UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS PETER J. LIMONE, et al., ) Plaintiffs, ) ) v. ) Civ. Action No. 02cv10890-NG ) UNITED STATES OF AMERICA, ) Defendant. ) TABLE OF CONTENTS MEMORANDUM AND ORDER RE: BENCH TRIAL July 26, 2007 I. INTRODUCTION ......................-1- II. PROCEDURAL BACKGROUND ................ -10- III. FACT FINDINGS .................... -15- A. The FBI Program to "Get" La Cosa Nostra ..... -20- 1. Patriarca Wire ............... -21- 2. "Top Echelon Criminal Informant Program" .. -22- 3. Significance of (1) and (2) ........ -24- B. The Boston FBI, the Flemmi Brothers and Barboza . -25- 1. Agents Rico and Condon ........... -25- 2. The Flemmi Brothers ............ -27- a. Jimmy Flemmi ............. -28- b. Stephen Flemmi ............ -31- 3. Using the Flemmi Brothers to Turn Barboza into a Witness .................. -34- 4. Rico and Condon Meet with Barboza ..... -35- a. Meetings Before September 1967 .... -37- (1) March 8, 1967 .......... -37- (2) March 21, 1967 .......... -38- (3) April 11, 1967 .......... -40- (4) April 27, 1967 .......... -41- (5) May 22, 1967 ........... -41- (6) Summer of 1967 .......... -42- b. Barboza Mentions the Plaintiffs for the First Time on September 8, 1967 ....... -45- (1) What the FBI Knew about the Deegan Murder Before The Murder ..... -46- (2) What the FBI Knew after the Murder ................. -49- -i- (3) What the Local Authorities Knew about the Deegan Murder ........ -56- c. The September 8 Interview and the Indictment ......... -58- C. The Deegan Trial ................ -63- 1. Trial Preparation: An Allegedly "Independent Investigation" ............... -63- 2. The Trial ................. -70- 3. The Verdict ................ -79- D. Between the Deegan Murder Trial and the Nolle Prosequi .................... -80- 1. Praises for Rico and Condon ........ -80- 2. The Involvement of the FBI Hierarchy .... -82- 3. Protecting and Providing for Barboza .... -84- 4. 1970 Rico Admission ............ -85- 5. Barboza Attempts to Recant ......... -86- 6. Barboza Murders Clay Wilson and Brags about His False Testimony in the Deegan Trial .... -91- 7. Rico’s Methods Are Exposed - Still Nothing is Done ...................... -97- 8. The FBI and Stephen Flemmi in the 1980s .. -99- 9. Deegan Defendants’ Efforts Post-Conviction . -101- a. Salvati Commutation Petitions .....-103- b. Limone Commutation Petitions .....-104- c. Tameleo Commutation Petitions .....-106- d. Greco Commutation Petitions ......-106- 10. The Conspiracy of Silence .........-107- IV. CONCLUSIONS OF LAW ..................-109- A. Prior Issues ..................-110- 1. Discretionary Function Exception ......-110- 2. The FTCA’s Exception for Malicious Prosecution Claims ......................-113- B. Malicious Prosecution ..............-114- 1. Initiation .................-120- a. The FBI’s Role in Bringing about the Prosecution of the Plaintiffs: More than a Host .................-123- b. The Information Provided by Barboza Was False or Misleading -- and the FBI Knew it . -128- c. There Was No Independent Investigation: There Could Not Be .............-130- d. The FBI’s Efforts Continued over Thirty Years ...................-132- 2. Lack of Probable Cause ...........-134- a. Information Available to the FBI at the Time-135- -ii- (1) Barboza’s Credibility ......-135- (2) Limone and Tameleo ........-136- (3) Greco ..............-136- (4) Salvati .............-137- b. Conviction is Not Conclusive Proof of Probable Cause on these Facts .....-138- (1) Subornation ...........-140- (2) Due Process ...........-144- (3) FBI’s Misconduct/Barboza’s Testimony - The Sole Foundation .......-146- (a) The Fitzgerald Bribe Testimony ..............-146- (b) The Stathopolous Identification ..............-147- c. No Other Evidence ...........-148- 3. Malice and Termination ...........-149- 4. Not a "Failure to Disclose" Claim .....-151- 5. Massachusetts Survival Statute .......-154- C. Civil Conspiracy ................-155- D. Intentional Infliction of Emotional Distress ..-162- 1. Deegan Defendants’ Claims .........-162- 2. Family Members’ Claims ...........-165- a. Substantially Contemporaneous Knowledge ...................-166- b. Severe Emotional Response .......-168- E. Negligence ...................-169- 1. The Government Was Directly Negligent ...-169- 2. Negligent Supervision ...........-175- V. DAMAGES .......................-180- A. Facts ......................-181- 1. Limone Plaintiffs .............-181- a. Peter Limone Sr. ...........-181- b. The Family ..............-184- 2. Salvati Plaintiffs .............-188- a. Joseph Salvati ............-188- b. The Family ..............-189- 3. Tameleo Plaintiffs .............-192- a. Henry Tameleo .............-192- b. The Family ..............-193- 4. Greco and Werner Plaintiffs ........-194- a. Louis Greco Sr. ...........-194- b. The Family ..............-197- (1) The Children ...........-197- (2) The Marriage ...........-200- B. Law .......................-202- -iii- 1. Damages for the Deegan Defendants: Limone, Tameleo, Greco and Salvati .........-202- 2. Damages for Family Members .........-207- a. Loss of Consortium ..........-207- (1) Spouses .............-210- (2) Children .............-213- b. Bystander Intentional Infliction of Emotional Distress ...............-215- (1) The General Case .........-215- (2) Young Children ..........-217- VI. CONCLUSION ......................-218- -iv- UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS PETER J. LIMONE, et al., ) Plaintiffs, ) ) v. ) Civ. Action No. 02cv10890-NG ) UNITED STATES OF AMERICA, ) Defendant. ) GERTNER, D.J. MEMORANDUM AND ORDER RE: BENCH TRIAL July 26, 2007 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 Deegan’s murder, and then, by covering up FBI misconduct, ensuring their imprisonment over the next three decades. 1 In many of the early documents, including the Deegan trial transcripts themselves, Louis Greco’s name is spelled "Lewis Grieco." I use that alternate spelling only when quoting from those documents. 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. -2- 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. The plaintiffs were convicted of Deegan’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 Barboza’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 2 Barboza went by several aliases, including Joseph Baron and Joseph Bentley. I refer to him as "Barboza" unless I am quoting from a document where a different moniker was used. -3- Attorney’s Office. Worse yet, they assured the District Attorney