Full opinion text
MEMORANDUM OF FINDINGS OF FACT AND CONCLUSIONS OF LAW LINDSAY, District Judge. TABLE OF CONTENTS I. Introduction.58 II. Findings of Background Facts. A. The FBI and Cosa Nostra. 1. National Priority of the Organized Crime Program. 2. Priorities of the Boston Division’s Organized Crime Program 3. Priorities of the C-3 Squad in the Boston Office. 4. Organization of the C-3 Squad. B. The FBI and Informants. 1. Importance of Informants. 2. Responsibility for Development and Operation of Informants a. Special Agent in Charge. b. Supervisory Special Agents. c. Special Agents. 3. Policies and Practices Regarding the Development and Operation of Informants. a. Suitability. b. Criminal Background and Ongoing Criminal Activity .. c. Operation of Informants. C. Recruitment and Use of Bulger and Flemmi as FBI Informants D. Involvement of Bulger and Flemmi in Violent Criminal Activity. 1. Loansharking and Bookmaking. 2. Reputation for Violence. 3. Specific Criminal Acts. a. Bennett Murder and Fitzgerald Bombing.'. b. Castucci Murder. c. “Race Fix” Case. d. Wheeler, Halloran, Donahue and Callahan Murders ... e. Drug Trafficking. E. Connolly Praised for Work with Informants. III. Findings of Fact Regarding the Murder of John McIntyre A. McIntyre’s Cooperation with Law Enforcement .98 B. Leak of McIntyre’s Identity.102 C. Murder of John McIntyre .102 IV. Conclusions of Law and Ultimate Findings of Fact.104 A. Duty.106 B. Breach.108 C. Scope of Employment.108 D. Proximate Cause.Ill E. Injury.112 F. Conclusion as to Liability.112 G. Damages.112 1. Proper Claimant Under Wrongful Death Statute.112 2. Economic Damages .116 3. Loss of Consortium .116 4. Funeral and Burial Expenses.117 5. Conscious Suffering.117 V. Conclusion.119 I. Introduction This case arises out of the decades-long association between the Boston office of the Federal Bureau of Investigation (“FBI”) and two of the most notorious criminals in Boston history — James J. Bul-ger (“Bulger”) and Stephen J. Flemmi (“Flemmi”), who were, at the times relevant to this case, members of a criminal organization known as the Winter Hill Gang. From the mid-1960s until 1990, Bulger and Flemmi periodically served as FBI informants, assisting the FBI in the prosecution of the Italian organized crime syndicate Cosa Nostra, also known as the Mafia. Since this relationship was brought to light in United States v. Salemme, 91 F.Supp.2d 141 (D.Mass.1999), rev’d in part, 225 F.3d 78 (1st Cir.2000), cert denied sub nom. Flemmi v. United States, 531 U.S. 1170, 121 S.Ct. 1137, 148 L.Ed.2d 1002 (2001), a number of civil suits have been filed against the United States and agents of the FBI by family members and personal representatives of persons allegedly murdered by Bulger and Flemmi while the two were serving as FBI informants. Most of these lawsuits have been assigned to me. The parties in the instant case seek damages from the United States and several individual defendants for the 1984 murder of John McIntyre (“McIntyre”), who was killed by Bulger and Flemmi after FBI agent John Connolly (“Connolly”) disclosed to them critical information that led to the discovery of McIntyre’s identity as a government informant. The plaintiffs here, Emily McIntyre and Christopher McIntyre, as co-administrators of the Estate of John L. McIntyre, have brought suit pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671, et seq., Chapter 229 of the Massachusetts General Laws, and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against Bulger and Flemmi and their criminal cohort, Kevin Weeks (“Weeks”); the United States of America; and eight former agents of the Boston office of the FBI, H. Paul Rico, John Morris, John J. Connolly, Roderick Kennedy, Robert Fitzpatrick, James Ring, James Greenleaf, and James Ahearn. Bulger and Flemmi have defaulted, see Notice of Default as to James Bulger, McIntyre v. United States, No. 01-10408 (D.Mass. Nov. 15, 2001); Notice of Default as to Stephen Flemmi, McIntyre v. United States, No. 01-10408 (D.Mass. Nov. 15, 2001), and a suggestion of death has been filed with respect to Rico, see Suggestion of Death, McIntyre v. United States, No. 01-10408 (D.Mass. Jan. 20, 2004). The case has proceeded against the remaining defendants. On May 23, 2006, with the consent of all parties, I bifurcated the trial of the plaintiffs’ claims against the United States from the trial of the plaintiffs’ claims against the individual defendants, see Order Granting Motions to Bifurcate, McIntyre v. United States, No. 01-10408 (D.Mass. May 23, 2006), and the plaintiffs’ claims against the United States proceeded to trial on June 5, 2006. The claims against the United States, enumerated in counts I through VI of the complaint, were brought pursuant to the FTCA, which provides, in substance, that the United States may be sued for money damages for personal injury or death caused by the negligent or otherwise wrongful acts or omissions of its employees while acting within the scope of their office or employment. See 28 U.S.C. § 1346(b). It is undisputed that McIntyre was murdered on November 30, 1984 by Bulger and Flemmi. The plaintiffs have alleged several theories of liability. First, they assert that Connolly, acting within the scope of his employment, leaked to Bulger and Flemmi McIntyre’s identity as an informant for law enforcement agencies investigating matters inimical to the interests of Bulger and Flemmi, and that McIntyre’s death was a foreseeable consequence of this act. Second, the plaintiffs claim that Connolly and other agents of the FBI protected Bulger and Flemmi from investigation, arrest, and prosecution in order to maintain them as informants, and that McIntyre was a foreseeable victim of these efforts. Third, the plaintiffs allege that several agents negligently supervised Connolly in that they knew or should have known that Connolly was leaking information to Bulger and Flemmi and protecting them from investigation, arrest, and prosecution; and that despite this knowledge, the supervisory agents took no corrective action, leading foresee-ably to the murder of McIntyre. The case against the United States was tried before me in an eighteen day non-jury trial. Thousands of pages of exhibits were introduced, and nine witnesses testified: Flemmi, convicted of Racketeering Influenced and Corrupt Organizations (“RICO”) violations in 2003; Weeks, convicted of RICO violations in 2000; former FBI agents Robert Fitzpatrick, Gerald Montanari, James Greenleaf, and James Ring; former Customs agent Philip Brady; plaintiff Emily McIntyre; and forensic economist Alan McCausland. Although the plaintiffs’ case as a whole presents several complex and difficult issues, this portion of the case is rather straightforward. As I will discuss in greater detail below, I find that the United States is liable to the plaintiffs, because Connolly, acting within the scope of his employment, disclosed information to Bul-ger and Flemmi sufficient for them to identify McIntyre as a government informant, and McIntyre’s death was a foreseeable consequence of that disclosure. This portion of the case is simplified, because it does not implicate the discretionary function exception to the FTCA. See 28 U.S.C. § 2680(a) (excepting from the liability of the United States any claim based on the exercise or failure to exercise a discretionary function or duty on the part of a federal agency or employee of the Government). It is undisputed that disclosing a government informant’s identity is not an act embraced within the discretion granted to agents of the FBI. Thus my only concerns, for present purposes, are whether Connolly’s disclosure breached a duty he owed to McIntyre that caused injury to McIntyre; and whether the breach occurred within the scope of Connolly’s employment. Because I have answered these questions in the affirmative, I need not address the plaintiffs’ other theories of liability. However, because the murder of McIntyre, accomplished with the assistance of an FBI agent-as shocking as that might appear-was not a singular event in the relationship between the FBI and Bul-ger and Flemmi, I will include additional findings that provide the context in which the murder occurred. Before I set out my findings of fact, I want to clarify their effect with respect to the related lawsuits. These findings do not bind the individual defendants in the second half of this case, as no final judgment will be entered before any second half is resolved. See Acevedo-Garcia v. Monroig, 351 F.3d 547, 560 (1st Cir.2003) (holding that since separate trials in bifurcated proceedings do not individually produce final judgments, collateral estoppel may not apply from one portion of the case to another). In addition, the defendants did not have an opportunity to litigate any issues during the trial of the first portion of the case. See Monarch Life Ins. Co. v. Ropes & Gray, 65 F.3d 973, 978 n. 8 (1st Cir.1995) (noting that a party invoking issue preclusion must demonstrate that “the party against whom issue preclusion will be applied had a fair opportunity to litigate the issue fully” (quoting Kyricopoulos v. Town of Orleans, 967 F.2d 14, 16 (1st Cir.1992))); see also Bilida v. McCleod, 211 F.3d 166, 170-71 (1st Cir.2000) (applying Rhode Island law to hold that individual police officer defendants to a § 1983 suit are not bound by adverse findings in the plaintiffs criminal case on the constitutionality of the search they conducted). These findings also do not bind the government in future cases, as nonmutual offensive collateral estoppel does not apply against the United States. United States v. Plat 20, Lot 17, 960 F.2d 200, 211 (1st Cir.1992) (citing United States v. Mendoza, 464 U.S. 154, 159-63, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984)). I am compelled to address one other matter with respect to the first half of the instant bifurcated case. In most circumstances, the bringing of a suit against the United States under the FTCA bars an additional suit against the individual employees arising out of the same subject matter. 28 U.S.C. § 2679(b)(1) (“The remedy against the United States provided by sections 1346(b) and 2672 of this title ... is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee.”). The FTCA provides an exception to this exclusivity for claims against individual defendants “brought for a violation of the Constitution of the United States.” 28 U.S.C. § 2679(b)(2)(A). This exception has allowed the prosecution of both the FTCA claim against the United States, addressed in these findings and conclusions, and the Bivens claims against the individual defendants, which have been bifurcated and presently are in pretrial proceedings. However, there is an additional limitation on parallel suits, provided by 28 U.S.C. § 2676. That provision instructs that “judgment in an action under section 1346(b) of this title shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.” 28 U.S.C. § 2676 (emphasis added). The judgment bar provision contains no exception for Bivens actions, and other courts consistently have interpreted it to apply to such claims. See, e.g., Harris v. United States, 422 F.3d 322, 333-34 (6th Cir.2005); Estate of Trentadue v. United States, 397 F.3d 840, 859 (10th Cir.2005); Arevalo v. Woods, 811 F.2d 487, 489-90 (9th Cir.1987). The present findings and conclusions do not invoke this bar. As I noted above, I will not enter judgment until the conclusion of the second portion of the case. I note that other courts have found the judgment bar applicable even where, as here, the FTCA and Bivens claims were brought as part of the same suit and the judgments were entered simultaneously. See Harris, 422 F.3d at 334 (collecting cases). The courts that have considered the matter have all held that a judgment for or against the United States bars further progress in Bivens actions against individual defendants, because the judgment bar was intended to preclude both multiple recoveries and multiple lawsuits. See Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir.2001); Hoosier Bancorp of Indiana, Inc. v. Rasmussen, 90 F.3d 180, 184-85 (7th Cir.1996); Gasho v. United States, 39 F.3d 1420, 1437 (9th Cir.1994). But see Hallock v. Bonner, 387 F.3d 147, 155 (2nd Cir.2004) (distinguishing a judgment dismissing an FTCA claim for lack of subject matter jurisdiction, on the ground that such a claim was never a properly filed FTCA claim, and therefore should not require the application of the § 2676 judgment bar), rev’d on other grounds sub nom Will v. Hallock, — U.S. —, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006). The only exception is one Ninth Circuit ruling that, where the claims were brought as part of the same suit, as here, the simultaneous entry of judgment for the United States on the FTCA claim did not bar recovery for the plaintiff on the Bivens claims. Kreines v. United States, 959 F.2d 834, 838 (9th Cir.1992). But see Harris, 422 F.3d at 335-36 (explicitly repudiating the Ninth Circuit’s holding in Kreines). There does not appear to be any First Circuit precedent on this question. Because this issue is not ripe, and has not been briefed, I do not express an opinion on its merits. I mention it only so that the parties may consider the issue in light of the present decision, as they contemplate how they will proceed with the remainder of this case. The odyssey now begins. II. Findings of Background Facts A. The FBI and Cosa Nostra 1. National Priority of the Organized Crime Program During the late 1970s and early 1980s, the stated national priority of the FBI’s Organized Crime Program was the take-down of Cosa Nostra. See Ex. 69, Memo from Director, FBI to Attorney General at 17, Apr. 23, 1980; Ex. 110, Memo from Connolly to SAC, Boston, Addendum of Supervisor Morris, Apr. 1, 1981. Cosa Nostra was perceived to be the most powerful organized crime group in the country, representing a greater threat than all other organized crime groups combined. See Ex. 69, at 17. Consequently, in 1980, the Director of the FBI himself instructed that the majority of resources in the Organized Crime Program should be expended and directed against Cosa Nostra. Ex. 69, at 17. The word was out, even in the criminal underworld, that the FBI had commenced a crusade against Cosa Nostra. As Flemmi put it at trial, “the FBI, as an institution” was arrayed against Cosa Nos-tra. Flemmi June 6, 2006 Tr. at 114. 2. Priorities of the Boston Division’s Organized Crime Program In accordance with the Director’s instructions, Cosa Nostra was the number-one priority of the Organized Crime Program in the Boston Division of the FBI (“Boston Division”) in the 1970s and early 1980s. See Ex. 110, Addendum of Supervisor Morris; Ex. 71, Airtel from SAC, Boston to Director, FBI at MCN055-1716 to -1717, Aug. 28, 1981. Consistent with directives from FBI Headquarters in Washington, the Organized Crime Program’s goal in the late 1970s and early 1980s was to take down the Boston branch (the “Boston branch”) of the larger New England Cosa Nostra Family headed by Raymond L.S. Patriarca of Providence, Rhode Island. See, e.g., Ring June 27, 2006 Tr. at 31-83. The Boston branch was headed by Gennaro Angiulo. See Ex. 71, at MCN055-1715; Flemmi June 6, 2006 Tr. at 118. Angiulo’s second-in-command was Illario Zannino, also known as Larry Baione. See Flemmi June 6, 2006 Tr. at 114, 117. After a series of arrests and some convictions of leaders of the Boston branch (see Section 11(A)(3), infra), an important goal of the Organized Crime Program in the Boston Division was to prevent the rise of a new Cosa Nostra leader to fill the leadership vacuum. See, e.g., Ex. 62, Memo from Ring to SAC, Boston at 1-2, Apr. 30, 1986; Fitzpatrick June 14, 2006 Tr. at 63-64; Ex. 59, Memo from Ring to SAC, Boston at MCN055-3646, Mar. 14,1983. 3. Priorities of the C-3 Squad in the Boston Office The Boston office of the FBI (“Boston Office”) was the largest office in the Boston Division; it consisted of a number of squads with different investigative responsibilities. The C-3 Squad worked solely on organized crime. See, e.g., Ex. 62, at 1. Although the C-3 Squad had investigative responsibility for a number of different criminal organizations, its number-one priority was always Cosa Nostra, and the Squad often had insufficient personnel to address any group other than Cosa Nos-tra. See Ring June 27, 2006 Tr. at 30; Ex. 71, at 3. During the early 1980s, the Squad focused exclusively on several operations to obtain and analyze Title III wiretaps and electronic surveillance of Cosa Nos-tra targets: “Bostar” was an operation to place a Title III intercept at 98 Prince Street, the headquarters of Gennaro Angi-ulo; and “Mandarin” was an operation to place a Title III intercept at 51 North Margin Street, the headquarters of Illario Zannino. See Ex. 71, at 3; Fitzpatrick June 12, 2006 Tr. at 61-65. These operations were ultimately successful, and led to the 1983 arrests and 1986 convictions of Angiulo, Zannino, and other Boston Cosa Nostra figures. See, e.g., Flemmi June 6, 2006 Tr. at 118-120; United States v. Zan- nino, 895 F.2d 1 (1st Cir.1990); United States v. Angiulo, 897 F.2d 1169 (1st Cir.1990). In July 1983, Cosa Nostra became the sole investigative responsibility of the C-3 Squad when responsibility for all other organized crime groups was shifted to the C-2 Squad. See Ring June 27, 2006 Tr. at 30-34; Ex. 61, Memo from Ring to SAC, Boston at 1, Jan. 6, 1984. The C-2 Squad previously had focused on several investigative areas, including labor law violations, civil rights violations, and interstate transportation of stolen motor vehicles. See Montanari June 21, 2006 Tr. at 80. In the 1970s and 1980s, the C-3 Squad was aware of the existence of other organized crime groups in Boston, including Winter Hill. However, the prevailing view in the Squad in the early 1980s was that the arrest and/or flight of several leaders of Winter Hill by 1979 had weakened the organization, and Winter Hill was considered to present a significantly lower level of threat to the community than Cosa Nos-tra. Ex. 71, at 3; Ex. 59, at MCN055-3644. Winter Hill was formed in the 1970s when two South Boston criminal groups merged. Ex. 1, ¶ 4. The principal members of the group in the 1970s included Howard T. Winter (“Winter”), James Sims (“Sims”), Joseph McDonald (“McDonald”), John Martorano (“Martorano”), Bulger, and Flemmi. Ex. 1, ¶ 5. Sims and McDonald became fugitives in 1976; Winter was incarcerated in 1978; and Martorano was a fugitive from 1978 until his apprehension in 1995. By 1979, Bulger and Flemmi had assumed control of the organization. Ex. 1, ¶ 5. 4. Organization of the C-3 Squad The C-3 Squad had a hierarchical structure, as did the entire FBI. The C-3 Squad consisted of a number of special agents (“agents”) and a supervisory special agent (“Supervisor”); the Supervisor reported to an assistant special agent in charge (“ASAC”); and the ASAC reported to the special agent in charge (“SAC”). The Supervisor also regularly communicated with the supervisor of the Organized Crime Section at FBI Headquarters. This supervisor reported to a Unit Chief, who, in turn, reported to the Organized Crime Section Chief. See Ring June 27, 2006 Tr. at 34-35. The SAC had managerial responsibility for the entire Boston Division, including the Boston Office and the eleven resident agencies. There were two different SACs in the Boston Division during the years relevant to this case. Lawrence Sarhatt was the SAC from at least 1980 until November 1982, and James Greenleaf was the SAC from November 29, 1982 through October 31, 1986. The Boston Division had two ASACs; each was responsible for approximately half of the squads in the Boston Office. Robert Fitzpatrick was the ASAC with responsibility for the C-3 Squad from January 5, 1981 through June 3, 1986. The C-3 Squad had two different supervisors during the years relevant to this case. John Morris was the supervisor from August 2, 1976 through January 11, 1983; and James Ring was the supervisor from July 18, 1983 through August 31, 1990. Connolly was a special agent in the C-3 Squad from October 29, 1973 until March 10, 1988. See Ex. 91, Chronology of Offices and Assignments of Connolly/Morris and Openings/Closings of Bul-ger/Flemmi; Ex. 93, Graphic of Connolly’s Assignments to Boston Field Division and Bulger/Flemmi’s Status as Informants. All of these men were aware that the number-one priority of the C-3 Squad was the takedown of Cosa Nostra. B. The FBI and Informants The FBI had rules and regulations regarding the handling of informants, which were laid out in Section 137 of the Manual of Investigative Operations and Guidelines (“MIOG”) and in a separate Manual of Rules and Regulations. Greenleaf June 22, 2006 Tr. at 36. Section 137 of the MIOG incorporated and implemented the Attorney General Guidelines in the Use of Informants (“Guidelines”). The Guidelines were first issued by then Attorney Genera] Edward H. Levi in December 1976, and were amended in 1981. See Ex. 8, Memo from Director William H. Webster to All Special Agents at 1, Jan. 5, 1981. The Guidelines were “a formal statement of [the FBI’s] present policies and practices regarding the operation of informants.” Ex. 8, at 1. According to the MIOG, an informant is “any person who furnishes information to the FBI on a confidential basis.” Ex. 6, Manual of Investigative Operations and Guidelines § 137-1 (1982). Informants are asked to provide information in their possession, to provide information which comes to their attention, and affirmatively to seek out information concerning criminal conduct or other subjects of investigative activity. Ex. 6, § 137-17(1), Guidelines Part C(l) (1981). The FBI separated informants into several categories, including Organized Crime (“OC”) and Top Echelon (“TE”). Ex. 6, § 137-1.1 (1981). A Top Echelon informant was usually associated with organized crime and was expected to provide information about a criminal group’s activity at the management level. See Fitzpatrick June 13, 2006 Tr. at 14-16; Ring June 27, 2006 Tr. at 11-12. During the early 1980s, there were approximately 250 to 300 informants in the Boston Division at any given time. Greenleaf June 22, 2006 Tr. at 9. 1. Importance of Informants The FBI viewed informants as essential to the accomplishment of its investigative goals.. The use of informants was “the single most important tool available to the FBI for the gathering of information bearing on our investigations,” Ex. 8, at 9, and one of the most effective investigative techniques employed against organized crime, Ex. 69, at 16. Informants provided information that could not otherwise be obtained. Greenleaf June 22, 2006 Tr. at 29. Indeed, Ring testified that he did not know of any serious criminal activity that could be combated without the use of informants. Ring June 27, 2006 Tr. at 10-11. Each division and program in the FBI constantly reassessed the adequacy of its informant coverage. Adequacy was based on the number and type of pending cases and the needs of each geographic and investigative area. As Greenleaf explained: “The idea was to try to promote as much informant coverage as we could. We never, ever reached a point where we were satisfied.” Greenleaf June 22, 2006 Tr. at 43. 2. Responsibility for Development and Operation of Informants Informants were so important to the FBI that every agent had a role in the development and operation of informants. a. Special Agent in Charge The SAC had personal responsibility for the establishment of informant coverage within his or her territory and was responsible for constantly assessing informant coverage to ensure that adequate coverage was maintained. Ex. 6, § 137-2(1) (1978). The MIOG instructed SACs that “[t]he development and operation of informants must be closely supervised because of the contribution they make to our investigations and problems inherent in their operation.” Id. To that end, the SAC was required to ensure that informant files were reviewed by supervisors every 60 days. Ex. 6, § 137-2(1) (1981). b. Supervisory Special Agents Supervisors were responsible for the development and operation of informants by agents under their supervision. Ex. 6, § 137-2(2) (1978). Specifically, they were responsible for ensuring that agents were making efforts to develop informants and were receiving training and guidance to do so. Id. In addition, supervisors were instructed to “directly supervise the informant files” of the agents under their supervision by reviewing the files at least once every 60 days to ensure that the informants were being operated properly and developed to their fullest potential. Id. In 1981, the MIOG suggested that supervisors also periodically meet with the informants being operated by agents under their supervision “to ensure that the informant is being handled by the contacting agent pursuant to FBI policy.” Ex. 6, § 137-2(2) (1981). c. Special Agents Prior to 1981, the MIOG directed each agent to attempt to develop and operate informants; but in 1981, the MIOG was amended to give every agent an obligation to develop and operate productive informants. See Ex. 6, § 137-2(3) (1978); Ex. 6, § 137-2(3) (1981). The MIOG stated: “The proper operation of informants is a basic skill which requires dedication and ingenuity. The success each agent enjoys normally depends on the strength of the Agent’s personality and the resourcefulness exercised in obtaining information.” Ex. 6, § 137-2(3) (1978). Agents were evaluated, in substantial part, on the basis of their development and handling of informants. 3. Policies and Practices Regarding the Development and Operation of Informants The Guidelines acknowledged that the use of informants might involve some deception, as well as cooperation with people “whose reliability and motivation can be open to question.” Ex. 6, § 137-17(1), Guidelines Part A(l) (1981). Therefore, “special care must be taken to carefully evaluate and closely supervise their use, to ensure that individual rights are not infringed and that the government itself does not become a violator of the law.” Id. (emphasis added). a. Suitability In order to use an individual as an informant, a supervisor was required to make written findings that the individual was suitable for use as an informant and was likely to provide pertinent information to the FBI. Ex. 6, § 137-17(1), Guidelines Part D(l) (1981); Ex. 8, at 2. Beginning in 1981, each field office seeking to open or re-open an informant was required to conduct a 120-day “suitability inquiry”; a field supervisor was required to review each informant’s suitability every 90 days; FBI Headquarters was required to review each informant’s suitability at least once each year; and any time the FBI learned that an informant was no longer suitable, “his relationship with the Bureau [was required to] be promptly terminated.” See Ex. 6, §§ 137.3.1 to 137.3.2 (1981); Ex. 6, § 137-17(1), Guidelines Part D(5) (1981); Ex. 8, at 2-3. Although these requirements were not spelled out in detail before 1981, the explicit statement of the requirements in the 1981 Guidelines and MIOG was not considered a significant departure from previous policy. Ex. 8, at 2. The suitability inquiry conducted before the opening or re-opening of an informant was used to assess a potential informant’s “emotional stability, controllability, reliability, truthfulness and conformance to instructions.” Ex. 8, at 2-3. In determining an individual’s suitability, agents were required to consider the following factors: whether the individual was willing and able to provide information to the FBI, whether the individual did not seem directed by others to obtain information from the FBI, and whether there was anything in the individual’s background that would make him unfit as an informant. In addition, agents were instructed to weigh the importance of the information being furnished by the informant against the seriousness of past and contemporaneous criminal activity of which the informant may be suspected; agents were also instructed to consider the ability of the FBI closely to monitor and control the informant’s activities insofar as the informant was acting on behalf of the FBI. However, the MIOG stated that these latter two factors were not, in and of themselves, crucial in determining suitability. Ex. 6, § 137-3.1.1(1) to - 3.11(2) (1981). b. Criminal Background and Ongoing Criminal Activity Informants, by their very nature, are likely to have criminal histories. In order to be in a position to provide information about criminal activity, informants also are likely to have some contemporaneous involvement in criminal activity. As Ring pointed out, “It’s people who are criminals for a living who are informants.” Ring June 27, 2006 Tr. at 53. In 1981, the Attorney General granted the FBI authority to use informants who were involved in contemporaneous criminal activity, provided that the criminal activity was not of a serious nature. “Serious” criminal activity, however, was not defined. See Ex. 8, at 7; Ex. 6, § 137-17(1), Guidelines Part G(2) (1981). The Guidelines only instructed supervisors to consider whether the crime was a felony or misdemeanor, the potential penalty under law, and the impact on any victim. Ex. 8, at 7. Moreover, there was no explicit prohibition on using the head of a criminal organization as an informant. However, agents were required to advise informants at least once each year that they were not to participate in acts of violence, use unlawful techniques to obtain information, initiate a plan to commit criminal acts, or participate in criminal activities of persons under investigation, unless authorized by the FBI. Ex. 6, § 137-3.4 (1981); Ex. 6, § 137-17(1), Guidelines Part E(l) (1981). It seems likely, however, that an informant who was the head of a criminal organization would be involved in some, if not all, of these activities. If an agent learned of the commission of a serious crime by an informant, he was instructed to notify a field office supervisor. Ex. 6, § 137-17(1), Guidelines Part G(2) (1981). Any time “a field office learn[ed] of the commission of a serious crime by an informant ..., even if unconnected with an FBI assignment, FBIHQ must be notified.” Ex. 6, § 137 — 4(5)(b) (1981) (emphasis added). The field office was required to make a recommendation about whether state or local law enforcement or prosecutive authorities should be informed, as well as whether the informant should continue to be used. If the field office believed notification of local authorities was inadvisable, or if the field office recommended that local authorities delay or forego enforcement, it was required to advise FBI Headquarters of the details of the criminal activity and the communications with state or local authorities. At that point, FBI Headquarters would make a specific determination of whether to continue to use the informant. Ex. 6, § 137-4(5) (1981). If a field office learned of “participation by an informant ... in a serious act of violence,” it was required to notify FBI Headquarters, even if the appropriate state or local authorities had been notified. Ex. 6, § 137 — 4(5)(c) (1981) (emphasis added); see also Ex. 8, at 7. The field office was instructed to send a teletype detailing the informant’s violent activity and stating whether the field office wished to continue to use the informant. See Ex. 6, § 137-4(5)(c) (1981); Ex. 8, at 7. The Guidelines mandated that a determination to continue to use the informant be approved by the Director or a senior official at FBI Headquarters after consultation with the Assistant Attorney General in charge of the Criminal Division. Ex. 6, § 137-17(1), Guidelines Part G(3) (1981). Regardless of whether the FBI decided to inform state and local authorities of criminal activity by an informant, it was never appropriate for the FBI to take any action to conceal a crime by an informant. Ex. 6, § 137-13, Guidelines Part 1(c)(1) (1978), renumbered as § 137-17(1), Guidelines Part G(5) (1981). The MIOG consistently gave FBI Headquarters the ultimate decision-making authority regarding questionable informants. For example, if agents had questions regarding the interpretation of the Guidelines, they were instructed to obtain the advice of FBI Headquarters before refusing or discontinuing the services of a valuable informant. Ex. 6, § 137-17(1), Guidelines Part N(2) (1981). Further, although any informant found to be unsuitable was to have his relationship with the FBI promptly terminated, Ex. 6, § 137-17(1), Guidelines Part D(7) (1981), the MIOG never directed an agent to close an informant in response to specific behavior; rather, it directed the agent and field office to inform FBI Headquarters. During his tenure as contact agent for Bulger and Flemmi, Connolly was aware of these reporting requirements, but he sought to avoid any required reports to FBI Headquarters by closing his eyes and ears to information about criminal activity by his informants. In fact, he even instructed other agents on how to avoid the reporting requirements by recommending that agents tell informants not to inform them of ongoing criminal activity. Ex. 72, Transcript at 10-11 (emphasis added). [I]f you’re goin’ out to develop an informant that’s not what you want. Someone else can do that. Other agents can make the case on him. That’s not my function but my function is early on to let him know I don’t wanna know. Don’t tell me something you’ve done because if you do, you’re puttin’ me in a position where I have to act on it. c. Operation of Informants The MIOG advised that “[successful operation of informants demands more of an Agent than almost any other investigative activity,” and provided agents with detailed guidance about how to operate informants. Ex. 6, § 137-4(1) (1978), renumbered as § 137-5(1) (1981). i. Control of Informants Agents were instructed to direct the activities of informants as much as possible, and to make every effort to control the informant’s activities when he or she was acting on the FBI’s behalf. Ex. 6, § 137-4(2) to -4(3) (1978), renumbered as § 137-5(2) (1981). Although it was not possible for agents completely to control all day-today activities by informants, see Ring June 27, 2006 Tr. at 58; Montanan June 21, 2006 Tr. at 113, Fitzpatrick and Connolly were aware that someone, either the agent or the informant, would control the informant relationship. Fitzpatrick testified that there was a need to control the informant relationship so that informants do not “go both ways” and use information gleaned from the FBI in their criminal endeavors. Fitzpatrick June 12, 2006 Tr. at 73-74. Connolly himself, in his instructional video, observed that either the informant would rule the agent, or the agent would rule the informant, and “if they’re ruling you you’re wastin’ your time and the Bureau’s time and you could put yourself and the Bureau in a very melancholy situation.” Ex. 72, Transcript at 12. Agents were also instructed that Organized Crime informants presented a particular problem in this regard. Connolly pointed out in his training video that Organized Crime informants “never really consider themselves as an informant.” Ex. 72, Transcript at 13. Rather, they may use the FBI to “get to” rival criminals, in contrast to a “stick up guy in Wichita,” who knows he is an informant and is willing to let the agent direct him. Id. ii. Maintenance of Informant Files Agents were required to record “all investigative activity” related to an informant in a file maintained for each informant. Ex. 6, § 137-4(8) (1978), renumbered as § 137-5(7) (1981). The MIOG instructed that agents were required to record both positive (useful information was obtained) and negative (no useful information was obtained) contacts. Id. Each informant file had two sections: the “administrative” section including administrative and identifying data; and a substantive section including reports provided by the informant, recorded on FD 209 (“209”) forms. Ex. 6, § 137-7(5) (1979), renumbered as § 137-9(4) (1981). If an informant provided information relevant to an investigation, the agent routed the 209 with the relevant information to the agent responsible for the investigation. See Ring June 27, 2006 Tr. at 12-13; Ex. 50, Report of Review of Bul-ger and Flemmi Informant Files for Compliance Issues at 12-14, Oct. 8, 1999. Each informant file was to have a table of contents or index recorded on a form FD-237. Ex. 6, § 137-7(3) (1978), re numbered as § 137-7(4) (1979), renumbered as § 137-9(3) (1981). The MIOG directed that all informant files, both pending and closed, were to be “maintained under lock and key under the personal supervision of the SAC or a person designated by the SAC,” and “handled in a secure fashion at all times.” Ex. 6, § 137-7(2) (1978), renumbered as § 137-7(3) (1979), renumbered as § 137-9(1) (1981). In addition to maintaining the informant file, agents were required to submit quarterly progress letters to FBI Headquarters for each informant. These progress letters were to include statistical accomplishments to be credited to the informants. Originally, the rationale for the letters was to justify payment to the informants. Ex. 6, § 137-9(l)(e) (1978). In 1981, the MIOG provided that the letters existed accurately to demonstrate the contributions of the informant program. Ex. 6, § 137-11(5) (1981). iii.Promises to Informants Agents were instructed not to promise immunity or reduction of sentence to criminals who furnished information. Ex. 6, § 137-3(6) (1978), renumbered as § 137-5(4) (1981). In fact, agents were required to tell informants at least once each year that the informant’s relationship with the FBI would not protect him or her from arrest or prosecution unless the supervisor or SAC determined that his or her criminal activity was justified under the Guidelines. Ex. 6, § 137-3.4 (1981); Ex. 6, § 137-17(1), Guidelines Part E(l) (1981). Connolly instructed agents that they should be careful not to make promises to informants which would authorize criminal activity. Ex. 72, Transcript at 11. iv. Providing Information to Informants Agents were instructed to be careful not to provide information to informants other than such information as was necessary for informants to carry out their assignments. Ex. 6, § 137-3(8) (1978), renumbered as § 137-5(10) (1981). Giving too much information to an informant increased the risk that the informant could divine the FBI’s priorities and interests from the very questions asked by agents, and then misuse that information. Fitzpatrick June 12, 2006 Tr. at 73-74. v. Confidentiality of Informant Identities Agents were instructed to take all possible steps to maintain the confidentiality of the informant’s relationship with the FBI. Ex. 6, § 137-3(10) (1978), renumbered as § 137-3(9)(d) (1979), renumbered as § 137-3.4(c) (1981). “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.” Ex. 6, § 137-3(7) (1978), renumbered as § 137-5(9) (1981). Even when the FBI was responding to a subpoena, court order, or request for information that related to the identification of an informant, the response was to be coordinated with FBI Headquarters. Ex. 6, § 137-4(14) (1979), renumbered as § 137-5(16) (1981), renumbered as § 137-5(19) (1982). Before information received from an informant could be used in a prosecution, FBI Headquarters was to be advised and given an opportunity to discuss the matter with the Department of Justice. Ex. 6, § 137-6(11) (1978). Moreover, the Department of Justice instructed all United States Attorneys that they could not interview or subpoena informants without prior consent from the Department. Ex. 6, § 137-6(11) (1978). The central justification for maintaining the confidentiality of informant identities, of course, was safety and security. Ring testified that it was “absolutely” important to keep informants’ identities confidential because “[y]ou had an informant’s life in your hands. If that identity got out, ... the informant’s life would be in danger .... [I]f you’re dealing in the area of organized crime, it’s essential to protect the informant’s life.” Ring June 27, 2006 Tr. at 7-8. Brady and Montanari testified to the same effect. See Brady June 21, 2006 Tr. at 6; Montanari June 21, 2006 Tr. at 114-115. In his training video, Connolly too acknowledged the necessity of keeping confidential the identities of informants for reasons of the informants’ safety and security. He said: “You should make every effort to ensure the security of this person. They are risking their lives[;] we should recognize that.” Ex. 72, Transcript at 6. C. Recruitment and Use of Bulger and Flemmi as FBI Informants Bulger and Flemmi were informants for the FBI at various times over a period of twenty-five years. Although they were only two of the 250 to 300 informants in the Boston Division, they were repeatedly lauded as among the most valuable informants in the Division. Bulger was called “one of the highest caliber sources in the Division within recent memory,” Ex. 13e, Memo from Connolly to SAC, Boston at 2, Dec. 2, 1980, and “one of the most highly placed and valuable informants in the Boston division,” Ex. 13e, Addendum of Supervisor Morris at 2. When questions were raised about whether Bulger should be “closed” (terminated) as an informant, Morris opined that the closing “would deal a serious blow to the OCP of the Boston division.” Ex. 13e, Addendum of Supervisor Morris at 2. Flemmi was described as the type of informant who “form[ed] the nucleus of any viable long range Organized Crime Program,” and was viewed as a “highly placed and valuable” informant of the type that takes years to develop. Ex. 110, Addendum of Supervisor Morris. Flemmi was first recruited as an FBI informant in 1964. He provided information, off and on, until 1990. Bulger was first recruited as an FBI informant in 1971 and provided information until 1990. Beginning in 1975, Connolly was the FBI agent assigned to handle Bulger and Flemmi. Fitzpatrick June 12, 2006 Tr. at 75-76. Bulger and Flemmi were recruited for their ability to provide high-level information about Cosa Nostra, owing to their status as equals at the policy-making level to major Cosa Nostra figures, including Angiulo and Zannino. See Ex. 13h, Teletype from Boston to Director, Feb. 23, 1983. They were “very influential” in the Boston criminal world. Ex. 10, Flemmi Informant File at MCN016-0210 to -0211. Bulger was “one of the top criminals in Boston,” Weeks June 8, 2006 Tr. at 99, and a “major Boston underworld figure,” Ex. 14, Stipulation Regarding James Bulger and Stephen Flemmi’s Reported Criminal Activities at 1, United States v. Connolly, No. 99-10428 (D.Mass.) (citing FBI document authored by Connolly, from SAC, Boston to Director, June 5, 1974). He was known to be the head of Winter Hill. See, e.g., Ex. 13h (stating that Bulger was “the titular head of the Winter Hill Mob”); Ex. 12, Bulger Informant File at MCN016-1523 (Bulger self-identified as one of the heads of the South Boston Irish Mafia). Winter Hill interacted with Cosa Nostra on matters of mutual interest. Ex. 59, at MCN055-3646; Ex. 110, Addendum of Supervisor Morris. Flemmi also traveled in Cosa Nostra circles; he had a past criminal association with Cosa Nostra and was twice offered the opportunity to become a made member. Flemmi June 8, 2006 Tr. at 20-21; Ex. 110, Addendum of Supervisor Morris. Accordingly, he was able to provide an insider’s perspective on the organization. Bulger and Flemmi thus were uniquely positioned to provide information about high-level activity in Cosa Nostra. At times, Bulger and Flemmi were designated as “Top Echelon” informants. Although they were occasionally “closed” and “re-opened” as FBI informants, the FBI never completely terminated its relationship with either informant during the 1970s and 1980s. The official action of opening and closing Flemmi had such little practical impact that Flemmi himself was never aware that he was being officially opened and closed. He continued to provide information even when he was closed in the 1970s and 1980s, and that information was reported in his informant file, which remained open even when Flemmi was officially “closed.” Ring testified that although Flemmi was sometimes closed, the FBI continued to meet with him and “information volunteered by [him] is accepted.” Ex. 13j, Memo from Ring to SAC, Boston at 1, Oct. 17, 1984; Ring June 28, 2006 Tr. at 56-57. Other agents also treated Flemmi as an informant regardless of his official open or closed status. While he was closed in 1983, Montanari, who wanted to interview him in connection with a murder investigation, approached him through Connolly because he was an informant. Montanari June 21, 2006 Tr. at 105-107. In 1981, information provided by Bulger and Flemmi was used in the successful applications for Title III wiretaps and electronic surveillance in the Bostar and Mandarin operations against Angiulo and Zan-nino. Connolly and Morris repeatedly trumpeted the roles played by Bulger and Flemmi in providing information that re-suited in the Bostar and Mandarin wiretaps, and the operation against Angiulo was referred to as “one of the highest priority organized crime cases in the FBI today, [involving] what has been characterized by FBIHQ officials as one of the most important and successful Title Ill’s to have been conducted by the FBI in the past ten years.” See, e.g., Ex. lib, Memo from Connolly to SAC, Boston at 2, Dec. 2, 1980; Ex. 13f, Memo from Connolly to SAC, Boston at 1, Addendum of Supervisor Morris, Apr. 1, 1981; Ex. 110, Addendum of Supervisor Morris. The Boston Organized Crime Program was commended by the Director for these two “exemplary” and “outstanding” cases. Ex. 70, Memo from Director, FBI to SAC, Boston at 1, May 28,1981. Bulger and Flemmi provided other valuable information regarding Cosa Nostra. For example, Flemmi provided the FBI with a diagram of the Bella Napoli Restaurant in Boston’s North End, Zannino’s favorite meeting place. Ex. 10, at MCN016-0500 to -0502; Flemmi June 6, 2006 Tr. at 113-115. Flemmi’s information included the location of Zannino’s customary table and the nights he held meetings at the restaurant. Id. Likewise, he provided a diagram of Francesco’s Restaurant in the North End, Angiulo’s favorite meeting place. The diagram pinpointed the location of Angiulo’s favorite table and where he customarily sat at that table. Ex. 10, at MCN016-0497 to -0499; Flemmi June 6, 2006 Tr. at 116-117. In 1986, Flemmi provided a diagram of Vanessa’s Restaurant, a meeting place for Cosa Nostra leaders in Boston subsequent to the arrest and conviction of Angiulo. Ex. 10 at MCN016-0355 to -0358;' Flemmi June 7, 2006 Tr. at 5-7. The diagram and other information provided by Flemmi were used in an application for a Title III wiretap at the restaurant. June 8, 2006 Tr. at 53-54. Information provided by Flemmi was also used in an application for a Title III wiretap of a Cosa Nostra induction ceremony in 1989. June 8, 2006 Tr. at 54-55; see also Flemmi June 7, 2006 Tr. at 10-11. D. Involvement of Bulger and Flemmi in Violent Criminal Activity Bulger and Flemmi were involved in violent criminal activity throughout their tenure as FBI informants. See generally the trial testimony of Flemmi, June 5, 2006-June 8, 2006. Both were indicted for, and Flemmi pleaded guilty to, a racketeering conspiracy that included bookmaking, loansharking, extortion, narcotics trafficking, and murder. Bulger was indicted for involvement in twenty-six murders between 1973 and 1985; and Flemmi pleaded guilty to involvement in eleven murders during the same period. See Ex. 1; Ex. 2. Although agents of the FBI may not have been aware of all of this criminal activity during all of the time that Bulger and Flemmi were FBI informants, agents in Connolly’s chain of command in the Boston Office and at FBI Headquarters knew, or had reason to know, that Bulger and Flemmi were involved in violent criminal activity during the time they were informants. Organized crime, by the FBI’s own definition, involves the “use of violence or threat of violence.” Ex. 69, at 5. Agents in the Boston Office and officials at FBI Headquarters knew that Bulger and Flemmi were members, then leaders, of Winter Hill, an organized crime group. Flemmi himself testified that the FBI knew he and Bulger were committing crimes: “that was our business. That’s all we did ..., and they [the FBI] knew what we were doing.” Flemmi June 7, 2006 Tr. at 81-82. In addition, as I will discuss in detail below, the files of the Boston Office contain scores of references to specific criminal activity by Bulger and Flemmi. Some of these references appear in Bulger and Flemmi’s own informant files. Bulger and Flemmi would “self-report” criminal activity to their handler, Connolly, who would record their reports in 209s which were then placed in their informant files. Other references to Bulger and Flemmi’s criminal activity come from the reports of other informants of the FBI. If an informant told his handler about criminal activity by Bulger or Flemmi, that information would be recorded in the informant’s own informant file and also copied to an investigative file. Any mention of Bulger or Flemmi in an investigative file should have been listed in the indices of the Boston Office. 1. Loansharking and Bookmaking The files of the Boston Office, including Bulger and Flemmi’s informant files, are replete with references to their involvement in loansharking and bookmaking between 1965 and 1987. Loansharking and bookmaking, by definition, involve violence and threats of violence. A1965 review of Flemmi’s files, prepared by Flora Fitzgerald for the SAC of the Boston Office, noted two reports of bookmaking and four reports of loansharking, as well as one report of arson, two reports of threats of violence, and several reports of other criminal activity by Flemmi. See Ex. 10, at MCN016-0225 to -0238. In 1967, the SAC of the Boston Office informed the Director of the FBI that Flemmi had been involved in bookmaking, loansharking, robberies, and was suspected of involvement in murder. Ex. 10, at MCN016-0177 to -0181. Throughout the 1970s and 1980s, Connolly knew, and his supervisors should have known, that Bulger and Flemmi continued to be involved in gambling, loansharking, and bookmaking, based upon the self-reports of Bulger and Flemmi. For example, they self-reported that Winter Hill was involved in gambling in 1976, 1986, and 1987, see Ex. 12, at MCN016-1598 to - 1600; Ex. 10, at MCN016-0365 to-0367, MCN016-0359 to -0360, MCN016-0352 to -0354, MCN016-0050 to -0052, and Flemmi self-reported that he was involved in loansharking, see Ex. 10, at MCN016-0050 to -0052. Over the years, other informants reported to their handlers that Bulger and Flemmi were involved in extortion, threats of violence, jury tampering, drug trafficking, and murder. These reports were recorded in the files of the Boston Office. See, e.g., Ex. 16, Report of Agent Patterson and Agent Frahm’s Review of Files Referencing Bulger or Flem-mi at 9-10, July 1997; Ex. 17, Memo from Vaules to SAC, Boston, Dec. 31, 1975; Ex. 14 at 4 (citing FBI Document authored by Daly, Oct. 18,1977). Greenleaf acknowledged that when he was the SAC, from 1982 to 1986, Bulger and Flemmi “had a reputation of having been involved in gambling and loansharking,” Greenleaf June 22, 2006 Tr. at 57, and Ring testified that at the time he was the Supervisor of the C-3 Squad, from 1983 to 1990, he thought Bulger and Flem-mi were involved in gambling and loansharking, Ring June 28, 2006 Tr. at ll. 2. Reputation for Violence The evidence shows that, by the mid 1970s, agents in the Boston Office and at FBI Headquarters knew that Winter Hill had a reputation for violent crime. Bulger repeatedly self-reported that Winter Hill was capable of violence. See, e.g., Ex. 14, at 1 (citing FBI Document authored by Connolly, From SAC, Boston to Director, Sept. 6, 1974), 3 (citing FBI Document authored by Connolly from SAC, Boston to Director, Feb. 4, 1976); Ex. 12, at MCN016-1618 to -1620, MCN016-1360 to -1361. Ring testified that at the time he was Supervisor of the C-3 Squad, he believed Bulger and Flemmi were capable of violence, and that he knew they came out of a violent group. Ring June 27, 2006 Tr. at 56-57. In a 1983 memorandum to Greenleaf, Ring reported that the “Irish Mafia” (Winter Hill) dealt in gambling, bookmaker extortion, loansharking, drugs, sophisticated robberies, murders, threats and intimidation. Ex. 59, at MCN055-3646. In addition, Bulger and Flemmi each had well-earned, personal reputations for violence. Flemmi testified that Bulger generally was known as a violent person in the Boston area, and that the mere presence of Bulger and Flemmi would be enough to intimidate people. Flemmi June 5, 2006 Tr. at 84-86; Flemmi June 8, 2006 Tr. at 23-24. Weeks similarly testified that it was generally known that he, Bulger, and Flemmi were capable of extreme violence. Weeks June 8, 2006 Tr. at 77-78. Agents in the Boston Office and at FBI Headquarters were well aware of these reputations. In 1965, for example, the SAC wrote to the FBI Director that Flemmi “enjoys the reputation of being a very capable individual and ... it is believed that he probably is the individual that finally was successful in murdering Edward ‘Punchy’ McLaughlin.” Ex. 10, at MCN 016-0198 to -0199. In 1966, Flemmi self-reported beating another man so severely that he needed 100 stitches in the face and head. Ex. 10, at MCN016-0678 to -0679, MCN016-0183 to-1086. Flemmi also self-reported that in 1967, he was offered the opportunity to become a member of Cosa Nostra and that ordinarily, a person would have to make a “hit” in order to be admitted as a member. Given Flem-mi’s reputation, however, Cosa Nostra offered to waive the hit requirement. Ex. 10, at MCN016-0655 to -0656, MCN016-0135 to -0141. Bulger also reported to Connolly that Flemmi was known to be an extremely dangerous person when aroused, and warned that he might “whack out” the owner of a club where his daughter had been beaten. Ex. 12, at MCN016-1509 to -1513. In addition, Bulger was repeatedly referred to as a “vicious individual” and “vicious animal” in the files of the Boston Office. See, e.g., Ex. 19, Airtel from SAC, Boston to Director, FBI at 3, Apr. 15, 1975; Ex. 21, Memo from Daly to SAC, Boston, Aug. 23, 1976. He was said to be “feared by many people because of his ability to kill anyone without even thinking twice.” Ex. 20, Memo from Daly to SAC, Boston, Sept. 18, 1975. Fitzpatrick thought of Bulger as a “live psychopath.” Fitzpatrick June 14, 2006 Tr. at 11-12. Bulger and Flemmi were referred to in the files of the Boston Office as individuals who could be used by other criminals as contract killers to “hit” someone, Ex. 16, at 6, and officials from the FBI’s Sensitive Information Unit, Criminal Investigative Division, reviewing Bulger and Flemmi’s informant files in 1999, found seventeen instances between 1976 and 1988 where Bulger reported information that could be interpreted as a threat he made to the life of one or more individuals, and ten instances where Flemmi reported similar information, Ex. 50, at 9. 3. Specific Criminal Acts a. Bennett Murder and Fitzgerald Bombing In 1967, Edward “Wimpy” Bennett, a sometime confederate of Flemmi, was murdered. See Ex. 10, at MCN016-0665 to -0679. Some time later, attorney John Fitzgerald was injured when a bomb placed in his car exploded. See Ex. 10, at MCN016-0639 to -0640. In 1969, Flemmi was indicted, along with underworld figure Francis Salemme, for the murder of Bennett and the attempted murder of Fitzgerald. Before the indictment was issued, however, Rico warned Flemmi that he was about to be indicted, enabling Flemmi to go on the run for five years. Flemmi June 6, 2006 Tr. at 71-75. Flemmi was closed as an informant in 1969 because he was named in the indictment, see Ex. 88; Ex. 10, at MCN016-0110, but he remained in contact with Rico while he was “on the lam.” Flemmi called Rico once each year, and in 1974, Rico informed Flemmi that he could return to Boston. Flemmi June 6, 2006 Tr. at 73-75. Although Salemme was convicted of the Fitzgerald bombing and spent ten years in prison, all of the charges against Flemmi were dropped. Flemmi June 6, 2006 Tr. at 75-77. Flem-mi believed that Rico had promised to protect him from prosecution and then honored that promise. Flemmi June 6, 2006 Tr. at 78. Although Flemmi was not officially reopened as an informant in the 1970s, in 1974 or 1975 he met with Connolly and another agent, Dennis Condon, who had been Rico’s partner, and agreed to begin providing information. Flemmi June 6, 2006 Tr. at 67, 78-80. Bulger was reopened in 1975, and the two began to meet with Connolly together. Flemmi June 6, 2006 Tr. at 80-81. b. Castucci Murder During the 1970s, Richard Castucci (“Castucci”) was a bookmaker who did business with Winter Hill. Ex. 3, at 7. In 1970, he began cooperating with the FBI and was targeted for development in the Top Echelon informant program. Ex. 24, Memo from SAC, Boston to Director, FBI, Jan. 30, 1970. In the fall and winter of 1976, Castucci informed the FBI that fugitives Joseph McDonald and James Sims, members of Winter Hill, were living in an apartment in Greenwich Village, Manhattan where their rent was being paid by Winter Hill. Ex. 24, Memo from Daly to SAC Boston, Sept. 30, 1976; Memo from Daly to SAC, Boston, Nov. 8, 1976; Memo from Daly to SAC, Boston, Dec. 15, 1976; Memo from Daly to SAC, Boston Dec. 30, 1976. Of particular significance is information provided by Castucci to his handler, FBI Agent Thomas Daly, on December 2, 10, and 27, 1976. On each of those dates, Castucci gave Daly rather precise information concerning the comings and goings of McDonald and Sims to and from their Greenwich Village hideout. See Ex. 24, Memo from Daly to SAC Boston, Dec. 15, 1976; Memo from Daly to SAC, Boston, Dec. 30, 1976. On each report Daly prepared concerning information given to him by Castucci about McDonald and Sims, Daly noted that the information was “extremely singular and sensitive” and “should not be discussed or disseminated outside the FBI.” Ex. 24, Memo from Daly to SAC, Boston, Sept. 30, 1976; Memo from Daly to SAC, Boston, Nov. 8, 1976; Memo from Daly to SAC, Boston, Dec. 15, 1976; Memo from Daly to SAC, Boston, Dec. 30,1976. In December 1976, Connolly somehow discovered that Castucci had provided information to the FBI concerning the whereabouts of McDonald and Sims, and Connolly promptly disclosed what he had learned to Bulger. Flemmi June 5, 2006 Tr. at 91-92. Bulger, Flemmi, Winter, and Martorano then decided that Castucci had to be killed. Flemmi June 5, 2006 Tr. at 92; Ex. 3, at 7. On December 30, 1976, Martorano killed Castucci by shooting him in the head, and Bulger and Flemmi cleaned up and disposed of Castucci’s body by leaving it in the trunk of his car. Flemmi June 5, 2006 Tr. at 92-94. It does not appear that the FBI launched its own investigation into the murder of Castucci, despite the fact that he was an important FBI informant and had provided information on fugitives