Us MSJ
Us MSJ
DISTRICT OF MASSACHUSETTS
Introduction
The United States has moved for summary judgment in its favor in this case arising out
Tameleo, Louis Greco and Joseph Salvati (collectively, the “plaintiffs”) for the murder of
Edward Deegan.
Plaintiffs’ claims against the United States are premised upon two theories. First, FBI
agents supposedly “participated in the creation of perjured testimony that falsely implicated the
plaintiffs.” See Docket No. 92, Plaintiffs’ “Opposition To the Government’s Motion To Dismiss
the Amended Complaint by the Limone and Tameleo Plaintiffs” at 4. Second, the FBI allegedly
failed to disclose exculpatory evidence and tried “to cover up the identity of the true killers of
Deegan.” Id. at 9. Discovery has failed to disclose competent evidence in support of either
theory.
The United States is entitled to summary judgment because (1) the plaintiffs cannot prove
as an essential element of the tort of malicious prosecution that this defendant initiated the
prosecution on the following grounds: the evidence is undisputed that officials of the
Commonwealth of Massachusetts initiated the prosecution and accordingly, the United States
cannot be held liable for malicious prosecution under Massachusetts law; (2) Massachusetts law
does not impose an independent duty upon a private party under analogous circumstances to
disclose allegedly exculpatory evidence to local prosecutors; (3) plaintiffs are precluded from
relitigating the issue of “failure to disclose exculpatory evidence” because they litigated and lost
Background
p.m. on March 12, 1965. Commonwealth v. French, 259 N.E.2d 198, 204 (Mass. 1970).1 There
were six gunshot wounds in the body. Id. at 204-205. Mr. Deegan had been shot with three
different weapons. Id. at 205. About 9:30 that evening, Anthony Stathopoulos stopped his car
on Fourth Street, Chelsea, opposite the entrance to the alley. Id. With him were Roy French and
Edward Deegan. Id. French and Deegan entered the alley. Id. A few seconds later,
Stathopoulos “heard a volley of shots.” Id. French reappeared, joined by another man with a
gun in his hand who, according to Stathopoulos, “looked like Greco.” Id. Stathopoulos heard a
voice say, “Get him too.” Id. Stathopoulos “took off.” Id.
A state grand jury indicted plaintiffs on October 25, 1967. The Deegan murder trial
commenced in the Superior Court of Suffolk County on May 27, 1968 and continued until July
27, 1968, a total of 50 days of trial. French, 259 N.E.2d at 204, n.2. On the first day of trial, Mr.
Barboza, aka Baron, pled guilty to two conspiracy indictments. Id. at 204. His trial testimony
1/
A volume of exhibits has been filed in support of the United States’ Motion For Summary
Judgment. References to the exhibits will be cited as “Ex. .”
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was “of major importance.” Id. at 205. He “had a long criminal record.” Id. The direct
examination of Barboza lasted two days and cross-examination nearly six and one-half days. Id.
On July 31, 1968, the Suffolk County jury found Roy French and Louis Greco guilty of
first-degree murder and found Peter Limone, Joseph Salvati, Roy Cassesso and Henry Tameleo
guilty as accessories to the murder. Id. Greco, Cassesso, Tameleo and Limone were sentenced
On appeal, the Supreme Judicial Court of Massachusetts found “[t]here was evidence
from which the jury could have concluded that Limone agreed to pay for the killing of Deegan
and Stathopoulos, Salvati participated in the planning of the murder and Greco was one of the
shooters.” Commonwealth v. Salvati, 420 Mass. 499, 650 N.E.2d 782, 783 (1995). The
Supreme Judicial Court concluded that “Baron’s [Barboza’s] testimony warranted the conclusion
that Tameleo was linked to the enterprise.” French, 259 N.E.2d at 223. The court found:
2/
The death penalty judgments were later vacated, sub nom. Limone v. Massachusetts, 408 U.S.
936 (1972).
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Motions For New Trial
Plaintiffs filed motions for a new trial in state court and filed habeas corpus petitions in
federal court after their convictions.3 The habeas petitions were denied. A motion for new trial
was allowed “but only with respect to the alleged failure of the Commonwealth to disclose
before trial the existence of [a police report] (and the alleged existence of an informant) and the
significance, if any, of such failure.” Commonwealth v. Salvati, 650 N.E.2d 782, 783 (Mass.
1995).4
Plaintiffs argued in the Supreme Judicial Court of Massachusetts that the Suffolk County
prosecutor had suppressed a police report which contained statements made by an informant
concerning events the informant observed the night of the Deegan murder. Id. Plaintiffs argued
3/
Grieco v. Meachum, 533 F.2d 713 (1st Cir. 1976) cert. denied sub nom. Cassesso v. Meachum,
429 U.S. 858 (1976) (after exhausting state remedies, plaintiffs filed habeas corpus actions,
claiming 90 items of constitutional error in the Deegan murder trial, however, the First Circuit
found no constitutional error and affirmed the convictions). Limone’s first motion for a new trial
was denied in 1970 and affirmed on appeal. Commonwealth v. Cassesso, 276 N.E.2d 698 (Mass.
1971). Limone’s second motion for a new trial was denied in 1990 and affirmed on appeal.
Commonwealth v. Limone, 573 N.E. 2d 1 (Mass. 1991). Plaintiffs filed other motions for a new
trial that were denied; those rulings were affirmed on appeal. Commonwealth v. Salvati, 420
Mass. 499 (1995).
4/
Chelsea Police Lieutenant Thomas F. Evans testified during the Deegan murder trial that his
report was made available to the Suffolk County District Attorney’s Office prior to trial. (Ex. B).
His report states that he received the following information the night of the Deegan murder:
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that Barboza had falsely implicated the plaintiffs and others instead of the true perpetrators of the
crime. Id. at 785. The Evans report had identified Joseph Barboza, Ronald Cassesso, Vincent
Flemmi, Francis Imbruglia, Romeo Martin, Nicky Femia “and a man by the name of Freddi who
is about 40 years old and said to be a ‘Strongarm’” as the Deegan murder suspects. The report
identified Jimmy Flemmi; it did not identify plaintiffs. Plaintiffs contended that the Suffolk
County prosecutor should have disclosed the police report because “the informant did not name
[Limone, Tameleo, Greco or Salvati] as being men who had left and returned to the Ebb Tide
with Baron.” Id. Plaintiffs asserted that the statements within the Evans report supported their
trial theory that Barboza had substituted Limone, Tameleo, Greco and Salvati for the real
murderers – Vincent Flemmi, Francis Imbruglia, Romeo Martin, Nicky Femia and “Freddi.”
The Supreme Judicial Court rejected plaintiffs’ argument, instead finding that the
information in the Evans report was cumulative of the evidence presented to the jury at trial:
For example, the police report indicates that the informant alleged that seven men
had left and returned to the Ebb Tide with Baron. During direct examination,
Baron independently named two of these seven men as being with him at the Ebb
Tide on the night of the murder and as being participants in the crime. However,
during cross-examination, Baron was specifically questioned about four other
men named by the informant in the police report. We conclude, therefore that the
information contained in the report was available to trial counsel and used by at
least one defendant to cross-examine Baron in order to impeach his credibility.
Thus the motion judge’s denial of the defendants’ motions based on alleged
Brady violations was not erroneous because the information in the police report
was merely cumulative evidence that did not materially aid the defendants on the
issue of guilt or punishment.
Id. at 785-786.
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Summary of Relevant Deposition Testimony In This Case
Jack Zalkind, an Assistant District Attorney for Suffolk County, prosecuted plaintiffs for
the murder of Edward (Teddy) Deegan. Id. (7/28/05 dep.) at 134. The Deegan case was his first
murder prosecution and he knew it was going to be “high profile.” Id. at 51.
Before the Deegan murder trial, Zalkind had tried Barboza on a gun carrying charge and
breach of the peace. Id. at 12. Barboza went to jail for one year on the breach of the peace but
was acquitted on the gun carrying charge. Id. at 13, 18. Zalkind thought Barboza was “a bum.
He was a rat. I didn’t trust him. He was a bad guy. He was a murderer. He was a thief.” Id. at
32. “The cops hated Barboza.” Id. at 19. When asked to take the Deegan case, Zalkind told his
office he did not want to speak to Barboza until he put him before the grand jury because he was
I didn’t want Barboza later to say that I coached him into any of his testimony and
I wanted most of the evidence that was going to be presented at the trial to be
presented to the Grand Jury first so that no one could accuse me of coaching him
into testimony. Frankly speaking, that is exactly what happened.6
Before the Grand Jury convened, Zalkind met with Detective John Doyle, “every day” to
prepare the case. Id. at 55-56. John Doyle collected the data for the prosecution and Zalkind
relied upon Doyle to give him the information that was important. Id. at 73. Zalkind described
Doyle as a “seasoned cop.” Id. at 71. Doyle’s investigation was “independent.” Id. at 93.
Zalkind “wanted to know stuff that’s important to my case, and I assumed that the police would
5/
Ex. F contains the excerpts from Mr. Zalkind’s deposition testimony; he was deposed on July
28, 2005 and August 3, 2005.
6/
Id. at 53.
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give me anything that they thought would be important to my case.” Id. at 131. Approximately
ten police officers were assigned to the office of the Suffolk County District Attorney. Id. at 22.
Any police officer that was available helped Doyle prepare the Deegan case. Id. at 54. The
Suffolk County District Attorney’s office spent three months investigating the case. Id. at 90.
Zalkind testified: “as the case was being prepared John [Doyle] would tell me what was
developing . . . he had Barboza’s story.” Id. at 57. “Our job from the time that he got the story
until it went to the Grand Jury was to get as much corroboration as we could.” Id. Zalkind had
the police look for verification and check for corroboration. “I had them look at police records.
Zalkind knew that Barboza was with Jimmy Flemmi at the Ebbtide the night of the
murder. Id. at 171. Barboza told Zalkind that his friends, including Flemmi, “didn’t leave [the
restaurant] with me.” Id. When Zalkind got the Deegan case, it had been investigated and “it
was determined that these people, that Nicky Femia was not involved and neither was Vinnie
[James] Flemmi.” Id. at 200. Zalkind said: “We did everything possible to determine they
weren’t there,” recalling, “I asked the cops . . . and they said there was nothing to indicate that
Nicky was there nor Flemmi was there.” Id. at 200-201. Zalkind is sure that he said to Doyle,
“check out these guys” [the people with Barboza at the Ebbtide] “and see if there was anything
that would indicate that they were [at the murder scene] and not someone else. And they came
Zalkind was the “only one” who prepared the Commonwealth’s witnesses for trial. Id. at
140. In preparing Barboza for his trial testimony, Zalkind met with him “four or five times a
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week, depending. Sometimes it might be – I would say from three to six times. Safely three to
five times a week.” Id. at 96. Each visit was “[f]our or five hours maybe, depending.” Id.
Zalkind believed that Barboza’s description of the Deegan murder was corroborated during trial
by the testimony of Roy French. Id. at 124. Barboza told Zalkind that French shot Deegan and
Zalkind questioned Barboza about the possible involvement of Jimmy Flemmi in the
murder and he “absolutely denied it.” Id. at 97. Barboza satisfied Zalkind that Jimmy Flemmi
wasn’t there. Id. at 99. Zalkind believed Barboza: “there was nothing that he told me that didn’t
check out.” Id. at 120. Zalkind testified: “There was no reason for me to believe at the time that
Joe Barboza had not given me the people that he said he did that were there and there was no
reason for me at the time to believe that the people that were friends of his were in on the crime.
When asked if he had any first-hand knowledge of Paul Rico or Dennis Condon
preparing Barboza for testimony in the Deegan trial, Zalkind responded: “[a]bsolutely not.” Id.
at 96. Zalkind testified: “Did I ever ask them about evidence or any problems I had or shaping
or anything like that? I don’t remember ever doing that.” Id. at 62-63. FBI agents Rico and
Condon did not prepare the case with Zalkind. Id. at 66. Rico and Condon did not direct
Zalkind’s case. Id. at 69. They “didn’t suggest witnesses to me. They didn’t suggest testimony
to me. I never conferred with them about strategy.” Id. They “weren’t preparing the case with
me.” Id. at 66. “They had no role in prosecuting. I was the prosecutor.” Id. at 67. Zalkind
testified: “When this case was over, I was satisfied that the information I had been given was
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Attorney Ronald J. Chisholm7
Ronald J. Chisholm represented Ronald Cassesso during the Deegan trial. Id. at 28.
Prior to trial, Cassesso told Mr. Chisholm about his involvement in the Deegan murder. Id. at
51. Mr. Chisholm recalled that at the time of the Deegan murder trial, Barboza was quoted in the
newspapers stating: “I’m going to get my enemies and protect my friends.” Id. at 43. Mr.
Chisholm said that the Deegan defense counsel “all knew this was a frame against some of the
defendants anyway.” Id. at 54. Cassesso told Chisholm “who was involved” in the murder and
“who was not involved.” Id. at 57. Cassesso told Chisholm that Barboza, “Vincent Flemmi,
French, Freddie somebody, Romeo somebody” were involved in the Deegan murder. Id. at 57.
The transcript of the Deegan trial revealed that Mr. Chisholm cross-examined Barboza about
being in the company of Femia, Imbruglia and [Vincent] Flemmi the night of the Deegan
William L. Moore8
The night Deegan was murdered, William Moore was a police officer in Chelsea,
Massachusetts. Id. at 5. Officer Moore knew Deegan – Deegan was a friend of his brother and
“well known to all the police officers” in Chelsea. Id. at 62. The Chelsea police had information
that “Deegan was breaking into all the wise guys’ homes and stealing money and jewelry and
7/
Ex. G, deposition testimony of Ronald J. Chisholm, deposed on August 30, 2005 and
November 3, 2005.
8/
Ex. H, deposition testimony of William L. Moore, deposed in Concord, New Hampshire on
August 23, 2005.
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Officer Moore saw Deegan’s body after the murder and investigated his death together
with Lieutenant Thomas Evans. Id. at 9. Captain Robert Renfrew of the Chelsea Police
Department told Officer Moore the night of the murder that Renfrew had received information
from a source at the Ebb Tide, a nightclub in Revere, that Barboza, French, Martin, Flemmi were
together at the Ebb Tide before the murder. Id.at 10-13. Officer Moore testified that Jimmy
Flemmi was one of the “primary suspects” for the murder. Id. at 28. Officer Moore knew
Judge Harrington testified that FBI agents Dennis Condon and Paul Rico turned Joseph
Barboza into the first of the major accomplice witnesses in the organized crime area. Id. at 120.
They developed the federal Marfeo/Patriarca case which Judge Harrington handled when he was
a federal prosecutor. Id. Barboza was the first organized crime figure to turn state’s evidence in
the New England area of the country. Id. at 92. Some months later, after the indictment in the
Marfeo/Patriarca case, the FBI agents turned Barboza over to the Suffolk County authorities who
developed his testimony for the Commonwealth’s prosecution of the Deegan murder. Id.
Judge Harrington’s understanding of the Deegan case was that it was developed by John
Doyle and Jack Zalkind, and that the FBI agents, because they originally “turned” Barboza as a
witness, introduced him to the Masschusetts authorities. Id. at 86. Judge Harrington recalled
that the role of the federal government in the Deegan murder prosecution was limited to the
protection and transportation of Barboza, who was the “original witness in the Witness
Protection Program.” Id. at 44. Judge Harrington testified: “[f]ederal authorities and the United
9/
Ex. I, deposition testimony of the Honorable Edward F. Harrington, November 3, 2005.
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States’ Attorney’s Office had no connection whatsoever with the prosecution of the Deegan
case.” Id. at 119. “[W]ith respect to the prosecution itself, the determination to go forward on
the Deegan case, the selection of defendants and the development of evidence, that was entirely
Dennis Condon went to work for the FBI in 1951 and retired in 1977. (11/2/05 dep. at
10.) He was assigned to the Boston office in 1952. Id. at 15. He worked with Paul Rico from
1967 until Rico left Boston for Florida in 1970. Id. at 35. Condon first met Jimmy Flemmi
when he arrested him sometime in the early 1960s. Id. at 33-34. When asked if he had ever had
conversations with Jimmy Flemmi about becoming an informant for the FBI, he responded:
Condon first met Barboza on March 8, 1967. Id. at 79-80. Barboza said that he would
not “furnish any information that would allow Jimmy Flemmi to fry.” Id. at 54. Condon
understood Barboza’s statement to mean that Barboza was not going to discuss any crimes in
Condon did not assist in preparing Barboza to testify before the Suffolk County grand
jury regarding the Deegan murder. Id. at 133. He had nothing to do with Barboza’s grand jury
testimony. Id. He visited Barboza a number of times before the Deegan murder trial but the
purpose of those visits was to check on Barboza’s physical “well-being.” Id. at 134.11 During
10/
Ex. J, excerpts from the depositions of Dennis H. Condon. He was deposed on November 2,
2005 and November 4, 2005.
11/
Barboza had been promised protection by the federal government as a result of his testimony
in the federal Marfeo trial. See Ex. I, testimony of Judge Harrington at 11.
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his visits with Barboza, Condon did not “go over” Barboza’s trial testimony. Id. at 136. He did
not review with Barboza the latter’s version of how the Deegan murder happened because “the
Deegan case was a Suffolk County case. Detective Frank Walsh and eventual Deputy
Superintendent John Doyle were probably deeply involved in the case which was their
jurisdiction at the time.” Id. at 135. The basic investigation of the Deegan murder “was
Condon was a witness at the Deegan murder trial. (11/4/04 dep. at 263). He testified that
during his meetings with Barboza prior to trial, he did not show Barboza any reports or papers
concerning the death of Deegan, nor did he tell Barboza any of the facts or circumstances
Attorney Joseph J. Balliro, Sr., defended Henry Tameleo in the Deegan murder trial. He
testified that in the summer of 1967 he had a conversation with Jimmy Flemmi concerning the
Deegan murder case. Flemmi told him that Barboza had planned the Deegan killing and that he,
Flemmi, had participated.13 Attorney Joseph Balliro, Sr. further attested that Jimmy Flemmi
“was very, very very concerned with the fact that Barboza might turn on him anyway for any
12/
Ex. K, testimony of Attorney Joseph J. Balliro, Sr., deposed October 19, 2005.
13/
Ex. K, deposition testimony at 70-71; 109.
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The Summary Judgment Standard
Fed. R. Civ. P. 56 ( c). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary
judgment should be "properly regarded not as a disfavored procedural shortcut, but, rather, as an
integral part of the Federal Rules as a whole." Celotex Corp. v. Catrett, 477 U.S. 317, 327
(1986).
As the moving party, the United States bears the initial responsibility of identifying those
portions of the pleadings, depositions, answers to interrogatories and admissions on file which
demonstrate the absence of a genuine issue of material fact or show an absence of evidence to
support plaintiffs' case. Id. at 323. When ruling on a motion for summary judgment, a court
must view the record in the light most favorable to the non-moving party. Liberty Lobby, 477
U.S. at 15. But it need not credit “conclusory allegations, improbable inferences, and
unsupported speculation.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.
1990).
After discovery, if the nonmoving party “has failed to make a sufficient showing on an
essential element of [its] case with respect to which [it] has the burden of proof,” then summary
judgment is appropriate. Celotex, 477 U.S. at 323. The Supreme Court has stated that "[r]ule 56
must be construed with due regard not only for the rights of persons asserting claims and
defenses that are adequately based in fact to have those claims and defenses tried [to the
factfinder] but also for the rights of persons opposing such claims and defenses to demonstrate in
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the manner provided by the Rule, prior to trial, that the claims and defenses have no factual
basis." Id. at 327 Summary judgment exists to “pierce the boiler-plate of the pleadings,”14 and
The United States can be sued only to the extent that it has waived sovereign immunity.
Bolduc v. United States, 402 F.3d 50 (1st Cir. 2005). The Federal Tort Claims Act (FTCA) was
enacted as “a limited waiver of sovereign immunity." Id. at 55. “Congress was careful to except
from the Act’s broad waiver of immunity certain important classes of tort claims.” United States
v. Varig Airlines, 467 U.S. 797, 808 (1984); Shuman v. United States, 765 F.2d 283, 288 (1st Cir.
1985). If a claim falls within any of the exceptions or exclusions to the FTCA, the court lacks
subject matter jurisdiction and the case must be dismissed. Dalehite v. United States, 346 U.S.
15, 24 (1953). Further, the FTCA waives sovereign immunity only "under circumstances where
the United States, if a private person, would be liable to the claimant in accordance with the law
of the place where the act or omission occurred" and provides for liability "in the same manner
and to the same extent as a private individual under like circumstances." 28 U.S.C. §§ 1346(b),
2674. Clemente v. United States, 567 F.2d 1140, 1149 (1st Cir. 1977) ("[E]ven where specific
behavior of federal employees is required by federal statute, liability to the beneficiaries of that
statute may not be founded on the Federal Tort Claims Act if state law recognizes no comparable
private liability.")
14/
Wynne v. Tufts Univ. Sch. Of Med., 976 F.2d 791, 794 (1st Cir. 1992).
15/
Vega-Rodriguez v. P.R. Tel. Co., 110 F.3d 174, 178 (1st Cir. 1997).
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I. Plaintiffs’ Claim For Malicious Prosecution Fails As A Matter Of Law.
A. The United States cannot be held liable under the law of Massachusetts
because the FBI did not initiate the prosecution.
of proving four elements: (1) that the defendant initiated criminal proceedings against the
plaintiff; (2) the proceeding ended in the plaintiff's favor; (3) that there was no probable cause to
initiate the criminal charge; (4) that the defendant “acted maliciously.” Miller v. City of Boston,
297 F. Supp. 2d 361, 366 (D. Mass. 2003). With respect to the institution of criminal
proceedings, the defendant must do more than simply provide information that leads to the
prosecution: "the defendant must have, in some sense, initiated the prosecution." Correllas v.
The critical inquiry is whether the FBI initiated the prosecution. In Limone v. United
States, 271 F. Supp. 2d 345, 357 (D. Mass. 2003), this Court asked: “if the federal officers did
not ‘initiate’ the prosecution, who did?” The answer is that Assistant District Attorney Jack
Zalkind, a Suffolk County prosecutor, initiated the state court prosecution, based upon the
investigation conducted by a state employee, Detective John Doyle. As a matter of law, on this
record, it cannot be said that FBI agents Rico or Condon “initiated” the prosecution of Limone,
Tameleo, Greco or Salvati for the Deegan murder, nor can it be said that Rico or Condon took
“an active part in continuing or procuring the continuation of criminal proceedings initiated . . .
The Deegan murder case was, simply, a prosecution initiated and pursued by the Suffolk
County District Attorney’s Office. That office conducted its own investigation, prepared
Barboza for trial, and Assistant District Attorney Zalkind, upon his own evaluation, made the
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decision to prosecute. Although the FBI proffered Barboza to Suffolk County authorities, and
sat in on several meetings with Barboza, there is nothing in the extensive record of this case that
supports the theory that FBI employees “initiated” the Deegan murder prosecution. To the
contrary, Zalkind, after the police in his office conducted a “thorough” three-month
necessarily fails.
No evidence in this record shows that the FBI made accusations against the plaintiffs or
their decedents. The FBI turned Barboza over to state authorities who independently developed
his testimony for the prosecution of the Deegan murder. See Ex. I, testimony of the Honorable
If innocent individuals were framed during the Deegan murder trial, the record supports
the inference that it was because Barboza, a critical witness, decided to frame them. The
affidavit of defense attorney Joseph Balliro, Sr., reporting his conversation with Jimmy Flemmi
before the Deegan trial, stated that Jimmy Flemmi told Attorney Balliro that Barboza “framed”
Limone, Greco and Salvati because they “disrespected him.” If Barboza lied, it was his lie, not
Even assuming, however, that the FBI provided a witness who made false claims, its
actions cannot consitute malicious prosecution. Under Massachusetts law, “if a citizen registers
with the police an apprehension that a crime has been committed and leaves the matter to the
16/
Barboza testified that he (a) gave partial information about the Deegan murder to FBI agents
on March 29, 1967; (b) was indicted in April, 1967; (c) was in custody in isolation in May, 1967;
and (d) started to talk to the district attorney’s representative in July, “when deals were being
made.” He told the Deegan murder story “in pieces” and did not reveal the full story he told at
trial until September 8, 1967, before the state grand jury. French, 259 N.E.2d at 214, n. 26.
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judgment and responsibility of the public officers, that citizen, though having started the chain of
events that lead to legal process, cannot be charged with malicious prosecution." Grant v. John
Hancock Mutual, Life Insurance, 183 F. Supp. 2d 344, 369 (D. Mass. 2002) (quoting Conway v.
Smerling, 635 N.E.2d 268 (1994)). There is no evidence that the FBI registered “an
apprehension” about the Deegan murder. However, even if it had, the record establishes
Negron-Rivera v. Rivera-Claudio, 204 F.3d 287 (1st Cir. 2000) is instructive. There, the
First Circuit, applying Puerto Rican law, reversed a jury finding of malicious prosecution on the
ground that plaintiff had not established that the defendant had initiated and instigated the
criminal action in issue. In so doing, the First Circuit found that “[furnishing] information to a
prosecuting attorney does not by itself constitute an instigation, since generally in those cases the
efficient cause of the initiation of the prosecution has been the initiative and decision of the
prosecuting attorney, in the exercise of his discretion, after having carried out the corresponding
investigation.” Id. at 290 (citation omitted). The same reasoning applies here because the record
in this case reflects precisely that the Deegan murder prosecution was the result of the initiative
The First Circuit noted in Negron that it would be “conceivable,” in a “different case,”
misleading the authorities through the provision of incorrect or incomplete information.” Id.,
n.1. The record in this case is barren of evidence that Rico or Condon knowingly furnished false
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information, or deliberately withheld material information, in order to indirectly instigate the
In Correllas v. Viveiros, 572 N.E.2d 7 (Mass. 1991), decided under Massachusetts law, is
controlling authority. There, a bank teller brought a malicious prosecution claim against her co-
worker, an assistant teller, after the assistant teller confessed to stealing money and told the
police that the bank teller conceived and participated in the plan to steal the money. The bank
teller, charged with larceny, was eventually acquitted. Despite the information provided by the
assistant teller to authorities, the court dismissed the malicious prosecution against her because
she did not institute the criminal proceedings against the bank teller. Correllas, 521 N.E.2d at
10. As explained in Correllas, the "mere transmission of information to a police officer, who
using his or her independent judgment, then pursues the matter and institutes criminal
proceedings, has never been held sufficient to support an action for malicious prosecution." Id.
(emphasis added).17 The record in this case mandates the same result as in Correllas.
Plaintiffs, as a matter of law, cannot meet the burden of proving that the FBI “initiated”
the Deegan murder prosecution. FBI agents Condon and Rico had no first-hand knowledge of the
identities of the individuals who committed the murder of Deegan. Massachusetts law does not
17/
The Restatement (Second) of Torts § 653 comment g (1977) would not find liability based
upon the FBI’s proffer of Barboza to the Suffolk County District Attorney’s Office:
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impose liability for malicious prosecution based on a private individual’s failure to disclose
information obtained from third parties. Moreover, the record establishes that to the extent
informants provided Rico or Condon with information about the murder, that information was
shared with the state authorities investigating the murder. More significantly, it is undisputed
that state investigators knew of Jimmy Flemmi’s involvement in the murder as related in the
Evans report. Accordingly, liability cannot be imposed for malicious prosecution based on
plaintiffs’ hypothesis that the FBI withheld the name of Jimmy Flemmi either because he was an
informant or because the FBI wanted to protect the use of his brother, Stephen Flemmi, as an
informant.
Furthermore, there is no causal link between the FBI’s informant “knowledge” that
Flemmi was involved in the murder and Zalkind’s initiation of the prosecution because Zalkind
knew that Barboza was with Jimmy Flemmi the night of the murder. Zalkind testified that he
was “sure” he said to Doyle “check out these guys” [the people with Barboza at the Ebbtide]
“and see if there was anything that would indicate that they were [at the murder scene] and not
someone else. And they came back negative.” (7/28/05 dep. at 107). When Zalkind questioned
Barboza about the possible involvement of Jimmy Flemmi in the murder, he “absolutely denied
it.” Id. at 97. Zalkind had no reason to believe that what Barboza “was telling me wasn’t the
“The chain of causation is broken if the filing of the information 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 v.
Cunningham, 9 F.3d 168, 174 (1st Cir. 1993). Nothing in this record supports the conclusion that
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the FBI pressured Zalkind in any way whatsoever to initiate the Deegan prosecution. Zalkind
undeniably had the information available to him that Flemmi was with Barboza the night of the
murder. Zalkind asked Barboza about Jimmy Flemmi’s involvement and Barboza satisfied
Zalkind that Jimmy Flemmi was not at the murder scene. Id. at 99. Zalkind exercised his
Accordingly, the United States is entitled to summary judgment because, based on the
facts and the law, plaintiffs cannot establish a critical element of malicious prosecution on which
The Limone plaintiffs alleged that “Rico, Condon, Handley, and other agents of the FBI,
Walsh [City of Boston police officer] and Renfrew [City of Chelsea police officer] failed to
disclose information exculpatory to Limone, Tameleo and Greco in their possession to the
attorneys prosecuting the Deegan murder case and representing the government in post-
conviction proceedings.” Limone Amended Complaint, ¶ 24. “Agents and employees of the
United States Department of Justice and the FBI did not disclose the said exculpatory
information until on or about December 19, 2000.” Id. The Limone plaintiffs defined
“exculpatory evidence” as the information which “cover[ed] up the identity of the true killers of
Deegan.” Id. ¶ 26. Plaintiffs’ allegation that the FBI agents failed to disclose “exculpatory
evidence” to the prosecutor who tried the Deegan case fails as a matter of law and fact.
To the extent that plaintiffs purport to base their claim on an independent tort, failure to
disclose exculpatory evidence, it fails as a matter of law because Massachusetts does not appear
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to recognize this tort. Under the FTCA, liability can only be imposed where a private individual
would be liable under analogous circumstances. 28 U.S.C. §§ 1346(b), 2674. “Under the
FTCA, the relevant inquiry is not whether state law might assign a duty to a private person in the
same or similar circumstances, but, rather, whether state law would impose liability on a private
person in the same or similar circumstances.” Bolduc v. United States, 402 F.3d 50, 58 (1st Cir.
2005). (Emphasis added.) Thus, plaintiffs are not free to create an unprecedented extension of
tort liability.
The plaintiffs in Bolduc alleged that the United States was liable for their convictions
because FBI agents failed to disclose exculpatory evidence to federal prosecutors. Bolduc is
instructive on two points. First, as the court explained, liability under the FTCA cannot be
premised upon the rule of Brady v. Maryland, 373 U.S. 83 (1963), because neither federal,
constitutional nor statutory law can function as the source of liability under the Federal Tort
Claims Act. Second, even analyzing the claim under the “wide net” cast by Wisconsin law (“[i]n
Wisconsin, everyone has a duty of care to the whole world,” id. at 57) and even assuming
negligence, causation and harm, the First Circuit concluded that Wisconsin law would preclude
liability under the circumstances of that case. Here, the only comparable state law claim in
Massachusetts would be a claim for malicious prosecution, which fails because plaintiffs cannot
While plaintiffs “failure to disclose” theory fails as a matter of law, it fails as a matter of
fact as well. Plaintiffs have alleged that an informant advised the FBI of the identity of the “true
killers of Deegan” when he told the FBI, the day after Deegan was murdered, that the murder
“had been committed by French, Cassesso, Martin, Barboza and Flemmi.” Id. ¶16. However,
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the same FBI reports upon which plaintiffs rely for the information as to the “true killers of
Deegan” state that the information was shared with local police officers. Plaintiffs admit as
much in their complaints: “Rico claimed in the said memorandum that FBI Agent Donald V.
Shannon had transmitted the information contained therein to Renfrew, then a captain in the
Chelsea Police Department.” (Limone Amended Complaint, ¶ 17). “Rico provided information
on or about March 15, 1965, to Captain Robert Renfrew (“Renfrew”), formerly of the Chelsea
P.D., that James Flemmi, Barboza, French, Martin and Cassessa were responsible for the Deegan
murder. Rico documented this information in an official FBI Memorandum dated March 15,
The record supports the conclusion that the FBI’s informant information was
disseminated because the “true killers” identified by the FBI informant are the same individuals
who appear in the Evans police report. An FBI airtel, dated March 19, 1965 stated: “It should be
noted that this information was furnished to the Chelsea PD and it has been established by the
Chelsea Police that Roy French, Barboza, Flemmi, Cassessa, and Martin were all together at the
Ebb Tide night club in Revere, Mass. and they all left at approximately 9 o’clock and returned
45 minutes later. It should be noted that the killing took place at approximately 9:30 p.m.,
Friday, 3/12/65.”19 An FBI report dated March 15, 1965 stated: “This information has been
disseminated by SA Donald V. Shannon to Capt. Robert Renfrew (NA) of the Chelsea, Mass.
18/
William Moore, Chelesa police officer testified that the night of the Deegan murder, the
Chelsea Police had identified French, Martin, Imbruglia, Jimmy Flemmi and Barboza as the
primary suspects. Ex. H at 28.
19/
Ex. N, LIM011-1252 - LIM011-1254. (Emphasis added.)
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P.D.”20 Indeed, for the last 30 years plaintiffs have argued in state court that the “true killers” of
The doctrine of collateral estoppel bars plaintiffs’ claim that “exculpatory evidence” was
withheld. Johnson v. Mahoney, 424 F.3d 83 (1st Cir. 2005) is dispositive of this issue. Johnson
was convicted of murder in the Massachusetts juvenile court. He appealed unsuccessfully to the
Massachusetts Supreme Judicial Court. Five years after his conviction, the District Attorney
nolle prossed his conviction in light of new evidence exonerating him and he was released.
Johnson brought suit in federal court against Boston police officers, arguing that they had
violated his constitutional rights by withholding allegedly exculpatory evidence – police reports
summarizing the statements made by Johnson and his mother to the police at the time of the
murder in which they said Johnson was at home when the murder occurred.
The district court granted the police officers’ motions for summary judgment and the
First Circuit affirmed, finding that the withheld reports did not prejudice Johnson, but also
finding that the doctrine of collateral estoppel barred Johnson’s claims because he was
attempting to re-litigate issues decided against him by the Supreme Judicial Court of
Massachusetts. Id. at 93. In the Supreme Judicial Court, Johnson had argued that he was
prejudiced by the failure to disclose the report containing his statements. The Supreme Judicial
Court dismissed those arguments because Johnson had suffered no prejudice. The First Circuit
found that the prejudice assessed in state court was “exactly the kind of prejudice that constitutes
20/
Ex. M, LIM010-0987 - LIM010-0988. (Emphasis added.)
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a necessary element of a constitutional violation under Brady” and concluded that the state court
had adjudicated the issue and decided it adversely to Johnson. Id. at 95.
Plaintiffs filed motions for a new trial in state court, alleging that Barboza perjured
himself to protect his friend Flemmi, and further alleging a failure on the part of the Suffolk
County District Attorney’s Office to disclose the “exculpatory evidence” of the information
contained in the police reports of Lieutenant Thomas Evans. In Commonwealth v. Salvati, 650
N.E. 2d 782 (Mass. 1995), the Supreme Judicial Court of Massachusetts rejected the motions for
new trial that Limone, Greco and Salvati filed on the theory that Barboza “implicated certain
individuals, including the defendants, instead of the true perpetrators of the crimes.” Id. at 785.
Plaintiffs contended that the Commonwealth had suppressed the Evans report before trial. The
report contained statements made by an informant concerning events observed by the informant
on the night of Deegan's murder. They argued that the denial of their motions for a new trial was
erroneous because the Commonwealth “suppressed” this police report in violation of their due
process rights under the Fourteenth Amendment to the United States Constitution and in
violation of Brady v. Maryland, 373 U.S. 83 (1963). Salvati also argued that the denial was
erroneous because the Commonwealth failed to provide the defendants with the informant's
identity and the contents of the informant's statement before trial as required by Roviaro v.
The Supreme Judicial Court of Massachusetts affirmed the denial of plaintiffs’ motions
for a new trial, stating, “any failure of the prosecution to disclose the report does not require that
we grant a new trial” because the “information in the report is cumulative of the evidence
presented at trial.” Commonwealth v. Salvati, 650 N.E.2d 782 (Mass. 1995). It denied Salvati’s
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claim based on Rovario because the informant’s information “did not materially aid any of the
defendants on the issue of guilt or punishment.” Id. at 786. It held that “[a] defendant seeking a
new trial must establish that the evidence . . . casts real doubt on the justice of the conviction.”
Id. The information within the Evans report did not cast “doubt on the justice of the conviction.”
In this Court, plaintiffs are attempting to re-litigate issues that were litigated and lost in
state court. For example, the Salvati complaint alleges: “members of the aforementioned law
enforcement agencies had in their possession documented evidence exculpating Mr. Salvati, yet
they knowingly refused to provide such information to prosecuting authorities and officials
charged with considering Mr. Salvati’s post-trial motions and petitions for commutation of his
sentence.”21 Doyle and Zalkind, however, had the information that plaintiffs consider to be
“exculpatory,” i.e., that Jimmy Flemmi was involved in the murder, was with Barboza at the
Ebbtide, left the Ebbtide with Barboza and returned with him after Deegan was killed.
As in Johnson v. Mahoney, plaintiffs have litigated and lost in state court their claim that
law enforcement agents failed to disclose the existence of the “true killers of Deegan.” Because
these issues were adjudicated and decided adversely to plaintiffs by the Supreme Judicial Court
of Massachusetts,22 plaintiffs are precluded from relitigating the same theories here.
21/
Salvati Complaint, ¶ 3; see also Limone Complaint, ¶ 24; Amended Complaint of Roberta
Werner, ¶ 3.
22/
See Commonwealth v. Salvati, 650 N.E.2d 782 (Mass. 1995) (rejecting motions for new trial
brought by Limone, Greco and Salvati based upon suppression of Evans report, rejecting
plaintiffs’ claims based upon Brady v. Maryland, and rejecting Salvati’s claim that the identity of
the police informant should have been disclosed); Commonwealth v. Cassesso, 276 N.E.2d 698
(Mass. 1991) (rejecting Limone’s motion for new trial based upon Barboza’s recantation and the
affidavit of a Boston police officer, William W. Stuart, who was told by an informant on March
14, 1965 that Barboza, French, “Stats,” Chico Amico, Chiampa, Romeo Martin and Cassesso
participated in the Deegan murder); Greco v.Workman, 481 F.Supp. 481 (D. Mass. 1979)
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II. A Cause of Action For Malicious Prosecution Did Not Survive the Deaths of Louis
Greco and Henry Tameleo.
Both Louis Greco and Henry Tameleo died before commencement of this case. In 1850
the Supreme Court of Massachusetts held that an action for malicious prosecution "does not by
law survive in this commonwealth." Nettleton v. Dinehart, 59 Mass. 543 (1850). Today,
survival of actions "is largely the creature of statute" because all personal actions abated at
common law with the death of a party. See E.S. Parks Shellac Co. v. Jones, 163 N.E. 883, 884
(Mass. 1928). Massachusetts' survival statute enumerates the tort actions which have been
permitted to survive:
Massachusetts, by Thomas H. Belknap, § 9.8 (Vol.1, 5th ed. 1994) (Ex. P) states as black letter
law: “[t]he following actions have been held not to survive: for breach of promise to marry,
unless special damages are alleged; for libel or slander; for malicious prosecution . . . .”
(emphasis added.) The complaints of Roberta Werner, her son Edward Greco, and the complaint
of Saverio Tameleo, to the extent they attempt to maintain a cause of action in their individual
capacities for the malicious prosecution of Louis Greco or Henry Tameleo, must be dismissed.
(rejecting habeas corpus petition of Louis Greco, rejecting the claim that polygraph evidence
exonerated him, refusing to consider the evidence that Barboza recanted his testimony and
describing the motions for new trial filed by Greco in state court which had been denied).
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IV. Plaintiff's remaining claims fail because they are premised upon the tort of
malicious prosecution which is not actionable.
Plaintiffs have alleged loss of consortium and conspiracy claims which are derivative of
their claims for malicious prosecution. In Suarez v. Belli, 1997 WL 39918 *4 (Mass. Super. Ct.
1997), the Court stated it was “not aware of any authority that would permit loss of consortium
damages for . . . the malicious prosecution claim." “As a general rule, a claim for loss of
consortium by one spouse requires proof of a tortious act that caused personal injury to the other
spouse.” Armstrong v. Lamy, 938 F. Supp. 1018, 1046 (D. Mass. 1996). There is no legal
authority for the proposition that a loss of consortium claim is an independent tort to be pursued
“Conspiracy in and of itself is not a civil wrong.” 15A C.J.S. Conspiracy § 8 (2002).
There is no independent or separate and distinct tort cause of action for civil conspiracy; the
gravamen or gist of the action is not the conspiracy itself, but the underlying wrong or tort
which, absent the conspiracy, would give rise to a cause of action. Id.
To establish a claim for civil conspiracy under Massachusetts law, the plaintiff must
show "a combination of two or more persons acting in concert to commit an unlawful act, or to
commit a lawful act by unlawful means, the principal element of which is an agreement between
the parties to inflict a wrong against or injury upon another." Therrien v. Hamilton, 849 F. Supp.
110, 115 (D. Mass. 1994). Plaintiffs have produced no evidence during discovery suggesting
that employees of the FBI had an express or implied agreement to commit an unlawful act or a
lawful act by unlawful means. Plaintiffs' claim for civil conspiracy fails because the claim of
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Additionally, civil conspiracy may involve "concerted action, whereby liability is
imposed on one individual for the tort of another." Grant v. John Hancock Mutual Life
Insurance Co., 183 F. Supp.2d 344, 363 (D. Mass. 2002). The United States can only be held
liable for the acts of federal employees, 28 U.S.C. § 1346(b), and therefore liability cannot be
imposed based on the conduct of a state prosecutor, state police or Joseph Barboza. Because the
underlying torts upon which plaintiffs' conspiracy claims are based fail, plaintiffs' conspiracy
Salvati’s complaint, for example, alleges that the "willful and wanton" conduct of the FBI "in
conspiring to intentionally frame Joseph Salvati for the Deegan murder was extreme and
outrageous; beyond all possible bounds of decency; and was utterly intolerable in a civilized
society." Complaint, ¶ 171. There is no evidence that the FBI shared any active role in the
prosecution of the plaintiffs. There is no evidence the FBI told Barboza to lie. There is no
evidence that the FBI suborned perjury or manufactured any evidence used to prosecute the
plaintiffs. The record therefore contains no evidence that could fulfill the element of “extreme
and outrageous” conduct sufficient to impose liability for intentional infliction of emotional
distress. See Heinrich v. Sweet, 49 F. Supp. 2d 27, 38-39 (D. Mass. 1999) (holding that plaintiffs
could not base a claim for intentional infliction of emotional distress on challenged conduct that
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Conclusion
On the record of this case, it cannot be found that agents of the FBI initiated the
evidence.” Nor is there any evidence that FBI agents suborned perjury or told Barboza to lie. In
addition, the doctrine of collateral estoppel precludes plaintiffs from re-litigating issues that have
been adjudicated adversely to them in state court. Because plaintiffs’ claims for malicious
prosecution fail as a matter of law, the United States respectfully requests that summary
Respectfully submitted,
PETER D. KEISLER
Assistant Attorney General
PHYLLIS J. PYLES
Director, Torts Branch
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CERTIFICATE OF SERVICE
I hereby certify that on July 4, 2006, I reserved upon the following counsel a true and
correct copy of the United States’ Statement of Material Facts As To Which There Is No
Genuine Issue and its Memorandum of Points and Authorities in Support of its Motion For
Summary Judgment by ECF filing and by first-class mail (where indicated), postage prepaid, to:
By Mail:
John Morris
4270 Armadillo Trail
Niceville, FL 32578 /s/ Mary M. Leach
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