# Limone v. United States

> District Court, D. Massachusetts · July 26, 2007 · 497 F. Supp. 2d 143

URL: https://www.frixlaw.com/law-library/cases/1614593

## Case

- **Full name:** Peter J. LIMONE, Et Al., Plaintiffs, v. UNITED STATES of America, Defendant
- **Court:** District Court, D. Massachusetts
- **Decided:** July 26, 2007
- **Citations:** 497 F. Supp. 2d 143; 2007 U.S. Dist. LEXIS 54224; 2007 WL 2141959
- **Precedential status:** Published
- **Opinion:** Opinion by Gertner
- **Judges:** Gertner
- **Cited by:** 30 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1614593

## How later opinions describe it (automated extraction)

- finding testimony of currently unavailable FBI agents before House Committee on Government Reform admissible as party admissions over government’s hearsay objection, even though at time of testimony agents were no longer employed by government
- noting the difficulty of quantifying the losses suffered by plaintiffs, innocent men who had been wrongly prosecuted, wrongly convicted, and wrongly incarcerated due to defendants’ misconduct, and awarding damages against defendants under Section 1983 and Massachusetts state law
- finding that Barboza had pulled “the [scapegoats’] names out of thin air”
- discussing a 15-year period of wrongful incarceration

## Opinion text

MEMORANDUM AND ORDER RE: BENCH TRIAL
GERTNER, District Judge.
TABLE OF CONTENTS
I. INTRODUCTION.151
II.
PROCEDURAL
BACKGROUND.155
III. FACTFINDINGS.157
A.
The FBI Program to “Get” La Cosa
Nostra.159
1.
Patriarca
Wire.160
2.
“Top Echelon Criminal Informant
Program”.160
3.
Significance of (1) and
(2).161
B.
The Boston FBI, the Flemmi Brothers and
Barboza.161
1.
Agents Rico and
Condon.161
2.
The Flemmi
Brothers.163
a.
Jimmy Flemmi
.163
b.
Stephen Flemmi
.164
3.
Using the Flemmi Brothers to Turn Barboza into a
Witness.166
4.
Rico and Condon Meet with
Barboza.167
a.
Meetings Before September
1967.167
(1)
March 8,1967
.167
(2)
March 21,1967
.168
(3)
April
11,1967.169
(4)
April
27,1967.169
(5)
May 22,1967
.169
(6)
Summer
of1967.170
b.
Barboza Mentions the Plaintiffs for the First Time on September 8,1967
.171
(1)
What the FBI Knew about the Deegan Murder Before The
Murder.172
(2)
What the FBI Knew after the
Murder.173
(3)
What the Local Authorities Knew about the Deegan
Murder.177
c.
The September
8
Interview and the
Indictment.178
C.
The Deegan Trial
.181
1.
Trial Preparation: An Allegedly “Independent
Investigation”.181
2.
The
Trial.184
3.
The
Verdict.189
D.
Between the Deegan Murder Trial and the Nolle
Prosequi.189
1.
Praises for Rico and
Condon.189
2.
The Involvement of the FBI Hierarchy
..190
3.
Protecting and Providing for
Barboza.191
4.
1970 Rico
Admission.191
5.
Barboza Attempts to
Recant.192
6.
Barboza Murders Clay Wilson and Brags about His False Testimony in the Deegan
Trial.194
7.
Rico’s Methods Are Exposed
— Still
Nothing is
Done.197
8.
The FBI and Stephen Flemmi in the
1980s.198
9.
Deegan Defendants’Efforts Post-Conviction
.199
a.
Salvati Commutation
Petitions.199
b.
Limone Commutation Petitions
.200
c.
Tameleo Commutation
Petitions.201
*150
d.
Greco Commutation
Petitions. rH O 03
10.
The Conspiracy of
Silence. CM O 03
IV.
CONCLUSIONS OF
LAW. o to
A.
Prior Issues
. tO o CO
1.
Discretionary Function
Exception. tO o CO
2.
The FTCA’s Exception for Malicious Prosecution
Claims. tO o ^
B.
Malicious
Prosecution. tO o cn
1. Initiation. tO o -d
a.
The FBI’s Role in Brinyiny about the Prosecution of the Plaintiffs: More than a
Host. to o so
b.
The Information Provided by Barboza Was False or Misleadiny
— and
the FBI Knew
it.
c.
There Was No Independent Investiyation: There Could Not
Be. H rH 03
d.
The FBI’s Efforts Continued over Thirty
Years. (N tH 03
2.
Lack of Probable
Cause. CO rH 03
a.
Information Available to the FBI at the Time
. 'ñp rH 03
(1)
Barboza’s CredibilityZIA
(2)
Limone and
Tameleo. to I — 1 ^
(3) Greco. to ^
(4)
Salvati
. to cn
b.
Conviction is Not Conclusive Proof of Probable Cause on these
Facts. to h-l Ol
(1) Subornation. to h-l 05
(2)
Due
Process. to I — l 00
(3)
FBI’s Misconduct/Barboza’s Testimony
— The
Sole Foundation
.
(a)
The Fitzyerald Bribe Testimony
.
(b)
The Stathopolous
Identiñcation.
c.
No Other
Evidence.
3.
Malice and
Termination.
4.
Not a “Failure to Disclose”
Claim.
5.
Massachusetts Survival
Statute.
C.
Civil
Conspiracy.
D.
Intentional Inñiction of Emotional
Distress.
1.
Deeyan Defendants’ Claims
.
2.
Family Members’
Claims.
a.
Substantially Contemporaneous Knowledge
.
b.
Severe Emotional
Response.
E. Negligence.
1.
The Government Was Directly
Negligent.
2.
Negligent
Supervision.
V. DAMAGES.
A.
Facts
1.
Limone
Plaintiffs.
a.
Peter Limone
Sr..
b.
The
Family.
2.
Salvati Plaintiffs
.
a.
Joseph
Salvati.
b.
The
Family.
3.
Tameleo Plaintiffs
.
a.
Henry
Tameleo.
b.
The
Family.
4.
Greco and Werner
Plaintiffs.
a.
Louis Greco
Sr..
b.
The
Family.
(1)
The
Children.
*151
(2)
The Marriage
. 242
B. Law. 243
1.
Damages for the Deegan Defendants: Limone, Tameleo, Greco and
Salvati. 243
2.
Damages for Family
Members. 245
a.
Loss of
Consortium. 245
(1) Spouses. 246
(2) Children. 248
b.
Bystander Intentional Infliction of Emotional Distress ..
249
(1)
The General
Case. 249
(2)
Youny Children
. 249
VI. CONCLUSION. 250
I.
INTRODUCTION
Peter Limone (“Limone”), Enrico “Henry” Tameleo (“Tameleo”), Louis Greco (“Greco”),
1
and Joseph Salvati (“Salvati”), made extraordinary and troubling accusations in this case. They claimed that thirty-nine years ago, virtually to the date of this decision, on July 31, 1968, they were convicted of a crime which they did not commit — the murder of Edward “Teddy” Deegan (“Deegan”). Limone, Tameleo, and Greco were sentenced to die in the electric chair, a sentence reduced to life imprisonment when the death penalty was vacated. They accused the United States, specifically, the Federal Bureau of Investigation (“FBI”) of framing them for Dee-gan’s murder, and then, by covering up FBI misconduct, ensuring their imprisonment over the next three decades.
This trial, however, was not about securing the plaintiffs’ release. Salvati was freed in 1997; Limone in 2001. Tameleo and Greco died tragically as prisoners— Tameleo in 1985, Greco in 1995.
Rather, the plaintiffs sought a different form of redress, which the law allows— damages for their loss of liberty, for their pain, and the pain of their loved ones. They brought this lawsuit under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 , et seq., on a number of grounds, including malicious prosecution.
The bench trial was lengthy. It took twenty-two days and involved hundreds of exhibits, thousands of pages. There were comparatively few live witnesses; this story had to be painstakingly pieced together through documents, many of them heavily redacted, particularly at the outset of the proceedings.
Despite the complexity of the record, this decision is far, far, longer than I would have wished. It has taken much more time to complete than I had predicted. But there was no other alternative. The conclusions that the plaintiffs have asked me to draw — that government agents suborned perjury, framed four innocent men, conspired to keep them in jail for three decades — are so shocking that I felt obliged to analyze this complex record with special care in order that the public, and especially the parties, could be fully confident of my conclusions.
I have concluded that the plaintiffs’ accusations that the United States government violated the law are proved. In the pages that follow, I will describe why in detail. This introduction summarizes some of those findings.
*152
The plaintiffs were convicted of Dee-gan’s murder based on the perjured testimony of Joseph “The Animal” Barboza (“Barboza”).
2
The FBI agents “handling” Barboza, Dennis Condon (“Condon”) and H. Paul Rico (“Rico”), and their superiors — all the way up to the FBI Director— knew that Barboza would perjure himself. They knew this because Barboza, a killer many times over, had told them so — directly and indirectly. Barboza’s testimony about the plaintiffs contradicted every shred of evidence in the FBI’s possession at the time — and the FBI had extraordinary information. Barboza’s testimony contradicted evidence from an illegal wiretap that had intercepted stunning plans for the Deegan murder before it had taken place, plans that never included the plaintiffs. It contradicted multiple reports from informants, including the very killers who were the FBI’s “Top Echelon” informants.
And even though the FBI knew Barbo-za’s story was false, they encouraged him to testify in the Deegan murder trial. They never bothered to tell the truth to the Suffolk County District Attorney’s Office. Worse yet, they assured the District Attorney that Barboza’s story “checked out.”
The FBI knew Barboza’s testimony was perjured because they suborned that perjury. They met with Barboza long before the state authorities ever did. They coddled him, nurtured him, debriefed him, protected him, and rewarded him — no matter how much he lied. When Barboza told them he
would not
accuse the man they knew to be one of Deegan’s killers, his friend and FBI informant, Jimmy Flemmi, they urged Barboza to testify nonetheless. And when he announced that he
would accuse
four men who had never been linked to this murder, they were undaunted. They continued to press for his testimony. Indeed, they took steps to make certain that Barboza’s false story would withstand cross-examination, and even be corroborated by other witnesses.
In word and in deed, the FBI condoned Barboza’s lies. FBI agent Dennis Condon even told the Deegan jury that he was “always concerned with the purity of testimony on the part of’ his witnesses, referring to Barboza, the perjurer. When Ta-meleo, Greco, and Limone were sentenced to death, Salvati to life imprisonment, the FBI did not stand silently; they congratulated the agents for a job well done.
Nor did the FBI’s misconduct stop after the plaintiffs were convicted. The plaintiffs appealed, filed motions for a new trial, one even took and passed a polygraph test on public television — over and over again protesting their innocence. They sought commutations, appeared before parole boards, seeking clemency from the governor, even appealing to the press. On each occasion, when asked about the plaintiffs, on each occasion when the FBI could have disclosed the truth — the perfidy of Barbo-za and their complicity in it — they did not. This was so even as more and more evidence surfaced casting more and more doubt on these convictions. In the 1970s, for example, Barboza tried to recant his testimony, not in all cases in which he had participated, but only as to the plaintiffs in this case — the very men the FBI knew to be innocent. In the 1980s, Agent Rico was found by a court to have suborned the perjury of another witness under similar circumstances. Yet, there was still no FBI
*153
investigation, no searching inquiry to see if an injustice had been done in this case.
Rather, while Salvati and Limone languished in jail for thirty-odd years, and Greco and Tameleo died in prison, Barboza and his FBI handlers flourished. The FBI agents were given raises and promotions precisely for their extraordinary role in procuring the Deegan convictions. Even when Barboza, the “poster boy” for the new federal witness protection program, committed yet another murder, three federal officials testified — now for the second time — on his behalf. FBI officials up the line allowed their employees to break laws, violate rules and ruin lives, interrupted only with the occasional burst of applause.
The FBI knew Barboza’s testimony was false, that the plaintiffs’ convictions had been procured by perjury, that critical exculpatory information had been withheld— but they did not flinch. After all, the killers they protected' — Jimmy Flemmi, along with Barboza, and Jimmy’s brother, Stephen — were providing valued information in the “war” against the Italian Mafia, La Cosa Nostra (“LCN”).
3
The pieties the FBI offered to justify their actions are the usual ones: The benefits outweighed the costs. Put otherwise, in terms that are more recently familiar, these four men were “collateral damage” in the LCN war. To the FBI, the plaintiffs’ lives, and those of their families, just did not matter. As Agent Rico put it in his testimony before the United States House of Representatives Committee on Government Reform, when asked if he had any remorse that four innocent men went to prison, he replied: “Would you like tears or something?” Exh. 170 at 186.
Now is the time to say and say without equivocation: This “cost” — to the liberty of four men, to our system of justice — is not remotely acceptable. No man’s liberty is dispensable. No human being may be traded for another. Our system cherishes each individual. We have fought wars over this principle. We are still fighting those wars.
Sadly, when law enforcement perverts its mission, the criminal justice system does not easily self-correct. We understand that our system makes mistakes; we have appeals to address them. But this case goes beyond mistakes, beyond the unavoidable errors of a fallible system. This case is about intentional misconduct, subornation of perjury, conspiracy, the framing of innocent men. While judges are scrutinized — our decisions made in public and appealed — law enforcement decisions like these rarely see the light of day. The public necessarily relies on the integrity and professionalism of its officials.
It took nearly thirty years to uncover this injustice. It took the extraordinary efforts of a judge,
4
a lawyer,
5
even a reporter,
6
to finally bring out the facts. Proof of innocence in this democracy should not depend upon efforts as gargantuan as these.
*154
The claims of the plaintiffs or their estates
7
fit into four categories: malicious prosecution, civil conspiracy, intentional infliction of emotional distress, and negligent selection, supervision, and retention. Their spouses and children have each brought loss of consortium and bystander intentional infliction of emotional distress claims as well.
8
The federal government has fought hard. The legal doctrines on which it has relied are important ones. They are doctrines designed to give law enforcement room to make critical policy decisions. They are intended to insulate those who bring information in good faith to the authorities, even if the information is later disproved. All the FBI did, the government argued, was exercise their discretion about whom to offer deals, and how to conduct an investigation. All they did was to present their cooperating witness to the state authorities who independently prosecuted the crime. In effect, what they are saying is that it was the
state’s
fault — not theirs — for not doing a better job. If the FBI erred at all, it was in not turning over information exculpatory to the defense— nothing more — and that violation is not actionable under this statute, the FTCA.
The government’s position is, in a word, absurd. The law they cite does not apply to the extraordinary facts of this case. The issue here is not discretion but abuse, not independent charging decisions but the framing of four innocent men, not the failure to produce exculpatory evidence but procuring convictions by misrepresentation, not letting perjured testimony proceed uncorrected but facilitating it.
The FBI, and not the state, developed Barboza as a witness, knowing that his false testimony would be used to prosecute the plaintiffs for a crime they did not commit. They, and not the state, kept their conduct from being discovered by failing to disclose exculpatory evidence, before, during, and after the trial. They, and not the state, vouched for Barboza to law enforcement and to the very jury hearing the murder case, even when all the information they had flatly contradicted his account.
I begin with the procedural background of the case, which also serves as a chronology within which to frame my specific findings. Thereafter, I proceed to the fact findings and the legal analysis. The evi-dentiary issues that were reserved during the course of the bench trial are noted as the evidence is considered or rejected, as the case may be. Finally, I address the damages.
In the end I conclude that the defendant is liable to these men and their families. As to damages, plaintiffs’ loss of liberty, and, in effect, a lifetime of experiences, is obviously not compensable. To the extent that damages can approach this task, my total award is One Hundred One Million, Seven Hundred Fifty Thousand, And 00/100 ($101,750,000.00) Dollars. (I address the individual awards in later sections.)
*155
II.
PROCEDURAL BACKGROUND
On March 12, 1965, at approximately 9:30 p.m., Teddy Deegan was murdered. He was found with six gunshot wounds from at least three different weapons.
See
Exhibit (“Exh.”) 2070 at 3; Exh. 57 at 26. On October 25, 1967, more than two years later, six men — Peter Limone, Henry Ta-meleo, Joseph Salvati, Louis Greco, Ronald Cassesso,
9
and Roy French' — -were indicted for his murder.
10
The ensuing trial' — in which Barboza was the star — began on May 27, 1968. All the defendants, including the four plaintiffs before me, were convicted.
11
On July 31, 1968, the death penalty was imposed for Limone, Tameleo, and Greco, but was subsequently vacated four years later.
12
Salvati was sentenced to life in prison.
Between 1970 and 2001, plaintiffs filed more than a dozen motions for a new trial. Each time they were denied relief. They filed a total of seventeen commutation petitions. The first sixteen were denied.
See
Exh. 340. Tameleo died in prison in 1985, after serving nearly eighteen years. A decade later, in 1995, Greco died after serving twenty-eight years.
In 1995, certain information about the relationship between the Boston office of the FBI and two of the most notorious criminals in Boston history, James J. “Whitey” Bulger and Stephen J. “The Rifleman” Flemmi, surfaced during proceedings in
United States v. Salemme
before now-Chief Judge Mark Wolf.
13
On July 3, 1997, as a result of the
Salemme
disclosures, the deputy attorney general ordered that attorneys from the Department of Justice’s Public Integrity Section and Office of Professional Responsibility, in conjunction with FBI agents, conduct an investigation into alleged misconduct in the Boston office of the FBI.
See
Exh. 166 at 3 (“Obstruction of Justice Report”).
In December of 2000, that investigative effort focused on Limone’s request for doc
*156
uments pertaining to his case. Special Assistant U.S. Attorney, John Durham (“Durham”) responded with five FBI memoranda from the 1960s (the “Durham documents”). Durham made clear that the Department of Justice, the United States Attorney’s Office, the Boston FBI office and FBI headquarters, “understand the potential significance of the enclosures” and provided them with the “concurrence and encouragement of the Boston FBI and FBI headquarters.” Exh. 4 at 3.
The best measure of the importance of the Durham documents was the firestorm they created. The Suffolk County District Attorney’s office immediately filed a motion to vacate Limone’s conviction, to grant Limone a new trial, and admit him to bail. Judge Margaret Hinkle of Suffolk Superi- or Court ruled that the Durham documents were material, exculpatory, and cast “real doubt” on the justice of Limone’s convictions.
See
Exh. 2 at 16. The documents had been wrongly kept from the Suffolk County District Attorney’s Office and obviously, the plaintiffs. Indeed, Judge Hinkle noted,
[T]he court system responsible for the Deegan trial now reeognize[d] that evidence in the hands of federal officials was indispensable to the administration of justice in the Deegan murder prosecution.
Exh. 195 at 3-4. In granting a new trial, Judge Hinkle concluded that there was a substantial likelihood that the jury would have reached a different conclusion had this evidence been available at trial.
The Suffolk County District Attorney’s office immediately agreed and filed nolle prosequis for both Limone and Salvati, the only plaintiffs still alive.
14
It concluded that “it does not now have a good faith basis — legally or ethically — to proceed with any further prosecution of the defendant.” Exh. 3B; Exh. 3D; Exh. 3E.
15
In 2001, the United States House of Representatives Committee on Government Reform (“House Committee”) began a lengthy investigation into FBI misconduct in the Deegan case resulting in a report titled: “Everything Secret Degenerates: The FBI’s Use of Murderers as Informants.” Exhs. 195-195T.
16
The report was a stinging rebuke of federal law enforcement officials for tolerating and encouraging false testimony, for taking
*157
“affirmative steps” to ensure that the individuals convicted would not obtain post-conviction relief and would die in prison. The Report also concluded that the FBI— including “senior staff close to FBI Director J. Edgar Hoover” were in possession of information that “could have led them to the conclusion that Barboza was committing perjury” and did not disclose it. Exh. 195 at 4.
On May 16, 2001, Louis J. Freeh, then-Director of the FBI, said that the Salvati case was
a great travesty, a great failure, disgraceful to the fact that my agency, or any other law enforcement agency, contributed to that.... [Njothing worse that can happen under a system of law is that an innocent person is either charged, or in this case punished, for that period of time. It is a travesty, a disgrace, it shouldn’t happen....
Exh. 171.
The Limone, Tameleo, and Greco/Wer-ner plaintiffs brought the instant litigation in May of 2002. Edward Greco followed suit in April of 2003,
17
and the Salvati plaintiffs filed their case that July. All the cases were consolidated before me.
18
This case has been litigated for five years and resulted in two published opinions on motions to dismiss, and an opinion by the First Circuit Court of Appeals.
19
III.
FACTFINDINGS
Section A deals with the FBI’s efforts to prosecute La Cosa Nostra. It sets the stage for the Deegan trial and the instant accusations in the following ways: The FBI gave extraordinary priority to infiltrating and prosecuting members of the LCN. So important was the task that the FBI was willing to enlist killers to be informants on an ongoing basis, to keep the program so secret that not only state law enforcement but also other divisions within the FBI would not have access to it, and to allow four innocent men to be convicted. Through its illegal wiretap of Raymond L.S. Patriarca, Sr. (“Patriarca”), the top LCN 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 testified at odds with that information in the Deegan case — notably, inculpating the plaintiffs — the FBI was no bystander. It knew that the testimony was false. Its fingerprints were everywhere.
Section B deals with the period before the Deegan trial — the role of FBI agents H. Paul Rico and Dennis Condon in the
*158
investigation and their relationship to two “Top Echelon” informants
20
and to Barbo-za. The agents used the Flemmi brothers to manipulate Barboza into testifying in the Deegan murder case, passing information to them for transmission to Barboza. They even used their conduits to get information from the defense camp about trial tactics and strategy. When Barboza made it clear that he would lie about Jimmy Flemmi’s involvement in Deegan’s murder, it did not matter to the FBI. They pressed him to testify nonetheless.
Barboza was Rico’s most important witness — indeed a nationally renowned witness against the LCN.
21
He was the “poster boy” for the FBI’s new witness protection program, the linchpin for the Bureau’s and the Boston office’s most important initiative. Since there was no direct federal jurisdiction over murder, state prosecutions were an essential part of the FBI’s agenda. And though Barbo-za was technically a witness for the state, the FBI was in complete control of him. They had constant, direct access — meeting with him before his grand jury testimony, between that appearance and the Deegan trial, and during the Deegan trial — most of the time with no state representative present.
From March of 1967 to September of 1967, the FBI debriefed Barboza about a number of murders, including the Deegan murder. Not once did he implicate the plaintiffs. Indeed, every piece of evidence in the FBI’s files from the Patriarca wire, through the information from Top Echelon informants, confirmed the killers as Barbo-za, Flemmi, and three others — not the plaintiffs.
Given the extraordinary information Rico, Condon, and the FBI hierarchy had, there is no doubt they knew on September 8, 1967, when Barboza excluded Jimmy Flemmi and suddenly included the plaintiffs in the murder, that he was lying. They knew that Limone had been overheard warning Deegan that Flemmi wanted to kill him. They knew that they had never even heard of Salvati before Barbo-za uttered his name. They knew that Greco and Tameleo had never been linked to this murder.
Still, the FBI persisted, encouraging Barboza to testify, rewarding him for his efforts. And they vouched for him to the state authorities, telling them his story “checked out,” which was blatantly false. Without the FBI information, the state investigation was a charade. In so may words, the FBI said “just trust us” to the state, and then vouched for a perjurer.
Section C deals with the Deegan murder trial itself. The state investigation of the Deegan case had stalled. Without Barbo-za there was no case. Without the FBI there was no Barboza. While the state authorities could corroborate information about the murder — how it happened, where and when — Barboza’s testimony was the only link to the plaintiffs. And his testimony about the plaintiffs could not be corroborated because it was false. Only the FBI had the means to prove Barboza’s falsity, and they were not talking. Even when Barboza testified that “the FBI never promised [him] anything,” they stood mute.
The FBI’s role at trial went far beyond the failure to share evidence in their files.
*159
They were a formidable presence through the trial both directly and indirectly. They cultivated, debriefed and prepared Barboza. They corrected his testimony only when it was inconsistent with reports the defense was likely to have or when it made him vulnerable on cross-examination. Condon even testified on Barboza’s behalf attesting to the “purity” of Barboza’s false testimony. They conferred with and controlled major prosecution witnesses before they testified (Anthony Stathopoulos and John Fitzgerald). They advised Suffolk County Assistant District Attorney (“ADA”) Jack Zalkind (“Zalkind”) and his staff behind the scenes.
Section D deals with the aftermath— between the conviction and the nolle prose-qui of the charges. As time passed, the government should have become more and more concerned about Barboza’s testimony and his actions afterwards. His threatened recantation in the Deegan case, the clear evidence that he had lied about Jimmy Flemmi, his demands upon the government, not to mention the fact that he murdered again — this time in California— after he was released from prison, should have rung alarm bells. Instead of investigating Barboza, the government continued to placate him with money, jobs, and in the most extraordinary gesture of all, the FBI imprimatur again, this time testifying on his behalf when he was accused of murdering Clay Wilson. Rico and Condon, together with Assistant United States Attorney Edward F. Harrington (“Harrington”), went to California to vouch for him, just as Condon had done in the Deegan trial— rather than investigate accusations that he had threatened he could get “anyone” imprisoned for “anything.” And by the 1980s, the FBI had yet another reason to suspect perjury — Rico had been cited for suborning perjury in state court under circumstances similar to the Deegan murder trial.
At the same time the FBI was protecting Barboza, ignoring the warning signs, continuing to protect its Top Echelon informants, they stood silent as the plaintiffs filed motion after motion for a new trial, commutation petition after commutation petition. Worse yet, the FBI hinted— without basis — at Greco’s continued involvement in organized crime, or Salvati’s fraternization with an offender.
Over thirty years after their conviction, Salvati and Limone were finally freed, the charges against them nolle prossed, thanks to the information disclosed in
Salemme
and the investigations it generated. Ta-meleo and Greco were not so fortunate.
A.
The FBI Program to “Get” La Cosa Nostra
In the early 1960s, the FBI focused its energy on prosecuting organized crime in the United States.
See
Exh. 7; Exh. 8B; Exh. 9. That focus meant zeroing in on Raymond Patriarca, the reputed head of organized crime in New England.
22
Two critical parts of the program were an illegal wiretap at Patriarca’s office and the so-called Top Echelon Criminal Informant Program.
*160
1.
Patriarca Wire
On March 6, 1962, the FBI installed electronic surveillance without a warrant at Patriarca’s office in Providence, Rhode Island. FBI agents monitored the Patr-iarca wiretap, transcribing conversations, typing up any important information, and creating highlighted summaries that were transmitted regularly to Washington via “airtels.”
23
Each day, Special Agents at the Providence and Boston offices would send the tape recording from the wire, along with the log created by the agents, to Special Agent (“SA”) John J. Kehoe Jr. (“Kehoe”) in Boston.
Kehoe was the Supervisor of the Organized Crime Squad in the Boston office from 1962 to 1971.
See
Exh. 193A at 29; Exh. 341.
24
Boston agents could access the airtel information by requesting it from Kehoe. And, given their significant roles in the effort against the LCN, Con-don and Rico had regular access.
The FBI made every effort to keep the fact of the wire confidential, even within the agency. The Patriarca wiretap was given the informant identification number BS 837 C*.
See
Exh. 12; Exh. 13; Exh. 339. FBI reports describing conversations heard on the wire referred to it as if it were a human source, an informant just like any other.
As described
infra,
in the course of their monitoring, the FBI overheard information about the Deegan murder on this wire
before
its commission — confirmed by Top Echelon informant reports after its commission — information which flatly contradicted Barboza’s account at the Deegan trial.
2.
“Top Echelon Criminal Informant Program”
In addition to the Patriarca wire, the FBI’s heightened efforts to penetrate and dismantle organized crime included the development of the Top Echelon Criminal Informant Program, officially inaugurated by J. Edgar Hoover on June 21, 1961.
25
Three aspects of the program are significant: First, the informants involved were to be important enough organized crime figures that they would be able to provide high-level information on a major scale.
See
Exh. 193 at 56. (The corollary — apparently acceptable to the FBI — was that these informants might well continue to commit serious crimes.) Second, these were not merely witnesses getting deals for episodic appearances in court. Their relationship with the FBI was supposed to
*161
be a lasting one, providing information on a continuing, long-range basis.
26
Third, the program was strictly confidential— which not only meant that its existence would be kept secret from the general public and other divisions within the federal government, but also from state law enforcement agencies.
27
Even when disseminating particular facts to other agencies, as they did from time to time, agents were to take special care to paraphrase the information so that the informants’ identities would not be disclosed.
See
Exh. II.
28
3.
Significance of (1) and (2)
The Top Echelon Criminal Informant Program, together with the Patriarca wire, gave the agency extraordinary information. This was not just any old tip related by unnamed informants on an ad hoc basis. This was information heard or overheard from the horse’s mouth.
29
As such, the FBI’s intelligence about the Deegan murder — both
before
and
after
it occurred— was unusually good.
The risks, however, were obvious. Since there was no federal jurisdiction over murder, no federal racketeering statute,
30
the FBI was obliged to work through local law enforcement, with whom it could not — or would not — share critical information, lest the information disclose its unique sources and jeopardize their programs. The result should have been predictable: A state prosecution based on the testimony of a witness that was plainly contradicted by the secret information in the FBI’s files.
B.
The Boston FBI, the Flemmi Brothers and Barboza
1.
Agents Rico and Condon
Rico was in the FBI from February 26, 1951, to May 27, 1975. He worked in the Boston office from 1962 until he was transferred to Miami, Florida, in April of 1970, partly as a reward for his work on the Deegan prosecution. In 1963, Rico was assigned exclusively to the development of Top Echelon informants.
See
Exh. 51C. He clearly had access to the files generated by both initiatives. Reviewing those files was part of his job.
*162
Condon was in the FBI from January 29, 1951, to May 20, 1977. He was assigned to the Boston office on April 26, 1952, and to the Organized Crime Squad in 1962. As such, he too had access to the case files in the Boston FBI office relating to organized crime, including the Patriarca wire and the Top Echelon Informant Program.
See
Exh. 193A at 28, 30-31.
Agents Rico and Condon worked closely together from 1966 to Rico’s transfer in 1970. They were partners, staying m touch 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 unable to appear. Nevertheless, plaintiffs introduced Rico’s and Condon’s testimony before the House Committee, Rico’s testimony before Judge Wolf in
Salemme,
and Condon’s deposition.
31
While I was not able to see
*163
these witnesses, I was able to evaluate their testimony in the light of the documents they generated or other documents to which they had access.
As described below, Rico’s and Condon’s accounts of what they knew and when they knew it are resoundingly contradicted by the record, a fact which has had a serious impact on the government’s defenses. I find that both men lied in fundamental ways about their relationships with the Flemmi brothers and Barboza, about the information they had concerning the Dee-gan murder at the time of the trial, and their actions afterwards.
2.
The Flemmi Brothers
Jimmy and Stephen Flemmi were career criminals who served as Top Echelon informants. Both continued to commit crimes well after they became informants. In fact, Jimmy Flemmi was one of the Deegan co-conspirators, as the FBI well knew.
Stephen Flemmi was close to his brother Jimmy; Jimmy, in turn, was close to Bar-boza. The FBI used the relationships among the three to get Barboza to testify, and turned a blind eye when Barboza covered up Jimmy Flemmi’s participation in the Deegan murder. Indeed, the agents were praised and promoted for their “ingenuity” in manipulating these men.
See infra
Section III.D.l.
a.
Jimmy Flemmi
Before designating Jimmy Flemmi as a Top Echelon informant,
See
Exh. 19A, the FBI — and in particular, agent Condon— had collected extensive information about his criminal activities, which included a series of murders.
See
Exh. 38. From the Patriarca wire, they even had information that he was
about to
participate in the Deegan murder.
32
Despite the information about Jimmy Flemmi’s murderous 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; Exh. 44. Even after designating Jimmy Flemmi for participation in the initiative,
*164
the FBI continued to receive information about his penchant for killing.
33
Flemmi’s designation as an informant was reviewed at the highest level of the FBI. On June 4, 1965, the FBI Director asked the Boston SAC for information on the status of Flemmi’s designation in the program.
See
Exh. 41. The Boston SAC’s response was telling: He noted that Rico, based on information from other informants and sources, believed Jimmy Flemmi had murdered six named individuals,
including Edward “Teddy" Deegan.
34
The memorandum added that “from all indications, he is going to continue to commit murder.” Exh. 43 at 3. The SAC nevertheless recommended Flemmi’s continued use by the FBI.
Jimmy Flemmi’s victims did not matter to the FBI. All that mattered was that Flemmi “has been in contact with RAYMOND L.S. PATRIARCA and other members of La Cosa Nostra” and therefore “potentially could be an excellent informant.” The SAC concluded that Flemmi’s “potential outweighed the risks involved.” Exh. 43 at 3.
On September 16, 1965, Jimmy Flemmi was “closed” as a Top Echelon informant because he had become a fugitive, and as such, “any contacts with him might prove to be difficult and embarrassing.” Exh. 49. Jimmy Flemmi died on October 16, 1979.
See
Exh. 338, ¶ 55.
Information about Jimmy Flemmi’s relationship with the FBI did not surface until the Durham documents were disclosed. Indeed, the stonewalling continued in this litigation: Rico, whose name and signatures are all over the Jimmy Flemmi documents,
see, e.g.,
Exh. 38, Exh. 19A, Exh. 19B, Exh. 44, lied about his relationship with Flemmi. He denied working with, much less opening, Jimmy Flemmi as an informant.
See
Exh. 170 at 169, 221. Condon, he insisted, may have been the one to open Jimmy Flemmi.
See
Exh. 170 at 159. Condon, however, denied any relationship with Jimmy Flemmi as well.
See
Exh. 193B at 26.
b.
Stephen Flemmi
On November 3, 1965, the Boston SAC sent a report (drafted by Rico) to the Director targeting Stephen Flemmi as a Top Echelon informant — two months after his brother was closed.
See
Exh. 50B.
35
Stephen Flemmi was assigned to Rico,
See
Exh. 166 at 17, with Condon as his alternate handler (in accordance with FBI policy that two agents be in a position to contact each criminal informant).
See
Exh. 304; Exh. 192 at 176; Exh. 177 at 49; Exh. 188 at 17.
36
*165
Rico vouched for Stephen Flemmi’s information to his superiors because Stephen Flemmi had direct access to Patriarca, as well as LCN bosses Gennaro “Jerry” An-giulo (“Angiulo”) and Larry Baione (“Baione”).
37
See
Exh. 167A at 44-45, 50-54, 72; Exh. 167B at 67-68. As with Jimmy, those contacts trumped Stephen Flemmi’s illegal and even murderous activities — bookmaking, shylocking, robberies and “possibly” gangland slayings.
See
Exh. 61B.
38
Again, secrecy was preeminent: Flemmi “was to provide information only to this Bureau.... ” Exh. 304. He was not even available “to other field divisions.” Exh. 61B. Nor was Rico to ever disclose Stephen Flemmi’s crimes to any state prosecutors.
See
Exh. 192 at 165.
Stephen Flemmi was rewarded not only with money,
see
Exh. 67, but, according to Flemmi, agent Rico and others
39
promised him that he would be protected from prosecution for his crimes.
See
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 to be indicted for the attempted murder of Bar-boza’s attorney, John Fitzgerald (“Fitzgerald”),
41
and the murders of two others, giving Flemmi a chance to flee before the indictments came down.
See
Exh. 189 at 71-72. Flemmi further testified that even while he was “on the lam,” he was in regular contact with Rico, who advised him not to return until 1974. Flemmi returned, was arrested, and released on bail approximately one week later, notwithstanding the fact that he had been a fugitive. Within six months, all charges were dropped.
See
Exh. 189 at 75-76, 78.
While Rico denied Flemmi’s accusations,
42
I (like the other judges before me) wholly reject Rico’s account as not credible.
43
Flemmi did in fact escape prosecu
*166
tion for these charges under circumstances that can only be explained by his extraordinary access to FBI agents, and in particular to Rico.
See
Exh. 192 at 157.
44
3.
Using the Flemmi Brothers to Turn Barboza into a Witness
In November of 1966, Rico focused on turning career criminal Joseph Barboza into a cooperating witness against the LCN.
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 raises.
See infra
Section III.D.l. Barboza’s unquestioned importance to Rico makes especially suspect Rico’s statements — before the House Committee and before Judge Wolf — in which he claimed not to remember critical details of reports he authored, initialed, or to which he had access.
See
Exh. 170 at 169,188.
Based on information Rico had received from Stephen Flemmi — namely, that the LCN had murdered several of Barboza’s associates, and was threatening to kill more — Rico believed he had leverage to get Barboza to cooperate against Patriar-ca.
46
See
Exh. 59. Over the next year, Rico and Condon worked relentlessly to turn Barboza into a witness in several cases, Deegan among them.
See
Exh. 59, Exh. 167A at 72-75, Exh. 51C at 2-3; Exh. 51D.
Stephen Flemmi was in close contact with his brother who, for a time, was in the same prison as Barboza.
47
Rico thus had a
*167
conduit through which to send information to Barboza and receive information on Barboza’s activities. In effect, it enabled the FBI to affect Barboza’s testimony long before they ever met directly with him.
See
Exh. 167B at 79-81, 83.
Stephen Flemmi was a significant source of information about his brother, the LCN, and Barboza. The state authorities prosecuting the Deegan murder knew nothing about the Flemmi brothers’ relationship to the FBI.
4.
Rico and Condon Meet with Bar-boza
The FBI meetings with Barboza beginning in March of 1967 must be put in context.
First, the sheer number: Rico and Con-don met with Barboza
more than thirty
times between March of 1967 and his grand jury testimony on October 25, 1967, and then another
twenty-six
times
before
the start of Barboza’s testimony in the Deegan trial.
48
At most of those meetings, no Suffolk County officials were present. The FBI met virtually weekly with Barbo-za, sometimes debriefing him, sometimes “just checking in.”
See, e.g.,
Exh. 71A; Exh. 71B-28; Exh. 71B-31. State debriefings of Barboza were attached to FBI memoranda from September 1967 through the trial.
See, e.g.,
Exh. 71A-1; Exh. 71B-54.
Second, the content: Between March 1967 and September 1967, Barboza never mentioned the plaintiffs as having participated in the Deegan murder. Indeed, the plaintiffs had never been mentioned in
any
of the documents Rico and Condon had about the crime. It is fair to say that every piece of evidence in the FBI’s considerable files on Deegan pointed to other perpetrators.
The meetings between Rico, Condon and Barboza described below, are divided between those
before
September 1967 when he first mentioned plaintiffs, and those
af-terwards
(and before the Deegan trial),
a.
Meetings Before September 1967
(1)
March 8, 1967
Rico and Condon interviewed Barboza for the first time on March 8, 1967.
49
They assured him that what he divulged would remain in confidence. Barboza’s value as a witness was obvious from the outset. Rico and Condon reported to their supervisors that Barboza said he “knows what has happened in practically every [Gangland] murder that has been committed in this area.” Exh. 71B-1.
And from the outset, Barboza imposed an extraordinary condition on the
content
of his testimony: “He said that he would never provide information that would allow JAMES VINCENT FLEMMI to ‘fry’ but that he will consider furnishing information on these murders.” Exh. 71B-1.
50
By
*168
“fry,” Condon understood that Barboza would not implicate Jimmy Flemmi in any capital crimes.
See
Exh. 193A at 54. Rico had a broader interpretation, understanding Barboza to mean that he would not say anything “harmful” to Jimmy Flemmi.
See
Exh. 170 at 220.
Significantly, the agents knew that Flemmi had been involved in multiple murders, including the Deegan murder,
see
Exh. 38, but asked no follow-up questions.
See
Exh. 193A at 54-56; Exh. 193B at 95, Exh. 229.
51
There is no question that they and their superiors fully understood that Barboza would be supplying at best, incomplete, and at worst, false information. They nevertheless pressured him to become a witness for the government.
(2)
March 21, 1967
Before their second meeting, Rico requested that a new Barboza Correlator Report be generated, and he reviewed the old one. The reports revealed what Rico likely already knew — that the wire had captured Barboza and Jimmy Flemmi seeking Patriarca’s permission to murder Teddy Deegan on March 9, 1965.
See
Exh. 45 at 3.
52
At the March 21, 1967, meeting with Rico and Condon, Barboza acknowledged colluding with Jimmy Flemmi, telling him about the FBI’s overtures and even discussing who might testify about what.
See
Exh. 72 at 2.
53
While Barboza was not ready to testify,
54
he was more eager to provide information to the FBI than he had been before. He was now convinced
*169
that the “Italian Organization” was their common enemy.
See
Exh. 72 at 2. The agents’ plan was working. Barboza was parroting to them the information they had planted with Stephen Flemmi for transmittal to his brother and then Barbo-za.
See
Exh. 167B at 79-81, 83.
Barboza furnished information about various crimes including the Deegan murder, and as promised, never mentioned Jimmy Flemmi: The supposed motive for Deegan’s murder was that he had been causing problems at the Ebb Tide nightclub in Revere, Massachusetts, and that Deegan was looking for an excuse to kill Bobby Donati, a friend of Rico Sacri-mone.
55
See
Exh. 71B-2 at 8; Exh. 72 at 4. The target of the “hit” was not only Deegan, but also Anthony Stathopoulos Jr. (“Stathopoulos”), a friend of Deegan’s. One of the men responsible approached Stathopoulos carrying “a .375 magnum and wearing a bullet-proof vest, but STATHO-POULOS 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.
The Director’s interest in Barboza was so great, the Boston office sent a teletype to Washington at 11:04 p.m. advising him of Barboza’s interview and their as yet unsuccessful efforts to obtain his testimony.
See
Exh. 74.
56
(3)
April 11, 1967
On April 11, 1967, Rico instructed Stephen Flemmi to reiterate the “Italian element’s” threats to Barboza at his visit with his brother the next day.
57
Two days later, Barboza repeated what he had been fed by the Flemmi brothers to Rico and Condon.
See
Exh. 76.
58
(4)
April 27, 1967
On April 27, Barboza talked about the Deegan murder again, indicating that he had “heard” a police officer had left the door open to a building in Chelsea, and that Deegan believed he was going to be involved in a burglary.
See
Exh. 71B-4 at 2.
(5)
May 22, 1967
By May 22, 1967, Barboza sent word through his attorney, John Fitzgerald, to individuals he identified as LCN members
59
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
*170
As with the Flemmis, Barboza’s importance as a witness eclipsed the fact that he was a “professional assassin” and was “acknowledged by all professional law enforcement representatives in this area to be the most dangerous individual known.” Exh. 51C at 2.
61
(6)
Summer of 1967
After the FBI turned Barboza into a cooperating witness, pumping him for information for over four months, communicating threats to him by the “Italian element,” ingratiating themselves to him, expressing their concerns for his welfare and that of his wife, negotiating for his information and ultimately his testimony, then and only then did they invite Suffolk County investigators in. As Rico put it, disingenuously, to say the least, “[Barboza]
was put in a position
where he decided he wanted to testify.
So we let him testify.”
Exh. 170 at 189 (italics supplied).
On June 30, 1967, and July 31, 1967, Barboza met with Rico, Condon, and Suffolk County investigator Joseph Fallon (“Fallon”).
See
Exh. 71B-16; Exh. 71B-17. Barboza listed the murders he could “talk” on, including the Deegan murder.
See
Exh. 71B-17; Exh. 89.
62
But still he would not testify.
On August 1, 1967, Rico and Condon met with Boston SAC Handley, Organized
*171
Crime Squad Supervisor Kehoe, U.S. Attorney Paul Markham (“Markham”), Suffolk County D.A. Garret Byrne (“Byrne”), and Fallon to discuss Barboza’s testimony in the Deegan trial and related immunity issues.
63
On August 28, 1967, Rico and Condon, now joined by Suffolk County Detectives John Doyle (“Doyle”) and Frank Walsh (‘Walsh”) interviewed Barboza. Doyle asked point blank whether Barboza would furnish information on the Deegan murder.
See
Exh. 71B-22. While state law enforcement had some evidence regarding the crime, there is no question that the case was weak; no charges were forthcoming.
See infra
Section III.B.4.b.3. It was only after Rico and Condon offered Barbo-za to them that there was any chance of a successful prosecution.
Whatever the significance of the Deegan prosecution to the state, there is no doubt that the FBI was also extraordinarily interested. The federal authorities had to use the state apparatus to prosecute murder cases.
See supra
Section III.A.3. Once it was clear that Barboza was to be the star in three prosecutions (two state, one federal),
see supra
note 60, his credibility was essential. The FBI was not about to let him out of their sight — monitoring his debriefings with state law enforcement, participating directly and indirectly in the trial itself, communicating all major developments to FBI Headquarters.
Still not ready to testify in the Deegan murder, on August 28, 1967, Barboza offered more information about Deegan’s murder, beyond the “trouble at the Ebb-Tide” refrain: That Deegan had robbed Carmen Puopolo (a bookmaker in Everett), that Deegan had in fact murdered Anthony Sacrimone (and not just Sacri-mone’s friend), and that he was affiliated with the McLaughlin faction in the McLaughlin-McLean Gang war.
64
See
Exh. 71B-22.
Finally, Rico and Condon’s efforts bore fruit — Barboza agreed to testify. But just because he was to be Suffolk County’s star witness clearly did not mean that Rico and Condon would have no further contact. Rico, Condon, and Barboza continued to meet before, during, and after the Deegan trial — with state officials present or without.
b.
Barboza Mentions the Plaintiffs for the First Time on September 8, 1967
Barboza implicated the plaintiffs in the Deegan murder
for the very first time
on
*172
September 8, 1967. But before that statement is described, it must be put into context: Barboza’s account was totally inconsistent with the list of participants that both federal and state law enforcement had from their informants. But for the FBI, the contradiction — and the impropriety — went far, far deeper. They had better — even conclusive — information which categorically contradicted Barboza, which implicated Jimmy Flemmi, Patriar-ca, and Barboza, and exonerated the plaintiffs. The minute Barboza’s mouth identified the plaintiffs, Rico and Condon had to have known he was lying.
I describe first, what the FBI knew about the Deegan murder by September of 1967 and then, what the state authorities knew.
(1)
What the FBI Knew about the Deegan Murder Before The Murder
(a)October 17, 1964 (five months before the murder): Jimmy Flemmi told an FBI informant that
he
wanted to kill Dee-gan because Deegan owed his brother money.
65
While the FBI informed the Everett Police Department that Deegan was suspected of killing Anthony Sacrimone (which was also included in the informant’s account), they declined to tell them about the threat to Deegan.
See
Exh. 14 at 2.
(b) October 20, 1964 (five months before the murder): The agents learned from the Patriarca wire that Limone, rather than orchestrating Deegan’s murder as Barboza would later claim, had warned Deegan that Flemmi was out to kill him.
66
(c) March 4, 1965 (eight days before the murder): Patriarca was overheard on the wire telling Angiulo that Jimmy Flem-mi had gone to Providence to seek permission to murder Deegan.
67
(d) March 9, 1965 (three days before the murder): Flemmi and Barboza were overheard asking for the “ok” to hit Dee-gan. Flemmi called Deegan “an arrogant, nasty sneak” who “should be killed.” Patriarca told them to collect more information on 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 Echelon informant reported that Jimmy Flemmi said Patriar-ca had given the “ok” to hit Deegan and a “dry run” had already been made. The informant said that Flemmi suggested he have an alibi for “the next few evenings,” in case he was suspected of the murder.
*173
See
Exh. 4 at 4; Exh. 26; Exh. 29.
69
The Deegan murder appeared imminent; the FBI did nothing to stop it.
70
(2)
What the FBI Knew after the Murder
(a) March 13, 1965 (the day after the murder): One of Rico’s most valued Top Echelon informants,
see supra
note 69, reported that Jimmy Flemmi confessed that
he
had participated in Deegan’s murder along with Roy French (“French”), Joseph Romeo Martin (“Martin”), Ronnie Cassesso (“Cassesso”), and Barboza — with no mention of the plaintiffs. That account would be repeated over and over with minor variations in
every single document
*174
the FBI had before Barboza’s September 8 tale. And at least as to Patriarca, Flem-mi and Barboza, it was confirmed by the wire.
See
Exh. 24; Exh. 4 at 5. In broad outlines, the informant related the following:
The plan was for Barboza, Jimmy Flem-mi, Cassesso, Martin and French to kill Deegan and Stathopoulos when the latter two were robbing a finance company in Chelsea, Massachusetts. Patriarca had approved the “hit,” and a dry run had been taken. French, Deegan’s confederate, was the traitor, letting Barboza and his group know when and where the Deegan robbery would occur. With Deegan and French in the alley outside the finance company, and Stathopolous watching in their getaway car, Cassesso and Martin were supposed to shoot Deegan. Barboza and Flemmi would then shoot Stathopoulos. In fact, the Stathopolous part of the plan went awry when Chelsea Police Captain Kozlow-ski, in plain clothes, appeared at Barboza’s car. Barboza and Flemmi fled.
Jimmy Flemmi reportedly told the informant that the reason Cassesso and Martin did the shooting was that they wanted to prove to Patriarca that they were capable individuals. Flemmi indicated that they did an “awful sloppy job.” Exh. 28.
See also
Exh. 4 at 5.
While the March 13, 1965, memorandum indicates that information was disseminated by SA Donald Shannon to Captain Ren-frew of the Chelsea Police, it was communicated without any indication that it came from a highly trusted source, or that the participation of Flemmi, Patriarca, and Barboza had been fully corroborated by the FBI’s illegal wire.
(b) March 13, 1965: An informant, reporting to Rico, confirmed the earlier report.
71
(c) March 19, 1965: Kehoe sent an air-tel to the Director summarizing the prior information. He reiterated the five participants — -French, Cassesso, and Martin as the Deegan shooters, Flemmi and Barboza as the proposed shooters of Stathopoulos.
See
Exh. 31. Meanwhile, the Chelsea police had confirmed that French, Barboza, Flemmi, Cassesso and Martin were together at the Ebb Tide restaurant, leaving at “approximately 9 o’clock and return[ing] 45 minutes later.” Exh. 31.
(d) March 23, 1965: A potential criminal informant (“PCI”), whose information was rated “very good,” reported that Bar-boza confessed that he had shot Deegan with a .45 caliber gun. The informant also stated that “JIMMY FLEMMA [sic]” had gone to Providence to see Patriarca just before Deegan was killed, and that Barbo-za and “FLEMMA [sic]” were very friendly.
See
Exh.34.
72
(e) March 24, 1965: Kehoe sent an air-tel to the Director, signed by Boston SAC Handley. The Director instructed Boston to “advise the appropriate authorities” of the possible perpetrators of the Sacrimone and Deegan murders. He instructed Boston only to do so, however, while maintaining “full security to BS 837-C*,” the Patr-iarca wire.
See
Exh. 30A; Exh. 30B.
I find that to the extent that the FBI “shared” any information with local authorities
before
offering up Barboza as a witness, it was very general information
*175
already in the possession of the state.
73
The FBI could
not
disclose information that they had before the killing — that it was
Flemmi
and
Barboza
who sought permission from
Patriarca
to kill Deegan, that
Limone
warned Deegan — or its source — without compromising the wire. Nor would they identify their Top Echelon informants and why they found their information so extraordinarily reliable.
(f) June 1965 and July 1965: The critical Patriarca wire information was repeated in reports over and over again. And in each case, the account of the Dee-gan murder there mirrors all of the earlier ones.
74
I find that Rico, Condon, and the FBI hierarchy were well aware of these documents and their implications for the plaintiffs, notwithstanding their subsequent denials. Indeed, the conclusion is inescapable: Rico and Condon lied about what they knew on September 8, 1967, just as they lied concerning their relationship to the Flemmi brothers.
See supra
Section III.B.2.
75
*176
Although Rico claimed that he was not aware of the pre-September 8 information when Barboza was spewing his lies,
see
Exh. 170 at 198, he either authored the documents described above or initialed them as read. Barboza was his singular achievement, dealing with the LCN his principle responsibility. It is inconceivable that any detail of Barboza’s accounts of gangland murders escaped Rico’s attention.
76
By the second day of the House Committee hearing, Rico stopped testifying entirely on Fifth Amendment grounds.
See
Exh. 170 at 107.
77
Condon was likewise privy to the documents described above, given his role as
*177
Rico’s partner, and his position in the Organized Crime Squad,
see supra
Section III.B.1., yet he too lied.
78
For example, he denied ever seeing a copy of Kehoe’s January 14, 1966, “Boston Gangland Murders” report, Exh. 57,
79
which repeated who the five perpetrators of the Deegan murder were (Barboza, Flemmi, Cassesso, Martin and French).
See
Exh. 193B at 21, 57. This was so even though he admitted his initials were on the cover of the Kehoe report, signifying that he had viewed it.
See
Exh. 324 at 1, 6.
80
He went so far as to deny that Rico shared
any
information with him about Deegan’s death,
see
Exh. 193B at 21, or that he knew what the wire disclosed about Flemmi, Barboza and Patriarca,
see
Exh. 193B at 228.
In short, I do not find the accounts of either agent — concerning what they knew when Barboza pointed the finger at plaintiffs — to be remotely credible. They had every reason to believe that the men Bar-boza identified, Limone, Tameleo, Greco and Salvati, had absolutely no involvement in the Deegan murder, while the man he left out, Jimmy Flemmi, did.
(3)
What the Local Authorities Knew about the Deegan Murder
Following the Deegan murder, the local police (Chelsea and Boston Police Departments as well as the Massachusetts State Police) had some information implicating the same five individuals as did the FBI.
81
What they did not know was how accurate that information was — i.e. the extent to which the information had been fully confirmed by an illegal wiretap, and the FBI’s multiple, and ostensibly very reliable, informants. This was critical: It is one thing for state authorities to believe that an informant said thus — and—so.. It is another to know that the information came from a valued informant with whom the FBI had a long-standing, committed relationship. And still another to understand that the plot in question was actually overheard before it was executed.
Shortly preceding the murders, Captain Joseph Kozlowski (“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 (“Evans”) reported that he followed up on Kozlow-ski’s lead. He went to the Ebb Tide with Captain Renfrew and Detective Moore, where they saw a red car with the rear license plate creased down the middle, belonging to Romeo Martin. The police brought Martin and Imbruglia to the police station for questioning. Kozlowski said the car looked like the one he had
*178
seen earlier, but did not recognize either man.
See
Exh. 22 at 2
Lieutenant Evans’ report also recounts information derived from Captain Ren-frew’s informant: French had received a phone call around 9:00 p.m., shortly after which he left the Ebb Tide with Barboza, Cassesso, Jimmy Flemmi, Romeo Martin, and two others, returning by 11:00 p.m. At that point Martin allegedly said to French, “We nailed him.”
82
Id.
at 3.
But local authorities did not have enough evidence to proceed against any of the individuals known to be at the Ebb Tide.
See
Exh. 57 at 27 (“[A]s yet, [the police] have not obtained sufficient evidence to warrant prosecution against any of the above individuals.”).
83
After a few weeks, the Chelsea investigation of the Deegan murder effectively ended.
84
New life was breathed into it when the FBI persuaded Joseph Barboza to turn state’s evidence two years later.
c.
The September 8 Interview and the Indictment
On September 8, 1967, Rico and Condon met with Barboza, joined by Doyle and Walsh, and
for the first time
Barboza named the plaintiffs as among the participants in the Deegan murder (along with French and Cassesso). It should have been a stunning moment for the FBI, one that cast profound doubt on Barboza, his credibility, and his use as a witness in a capital case. The FBI agents listening to him, and the agents overseeing them,
plainly knew that this account was false
insofar as it implicated the plaintiffs.
Barboza identified Tameleo and Limone as the instigators:
(a) Limone, rather than trying to protect Deegan as the wire indicated, approached Barboza to have Deegan killed for $7,500, and then threw in an additional $2,500 for Stathopoulos.
(b) The motive was the fact that Deegan had robbed an Angiulo-affiliated bookmaker.
(c) Barboza asked Tameleo — not Patr-iarca as the wire indicated — for permission to do the hit; Tameleo replied, “[Deegan] has to go.”
(d) Barboza met Greco in the “early part of March” in Florida and enlisted his help; Barboza returned to Boston “around the eighth of March.” Exh. 71A-1 at LIM012-2144.
*179
And as to the night of the killing, Barbo-za wove Salvati and Greco into the story:
(a) Greco was at the Ebb Tide before the murder and left with Martin.
(b) “Joe the Horse” (i.e. Joe Salvati), Barboza and Cassesso were in Martin’s car.
(c) Barboza was carrying a .357 Magnum, while Salvati had a .38 Smith and Wesson.
See
Exh. 71A-1.
85
So important was Barboza’s information that on the next day, September 9, 1967 (even before Doyle’s report was prepared),
86
the Boston FBI office sent an “urgent” teletype to the Director, informing him that Barboza had agreed to testify in the Deegan murder. The teletype listed those whom Barboza had implicated, including the plaintiffs and excluding Flem-mi.
See
Exh. 310.
87
No one pointed out the blatant contradictions between this account and
every single one
that preceded it.
Barboza met twice more with Suffolk County investigators Walsh and Doyle in the days leading up to the indictments, always with the FBI present.
88
By the second meeting, Barboza’s tale grew more elaborate:
(a) Limone’s motive was that Deegan, accompanied by Attorney John Fitzgerald, had “got $1,000.00 off of Peter Limone for George McLaughlin.”
(b) Tameleo approved Limone’s directive to “hit Stath.”
(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.
And, significantly, Barboza added (d) that Salvati wore a bald wig.
See
Exh. 71A-3.
The “wig” detail was telling. Chelsea Captain Kozlowski had 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. 170 at 220. Sal-vati, by contrast, had a full head of hair. Although Kozlowski had been in plain clothes on the evening of the murder, Bar-boza’s September 8, 1967 statement referred to him as a “Chelsea Police Captain.” Exh. 71A-1. Barboza clearly had been told about Kozlowski’s report.
By October 16, there was another new detail: Barboza 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 obviously been told about the witness accounts in the Chelsea reports excluding Greco from the group at the Ebb Tide. Nor could Barboza recall what Greco was wearing. By the time of the Deegan trial, there would be even more “corrections” enabling Barboza to account for any reports the defense had.
Indeed, I reject Barboza’s (as well as Rico’s and Condon’s) repeated, even indignant, denials that the FBI showed Barboza such reports or told him about them so that he could adapt his testimony.
89
*180
Someone in law enforcement had to have done so, either the FBI directly or state law enforcement in the FBI’s presence.
Not only did Rico and Condon shore up Barboza’s testimony with information from their files, and even information from the defense,
90
they went so far as to tell ADA Zalkind that Barboza’s story “checked out” — an astonishing comment given what they knew. Tr. vol. 7,102.
91
*181
On October 25, 1967, French and Greco were indicted for the murder of Deegan, conspiracy to murder Deegan, and conspiracy to murder Stathopoulos.
See
Exh. 338, ¶45. Limone, Tameleo, Cassesso, and Salvati were indicted as accessories before the fact in Deegan’s murder, conspiracy to murder Deegan, and conspiracy to murder Stathopoulos.
Id.,
¶46. Bar-boza was indicted on two conspiracy counts.
Id.
¶ 48.
92
That afternoon the Boston office sent an “urgent” teletype to the Director reporting this information.
See
Exh. 94B.
C.
The Deegan Trial
1.
Trial Preparation: An Allegedly “Independent Investigation”
The prosecutor assigned to the Deegan trial, Jack Zalkind, could not have been more junior. This was his first murder case.
See
Tr. vol. 7, 26. Despite his testimony that the FBI “really had nothing to do with the preparation of the Deegan case for trial,” Tr. vol. 7,101, that he conducted an investigation independent of the FBI, his claim is completely belied by the record. To all intents and purposes, his “independent investigation” involved little more than running in place.
Zalkind
did not
interview Barboza until
after
indictments had been returned.
93
Indeed, Zalkind had serious concerns about Barboza’s reliability — as well he should— concerns which were allayed by the assurances of Rico and Condon.
See
Tr. vol. 7, 104.
The FBI, however, had no compunction about meeting with Barboza at just about any time. The FBI agents were his consistent interrogators from March 1967 on, joined by the state authorities only in the late summer of 1967. Barboza was transferred from the Barnstable House of Correction to federal custody on September 18, 1967. He remained there until after the Deegan trial.
See
Exh. 71B-24; Exh. 71B-60.
Zalkind had no idea of the extent of Rico and Condon’s role in producing Barboza’s testimony — how many times they met with 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 single interview even when state authorities were preparing “their” witness,
see
Tr. vol. 7, 108-109, recording information about his debriefings, passing it on to their superiors.
94
In fact, Zalkind ultimately conceded that decisions about his three major witnesses — Barboza, Fitzgerald (who testified about an LCN attempt to bribe Barboza,
see infra
Section III.C.2) and Condon—
*182
were made after consulting with the FBI.
See, e.g.,
Tr. vol. 7, 103. Given Barboza’s significance in the LCN “war,” it is inconceivable that the FBI would have taken a back 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. 118; that he worked closely with the state authorities,
95
providing them with information, helping them develop their prosecutions.
See
Exh. 167A at 49.
96
Apart from Barboza, Zalkind agreed that John Fitzgerald, a critical witness for the prosecution, was the FBI’s “boy.” Tr. vol. 7, 120. It was up to Rico and Condon to “tak[e] care” of Fitzgerald, “right up until the point where Fitzgerald testified in Deegan and afterwards.”
Id.
As with Barboza, Rico and Condon had contact with Fitzgerald long before Zalkind ever did.
See
Tr. vol. 7, 123. And, as with Barboza, Zalkind did not know what Rico and Condon said to him.
See
Tr. vol. 6, 27.
Zalkind even called Condon to the stand to “impress upon the 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 way Barboza’s story changed in critical ways having to do with the plaintiffs, given what the FBI knew, as described above, I believe that it was not.
To be sure, Zalkind testified that no FBI agents put pressure on him to use Barboza as a witness.
See
Tr. vol. 6, 21. They did not have to. The FBI offered Suffolk law enforcement a witness to an unsolved murder in which the state investigation 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.
While Zalkind insisted that he prepared for the Deegan trial as any good trial lawyer would do, that preparation could not have been more limited. He could confirm Barboza’s testimony but only to the extent it conformed with the previous local reports.
See
Exh. 22; Exh. 2167.
97
*183
But when Barboza extended the circle of participants to include the four plaintiffs, Zalkind had absolutely no way of corroborating that information. Barboza was his only source. For example:
(1) When Barboza told Zalkind that one motive for Deegan’s murder was to retaliate for Deegan’s killing of Sacrimone, he could check that Deegan was suspected of Sacrimone’s murder,
see
Tr. vol. 7, 40,
but he had to rely on Barboza for the link between that murder and these
plaintiffs.
98
(2) He could corroborate Barboza’s account that three guns had been used, but he had to rely on Barboza for who had wielded the weapons.
See
Tr. vol. 7, 82, 84.
(3) He had general information that some of the plaintiffs associated with individuals that had been linked to LCN. He could confirm innocuous facts on the periphery of Barboza’s testimony — that Bar-boza and Louis Greco hung out at a coffee shop or a donut shop in Revere.
See
Exh. 2106; Exh. 2176; Tr. vol. 7, 17. He knew that each of the plaintiffs, except for Salva-ti, had “pretty good criminal records.” Tr. vol. 7, 63.
Far,
far
more significant than the information Zalkind had — both from his own investigation and from the FBI — was the information the FBI kept from him.
99
Zal-kind did not know the extent of the FBI’s relationship with Barboza, the FBI’s relationship with the Flemmi brothers, the Top Echelon informant 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 less those which confirmed Barboza was lying when he
excluded
Jimmy Flemmi from the offense, or when he
included
the plaintiffs 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 Patriarca wire,
*184
including Patriarca’s approval of the Bar-boza-Jimmy Flemmi hit, Limone’s efforts to warn Deegan, the fact that Greco, Sal-vati, and Tameleo had not been mentioned at all in connection with the Deegan murder.
See
Tr. vol. 6, 14, 25; Tr. vol. 7, 102.
101
Zalkind testified that he first heard about the federal wiretap either during Judge Wolfs hearing in
Salemme,
or the House Committee proceedings.
102
But he surely had never seen the wiretap summaries that Rico and Condon had before the Deegan murder — implicating Patriar-ca, Jimmy Flemmi and Barboza.
See
Exh. 38 at 9. Nor did Zalkind know that in the raft of information the FBI had — extraordinary information from extraordinary sources — nothing, absolutely nothing corroborated Barboza’s account of the plaintiffs’ role.
Had Zalkind known:
• that Jimmy Flemmi was opened as an informant on the day that Deegan was murdered, he testified that he would be “duty bound” to disclose that to the defense, and that they would have moved for the dismissal of the case;
• that Jimmy Flemmi was involved in the murder, he testified that “the case would have been dismissed or I would have moved to ... amend the indictment....” Tr. vol. 7, 138. As to any further impact, he added, “I can’t answer that question.”
And finally, when asked: “Do you believe the defendants in the Deegan case received a fair trial,” his answer was unequivocal: “No, because there was exculpatory evidence that should have been given to me.” Tr. vol 7,133.
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 formidable presence throughout, both directly and indirectly — through the witness they cultivated, debriefed, and prepared (Barboza), through the witnesses they conferred with before testifying and effectively controlled (Stathopoulos and Fitzgerald), through the extraordinary testimony of Agent Condon buttressing Bar-boza’s account, which he knew was false, through the strings they pulled behind the scenes advising Zalkind and his staff, and finally, through the exculpatory information from their illegal wire and Top Echelon informants, which they hid from the defense and the prosecution alike.
103
*185
Barboza testified about the Deegan murder, substituting the plaintiffs in critical places, as he had the first time he mentioned their names on September 8, 1967. He falsely substituted Limone and Tame-leo for Patriarca as approving and/or initiating the “hit,” Salvati for Flemmi (in the car with Barboza and Cassesso), and Greco for Cassesso (as Deegan’s actual shooter, along with French) in the alleyway with Martin.
Barboza also elaborated on Greco’s role in planning the murder,
see
Exh. 105A at 3280, 3288-89, and Limone and Tameleo’s role in the distribution of the money,
see id.
at 3225-28.
And as to his “deal,” Barboza testified that the FBI promised that he would not get indicted “on a case,” and that they would bring his cooperation to the attention of the judge.
Id.
at 4458-60, 4620. He agreed that while in federal custody he had been receiving money from loan sharking.
Id.
at 3587.
104
While Barboza testified that he was hoping for some consideration in the latter, as far as the FBI was concerned, they “never promised me anything.”
Id.
at 4654. The latter comment was simply stunning.
Barboza’s lies were flatly contradicted by documents in the hands of the FBI, documents which were never revealed to Zalkind 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 Sal-vati wore a “bald wig.” They knew that Limone had tried to warn Deegan about Barboza’s and Flemmi’s intentions. They allowed Barboza to testify that Limone had ordered the “hit.” United States Attorney Markham even “corrected]” Bar-boza when he got certain dates wrong.
105
They knew that Greco had never been mentioned in connection with the murder. They allowed Barboza’s testimony about Greco meeting the others at the Ebb Tide to be “corrected” when no witness put
*186
Greco there on the evening in question. Exh. 105A at 3306; Exh. 27. They knew that informant reports made Barboza, Martin or French the Deegan shooters, not Greco. They allowed Barboza to testify as to a motive for the Deegan murder— part of the McLaughlin-McLean dispute— when they knew that the LCN was not involved at all in those battles.
See supra
note 64.
As for the claim that “the FBI never promised [him] anything,” the FBI knew that to be completely false. For example, the FBI did not disclose the extent to which Barboza and his family would be protected under the nascent federal witness protection program,
see
Exh. 71B-7, Exh. 71B-14, Exh. 71B-17, or affirmatively supported with jobs and money,
see
Exh. 71B-2.
106
Nor did the FBI disclose perhaps the most extraordinary part of Barboza’s deal — that he would be allowed to lie about his buddy Jimmy Flemmi.
If Barboza’s false testimony were not sufficient to convict the plaintiffs, Condon’s testimony was the coup de grace. Condon testified that he was “always concerned about the purity of testimony on the part of any witness involving any matter that I am concerned with.” Exh. 105C at 5812. His statement was a blatant endorsement of Barboza’s perjury.
In addition, Condon falsely denied that he and Rico were “major figures” with regard to the investigation surrounding the information furnished by Barboza. Perhaps even more significant, Condon refused to produce the memoranda of his meetings with Barboza citing “a federal Executive Order,” Exh. 105C at 5811, 5831-5832.
107
When Condon testified that, in all the meetings he had had with Barboza, he had never shown Barboza any reports or told him the facts and circumstances surrounding Deegan’s death,
See
Exh. 105C at 5803-04,
see also supra
note 89, the comment strained credulity. Barboza’s testimony was “corrected” to make it conform to reports the defense had or were likely to get. In fact, to the extent it was true at all, it was profoundly disingenuous: When it came to the four plaintiffs, there
were no reports
to show Barboza.
*187
Finally, two other significant witnesses testified-attorney John Fitzgerald,
108
who reported a bribe that Tameleo and Greco allegedly offered to influence Barboza’s testimony, and Stathopoulos, the other intended victim of the Deegan killers. Both agreed that they had met with the FBI before their testimony, and had even conferred with Barboza, meetings necessarily arranged by the FBI.
Fitzgerald, whom Zalkind described as the FBI’s “boy,” Tr. vol. 7, 120, met with the FBI fifteen to twenty times beginning in May of 1967.
See
Exh. 2312 at 5833.
109
He testified that Tameleo 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 bribe offer predated any mention by Barboza of the plaintiffs as participants in the Deegan murder,
111
but never provided Zalkind with reports or information about Fitzgerald’s conflicting statements. Condon even denied having any “personal knowledge” of meetings between Barboza and Fitzgerald,
see
Exh. 105C at 5822, 5835-36, although FBI reports he authored show otherwise.
See
Exh. 89.
Stathopoulos described what occurred on the evening of March 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.” Exh. 105F at 4962-64. While Stathopoulos never knew Greco before, 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 at Greco. He “looks like the man,” Exh. 105F at 4961, Stathopoulos said — although he could not be sure.
Id.
at 4961, 5027-28.
The defense obviously knew something of the FBI’s involvement with Stathopou-los and Fitzgerald.
See, e.g.,
Exh. 105A at 3717, 3723. But what the defense did not know was that these federal witnesses were corroborating a story that the FBI knew was false. Despite defense requests for information, for copies of FBI memo-randa or reports associated with the Dee-
*188
gan murder, no reports or memoranda were provided.
See
Tr. vol. 6, 37; Tr. vol. 9, 9.
112
To be sure, there was evidence that two of the defense lawyers had relevant information from sources other than government discovery in the Deegan case. Attorney Chisholm (representing Cassesso), and Attorney Balliro (representing Tame-leo), participated in the federal Marfeo conspiracy case.
See infra
note 60. As a result of that representation, they knew about the existence of the illegal Patriarca wire,
see
Tr. vol. 9, 39, and were given access to some airtels.
113
However, counsel denied receiving any information about the Deegan murder in these airtels. Nothing in the record suggests otherwise.
See
Tr. vol. 9 at 58.
114
The government jealously guarded information about the wire; it would be unlikely that they would have disclosed any more information in the federal prosecution than they had to. Indeed, the FBI plainly took advantage of the fact that in a state prosecution they could claim a privilege with respect to federal memos, as Condon had done in his testimony.
Balliro also had information by virtue of his representation of Jimmy Flemmi. He testified that if he had known that Rico had turned Jimmy Flemmi as an informant on March 12, 1965, he would have withdrawn from the Deegan case.
See
Tr. vol. 9, 28-29. In fact, Balliro had a serious conflict of interest even without that 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, 30. Balliro acknowledged that he had not cross-examined Barboza about whether the man in the car was Jimmy Flemmi rather than Salvati,
see
Tr. vol. 9, 52, because ethical rules prohibited him from disclosing Flemmi’s confession.
See
Tr. vol. 9, 56.
115
It was only with Judge Hinkle’s order that Balliro revealed what Flemmi had told him. But whether or not Balliro ought to have recused himself from the representation of Tameleo by dint of Jimmy Flemmi’s confession is irrelevant to the
government’s
obligations in this case.
*189
3.
The Verdict
On July 31, 1968, Peter J. Limone, Henry Tameleo, Louis Greco, and Joseph Sal-vati were found guilty.
116
Limone, Tame-leo, and Greco were sentenced to death; Salvati was sentenced to life imprisonment.
See
Exh. 338, ¶ 39.
Joseph Barboza pled guilty to the Dee-gan conspiracy charges. The habitual criminal indictment was dismissed.
117
Bar-boza was sentenced to one year and a day to be served concurrently with the four to five year term he was serving on other charges.
See
Exh. 294 at 6.
D.
Between the Deegan Murder Trial and the Nolle Prosequi
1.
Praises for Rico and Condon
Perhaps the best measure of the FBI’s responsibility for the Deegan verdict was its behavior afterwards. The FBI took credit for Barboza’s testimony from the very start.
See, e.g.,
Exh. Ill at 5. The day that Barboza testified before the Dee-gan grand jury and indictments were returned, the Boston office sent a teletype to the Director noting that Barboza was “originally developed by the agents of the Boston office.” Exh. 94A.
118
When the Deegan defendants were convicted and sentenced, the SAC Boston sent a teletype to the Director, reporting Suffolk County DA Garret Byrne’s statement that the prosecution was a
“direct result
of FBI investigation and particularly noted development of principal government witnesses Joseph Baron, aka Barboza, and Robert Glavin,” and that Agent Condon’s testimony was “most effective.” Exh. 106 (italics supplied). The SAC added that Rico and Condon were responsible for Barboza’s and Glavin’s development as witnesses, and that Rico was responsible for the development of Fitzgerald. The SAC recommended letters of commendation for Rico and Condon, as well as incentive awards.
See
Exh. 106; Exh. 51G.
119
Developing Barboza was a major step in Rico’s and Condon’s careers. As noted above, Barboza was Rico’s greatest achievement. Both Rico and Condon were recommended for quality salary increases as a result.
See
Exh. 51C; Exh. 51G; Exh. 193A at 126-28. In particular, SAC Handley praised their deft handling of Stephen Flemmi to turn Barboza in language worth quoting:
[Stephen Flemmi]
120
was developed by these agents and via
imaginative direction and professional ingenuity
utilized said source in connections with interviews of JOSEPH BARON [Barboza], a professional assassin responsible for numerous homicides and
*190
acknowledged by all professional law enforcement representatives in this area to be the most dangerous individual known. SAS RICO and CON-DON contacted BARON in an effort to convince him he should testify against the LCN. BARON initially declined to testify but through utilization of [Stephen Flemmi], the agents were able to convey to Baron that his present incarceration and potential for continued incarceration for the rest of his life, was wholly attributable to LCN efforts directed by GENNARO J. ANGIULO, LCN Boston head. As a result of this information received by Baron from [Stephen Flemmi], said individual said he would testify against the LCN members.
Exh. 51C at 2-3 (italics supplied).
121
See also
Exh. 51F (recommending Rico for another quality salary increase in March 1968 for his work developing Barboza); Exh. 193A at 133 (Condon received a quality pay increase in March 1968 for developing Barboza). Rico and Condon also received “incentive awards” for their efforts.
See
Exh. 51D (recommending Rico and Condon for incentive awards for using Stephen Flemmi in the development of Barbo-za); Exh. 51E (informing Rico that he has been given an incentive award); Exh. 53D (informing Rico that he has been given an incentive award).
After the plaintiffs were sentenced, FBI Director J. Edgar Hoover sent letters of thanks and commendation to the two agents, lauding their “highly instrumental” role in the Deegan investigation, and noting that the effective prosecution was a “direct result” of their efforts. Exh. 51G. (as to Rico); Exh. 53F (as to Condon).
2.
The Involvement of the FBI Hierarchy
The entire FBI hierarchy was implicated in supporting Barboza’s perjury. Rico and Condon reported to their supervisors. The Boston office, in turn, kept Headquarters informed of Barboza developments every step of the way.
After each meeting with Barboza, Rico and Condon would sit with a stenographer and dictate the results of the interview.
122
See
Exh. 193A at 183; Exh. 71B. The reports were then sent to Kehoe, as supervisor of the Organized Crime Squad,
123
and later to FBI Headquarters and the United States Attorney’s Office.
See
Exh. 193A at 74, 99, 230-33. Boston SAC Handley had custody of the reports documenting Rico and Condon’s interviews with Barbo-za.
See
Exh. 105C at 5850. In addition to the reports, Rico and Condon were in regular contact with Kehoe about their progress with Barboza.
See
Exh. 193A at 99-100.
Airtels and memoranda were sent from the Boston office to Headquarters, starting with the details of the Deegan murder,
See supra
Section III.B.4.b., continuing through Rico and Condon’s development of Barboza as a witness in the federal Marfeo and state Deegan trial,
See supra
Sections III.B. and III.C., and all the way through the defendants’ motions for new trials and parole board hearings, discussed in Section
*191
III.D.
124
The Boston office would update Headquarters on developments as soon as they happened.
See
Exh. 311; Exh. 106; Exh. 104.
Barboza’s development and testimony, in short, was not the work of two renegade agents. It was known to, supported by, encouraged, and facilitated by the FBI hierarchy all the way to the FBI Director.
3.
Protecting and Providing for Bar-boza
Barboza became the first participant in the informal witness protection program. In fact, he has been referred to as “the poster boy” for the nascent program.
See
Exh. 2341 at 44. When Barboza was released on parole a year after the plaintiffs’ convictions in the Deegan case, the federal authorities set up a life for him in Santa Rosa, California.
See, e.g.,
Exh. 121A. On February 12, 1970, AUSA Walter Barnes and Deputy Chief Edward Harrington
125
wrote to Deputy Assistant Attorney General for the Criminal Division, Henry E. Petersen, requesting further funds for Barboza. Barnes and Harrington explained that Barboza’s “testimony and his example as an individual who the Government was able to protect against the violent Boston underworld, has been the single most important factor in the successful fight on organized crime in New England in the last 50 years.” Exh. 117A. Moreover, Barnes and Harrington warned that Barboza indicated that unless he was given money for living expenses, he would “publicly retract his testimony given in the aforesaid cases
126
and will make known to the press that the Government did not give him a fair chance to go ‘straight.’ ” Exh. 117A.
In addition to keeping Barboza safe and cared for, the FBI also viewed him as a continuing asset in their LCN investigations. Notwithstanding all the government knew about this “professional assassin,” on April 14, 1969, Barboza was even designated as a target for the Top Echelon Criminal Informant Program. A memorandum to the Director noted that as Bar-boza “becomes acquainted in the San Francisco area, he will undoubtedly be in a position to furnish worthwhile information concerning criminal activities.” Exh. 114.
4.
1970 Rico Admission
While Barboza was being paid and protected, Rico admitted in a 1970 interview conducted by Suffolk County investigators that Jimmy Flemmi was probably involved in the Deegan murder: “[I]f the truth were known there were probably more involved than were convicted, namely Flemmi.” Exh. 118.
127
In fact, even be
*192
fore the Deegan defendants were indicted, Rico “believed” that Jimmy Flemmi had been one of the Deegan murderers.
See
Exh. 43 at 3.
128
Just like Zalkind’s supposedly independent investigation pretrial, this investigation foundered because the FBI refused to disclose anything that cast doubt on Bar-boza’s testimony.
5.
Barboza Attempts to Recant
At roughly the same time, during the summer of 1970, Boston Herald reporter James Southwood contacted DA Byrne. He reported that several months earlier Barboza had admitted that Greco was not in the alley on the night of the Deegan murder. Suffolk County contacted AUSA Harrington who then reported to the FBI that Barboza denied having made the statement to Southwood.
129
On July 17, 1970, after returning to Massachusetts from California without telling the federal authorities, Barboza was arrested in New Bedford on assault and weapons charges. Boston sent an immediate teletype to the Director.
See
Exh. 121A. Three days later the charges against him were nolle prossed, but his parole was revoked and he was returned to Walpole. A July 22, 1970, memorandum from the Director to the Attorney General
130
noted that Justice Department Organized Crime Strike Force attorneys and the Suffolk County District Attorney’s office were attempting to get Barboza transferred out of Walpole because of the danger to him there.
See
Exh. 121C;
see also
Exh. 121B (a July 21, 1970 memorandum from Boston to the Director conveying the same information).
By the summer of 1970, the news about Barboza was worse. The FBI learned that Barboza’s threats to recant the Dee-gan trial testimony could well become a reality. Barboza had arranged for Attorney F. Lee Bailey to represent him. The two first spoke shortly before Barboza was arrested on the assault charges. Bailey then visited him at a local jail, and four times at Walpole. Bailey characterized his representation of Barboza as being engaged “[t]o aid in the overturning of certain of the convictions in what was styled
Commonwealth v. French.”
Tr. vol. 8, 22. Barboza even signed an affidavit on July 28, 1970 stating that “I wish to recant certain portions of my testimony during the course of the [Deegan] trial insofar as my testimony concerned the involvement of Henry Tameleo, Peter J. Limone, Joseph L. Salvati and Lewis Grieco in the killing of Teddy Deegan.” Exh. 123.
On August 11, 1970, Bailey requested permission from the Superintendent at Walpole to conduct a polygraph. The letter received by the Department of Corrections included a handwritten note indicat
*193
ing that Doyle from the Suffolk County DA’s office called on August 17, 1970, to report that polygraph evidence was inadmissible and there was no “valid reason” why they should allow the test.
See
Exh. 124A.
Given how closely the FBI was monitoring Barboza, given Harrington’s fears that he could well recant, and Doyle’s relationship with the FBI, I have no doubt that the FBI was aware of these activities. Indeed, an FBI airtel from the Boston SAC to the Director reported that Bailey went so far as to file a petition on August 19, 1970 to enjoin the DA’s office from interfering with the examination, and further, that “[t]he Bureau will be kept advised of all developments.”
See
Exh. 124B. Bailey testified that the parties came to an agreement that the polygraph could go forward and the case was dismissed.
But no polygraph was ever done. On August 28, shortly before it was scheduled, Barnes and Harrington paid Barboza a visit.
131
According to an “urgent” teletype from Boston to the Director, 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
According to Harrington, Barboza even claimed Bailey was the conduit for the LCN bribe.
See
Exh. 2341 at 25.
133
Significantly, the FBI never bothered to pursue the allegation. On September 4, 1970, Bailey filed a motion to withdraw his representation of Barboza.
134
Harrington insisted that there was nothing he or Barnes said that could have been interpreted by Barboza as pressure to go back to his original story.
See
Exh. 2341 at 30. The facts suggest otherwise. Bar-boza was at Walpole because of a probation revocation warrant brought by the Suffolk D.A. The FBI plainly was in a position to “influence” the prosecution of that warrant, just as they had influenced the Deegan trial. Indeed, in the FBI documents dealing with the proposed recantation, the pendency of the warrant and its impact on Barboza is a consistent theme. In the airtel (reporting Bailey’s lawsuit), the FBI could not have been more clear. It noted that “[i]n view of’ Bailey’s motions, the DA’s office is going to move to revoke Barboza’s probation.
135
Exh. 124B. At the August 28 visit with Barnes and Harrington, Barboza told them how “disturbed” he was about the probation revocation warrant, and how much he wanted the DA to withdraw it. The memorandum noted that the FBI had decided not to do anything to help. In fact, a subsequent airtel reported that even though Barboza’s “parole violation time” was about to run out, the “DA’s office” planned to continue his probation hearings, ostensibly to ensure his presence in the area.
See
Exh. 127. It also had the effect of keeping Barboza in custody until
*194
after the motions for new trial in the Dee-gan ease were resolved. Barboza plainly-got the message.
Seven days later, Barboza wrote a letter to Harrington. In the letter, Barboza referred to Bailey and the polygraph.
Ted, when you Walter [sic] came down to see me, you & Walter asked me not to do something & I didn’t. How long can the little money I bled out of those creeps last, what will happen to my wife & babies then? Bailey, said I’ll come running to him in the end,
I never will!!
I feel Bailey is going to shaft me so more just like his promise that him & [illegible] could get me indicted when I refused to take the polygraph test. I’ll never take it.... Please Ted in some way give me some sign of hope to give me the strength to endure this threat of Bailey’s. Because all I can think of is that insidious bastard plotting different ways to bury me deeper in the can....
Exh. 129 (emphasis in original).
The letter is ambiguous. It surely suggests that Barboza refused to take the polygraph because Harrington asked him not to. It also betrays Barboza’s fear of Bailey, who was threatening him with a perjury prosecution. Either way, by 1970 the FBI’s confidence in Barboza’s testimony — if they ever had any — should have been waning.
To be sure, the FBI knew that the LCN was not above bribing or threatening Bar-boza. There had been a bribe attempt with respect to Barboza’s testimony in the Marfeo case; there had been an attempt on the life of Fitzgerald, Barboza’s former counsel, ostensibly for his failure stop Bar-boza’s testimony.
See supra
note 109.
At the same time — -and this should have been significant — Barboza was only proposing to recant his testimony
with respect to these plaintiffs,
not his testimony regarding the other Deegan defendants nor his testimony in the Marfeo case. This position was entirely consistent with everything that the FBI had in their files before September 8, 1967.
136
In effect, Barboza was saying as of 1970 precisely what the FBI informants and wire had disclosed before that date.
6.
Barboza Murders Clay Wilson and Brags about His False Testimony in the Deegan Trial
When Barboza was originally released on parole in 1969, the 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 from committing crimes — even murder — again.
Under the alias “Joseph Bentley,” Bar-boza met Clay Wilson and his wife Roxsan Ambrosini. Barboza made a deal with Wilson to cash millions of dollars worth of negotiable bonds that Wilson had stolen.
See
Exh. 184 at 8, 11.
138
Barboza threatened Clay and Ambrosini lest they interfere with his plans. The content of his threats was significant.
Barboza revealed himself as “Joseph Barboza” and as a participant in the witness protection program.
See
Exh. 184 at 14-15. He bragged that he “had put this
*195
man, Joseph Salvati, in the penitentiary, and that he could do anything he wanted like 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 out of $400 and that because of revenge he got back at Salvati by falsely testifying about his being involved in the Deegan murder.”
Id.
He then told them that Salvati “was never going to get out of prison because he received a life sentence.” Exh. 184 at 24; Exh. 297.
139
Barboza told Ambrosini and Wilson that he
had the government wrapped around his little finger, and he could manipulate them any time he wished. He informed us that he could do this anytime he was in trouble because all he would have to say to them was that he was going to change his testimony in prior trials. To him, this was merely a game of chess and he would always counteract the government’s future moves on him. He said that he could continue his violent lifestyle and get away with it.
Exh. 297;
see also
Exh. 184.
Threats turned to reality when Barboza murdered Clay Wilson in front of his wife, shooting him in the head.
See
Exh. 184 at 121. Barboza was not apprehended for Wilson’s murder until a Walpole inmate named William Geraway (“Geraway”) wrote a letter to the Sonoma County, California Sheriffs office identifying Barboza as Wilson’s killer.
See
Exh. 186 at 13-23. Detective Sergeant Brown of Sonoma County, conducted an investigation to confirm Geraway’s report. In February 1971, Barboza was returned to California to stand trial for Wilson’s murder.
See
Exh. 186 at 56.
As with everything having to do with Barboza, the FBI took a great interest in the Wilson case. On October 13, 1970, the San Francisco FBI office sent an urgent teletype to the Director and to Boston letting them know that eyewitness Paulette Ramos told Santa Rosa police that Barboza killed Clay Wilson.
See
Exh. 131.
140
Both San Francisco and Boston continued to track the Wilson investigation.
See
Exh. 132.
141
In fact, Rico, Condon, and Harrington went to California to testify on Barboza’s behalf.
See
Exh. 138. It was an extraordinary gesture, handled in an extraordinary fashion. Detective Sergeant Brown learned from the press that two agents from the FBI were to be called as witnesses for Barboza.
See
Exh. 136; Exh. 186 at 51. The District Attorney of Sono-ma County immediately complained to Hoover, expressing how “disconcerting” this was for the prosecution, because “it presents a picture of a house divided against itself.” Exh. 136.
142
*196
Shortly after the District Attorney’s letter, Harrington explicitly requested permission for federal officials to testify on Barboza’s behalf in response to a subpoena.
See
Exh. 137A. Harrington wrote that “it is essential that the government should fulfill its commitment to Baron [Barboza] to do all within its power to insure that he suffers no harm
as a result of his cooperation with the federal government.”
Exh. 137A (italics supplied).
See also
Exh. 137C (Harrington requesting permission to expand the scope of Condon and Rico’s testimony). The statement is curious. Whatever harm that would be visited on Barboza in the Clay Wilson matter came not as a result of his
cooperation,
but as a result of his
crime.
On December 2, 1971, the Attorney General granted them limited permission to testify.
See
Exh. 137D.
In effect, what Condon, Rico, and Harrington were seeking to do in the Wilson trial was precisely what Condon had done in the Deegan trial: vouch for Barboza. They planned to describe Barboza’s contributions to the prosecution of the LCN and put 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 to undermine the testimony of Geraway, the inmate who had identified Barboza as Wilson’s killer, by testifying to his reputation as a “congenital liar.” Exh. 137C. As Brown reported, “when those fellows finished their testimony, Mr. Barbosa [sic] was a national hero.” Exh. 186 at 27.
143
After their testimony, the DA allowed Barboza to plead down from first to second degree murder.
See
Exh. 186 at 71-72; Exh. 139A. The San Francisco office immediately notified both the Director and Boston.
See
Exh. 139B.
Harrington maintained an ongoing relationship with Barboza. Barboza wrote to Harrington on August 22, 1972, asking for help overturning the Wilson conviction.
See
Exh. 134E.
144
Harrington replied that he should consult with his attorney about filing a motion for a new trial, but that Barboza’s “cooperation with the federal government will be brought to the attention of California Parole Authorities.” Exh. 134D. Sometime after March 31, 1973, Harrington appeared before a Montana parole board on Barboza’s behalf.
See
Exh. 2341 at 57.
145
*197
Barboza was released on parole on October 30, 1975, after serving less than five years.
See
Exh. 144A. He died several months later, on February 11, 1976.
See
Exh. 338, ¶ 54.
7.
Rico’s Methods Are Exposed
— Still
Nothing is Done
By 1988, the FBI should have had even greater concerns about its LCN initiative and the methods employed. That year, the Supreme Court of Rhode Island in
Lerner v. Moran,
542 A.2d 1089 (R.I.1988), Exh. 301, found, among other things, that Rico had urged one of his informants to lie under oath, in part to mask another Rico informant’s role in a murder.
Lemer,
542 A.2d at 1090 . The Court found that in the trial of Patriarca Family member Luigi Manocchio, Rico’s informant John Kelley admitted that in a related case (a case against Maurice Lerner) he had testified falsely — at Rico’s direction.
The pattern revealed was chillingly like that in the Deegan case. During Lerner’s trial, Kelley testified that he had
personally
“cut down” the shotgun used in the murders. However, during the Manocchio trial, Kelley stated that his
armorer
had actually “cut down” the shotgun. Kelley said that Rico had directed him not to mention the armorer’s role in the murders because the armorer was a valuable FBI informant that Rico wanted to keep on the streets.
Id.
The Rhode Island Supreme Court credited Kelley’s testimony.
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 cooperation.
Id.
at 1091 . In addition, it stated that, “Kelley’s [perjurous] testimony [at the Lerner trial] was then corroborated in all material aspects by Special Agent Rico.”
Id.
The Court also noted Kelley’s explanation of why he had lied under oath: “Agent Rico told me ... that I should just do as he said, and everything would come out all right.”
Id.
Rico’s modus operandi with respect to Kelley was identical to that with respect to the Flemmi brothers and Barboza. Rico vouched for Kelley on the stand, just as Condon had vouched for Barboza. Kelley perjured himself at Rico’s direction to protect and facilitate the FBI’s informant program, just as Barboza had.
146
*198
Despite these extraordinary revelations, the record discloses no investigation into Barboza’s testimony or into any other Rico — developed witnesses.
147
8.
The FBI and Stephen Flemmi in the 1980s
Stephen Flemmi was officially closed in 1969 when he became a fugitive with respect to the attempted murder of Fitzgerald, but was officially reopened in 1980, with Agent Connolly as his handler.
See supra
note 39. (Flemmi testified, however, that as far as he knew, he remained open the entire time — as he was in constant contact with the FBI, in particular Agent Rico.
See
Exh. 189.)
Stephen Flemmi, along with James Bul-ger, was the leader of the so-called “Winter Hill Gang,” a prominent Boston organized crime group, from the late 1970s to the early 1990s. “[T]he long term survival of the organization was attributable, in part, to the ability of members of this group to corrupt federal, state and local law enforcement officers. This corruption guaranteed a flow of information from law enforcement to the organization which allowed its members to evade detection and avoid prosecution for decades.” Exh. 182 at 3.
During his tenure as an informant, Flemmi “self-reported” criminal activity to Agent Connolly, including gambling, loan sharking, and book-making. In addition, there were over one hundred reports mentioning Flemmi’s illegal activities; the DOJ Office of Professional Responsibility concluded that “it is virtually certain” that Connolly and/or Morris and Ring received at least some of this information.
See
Exh. 166 at 5. The record before me compels the same inference. The Bureau did not abide by policies requiring a written inquiry into whether his continued use was justified,
see
Exh. 166 at 5, Flemmi’s value as a source of information on the LCN remained paramount.
Indeed, in 1981, Flemmi participated in the murder of Roger Wheeler.
See
Exh. 182 at 9-10. Flemmi was closed again on September 23, 1982 due to investigations into that murder.
See
Exh. 166 at 14-15. Nonetheless, on May 3, 1984, Connolly sent a request to Ring, asking to reopen Flemmi, as he’d been an “extremely valuable” Top Echelon informant, providing sensitive information used to obtain Title III coverage of the LCN. Exh. 158B. In 1986, Boston forwarded that request to the Director, noting that Flemmi “REMAINS IN A POSITION TO PROVIDE VALUABLE INFORMATION AT THE POLICY MAKING LEVEL OF THE LCN.” Exh. 158C. On July 10, 1986, Flemmi was reopened as a confidential informant; his status was upgraded to Top Echelon that December.
See
Exh. 166; Exh. 158D.
From the beginning, Flemmi’s knowledge of LCN goings on was more important to the FBI than any of the crimes they knew him to be committing.
See supra
Section III.B.2.b. As time went on, the FBI only became more and more embroiled with Flemmi and his crimes; with each passing year, the stench of their relationship intensified, heightening the FBI’s interest in keeping it from public view.
148
*199
9.
Deegan Defendants’ Efforts Post-Conviction
From the moment of their convictions, the Deegan defendants tried to clear their names, first through motions for new trial, and then through a series of commutation petitions.
149
Those efforts should be evaluated in the context of the ongoing incestuous relationships between the FBI, Stephen Flemmi and Barboza.
For a prisoner convicted of first degree murder to become eligible for parole, he had to receive a commutation from the Governor with advice and consent from the Governor’s Council. The process began when an inmate petitioned the Massachusetts Parole Board, sitting as the Advisory Board of Pardons (“Advisory Board”). If the Advisory Board granted a hearing, it would consider all evidence for and against the petition at a public hearing. If the Advisory Board voted in favor of the petition, it would be sent to the Governor, along with all the evidence submitted. The Governor reviewed the petition and decided whether or not to grant it. Once approved, the petition would be referred to the Governor’s Council, and finally, the Parole Board.
See
Tr. vol. 10, 22-23.
It was the Advisory Board’s policy to send requests to law enforcement agencies — including the FBI — for information relevant to the Board’s evaluation of a petition.
See
Tr. vol. 10, 24. The FBI never provided the Advisory Board with any of the information it had concerning the innocence of Limone, Tameleo, Greco, and Salvati.
See
Tr. vol. 10, 26, 29, 31-34. To the extent it provided any information, it was the opposite — information that cast aspersions on them.
By continuing to withhold the exonerating information, the FBI hamstrung the Advisory Board and the Governor just as it had hamstrung Zalkind in 1967 and 1968. Without the FBI’s secret information, there was no way that the Advisory Board could conduct an independent investigation as to commutations. This was all the more true after Barboza’s demise in 1976. The key to the plaintiffs’ freedom remained in the FBI’s closed hands.
a.
Salvati Commutation Petitions
Joseph Salvati filed six commutation petitions, five of which were denied without a hearing.
See
Exh. 340 at ¶¶ 14-19.
150
Sal-
*200
vati’s sixth petition, filed on October 25, 1988,
see
Exh. 263A, eventually led to his release.
The Advisory Board contacted the FBI at least four times in relation to Salvati’s petitions, requesting information on his involvement in the Deegan murder. Each time the FBI refused to disclose the exculpatory information they had suggesting Salvati’s innocence. On February 4, 1986, Chairman of the Massachusetts Parole Board, John Curran (“Curran”), requested information from the FBI.
See
Exh. 262C. The FBI responded only by informing the Board that Salvati had been seen with a certain individual at the Museum of Fine Arts, an individual apparently known to the Massachusetts State Police.
See
Exh. 262D.
151
Two years later, on August 8, 1988, Cur-ran requested 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 the Deegan murder” so that they could respond to the Parole Board’s inquiries. Exh. 335.
152
A handwritten note on the FBI’s copy of the document indicates that “[John] Ford [of the DA’s office] was advised that [the] info [was] previously submitted to [the] Board of Pardons” by SA Ring. Exh. 335. The FBI provided no further information.
See
Tr. vol. 10, 27. Not deterred, Curran once more requested information regarding Sal-vati from the FBI on November 30, 1989.
See
Exh. 263C. The FBI responded by referencing its March 24, 1986 response— Exhibit 262D.
On April 29, 1991 the Advisory Board recommended approval of Salvati’s sixth commutation petition. The Governor’s Council voted favorably on February 5, 1997 — almost six years later — and the Parole Board granted Salvati parole on February 26, 1997. Salvati was released on March 20, 1997, having served 29 years, four months, and 23 days in prison.
See
Exh. 267A; Exh. 266A.
b.
Limone Commutation Petitions
Limone also filed six petitions for commutation, all of which were denied.
See
Exh. 340, ¶¶ 6-12. As with Salvati, the Advisory Board requested the Boston FBI office provide information concerning Li-mone’s involvement in the Deegan murder, and on each such occasion the FBI failed to produce the exculpatory information contained in its files.
See
Tr. vol. 10, 28, 31. During the Advisory Board’s consideration of Limone’s 1983 commutation petition, FBI agents John Connolly and John Morris made an unannounced visit to Parole Board member Michael Albano’s office. At no time during this visit did they provide him with any documents similar to or the same as the Durham documents.
See
Tr. vol. 10, 29-30.
The record does not disclose what they said, but it is reasonable to assume it was not remotely favorable to Limone.
153
They
*201
volunteered written information sure to keep Limone in prison. In response to an inquiry from the Parole Board, SA Ring wrote that Limone was convicted based on the testimony of Barboza. He then suggested that Limone had been involved in commissioning Barboza’s murder,
154
concluding by stating that “[cjurrent law enforcement intelligence reflects that Peter Limone continues to be considered an important cog in the Boston Organized Crime element. Should he be released, he would enjoy a position of elevated status within the Boston Organized Crime Structure.” Exh. 277C. Then-U.S. Attorney William Weld also chimed in, writing a letter to Governor Dukakis in which he stated that it was the “strong recommendation of this office that the petition for commutation of Peter Limone’s sentence be denied.” Exh. 277F.
155
The FBI was copied on the letter.
c.
Tameleo Commutation Petitions
Tameleo filed two unsuccessful petitions with the Advisory Board.
See
Exh. 340, ¶¶ 3, 4. He died in prison in 1985 without ever having attained post-conviction relief.
Id.
at ¶ 5.
d.
Greco Commutation Petitions
In December of 1983, Louis Greco filed a petition for 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, 32-33; Exh. 225F; again nothing exculpatory was forthcoming,
see
Tr. vol. 10, 32-34.
On December 16, 1987, SAC Ahearn responded to the Advisory Board’s request for information, stating: “Grieco [sic] is considered, upon review of available intelligence, to be a member of the Patriarca La Cosa Nostra Family.” Exh. 225H, ¶ 1. During discovery in this trial, however, the defendant could find no documents describing such “available intelligence.” Exh. 243 at 4, 5.
Greco was granted a hearing on his first petition for commutation, after which a majority of the Advisory Board voted in favor of commutation on January 10, 1985.
See
Exh. 340, ¶ 22. Governor Michael Du-kakis denied that commutation in March of 1986. Greco was then granted a hearing on his second petition for commutation, and again a majority of the Advisory Board voted in favor of commutation on January 15, 1988.
See
Exh. 340, ¶ 24. Governor William Weld, however, denied Greco’s second petition on January 19, 1993. His third petition, filed on November 21, 1995,
see
Exh. 340, ¶26, became moot. Greco died in prison on December 30, 1995.
Id.,
¶ 27. On January 3, 1996, Greco’s third and last petition was closed administratively, due to his death.
*202
10.
The Conspiracy of Silence
The findings in Section III.D. — about the efforts to provide for Barboza, testifying on Barboza’s behalf in the Wilson trial and before the parole board, the refusal to investigate Rico’s conduct when exposed by the Kelley incident, the continued nondisclosure of the Durham documents despite the Advisory Board’s (and the Suffolk DA’s office’s) repeated requests, the FBI’s continued relationship with Stephen Flemmi — share a single motivation: The FBI wanted to maintain the secrecy of their Top Echelon informant program and keep their LCN prosecutions, including Deegan, from being undermined.
Pulling just one thread threatened to unravel the entire skein: Had the FBI come forward about Barboza’s perjury in the Deegan case, his credibility would have been shattered in the Marfeo case — a case that Harrington noted had been described by many as “the single most important prosecution of the [last 50 years].” Exh. 117A. Had the FBI come forward with their secret documents in response to the Advisory Board’s requests, the Top Echelon informant program and its members would have been exposed, as would the contents of the Patriarca wire. The documents pointing to the plaintiffs’ innocence included reports from Top Echelon informants, Flemmi’s status and his relationship to Barboza would be at risk of disclosure. And, if the FBI’s dealings with Stephen Flemmi had come to light, their efforts to protect him from prosecution after prosecution would have been extinguished.
In short, the FBI was intent on keeping the lid on the very scandal that came to light during the 1995
Salemme
proceedings. Maintaining their conspiracy of silence in connection with the four plaintiffs here was part and parcel of that effort.
IY.
CONCLUSIONS OF LAW
Plaintiffs bring six claims against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346 and 2671-2680: malicious prosecution, civil conspiracy, intentional infliction of emotional distress, bystander intentional infliction of emotional distress, negligent selection, supervision, and retention, and loss of consortium. I ruled on several of these legal issues in previous opinions dealing with defendant’s motions to dismiss.
See Limone v. United States,
271 F.Supp.2d 345 (D.Mass.2003)
(“Limone I
”),
aff'd Limone v. Condon,
372 F.3d 39 (1st Cir.2004); and
Limone v. United States,
336 F.Supp.2d 18 (D.Mass.2004)
(“Limone II
”). Those decisions turned on the factual allegations in the complaint. Given the facts as alleged, I found — and the First Circuit agreed — that plaintiffs’ claims could proceed. Now that they have proceeded through trial, the question before me is whether the facts as alleged have been proved.
I find that they
have
been proved. The FBI was responsible for the framing of four innocent men. They suborned perjury and suppressed exculpatory evidence at trial and thereafter for the next thirty years.
I will not repeat my earlier legal findings in any detail. To the extent that they address issues reiterated by the government (albeit indirectly) at trial, I will summarize and refer to them here.
156
*203
A.
Prior Issues
1.
Discretionary Function Exception
The government claimed pre-trial that it was immune from plaintiffs’ FTCA claims because its conduct involved “discretionary functions,” namely, decisions about how to conduct investigations, whom to prosecute, whether to disclose exculpatory evidence, and how to manage informants.
157
(The government reiterated these objections in their post-trial findings of fact and conclusions of law, specifically with regard to claims of negligent supervision.
See infra
Section IV.E.) The “discretionary function exception” contained in 28 U.S.C. § 2680 (a) preserves the government’s sovereign immunity from claims “based upon the exercise ... or the failure to exercise ... a discretionary function or duty on the part of a federal agency or an employee of the government, whether or not the discretion involved be abused.” Congress’ purpose in carving out this exception to the FTCA’s waiver of sovereign immunity was “to prevent judicial second guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.’ ”
Coyne v. United States,
270 F.Supp.2d 104, 112 (D.Mass.2003) (quoting
Berkovitz v. United States,
486 U.S. 531, 536-37 , 108 S.Ct. 1954 , 100 L.Ed.2d 531 (1988)).
Because “the party who sues the United States bears the burden of pointing to ... an unequivocal waiver of immunity,” plaintiffs bear the burden of showing that the discretionary function exception to the FTCA’s broad waiver of immunity does not apply here.
Williams v. United States,
50 F.3d 299, 304 (4th Cir.1995);
see also Hydrogen Tech

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1614593. Public record. Not legal advice.