United States v. Salemme Decision

UNITED STATES OF AMERICA

FRANCIS P. SALEMME, et al.

Cr. No. 94-10287-MLW

UNITED STATES OF AMERICA

JOHN MARTORANO

Cr. No. 97-10009-MLW

1. The Facts Concerning Defendant Stephen Flemmi's Motion to Dismiss Based on Immunity (Page 2)

3. Flemmi's Motion to Suppress the 1984-85 Electronic Surveillance (Page 51)

4. DeLuca's Motion to Suppress Concerning the LCN Induction Ceremony (Page 61)

16. Greenleaf Becomes SAC and Ring Becomes Supervisor of the Organized Crime Squad (Page 184)

18. Morris Tells Bulger and Flemmi That They Can Do Anything They Want as Long as They Do Not "Clip" Anyone (Page 253)

23. Bulger and Flemmi Are Protected From Investigation In the Hobart Willis Case (Page 285)

C. Dismissal of This Case Is Not Now Justified Because Flemmi Was Not Promised Immunity
From Prosecution (Page 457)

(1) Flemmi Does Not Have An Agreement Providing Use Immunity Generally For His Statements to the FBI (Page 472)

(2) The Promise of Confidentiality Means Statements to the FBI Which Have the Effect of Identifying Flemmi as an Informant Cannot Be Used Against Him Unless His Defense Makes Them an Issue (Page 474)

(3) Flemmi Had an Enforceable Agreement Relating to 98 Prince Street, Vanessa's, and 34 Guild Street (Page 481)

(4) A Hearing Will Be Necessary to Determine If This Case Must Be Dismissed and, If Not, Whether Any Evidence Must be Excluded at Trial (Page 512)

(5) If Morris and Connolly Were Not Authorized to Promise Flemmi that the Evidence Intercepted at 98 Prince Street, Vanessa's, and 34 Guild Street Would Not Be Used Against Him, Flemmi's Statements to the FBI Relating to Those Interceptions May Have Been Involuntary and, In Addition, Use of Any Evidence Intercepted At Those Locations May Violate Flemmi's Right to Due Process (Page 524)

2. The Motion to Suppress the 1984-85 Electronic Surveillance is Meritorious (Page 536)

B. Suppression is Not Justified Based on the Alleged Violation of 18 U.S.C. ß 2616(1) (Page 543)

C. The Standards to be Applied in Deciding Whether to Suppress for a Failure to Satisfy the Requirements of 18 U.S.C. ß 2518(1)(c) Concerning the Necessity for Electronic Surveillance (Page 554)

D. The Necessity Provision of Title III, ß 2518(1)(c), is Constitutional in Origin (Page 568)

E. The Motion to Suppress the 1984-85 Surveillance is Meritorious (Page 580)

F. A Hearing is Necessary to Identify the Evidence Which Must be Suppressed Because of the Government's Unlawful Conduct Concerning the 1984-85 Electronic Surveillance and to Determine if Any Other Remedy is Required (Page 611)

3. Flemmi is Not an "Aggrieved Person" With Standing to Seek Suppression of the Interceptions at Vanessa's Under Title III (Page 613)

4. DeLuca Does Not Have Standing to Move to Suppress the Evidence Intercepted at 34 Guild Street For a Violation of Title III because the 1998 Supreme Court Decision in Minnesota v. Carter Indicates That Although His Conversation was Intercepted, It Did Not Constitute an "Oral Communication" As Defined in the Statute, and DeLuca's Fourth Amendment Rights Were Not Violated (Page 619)

In 1861, Lord Acton wrote that, "[e]very thing secret degenerates, even the administration of justice." John Emerich Edward Dalberg Acton, Lord Acton and His Circle 166 (Abbot Gasquet, ed., 1968). This case demonstrates that he was right.

On January 5, 1995, defendant Stephen Flemmi was arrested on a criminal complaint which charged him, James "Whitey" Bulger, and George Kaufman with conspiring to extort money from a bookmaker, Burton Krantz. Five days later, on January 10, 1995, Flemmi, Bulger, Kaufman, and four other defendants were indicted on multiple charges of racketeering and extortion, among other crimes. A complaint authorizing Flemmi's arrest prior to indictment was obtained by the prosecutors because they were concerned that Bulger and Flemmi would be informed of their imminent indictment and flee. This fear was well founded.

Beginning in 1965, Flemmi secretly served as a very valuable and valued confidential informant for the Federal Bureau of Investigation (the "FBI" or "Bureau"). In the thirty years prior to his arrest, Flemmi was, among other things, instrumental in the FBI's successful and acclaimed effort to incarcerate three generations of the leadership of the Patriarca Family of La Cosa Nostra (the "LCN" or "Mafia"). Flemmi had also assisted the FBI in obtaining a warrant that was used to intercept, for the first time, an LCN induction ceremony. ß II.30.

In 1976, the FBI played a pivotal role in forging a formidable, enduring partnership between Flemmi and Bulger, who had in 1975 also become an FBI informant. The FBI made Bulger and Flemmi, who were previously acquainted but not close, a perfect match. In Boston, Flemmi and Bulger uniquely shared an antipathy for the LCN, a desire to profit criminally from its destruction, and, most notably, the promised protection of the FBI. ß II.5.

As described in detail in this Memorandum, and as summarized below, many members of the FBI participated in honoring the promise to protect Flemmi and Bulger. Prominent among them was John Connolly, who from 1975 until his retirement in 1990 was their FBI "handler." Although retired in 1995, Connolly remained in contact with his close friends and former colleagues on the Organized Crime squad in the Boston office of the FBI. As a result, he learned that Bulger and Flemmi were scheduled to be indicted on about January 10, 1995. Connolly shared this information with Bulger, who, as Connolly expected, became a fugitive and also warned Flemmi so that he could flee. Flemmi, however, miscalculated. Not expecting to be charged and subject to arrest so soon, Flemmi was still in Boston when the criminal complaint against him was issued on January 4, 1995. ß II.32.

Flemmi's arrest represented a radical departure from his historic relationship with the government. At the urging of Attorney General Robert Kennedy, in the mid-1960's a previously reluctant FBI became committed to combatting the LCN. FBI Special Agent H. Paul Rico recruited Flemmi to serve as an asset in that effort, which has since the mid-1960's been the FBI's highest national priority. Flemmi was, among other things, known to Rico as a member of the Winter Hill Gang, which was in the midst of a violent gang war, and as a reputed murderer. Flemmi then had close contact with key members of the Patriarca Family, in meaningful measure because of his partnership with his present codefendant Francis Salemme. Although rightly regarded as a potential member of the Patriarca Family, Flemmi did not share Salemme's unequivocal enthusiasm for the LCN. Thus, Flemmi was responsive to the relationship that Rico proposed. ß II.2.

Because of Flemmi's ability to provide information concerning leaders of the LCN, Rico caused the FBI to designate him as a Top Echelon informant, the highest status a Bureau source can achieve. Flemmi, however, was never told that he was opened or closed administratively as an informant. Nor was Flemmi advised that any of the information that he was providing was being memorialized in writing. Rather, instead of treating Flemmi as a criminal to be dealt with cautiously, Rico successfully sought to cultivate in Flemmi the sense that he was an ally in a common cause, primarily a war against the LCN. ß II.2. This is a sense that was later nurtured by Connolly, when he succeeded Rico as Flemmi's handler, despite the fact that Connolly too understood that Flemmi had committed many serious crimes, including murder. ßß II.5, II.33.

As the alliance between the FBI and Flemmi and Bulger developed, Flemmi and Bulger were invited to dine periodically with members of the FBI engaged in investigating the LCN, including Connolly, several of his colleagues on the Boston Organized Crime squad, Connolly's supervisors, John Morris and James Ring, and Joe Pistone, an FBI agent from New York who had become famous for his undercover infiltration of the LCN as "Donnie Brasco." The timing of these dinners suggests that they were often arranged to celebrate milestones in the FBI's relationship with Bulger and Flemmi, such as the successful bugging of the LCN's Boston headquarters at 98 Prince Street in 1981, and the frustration of an investigation of Bulger and Flemmi that had been led by the Drug Enforcement Administration (the "DEA") in 1984-85. At these dinners, the agents, Bulger, and Flemmi at times exchanged gifts. Although FBI procedures required that all contacts with informants be documented, there is only one, 1979 report reflecting matters discussed at these dinners. There is no record of the gifts exchanged. ßß II.10, II.11, II.16, II.17, II.18.

Rico made several promises to Flemmi in the course of developing him as an informant. Among other things, Rico promised Flemmi that his cooperation would be confidential and that his service as a source would not be disclosed to anyone outside of the FBI. This was a customary assurance that the FBI has provided to its informants at least since 1965. It is a promise that Rico and the many other past and present members of the FBI agents who testified in this case regarded as "sacred." ßß II.2, II.8.

There was good reason for agents of the FBI to believe in the importance of the promise of confidentiality that is regularly made by the Bureau to its informants. As the Supreme Court has recognized, providing potential sources reasonable assurances regarding the confidentiality of their cooperation encourages them to provide information and protects their safety. Roviaro v. United States, 353 U.S. 53, 59 (1957). Moreover, the FBI Manual has long instructed agents to exercise constant care to assure that an informant's identity not be disclosed to anyone, intentionally or inadvertently. ßß II.6 and III.1.D(3). Strictly adhering to this principle, unless authorized by the informant, the FBI has regularly refused to identify its sources even to prosecutors and other Department of Justice officials with a legitimate need to know whether, among other things, subjects of investigations were cooperating with the FBI and, therefore, might assert, or indeed have, certain foreseeable defenses to prosecution, including that they had been promised immunity or authorized to commit acts that would otherwise be criminal. ßß II.2, II.17, II.20, II.30, II.32, II.33.

Officials of the Department of Justice have historically accepted the fact that the FBI would refuse any request to confirm or deny that an individual was an informant. For example, William F. Weld, a former United States Attorney in Boston and a former Assistant Attorney General in charge of the Criminal Division, testified that he expected that if he asked the FBI to identify an informant, he would be told to "go pound sand." ßß II.17, III.1.D(3). As a formal reflection of this attitude, in 1976, when the Attorney General first issued Guidelines for the FBI to use in exercising its discretion with regard to dealing with informants, the Guidelines provided no role for the United States Attorney or the Department of Justice in authorizing an informant to engage in what would otherwise be criminal activity. They were later revised to require consultation with the United States Attorney before the FBI authorized an informant to engage in criminal activity that involved a significant risk of violence, but stated that any such consultation be conducted in a manner that would not reveal the identity of the source. ß II.6.

It was the understanding of the present and former members of the FBI who testified in this case that information which Flemmi or any other informant provided the FBI could not properly be used against him or, in any event, that it would not be used against him. Thus, it was the consistent practice of the FBI not to use information received from an informant to investigate him.⁽¹⁾ Nor would the Bureau disclose information provided by a source to any other agency or any prosecutor investigating him. ßß II.2, II.8, II.14, II.16, II.20, II.21, II.33, III.1.D(2)-(3).

While the repeated promises of confidentiality which Flemmi received were customary and generally regarded as appropriate, Rico also made Flemmi a promise that was irregular, but not unique. He promised Flemmi that if he served as an FBI informant, the Bureau would protect him. ß II.2. This is a promise that was expressly reiterated and amplified by Connolly and Morris. ßß II.5, II.11, II.18. As summarized below, the assurance that Flemmi would be protected by the FBI was also communicated by the conduct of Rico, Connolly, and Morris, and was confirmed by the actions of many, but not all, of their colleagues in the FBI.

Flemmi, however, was never told that the protection that he was promised included immunity from prosecution. The word "immunity" was never mentioned. ßß II.2, II.5, II.16. Flemmi understood that it was permissible for agencies other than the FBI, or FBI agents ignorant of his relationship with the Bureau, to investigate him. He also knew that he could properly be prosecuted if any such investigation succeeded despite the best efforts of his FBI handlers to protect him. ßß II.2, II.9, II.17, II.32, III.1.C.

Relying upon the promises made to him by the FBI, and on the repeated performance of those promises, Flemmi rendered exceptional service in the Bureau's war against the LCN and other matters. In the 1960's, Flemmi regularly provided information, that Rico rated as "excellent," regarding the activities of Raymond L.S. Patriarca, and other members and associates of the Family that bore his name, including Gennaro Angiulo, Illario Zannino, who was also known as Larry Baione, and Salemme. Flemmi was also instrumental in Rico's successful effort to develop LCN member Joseph Barboza into a cooperating witness. Barboza's testimony led to the convictions of Patriarca and several of his associates, and earned him national renown. In addition, in the mid-1960's, Flemmi furnished Rico with an appreciated warning of a threat to the life of Middlesex County District Attorney Garrett Byrne. ß II.2.

In 1969, Rico told Flemmi that he and Salemme would soon be indicted for the attempted murder of Barboza's lawyer, John Fitzgerald, and suggested that they flee. Flemmi and Salemme acted on that advice. While a fugitive, Flemmi stayed in touch with Rico. Rico, however, did not tell the agents responsible for the Flemmi fugitive investigation that he had spoken to him. It appears that after separating from Salemme because of a series of disagreements, Flemmi told the FBI where Salemme could be found. Thus, Connolly was able to apprehend Salemme in New York. ßß II.2, II.3.

After Salemme was convicted of the Fitzgerald bombing and incarcerated to serve a lengthy sentence, at Rico's request Flemmi returned to Boston in 1974. As Rico promised, Flemmi was immediately released on bail and the charges against him were dropped. ß II.3.

In 1975, with assistance from Bulger, Connolly revived Flemmi's relationship with the Bureau. Flemmi promptly proved his continued value as a source. After Barboza was murdered in 1976, Flemmi provided information that permitted Connolly to convert a coconspirator into a cooperating witness who identified Patriarca Family member Joseph Russo as Barboza's killer. In 1992, Russo pled guilty to that charge and was sentenced by this court to what turned out to be life in prison. ß II.7.

In 1980, Flemmi provided Connolly with information concerning the assassination of federal Judge James Wood by a group of major drug dealers. Connolly later advised his superiors that he believed that the contacts Flemmi had made at his direction in that investigation may have created the false impression that Flemmi was involved in narcotics. ß II.11.

In 1980, Flemmi and Bulger made a critical contribution to the FBI's ambitious and ultimately successful effort to bug Angiulo's headquarters at 98 Prince Street. The location was viewed as virtually impenetrable. Connolly and Morris asked Flemmi and Bulger to visit 98 Prince Street and obtain information important to the physical feasibility of the proposed bugging. Bulger justifiably feared that he and Flemmi might be killed if they went to that location. Flemmi expressed the additional concern that the bugging of 98 Prince Street would likely result in the interception of information concerning criminal activity in which he and Bulger were engaged. Morris and Connolly, however, assured Flemmi and Bulger that the 98 Prince Street tapes would not be a problem for them; they would be protected for anything intercepted at 98 Prince Street rather than prosecuted. Thus, Flemmi reasonably understood that if he assisted the FBI, none of the evidence intercepted at 98 Prince Street would be used against him, directly or indirectly. ßß II.11, III.1.D(3).

As a result of the promises made by Morris and Connolly, Flemmi went with Bulger to 98 Prince Street, and returned with a diagram of the premises and the other information that the FBI had requested. Subsequently, Bulger and Flemmi were two of the informants relied upon in the application for the warrant which was issued authorizing the installation of a bug at 98 Prince Street. Id.

In 1991, Morris assessed for his superiors Flemmi's value as an informant, writing that the information Flemmi provided had been utilized in six successful applications for electronic surveillance, involving, among other things, the two highest priority Organized Crime investigations in Boston. The 98 Prince Street investigation, Morris wrote, "is one of the highest priority organized crime cases in the FBI today and involves what has been characterized by [FBI Headquarters] officials as one of the most important and successful Title IIIs to have been conducted by the FBI in the past ten years." Id.

In 1985, at a dinner at Morris' home, in Connolly's presence, Morris again told Flemmi and Bulger that they would not be prosecuted for anything on the 98 Prince Street tapes. In addition, Morris told them, "you can do anything you want as long as you don't 'clip' anyone." ß II.18.

Morris' 1981 assessment of the value of the 98 Prince Street tapes to the FBI proved to be accurate. With continued assistance from Flemmi and Bulger, the FBI used the evidence intercepted there to develop a case which secured the convictions, in 1986, of Angiulo, Zannino, and much of the rest of the leadership of the LCN in Boston. ßß II.12, II.20.

Following those convictions, Flemmi quickly contributed to the FBI's effort to incarcerate the next generation of the leadership of the LCN in Boston, including Russo, Vincent Ferrara, and Robert Carrozza. Flemmi reported that the emerging leaders of the LCN were meeting regularly in a storeroom at Vanessa's Restaurant, which was owned by Angelo "Sonny" Mercurio, who had recently been released from prison. ß II.20.

The FBI targeted Vanessa's for electronic surveillance. Once again, Flemmi was tasked to obtain vital logistical information and performed his mission. Flemmi and Bulger were later two of the three sources relied upon in the application for a warrant to bug Vanessa's. Before being discovered in 1987, the bug intercepted, among other things, a dramatic extortion of two elderly bookmakers, "Doc" Sagansky and Mo Weinstein, which Flemmi had told the FBI was being planned. As a result, the Bureau developed a powerful case against Ferrara, Carrozza, Mercurio, and a number of their confederates. Id.

At Connolly's request, in 1988, Flemmi began to provide information again on Salemme, who had recently been released after serving fifteen years in prison for the Fitzgerald bombing. Raymond J. Patriarca had by then succeeded his deceased father as Boss of the Family. In early June 1989, Flemmi reported that Patriarca had given his "blessing" to Salemme to assume leadership of the LCN in Boston when, as anticipated after a search warrant was executed at Vanessa's, Russo, Ferrara, and their crew were indicted. Flemmi also kept Connolly up to date on the substantial and escalating risk that the Russo faction of the LCN might soon try to murder Salemme. ßß II.28, II.29. In addition, Flemmi contributed to the FBI's successful effort to target Salemme for electronic surveillance at the Busy Bee restaurant. ß II.28.

Flemmi and Bulger also contributed to the recruitment of Mercurio as a Top Echelon informant.⁽²⁾ As they explained to Connolly, Mercurio was disenchanted with the LCN, close to Bulger and Flemmi, and planning to flee rather than return to prison as a result of the bugging of Vanessa's. Employing a profile provided by Flemmi and Bulger, Connolly and Ring developed Mercurio into a very valuable source, who, among other things, made it possible for the FBI to bug the LCN induction ceremony conducted on October 29, 1989, at 34 Guild Street in Medford, Massachusetts. ßß II.29, II.30.

Connolly retired from the FBI in 1990. As a result, without their knowledge, Flemmi and Bulger were closed administratively as FBI informants. Flemmi, however, was then characterized as having "furnished the Boston Division [of the FBI] very valuable information through the years regarding LCN activities." Ex. 44. The Bureau did not want to lose Flemmi and Bulger as sources when Connolly retired and, therefore, reported that it was considering options to reopen them. Although not assigned a new handler, Flemmi continued to provide, through Connolly, information that the FBI was seeking concerning the LCN. That information included the numbers of the telephones used by Salemme's brother Jack, which the Bureau wished to tap as part of its investigation of Salemme. ß II.32.

As indicated earlier, Rico, Connolly, and Morris each told Bulger and Flemmi that he would be "protected" in return for serving as an informant. ßß II.2, II.5, II.18. The conduct of Rico, Connolly, Morris, and many but not all of their colleagues at the FBI, expressed even more clearly than their words the FBI's agreement to protect Flemmi.

Rico told Flemmi about other individuals who were cooperating with law enforcement so that Flemmi could be careful around them. ß II.14. As described previously, in 1969, Rico advised Flemmi that he and Salemme would soon be indicted and suggested that they flee promptly. ß II.2. In addition, as Rico promised, Flemmi was immediately released on bail and the fugitive charges against him were dismissed when Flemmi followed Rico's advice and returned to Boston in 1974. ß II.3.

Connolly and Morris, individually and in tandem, also acted repeatedly to protect Flemmi. In 1977 or 1978, Connolly intimidated executives of National Melotone from pursuing their complaint that Bulger and Flemmi were extorting the vending machine company's customers. ß II.7. In early 1979, with their sources' consent, Morris and Connolly told Strike Force Attorney Jeremiah O'Sullivan that Flemmi and Bulger were valuable informants and persuaded him, with the agreement of Thomas Daly, the FBI agent who was leading the investigation, not to indict them in a race-fix case, in part so that Bulger and Flemmi could contribute to the FBI's effort to bug 98 Prince Street. ß II.9. In 1979, Morris received reports from informants that Bulger and Flemmi were shaking down bookmakers, but no investigation was conducted. ß II.10.

In 1980, Connolly informed Bulger and Flemmi that the Lancaster Street Garage had been bugged as part of a Massachusetts State Police investigation or confirmed that fact for them. Also in 1980, Flemmi and Bulger were told when the bug at 98 Prince Street was installed and when it was removed so that they would not be intercepted. ß II.11.

In 1982, Morris caused Connolly to tell Flemmi and Bulger that Brian Halloran was cooperating with the FBI and had implicated them in the murder of Roger Wheeler, the President of World Jai Lai. About two weeks later, Halloran was killed.⁽³⁾ Morris believed that Bulger and Flemmi were responsible for Halloran's death, but did not disclose to the agents investigating it that they had been told that Halloran was cooperating with the Bureau. ß II.13.⁽⁴⁾

In an effort to protect Bulger and Flemmi, Morris and Connolly also identified for them at least a dozen other individuals who were either FBI informants or sources for other law enforcement agencies. One of them may have been John McIntyre. McIntyre disappeared about six weeks after he told the FBI and several other law enforcement agencies that Bulger was engaged in illegal activity, and that Bulger's associate Patrick Nee was involved with the Valhalla, a ship that was captured running guns to the Irish Republican Army. McIntyre was planning to meet with Nee the night that he disappeared. ß II.14.

In 1984, Connolly received reliable information that Bulger and Flemmi were engaged in an ongoing extortion of Stephen and Julie Rakes to obtain control of a liquor store that came to be

known as the South Boston Liquor Mart. Connolly neither recorded the information nor conducted any investigation. He did, however, share the information that he had received with Bulger. ß II.15.

As summarized more fully below, in 1984, Connolly also warned Flemmi and Bulger of an investigation targeting them that was being led by the DEA. He subsequently told them that as part of that investigation a wiretap had been placed on the telephone of their colleague Kaufman. ß II.17.

In 1986, after tasking Flemmi to acquire information vital to the FBI's effort to bug Vanessa's, Connolly told him when the bug was installed so that Flemmi would not be intercepted. Connolly later told Flemmi when the bug had been removed. ß II.20.

In 1988, Connolly advised Flemmi that a Boston Police Lieutenant, James Cox, would be wired and would attempt to engage Flemmi in incriminating conversation. ß II.26.

Also in 1988, Morris had Connolly warn Flemmi and Bulger to stay away from John Bahorian, whose telephone was about to be tapped by the FBI in an effort to acquire evidence against Flemmi, among others. Morris also told Connolly to tell Bulger and Flemmi not to do anything to Bahorian because he "did not want another Halloran." Morris later reiterated both of these warnings directly to Bulger and Flemmi. He also told Flemmi that he could keep him out of any indictment arising from the Bahorian electronic surveillance. Although Bahorian and others were ultimately indicted, Flemmi was not. Id.⁽⁵⁾

In 1988 or 1989, Connolly told Bulger that Timothy Connolly was cooperating with the FBI and would try to record conversations with Bulger and Flemmi. Bulger passed this warning on to Flemmi. ß II.28.

After providing Connolly information to assist in the FBI's effort to recruit Mercurio as an informant, Flemmi was told when that initiative had succeeded. ß II.29.

Following his retirement in 1990, Connolly used his continuing connections with his close friends and former colleagues on the Organized Crime squad to obtain information concerning investigations that might have resulted in charges against Bulger and Flemmi. Connolly regularly shared the information he acquired with them, including the scheduled date for the indictment of Bulger and Flemmi in this case. ß II.32.

While Rico, Morris, and particularly Connolly were at the hub of the protection promised and provided to Flemmi, many of their colleagues and superiors in the FBI also contributed by their conduct to that promise and to its fulfillment.⁽⁶⁾

In 1977, Daly and Special Agent Rod Kennedy were told by Francis Green that Bulger and Flemmi had threatened to kill him in connection with their attempt to collect a debt, but no effort was made to develop the reluctant Green as a witness against them. ß II.7. As described earlier, in 1979, Daly later joined O'Sullivan in agreeing not to charge Bulger and Flemmi in the race-fix case. ß II.9.

In 1982, the Boston FBI agents aware of Halloran's cooperation did not tell their colleagues in Oklahoma City, who had expressed interest in him, that Halloran was available to be interviewed. When agents from Oklahoma City sought to interview Bulger and Flemmi, ASAC Robert Fitzpatrick successfully opposed this request, in part by falsely claiming that he had interviewed Bulger about the matter. ß II.13.

In 1984, Sean McWeeney, the Chief of the Organized Crime Section at FBI Headquarters, told Connolly that the DEA was leading an investigation targeting Bulger and Flemmi. Connolly shared this information with his sources. ß II.17.

In 1988, Rod Kennedy, John Newton, their supervisor Bruce Ellavsky, and ASAC Larry Potts provided Bulger and Flemmi protection concerning an ongoing extortion of Raymond Slinger. Although Slinger was willing to wear a recording device and testify against Flemmi and Bulger, after Ellavsky consulted Potts, the information that he provided was neither documented nor investigated. Instead, Bulger was told that Slinger had spoken to the FBI. ß II.22.⁽⁷⁾

Bulger and Flemmi were also protected by the FBI in the successful investigation of drug dealer Hobart Willis and others. Although in 1986 and 1987, Ellavsky and James Blackburn, Jr. received increasingly specific information that Bulger was extorting Willis, after Connolly was consulted no investigation of Bulger was conducted. Nor was the information that the FBI had received concerning Bulger shared with the other agencies involved in the joint investigation of Willis. ß II.23.

Similarly, in 1987, when James Lavin obtained photographs and other information indicating that City of Boston employees had illegally erected guardrails on the private property of the South Boston Liquor Mart, he consulted Connolly. After being advised that Bulger was a valuable informant, Lavin made no record of the information he had received and conducted no investigation. ß II.24.

In 1989, Joseph Murray, an incarcerated drug dealer understood to be closely connected with Bulger, alleged that Connolly and Newton were selling information about electronic surveillance to Bulger and Flemmi. Murray also claimed to know of a witness who saw Bulger participate in the Halloran murder. However, when interviewed by Edward Quinn and Edward Clark in 1989, Murray was either not asked about his allegations concerning Connolly and Newton or his responses were not recorded in the notes and FBI report of the interview. ASAC Dennis O'Callahan, however, subsequently prepared a memorandum, which Ahearn sent to FBI Headquarters, stating that Murray's allegations were unsubstantiated. In addition, Murray evidently was not questioned in detail about the information he indicated that he had concerning Bulger's role in the Halloran murder. Moreover, the information Murray did provide was not given to the FBI agents responsible for the Halloran murder investigation or indexed in a way that would permit them to find it. Nor was any effort made to employ the willing Murray as a source of information to be used against Flemmi, Bulger, or anyone else. ß II.25.

Finally, as indicated earlier, members of the Organized Crime squad kept Connolly advised of at least some developments in the investigation of Flemmi and Bulger that was initiated after Connolly retired. Connolly used that information to honor his promise to protect Bulger and Flemmi. ß II.32.⁽⁸⁾

After Connolly retired, in about 1992, the United States Attorney's Office began a grand jury investigation of Bulger and Flemmi. Agents from the FBI Organized Crime squad participated in the investigation. At least six of the agents who testified before the grand jury knew that Bulger and Flemmi had been FBI informants. Several of them had read all or parts of Flemmi's and Bulger's informant files before testifying. In addition, contrary to the promises made to Flemmi explicitly concerning 98 Prince Street and implicitly concerning 34 Guild Street, evidence intercepted at those locations was presented to the grand juries which indicted him. ß II.32.

In 1992, the FBI refused a request by the then United States Attorney Wayne Budd, and his assistants, to confirm that Bulger was an informant or to permit them to review Bulger's informant file. The prosecutors were concerned about the implications for their investigation if Bulger was, or had been, an FBI informant. Among other things, they wished to address the foreseeable issues of immunity and authorization now raised by Flemmi, whose history as an informant would have been revealed if Bulger's had been disclosed. Id.

On October 25, 1994, the original indictment in this case was returned against defendant Robert DeLuca. It charged him with participating in the October 29, 1989 LCN induction ceremony. The indictment was evidently obtained because the five-year statute of limitations was about to expire. DeLuca was not immediately given notice of the indictment. Rather, it was sealed and randomly assigned to this court. Id.

On about December 22, 1994, in anticipation of the imminent, additional charges in this case, the United States Attorney's Office again asked the FBI if Bulger was an informant, emphasizing its need to know because the government would soon have to disclose exculpatory information to Bulger and his codefendants. Once again, the FBI resisted this request. The Boston Office of the Bureau urged FBI Headquarters to continue to support its opposition to telling the United States Attorney that Bulger had been an informant. It argued that it was not expected that the issue of Bulger's informant status would be raised by Bulger or his codefendants and, in any event, that no judge would compel disclosure of his status if the issue were raised. Id.

However, the FBI's Principal Legal Adviser in Boston, John Michael Callahan, examined the Bulger and Flemmi files with a view to determining if they contained information which would be exculpatory in the context of their forthcoming indictment. Callahan focused on the issues raised by the United States Attorney's Office, including whether Bulger and Flemmi had been authorized to engage in conduct which would otherwise be criminal, whether they had been explicitly or implicitly promised any form of immunity, and whether Bulger and Flemmi "had provided information to the FBI which would undercut a central theme of the indictment, namely, that there was a close working relationship between La Cosa Nostra and the Winter Hill Gang." Ex. 271; ß II.32.

After completing his review, Callahan concluded that Flemmi had been "at least tacitly authorized" by the FBI to participate in "illegal gambling" and "LCN policymaking." The FBI recognized that the Flemmi and Bulger informant files contained information that would be exculpatory in the context of the imminent charges. The Bureau also realized that the failure to tell the United States Attorney that Bulger and Flemmi had been informants, and to provide the prosecutors with relevant materials, "could wreck the proposed organized crime indictments scheduled to be returned on January 9, or January 10, 1995." Id.

Accordingly, on January 9, 1995, the FBI told United States Attorney Donald Stern, and two of his assistants who were not directly involved in the investigation, that Bulger and Flemmi had been informants. The FBI also provided what Callahan characterized as a "quick general overview of the kind of information" that he had discovered. Id. Stern did not, however, insist that the prosecutors handling the case, or anyone else outside the FBI, review the Bulger and Flemmi informant files before the indictment previously prepared was presented to the grand jury. Nor did Stern share the information that he had received with the prosecutors who were presenting the case to the grand jury, evidently because he recognized the risk that their disqualification might be required if they were exposed to information acquired from Bulger or Flemmi as a result of any promise of immunity. Id.

Thus, the indictment that was previously prepared and approved was presented to the grand jury on January 10, 1995, by prosecutors who "did not know that Bulger and Flemmi had been informants or of any assessment of the information in their informant files." Ex. 269; ß II.32. Those charges were brought against six more defendants in a ninety-one-page Superceding Indictment of the original charges against DeLuca. Therefore, pursuant to the District Court's well-known procedures concerning superceding indictments, the greatly expanded case was not randomly drawn, but rather was assigned to this court. Thus, the government exercised what was in effect an option offered by the District Court's rules to select this court to preside in the case against Bulger, Flemmi, and their original codefendants, Francis Salemme, Francis Salemme, Jr., Robert DeLuca, George Kaufman, and James Martorano. ß II.32.⁽⁹⁾

The First Superceding Indictment charged the defendants with, among other things, from 1969 to January 1995, engaging in a conspiracy to violate, and violating, the RICO statute. They were also charged with conspiring to extort, and extorting, bookmakers, from 1979 to 1994. ß II.33.

With regard to the RICO charges, the alleged enterprise was neither the Patriarca Family of La Cosa Nostra nor the Winter Hill Gang, organizations that have, in effect, been proven to be RICO enterprises in prior prosecutions. Rather, the defendants were alleged to have been part of a unique association-in-fact enterprise made up of individuals who joined together to use their respective relationships with either the Patriarca Family or the Winter Hill Gang to, among other things, facilitate the unlawful activities of the enterprise and coordinate the activities of the Patriarca Family and the Winter Hill Gang. Id.

In view of the roles of Bulger and Flemmi as Top Echelon informants utilized to provide, and in some instances tasked to obtain, information for the FBI concerning the LCN, there is now a serious question presented concerning whether they were authorized to engage in the conduct alleged to be criminal and are, therefore, not guilty as charged. There are also questions relevant to all of the defendants regarding whether the alleged conspiracies and enterprise genuinely existed, because an agreement with someone acting as an agent of law enforcement is not a criminal conspiracy. These questions, however, must be addressed at trial. ßß II.33, III.1.A. It is the issue of immunity that the court must decide in these pretrial proceedings. ßß III.1.B, C, D (1)-(5).

All of these issues, however, present serious impediments to the successful prosecution of this case. If the United States Attorney and other officials of the Department of Justice had been properly informed before the proposed indictment of Bulger and Flemmi was presented to the grand jury, perhaps Bulger and Flemmi would not have been charged at all, or different, more narrow charges might have been fashioned in an effort to reduce the risk that their indictment would prove to be fatally flawed. It is inconceivable to this court, however, that the case against Flemmi and Bulger as indicted in January 1995, would have been brought by any reasonable prosecutor who was properly informed of their relationship with the FBI.

The pending charges against Flemmi and Bulger were brought without anyone outside the FBI reviewing Flemmi and Bulger's informant files or considering carefully the issues that they raised. It was not until July 1995, that a member of the United States Attorney's staff first read those files. The prosecutors in this case were subsequently told that Bulger and Flemmi had been FBI informants. They were not, however, then provided with any additional information because of an enduring fear that if they knew more, their disqualification would be requested, if not required. ß II.33.

In August 1995, the government advised the magistrate judge, ex parte, that Flemmi had made potentially relevant statements to the FBI in the context of a confidential relationship over the course of many years. The government reported that Department of Justice officials would review the relevant files and would seek guidance from the magistrate judge concerning the government's discovery obligations. Although in September 1995, this court told the parties that it understood that there were no matters pending before the magistrate judge and would decide all future issues itself, the government continued to secretly seek rulings from the magistrate judge relating to the implications for discovery of Flemmi's service as an informant. Id.

In the fall of 1995, representatives of the Department of Justice and of the United States Attorney's Office who were not then on the prosecution team for this case, informed the magistrate judge, in sealed ex parte submissions, that Callahan had concluded that the FBI had "at least tacitly authorized [Flemmi's] participation" in "illegal gambling and in LCN policymaking," but that "very little in the Flemmi and Bulger files is even arguably Brady material." The magistrate judge agreed with this erroneous assessment. Nevertheless, the government recognized that Flemmi was entitled to certain documents that were in his informant file. As requested by the government, in December, 1995, the magistrate judge ordered that those documents be furnished to Flemmi directly, rather than to his attorney. Id.

The government, however, did not comply with this Order. Flemmi did not receive any of the documents the government had been directed to produce to him. If those documents had been promptly provided to Flemmi, he would, in 1995 or early 1996, have learned for the first time that the FBI had documented some of the information that he and Bulger had furnished. Id.

During 1995 and 1996, this court decided many pretrial matters. Among other things, Flemmi was denied bail; the government was allowed to obtain another superceding indictment to address defects identified by defendants' motion to dismiss; charges against an additional defendant, John Martorano, were brought in the Flemmi case and later alleged instead in what the court deemed to be a separate indictment; and motions to suppress the electronic surveillance conducted at the Busy Bee restaurant were denied, after evidentiary hearings, despite proven defects in obtaining the warrants and in sealing the tapes. Id.⁽¹⁰⁾

In March 1997, the defendants moved for evidentiary hearings on their motions to suppress certain electronic surveillance evidence, including the electronic surveillance conducted jointly by the DEA and FBI in 1984-85, and by the FBI at 34 Guild Street in 1989. In connection with these motions, each of the defendants, with the significant exception of Flemmi, moved for disclosure of whether Bulger, Mercurio, Robert Donati, and other individuals were FBI informants. Flemmi joined in all of the motions except for the request concerning Bulger. Id.

With the agreement of the parties, because the motions implicated the safety of suspected informants, the submissions and hearings on the motions were initially closed to the public. The government strenuously opposed the requests for evidentiary hearings on the motions to suppress and the related requests to confirm or deny that Bulger, Mercurio and/or Donati were informants. In the course of the proceedings the court discovered the sealed submissions indicating that Flemmi and Bulger had been informants. With the consent of all counsel, the court consulted Flemmi privately. Flemmi immediately decided to disclose to his attorney and his codefendants that he had been an FBI informant. Id.

On May 22, 1997, the court issued a decision granting the requests for evidentiary hearings on the motions to suppress and ordering that the government reveal whether Bulger, Mercurio, and/or Donati were informants. At the request of the government, the decision was sealed to permit the Acting Deputy Attorney General to decide whether the government would comply with the Order concerning Bulger, Mercurio, and Donati, dismiss the case, or be held in civil contempt in an effort to render the decision appealable. Id.

It was then foreseeable that, if the government did not dismiss this case, Flemmi's history as an informant would soon be disclosed publicly and that Bulger's status as a source would be revealed by Flemmi or, since they were virtual Siamese twins, be easily inferred. In response to the May 22, 1997 Memorandum and Order, the government, in a sealed submission, confirmed that Bulger had been an informant and, contrary to its previous position, conceded that there was a proper basis for the court to have ordered evidentiary hearings on the motions to suppress the electronic surveillance conducted in 1984-85 and at 34 Guild Street. Id.

Demonstrating again the Department of Justice's traditional deference to the FBI in matters concerning the confidentiality of its sources, however, the Acting Deputy Attorney General declined to obey the Order to confirm or deny whether Mercurio and/or Donati were informants who had assisted the government concerning the electronic surveillance conducted at 34 Guild Street. At that point the May 22, 1997 Memorandum and Order was unsealed.⁽¹¹⁾ Id.

The defendants moved to have the Acting Deputy Attorney General held in civil contempt. Thus, he was at risk of being incarcerated until he complied with the court's Order concerning Mercurio and Donati. Nevertheless, he repeatedly refused to do so. When questioned by the court, however, Mercurio acknowledged that he had been an informant. The Department of Justice subsequently represented that the deceased Donati had not been a source. Thus, the motion to hold the Acting Deputy Attorney General in contempt became moot. Id.

In connection with the pending motions to suppress, Flemmi filed several increasingly specific affidavits describing promises of protection that he had received from the FBI and instances of those promises being performed. Flemmi alleged, among other things, that Morris had told him and Bulger that they could be involved in any criminal activities short of murder and would be protected by the FBI; that he had been tipped off to the indictment in this case so that he could flee if he wished to do so; and that Mercurio had also been given prior notice of his indictment and, therefore, had been able to become a fugitive. Id.

In late June 1997, the court ordered that the government disclose to the defendants information relating to the pending motions. Thus, a great many documents which the FBI expected would never be seen by anyone outside the Bureau were produced and, in many instances, made part of the public record.⁽¹²⁾ Id.

In addition, pursuant to Federal Rule of Criminal Procedure 12.3(a)(1), Flemmi was required to provide notice of his intention to assert as a defense at trial that conduct alleged to be criminal was actually authorized by the FBI. At the government's request, the defendants were also ordered to file their foreseeable motions to dismiss and supporting affidavits, so that any hearings granted on those motions could be conducted in conjunction with the hearings on the related motions to suppress. The court allowed Flemmi's request for an evidentiary hearing on his motion to dismiss because of purported promises of immunity. It denied, without prejudice to later consideration, the defendants' request for evidentiary hearings on their motions to dismiss on other grounds, including alleged outrageous government misconduct constituting a denial of their rights to Due Process.

The hearings ordered were held throughout 1998. They generated over 17,000 pages of transcripts and 276 exhibits. The court's findings of fact are detailed in this Memorandum. Its conclusions of law are also described in detail, and are summarized below.

Flemmi's motion to dismiss based on an alleged promise of general immunity from prosecution is not meritorious. ß III.1.C. Further proceedings will be required, however, to determine whether Flemmi is entitled to dismissal because evidence that he was properly promised would not be used against him was presented to the grand juries which returned the indictments in this case. ß III.1.D.(2)-(4). As summarized below, it would also have been illegal for evidence derived from the 1984-85 electronic surveillance to have been presented to those grand juries. Future proceedings will also be required to determine whether this occurred. If evidence derived from the 1984-85 electronic surveillance was presented to the grand juries that indicted Flemmi, the court will have to decide if that unlawful use of intercepted evidence requires, or contributes to requiring, dismissal of the case against Flemmi. ß III.2.F. In addition, the further hearings will permit the court to identify the evidence which must be excluded at trial if the case against Flemmi is not dismissed.

Flemmi did not have an agreement that he would not be prosecuted in return for his service as an FBI informant. The FBI agents primarily responsible for dealing with Flemmi, by word and deed, for thirty years, promised Flemmi protection in return for the valuable information that he was providing. The conduct of many other members of the FBI, including at least three ASACs, and the Chief of the Organized Crime Section at FBI Headquarters, contributed to creating, communicating, and performing the promise of protection to Flemmi. Flemmi reasonably relied on the FBI's promise of protection and, in return for it, provided very valuable assistance to the government in its war against the LCN and other matters. ß III.1.C.

Flemmi was not, however, explicitly or implicitly promised immunity from prosecution. The term immunity was never used in conversation with him. More importantly, Flemmi did not understand that the government, or any of its agents, had agreed that he would not be investigated by the FBI, or any other law enforcement agency, or not be prosecuted. Rather, he expected that the FBI would overlook some of his criminal activity, provide him information concerning any investigations that were conducted, and warn him of any imminent charges against him of which it learned. The FBI performed its part of the bargain. Thus, it is not necessary or appropriate to decide if the agents entering into this agreement were authorized to do so, or whether the agreement was not valid because it violated public policy or because it attempted to provide immunity for future criminal conduct. Id.

In addition, the mere fact that Flemmi was an informant does not mean that nothing that he said to the FBI could be used against him in any way. ß III.1.D(1). However, the FBI's promise to maintain the confidentiality of the fact that Flemmi was a source also constitutes an enforceable promise not to use statements he made against him if disclosure of those statements would, as a practical matter, reveal that Flemmi had been an informant. ß III.1.D(2).

Therefore, Flemmi's statements that would identify him as an informant could not have properly been presented to the grand juries which indicted him. It is doubtful that any such statements were used in this fashion. However, further evidence will be required to resolve this question. Id.

In addition, in the absence of a defense of public authority, or any other defense requiring introduction by Flemmi of some of his communications with the FBI, his statements to its agents that would identify Flemmi as an informant would not be admissible at trial. However, if this case is tried and, as represented, Flemmi relies on some of his communications with the FBI, the court will, pursuant to Federal Rules of Evidence 106 and 611, permit the government to offer other statements of Flemmi to the Bureau in order to assure that the jury is presented with an appropriate record on which to decide fairly the merits of his defenses. Id.

Flemmi was expressly and implicitly promised that in return for his contributions to the bugging of 98 Prince Street nothing intercepted there would be used to prosecute him. This promise is enforceable. ß III.1.D(3).

The Attorney General has the authority to investigate crime. As part of that power, he has the authority to utilize informants and to provide them promises of immunity informally, rather than conferring it by the process established by statute. Id.

The Attorney General's power to investigate violations of federal law has been generally delegated to the FBI. This authority inherently includes the power to develop and utilize informants. As a corollary of this, the Bureau has been delegated the power to promise informants both confidentiality and informal immunity. Id.

There is no statute, regulation, order, or other legal limitation that prohibits the FBI from promising a source that any information that he provides will not be used against him, directly or indirectly. When the Attorney General wished to restrict the power of prosecutors and investigators to promise cooperating witnesses entry into the Witness Protection Program, he issued a public order that expressly stated that they were not authorized to do so. That restriction has been enforced by the courts. The Guidelines developed by the Attorney General and incorporated in the FBI Manual do not constitute a comparable prohibition. The Guidelines are neither public documents nor legally enforceable. In addition, while they have at relevant times stated that the FBI "should not" promise its informants immunity, they did not provide that it could not do so. ßß II.6, III.1.D(3).

Moreover, the Attorney General has not directed that the FBI consult a prosecutor before promising an informant immunity. To do so would be inconsistent with the long recognized right and obligation the FBI has to maintain the secrecy of its sources.⁽¹³⁾ Id.

According to the testimony of the present and former members of the FBI, including its former Acting Deputy Director Potts and former SAC Greenleaf, the supervisor of an informant's handler was generally the FBI's chief decisionmaker regarding informants. The SACs generally relied completely on the informant's handler and his supervisor for making all decisions and recommendations regarding the informant, including those for which the SAC was responsible under the Guidelines. In Potts' experience, FBI Headquarters never reversed a recommendation from a field office that an individual be used, or continued, as an informant. Moreover, there is no evidence that FBI Headquarters ever inquired about what promises had been made to informants generally or to Flemmi particularly. ßß II.6, II.16, III.1.D(3).

In these circumstances, Morris and Connolly had implied, actual authority to promise Flemmi that if he assisted the FBI's effort to bug 98 Prince Street, nothing intercepted there would be used against him.⁽¹⁴⁾ Therefore, it was impermissible for the government to present evidence intercepted at 98 Prince Street, or any information derived from that evidence, to the grand juries that indicted Flemmi. Id.

Similarly, Flemmi had an enforceable agreement, implied in fact from the promise concerning 98 Prince Street and the conduct of the government, that there would be no direct or indirect use against him of the intercepted evidence that he helped the FBI obtain at Vanessa's and 34 Guild Street.⁽¹⁵⁾ Therefore, it was improper for the government to present evidence intercepted at 34 Guild Street to the grand juries which indicted Flemmi. It would also have been improper to provide to those grand juries any evidence derived indirectly from the interceptions at 34 Guild Street or Vanessa's. Id.

The conclusion that Flemmi had received enforceable promises of immunity concerning the electronic surveillance conducted at 98 Prince Street, Vanessa's, and 34 Guild Street is not qualified by the fact that the FBI may not have been aware of all of his criminal activity. The Bureau did not generally ask an informant about his own criminal activity and did not expect him to divulge the details of it. The FBI was not misled, however, with regard to the nature of Flemmi and Bulger's crimes, including the fact that they were likely murderers. Indeed, on three occasions Morris attempted to obtain the assistance of reluctant individuals by sending them the message that they would be in danger of being murdered by Bulger if they did not cooperate with the FBI.⁽¹⁶⁾ ßß II.4, II.16, II.33, III.1.D(3).

In addition, the fact that Morris accepted $7000 from Bulger and Flemmi does not render the immunity promised to Flemmi concerning the electronic surveillance conducted at 98 Prince Street, Vanessa's, and 34 Guild Street unenforceable as violative of public policy. An agreement to provide immunity in exchange for information does not inherently, or typically, involve a cooperative violation of the law. No payments were made to Morris before the initial promise concerning 98 Prince Street. Nor were any later payments directly related to the promises at issue. ß III.1.D(3).

The court does not by any means suggest that the payments to Morris were proper or should be condoned. However, the FBI's bargain with Flemmi and Bulger was based on the very valuable assistance that they provided to the government. The payments that Bulger and Flemmi made to Morris were only incidental to a relationship that was important to the FBI for valid, professional reasons. Moreover, they were an expression of the sense of a friendship between the FBI and its sources which the Bureau deliberately created and cultivated. In the circumstances, it would be fundamentally unfair to deprive Flemmi of the immunity that he was legitimately promised, and on which he reasonably relied, because of the payments Morris initially sought and ultimately received. Id.

Accordingly, further hearings are necessary to determine if the indictment of Flemmi must be dismissed because it was impermissibly secured based upon the direct and possibly indirect use of information Flemmi provided pursuant to promises of immunity. In order to avert dismissal, the government will be required to prove that the information that it presented to the grand juries to obtain the indictments of Flemmi was not tainted by showing that the government had an independent, legitimate source for that evidence. If this burden is not borne, the case against Flemmi will have to be dismissed unless the government proves that its errors were harmless beyond a reasonable doubt. If the government is able to satisfy its heavy, but not necessarily insurmountable, burden of proving that the grand jury proceedings were not fatally infected, the court will have to decide if Due Process nevertheless requires dismissal in order to provide Flemmi fundamental fairness concerning the express and implied promises that he would not be prosecuted based on evidence intercepted at 98 Prince Street, Vanessa's, or 34 Guild Street, and also decide if Flemmi is entitled to dismissal as an exercise of the court's supervisory powers. ß III.1.D(4).

In connection with the further hearings, it is likely, but not certain, that it will be necessary for the government to produce to the defendants and the court the transcripts of the grand jury proceedings that resulted in the indictments of Flemmi so that the effect of evidence improperly presented can be assessed. As indicated earlier, issues to be addressed in those hearings will not be limited to the influence of the direct use of the evidence intercepted at 98 Prince Street and 34 Guild Street. Questions of the possible indirect use of that evidence, and of the evidence intercepted at Vanessa's, will also have to be considered. Those questions include whether the monitored conversations produced investigative leads that generated evidence which was presented to the grand juries, and whether the testimony of FBI witnesses who read the informant files of Flemmi, and perhaps Bulger, was shaped by information that the FBI acquired as a result of a promise of immunity. The court may also be required to decide whether the present prosecutors, who have now been exposed to tainted evidence, may participate in the preparation and conduct of Flemmi's trial if the case against him is not dismissed. Id.

Flemmi has moved to suppress the evidence resulting from the 1984-85 electronic surveillance targeting him and Bulger. The facts relating to this motion are set forth in ß II.17. Although the law is not clear as to the standard that should be applied in deciding Flemmi's motion to suppress, that uncertainty is not material. ß III.2.B-D. Under either of the arguably applicable standards, Flemmi's motion is meritorious. ß III.2.E.

Accordingly, although evidence intercepted as a result of 1984-85 electronic surveillance was not presented to the grand juries that indicted Flemmi, further proceedings are necessary to determine whether the case against him must be dismissed, in whole or in part, because evidence derived from that electronic surveillance was utilized to secure his indictment. Those proceedings will also permit the court to identify the evidence relating to the 1984-85 electronic surveillance which must be excluded if the case against Flemmi is tried. ß III.2.F. The factual and legal basis for the resolution of the motion to suppress the 1984-85 electronic surveillance is summarized as follows.

In 1984 and 1985, the DEA and the FBI were authorized by a series of court orders to engage jointly in electronic surveillance targeting Bulger and Flemmi. The investigation was initiated by the DEA. The agents involved preferred not to collaborate with the FBI, primarily because they, and the Assistant United States Attorney working with them, believed that Flemmi and Bulger were FBI informants and that the Bureau would compromise the confidentiality of the investigation to protect its sources. The Bureau preferred not to participate because it viewed the endeavor as doomed to fail and expected that, as with the Lancaster Street Garage investigation, the FBI would be blamed. The two agencies became reluctant collaborators, however, when it was recognized that the FBI's participation was essential if judicial authorization to conduct electronic surveillance was to be sought and received because most of the information to be relied upon in the applications to establish probable cause involved gambling and loansharking -- crimes that the FBI rather than the DEA had the federal responsibility to investigate. ßß II.17, III.2.E.

The applications for the court orders authorizing the electronic surveillance of Bulger, Flemmi, Kaufman, and others not only relied heavily on the evidence cited to establish that there was probable cause to believe that they were committing offenses within the investigatory jurisdiction of the FBI. They also clearly conveyed the impression that the FBI would utilize any evidence obtained to attempt to develop prosecutable cases concerning matters within its jurisdiction. The Bureau, however, had no intention of doing so. The FBI was well aware, from information provided by Bulger, Flemmi, and others, that Bulger and Flemmi were engaged in illegal gambling, loansharking, and extortion. The FBI considered such criminal conduct to be essential to maintaining the credibility necessary for Bulger and Flemmi to continue to obtain and provide vital information on the LCN and others. The FBI was committed to honoring its promise of confidentiality to Flemmi and Bulger by not disclosing that they were sources, explicitly or implicitly. Explaining to the DEA, the prosecutors, or the court that the Bureau was not interested in obtaining or using any intercepted evidence of their criminal conduct would have effectively confirmed they were informants. Id.

Ring, who had primary responsibility for the matter at the FBI, felt that Flemmi and Bulger had no immunity and would be "on their own" if the DEA could develop a prosecutable narcotics case against them based on the electronic surveillance. Armed with information provided by colleagues, however, Connolly contributed to assuring that the DEA's efforts would not succeed by alerting Bulger and Flemmi to the investigation generally and to the electronic surveillance particularly. Id.

Blinded by its determination not to confirm for the United States Attorney's Office or the DEA the accuracy of their understanding that Bulger and Flemmi were FBI informants, the FBI recklessly disregarded the government's legal obligation of candor to the court when applying for authority to conduct electronic surveillance in what was represented to be a joint investigation. At the same time, believing that Bulger and Flemmi were FBI informants, but accepting that the FBI would not confirm or discuss their status, the DEA and the United States Attorney's Office recklessly disregarded their legal obligation to seek from the FBI information that, if shared with them, would have resulted in the applications for electronic surveillance now at issue not being filed, let alone approved by the court. The DEA and United States Attorney's Office also acted with reckless disregard for the truth when they filed applications for warrants that in effect represented that electronic surveillance was necessary to obtain evidence that the FBI would use in a Title 18 investigation of Bulger, Flemmi, and others because the prosecutor who was the applicant and the DEA agent who was the affiant did not believe that the FBI would attempt to do so. Rather, they understood that Bulger and Flemmi were FBI informants who the Bureau wished to protect rather than prosecute. Id.

As a result, the applications for the 1984-1985 electronic surveillance targeting Bulger and Flemmi failed to include the "full and complete statement" describing the necessity for electronic surveillance that was required by 18 U.S.C. ß 2518(1)(c). More specifically, the applications should have included certain material facts about the targets, including the following. As informants Bulger and Flemmi had made statements about their illegal gambling and loansharking that the government now claims can be used as evidence against them. A review of their files would indicate to the FBI that they were tacitly authorized to engage in such activities. Therefore, the conduct which the government was seeking authority to utilize a wiretap to investigate may not have been criminal. In any event, the FBI did not intend to use any evidence generated by the electronic surveillance in an attempt to develop a prosecutable case against its sources or any of the other named targets, including Kaufman. Moreover, the FBI agent who was most knowledgeable believed that Bulger and Flemmi were not involved in narcotics crimes, but may have mistakenly given that impression while seeking information for the Bureau. No reasonable judge would have granted any request to target Bulger and Flemmi based on an application containing this information. Id.

In fact, if properly informed, the Assistant Attorney General would not have authorized the filing of the application for a warrant at all.⁽¹⁷⁾ The Department of Justice would not have allowed the submission to the court of an application that it knew was false and misleading. Nor would it have, over the FBI's inevitable objection, permitted disclosure to the court, and possibly to potential defendants, of the fact that Bulger and Flemmi were FBI informants. The testimony of DEA SAC Robert Stutman, among other things, indicates that if the DEA had been candidly consulted, it would have deferred to the FBI's interest in Bulger and Flemmi, and abandoned its investigation. Id.

If, however, an application had been filed seeking authority to intercept Bulger and Flemmi to obtain evidence of drug offenses only, the request concerning Bulger would have been obviously unmeritorious because there was no evidence to establish probable cause to believe that he would be intercepted discussing anything on Kaufman's telephone. In addition, the request concerning Flemmi would have been denied because there was not probable cause to believe that Flemmi would be discussing narcotics matters on Kaufman's telephone. Nor was there probable cause to believe that Kaufman would be discussing drug offenses with anyone.

In view of the foregoing, Flemmi's motion to suppress is meritorious regardless of whether it is decided pursuant the standard that the Supreme Court enunciated in United States v. Giordano, 416 U.S. 505, 515 (1974), for violations of central provisions of 18 U.S.C. ß 2510 et seq. ("Title III"), or pursuant to the judicially crafted exclusionary rule for violations of the Fourth Amendment established in Franks v. Delaware, 438 U.S. 154 (1978). In Franks, the Supreme Court held that when constitutionally required probable cause is in question in a case not involving Title III, a defendant must make two showings to obtain suppression based upon possible government misconduct: first, that the information at issue was known by the government to be false or was presented with reckless disregard for its truth; and second, that the information was material to the decision to issue the warrant. 438 U.S. at 156; ß III.2.C.

The Franks standard is easier for the government to meet than the standard applied by the Supreme Court in deciding the motion to suppress electronic surveillance evidence in Giordano. In Giordano, the Supreme Court held that:

Congress intended to require suppression where there is failure to satisfy any of those statutory requirements [of Title III] that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.

416 U.S. at 527. Such provisions were characterized as "central" to the Title III statutory scheme. Id. at 528. Section 2518(1)(c) concerning the necessity of electronic surveillance is a central provision of Title III. ßß III.2.C and E.

If a central provision of Title III is ignored or otherwise violated, suppression must be ordered unless the government proves that the purpose which the particular procedure was designed to accomplish has been satisfied in spite of the error. Id. Thus, in Giordano, the Supreme Court in effect found legislative intent to require suppression without regard to the reason for the violation if certain statutory provisions of Title III not rooted in the requirements of the Fourth Amendment are not satisfied. In contrast, under Franks, even a material error would not justify suppression unless it is proven that the government filed the false or misleading application for a warrant intentionally or with reckless disregard for its truth. Id.

Since Franks was decided, the Court of Appeals for the First Circuit has on several occasions, without analysis or explanation, employed the Franks standard to decide motions to suppress electronic surveillance evidence alleging failures to meet either the probable cause or necessity requirements of Title III or its Massachusetts counterpart. However, at other times, the First Circuit has stated or indicated that the judicially crafted exclusionary rule does not apply in Title III cases. Some, but not all, other courts have utilized the Franks test to decide attacks on warrants for electronic surveillance, including the necessity requirements of ß 2518(1)(c). Id.

In 1991, in United States v. Ferrara, 771 F. Supp. 1266, 1298-1319 (D. Mass. 1991), this court applied the Franks standard in denying the motion to suppress the tape-recording of the LCN induction ceremony that was intercepted at 34 Guild Street. This approach was predicated on the premise that the judicially crafted exclusionary rule is applicable to provisions of Title III that codify requirements of the Fourth Amendment and that ß 2518(1)(c) is such a provision. ß III.2.C.

This court continues to find that ß 2518(1)(c) is constitutional in origin. ß III.2.D. However, the court is now persuaded that the statutory exclusionary rule, as interpreted in Giordano and its progeny, rather than the Franks test should be applied when a central provision of Title III has been violated. ß III.2.C. Nevertheless, the court has analyzed the motion to suppress the 1984-85 electronic surveillance under both the Franks and Giordano standards.

Suppression of the 1984-85 electronic surveillance is required under Franks because the government filed a series of materially false and misleading applications with at least reckless disregard for the truth. Suppression is also necessary pursuant to Giordano because ß 2518(1)(c), a central provision of Title III, was violated and the purpose of that provision was not satisfied in spite of the violation. ß III.2.E.

As described earlier, further proceedings will be necessary to decide the implications of the meritorious motion to suppress the 1984-85 electronic surveillance for Flemmi's motion to dismiss and, if the case is not dismissed, to determine the evidence that must be excluded at Flemmi's trial. ß III.2.F.

Defendant Robert DeLuca was overheard and tape-recorded participating in the LCN induction ceremony conducted at 34 Guild Street on October 29, 1989. Prior to the Supreme Court's December 1, 1998 decision in Minnesota v. Carter, 525 U.S. 839, 119 S.Ct. 469 (1998), the government did not contend that DeLuca lacked standing to seek to suppress the evidence at 34 Guild Street. Thus, the evidentiary hearing was conducted on the premise that the court would have to decide the merits of DeLuca's motion to suppress that evidence.

The facts relating to the application for the warrant authorizing "roving" electronic surveillance which was used to bug 34 Guild Street were also relevant to the merits of Flemmi's motion to dismiss. As indicated earlier, Flemmi was one of the four sources relied upon in that application. In addition, the manner in which Ring and Connolly dealt with Mercurio concerning 34 Guild Street was sufficiently distinctive to be probative of Flemmi's claim that he was promised and provided protection as well.

The facts concerning the electronic surveillance of 34 Guild Street are summarized as follows. When Mercurio became an informant, with his consent, the FBI and the Department of Justice successfully sought to have his parole terminated early in part to permit him to be released on bail when he was indicted with other members of Russo faction of the LCN. ß II.29.

In the summer of 1989, Connolly and Ring learned from Mercurio and others that there would soon be an LCN induction ceremony. The FBI was very interested in intercepting that ceremony. Ring and Connolly expected that Mercurio would be vital to any effort to do so. ßß II.29, II.30, II.31.

At about the same time, reliable informants advised the FBI that Mercurio had set Salemme up to be shot. Under the Attorney General's Guidelines, this information should either have been provided by the Boston office of the FBI to state and local law enforcement officials, or have been submitted to officials at FBI Headquarters and to the Assistant Attorney General. If the Guidelines had been followed, the Assistant Attorney General would have had the responsibility of deciding whether Mercurio would be continued as a Top Echelon informant or closed and subject to investigation and prosecution. The Guidelines, however, were ignored and neither disclosure nor consultation occurred. Id.

In the fall of 1989, Mercurio was providing increasingly specific information concerning the forthcoming LCN induction ceremony. The FBI recognized that intercepting such a ceremony for the first time would be of immense value in future prosecutions and Congressional hearings. Ring very much wanted to obtain a warrant to bug that ceremony, but not at the risk of revealing Mercurio's status as an informant -- a risk that would have been created if the application for the warrant had mentioned either the ceremony or its location because so few members of the LCN would have had access to that information. ß II.30.

To resolve this dilemma, Ring wished to seek a warrant to conduct roving electronic surveillance of oral communications at multiple, unidentified locations. Title III requires that to obtain a warrant for a roving bug the government must submit to the court "a full and complete statement as to why [it] is not practical to specify the place to be bugged." 18 U.S.C. ß 2518(11)(a)(ii). If it is shown that it is impractical to specify where the roving authority will be employed, the place or places to be bugged need not be described in the application or the warrant. Id.

Ring engaged Strike Force Chief Diane Kottmyer, who knew that Mercurio was an informant because of the Strike Force's role in having his parole terminated early, and agent Walter Steffens, Jr. to prepare the necessary application and supporting affidavit. However, Ring consistently withheld from them certain information that he and Connolly were receiving from Mercurio. That information that would have provided Kottmyer and Steffens clear notice that it was false and misleading for the government to represent on the evening of October 27, 1989, that a warrant for a roving bug was necessary because it was impractical to specify the location to be bugged. In addition, Ring did not tell Kottmyer and Steffens that, contrary to the claim in the documents they were drafting, the FBI did not intend to utilize the warrant that it was seeking more than once. Id.

Because Ring and others were not candid with Kottmyer and Steffens, on October 27, 1989, a false and misleading application and affidavit were submitted in a successful effort to obtain a warrant for a roving bug. That warrant was used to intercept the LCN induction ceremony at 34 Guild Street on October 29, 1989. Id.

If an honest and accurate application had been filed, it would have revealed the following. At all times prior to October 29, 1989, the FBI, personified by Ring, knew that there would be at least one informant, Mercurio, at the ceremony. The FBI sought a warrant for a roving bug that could be used at multiple, unidentified locations, rather than authorization to bug 34 Guild Street alone, in order to protect the identity of its sources. The FBI had no intention of using that warrant to intercept conversations more than once. Rather, at the time the application was drafted the FBI intended to arrest the participants immediately after the ceremony. The FBI had substantial, corroborated, "rock solid" information that the ceremony would be held at 34 Guild Street several hours before Kottmyer and Steffens met with the judge to obtain the warrant authorizing roving surveillance based upon the representation that it was then "impractical" to identify the location to be bugged. Id.

The FBI made no effort to obtain the testimony of Mercurio about the induction ceremony. Nor did the FBI ask him to record the ceremony, which would have obviated the need for a court ordered bug. The FBI did not try to persuade Mercurio to cooperate in this fashion by threatening him with possible prosecution for his role in the Salemme shooting, as well as the Sagansky-Weinstein extortion and other criminal activity intercepted at Vanessa's. Instead, Ring and Connolly confirmed Mercurio's understanding that the Mafia induction ceremony had been bugged. In addition, they caused him to understand that his indictment was imminent and permitted him to flee, as they expected he would. Id.

As a result, the FBI was relieved of the recognized risk that the prosecution of Russo, Ferrara, Carrozza, and their codefendants would be jeopardized by the issues that would have been presented as a result of Mercurio's dual status as a codefendant and an FBI source concerning the induction ceremony, among other things. Mercurio's flight also masked for many years the violation of the Attorney General's Guidelines committed by Ring and his colleagues when they unilaterally decided to continue Mercurio as an informant despite what they believed to be his involvement in the Salemme shooting. Id.

The foregoing facts would present serious questions for the court to resolve if DeLuca had standing to litigate his motion to suppress the electronic surveillance conducted at 34 Guild Street. Among other things, it might make a difference whether Franks or Giordano establishes the applicable standard for deciding that motion. However, following the December 1, 1998 decision in Carter, the government argued for the first time that DeLuca lacks the standing necessary to maintain his motion to suppress. Upon careful consideration of the parties' supplemental submissions and oral arguments on this novel issue, the court finds that the government's position is correct. ß III.4.

In essence, Carter indicates that the bugging of the LCN induction ceremony did not violate DeLuca's Fourth Amendment rights because as a visitor to 34 Guild Street, who did not stay over night, and who engaged in only business discussions, he did not have an expectation of privacy that society would today deem to be justified. In addition, although the matter is not perfectly clear, the court finds that when Title III was enacted it was intended that evolving, contemporary conceptions of reasonable expectations of privacy be applied in deciding whether an intercepted conversation constitutes an "oral communication" as defined in 18 U.S.C. ß 2510(2). In view of the decision in Carter, the court is compelled to find that DeLuca did not at 34 Guild Street have a justified expectation that he would not be intercepted and, therefore, did not engage in what the statute defines as an "oral communication." Thus, DeLuca is not an "aggrieved person" as defined in ß 2510(11). Accordingly, he does not have standing, under ß 2518(10)(a), to seek suppression for an alleged violation of Title III concerning the electronic surveillance conducted at 34 Guild Street. Therefore, his motion to suppress must be denied.

As DeLuca's motion to suppress is being denied for lack of standing, it is not necessary for the court to address the merits of the issues he has sought to litigate. If this court's decision concerning standing is appealed and reversed, the Court of Appeals for the First Circuit, or the Supreme Court, may in the process also clarify whether the standards of Franks or Giordano should be employed in deciding DeLuca's motion to suppress. Therefore, it is most appropriate for this court to decline to analyze the merits of DeLuca's motion at this time. The court will issue the additional necessary findings of fact and conclusions of law if its decision concerning DeLuca's lack of standing is reviewed and this case is remanded.

In view of the foregoing, Flemmi's motion to dismiss based on a purported promise of immunity from prosecution is being denied. DeLuca's motion to suppress the electronic surveillance conducted at 34 Guild Street is also being denied.

Flemmi's motion to suppress the 1984-85 electronic surveillance is meritorious. He was also properly promised that if he assisted the FBI none of the evidence intercepted at 98 Prince Street, Vanessa's, or 34 Guild Street would be used against him, directly or indirectly. At least with regard to 98 Prince Street and 34 Guild Street, that agreement was violated.

Further proceedings are required to determine the remedies to which Flemmi is entitled as a result of his meritorious motions, including whether dismissal of the case against him is required. These proceedings will be conducted before the court enters any Order that may be appealable by the United States pursuant to 18 U.S.C. ßß 2510(10)(b) or 3731.

This case has been pending for almost five years. The defendants' motions to dismiss and to suppress have been the subject of intensive litigation for more than two years. Nevertheless, the merits of Flemmi's motion to dismiss cannot yet be decided. Thus, the present posture of this case may be disappointing to the parties and to the public, as it is, frankly, to the court. However, it should be recognized how this case has come to this point and the spirit in which it will proceed if it must be litigated to a conclusion.

Often the investigation of crime must be secret in order to be effective. This is particularly true when that investigation targets a dangerous and highly secretive organization like the LCN.

Informants are valuable, if not vital, assets in combatting serious crime. The government's ability to promise an informant confidentiality is often important to securing his cooperation and protecting his safety. In recognition of this, the FBI has historically been permitted to operate its sources in secret, even from officials of the Department of Justice.

However, as Attorney General Harlan Fiske Stone, who later became the Chief Justice of the United States, warned in 1924, when he established the FBI:

There is always the possibility that a secret police may become a menace to free government and free institutions because it carries with it the possibility of abuses of power which are not always quickly apprehended or understood.⁽¹⁸⁾

In the mid-1970's, it was discovered that such abuses by the FBI had occurred over many years. They included FBI efforts to "neutralize" Dr. Martin Luther King as an effective civil rights leader and "'dangerous and degrading tactics'" to disrupt lawful political activity of American citizens.⁽¹⁹⁾

As information about these abuses began to emerge, FBI Director Clarence Kelly realized that even he had been deceived by subordinates seeking to cover-up misconduct. "Admitting [in 1976] that some FBI activities had been 'clearly wrong and quite indefensible,' he declared that the Bureau should never again occupy the 'unique position that permitted improper activity without accountability.'"⁽²⁰⁾

Anticipating the wisdom of this observation, in 1975, Attorney General Edward H. Levi began the development of Guidelines for the FBI's use of informants, among other things. As indicated earlier, those Guidelines did not limit the FBI's authority to promise informants immunity informally and unilaterally. The Guidelines did, however, direct that the FBI not take any action to conceal a crime by one of its informants. If the FBI learned that one of its informants had committed a serious crime and did not wish to disclose that information to the appropriate law enforcement officials, the Bureau was directed to inform the Department of Justice. It was intended that the Department would then decide whether exceptional circumstances justified continuing the informant as a source or whether he should instead be closed and subject to investigation and prosecution. ß II.6.

The evidence in this case indicates that the Attorney General's Guidelines were routinely ignored with regard to Top Echelon informants generally. As the government acknowledges, it is clear that they were regularly disregarded concerning Flemmi and Bulger. ß II.6.

While the Department of Justice has historically respected the right of the FBI to maintain the secrecy of its sources from other agencies and federal prosecutors, courts have recognized their duty to compel disclosure of an informant's identity when it has been demonstrated that such information is relevant or helpful to the defense of an accused or essential to the fair determination of a case.⁽²¹⁾ In 1997, this court found that the defendants in the instant case had proved that they were entitled to know whether Bulger, Mercurio, and Donati were informants.⁽²²⁾ The court continues to believe that this conclusion was correct.

That decision, however, opened the proverbial "Pandora's Box." As a result, many serious issues emerged. In order to decide them, the court has made an earnest effort to find the true facts and to apply the law to those facts without fear or favor.⁽²³⁾

In 1940, Attorney General, and future Supreme Court Justice, Robert Jackson urged federal prosecutors, and by implication federal investigators, to "seek[] truth and not victims."⁽²⁴⁾ This, however, is a challenging task for those charged with investigating and prosecuting dangerous criminals who, by definition, do not themselves "play fair." Thus, in our democracy, we do not rely solely on the self-restraint of federal prosecutors and investigators to assure that crime is investigated lawfully.

Instead, we ultimately rely on judges, who take an oath to be impartial, to decide whether the government has violated the law and, if so, to determine whether a defendant's rights have been so irreparably injured that he is entitled to a remedy that may be as drastic as the dismissal of the case against him. Courts are not invested with this power and responsibility because we are a nation that is solicitous of criminals. Rather, this duty has been delegated by the people to the courts because we recognize that, as Justice Felix Frankfurter wrote, "[i]t is a fair summary of history

to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people."⁽²⁵⁾

We live in a nation which, above all, seeks justice. As reflected in the words of Louis D. Brandeis that are engraved in the entrance of the United States Courthouse in Boston, we believe that, "Justice is but Truth in Action."⁽²⁶⁾ This court will continue to strive to assure that this case is conducted with fidelity to this principle.

Forty-six witnesses testified over eighty days in the hearings on the motions to suppress and dismiss now being addressed. The court also received 276 exhibits and several stipulations. The evidence presented placed certain facts in question. The testimony of different witnesses conflicted on various points. In addition, the import of many documents, and the implications of the absence of records, was also often disputed. Thus, the court has been required to determine the credibility of many witnesses and much other evidence.

In doing so, the court has performed as juries are generally instructed with regard to determining credibility and finding the facts. See, e.g., First Circuit Pattern Jury Instructions - Criminal ßß 1.05, 1.06 (West 1998). The court has considered both the direct and circumstantial evidence. Id. ß 1.05. In view of the substantial evidence that members of the FBI engaged in improper, if not illegal, conduct and thus had a motive to tailor, by omission or distortion, the written records that they reasonably expected would never be seen by others with the knowledge necessary to dispute their accuracy or completeness, at times circumstantial evidence has been particularly important in resolving issues of credibility and in finding the facts.

In judging the believability of witnesses, the court has applied the conventional criteria. Id. ß 1.06. These include, importantly, the manner of the witness while testifying; whether the witness had a bias, prejudice, or other motive to lie; the consistency of the witness's testimony with his or her prior statements and other evidence; and the reasonableness of the witness's testimony when considered in the light of the credible other evidence. Id.

The court has also recognized that witnesses at times testify honestly and accurately about some matters, but not all matters. Id. Thus, in certain instances, the court has credited some but not all of a witness's testimony. For example, the court is persuaded that Flemmi testified truthfully in claiming that he was regularly tipped-off by the FBI regarding investigations and impending indictments. He was not, however, always candid in identifying the source of the information he received. Rather, he at times attributed information received from Connolly to other agents of the FBI in an evident effort to protect Connolly and to strengthen his own claim to an enforceable promise of immunity from prosecution.

Applying the foregoing principles, the court finds the following facts have been proven by a preponderance of the credible evidence.⁽²⁹⁾

In the early 1960's, Flemmi began exchanging information with the FBI. Ex. 31, 3. In November 1965, FBI Special Agent H. Paul Rico targeted Flemmi for development as a Top Echelon informant -- the highest status a source can achieve in the FBI. Ex. 20. At that time, a Top Echelon informant was defined as an individual who "could provide a continuous flow of quality criminal intelligence information regarding the leaders of organized crime." Jan. 9, 1998 Tr. at 39 (Under Seal).

In 1965, Flemmi was involved in a major gang war among several criminal groups in Boston. Various of the warring factions were led by Flemmi, Howard Winter, Thomas Callahan, and Joseph Barboza. Ex. 20. The gang war had already resulted in several murders. Ex. 20; Flemmi Aug. 25, 1998 Tr. at 26. Flemmi understood that he was in danger of being killed. Id.; Flemmi Aug. 25, 1998 Tr. at 26-28.

Flemmi is Italian-American. In the 1960's he had an ambivalent relationship with the LCN, at different times viewing its members as enemies and allies. Ex. 21. Flemmi's association with the LCN was initially linked to his long partnership with Francis Salemme, who was, evidently, unequivocal in his enthusiasm for the LCN. Flemmi and Salemme were particularly close to Ilario Zaninno, also known as Larry Baione, a Boston member of the Patriarca Family of the LCN. Id.

In November 1965, Flemmi provided Rico with valuable information about the possibility that Baione would become actively involved in the ongoing gang war, as well as intelligence about past and potential murders. Ex. 20. In Rico's view, if Flemmi survived the gang war, he would become "a very influential individual in the Boston criminal element" and "be in a position to furnish information on LCN members in [the Boston] area." Ex. 20. For the next twenty-five years, the FBI provided considerable assistance to Flemmi which helped make both of these predictions prophetic.

Since the mid-1960's, the development of Top Echelon informants has been a very high priority for the FBI. The successful development of informants generally, and therefore Top Echelon Informants particularly, has also been regarded as an important achievement for an FBI agent, with the potential to affect significantly the progress of that agent's career. Morris Apr. 29, 1998 Tr. at 44-45 See also Ex. 274 (Under Seal), FBI Manual of Instructions (hereinafter "Manual") ß 137-2(3) (4-2-79). Thus, agents have been ambitious to develop Top Echelon informants.

The urgency and importance of developing Top Echelon informants in the mid-1960's was particularly pronounced because of the then recent metamorphosis of the FBI's attitude toward Organized Crime during Robert Kennedy's tenure as Attorney General, from 1961 to 1964. More specifically:

When Kennedy arrived, [FBI Director J. Edgar] Hoover did not believe there was such a thing as a national crime syndicate. In 1962 he stated that "no single individual or coalition of racketeers dominates organized crime across the nation." When Kennedy left, Hoover was taking credit for the discovery of La Cosa Nostra. In September of 1963, he wrote in the FBI's Law Enforcement Bulletin that the sensational [Joseph] Valachi disclosures [concerning the LCN] merely "corroborated and embellished the facts developed by the FBI as early as 1961 which disclosed the makeup of the gangland hordes." "At first it was like pulling teeth to get the Bureau to enter these areas," recall[ed] a Kennedy assistant, "but by 1963 all that had changed."

Rico was an agent who enthusiastically embraced the FBI's new crusade against the LCN. As part of his effort to make Flemmi an asset in that campaign, Rico made Flemmi a clear and customary promise. Rico promised that he would not tell anyone outside the FBI that Flemmi was an informant, and would only disclose that fact to those within the FBI who Rico felt had a need to know it. Rico Jan. 14, 1998 Tr. at 155-59. Rico made this promise to all of his informants. Id. at 158-59. To Rico, this promise was "sacred." Id. at 156. The promise was to him the "heart" of the agreement between the FBI and its informants. Id. at 63-64. Rico's view that an individual's status as an informant should virtually never be disclosed to anyone outside the FBI was, and remains, a sacred article of faith within the FBI. See, e.g., Morris Apr. 24, 1998 Tr. at 130; Gianturco Jan. 20, 1998 Tr. at 131; Darcy Sept. 28, 1998 Tr. at 24.

To Rico, the promise of confidentiality meant, among other things, that information provided by an informant would not be used against him, at least directly, because to do so would necessarily disclose that the individual had been cooperating with the FBI. Rico Jan. 14, 1998 Tr. at 157-58. In fact, Rico understood that, as a matter of law, such statements could not be used against Flemmi or any other informant because no Miranda warnings had preceded them. Rico Jan. 13, 1998 Tr. at 126.

Rico consistently honored his promise of confidentiality to Flemmi, among others. Information from informants is recorded on an FBI Form 209 (a "209"). Ex. 274 (Under Seal), Manual ß 108(F)(5) (2-15-65); Ring June 15, 1998 Tr. at 59-60. Rico never disclosed information provided by an informant, or any of a source's 209s, to a prosecutor, either to prompt an investigation of the informant or to strengthen a prosecution of him. Rico Jan. 14, 1998 Tr. at 158. For example, when Flemmi told him that he had badly beaten Peter Fiumara in connection with an illegal debt, Rico did not share this information with any prosecutor, agent, or agency that might have investigated Flemmi. Rico Jan. 13, 1998 Tr. at 21-22. As a result of this practice, even after Flemmi was charged with the attempted murder of John Fitzgerald, Rico did not give the prosecutor, his good friend District Attorney John Droney, the statements Flemmi had made to Rico relating to that matter. As far as Rico was concerned, the promise of confidentiality made to Flemmi or any other informant would endure even if Rico learned that the informant had broken the law. Rico Jan. 14, 1998 Tr. at 159.

While FBI agents have long routinely promised sources confidentiality, Rico did not rely on this assurance alone to cultivate informants. Rico characterized his approach to developing informants as "unique." Rico Jan. 13, 1998 Tr. at 119-20. This case demonstrates that while his methods were unorthodox, they were not singular. In any event, as Rico testified, he "did not always conform 100%" to what the FBI policies and procedures required. Rico Jan. 14, 1998 Tr. at 143.

Using his personal style, Rico sought to realize Flemmi's potential as a source by not treating him like a criminal who should be used with caution to obtain valuable information. Rather, Rico created a sense that he and Flemmi were allies in a common cause, primarily a war against the LCN. This is a sense that Rico's successors as Flemmi's "handlers" successfully sought to perpetuate and strengthen. Morris Apr. 22, 1998 Tr. at 15. Significantly, by word and deed, and with increasing clarity over time, Rico promised Flemmi more than confidentiality. Flemmi Aug. 20, 1998 Tr. at 22-26, Aug. 25, 1998 Tr. at 22-23, Aug. 24, 1998 Tr. at 88-89, 140-43. Rico promised Flemmi "protection," id., and he honored that promise. Flemmi was receptive to the alliance with the FBI that Rico proposed. The arrangement offered him an opportunity to use the FBI to disable his enemies, enhance his safety, and, with the competition diminished and the protection of the FBI, make his own criminal activities more profitable. Flemmi Aug. 25, 1998 Tr. at 25-34.

From 1965 to 1967, Rico found his relationship with Flemmi to be productive. In that period Flemmi provided information which Rico regarded as reliable and valuable. Rico Jan. 13, 1998 Tr. at 58; Exs. 214, 215, 222, 245. For example, Flemmi reported that Stevie Hughes "had been marked for a hit." Exs. 26, 218, 222. Soon after, Hughes was murdered. Ex. 26.

More importantly, Flemmi proved to be able to give Rico what he most wanted -- reliable information concerning the leaders of the LCN in New England. Flemmi regularly gave Rico information regarding Raymond L.S. Patriarca, the Boss of the New England Family of the LCN, and Baione. See, e.g., Exs. 245, 214. Flemmi reported, among other things, that Edward "Wimpy" Bennett had told Patriarca that he would remain neutral in a violent feud between the Patriarca Family and Barboza's crew. Ex. 245. As reflected in a 209 rated "Excellent" by Rico, on February 2, 1967, Flemmi reported on a meeting that he had with Baione at which they agreed to settle any disagreements they might have peacefully, and at which Baione made statements indicating that Baione was responsible for the recent murder of Wimpy Bennett. Ex. 214. Beginning with the Third Superceding Indictment (the "3SI") in this case, Flemmi and Salemme have been charged with murdering Wimpy Bennett as part of their alleged pattern of racketeering activity. See 3SI, Racketeering Act ("RA") 21.⁽³⁰⁾

Flemmi's report that Baione made statements indicating that he was responsible for Wimpy Bennett's murder may be an early instance of a pattern of false statements placed in Flemmi's informant file to divert attention from his crimes and/or FBI misconduct. For example, as discussed in ß II.14, infra, in 1982, Morris caused Connolly to tell Flemmi and Bulger that Brian Halloran was providing the FBI information that implicated them in the murder of Roger Wheeler. Halloran was murdered soon after. Morris believed Bulger and Flemmi were responsible. When Halloran was murdered, Connolly prepared a 209 stating that Flemmi had reported that "the wise guys in Charlestown" had heard that Halloran was cooperating with the Massachusetts State Police and, therefore, had a motive to murder him. Ex. 225. Similarly, shortly before John Callahan, another associate of Bulger and Flemmi implicated in the Wheeler investigation, was murdered in Miami in 1983, Connolly prepared a 209 stating that Flemmi had reported that Callahan was trying to avoid a "very bad" Cuban group. Ex. 226. As explained infra, Flemmi and Bulger remain suspects in the still open Wheeler, Halloran, and Callahan murder investigations.

In any event, on February 8, 1967, six days after Flemmi provided information indicating that Baione was responsible for Bennett's death, Rico designated Flemmi a Top Echelon informant. Ex. 21. In doing so, Rico vouched for Flemmi's reliability, stating that:

Informant has furnished information that has proven through investigation or through other sources to be true, and there is no information provided by the informant that has proven to be false.

Through informants of this office, it has been established that this individual enjoys a reputation of being a very capable individual and that he will now be the leader of the group formerly headed by Edward "Wimpy" Bennett, who according to informants, had been murdered and buried around 1/19/67.

Informant also has been engaged in bookmaking, shylocking, robberies, and is suspect of possibly being involved in gangland slayings.

The record does not reflect what information Rico had from other sources about Flemmi's possible participation in murders. Flemmi would have been circumspect about reporting on his own involvement in murder. Moreover, Rico had an incentive not to document accurately or completely information about Flemmi's possible involvement in serious crimes because he might lose the authority to utilize Flemmi as an informant if Rico's superiors decided that Flemmi deserved to be targeted for possible prosecution rather than employed as a source. However, a glimpse of Rico's reason at least to suspect that Flemmi was involved in murder can be gleaned from the records of Flemmi's own statements. For example, as Rico wrote to the Director of the FBI:

[Flemmi] advised on 6/1/66 that Cornelius Hughes, who was murdered on 5/25/66 in Revere, Mass, had previously been around Dearborn Square, Roxbury, Mass, obviously in an effort to try to set him [Flemmi] up for a "hit" and that the fact that Connie is now deceased is not displeasing to him.

Informant was asked if he had any idea of who committed the murder, and he advised that "he had an excellent idea who committed the murder" but it would be better if he did not say anything about the murder.

In any event, suspicions that Flemmi was a murderer did not deter Rico and the FBI from making him a Top Echelon informant and an ally in pursuing their highest priority, the LCN.⁽³¹⁾ As Rico explained it:

Efforts have been made to develop this informant, by the writer, since 11/3/65. The informant was originally furnishing information on LCN members whom he considered as his enemies. Since the death of Edward "Wimpy" Bennett, Raymond Patriarca has indicated friendship towards this informant, and Larry Baione has met with the informant as he has now been accepted as an ally of theirs.

In view of the informant's excellent reputation and his present friendship with the hierarchy of the LCN in this area, he eventually could be brought in as a member of this organization.

Thus, viewed as a potential member of the LCN, Flemmi became a Top Echelon informant. Rico was his "handler." Rico's partner, Dennis Condon, was designated Flemmi's alternate agent -- the person Flemmi was to contact if he could not reach Rico. Ex. 220; Condon May 5, 1998 Tr. at 31. Flemmi, however, was never told that he was either open or closed administratively as an informant in the files of the FBI. Flemmi Aug. 20, 1998 Tr. at 32-33; Morris Apr. 28, 1998 Tr. at 23, Apr. 30, 1998 Tr. at 72; Quinn Aug. 19, 1998 Tr. at 112-13. Nor did Flemmi know that the FBI was documenting some of the information that he was providing. Flemmi Aug. 27, 1998 Tr. at 56; Morris Apr. 21, 1998 Tr. at 34.

Flemmi quickly validated his perceived potential to provide valuable information concerning the highest levels of the LCN. Within weeks of becoming a Top Echelon informant, he reported on a recent meeting that he and Salemme had with Patriarca in which Patriarca indicated an interest in making Flemmi a member of the LCN. Ex. 215.

For the next two years, Flemmi provided Rico with a steady flow of information concerning the hierarchy of the LCN in which Rico was very interested. Rico Jan. 13, 1998 Tr. at 70. Flemmi's information included, among other things, reports concerning Patriarca, Baione, Gennaro Angiulo, a leader of the LCN in Boston, and Salemme, which Rico regularly rated either very good or excellent. Id. at 67-70. See also Exs. 23, 24, 217, 219, 221. Flemmi also provided Rico with other valuable information, including intelligence on a threat to the life of the Middlesex County District Attorney Garrett Byrne. Rico Jan. 14, 1998 Tr. at 68; Ex. 27.

In addition, Flemmi was able to provide Rico with certain information and assistance that Rico especially prized. In 1966 and 1967, Rico and Condon were actively attempting to persuade Barboza to become a government witness in connection with an investigation they were conducting, with state officials, of the 1965 murder of Teddy Deegan and other matters. Rico Jan. 9, 1998 Tr. at 72, Jan. 13, 1998 Tr. at 80. They then properly perceived that Barboza had the potential to provide powerful testimony against leading members of the LCN. Rico Jan. 9, 1998 Tr. at 72-73. Rico and Condon were seeking information to use to persuade Barboza to become a witness. Rico Jan. 10, 1998 Tr. at 80. Flemmi provided Rico with such information and through his unwitting brother, Jimmy Flemmi, also provided a valuable means for Rico to communicate information to Barboza that he hoped would cause Barboza to be receptive to Rico's effort to recruit him. Id. at 79-83. For example, Flemmi told Rico about Patriarca's plans to kill some of Barboza's associates and used his brother to convey that information to Barboza. Ex. 245. Thus, Flemmi materially assisted the FBI's successful effort to develop Barboza as a witness. Id.

After Barboza agreed to become a government witness, Flemmi's links to the LCN became even more valuable to Rico. Flemmi reported that Patriarca and his colleagues realized that Barboza had become a "rat." Ex. 237 (209 dated 6/27/67). Flemmi reported that Patriarca had embarked on an aggressive effort to determine what Barboza was telling the government and was seeking to diminish the effectiveness of Barboza's anticipated testimony, in part by murdering potential witnesses who might corroborate Barboza's claims and killing Barboza's lawyer, John Fitzgerald. Exs. 23, 34, 219, 221, 237 (209s dated 6/27/67, 7/19/67, 9/1/67, 11/13/67, 12/8/67, 9/20/68). In 1967 and 1968, Flemmi constantly provided information on these efforts to Rico. Id.; Rico Jan. 13, 1998 Tr. at 81-85. This information enhanced the FBI's ability to utilize Barboza effectively.

Barboza's cooperation proved to be extremely valuable to the government. Rico Jan. 13, 1998 Tr. at 81. It resulted in a successful federal prosecution of Patriarca. Id. It also contributed to the conviction of several Patriarca associates for the murder of Teddy Deegan. Id.

By 1969, Barboza was the most important witness Rico had ever developed. Rico Jan. 9, 1998 Tr. at 87. Indeed, Barboza became nationally renowned as a witness against the LCN. Thus, by 1969, Flemmi had, as an informant, made a special contribution to the progress of the FBI's highest priority -- combating the LCN. Rico, however, never tried to convert Flemmi into a cooperating witness who would testify for the government. Rico Jan. 13, 1998 Tr. at 71-72.

Rather, Rico continually encouraged Flemmi to maintain and increase his contacts with the LCN, and report back to Rico. Rico Jan. 14, 1998 Tr. at 110; Flemmi Aug. 20, 1998 Tr. at 22-24, Aug. 24, 1998 Tr. at 61, 87. Having designated Flemmi as a Top Echelon informant in 1967, it was particularly important to Rico that Flemmi produce with regard to the LCN.

At the same time, Flemmi became concerned that his increasingly visible involvement with the LCN would enhance the risk that he would be prosecuted as a result of investigations being conducted by the many law enforcement agencies that were beginning to focus on him as part of their pursuit of the LCN, including the Massachusetts State Police and the Organized Crime Unit of the Boston Police Department. Ex. 31, 3-4; Flemmi Aug. 20, 1998 Tr. at 22-24, Aug. 24, 1998 Tr. at 87. Flemmi expressed his concern to Rico. Id.

Rico told Flemmi that he should not worry. Ex. 31, 4; Flemmi Aug. 20, 1998 Tr. at 23, Aug. 24, 1998 Tr. at 61, 88. More specifically, Rico told Flemmi that as long as Flemmi was furnishing him information on the LCN, Flemmi would be "protected." Flemmi Aug. 24, 1998 Tr. at 61, 88-89, 140, Aug. 25, 1998 Tr. at 8, 21, 22-23, 35, 94; Ex. 92, 2. Rico never used the word "immunity" in speaking to Flemmi. Flemmi Aug. 25, 1998 Tr. 22-23. In addition to promising "protection," however, Rico said, in various ways, that Flemmi would not be prosecuted for crimes he was committing while serving as an informant. Ex. 31, 3; Flemmi Aug. 20, 1998 Tr. at 23-24, Aug. 24, 1998 Tr. at 61, 141.

Both Flemmi and Rico knew that Flemmi had to be engaged in criminal activity to have access to, and credibility with, the LCN. Flemmi Aug. 24, 1998 Tr. at 61. Rico told Flemmi that this would not be a problem for Flemmi. Flemmi Aug. 24, 1998 Tr. at 162. Rico caused Flemmi to understand that the FBI would overlook Flemmi's criminal activity as long as he was providing information on the LCN. Flemmi Aug. 25, 1998 Tr. at 27-28.

Flemmi understood that his deal with the FBI would not prevent other agencies from investigating him, but Rico assured Flemmi that he could take care of any issues that might arise. Flemmi Aug. 25, 1998 Tr. at 32-33, 38. Thus, Flemmi expected, for example, that Rico would intercede with District Attorneys John Droney and Garrett Byrne, who Rico characterized as good friends, to prevent any state charges from being brought against him. Flemmi Aug. 24, 1998 Tr. at 165-66, Aug. 25, 1998 Tr. at 32-33, 35-36, 38, Aug. 27, 1998 Tr. at 61-62.

Although never discussed with Rico, Flemmi assumed that there was some limit to the protection that Rico and the FBI could provide him and, therefore, did not think that his status as an informant would protect him from being prosecuted if he committed a murder. Flemmi Aug. 27, 1998 Tr. at 140, Aug. 25, 1998 Tr. at 11-12, 21-24, 19. Rico led Flemmi to believe, however, that as long as Flemmi did not kill anyone, the FBI would protect him from prosecution for his criminal activity because of the valuable information Flemmi was providing on the LCN. Flemmi Aug. 25, 1998 Tr. 21-25.

Nevertheless, Flemmi became especially anxious in 1969, when he learned the IRS was investigating him as part of its intensified focus on the LCN. Exs. 25, 31; Flemmi, Aug. 20, 1998 Tr. at 24, Aug. 24, 1998 Tr. at 156-57. Flemmi discussed this problem with Rico. Id. Rico reiterated that Flemmi should not be concerned, he would not be prosecuted. Id. After that discussion, the IRS investigation "fizzled out." Flemmi Aug. 24, 1998 Tr. at 157. Flemmi inferred that Rico had, as promised, taken care of it. Id.; Flemmi Aug. 20, 1998 Tr. at 24.

The government now contends that from 1967 to 1969, Flemmi repeatedly engaged in murder while simultaneously serving as a Top Echelon informant for the FBI. More specifically, it is alleged that in addition to other crimes, in 1967 Flemmi participated in the murders of Wimpy Bennett, his brothers Walter and William Bennett, and Richard Grasso. See Fourth Superceding Indictment ("4SI") Count One, RAs 20-24. Although Rico and his FBI colleagues often worked closely with state investigators and prosecutors in organized crime matters, there is no evidence that they contributed to any investigation of Flemmi regarding the murders of the Bennetts or Grasso.

The present indictment also alleges that Flemmi and Salemme attempted to murder Barboza's lawyer, John Fitzgerald. 4SI, Count One, RA 20. Fitzgerald was crippled, but not killed, by a bomb that exploded as he started his car on January 30, 1968. On January 4, 1968, Flemmi had told Rico that Patriarca was incensed with Fitzgerald, who Patriarca had thought would be helpful in his effort to discredit Barboza. Ex. 221. The next day, Fitzgerald was warned that his life was in danger, but he declined the protection offered by the Suffolk County District Attorney's Office. Id. On January 25, 1968, Flemmi told Rico that Fitzgerald was still definitely going to be "whacked out." Ex. 34. Several days later, Fitzgerald's car exploded.

The Middlesex County District Attorney took primary responsibility for investigating the Fitzgerald bombing. The record does not reflect the role, if any, of Rico and the FBI in that effort. In 1968, Flemmi learned that he and Salemme were being investigated as possible participants in the attempted murder of Fitzgerald. Flemmi Aug. 24, 1998 Tr. at 137; Exs. 237, 22. Flemmi did not then flee.

In September 1969, however, Flemmi received a telephone call from Rico. Ex. 30, 6; Flemmi Aug. 20, 1998 Tr. at 27, Aug. 24, 1998 Tr. at 136. Rico told Flemmi that "indictments were coming down" and suggested that Flemmi and "his friend," Salemme, "leave town" promptly. Id. Flemmi followed Rico's advice. Id. He and Salemme fled together. A few days later, on September 11, 1969, Flemmi and Salemme were indicted in Middlesex County for the Fitzgerald bombing and in Suffolk County for the William Bennett murder as well. Id. From Flemmi's perspective, Rico had honored his promise to protect him. Flemmi Aug. 24, 1998 Tr. at 137. In doing so, Rico aided and abetted the unlawful flight of a fugitive, in violation of 18 U.S.C. ßß 1073 and 2.

In view of Flemmi's motive to lie about whether Rico told him that Flemmi was about to be indicted and encouraged him to flee, the court has considered this contention with particular care. However, in the context of all of the credible evidence directly relating to Rico's relationship with Flemmi, Rico's denial of Flemmi's claim is not persuasive.⁽³²⁾

The court notes that if Flemmi had been prosecuted in 1969 for the Fitzgerald bombing or the William Bennett murder, his role as an FBI informant might have been disclosed, and its legal implications might have been examined, three decades ago. Flemmi's successful flight to avoid that prosecution spared Rico and the FBI the risk of the embarrassment and controversy that disclosure of Flemmi's dual status as an FBI informant and an alleged murderer has recently entailed. Rico had reason to be concerned about embarrassment to the FBI. He was not permitted to open any informant unless he represented to FBI Headquarters that he was "convinced that the potential informant [could] be operated without danger of embarrassment to the Bureau." Ex. 274 (Under Seal), Manual ß 108 (9-13-63). By honoring his promise to protect Flemmi, Rico also promoted the possibility that Flemmi would in the future again become a valuable FBI informant.

The conclusion that Rico facilitated Flemmi's flight is reinforced by the fact that the instant case is not the first time that Rico has been found in a judicial proceeding to have engaged in criminal conduct, including perjury, with regard to one of his LCN informants. In Lerner v. Moran, 542 A.2d 1089 (R.I. 1988), Ex. 259, the Supreme Court of Rhode Island found, among other things, that Rico had urged one of his informants to lie under oath, in part to mask another of Rico's informant's role in a murder. Lerner, 542 A.2d at 1090. More specifically, the Rhode Island Court found that in the trial of Patriarca Family member Luigi Manocchio, Rico's informant, John Kelley:

admitted that during Lerner's trial [for murder], at the direction of Special Agent Rico, he testified falsely in certain matters relating to the factual circumstances surrounding the murders. For example, 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 Special Agent Rico had directed him not to mention the armorer's role in the murders. It appears that the armorer was a valuable FBI informant that Special Agent Rico wanted to keep on the streets.

Id. (emphasis added). The Rhode Island Supreme Court credited this testimony by Kelley. Id. at 1090-91.

The Court found that Rico had also 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. Thus, although arrived at independently, this court's conclusion concerning Rico's misconduct in 1969 regarding Flemmi is consistent with the misconduct in which the Supreme Court of Rhode Island found that Rico had engaged concerning other informants in 1970.

In any event, on September 15, 1969, Flemmi was closed administratively as an informant of the FBI and a federal fugitive warrant was issued for his arrest for his unlawful flight to avoid prosecution. Ex. 28. Flemmi was not told, however, that he had been administratively closed as a source. Flemmi Aug. 20, 1998 Tr. at 32-33.

Although the FBI was conducting an investigation to find Flemmi and Salemme, Flemmi stayed in contact with Rico. Ex. 30, 7; Flemmi Aug. 20, 1998 Tr. at 27-32. In about March 1970, Flemmi called Rico. Id. Flemmi identified himself as "Jack from South Boston." Id. This was the code name that Flemmi and Rico had previously devised to identify each other. Id.; Rico Jan. 13, 1998 Tr. at 6-7.

Flemmi told Rico that he had relocated. Flemmi Aug. 20, 1998 Tr. at 28-29. Rico did not ask him where he was and Flemmi did not tell him. Id. Flemmi inquired about what was happening and asked how long Rico expected it would take to work out his problems. Id. Rico said it would take considerable time, and that Flemmi should be patient and stay away from Boston. Id. FBI policy requires that all contacts with informants be recorded. See, e.g., Ex. 274 (Under Seal), Manual ß 108(F)(5) (2-15-65); Ring June 15, 1998 Tr. at 59-60. Rico, however, made no record of this conversation, or any other that he had with Flemmi while he was a fugitive. Nor did he tell the agents responsible for searching for Flemmi that he had spoken to him.

In April 1970, Rico was reassigned to the Miami, Florida office of the FBI. Rico Jan. 14, 1998 Tr. at 94. His partner, Condon, remained in Boston and participated in the fugitive investigation of Flemmi and Salemme. Ex. 260; Condon May 5, 1998 Tr. at 165-81. Condon had been Flemmi's alternate agent and knew that Flemmi had been an informant of Rico's. Condon May 5, 1998 Tr. at 168; Rico Jan. 14, 1998 Tr. at 176; Ex. 94.

The files of the FBI indicate that beginning in September 1969, Condon periodically asked at least one source if he had any information concerning the location of Flemmi and Salemme. Ex. 260. Usually, Condon's source(s) had no such information. Id. Beginning in November 1970, however, Condon received information that Flemmi and Salemme were in New York City, where they had been meeting with Manocchio, who was reportedly living in the vicinity of Central Park. Id. (209s of contacts on 11/23/70, 12/3/70, 12/23/70, 1/5/71). In October 1971, Condon was first advised that Flemmi and Salemme had separated. Id. (209 of 10/7/91). Eventually, these reports became more specific, indicating that Flemmi and Salemme had a falling out. Id. (209s of contacts on 2/10/72, 12/12 and 22/72). Reportedly, Flemmi "got sick of being ordered around by Salemme." Id. (209 of contacts on 10/9/73 and 10/26/73). Condon was told by one informant that if Flemmi and Salemme had serious problems with each other, Flemmi would be the "loser" because Salemme was closer to Baione. Id. (209 of contact on 2/10/72).

Although Condon was not in charge of the fugitive investigation, after receiving reports that Flemmi and Salemme had split up, he contacted a young FBI agent from South Boston who was working in New York, John Connolly, in an effort to "spark [them] up." Condon May 5, 1998 Tr. at 165. Connolly and Condon had been introduced by Edward Walsh, the Deputy Superintendent of the Boston Police Department, just as Connolly was joining the FBI. Id. at 163, 177-78. Although he was not working on the fugitive investigation, Connolly was receptive to Condon's call. Condon gave Connolly some general information and sent him several photographs. Condon May 5, 1998 Tr. at 165.

Connolly put the photographs to good use. In November 1972, Connolly arrested Salemme in New York City. Condon May 5, 1995 Tr. at 153. According to Condon, Connolly claimed that he was just "strolling down" the street at lunch time with several other agents, recognized Salemme, and arrested him. Id. at 171.

After Salemme's arrest, Condon continued to receive reports regarding the serious rift between Flemmi and Salemme. Ex. 260 (209 of contacts on 12/12 and 22/72, 1/18/73, 10/9 and 26/73). However, the recorded instances of Condon's efforts to get information about Flemmi's location diminished after Salemme's arrest. Ex. 260; Condon May 5, 1998 Tr. at 40-42.

Both Flemmi and Condon deny that Flemmi provided the FBI with information that led to Salemme's arrest. Flemmi Aug. 25, 1998 Tr. at 110; Condon May 5, 1998 Tr. at 172. In the context of all of the credible evidence in this case, it appears that this claim is not correct.

In any event, Salemme's arrest and subsequent prosecution for the Fitzgerald bombing proved to be beneficial to Flemmi. In 1970, Hugh Shields, a codefendant in the Bennett murder case, had been tried and acquitted. Ex. 253; Condon May 5, 1998 Tr. at 47. In 1973, Salemme was tried on the Fitzgerald bombing charge. Robert Daddieco, who was being protected by the government, was an important witness. May 1, 1998 Tr. at 67 (Stipulation). Daddeico testified that Salemme had participated in the Fitzgerald bombing. Daddeico claimed, however, that he had lied previously when he had said that Flemmi was also involved. Ex. 260. Salemme was convicted and, as a result, spent the next fifteen years in prison.

Flemmi monitored Salemme's trial from Canada. Ex. 260; Flemmi Aug. 25, 1998 Tr. at 80-81. He did not, however, return to Boston in 1973, when Daddieco exculpated him with regard to the Fitzgerald bombing.

Flemmi did stay in touch with Rico. Ex. 30, 7; Ex. 31, 7; Flemmi Aug. 20, 1998 Tr. at 29-30. In 1974, Flemmi called Rico at the Miami office of the FBI. Flemmi Aug. 20, 1998 Tr. at 29-30. Rico told Flemmi that he should return to Boston and his legal problems would be favorably resolved. Ex. 31, 7; Flemmi Aug. 20, 1998 Tr. at 31-32. Because of the seriousness of the charges against him, and the fact that Flemmi was living comfortably in Canada, Flemmi had some reservations about following Rico's advice. Id. Rico, however, assured Flemmi that when he returned he would be released on bail and all of the charges against him would be dismissed. Id. Once again, Rico's representations to Flemmi proved to be reliable.

As arranged by Rico, on May 6, 1974, Flemmi returned to Boston and met in Park Square two Boston Police Detectives, at least one of whom had worked with Condon. Id.; Condon May 5, 1998 Tr. at 145. Despite the fact that he had for five years been a fugitive from charges of murder and attempted murder, Flemmi was promptly released on bail by the Middlesex and Suffolk Superior Courts. Id. The federal flight charges were dismissed on the same day. Ex. 96. The Fitzgerald bombing charges against Flemmi were subsequently dismissed. Ex. 253; June 25, 1999 Government's Submission Pursuant to 6/21/99 Court Order. On November 13, 1974, the Bennett murder charges concerning Flemmi were dismissed, as they had been against Salemme previously. Ex. 253. Flemmi was a free man.

As of at least 1971, the FBI was trying to develop Bulger as an informant. Bulger had been incarcerated at Alcatraz, among other places, as a result of an investigation led by Rico. In 1971, the violent gang war was continuing. Ex. 97 (209 dated 7/21/71). Bulger was associated with Donald Kileen, a leader of a South Boston gang. Id. (209 dated 6/14/71). A close colleague of Bulger's, William O'Sullivan, was murdered. Id. (Memorandum dated 6/14/71). Bulger understood that he too had been targeted to be killed. Id.

Bulger later claimed that he was inclined to help the FBI because of the favorable treatment that his family had received from Rico when Bulger was in prison. Ex. 1. Bulger also felt that he shared with the FBI a hatred of the LCN. Id.

As indicated earlier, by 1971, Rico had been reassigned to Miami. His former partner Condon, however, sought to develop Bulger as an FBI informant. Ex. 97; Condon May 1, 1998 Tr. 76-79. This effort was endorsed by FBI Headquarters. Ex. 97 (Teletype dated 9/10/71); Condon May 1, 1998 Tr. at 78. Bulger provided some meaningful information concerning the continuing gang war, and additional information concerning Francis Salemme's brother Jack, among others. Id. After several months, however, Condon decided that Bulger was not being sufficiently productive and closed him administratively as a potential informant. Ex. 97 (209 dated 8/4/71); Condon May 1, 1998 Tr. at 77.

In 1972, John Morris was transferred to Boston and assigned to the Organized Crime squad on which Condon also served. Morris Apr. 21, 1998 Tr. at 12. Morris and Condon became friendly and, until about 1976, usually commuted to work together. Id. at 60. In about 1974, Connolly was transferred to Boston and also assigned to the Organized Crime squad. Condon May 1, 1998 Tr. at 47.

In 1974 and 1975, Morris and Connolly participated in a loansharking investigation in which the alleged victim was Peter Pallotta. Morris Apr. 23, 1998 Tr. at 49-51, 67-72. Bulger was a subject of the investigation. Id. At least seven individuals were prosecuted as a result of that investigation, including James Martorano and Brian Halloran. Id. at 49. Bulger was not indicted. Id. at 50-51.

In the course of the Pallotta investigation, Connolly decided to approach Bulger and attempt to make him an informant. Id. at 67-72. Connolly had known Bulger since they were both children growing up in South Boston. Id. at 70; Ex. 1. Bulger became a source for Connolly and was administratively designated an FBI informant on September 30, 1975. Ex. 68. Bulger later explained to FBI SAC Lawrence Sarhatt that he became an FBI informant in part because he had:

a close feeling towards SA John Connolly because they both grew up in the same neighborhood in Boston and had mutual childhood problems, as well as a deep hatred for La Cosa Nostra.

The written record of what the FBI knew about Bulger in 1974 is sparse and neither Bulger nor Connolly have testified in this case. At a minimum the FBI recognized that Bulger was deeply involved in a violent gang war. Ex. 97. The FBI had also been advised that Bulger was involved in extorting money from shylocks and bookmakers. Ex. 100. Morris' actions, however, make it vividly clear that the FBI was well-aware that Bulger was widely regarded as brutally violent when Connolly sought his cooperation.

More specifically, in 1974 or 1975, Morris hoped to obtain the testimony of Eddie Miani in a pending investigation. Morris Apr. 21, 1998 Tr. at 89, Apr. 27, 1998 Tr. at 52-53. In an effort to do so, Morris planted a fake bomb under Miani's car. Id. at 89-92; Ex. 30, 17. Morris then anonymously called the local police or fire department and alerted it to the "bomb." Id. After the device was disabled, Morris met with Miani. Id. In the hope of scaring him into cooperating, Morris told Miani that Bulger had planted the bomb, and offered Miani the protection of the FBI if he would become a cooperating witness. Id. Miani expressed fear for his life, but declined Morris' offer. Id. at 96. Morris testified that the Miani matter was one of three instances in which he unsuccessfully attempted to exploit Bulger's reputation for violence in an effort to get information for the FBI. Morris Apr. 28, 1998 Tr. at 97-98, Apr. 29, 1998 Tr. at 110, Apr. 30, 1998 Tr. at 98-101, 203-10.⁽³³⁾

On February 4, 1976, several months after being officially designated an informant, Bulger was up-graded to Top Echelon status because of his "demonstrated ability to produce information regarding the highest levels of organized crime . . . ." Ex. 68. As set forth below, that assessment may have been based on Bulger's new partnership with Flemmi, which was in meaningful measure forged by the FBI.

One of Bulger's earliest contributions to Connolly's efforts was to assist in reestablishing Flemmi's alliance with the FBI. When released after his return to Boston in 1974, Flemmi and two partners, George Kaufman and James Martorano, rented a garage in Somerville, Massachusetts from Howard Winter, the head of the Winter Hill Gang. Flemmi Aug. 25, 1998 Tr. at 101. Bulger, among other alleged criminals, frequented the garage. Id. Bulger and Flemmi had met socially once or twice in the 1960's, but did not really know each other previously. Id., Flemmi Sept. 1, 1998 Tr. at 203.

In the six months that the Bennett murder case remained pending, Flemmi generally tried to maintain a low profile. Id. at 115, 154. When all of the charges against him were dismissed in late 1974, he began to become more actively involved in criminal activity, particularly gambling and loansharking. Id. at 189. This led to the resumption of Flemmi's contacts with the LCN. Id. at 115.

In early 1975, Bulger asked Flemmi whether he would be willing to meet with Connolly. Flemmi Aug. 20, 1998 Tr. at 33-35, Aug. 25, 1998 Tr. at 95-96, 102-06. Bulger had previously told Flemmi that Connolly had approached him and wanted to talk. Flemmi Aug. 25, 1998 Tr. at 106. It was clear to Flemmi that Bulger knew at least generally of his prior relationship with the FBI. Id. He told Bulger that talking to the FBI "was a good idea." Id. Knowing that Bulger was aware of his prior relationship with the FBI and was talking with Connolly himself, Flemmi was sufficiently comfortable with Bulger's suggestion to agree to meet with Connolly. Id. at 102-06, Aug. 20, 1998 Tr. at 35-36.

Soon after, Flemmi met with Connolly and Condon at a coffee shop in Newton, Massachusetts for what Flemmi regarded as an "introductory" meeting. Flemmi Aug. 20, 1998 Tr. at 35-36. Rico was discussed. Id. At the meeting, Connolly articulated what Flemmi understood when he was invited -- that the FBI was interested in receiving information from him again. Flemmi, Aug. 25, 1998 Tr. at 183.

Following the Newton meeting Flemmi began passing information about the LCN to Connolly through Bulger. Id. at 115. Later in 1975, or in early 1976, Flemmi and Bulger had the first of a long series of meetings with Connolly, this one at Bulger's home. Id. at 158.

At that meeting, Connolly made clear to Flemmi that he wanted to reestablish the relationship that Rico had with him and regularly receive information from Flemmi about the LCN. Id. at 185. Having no prior experience with Connolly, Flemmi wanted to know what he would get in return for his cooperation. Id. Connolly assured Flemmi that he and Bulger would be "protected" for the criminal activity they engaged in while furnishing information to the FBI. Id. at 185-86, 202, 206-09; Flemmi Aug. 20, 1998 Tr. at 37-38. Connolly never used the term "immunity," but on various occasions reiterated that the FBI would "protect" Bulger and Flemmi. Flemmi Aug. 20, 1998 Tr. at 211.

Connolly, and his FBI colleagues, understood that only serious criminals would be in a position to provide meaningful information on the LCN. Flemmi Aug. 25, 1998 Tr. at 188-89; Morris Apr. 22, 1998 Tr. at 122-23, Apr. 27, 1998 Tr. at 18-19. Top Echelon informants were, by definition, members of an organized crime group who could furnish information on the highest levels of organized crime groups of national significance. Ex. 274 (Under Seal), Manual ß 108.L (1964-77); ß 137-12 (1978-80); ß 137-16 (1981-83); ß 137-15 (1974-87). See also Potts May 22, 1998 Tr. at 30-35; Blackburn May 22, 1998 Tr. at 30-35, 75-78. Such informants are difficult to develop. Thus, agents were instructed that, "[t]he success of the Top Echelon Criminal Informant Program depends on a dynamic and imaginative approach in developing quality sources who can assist the Bureau in meeting its investigative responsibilities." Ex. NN (Under Seal), Manual ß 108 pt. III(B) (1-12-77); ß 137-12(2) (4-12-79).

In the course of telling Connolly about the criminal activities of others, directly and through Bulger, Flemmi initially referred to his own illegal gambling and loansharking activities. Id. at 153, 188-89. From the outset, and increasingly over time, however, Connolly was not under the illusion that gambling and loansharking were the only, or most dangerous, crimes in which Flemmi and Bulger were likely involved. Rather, as Connolly recently explained:

We knew what these guys were. They did not have a paper route when we first met them. All of them, Top Echelon Informants, are murderers. The government put me in business with murderers.

Oct. 23, 1998 Tr. at 43 (quoting R. Ranalli, "Agent hoped Bulger eluded feds," Boston Herald, Aug. 11, 1998, at 6.)⁽³⁴⁾

By February 1976, when Bulger was elevated to Top Echelon informant status, the FBI had been instrumental in the formation of what is now alleged to have been an enduring and formidable criminal partnership between Bulger and Flemmi. The FBI made Bulger and Flemmi a perfect match. By 1976, in Boston, Flemmi and Bulger uniquely shared an antipathy for the LCN, a desire to profit from its destruction, and -- most notably -- the promised protection of the FBI.

Connolly was reiterating and reaffirming Rico's promise of FBI protection to Flemmi at a time when the Attorney General of the United States, Edward H. Levi, was working to develop Guidelines relating to the FBI's handling of its informants. Those Guidelines were part of a larger effort by the Attorney General and others to establish standards and procedures aimed at ending a series of serious abuses by the FBI, which had long been masked by the secrecy in which the FBI historically operated.

A book published by the Police Foundation in 1979 described the situation during the Levi administration of the Department of Justice (1975-77) as follows:

Watergate unleashed a torrent of revelations about questionable FBI intelligence activities, going far beyond abuses tied to the Nixon Administration. In his first appearance before a congressional committee after taking office in 1975, Attorney General Edward H. Levi confirmed the existence of previously undisclosed files maintained by former Director J. Edgar Hoover and containing derogatory information on public figures. Levi also presented the results of an inquiry by outgoing Deputy Attorney General Laurence Silberman and the FBI Inspection Division into misuse of the Bureau to gather political intelligence for administrations of both parties and to discredit the FBI's critics.

In reaction to these disclosures, Congress and the legal profession began looking more closely at the FBI, particularly at its internal security operations. Select Committees of the House and Senate included FBI abuses in their investigations of intelligence activities, and the House Judiciary Committee asked the General Accounting Office (GAO) to review FBI domestic intelligence policies and procedures. The American Bar Association set up a Special Committee to Study Federal Law Enforcement Agencies. Within the Justice Department, Attorney General Levi established a committee to draw up guidelines for FBI investigations.

The FBI, under Director Clarence M. Kelley, worked with the Attorney General and with congressional investigators to assess what had gone wrong in the past and what should be done in the future. The new revelations were sometimes shocking, especially the details of FBI efforts to "neutralize" Dr. Martin Luther King, Jr., as an effective civil rights leader during the 1960s. Former top officials of the FBI and CIA had acted on the assumption that they could disregard the normal legal rights of domestic groups because their work was so important to the national security that they were not governed by legal and constitutional standards applying to the rest of the law enforcement community. They made this claim in defense of opening mail, breaking into homes and offices without a warrant, and using what the Senate Select Committee to Study Governmental Operations with respect to Intelligence Activities (the Church committee) found to be "dangerous and degrading tactics" to disrupt and discredit lawful domestic political activities of Americans.

Even after the congressional committees issued their reports and Attorney General Levi adopted his first FBI guidelines in 1976, Director Kelley discovered that some of his subordinates had "deceived" him by not revealing FBI break-ins that had taken place in 1972-1973. This information triggered still another inquiry -- a criminal investigation by the Justice Department leading to indictments of former FBI officials in 1977-1978. Director Kelley summed up the problems in a landmark address at Westminster College in May 1976. Admitting that some FBI activities had been "clearly wrong and quite indefensible," he declared that the Bureau should never again occupy the "unique position that permitted improper activity without accountability."

John T. Elliff, The Reform of FBI Intelligence Operations 5-6 (1974) (emphasis added).

As Director Kelley indicated, the ability of the FBI to act in secrecy, even from the Attorney General, and thus without any accountability, was a major reason that such abuses were possible. There are, of course, often legitimate reasons for confidentiality. Secrecy, however, also inherently entails risks that were foreseeable, and indeed foreseen, when the FBI was established.

The modern FBI was created in 1924, by Attorney General and future Chief Justice Harlan Fiske Stone, to succeed the corrupt Bureau of Investigation, which Stone characterized as "'lawless, maintaining many activities which were without any authority in federal statutes, and engaging in many practices which were brutal and tyrannical in the extreme.'" Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law 153 (1956) (quoting Stone to Jack Alexander, Sept. 21, 1937). On the day Stone appointed J. Edgar Hoover as the acting Director of the FBI, Stone warned of a danger that he anticipated. He said:

Id. at 153 (quoting N.Y. Times, May 10, 1924). The problems Levi confronted, and those disclosed by this case, demonstrate the wisdom of Stone's warning.

That warning, however, long went unheeded. The FBI is part of the Department of Justice and formally subject to oversight and direction by the Attorney General. See 28 U.S.C. ßß 503, 531-33. However, as Levi testified in 1975, even recognizing that "the Bureau must have considerable autonomy," there were "times . . . when the supervision [of the FBI] by Attorneys General ha[d] been sporadic, practically non-existent, or ineffective." Statement of Attorney General Edward H. Levi to the Senate Select Committee on Intelligence Activities (Dec. 11, 1975) at 6.

In March 1976, Levi issued Guidelines regulating and limiting the FBI's authority to conduct domestic security investigations and dealing with civil disorders. See Elliff, supra, at 203-09. The Attorney General also then published draft Guidelines addressing the relationship between the White House and the FBI. Id. at 210-14. On December 15, 1976, about a month before leaving office, the Attorney General issued a memorandum to the Director of the FBI that described basic standards and procedures for the FBI's use of informants in Domestic Security, Organized Crime, and Other Criminal Investigations. Id. at 215-19 (the "Levi Memorandum"). The Levi Memorandum was incorporated in the FBI's Manual of Instructions on January 12, 1977. See Ex. 274 (Under Seal), Manual ß 108 pt. IV at 13 (1-12-77).

The Guidelines for FBI informants established by the Levi Memorandum were intended, in part, to diminish the perceived need for legislation to regulate and restrict the FBI's use of informants and also to provide guidance if legislation was to be enacted. As Attorney General Levi testified in 1976:

I would like to [suggest] a few considerations that should be taken into account in deciding what statutory changes should be made to define more clearly the areas of the Bureau's jurisdiction and the means and methods which the Bureau is permitted to use in carrying out its assigned tasks.

First, there is a temptation to resort to having the courts make many difficult day-to-day decisions about investigations. When a Fourth Amendment search or seizure is involved, of course, recourse to a court for a judicial warrant is in most circumstances required. But the temptation is to extend the use of warrants into areas where warrants are not constitutionally required. For example, as you know it has been suggested that the FBI ought to obtain a warrant before using an informant. Extending the warrant requirement in this way would be a major step toward an alteration in the basic nature of the criminal justice system in America. It would be a step toward the inquisitorial system in which judges, and not members of the executive, actually control the investigation of crimes. This is the system used in some European countries and elsewhere, but our system of justice keeps the investigation and prosecution of crime separate from the adjudication of criminal charges. The separation is important to the neutrality of the judiciary, a neutrality which our system takes pains to protect.

In drafting statutory changes, it must be remembered that rigid directions governing every step in the investigative process could sacrifice the flexibility that is necessary if an investigative agency is to adapt to the diverse factual situations it must face. Rigid statutory provisions would invite litigation at every step in the investigative process. Such litigation could very well be used by clever individuals to frustrate legitimate law enforcement efforts without achieving the measure of control for which the statutes were enacted.

Testimony of the Honorable Edward H. Levi, Attorney General of the United States, Before the Subcommittee on Civil and Constitutional Rights, Committee on Judiciary, House of Representatives (Feb. 11, 1976) at 3-5 (emphasis added).

The Guidelines concerning informants described in the Levi Memorandum, among other things, contributed to keeping legislation from being enacted, and regulations from being promulgated, concerning the FBI's use of informants. In contrast to laws or regulations, those Guidelines did not impose any legally enforceable obligations on the FBI or create any rights that are legally enforceable by defendants. This fact was made explicit in a 1981 amendment to the Guidelines in which the Attorney General stated:

N. Reservation These guidelines on the use of informants and confidential sources are set forth solely for the purpose of internal Department of Justice guidance. They are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter, civil or criminal, nor do they place any limitations on otherwise lawful investigative and litigative prerogatives of the Department of Justice.

Ex. 274 (Under Seal), Manual ß 137-17(N)(1-12-81) (emphasis added). Thus, the Guidelines did not operate to remove from the FBI authority that it otherwise had to promise its informants immunity.

Prior to the issuance of the Levi Memorandum, the Department of Justice did not have any institutionalized role in the FBI's use of informants. It appears, however, that the FBI occasionally sought legal advice from the Department of Justice on issues relating to them. For example, from at least 1961 until the issuance of the Levi Memorandum the FBI's Manual of Instructions stated that:

On 7-10-52 the Department furnished an opinion regarding the question whether an informant could be prosecuted for technically violating the law while attempting to obtain evidence regarding a Federal violation. The Department stated ". . . If the intent throughout was to assist the government agents in the enforcement of the law, and not to violate or to 'cover-up' for a violation of the law, it is not believed a case for prosecution could be made against such an informer . . . ."

The procedures to be followed by informers working under the supervision of your agents in the aid of enforcing the statutes coming within your jurisdiction largely rests upon your sound discretion . . . . It is not believed that an informer would be otherwise immune from prosecution for actions which would subject a Federal enforcement officer to prosecution.

Id. ß 108(K) (10-13-61) (emphasis added). Prior to the promulgation of the Levi Memorandum, the Manual of Instructions also included the direction that:

Care must be exercised in attempting to persuade individuals to act as informants to avoid any allegations of undue influence. An individual who is in custody and who offers to furnish information generally does so in the hope that he will receive some consideration in return. Bureau agents cannot promise any immunity or any reduction in sentence to a criminal who furnishes information and they must not put themselves in a situation where they might subsequently be accused of having done so.

Read together, these provisions, among other things, indicate that prior to the Levi Memorandum the procedures to be employed in dealing with informants were at all times in the sole discretion of the FBI. Consultation with Department of Justice attorneys was not required. Indeed, such consultation with regard to an identified individual would have been inconsistent with the historic direction to FBI agents that: "Constant care must be exercised to avoid any disclosure to anyone which might permit identification of a criminal informant or even cast suspicion on a criminal informant." Id. ß 108(I)(8) (12-11-59) (emphasis added). FBI agents were particularly advised, but not ordered, not to promise immunity or a reduction of sentence to "criminals" in custody whose cooperation was being sought. The FBI could, however, authorize informants who were not incarcerated to engage in what would otherwise be criminal activity without the involvement of Department of Justice attorneys. Id. ß 108(K) (10-13-61).

In addition, the FBI alone could decide if an informant should be targeted for investigation and possible prosecution rather than continued as a source. As a practical matter, if an FBI agent made and honored a promise to protect an informant, the Attorney General and Department of Justice prosecutors would, under then established standards and procedures, virtually never know. It was in this environment that Connolly, in late 1975 or early 1976, repeated the promise of protection to Flemmi that Rico had made and kept.

In the December 15, 1976 Levi Memorandum, the Attorney General described the risks -- realized in this case with regard to Bulger and Flemmi -- that the operation of informants involves. Levi wrote:

Courts have recognized that the government's use of informants is lawful and may often be essential to the effectiveness of properly authorized law enforcement investigations. However, the technique of using informants to assist in the investigation of criminal activity, since it may involve an element of deception and intrusion into the privacy of individuals or may require government cooperation with persons whose reliability and motivation may be open to question, should be carefully limited. Thus, while it is proper for the FBI to use informants in appropriate investigations, it is imperative that special care be taken not only to minimize their use but also to ensure that individual rights are not infringed and that the government itself does not become a violator of the law. Informants as such are not employees of the FBI, but the relationship of an informant to the FBI imposes a special responsibility upon the FBI when the informant engages in activity where he has received, or reasonably thinks he has received, encouragement or direction for that activity from the FBI.

Id. ß 108 pt. IV (1-12-77) (emphasis added). Among other things, this statement expresses the understanding of the Attorney General that it was the FBI alone that had the power, and therefore the responsibility, for making promises to informants. Thus, the Attorney General encouraged the Bureau to be careful in doing so.

The Levi Memorandum provided explicit factors to be weighed by the FBI in deciding whether to utilize someone as an informant. Id. at 14. These included "the potential value of the information he may be able to furnish in relation to the consideration he may be seeking from the government for his cooperation." Id. ß 108 pt. IV(A)(5) (1-22-77). The initial decision whether to utilize an individual as an informant, however, was left solely to the FBI.

The Levi Memorandum resulted in the deletion from the FBI Manual of the previously quoted ß 108(D)(4) concerning granting immunity to informants. The Levi Guidelines included certain unqualified prohibitions, such as the provision stating that, "No active military personnel can be developed as informants." Id. ß 108 pt. I(C)(5)(d) (1-12-77) (emphasis added). However, with regard to immunity, the new Guidelines stated, in language that endured at least until 1984, that:

Agents should not exercise undue influence in developing informants including promising immunity or reduction of sentence to criminals who furnish information.

Id. ß 108(I)(C)(6) (1-12-77); ß 137-3(6) (1-31-78); ß 137-3(6) (4-2-79); ß 137-5(4) (1-12-81); ß 137-5(4) (9-20-82); ß 137-5(4) (3-28-84) (emphasis added). This provision of the Guidelines did not state that FBI agents were not authorized to promise immunity to informants. Rather it only stated that they should not do so. Thus, the FBI was discouraged, but not prohibited from promising immunity to informants. This advice was expressly premised on the principle that any such promise would be a form of "undue influence."

If the Attorney General intended to restrict the authority of the FBI to promise an informant immunity, he could and would have said so plainly. For example, on January 10, 1975, the Attorney General issued an Order, available to members of the public, that expressly stated that "Investigative Agents and Attorneys are not Authorized to make representations to witnesses regarding funding, protection, or relocation." Department of Justice Order OBD 2110.2, P 7(d) (Jan. 10, 1975)(emphasis in original). The Order also provided that such promises could be made "by authorized representatives of the U.S. Marshals Service only." Id. This legal limitation on the authority of prosecutors and investigators was recognized and respected by the courts. Doe v. Civiletti, 635 F.2d 88, 90 (2d Cir. 1980) (holding that oral representations of a Strike Force attorney and DEA agent did not commit the Marshals Service with regard to placing someone in the Witness Protection Program). Similarly, the United States Attorneys Manual ("USAM") clearly states that "'No U.S. Attorney or [Assistant United States Attorney] has the authority to negotiate regarding an extradition or deportation order in connection with any case.'" San Pedro v. United States, 79 F.3d 1065, 1070 n.4 (11th Cir. 1996) (citing USAM ß 9-16.020).

In contrast, neither the Levi Guidelines nor their successors stated that FBI was not authorized to promise immunity. Nor were FBI agents directed to consult a Department of Justice attorney if a promise of immunity, or anything that might be construed as a promise of immunity, was being discussed.

Rather, as indicated earlier, from at least 1977 through 1980, agents were instructed that, "[t]he success of the Top Echelon informant program depends on a dynamic and imaginative approach in developing quality sources who can help the Bureau in meeting its investigatory responsibilities." Ex. NN (Under Seal), Manual ß 108 pt. III(B) (1-12-77); ß 137-12(2) (4-12-79). This direction could understandably have been interpreted by agents as permitting, if not encouraging, informal promises of immunity to potential informants.

Moreover, the Levi Guidelines indicated that the FBI could, without consulting any prosecutor, authorize what would otherwise be criminal conduct by an informant. More specifically, those Guidelines provided that:

The FBI shall instruct all informants it uses in . . . organized crime and other criminal investigations that in carrying out their assignments they shall not:

. . .(4) participate in criminal activities of persons under investigation, except insofar as the FBI determines that such participation is necessary to obtain information needed for purposes of federal prosecution.

Ex. 274 (Under Seal), Manual ß 108 pt. IV(B)(4) (emphasis added). Consistent with this the Attorney General stated that, "[t]he FBI may not use informants . . . for acts . . . which the FBI could not authorize for its undercover agents." Id. ß 108 pt. IV at 13 (emphasis added). Thus, in 1977, the Levi Memorandum expressly treated the issue of authorization as solely within the province of the FBI. As the instant case reflects, immunity and authorization are distinct, but closely related concepts.

In extending the traditional exclusion of Department of Justice attorneys from the process of providing promises to FBI informants in order to obtain information, the Levi Guidelines were consistent with the unaltered provision of the Manual which continued to state that:

Constant care should be exercised to avoid any disclosure to anyone which might result in the identification of an informant or cast suspicion upon an informant.

Id. ß 108 pt. I(C)(7) (emphasis added). Moreover, FBI agents were also instructed that:

At the earliest possible date all informants should be advised that the FBI will take all possible steps to maintain the full confidentiality of the informant's relationship with the FBI.

Although the Levi Memorandum and related Guidelines did not provide Department of Justice attorneys a role regarding the promises that might be made to an FBI informant, they did for the first time establish a role for the Department of Justice when it later appeared that an FBI informant may have committed a crime. Id. ß 108 pt. IV(C). First, the Attorney General directed that, "[u]nder no circumstances shall the FBI take any action to conceal a crime by one of its informants." Id. ß 108 pt. IV(C)(1). As described in this Memorandum, this direction was regularly disregarded concerning Flemmi and Bulger.

In addition, if the FBI learned that one of its informants had violated the law in furtherance of his assistance to the FBI, it was expected that "ordinarily" the FBI would promptly inform the appropriate law enforcement or prosecutive authorities, and the FBI would decide whether the continued use of the informant was justified. Id. ß 108 pt. IV(C)(2). If there were "exceptional" circumstances that caused the FBI to believe that such notification was "inadvisable," the FBI was required to inform the Department of Justice. Id. The Department would then decide whether law enforcement or prosecutive authorities should be notified and whether the FBI should continue to use the informant. Id. The Levi Memorandum also established the same procedures where the FBI had "knowledge" that one of its informants had committed a "serious" crime "unconnected with his FBI assignment." Id. ß 108 pt. IV(C)(3). As described in this Memorandum, these requirements too were regularly ignored with regard to Bulger and Flemmi.

The December 15, 1976 Memorandum and the related Guidelines incorporated in the FBI Manual on January 12, 1977, were intended to provide guidance to the FBI before Attorney General Levi left office. They contemplated the development of additional Guidelines.

The Levi Guidelines recognized that FBI informants may need to engage in criminal activity to obtain important information. See Ex. 274 (Under Seal), Manual ß 108 pt. I(D)(5) (1-12-77). In 1981, the Guidelines were revised to clarify this point and to provide more explicitly that informants may, if necessary and appropriate, be authorized to participate in a particular criminal act or "a specified group of otherwise criminal activities." Id. ß 137-17(F)(2) (1-12-81).

In addition, for the first time, Department of Justice officials were given a role in certain authorization decisions. More specifically, since 1981, "ordinary criminal activity" is to be authorized by an FBI field office supervisor or higher FBI official. Id. "Extraordinary criminal activity," including conduct involving a "significant risk of violence," is to be authorized by the SAC with the approval of the United States Attorney. Id. ß 137-17(F)(2) & (3) (1-12-81). The SAC is not, however, permitted to disclose the informant's identity to the United States Attorney. Id. ß 137-17(F)(3). Both FBI Headquarters and the Assistant Attorney General in charge of the Criminal Division are to be immediately informed of any authorization of extraordinary criminal activity, although, once again, the identity of the informant is not to be disclosed to the Assistant Attorney General. Id. All such authorizations are to be memorialized in writing. Id. ß 137-17(F)(2).

In 1981, the Guideline provisions regarding the instructions to be given to informants were also revised and implicitly indicated that informants should not be told that Department of Justice attorneys might play a role concerning them. Rather, the 1981 version of the Guidelines provided that each informant:

shall be advised that his relationship with the FBI will not protect him from arrest or prosecution for any violation of Federal, State, or local law, except where the FBI has determined pursuant to these guidelines that his association in specific activity, which otherwise would be criminal, is justified for law enforcement . . .

In 1981, the instructions to be given informants were also revised to state that they should be told that:

Informant's relationship with the FBI will not protect him /her from arrest or prosecution for any violation of Federal, state, or local law, except insofar as a field supervisor or SAC determines pursuant to appropriate Attorney General's Guidelines that the informant's criminal activity is justified.

Id. ß 137-3.4(1)(k) (1-12-81) (emphasis added). Thus, if the required warnings were given to an informant, he would reasonably understand that the FBI, without the involvement of any prosecutor, had the authority to decide if the informant would be protected from arrest and prosecution.

The Attorney General's Guidelines for the FBI's use of informants recognize that difficult decisions often must be made to strike a balance between effective law enforcement and providing benefits to criminals who are seeking to help themselves. The Guidelines in certain respects employ the principle that the weighing of these competing interests should be done by informed, but relatively disinterested officials, rather than by agents who have developed a personal relationship with the informant and have a vested interest in the outcome of the investigations to which the informant may be able to contribute. In this sense, although no judicial officer is involved, the Guidelines are similar in their approach to the warrant requirement of the Fourth Amendment, which requires that decisions concerning whether to authorize invasions of privacy be made by neutral magistrates rather than by those engaged in the competitive business of law enforcement, who do not have sufficient objectivity to be trusted to assess correctly the relative strength of the interests which must be weighed. See, e.g., Steagald v. United States, 451 U.S. 204, 212 (1981).

Attorney General Levi, however, recognized that there were limits to what formal standards and procedures alone could accomplish. As he testified:

No procedures are fail-safe against abuse. The best protection remains the quality and professionalism of the

Statement of the Honorable Edward H. Levi, Attorney General of the United States, Before the Senate Select Committee on Intelligence Activities (Dec. 11, 1975) at 13. This case demonstrates that the enduring potential for abuse that Levi perceived was quickly realized.

The evidence in this case indicates that at least with regard to Organized Crime matters, the Guidelines were ignored from the outset. There were no special seminars or major training concerning the Guidelines that was received by the witnesses in this case. Morris Apr. 22, 1998 Tr. at 28-33; Ring Sept. 22, 1998 Tr. at 43-44; Darcy Sept. 28, 1998 Tr. at 66-67. Morris apparently did not read the new informant Guidelines when they were issued. Morris Apr. 22, 1998 Tr. at 28-33. The informant Guidelines were discussed occasionally in more general training sessions, but the Organized Crime squad supervisors in Boston did not get answers to any questions that they had. Ring Sept. 22, 1998 Tr. at 44.

In general, Morris and his successor as the supervisor of the Organized Crime squad, Ring, viewed the Attorney General's Guidelines as inconsistent with the Top Echelon informant program and utterly unrealistic. Morris Apr. 22, 1998 Tr. at 122-24, Apr. 27, 1998 Tr. at 18-19; Ring Sept. 22, 1998 Tr. at 17. Thus, they felt the Guidelines did not apply to Organized Crime matters. Id. In their view, Top Echelon informants were, by definition, members of Organized Crime, who had to be involved in serious criminal activity. Morris Apr. 22, 1998 Tr. at 122-24, 128; Ring Sept. 22, 1998 Tr. at 17. Thus, Morris and Ring ignored provisions of the Attorney General's Guidelines that required authorization of criminal activity and reporting of unauthorized crimes committed by informants. Id.

The views of the supervisors of the Organized Crime squad were especially important. As described in this Memorandum, the SACs generally relied completely on the informant's handler and his supervisor for making decisions and recommendations for which the SACs were responsible under the Guidelines. Greenleaf Jan. 8, 1998 Tr. at 136-40. As Larry Potts, who served in many field FBI Offices and as Acting Deputy Director of the Bureau, put it, the supervisor of the handling agent was the "chief decisionmaker" regarding whether or not an individual should be continued as an informant. Potts May 22, 1998 Tr. at 7.

With regard to Flemmi and Bulger, at least, the requirements of the Guidelines were either ignored or treated as a bureaucratic nuisance. For example, Connolly filled out forms representing that he gave the required warnings to Flemmi that his relationship with the FBI would not protect him from arrest or prosecution unless a supervisor or SAC authorized his conduct pursuant to the Guidelines. Ex. 43; Gianturco Jan. 20, 1998 Tr. at 151-53. Those representations, however, were false. Flemmi Aug. 28, 1998 Tr. at 133.

The evidence also indicates that FBI Headquarters did not effectively supervise the implementation of the Guidelines. Potts could recall no instance in which a field office's recommendation that an individual be designated an informant was ever reversed. Potts May 22, 1998 Tr. at 6-8.

Moreover, while FBI Headquarters periodically audited the Boston office's informant files, no deficiencies with regard to the handling of Bulger or Flemmi were noted, despite the fact that those files were replete with information indicating that Bulger and Flemmi were involved in serious criminal activity that had not been authorized in writing, investigated by the FBI, reported to other law enforcement agencies, or reported to the Assistant Attorney General for the Criminal Division as required by the Guidelines. Indeed, when on the eve of the indictment of this case the FBI Principal Legal Advisor in Boston, John Michael Callahan, reviewed the Bulger and Flemmi files, he concluded that the FBI in Boston knew a great deal about their criminal activity and, in his opinion, had tacitly authorized at least some of it, including participation in illegal gambling and LCN policy making. Ex. 271. Any serious, earlier review of the files concerning information provided by Flemmi and Bulger in order to determine compliance with the Guidelines would have made clear that the requirements relating to authorization were being ignored. A proper review of the information about Bulger and Flemmi being provided by other informants, some of which is described in this Memorandum, would have made this conclusion even more clear.

Thus, at least with regard to Bulger and Flemmi, the FBI as an institution essentially disregarded the carefully calibrated standards and procedures that were developed by Attorney General Levi and his successors for continuing to use informants after the FBI had decided to employ them. The Department of Justice was apparently ignorant of, or indifferent to, these violations. There is no evidence that the Department of Justice did any review of its own to determine if the Guidelines were being followed. Rather, it seems to have relied solely on the good faith of the FBI.

As a result, it is not disputed that the Guidelines were not obeyed at least with regard to Flemmi and Bulger. As Assistant United States Attorney James Herbert stated:

We don't dispute . . . the Court's conclusion that the theory behind the Guidelines and the FBI's policies and procedures was to remove from the line agent the responsibility and the authority to make difficult decisions with respect to criminal informants . . . that is what they were designed to do and I don't think they were followed in connection with Mr. Bulger and Mr. Flemmi in the manner they were designed to.

Nov. 19, 1998 Tr. at 94. Herbert's remark to the court echoed an earlier public statement by United States Attorney Donald Stern, who said:

The FBI and attorney general informant guidelines, together with FBI administrative controls, are intended to provide the necessary checks and balances and to ensure that often difficult decisions are made at the appropriate level, based on complete and accurate information. While admittedly no system is foolproof, clearly those objectives were not met here, at least in certain critical respects.

Mitchell Zuckoff, "Bulger Case sparks probe in U.S. House," The Boston Globe, July 24, 1998, at A12.

As indicated earlier, Bulger was designated a Top Echelon informant on February 4, 1976, because of his "demonstrated ability to produce information regarding the highest levels of organized crime." Ex. 68. Flemmi was not officially reopened as a source until September 1980. Exs. 4, 82. Flemmi, however, continued to provide information to Connolly through Bulger and directly, often during meetings with Bulger and Connolly. In the circumstances, it is likely that Flemmi was, directly or indirectly, the source of some of the information attributed to Bulger in the FBI files for the periods that Bulger was open as an informant and Flemmi was not.

Some of the information Bulger and Flemmi provided in 1976 and 1977 was very valuable to the FBI's organized crime effort. Most notably, Barboza was murdered in February 1976. Ex. 5. In May 1976, Bulger reportedly informed Connolly that Jimmy Chalmas had set Barboza up and that the LCN intended to kill Chalmas to keep him quiet. Id. Connolly and Condon used this information to persuade Chalmas to admit his guilt and become a cooperating witness. Id.; Condon May 1, 1998 Tr. at 130. Connolly predicted that Chalmas' testimony would permit the FBI to obtain the conviction of Joseph Russo, who was regarded as "the #3 member of the LCN in the Boston Division." Ex. 5. Although Russo was for many years a fugitive, in 1992, after becoming the Consigliere of the Patriarca Family, he was sentenced by this court for participating in the Barboza murder, among other things. See United States v. Carrozza, 807 F. Supp. 156, 159 (D. Mass. 1992), aff'd, 4 F.3d 70 (1st Cir. 1993).

The FBI files also record Bulger as the source of other highly valued information. For example, FBI records indicated that in 1977, Bulger warned Connolly that Special Agent Joseph Butchka, who was operating undercover, had been identified and targeted to be killed. Ex. 5. The FBI acted to secure Butchka's safety and Bulger was reportedly successful in preventing the prospective hitmen from acting on their threat against him. Id.

Similarly, in 1978, Bulger told Connolly about the planned imminent murder of Nick Gianturco, the FBI undercover agent in an investigation of truck hijacking known as "Operation Lobster." Ex. 5; Morris Apr. 21, 1998 Tr. at 81-84; Gianturco Apr. 20, 1998 Tr. at 10-11. Once again, the FBI took effective steps to protect its undercover agent. Id. Bulger was later credited with helping save Gianturco's life. Ex. 5.

Connolly reciprocated by providing Bulger and Flemmi the protection that he had promised. For example, in 1977, Bulger was told to alert Flemmi that a cleaning company had been "wired," in an effort to obtain evidence of Flemmi's loansharking. Ex. 30, 9. As a result, Flemmi avoided that location and was not intercepted. Id.

Similarly, in 1977 or 1978, several officials of National Melotone, a vending machine company, tried to prompt an FBI investigation of Flemmi, Bulger, and their associates for using threats of violence to have National Melotone's vending machines replaced with machines from Flemmi and Bulger's National Vending Company. Flemmi Aug. 20, 1998 Tr. at 112-17; Ex. 30, 14. Rather than pursue this information, report it to local law enforcement, or advise anyone other than perhaps Morris, who had become the Chief of the Organized Crime squad in December 1977, Connolly successfully sought to protect Flemmi and Bulger. More specifically, Connolly claimed that if an investigation of their allegations was conducted the executives of National Melotone and their families would be in great danger, requiring their participation in the federal Witness Protection Program and relocation. Id. This advice exploited what Connolly knew were the frightening reputations for violence that Flemmi and Bulger had acquired. It dissuaded the representatives of National Melotone from pursuing their charges. Id. Connolly did, however, tell Bulger and Flemmi about the problem. Id. To alleviate the pressure for an investigation, Flemmi and Bulger gave National Melotone back the locations in dispute. Flemmi Aug. 20, 1998 Tr. at 114.

Similarly, in October 1977, FBI Special Agents Thomas Daly and Peter Kennedy, who were then members of the Organized Crime squad, interviewed Francis Green. Exs. 261 and 262. An informant had reported that Bulger and Flemmi were threatening Green. Ex. 163. Green confirmed that Bulger, Flemmi, and John Martorano had approached him about a debt he owed to Colony Finance. Id. Bulger told Green that the money Green had been lent belonged to him and his colleagues, and that if it was not promptly repaid "they would positively kill him, that they would cut his ears off and stuff them in his mouth, that they would gouge his eyes out." Ex. 261. Green told the agents he was unwilling to testify, however. Id.

It is common for victims of threats to be reluctant to testify initially. Usually, the FBI tries to overcome this reticence. Ring Sept. 22, 1998 Tr. at 34. As Ring put it: "Nobody wants to testify in these types of cases . . . . You don't just turn around and walk away. If we did that we'd never make an organized crime case." Id. Green later became an important government witness