction in the Deegan case.
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not a term of years. Tameleo and Limone were subject to all the
prisons. They lived every day of their sentences under the mental
never end, that they would die without ever knowing freedom again.
Even with this adjustment, the instant case stands out from
lives could have been significantly prolonged had they not been
Peter Limone, $29 million for Joseph Salvati, $28 million for the
estate of Louis Greco, and $13 million for the estate of Henry
Tameleo.208
a. Loss of Consortium
208
This award serves to compensate Limone, Salvati, Greco, and Tameleo
for their intentional infliction of emotional distress damages as well.
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N.E.2d at 320.
See Limone II, 336 F. Supp.2d at 49-50; Agis, 355 N.E.2d 320;
Ct. Jan. 16, 1990). But because the child’s claim "is based upon
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relations. See Diaz v. Eli Lilly & Co., 302 N.E.2d 555, 560
that would have been performed by their husbands. See, e.g., Wood
See Glicklich v. Spievack, 452 N.E.2d 287, 292, rev. den., 454
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nature of the society that has been lost. See, e.g., Planned
even though they suffer the loss of the same person, each
(1) Spouses
possible.
was different in kind from the others. One of the factors I must
209
In the case of Jeannette Tameleo the power of their relationship is
inferred.
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kill her. Whereas Olympia Limone and Marie Salvati visited their
husbands regularly for thirty odd years, Roberta Werner ceased her
convicted. She abandoned her sons, causing them and Greco much
U.S. App. LEXIS 15178 (D.C. Cir.) ($50,000 for loss of consortium
Emporium, Inc., No. E41490 (Ga. Sup. Ct. June 14, 1996) ($7500 to
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No. 97CV-05450 (Ga. Cty. Ct. Fulton Cty. March 1, 1999) ($5,000 to
prosecution).
and Risk (Mealey) 6, (E.D. Tex. Feb. 15, 2007) (parents together
County, 2005, No. 422963) (Calif. Super., San Francisco Co. Sept.
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(2) Children
and Louis Greco Jr. were never able to recover from their loss.
They never stopped loving their father, hoping he would come home
to them. But that never happened, and their lives were destroyed
by his absence.210
Allport, 218 S.W.3d 817, 822 (Tex. App. 2007), the Court of
210
Because Saverio Tameleo was already living independently as an adult
when he lost his father, Massachusetts law does not allow him to recover for
loss of consortium. See Barbosa, 537 N.E.2d at 104.
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the seventeen year old daughter of a man who was accidentally shot
and killed, and $175,000 for loss of consortium for the man's
"the severity of the injury to the parents and its actual effect
federal felon who was released from prison by the INS to serve as
income. Id.
U.S., 311 F.Supp.2d 917 (D. Mont. 2004) the court awarded $600,000
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S.W.3d 514, 550-51 (Tex. App. 2006) a Texas appeals court upheld a
a woman's two daughters who were eleven and nine when their mother
age and some of them were never able to recover. In keeping with
aftermath, and (2) children who were very young at the time of the
conviction.
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family was present when the police surrounded their house looking
for Peter Limone. Olympia was a defense witness at the trial, and
was there at the moment when the verdict was handed down, at which
evidence that even those who were not physically present at the
conviction, her whole family was together and her mother told her
arrested. She told Peter Jr. the verdict as soon as she returned
home from court after its pronouncement. Eddie Greco was told by
his mother as soon as the verdict and sentence were handed down,
211
This litany is not meant to be an exhaustive list of who was where
when; it is merely a sampling.
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was happening when their fathers were convicted. Neither Gail nor
was too young to be told, and Anthony was younger still. Carolyn
Limone was told that her father was in the hospital, and Janine
the outrageous conduct here did not occur at only one hour of one
day. When the children eventually did learn the truth about where
that would be a daily fact of their lives for decades. Nor was
212
Roberta Werner testified that when she heard the guilty verdict, she
felt "[l]ike my heart was ripped out of my body, I was in some kind of hole
and I couldn’t get out. It was horrible." Tr. vol. 11, 47. The measure of
her emotional response is best captured by her conduct after the conviction --
resorting to drinking, abandoning her children, and cutting off contact with
Greco. Accordingly, on this issue her damages are comparable to those of
other wives.
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Salvati from 1986 through 1991 were rejected because the FBI
family, for commutation were dashed. The FBI did the same for
and humiliation for the by-then fully aware and involved younger
their siblings.
Stabenow v. Jacobsen, 610 N.W.2d 512 (Wis. Ct. App. 2000) ($24,000
emotional distress.
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VI. CONCLUSION
completely:
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distress.
SO ORDERED.
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