Full opinion text
MEMORANDUM AND ORDER RE: BENCH TRIAL GERTNER, District Judge. TABLE OF CONTENTS I. INTRODUCTION.151 II. PROCEDURAL BACKGROUND.155 III. FACTFINDINGS.157 A. The FBI Program to “Get” La Cosa Nostra.159 1. Patriarca Wire.160 2. “Top Echelon Criminal Informant Program”.160 3. Significance of (1) and (2).161 B. The Boston FBI, the Flemmi Brothers and Barboza.161 1. Agents Rico and Condon.161 2. The Flemmi Brothers.163 a. Jimmy Flemmi .163 b. Stephen Flemmi .164 3. Using the Flemmi Brothers to Turn Barboza into a Witness.166 4. Rico and Condon Meet with Barboza.167 a. Meetings Before September 1967.167 (1) March 8,1967 .167 (2) March 21,1967 .168 (3) April 11,1967.169 (4) April 27,1967.169 (5) May 22,1967 .169 (6) Summer of1967.170 b. Barboza Mentions the Plaintiffs for the First Time on September 8,1967 .171 (1) What the FBI Knew about the Deegan Murder Before The Murder.172 (2) What the FBI Knew after the Murder.173 (3) What the Local Authorities Knew about the Deegan Murder.177 c. The September 8 Interview and the Indictment.178 C. The Deegan Trial .181 1. Trial Preparation: An Allegedly “Independent Investigation”.181 2. The Trial.184 3. The Verdict.189 D. Between the Deegan Murder Trial and the Nolle Prosequi.189 1. Praises for Rico and Condon.189 2. The Involvement of the FBI Hierarchy ..190 3. Protecting and Providing for Barboza.191 4. 1970 Rico Admission.191 5. Barboza Attempts to Recant.192 6. Barboza Murders Clay Wilson and Brags about His False Testimony in the Deegan Trial.194 7. Rico’s Methods Are Exposed — Still Nothing is Done.197 8. The FBI and Stephen Flemmi in the 1980s.198 9. Deegan Defendants’Efforts Post-Conviction .199 a. Salvati Commutation Petitions.199 b. Limone Commutation Petitions .200 c. Tameleo Commutation Petitions.201 d. Greco Commutation Petitions. rH O 03 10. The Conspiracy of Silence. CM O 03 IV. CONCLUSIONS OF LAW. o to A. Prior Issues . tO o CO 1. Discretionary Function Exception. tO o CO 2. The FTCA’s Exception for Malicious Prosecution Claims. tO o ^ B. Malicious Prosecution. tO o cn 1. Initiation. tO o -d a. The FBI’s Role in Brinyiny about the Prosecution of the Plaintiffs: More than a Host. to o so b. The Information Provided by Barboza Was False or Misleadiny — and the FBI Knew it. c. There Was No Independent Investiyation: There Could Not Be. H rH 03 d. The FBI’s Efforts Continued over Thirty Years. (N tH 03 2. Lack of Probable Cause. CO rH 03 a. Information Available to the FBI at the Time . 'ñp rH 03 (1) Barboza’s CredibilityZIA (2) Limone and Tameleo. to I — 1 ^ (3) Greco. to ^ (4) Salvati . to cn b. Conviction is Not Conclusive Proof of Probable Cause on these Facts. to h-l Ol (1) Subornation. to h-l 05 (2) Due Process. to I — l 00 (3) FBI’s Misconduct/Barboza’s Testimony — The Sole Foundation . (a) The Fitzyerald Bribe Testimony . (b) The Stathopolous Identiñcation. c. No Other Evidence. 3. Malice and Termination. 4. Not a “Failure to Disclose” Claim. 5. Massachusetts Survival Statute. C. Civil Conspiracy. D. Intentional Inñiction of Emotional Distress. 1. Deeyan Defendants’ Claims . 2. Family Members’ Claims. a. Substantially Contemporaneous Knowledge . b. Severe Emotional Response. E. Negligence. 1. The Government Was Directly Negligent. 2. Negligent Supervision. V. DAMAGES. A. Facts 1. Limone Plaintiffs. a. Peter Limone Sr.. b. The Family. 2. Salvati Plaintiffs . a. Joseph Salvati. b. The Family. 3. Tameleo Plaintiffs . a. Henry Tameleo. b. The Family. 4. Greco and Werner Plaintiffs. a. Louis Greco Sr.. b. The Family. (1) The Children. (2) The Marriage . 242 B. Law. 243 1. Damages for the Deegan Defendants: Limone, Tameleo, Greco and Salvati. 243 2. Damages for Family Members. 245 a. Loss of Consortium. 245 (1) Spouses. 246 (2) Children. 248 b. Bystander Intentional Infliction of Emotional Distress .. 249 (1) The General Case. 249 (2) Youny Children . 249 VI. CONCLUSION. 250 I. INTRODUCTION Peter Limone (“Limone”), Enrico “Henry” Tameleo (“Tameleo”), Louis Greco (“Greco”), and Joseph Salvati (“Salvati”), made extraordinary and troubling accusations in this case. They claimed that thirty-nine years ago, virtually to the date of this decision, on July 31, 1968, they were convicted of a crime which they did not commit — the murder of Edward “Teddy” Deegan (“Deegan”). Limone, Tameleo, and Greco were sentenced to die in the electric chair, a sentence reduced to life imprisonment when the death penalty was vacated. They accused the United States, specifically, the Federal Bureau of Investigation (“FBI”) of framing them for Dee-gan’s murder, and then, by covering up FBI misconduct, ensuring their imprisonment over the next three decades. This trial, however, was not about securing the plaintiffs’ release. Salvati was freed in 1997; Limone in 2001. Tameleo and Greco died tragically as prisoners— Tameleo in 1985, Greco in 1995. Rather, the plaintiffs sought a different form of redress, which the law allows— damages for their loss of liberty, for their pain, and the pain of their loved ones. They brought this lawsuit under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq., on a number of grounds, including malicious prosecution. The bench trial was lengthy. It took twenty-two days and involved hundreds of exhibits, thousands of pages. There were comparatively few live witnesses; this story had to be painstakingly pieced together through documents, many of them heavily redacted, particularly at the outset of the proceedings. Despite the complexity of the record, this decision is far, far, longer than I would have wished. It has taken much more time to complete than I had predicted. But there was no other alternative. The conclusions that the plaintiffs have asked me to draw — that government agents suborned perjury, framed four innocent men, conspired to keep them in jail for three decades — are so shocking that I felt obliged to analyze this complex record with special care in order that the public, and especially the parties, could be fully confident of my conclusions. I have concluded that the plaintiffs’ accusations that the United States government violated the law are proved. In the pages that follow, I will describe why in detail. This introduction summarizes some of those findings. The plaintiffs were convicted of Dee-gan’s murder based on the perjured testimony of Joseph “The Animal” Barboza (“Barboza”). The FBI agents “handling” Barboza, Dennis Condon (“Condon”) and H. Paul Rico (“Rico”), and their superiors — all the way up to the FBI Director— knew that Barboza would perjure himself. They knew this because Barboza, a killer many times over, had told them so — directly and indirectly. Barboza’s testimony about the plaintiffs contradicted every shred of evidence in the FBI’s possession at the time — and the FBI had extraordinary information. Barboza’s testimony contradicted evidence from an illegal wiretap that had intercepted stunning plans for the Deegan murder before it had taken place, plans that never included the plaintiffs. It contradicted multiple reports from informants, including the very killers who were the FBI’s “Top Echelon” informants. And even though the FBI knew Barbo-za’s story was false, they encouraged him to testify in the Deegan murder trial. They never bothered to tell the truth to the Suffolk County District Attorney’s Office. Worse yet, they assured the District Attorney that Barboza’s story “checked out.” The FBI knew Barboza’s testimony was perjured because they suborned that perjury. They met with Barboza long before the state authorities ever did. They coddled him, nurtured him, debriefed him, protected him, and rewarded him — no matter how much he lied. When Barboza told them he would not accuse the man they knew to be one of Deegan’s killers, his friend and FBI informant, Jimmy Flemmi, they urged Barboza to testify nonetheless. And when he announced that he would accuse four men who had never been linked to this murder, they were undaunted. They continued to press for his testimony. Indeed, they took steps to make certain that Barboza’s false story would withstand cross-examination, and even be corroborated by other witnesses. In word and in deed, the FBI condoned Barboza’s lies. FBI agent Dennis Condon even told the Deegan jury that he was “always concerned with the purity of testimony on the part of’ his witnesses, referring to Barboza, the perjurer. When Ta-meleo, Greco, and Limone were sentenced to death, Salvati to life imprisonment, the FBI did not stand silently; they congratulated the agents for a job well done. Nor did the FBI’s misconduct stop after the plaintiffs were convicted. The plaintiffs appealed, filed motions for a new trial, one even took and passed a polygraph test on public television — over and over again protesting their innocence. They sought commutations, appeared before parole boards, seeking clemency from the governor, even appealing to the press. On each occasion, when asked about the plaintiffs, on each occasion when the FBI could have disclosed the truth — the perfidy of Barbo-za and their complicity in it — they did not. This was so even as more and more evidence surfaced casting more and more doubt on these convictions. In the 1970s, for example, Barboza tried to recant his testimony, not in all cases in which he had participated, but only as to the plaintiffs in this case — the very men the FBI knew to be innocent. In the 1980s, Agent Rico was found by a court to have suborned the perjury of another witness under similar circumstances. Yet, there was still no FBI investigation, no searching inquiry to see if an injustice had been done in this case. Rather, while Salvati and Limone languished in jail for thirty-odd years, and Greco and Tameleo died in prison, Barboza and his FBI handlers flourished. The FBI agents were given raises and promotions precisely for their extraordinary role in procuring the Deegan convictions. Even when Barboza, the “poster boy” for the new federal witness protection program, committed yet another murder, three federal officials testified — now for the second time — on his behalf. FBI officials up the line allowed their employees to break laws, violate rules and ruin lives, interrupted only with the occasional burst of applause. The FBI knew Barboza’s testimony was false, that the plaintiffs’ convictions had been procured by perjury, that critical exculpatory information had been withheld— but they did not flinch. After all, the killers they protected' — Jimmy Flemmi, along with Barboza, and Jimmy’s brother, Stephen — were providing valued information in the “war” against the Italian Mafia, La Cosa Nostra (“LCN”). The pieties the FBI offered to justify their actions are the usual ones: The benefits outweighed the costs. Put otherwise, in terms that are more recently familiar, these four men were “collateral damage” in the LCN war. To the FBI, the plaintiffs’ lives, and those of their families, just did not matter. As Agent Rico put it in his testimony before the United States House of Representatives Committee on Government Reform, when asked if he had any remorse that four innocent men went to prison, he replied: “Would you like tears or something?” Exh. 170 at 186. Now is the time to say and say without equivocation: This “cost” — to the liberty of four men, to our system of justice — is not remotely acceptable. No man’s liberty is dispensable. No human being may be traded for another. Our system cherishes each individual. We have fought wars over this principle. We are still fighting those wars. Sadly, when law enforcement perverts its mission, the criminal justice system does not easily self-correct. We understand that our system makes mistakes; we have appeals to address them. But this case goes beyond mistakes, beyond the unavoidable errors of a fallible system. This case is about intentional misconduct, subornation of perjury, conspiracy, the framing of innocent men. While judges are scrutinized — our decisions made in public and appealed — law enforcement decisions like these rarely see the light of day. The public necessarily relies on the integrity and professionalism of its officials. It took nearly thirty years to uncover this injustice. It took the extraordinary efforts of a judge, a lawyer, even a reporter, to finally bring out the facts. Proof of innocence in this democracy should not depend upon efforts as gargantuan as these. The claims of the plaintiffs or their estates fit into four categories: malicious prosecution, civil conspiracy, intentional infliction of emotional distress, and negligent selection, supervision, and retention. Their spouses and children have each brought loss of consortium and bystander intentional infliction of emotional distress claims as well. The federal government has fought hard. The legal doctrines on which it has relied are important ones. They are doctrines designed to give law enforcement room to make critical policy decisions. They are intended to insulate those who bring information in good faith to the authorities, even if the information is later disproved. All the FBI did, the government argued, was exercise their discretion about whom to offer deals, and how to conduct an investigation. All they did was to present their cooperating witness to the state authorities who independently prosecuted the crime. In effect, what they are saying is that it was the state’s fault — not theirs — for not doing a better job. If the FBI erred at all, it was in not turning over information exculpatory to the defense— nothing more — and that violation is not actionable under this statute, the FTCA. The government’s position is, in a word, absurd. The law they cite does not apply to the extraordinary facts of this case. The issue here is not discretion but abuse, not independent charging decisions but the framing of four innocent men, not the failure to produce exculpatory evidence but procuring convictions by misrepresentation, not letting perjured testimony proceed uncorrected but facilitating it. The FBI, and not the state, developed Barboza as a witness, knowing that his false testimony would be used to prosecute the plaintiffs for a crime they did not commit. They, and not the state, kept their conduct from being discovered by failing to disclose exculpatory evidence, before, during, and after the trial. They, and not the state, vouched for Barboza to law enforcement and to the very jury hearing the murder case, even when all the information they had flatly contradicted his account. I begin with the procedural background of the case, which also serves as a chronology within which to frame my specific findings. Thereafter, I proceed to the fact findings and the legal analysis. The evi-dentiary issues that were reserved during the course of the bench trial are noted as the evidence is considered or rejected, as the case may be. Finally, I address the damages. In the end I conclude that the defendant is liable to these men and their families. As to damages, plaintiffs’ loss of liberty, and, in effect, a lifetime of experiences, is obviously not compensable. To the extent that damages can approach this task, my total award is One Hundred One Million, Seven Hundred Fifty Thousand, And 00/100 ($101,750,000.00) Dollars. (I address the individual awards in later sections.) II. PROCEDURAL BACKGROUND On March 12, 1965, at approximately 9:30 p.m., Teddy Deegan was murdered. He was found with six gunshot wounds from at least three different weapons. See Exhibit (“Exh.”) 2070 at 3; Exh. 57 at 26. On October 25, 1967, more than two years later, six men — Peter Limone, Henry Ta-meleo, Joseph Salvati, Louis Greco, Ronald Cassesso, and Roy French' — -were indicted for his murder. The ensuing trial' — in which Barboza was the star — began on May 27, 1968. All the defendants, including the four plaintiffs before me, were convicted. On July 31, 1968, the death penalty was imposed for Limone, Tameleo, and Greco, but was subsequently vacated four years later. Salvati was sentenced to life in prison. Between 1970 and 2001, plaintiffs filed more than a dozen motions for a new trial. Each time they were denied relief. They filed a total of seventeen commutation petitions. The first sixteen were denied. See Exh. 340. Tameleo died in prison in 1985, after serving nearly eighteen years. A decade later, in 1995, Greco died after serving twenty-eight years. In 1995, certain information about the relationship between the Boston office of the FBI and two of the most notorious criminals in Boston history, James J. “Whitey” Bulger and Stephen J. “The Rifleman” Flemmi, surfaced during proceedings in United States v. Salemme before now-Chief Judge Mark Wolf. On July 3, 1997, as a result of the Salemme disclosures, the deputy attorney general ordered that attorneys from the Department of Justice’s Public Integrity Section and Office of Professional Responsibility, in conjunction with FBI agents, conduct an investigation into alleged misconduct in the Boston office of the FBI. See Exh. 166 at 3 (“Obstruction of Justice Report”). In December of 2000, that investigative effort focused on Limone’s request for documents pertaining to his case. Special Assistant U.S. Attorney, John Durham (“Durham”) responded with five FBI memoranda from the 1960s (the “Durham documents”). Durham made clear that the Department of Justice, the United States Attorney’s Office, the Boston FBI office and FBI headquarters, “understand the potential significance of the enclosures” and provided them with the “concurrence and encouragement of the Boston FBI and FBI headquarters.” Exh. 4 at 3. The best measure of the importance of the Durham documents was the firestorm they created. The Suffolk County District Attorney’s office immediately filed a motion to vacate Limone’s conviction, to grant Limone a new trial, and admit him to bail. Judge Margaret Hinkle of Suffolk Superi- or Court ruled that the Durham documents were material, exculpatory, and cast “real doubt” on the justice of Limone’s convictions. See Exh. 2 at 16. The documents had been wrongly kept from the Suffolk County District Attorney’s Office and obviously, the plaintiffs. Indeed, Judge Hinkle noted, [T]he court system responsible for the Deegan trial now reeognize[d] that evidence in the hands of federal officials was indispensable to the administration of justice in the Deegan murder prosecution. Exh. 195 at 3-4. In granting a new trial, Judge Hinkle concluded that there was a substantial likelihood that the jury would have reached a different conclusion had this evidence been available at trial. The Suffolk County District Attorney’s office immediately agreed and filed nolle prosequis for both Limone and Salvati, the only plaintiffs still alive. It concluded that “it does not now have a good faith basis — legally or ethically — to proceed with any further prosecution of the defendant.” Exh. 3B; Exh. 3D; Exh. 3E. In 2001, the United States House of Representatives Committee on Government Reform (“House Committee”) began a lengthy investigation into FBI misconduct in the Deegan case resulting in a report titled: “Everything Secret Degenerates: The FBI’s Use of Murderers as Informants.” Exhs. 195-195T. The report was a stinging rebuke of federal law enforcement officials for tolerating and encouraging false testimony, for taking “affirmative steps” to ensure that the individuals convicted would not obtain post-conviction relief and would die in prison. The Report also concluded that the FBI— including “senior staff close to FBI Director J. Edgar Hoover” were in possession of information that “could have led them to the conclusion that Barboza was committing perjury” and did not disclose it. Exh. 195 at 4. On May 16, 2001, Louis J. Freeh, then-Director of the FBI, said that the Salvati case was a great travesty, a great failure, disgraceful to the fact that my agency, or any other law enforcement agency, contributed to that.... [Njothing worse that can happen under a system of law is that an innocent person is either charged, or in this case punished, for that period of time. It is a travesty, a disgrace, it shouldn’t happen.... Exh. 171. The Limone, Tameleo, and Greco/Wer-ner plaintiffs brought the instant litigation in May of 2002. Edward Greco followed suit in April of 2003, and the Salvati plaintiffs filed their case that July. All the cases were consolidated before me. This case has been litigated for five years and resulted in two published opinions on motions to dismiss, and an opinion by the First Circuit Court of Appeals. III. FACTFINDINGS Section A deals with the FBI’s efforts to prosecute La Cosa Nostra. It sets the stage for the Deegan trial and the instant accusations in the following ways: The FBI gave extraordinary priority to infiltrating and prosecuting members of the LCN. So important was the task that the FBI was willing to enlist killers to be informants on an ongoing basis, to keep the program so secret that not only state law enforcement but also other divisions within the FBI would not have access to it, and to allow four innocent men to be convicted. Through its illegal wiretap of Raymond L.S. Patriarca, Sr. (“Patriarca”), the top LCN boss, and its “Top Echelon Criminal Informant Program” the FBI received information not only about crimes that had taken place but those that were about to take place. Indeed, when Barboza testified at odds with that information in the Deegan case — notably, inculpating the plaintiffs — the FBI was no bystander. It knew that the testimony was false. Its fingerprints were everywhere. Section B deals with the period before the Deegan trial — the role of FBI agents H. Paul Rico and Dennis Condon in the investigation and their relationship to two “Top Echelon” informants and to Barbo-za. The agents used the Flemmi brothers to manipulate Barboza into testifying in the Deegan murder case, passing information to them for transmission to Barboza. They even used their conduits to get information from the defense camp about trial tactics and strategy. When Barboza made it clear that he would lie about Jimmy Flemmi’s involvement in Deegan’s murder, it did not matter to the FBI. They pressed him to testify nonetheless. Barboza was Rico’s most important witness — indeed a nationally renowned witness against the LCN. He was the “poster boy” for the FBI’s new witness protection program, the linchpin for the Bureau’s and the Boston office’s most important initiative. Since there was no direct federal jurisdiction over murder, state prosecutions were an essential part of the FBI’s agenda. And though Barbo-za was technically a witness for the state, the FBI was in complete control of him. They had constant, direct access — meeting with him before his grand jury testimony, between that appearance and the Deegan trial, and during the Deegan trial — most of the time with no state representative present. From March of 1967 to September of 1967, the FBI debriefed Barboza about a number of murders, including the Deegan murder. Not once did he implicate the plaintiffs. Indeed, every piece of evidence in the FBI’s files from the Patriarca wire, through the information from Top Echelon informants, confirmed the killers as Barbo-za, Flemmi, and three others — not the plaintiffs. Given the extraordinary information Rico, Condon, and the FBI hierarchy had, there is no doubt they knew on September 8, 1967, when Barboza excluded Jimmy Flemmi and suddenly included the plaintiffs in the murder, that he was lying. They knew that Limone had been overheard warning Deegan that Flemmi wanted to kill him. They knew that they had never even heard of Salvati before Barbo-za uttered his name. They knew that Greco and Tameleo had never been linked to this murder. Still, the FBI persisted, encouraging Barboza to testify, rewarding him for his efforts. And they vouched for him to the state authorities, telling them his story “checked out,” which was blatantly false. Without the FBI information, the state investigation was a charade. In so may words, the FBI said “just trust us” to the state, and then vouched for a perjurer. Section C deals with the Deegan murder trial itself. The state investigation of the Deegan case had stalled. Without Barbo-za there was no case. Without the FBI there was no Barboza. While the state authorities could corroborate information about the murder — how it happened, where and when — Barboza’s testimony was the only link to the plaintiffs. And his testimony about the plaintiffs could not be corroborated because it was false. Only the FBI had the means to prove Barboza’s falsity, and they were not talking. Even when Barboza testified that “the FBI never promised [him] anything,” they stood mute. The FBI’s role at trial went far beyond the failure to share evidence in their files. They were a formidable presence through the trial both directly and indirectly. They cultivated, debriefed and prepared Barboza. They corrected his testimony only when it was inconsistent with reports the defense was likely to have or when it made him vulnerable on cross-examination. Condon even testified on Barboza’s behalf attesting to the “purity” of Barboza’s false testimony. They conferred with and controlled major prosecution witnesses before they testified (Anthony Stathopoulos and John Fitzgerald). They advised Suffolk County Assistant District Attorney (“ADA”) Jack Zalkind (“Zalkind”) and his staff behind the scenes. Section D deals with the aftermath— between the conviction and the nolle prose-qui of the charges. As time passed, the government should have become more and more concerned about Barboza’s testimony and his actions afterwards. His threatened recantation in the Deegan case, the clear evidence that he had lied about Jimmy Flemmi, his demands upon the government, not to mention the fact that he murdered again — this time in California— after he was released from prison, should have rung alarm bells. Instead of investigating Barboza, the government continued to placate him with money, jobs, and in the most extraordinary gesture of all, the FBI imprimatur again, this time testifying on his behalf when he was accused of murdering Clay Wilson. Rico and Condon, together with Assistant United States Attorney Edward F. Harrington (“Harrington”), went to California to vouch for him, just as Condon had done in the Deegan trial— rather than investigate accusations that he had threatened he could get “anyone” imprisoned for “anything.” And by the 1980s, the FBI had yet another reason to suspect perjury — Rico had been cited for suborning perjury in state court under circumstances similar to the Deegan murder trial. At the same time the FBI was protecting Barboza, ignoring the warning signs, continuing to protect its Top Echelon informants, they stood silent as the plaintiffs filed motion after motion for a new trial, commutation petition after commutation petition. Worse yet, the FBI hinted— without basis — at Greco’s continued involvement in organized crime, or Salvati’s fraternization with an offender. Over thirty years after their conviction, Salvati and Limone were finally freed, the charges against them nolle prossed, thanks to the information disclosed in Salemme and the investigations it generated. Ta-meleo and Greco were not so fortunate. A. The FBI Program to “Get” La Cosa Nostra In the early 1960s, the FBI focused its energy on prosecuting organized crime in the United States. See Exh. 7; Exh. 8B; Exh. 9. That focus meant zeroing in on Raymond Patriarca, the reputed head of organized crime in New England. Two critical parts of the program were an illegal wiretap at Patriarca’s office and the so-called Top Echelon Criminal Informant Program. 1. Patriarca Wire On March 6, 1962, the FBI installed electronic surveillance without a warrant at Patriarca’s office in Providence, Rhode Island. FBI agents monitored the Patr-iarca wiretap, transcribing conversations, typing up any important information, and creating highlighted summaries that were transmitted regularly to Washington via “airtels.” Each day, Special Agents at the Providence and Boston offices would send the tape recording from the wire, along with the log created by the agents, to Special Agent (“SA”) John J. Kehoe Jr. (“Kehoe”) in Boston. Kehoe was the Supervisor of the Organized Crime Squad in the Boston office from 1962 to 1971. See Exh. 193A at 29; Exh. 341. Boston agents could access the airtel information by requesting it from Kehoe. And, given their significant roles in the effort against the LCN, Con-don and Rico had regular access. The FBI made every effort to keep the fact of the wire confidential, even within the agency. The Patriarca wiretap was given the informant identification number BS 837 C*. See Exh. 12; Exh. 13; Exh. 339. FBI reports describing conversations heard on the wire referred to it as if it were a human source, an informant just like any other. As described infra, in the course of their monitoring, the FBI overheard information about the Deegan murder on this wire before its commission — confirmed by Top Echelon informant reports after its commission — information which flatly contradicted Barboza’s account at the Deegan trial. 2. “Top Echelon Criminal Informant Program” In addition to the Patriarca wire, the FBI’s heightened efforts to penetrate and dismantle organized crime included the development of the Top Echelon Criminal Informant Program, officially inaugurated by J. Edgar Hoover on June 21, 1961. Three aspects of the program are significant: First, the informants involved were to be important enough organized crime figures that they would be able to provide high-level information on a major scale. See Exh. 193 at 56. (The corollary — apparently acceptable to the FBI — was that these informants might well continue to commit serious crimes.) Second, these were not merely witnesses getting deals for episodic appearances in court. Their relationship with the FBI was supposed to be a lasting one, providing information on a continuing, long-range basis. Third, the program was strictly confidential— which not only meant that its existence would be kept secret from the general public and other divisions within the federal government, but also from state law enforcement agencies. Even when disseminating particular facts to other agencies, as they did from time to time, agents were to take special care to paraphrase the information so that the informants’ identities would not be disclosed. See Exh. II. 3. Significance of (1) and (2) The Top Echelon Criminal Informant Program, together with the Patriarca wire, gave the agency extraordinary information. This was not just any old tip related by unnamed informants on an ad hoc basis. This was information heard or overheard from the horse’s mouth. As such, the FBI’s intelligence about the Deegan murder — both before and after it occurred— was unusually good. The risks, however, were obvious. Since there was no federal jurisdiction over murder, no federal racketeering statute, the FBI was obliged to work through local law enforcement, with whom it could not — or would not — share critical information, lest the information disclose its unique sources and jeopardize their programs. The result should have been predictable: A state prosecution based on the testimony of a witness that was plainly contradicted by the secret information in the FBI’s files. B. The Boston FBI, the Flemmi Brothers and Barboza 1. Agents Rico and Condon Rico was in the FBI from February 26, 1951, to May 27, 1975. He worked in the Boston office from 1962 until he was transferred to Miami, Florida, in April of 1970, partly as a reward for his work on the Deegan prosecution. In 1963, Rico was assigned exclusively to the development of Top Echelon informants. See Exh. 51C. He clearly had access to the files generated by both initiatives. Reviewing those files was part of his job. Condon was in the FBI from January 29, 1951, to May 20, 1977. He was assigned to the Boston office on April 26, 1952, and to the Organized Crime Squad in 1962. As such, he too had access to the case files in the Boston FBI office relating to organized crime, including the Patriarca wire and the Top Echelon Informant Program. See Exh. 193A at 28, 30-31. Agents Rico and Condon worked closely together from 1966 to Rico’s transfer in 1970. They were partners, staying m touch even after Rico moved to Miami. See Exh. 170 at 205; Exh. 192 at 176. By the time of the instant trial, Rico had died; Condon was unable to appear. Nevertheless, plaintiffs introduced Rico’s and Condon’s testimony before the House Committee, Rico’s testimony before Judge Wolf in Salemme, and Condon’s deposition. While I was not able to see these witnesses, I was able to evaluate their testimony in the light of the documents they generated or other documents to which they had access. As described below, Rico’s and Condon’s accounts of what they knew and when they knew it are resoundingly contradicted by the record, a fact which has had a serious impact on the government’s defenses. I find that both men lied in fundamental ways about their relationships with the Flemmi brothers and Barboza, about the information they had concerning the Dee-gan murder at the time of the trial, and their actions afterwards. 2. The Flemmi Brothers Jimmy and Stephen Flemmi were career criminals who served as Top Echelon informants. Both continued to commit crimes well after they became informants. In fact, Jimmy Flemmi was one of the Deegan co-conspirators, as the FBI well knew. Stephen Flemmi was close to his brother Jimmy; Jimmy, in turn, was close to Bar-boza. The FBI used the relationships among the three to get Barboza to testify, and turned a blind eye when Barboza covered up Jimmy Flemmi’s participation in the Deegan murder. Indeed, the agents were praised and promoted for their “ingenuity” in manipulating these men. See infra Section III.D.l. a. Jimmy Flemmi Before designating Jimmy Flemmi as a Top Echelon informant, See Exh. 19A, the FBI — and in particular, agent Condon— had collected extensive information about his criminal activities, which included a series of murders. See Exh. 38. From the Patriarca wire, they even had information that he was about to participate in the Deegan murder. Despite the information about Jimmy Flemmi’s murderous activities, the FBI targeted him for the Top Echelon program three days before the Deegan murder. Indeed, on the very day of the Deegan murder, March 12, 1965, Jimmy Flemmi was assigned to Agent Rico as a Top Echelon informant. See Exh. 19A; Exh. 19B; Exh. 44. Even after designating Jimmy Flemmi for participation in the initiative, the FBI continued to receive information about his penchant for killing. Flemmi’s designation as an informant was reviewed at the highest level of the FBI. On June 4, 1965, the FBI Director asked the Boston SAC for information on the status of Flemmi’s designation in the program. See Exh. 41. The Boston SAC’s response was telling: He noted that Rico, based on information from other informants and sources, believed Jimmy Flemmi had murdered six named individuals, including Edward “Teddy" Deegan. The memorandum added that “from all indications, he is going to continue to commit murder.” Exh. 43 at 3. The SAC nevertheless recommended Flemmi’s continued use by the FBI. Jimmy Flemmi’s victims did not matter to the FBI. All that mattered was that Flemmi “has been in contact with RAYMOND L.S. PATRIARCA and other members of La Cosa Nostra” and therefore “potentially could be an excellent informant.” The SAC concluded that Flemmi’s “potential outweighed the risks involved.” Exh. 43 at 3. On September 16, 1965, Jimmy Flemmi was “closed” as a Top Echelon informant because he had become a fugitive, and as such, “any contacts with him might prove to be difficult and embarrassing.” Exh. 49. Jimmy Flemmi died on October 16, 1979. See Exh. 338, ¶ 55. Information about Jimmy Flemmi’s relationship with the FBI did not surface until the Durham documents were disclosed. Indeed, the stonewalling continued in this litigation: Rico, whose name and signatures are all over the Jimmy Flemmi documents, see, e.g., Exh. 38, Exh. 19A, Exh. 19B, Exh. 44, lied about his relationship with Flemmi. He denied working with, much less opening, Jimmy Flemmi as an informant. See Exh. 170 at 169, 221. Condon, he insisted, may have been the one to open Jimmy Flemmi. See Exh. 170 at 159. Condon, however, denied any relationship with Jimmy Flemmi as well. See Exh. 193B at 26. b. Stephen Flemmi On November 3, 1965, the Boston SAC sent a report (drafted by Rico) to the Director targeting Stephen Flemmi as a Top Echelon informant — two months after his brother was closed. See Exh. 50B. Stephen Flemmi was assigned to Rico, See Exh. 166 at 17, with Condon as his alternate handler (in accordance with FBI policy that two agents be in a position to contact each criminal informant). See Exh. 304; Exh. 192 at 176; Exh. 177 at 49; Exh. 188 at 17. Rico vouched for Stephen Flemmi’s information to his superiors because Stephen Flemmi had direct access to Patriarca, as well as LCN bosses Gennaro “Jerry” An-giulo (“Angiulo”) and Larry Baione (“Baione”). See Exh. 167A at 44-45, 50-54, 72; Exh. 167B at 67-68. As with Jimmy, those contacts trumped Stephen Flemmi’s illegal and even murderous activities — bookmaking, shylocking, robberies and “possibly” gangland slayings. See Exh. 61B. Again, secrecy was preeminent: Flemmi “was to provide information only to this Bureau.... ” Exh. 304. He was not even available “to other field divisions.” Exh. 61B. Nor was Rico to ever disclose Stephen Flemmi’s crimes to any state prosecutors. See Exh. 192 at 165. Stephen Flemmi was rewarded not only with money, see Exh. 67, but, according to Flemmi, agent Rico and others promised him that he would be protected from prosecution for his crimes. See Exh. 189 at 62-63; Exh. 192 at 157. Flemmi testified (in the McIntyre case) that in 1969 Rico tipped him off that he was about to be indicted for the attempted murder of Bar-boza’s attorney, John Fitzgerald (“Fitzgerald”), and the murders of two others, giving Flemmi a chance to flee before the indictments came down. See Exh. 189 at 71-72. Flemmi further testified that even while he was “on the lam,” he was in regular contact with Rico, who advised him not to return until 1974. Flemmi returned, was arrested, and released on bail approximately one week later, notwithstanding the fact that he had been a fugitive. Within six months, all charges were dropped. See Exh. 189 at 75-76, 78. While Rico denied Flemmi’s accusations, I (like the other judges before me) wholly reject Rico’s account as not credible. Flemmi did in fact escape prosecution for these charges under circumstances that can only be explained by his extraordinary access to FBI agents, and in particular to Rico. See Exh. 192 at 157. 3. Using the Flemmi Brothers to Turn Barboza into a Witness In November of 1966, Rico focused on turning career criminal Joseph Barboza into a cooperating witness against the LCN. See Exh. 167A at 50-51, 72-73. Indeed, Barboza was the most important witness Rico had ever developed, see Exh. 167A at 87, one for whom he and Condon would receive praise, promotions, and raises. See infra Section III.D.l. Barboza’s unquestioned importance to Rico makes especially suspect Rico’s statements — before the House Committee and before Judge Wolf — in which he claimed not to remember critical details of reports he authored, initialed, or to which he had access. See Exh. 170 at 169,188. Based on information Rico had received from Stephen Flemmi — namely, that the LCN had murdered several of Barboza’s associates, and was threatening to kill more — Rico believed he had leverage to get Barboza to cooperate against Patriar-ca. See Exh. 59. Over the next year, Rico and Condon worked relentlessly to turn Barboza into a witness in several cases, Deegan among them. See Exh. 59, Exh. 167A at 72-75, Exh. 51C at 2-3; Exh. 51D. Stephen Flemmi was in close contact with his brother who, for a time, was in the same prison as Barboza. Rico thus had a conduit through which to send information to Barboza and receive information on Barboza’s activities. In effect, it enabled the FBI to affect Barboza’s testimony long before they ever met directly with him. See Exh. 167B at 79-81, 83. Stephen Flemmi was a significant source of information about his brother, the LCN, and Barboza. The state authorities prosecuting the Deegan murder knew nothing about the Flemmi brothers’ relationship to the FBI. 4. Rico and Condon Meet with Bar-boza The FBI meetings with Barboza beginning in March of 1967 must be put in context. First, the sheer number: Rico and Con-don met with Barboza more than thirty times between March of 1967 and his grand jury testimony on October 25, 1967, and then another twenty-six times before the start of Barboza’s testimony in the Deegan trial. At most of those meetings, no Suffolk County officials were present. The FBI met virtually weekly with Barbo-za, sometimes debriefing him, sometimes “just checking in.” See, e.g., Exh. 71A; Exh. 71B-28; Exh. 71B-31. State debriefings of Barboza were attached to FBI memoranda from September 1967 through the trial. See, e.g., Exh. 71A-1; Exh. 71B-54. Second, the content: Between March 1967 and September 1967, Barboza never mentioned the plaintiffs as having participated in the Deegan murder. Indeed, the plaintiffs had never been mentioned in any of the documents Rico and Condon had about the crime. It is fair to say that every piece of evidence in the FBI’s considerable files on Deegan pointed to other perpetrators. The meetings between Rico, Condon and Barboza described below, are divided between those before September 1967 when he first mentioned plaintiffs, and those af-terwards (and before the Deegan trial), a. Meetings Before September 1967 (1) March 8, 1967 Rico and Condon interviewed Barboza for the first time on March 8, 1967. They assured him that what he divulged would remain in confidence. Barboza’s value as a witness was obvious from the outset. Rico and Condon reported to their supervisors that Barboza said he “knows what has happened in practically every [Gangland] murder that has been committed in this area.” Exh. 71B-1. And from the outset, Barboza imposed an extraordinary condition on the content of his testimony: “He said that he would never provide information that would allow JAMES VINCENT FLEMMI to ‘fry’ but that he will consider furnishing information on these murders.” Exh. 71B-1. By “fry,” Condon understood that Barboza would not implicate Jimmy Flemmi in any capital crimes. See Exh. 193A at 54. Rico had a broader interpretation, understanding Barboza to mean that he would not say anything “harmful” to Jimmy Flemmi. See Exh. 170 at 220. Significantly, the agents knew that Flemmi had been involved in multiple murders, including the Deegan murder, see Exh. 38, but asked no follow-up questions. See Exh. 193A at 54-56; Exh. 193B at 95, Exh. 229. There is no question that they and their superiors fully understood that Barboza would be supplying at best, incomplete, and at worst, false information. They nevertheless pressured him to become a witness for the government. (2) March 21, 1967 Before their second meeting, Rico requested that a new Barboza Correlator Report be generated, and he reviewed the old one. The reports revealed what Rico likely already knew — that the wire had captured Barboza and Jimmy Flemmi seeking Patriarca’s permission to murder Teddy Deegan on March 9, 1965. See Exh. 45 at 3. At the March 21, 1967, meeting with Rico and Condon, Barboza acknowledged colluding with Jimmy Flemmi, telling him about the FBI’s overtures and even discussing who might testify about what. See Exh. 72 at 2. While Barboza was not ready to testify, he was more eager to provide information to the FBI than he had been before. He was now convinced that the “Italian Organization” was their common enemy. See Exh. 72 at 2. The agents’ plan was working. Barboza was parroting to them the information they had planted with Stephen Flemmi for transmittal to his brother and then Barbo-za. See Exh. 167B at 79-81, 83. Barboza furnished information about various crimes including the Deegan murder, and as promised, never mentioned Jimmy Flemmi: The supposed motive for Deegan’s murder was that he had been causing problems at the Ebb Tide nightclub in Revere, Massachusetts, and that Deegan was looking for an excuse to kill Bobby Donati, a friend of Rico Sacri-mone. See Exh. 71B-2 at 8; Exh. 72 at 4. The target of the “hit” was not only Deegan, but also Anthony Stathopoulos Jr. (“Stathopoulos”), a friend of Deegan’s. One of the men responsible approached Stathopoulos carrying “a .375 magnum and wearing a bullet-proof vest, but STATHO-POULOS was able to take off and get out of the area.” Exh. 72 at 4. Barboza did not tell Rico and Condon who that was, and true to form, the agents did not ask. See Exh. 193A at 86. The Director’s interest in Barboza was so great, the Boston office sent a teletype to Washington at 11:04 p.m. advising him of Barboza’s interview and their as yet unsuccessful efforts to obtain his testimony. See Exh. 74. (3) April 11, 1967 On April 11, 1967, Rico instructed Stephen Flemmi to reiterate the “Italian element’s” threats to Barboza at his visit with his brother the next day. Two days later, Barboza repeated what he had been fed by the Flemmi brothers to Rico and Condon. See Exh. 76. (4) April 27, 1967 On April 27, Barboza talked about the Deegan murder again, indicating that he had “heard” a police officer had left the door open to a building in Chelsea, and that Deegan believed he was going to be involved in a burglary. See Exh. 71B-4 at 2. (5) May 22, 1967 By May 22, 1967, Barboza sent word through his attorney, John Fitzgerald, to individuals he identified as LCN members that he was cooperating with the FBI. See Exh. 71B-12. He did not discuss the Deegan murder further until the end of July 1967, but offered the FBI information about other crimes. See Exhs. 71B-5-71B-17. As with the Flemmis, Barboza’s importance as a witness eclipsed the fact that he was a “professional assassin” and was “acknowledged by all professional law enforcement representatives in this area to be the most dangerous individual known.” Exh. 51C at 2. (6) Summer of 1967 After the FBI turned Barboza into a cooperating witness, pumping him for information for over four months, communicating threats to him by the “Italian element,” ingratiating themselves to him, expressing their concerns for his welfare and that of his wife, negotiating for his information and ultimately his testimony, then and only then did they invite Suffolk County investigators in. As Rico put it, disingenuously, to say the least, “[Barboza] was put in a position where he decided he wanted to testify. So we let him testify.” Exh. 170 at 189 (italics supplied). On June 30, 1967, and July 31, 1967, Barboza met with Rico, Condon, and Suffolk County investigator Joseph Fallon (“Fallon”). See Exh. 71B-16; Exh. 71B-17. Barboza listed the murders he could “talk” on, including the Deegan murder. See Exh. 71B-17; Exh. 89. But still he would not testify. On August 1, 1967, Rico and Condon met with Boston SAC Handley, Organized Crime Squad Supervisor Kehoe, U.S. Attorney Paul Markham (“Markham”), Suffolk County D.A. Garret Byrne (“Byrne”), and Fallon to discuss Barboza’s testimony in the Deegan trial and related immunity issues. On August 28, 1967, Rico and Condon, now joined by Suffolk County Detectives John Doyle (“Doyle”) and Frank Walsh (‘Walsh”) interviewed Barboza. Doyle asked point blank whether Barboza would furnish information on the Deegan murder. See Exh. 71B-22. While state law enforcement had some evidence regarding the crime, there is no question that the case was weak; no charges were forthcoming. See infra Section III.B.4.b.3. It was only after Rico and Condon offered Barbo-za to them that there was any chance of a successful prosecution. Whatever the significance of the Deegan prosecution to the state, there is no doubt that the FBI was also extraordinarily interested. The federal authorities had to use the state apparatus to prosecute murder cases. See supra Section III.A.3. Once it was clear that Barboza was to be the star in three prosecutions (two state, one federal), see supra note 60, his credibility was essential. The FBI was not about to let him out of their sight — monitoring his debriefings with state law enforcement, participating directly and indirectly in the trial itself, communicating all major developments to FBI Headquarters. Still not ready to testify in the Deegan murder, on August 28, 1967, Barboza offered more information about Deegan’s murder, beyond the “trouble at the Ebb-Tide” refrain: That Deegan had robbed Carmen Puopolo (a bookmaker in Everett), that Deegan had in fact murdered Anthony Sacrimone (and not just Sacri-mone’s friend), and that he was affiliated with the McLaughlin faction in the McLaughlin-McLean Gang war. See Exh. 71B-22. Finally, Rico and Condon’s efforts bore fruit — Barboza agreed to testify. But just because he was to be Suffolk County’s star witness clearly did not mean that Rico and Condon would have no further contact. Rico, Condon, and Barboza continued to meet before, during, and after the Deegan trial — with state officials present or without. b. Barboza Mentions the Plaintiffs for the First Time on September 8, 1967 Barboza implicated the plaintiffs in the Deegan murder for the very first time on September 8, 1967. But before that statement is described, it must be put into context: Barboza’s account was totally inconsistent with the list of participants that both federal and state law enforcement had from their informants. But for the FBI, the contradiction — and the impropriety — went far, far deeper. They had better — even conclusive — information which categorically contradicted Barboza, which implicated Jimmy Flemmi, Patriar-ca, and Barboza, and exonerated the plaintiffs. The minute Barboza’s mouth identified the plaintiffs, Rico and Condon had to have known he was lying. I describe first, what the FBI knew about the Deegan murder by September of 1967 and then, what the state authorities knew. (1) What the FBI Knew about the Deegan Murder Before The Murder (a)October 17, 1964 (five months before the murder): Jimmy Flemmi told an FBI informant that he wanted to kill Dee-gan because Deegan owed his brother money. While the FBI informed the Everett Police Department that Deegan was suspected of killing Anthony Sacrimone (which was also included in the informant’s account), they declined to tell them about the threat to Deegan. See Exh. 14 at 2. (b) October 20, 1964 (five months before the murder): The agents learned from the Patriarca wire that Limone, rather than orchestrating Deegan’s murder as Barboza would later claim, had warned Deegan that Flemmi was out to kill him. (c) March 4, 1965 (eight days before the murder): Patriarca was overheard on the wire telling Angiulo that Jimmy Flem-mi had gone to Providence to seek permission to murder Deegan. (d) March 9, 1965 (three days before the murder): Flemmi and Barboza were overheard asking for the “ok” to hit Dee-gan. Flemmi called Deegan “an arrogant, nasty sneak” who “should be killed.” Patriarca told them to collect more information on Deegan and then to contact Angiulo who would give them a final answer. (e) March 10, 1965 (two days before the murder): A Top Echelon informant reported that Jimmy Flemmi said Patriar-ca had given the “ok” to hit Deegan and a “dry run” had already been made. The informant said that Flemmi suggested he have an alibi for “the next few evenings,” in case he was suspected of the murder. See Exh. 4 at 4; Exh. 26; Exh. 29. The Deegan murder appeared imminent; the FBI did nothing to stop it. (2) What the FBI Knew after the Murder (a) March 13, 1965 (the day after the murder): One of Rico’s most valued Top Echelon informants, see supra note 69, reported that Jimmy Flemmi confessed that he had participated in Deegan’s murder along with Roy French (“French”), Joseph Romeo Martin (“Martin”), Ronnie Cassesso (“Cassesso”), and Barboza — with no mention of the plaintiffs. That account would be repeated over and over with minor variations in every single document the FBI had before Barboza’s September 8 tale. And at least as to Patriarca, Flem-mi and Barboza, it was confirmed by the wire. See Exh. 24; Exh. 4 at 5. In broad outlines, the informant related the following: The plan was for Barboza, Jimmy Flem-mi, Cassesso, Martin and French to kill Deegan and Stathopoulos when the latter two were robbing a finance company in Chelsea, Massachusetts. Patriarca had approved the “hit,” and a dry run had been taken. French, Deegan’s confederate, was the traitor, letting Barboza and his group know when and where the Deegan robbery would occur. With Deegan and French in the alley outside the finance company, and Stathopolous watching in their getaway car, Cassesso and Martin were supposed to shoot Deegan. Barboza and Flemmi would then shoot Stathopoulos. In fact, the Stathopolous part of the plan went awry when Chelsea Police Captain Kozlow-ski, in plain clothes, appeared at Barboza’s car. Barboza and Flemmi fled. Jimmy Flemmi reportedly told the informant that the reason Cassesso and Martin did the shooting was that they wanted to prove to Patriarca that they were capable individuals. Flemmi indicated that they did an “awful sloppy job.” Exh. 28. See also Exh. 4 at 5. While the March 13, 1965, memorandum indicates that information was disseminated by SA Donald Shannon to Captain Ren-frew of the Chelsea Police, it was communicated without any indication that it came from a highly trusted source, or that the participation of Flemmi, Patriarca, and Barboza had been fully corroborated by the FBI’s illegal wire. (b) March 13, 1965: An informant, reporting to Rico, confirmed the earlier report. (c) March 19, 1965: Kehoe sent an air-tel to the Director summarizing the prior information. He reiterated the five participants — -French, Cassesso, and Martin as the Deegan shooters, Flemmi and Barboza as the proposed shooters of Stathopoulos. See Exh. 31. Meanwhile, the Chelsea police had confirmed that French, Barboza, Flemmi, Cassesso and Martin were together at the Ebb Tide restaurant, leaving at “approximately 9 o’clock and return[ing] 45 minutes later.” Exh. 31. (d) March 23, 1965: A potential criminal informant (“PCI”), whose information was rated “very good,” reported that Bar-boza confessed that he had shot Deegan with a .45 caliber gun. The informant also stated that “JIMMY FLEMMA [sic]” had gone to Providence to see Patriarca just before Deegan was killed, and that Barbo-za and “FLEMMA [sic]” were very friendly. See Exh.34. (e) March 24, 1965: Kehoe sent an air-tel to the Director, signed by Boston SAC Handley. The Director instructed Boston to “advise the appropriate authorities” of the possible perpetrators of the Sacrimone and Deegan murders. He instructed Boston only to do so, however, while maintaining “full security to BS 837-C*,” the Patr-iarca wire. See Exh. 30A; Exh. 30B. I find that to the extent that the FBI “shared” any information with local authorities before offering up Barboza as a witness, it was very general information already in the possession of the state. The FBI could not disclose information that they had before the killing — that it was Flemmi and Barboza who sought permission from Patriarca to kill Deegan, that Limone warned Deegan — or its source — without compromising the wire. Nor would they identify their Top Echelon informants and why they found their information so extraordinarily reliable. (f) June 1965 and July 1965: The critical Patriarca wire information was repeated in reports over and over again. And in each case, the account of the Dee-gan murder there mirrors all of the earlier ones. I find that Rico, Condon, and the FBI hierarchy were well aware of these documents and their implications for the plaintiffs, notwithstanding their subsequent denials. Indeed, the conclusion is inescapable: Rico and Condon lied about what they knew on September 8, 1967, just as they lied concerning their relationship to the Flemmi brothers. See supra Section III.B.2. Although Rico claimed that he was not aware of the pre-September 8 information when Barboza was spewing his lies, see Exh. 170 at 198, he either authored the documents described above or initialed them as read. Barboza was his singular achievement, dealing with the LCN his principle responsibility. It is inconceivable that any detail of Barboza’s accounts of gangland murders escaped Rico’s attention. By the second day of the House Committee hearing, Rico stopped testifying entirely on Fifth Amendment grounds. See Exh. 170 at 107. Condon was likewise privy to the documents described above, given his role as Rico’s partner, and his position in the Organized Crime Squad, see supra Section III.B.1., yet he too lied. For example, he denied ever seeing a copy of Kehoe’s January 14, 1966, “Boston Gangland Murders” report, Exh. 57, which repeated who the five perpetrators of the Deegan murder were (Barboza, Flemmi, Cassesso, Martin and French). See Exh. 193B at 21, 57. This was so even though he admitted his initials were on the cover of the Kehoe report, signifying that he had viewed it. See Exh. 324 at 1, 6. He went so far as to deny that Rico shared any information with him about Deegan’s death, see Exh. 193B at 21, or that he knew what the wire disclosed about Flemmi, Barboza and Patriarca, see Exh. 193B at 228. In short, I do not find the accounts of either agent — concerning what they knew when Barboza pointed the finger at plaintiffs — to be remotely credible. They had every reason to believe that the men Bar-boza identified, Limone, Tameleo, Greco and Salvati, had absolutely no involvement in the Deegan murder, while the man he left out, Jimmy Flemmi, did. (3) What the Local Authorities Knew about the Deegan Murder Following the Deegan murder, the local police (Chelsea and Boston Police Departments as well as the Massachusetts State Police) had some information implicating the same five individuals as did the FBI. What they did not know was how accurate that information was — i.e. the extent to which the information had been fully confirmed by an illegal wiretap, and the FBI’s multiple, and ostensibly very reliable, informants. This was critical: It is one thing for state authorities to believe that an informant said thus — and—so.. It is another to know that the information came from a valued informant with whom the FBI had a long-standing, committed relationship. And still another to understand that the plot in question was actually overheard before it was executed. Shortly preceding the murders, Captain Joseph Kozlowski (“Kozlowski”) of the Chelsea Police saw a red car with the rear licence plate folded over near the crime scene. He saw two men inside — the man in the back seat had dark hair with a bald spot on the center of his head. See Exh. 21. Lieutenant Thomas Evans (“Evans”) reported that he followed up on Kozlow-ski’s lead. He went to the Ebb Tide with Captain Renfrew and Detective Moore, where they saw a red car with the rear license plate creased down the middle, belonging to Romeo Martin. The police brought Martin and Imbruglia to the police station for questioning. Kozlowski said the car looked like the one he had seen earlier, but did not recognize either man. See Exh. 22 at 2 Lieutenant Evans’ report also recounts information derived from Captain Ren-frew’s informant: French had received a phone call around 9:00 p.m., shortly after which he left the Ebb Tide with Barboza, Cassesso, Jimmy