Full opinion text
MEMORANDUM AND ORDER WOLF, District Judge. I. SUMMARY. 00 1. The Facts Concerning Defendant Stephen Flemmi’s Motion to Dismiss Based on Immunity. 00 ^ 2. The Motion to Dismiss Based on Immunity. CO CD 3. Flemmi’s Motion to Suppress the 1984-85 Electronic Surveillance. to *£> T — I 4. DeLuca’s Motion to Suppress Concerning the LCN Induction Ceremony O rH 5. Conclusion of Summary. <M l> rH II. FINDINGS OF FACT. 1. The Standards Applied. 2. Rico and Flemmi. 3. Flemmi as a Fugitive . 4. The Development of Bulger as an Informant. 5. The FBI Forges the Flemmi-Bulger Partnership. 6. Attorney General Levi’s Memorandum on FBI Informants. 7. Bulger and Flemmi Begin to Perform as a Team. 8. Morris Becomes Chief of the Organized Crime Squad. 9. The Race-Fix Case. 10. The FBI Does Not Investigate Bulger or Flemmi. 11. The Lancaster Street Garage and 98 Prince Street. 12. Sarhatt Extends Bulger and Flemmi As Informants. 13. The Wheeler, Halloran, and Callahan Murders. 14. The FBI Identified Other Informants for Flemmi and Bulger. 15. The South Boston Liquor Mart. 10^COC010C£300t>0005H(Mt>OOC010 t-M>00C0C0C00)C505OOOOHH i-H rH rH rH rH rH rH rH rH rH CVl (M Cvl (M 0-3 C'J 16. Greenleaf Becomes SAC and Ring Becomes Supervisor of the Organized Crime Squad. CO J-* 05 17. The 1984-85 Electronic Surveillance . CO CO O 18. Morris Tells Bulger and Flemmi That They Can Do Anything They Want as Long as They Do Not “Clip” Anyone. CM ^ <M 19. Dining with “Donnie Brasco”. ^ <M 20. Vanessa’s. ^ CM 21 Flemmi Becomes A Top Echelon Informant Again. 00 CM 22. Raymond Slinger. O lO (M 23. Bulger and Flemmi Are Protected From Investigation In the Hobart Willis Case. 24. The Guard Rails at the South Boston Liquor Mart. 25. Joseph Murray. 26. John Bahorian . 27. The Leak and the Threat to The Boston Globe. 28. Flemmi and Salemme. 29. Mercurio as an Informant . 30. The LCN Induction Ceremony. 31. Mercurio as a Fugitive. 32. The Investigation of Flemmi and Bulger. 33. The Indictment of Bulger and Flemmi and Its Aftermath. COCOtOCOCOCOCOCOCOCOCO OC0000505050T0I0IÜ1Ü1 HWOCOWCOCDOOOÍÜUI^ III. CONCLUSIONS OF LAW. lO rH CO 1. Flemmi’s Motion to Dismiss or Suppress Based on Immunity. 1C rH CO A. The Court is Now Considering Only the Issue of Immunity. tO rH CO B. The Applicable Standards Concerning Immunity. t> rH CO C. Dismissal of This Case Is Not Now Justified Because Flemmi Was Not Promised Immunity From Prosecution. H (M CO D. The Issues of Use and Derivative Use Immunity . lO <M CO (1) Flemmi Does Not Have An Agreement Providing Use Immunity Generally For His Statements to the FBI. ⅞0 <M CO (2) The Promise of Confidentiality Means Statements to the FBI Which Have the Effect of Identifying Flemmi as an Informant Cannot Be Used Against Him Unless His Defense Makes Them an Issue . CD <M CO (3) Flemmi Had an Enforceable Agreement Relating to 98 Prince Street, Vanessa’s, and 34 Guild Street.... CO CO CD (4) A Hearing Will Be Necessary to Determine If This Case Must Be Dismissed and, If Not, Whether Any Evidence Must be Excluded at Trial . 341 (5) If Morris and Connolly Were Not Authorized to Promise Flemmi that the Evidence Intercepted at 98 Prince Street, Vanessa’s, and 34 Guild Street Would Not Be Used Against Him, Flem-mi’s Statements to the FBI Relating to Those Interceptions May Have Been Involuntary and, In Addition, Use of Any Evidence Intercepted At Those Locations May Violate Flem-mi’s Right to Due Process. CO ^ CO 2. The Motion to Suppress the 1984-85 Electronic Surveillance. i — 1 io CO A. Summary. rH CO B. Suppression is Not Justified Based on the Alleged Violation of 18 U.S.C. § 2616(1). CO 10 CO C. The Standards to be Applied in Deciding Whether to Suppress for a Failure to Satisfy the Requirements of 18 U.S.C. § 2518(l)(c)Con-cerning the Necessity for Electronic Surveillance. 00 to CO D. The Necessity Provision of Title III, § 2518(l)(c), is Constitutional in Origin. 03 ⅜⅜⅛. E. The Motion to Suppress the 1984-85 Surveillance is Meritorious. 03 CO F. A Hearing is Necessary to Identify the Evidence Which Must be Suppressed Because of the Government’s Unlawful Conduct Concerning the 1984-85 Electronic Surveillance and to Determine if Any Other Remedy is Required. o 00 CO 3. Flemmi is Not an “Aggrieved Person” With Standing to Seek Suppression of the Interceptions at Vanessa’s Under Title III. 00 CO 4. DeLuca Does Not Have Standing to Move to Suppress the Evidence Intercepted at 34 Guild Street For a Violation of Title III Because the 1998 Supreme Court Decision in Minnesota v. Carter Indicates That Although His Conversation was Intercepted, It Did Not Constitute an “Oral Communication” As Defined in the Statute, and DeLuca’s Fourth Amendment Rights Were Not Violated 00 CO IV. CONCLUSION.400 V. ORDER . ...401 In 1861, Lord Acton wrote that, “[e]very thing secret degenerates, even the administration of justice.” John Emerich Edward Dalberg Acton, Lord Acton and His Circle 166 (Abbot Gasquet, ed., 1968). This case demonstrates that he was right. I. SUMMARY 1. The Facts Concerning Defendant Stephen Flemmi’s Motion to Dismiss Based on Immunity On January 5, 1995, defendant Stephen Flemmi was arrested on a criminal complaint which charged him, James “Whitey” Bulger, and George Kaufman with conspiring to extort money from a bookmaker, Burton Krantz. Five days later, on January 10, 1995, Flemmi, Bulger, Kaufman, and four other defendants were indicted on multiple charges of racketeering and extortion, among other crimes. A complaint authorizing Flemmi’s arrest prior to indictment was obtained by the prosecutors because they were concerned that Bulger and Flemmi would be informed of their imminent indictment and flee. This fear was well founded. Beginning in 1965, Flemmi secretly served as a very valuable and valued confidential informant for the Federal Bureau of Investigation (the “FBI” or “Bureau”). In the thirty years prior to his arrest, Flemmi was, among other things, instrumental in the FBI’s successful and acclaimed effort to incarcerate three generations of the leadership of the Patriarca Family of La Cosa Nostra (the “LCN” or “Mafia”). Flemmi had also assisted the FBI in obtaining a warrant that was used to intercept, for the first time, an LCN induction ceremony. § 11.30. In 1976, the FBI played a pivotal role in forging a formidable, enduring partnership between Flemmi and Bulger, who had in 1975 also become an FBI informant. The FBI made Bulger and Flemmi, who were previously acquainted but not close, a perfect match. In Boston, Flemmi and Bul-ger uniquely shared an antipathy for the LCN, a desire to profit criminally from its destruction, and, most notably, the promised protection of the FBI. § II.5. As described in detail in this Memorandum, and as summarized below, many members of the FBI participated in honoring the promise to protect Flemmi and Bulger. Prominent among them was John Connolly, who from 1975 until his retirement in 1990 was their FBI “handler.” Although retired in 1995, Connolly remained in contact with his close friends and former colleagues on the Organized Crime squad in the Boston office of the FBI. As a result, he learned that Bulger and Flemmi were scheduled to be indicted on about January 10, 1995. Connolly shared this information with Bulger, who, as Connolly expected, became a fugitive and also warned Flemmi so that he could flee. Flemmi, however, miscalculated. Not expecting to be charged and subject to arrest so soon, Flemmi was still in Boston when the criminal complaint against him was issued on January 4, 1995. § 11.32. Flemmi’s arrest represented a radical departure from his historic relationship with the government. At the urging of Attorney General Robert Kennedy, in the mid-1960’s a previously reluctant FBI became committed to combatting the LCN. FBI Special Agent H. Paul Rico recruited Flemmi to serve as an asset in that effort, which has since the mid-1960’s been the FBI’s highest national priority. Flemmi was, among other things, known to Rico as a member of the Winter Hill Gang, which was in the midst of a violent gang war, and as a reputed murderer. Flemmi then had close contact with key members of the Patriarca Family, in meaningful measure because of his partnership with his present codefendant Francis Salemme. Although rightly regarded as a potential member of the Patriarca Family, Flemmi did not share Salemme’s unequivocal enthusiasm for the LCN. Thus, Flemmi was responsive to the relationship that Rico proposed. § II.2. Because of Flemmi’s ability to provide information concerning leaders of the LCN, Rico caused the FBI to designate him as a Top Echelon informant, the highest status a Bureau source can achieve. Flemmi, however, was never told that he was opened or closed administratively as an informant. Nor was Flemmi advised that any of the information that he was providing was being memorialized in writing. Rather, instead of treating Flemmi as a criminal to be dealt with cautiously, Rico successfully sought to cultivate in Flemmi the sense that he was an ally in a common cause, primarily a war against the LCN. § II.2. This is a sense that was later nurtured by Connolly, when he succeeded Rico as Flemmi’s handler, despite the fact that Connolly too understood that Flemmi had committed many serious crimes, including murder. §§ II.5,11.33. As the alliance between the FBI and Flemmi and Bulger developed, Flemmi and Bulger were invited to dine periodically with members of the FBI engaged in investigating the LCN, including Connolly, several of his colleagues on the Boston Organized Crime squad, Connolly’s supervisors, John Morris and James Ring, and Joe Pistone, an FBI agent from New York who had become famous for his undercover infiltration of the LCN as “Donnie Bras-co.” The timing of these dinners suggests that they were often arranged to celebrate milestones in the FBI’s relationship with Bulger and Flemmi, such as the successful bugging of the LCN’s Boston headquarters at 98 Prince Street in 1981, and the frustration of an investigation of Bulger and Flemmi that had been led by the Drug Enforcement Administration (the “DEA”) in 1984-85. At these dinners, the agents, Bulger, and Flemmi at times exchanged gifts. Although FBI procedures required that all contacts with informants be documented, there is only one, 1979 report reflecting matters discussed at these dinners. There is no record of the gifts exchanged. §§ 11.10, 11.11, 11.16, 11.17, 11.18. Rico made several promises to Flemmi in the course of developing him as an informant. Among other things, Rico promised Flemmi that his cooperation would be confidential and that his service as a source would not be disclosed to anyone outside of the FBI. This was a customary assurance that the FBI has provided to its informants at least since 1965. It is a promise that Rico and the many other past and present members of the FBI agents who testified in this case regarded as “sacred.” §§ II.2, II.8. There was good reason for agents of the FBI to believe in the importance of the promise of confidentiality that is regularly made by the Bureau to its informants. As the Supreme Court has recognized, providing potential sources reasonable assurances regarding the confidentiality of their cooperation encourages them to provide information and protects their safety. Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Moreover, the FBI Manual has long instructed agents to exercise constant care to assure that an informant’s identity not be disclosed to anyone, intentionally or inadvertently. §§ II.6 and III.1.D(3). Strictly adhering to this principle, unless authorized by the informant, the FBI has regularly refused to identify its sources even to prosecutors and other Department of Justice officials with a legitimate need to know whether, among other things, subjects of investigations were cooperating with the FBI and, therefore, might assert, or indeed have, certain foreseeable defenses to prosecution, including that they had been promised immunity or authorized to commit acts that would otherwise be criminal. §§ II.2,11.17,11.20,11.30,11.32,11.33. Officials of the Department of Justice have historically accepted the fact that the FBI would refuse any request to confirm or deny that an individual was an informant. For example, William F. Weld, a former United States Attorney in Boston and a former Assistant Attorney General in charge of the Criminal Division, testified that he expected that if he asked the FBI to identify an informant, he would be told to “go pound sand.” §§ 11.17, III.1.D(3). As a formal reflection of this attitude, in 1976, when the Attorney General first issued Guidelines for the FBI to use in exercising its discretion with regard to dealing with informants, the Guidelines provided no role for the United States Attorney or the Department of Justice in authorizing an informant to engage in what would otherwise be criminal activity. They were later revised to require consultation with the United States Attorney before the FBI authorized an informant to engage in criminal activity that involved a significant risk of violence, but stated that any such consultation be conducted in a manner that would not reveal the identity of the source. § II.6. It was the understanding of the present and former members of the FBI who testified in this case that information which Flemmi or any other informant provided the FBI could not properly be used against him or, in any event, that it would not be used against him. Thus, it was the consistent practice of the FBI not to use information received from an informant to investigate him. Nor would the Bureau disclose information provided by a source to any other agency or any prosecutor investigating him. §§ II.2, II.8, 11.14, 11.16,11.20,11.21,11.83, III.l.D(2)-(3). While the repeated promises of confidentiality which Flemmi received were customary and generally regarded as appropriate, Rico also made Flemmi a promise that was irregular, but not unique. He promised Flemmi that if he served as an FBI informant, the Bureau would protect him. § II.2. This is a promise that was expressly reiterated and amplified by Connolly and Morris. §§ II.5, 11.11, 11.18. As summarized below, the assurance that Flemmi would be protected by the FBI was also communicated by the conduct of Rico, Connolly, and Morris, and was confirmed by the actions of many, but not all, of their colleagues in the FBI. Flemmi, however, was never told that the protection that he was promised included immunity from prosecution. The word “immunity” was never mentioned. §§ II.2, II.5, 11.16. Flemmi understood that it was permissible for agencies other than the FBI, or FBI agents ignorant of his relationship with the Bureau, to investigate him. He also knew that he could properly be prosecuted if any such investigation succeeded despite the best efforts of his FBI handlers to protect him. §§ II.2, II.9,11.17,11.32, III.l.C. Relying upon the promises made to him by the FBI, and on the repeated performance of those promises, Flemmi rendered exceptional service in the Bureau’s war against the LCN and other matters. In the 1960’s, Flemmi regularly provided information, that Rico rated as “excellent,” regarding the activities of Raymond L.S. Patriarca, and other members and associates of the Family that bore his name, including Gennaro Angiulo, Illario Zanni-no, who was also known as Larry Baione, and Salemme. Flemmi was also instrumental in Rico’s successful effort to develop LCN member Joseph Barboza into a cooperating witness. Barboza’s testimony led to the convictions of Patriarca and several of his associates, and earned him national renown. In addition, in the mid-1960’s, Flemmi furnished Rico with an appreciated warning of a threat to the life of Suffolk County District Attorney Garrett Byrne. § II.2. In 1969, Rico told Flemmi that he and Salemme would soon be indicted for the attempted murder of Barboza’s lawyer, John Fitzgerald, and suggested that they flee. Flemmi and Salemme acted on that advice. While a fugitive, Flemmi stayed in touch with Rico. Rico, however, did not tell the agents responsible for the Flemmi fugitive investigation that he had spoken to him. It appears that after separating from Salemme because of a series of disagreements, Flemmi told the FBI where Salemme could be found. Thus, Connolly was able to apprehend Salemme in New York. §§ II.2, II.3. After Salemme was convicted of the Fitzgerald bombing and incarcerated to serve a lengthy sentence, at Rico’s request Flemmi returned.to Boston in 1974. As Rico promised, Flemmi was immediately released on bail and the charges against him were dropped. § II.3. In 1975, with assistance from Bulger, Connolly revived Flemmi’s relationship with the Bureau. Flemmi promptly proved his continued value as a source. After .Barboza was murdered in 1976, Flemmi provided information that permitted Connolly to convert a coconspirator into a cooperating witness who identified Patriarca Family member Joseph Russo as Barboza’s killer. In 1992, Russo pled guilty to that charge and was sentenced by this court to what turned out to be life in prison. § II.7. In 1980, Flemmi provided Connolly with information concerning the assassination of federal Judge James Wood by a group of major drug dealers. Connolly later advised his superiors that he believed that the contacts Flemmi had made at his direction in that investigation may have created the false impression that Flemmi was involved in narcotics. § 11.11. In 1980, Flemmi and Bulger made a critical contribution to the FBI’s ambitious and ultimately successful effort to bug An-giulo’s headquarters at 98 Prince Street. The location was viewed as virtually impenetrable. Connolly and Morris asked Flemmi and Bulger to visit 98 Prince Street and obtain information important to the physical feasibility of the proposed bugging. Bulger justifiably feared that he and Flemmi might be killed if they went to that location. Flemmi expressed the additional concern that the bugging of 98 Prince Street would likely result in the interception of information concerning criminal activity in which he and Bulger were engaged. Morris and Connolly, however, assured Flemmi and Bulger that the 98 Prince Street tapes would not be a problem for them; they would be protected for anything intercepted at 98 Prince Street rather than prosecuted. Thus, Flemmi reasonably understood that if he assisted the FBI, none of the evidence intercepted at 98 Prince Street would be used against him, directly or indirectly. §§ 11.11, III.1.D(3). As a result of the promises made by Morris and Connolly, Flemmi went with Bulger to 98 Prince Street, and returned with a diagram of the premises and the other information that the FBI had requested. Subsequently, Bulger and Flem-mi were two of the informants relied upon in the application for the warrant which was issued authorizing the installation of a bug at 98 Prince Street. Id. In 1991, Morris assessed for his superiors Flemmi’s value as an informant, writing that the information Flemmi provided had been utilized in six successful applications for electronic surveillance, involving, among other things, the two highest priority Organized Crime investigations in Boston. The 98 Prince Street investigation, Morris wrote, “is one of the highest priority organized crime cases in the FBI today and involves what has been characterized by [FBI Headquarters] officials as one of the most important and successful Title Ills to have been conducted by the FBI in the past ten years.” Id. In 1985, at a dinner at Morris’ home, in Connolly’s presence, Morris again told Flemmi and Bulger that they would not be prosecuted for anything on the 98 Prince Street tapes. In addition, Morris told them, “you can do anything you want as long as you don’t ‘clip’ anyone.” § 11.18. Morris’ 1981 assessment of the value of the 98 Prince Street tapes to the FBI proved to be accurate. With continued assistance from Flemmi and Bulger, the FBI used the evidence intercepted there to develop a case which secured the convictions, in 1986, of Angiulo, Zannino, and much of the rest of the leadership of the LCN in Boston. §§ 11.12,11.20. Following those convictions, Flemmi quickly contributed to the FBI’s effort to incarcerate the next generation of the leadership of the LCN in Boston, including Russo, Vincent Ferrara, and Robert Carrozza. Flemmi reported that the emerging leaders of the LCN were meeting regularly in a storeroom at Vanessa’s Restaurant, which was owned by Angelo “Sonny” Mercurio, who had recently been released from prison. § 11.20. The FBI targeted Vanessa’s for electronic surveillance. Once again, Flemmi was tasked to obtain vital logistical information and performed his mission. Flem-mi and Bulger were later two of the three sources relied upon in the application for a warrant to bug Vanessa’s. Before being discovered in 1987, the bug intercepted, among other things, a dramatic extortion of two elderly bookmakers, “Doc” Sagan-sky and Mo Weinstein, which Flemmi had told the FBI was being planned. As a result, the Bureau developed a powerful case against Ferrara, Carrozza, Mercurio, and a number of their confederates. Id. At Connolly’s request, in 1988, Flemmi began to provide information again on Sa-lemme, who had recently been released after serving fifteen years in prison for the Fitzgerald bombing. Raymond J. Patriar-ca had by then succeeded his deceased father as Boss of the Family. In early June 1989, Flemmi reported that Patriarca had given his “blessing” to Salemme to assume leadership of the LCN in Boston when, as anticipated after a search warrant was executed at Vanessa’s, Russo, Ferrara, and their crew were indicted. Flemmi also kept Connolly up to date on the substantial and escalating risk that the Russo faction of the LCN might soon try to murder Salemme. §§ 11.28, 11.29. In addition, Flemmi contributed to the FBI’s successful effort to target Salemme for electronic surveillance at the Busy Bee restaurant. § 11.28. Flemmi and Bulger also contributed to the recruitment of Mercurio as a Top Echelon informant. As they explained to Connolly, Mercurio was disenchanted with the LCN, close to Bulger and Flemmi, and planning to flee rather than return to prison as a result of the bugging of Vanessa’s. Employing a profile provided by Flemmi and Bulger, Connolly and Ring developed Mercurio into a very valuable source, who, among other things, made it possible for the FBI to bug the LCN induction ceremony conducted on October 29,1989, at 34 Guild Street in Medford, Massachusetts. §§ 11.29,11.30. Connolly retired from the FBI in 1990. As a result, without their knowledge, Flemmi and Bulger were closed administratively as FBI informants. Flemmi, however, was then characterized as having “furnished the Boston Division [of the FBI] very valuable information through the years regarding LCN activities.” Ex. 44. The Bureau did not want to lose Flemmi and Bulger as sources when Connolly retired and, therefore, reported that it was considering options to reopen them. Although not assigned a new handler, Flemmi continued to provide, through Connolly, information that the FBI was seeking concerning the LCN. That information included the numbers of the telephones used by Salemme’s brother Jack, which the Bureau wished to tap as part of its investigation of Salemme. § 11.32. As indicated earlier, Rico, Connolly, and Morris each told Bulger and Flemmi that he would be “protected” in return for serving as an informant. §§ II.2, II.5, 11.18. The conduct of Rico, Connolly, Morris, and many but not all of their colleagues at the FBI, expressed even more clearly than their words the FBI’s agreement to protect Flemmi. Rico told Flemmi about other individuals who were cooperating with law enforcement so that Flemmi could be careful around them. § 11.14. As described previously, in 1969, Rico advised Flemmi that he and Salemme would soon be indicted and suggested that they flee promptly. § II.2. In addition, as Rico promised, Flemmi was immediately released on bail and the fugitive charges against him were dismissed when Flemmi followed Rico’s advice and returned to Boston in 1974. § II.3. Connolly and Morris, individually and in tandem, also acted repeatedly to protect Flemmi. In 1977 or 1978, Connolly intimidated executives of National Melotone from pursuing their complaint that Bulger and Flemmi were extorting the vending machine company’s customers. § II.7. In early 1979, with their sources’ consent, Morris and Connolly told Strike Force Attorney Jeremiah O’Sullivan that Flemmi and Bulger were valuable informants and persuaded him, with the agreement of Thomas Daly, the FBI agent who was leading the investigation, not to indict them in a race-fix case, in part so that Bulger and Flemmi could contribute to the FBI’s effort to bug 98 Prince Street. § II.9. In 1979, Morris received reports from informants that Bulger and Flemmi were shaking down bookmakers, but no investigation was conducted. § 11.10. In 1980, Connolly informed Bulger and Flemmi that the Lancaster Street Garage had been bugged as part of a Massachusetts State Police investigation or confirmed that fact for them. Also in 1980, Flemmi and Bulger were told when the bug at 98 Prince Street was installed and when it was removed so that they would not be intercepted. § 11.11. In 1982, Morris caused Connolly to tell Flemmi and Bulger that Brian Halloran was cooperating with the FBI and had implicated them in the murder of Roger Wheeler, the President of World Jai Lai. About two weeks later, Halloran was killed. Morris believed that Bulger and Flemmi were responsible for Halloran’s death, but did not disclose to the agents investigating it that they had been told that Halloran was cooperating with the Bureau. § II.13. In an effort to protect Bulger and Flem-mi, Morris and Connolly also identified for them at least a dozen other individuals who were either FBI informants or sources for other law enforcement agencies. One of them may have been John McIntyre. McIntyre disappeared about six weeks after he told the FBI and several other law enforcement agencies that Bulger was engaged in illegal activity, and that Bulger’s associate Patrick Nee was involved with the Valhalla, a ship that was captured running guns to the Irish Republican Army. McIntyre was planning to meet with Nee the night that he disappeared. § 11.14. In 1984, Connolly received reliable information that Bulger and Flemmi were engaged in an ongoing extortion of Stephen and Julie Rakes to obtain control of a liquor store that came to be known as the South Boston Liquor Mart. Connolly neither recorded the information nor conducted any investigation. He did, however, share the information that he had received with Bulger. § 11.15. As summarized more fully below, in 1984, Connolly also warned Flemmi and Bulger of an investigation targeting them that was being led by the DEA. He subsequently told them that as part of that investigation a wiretap had been placed on the telephone of their colleague Kaufman. § 11.17. In 1986, after tasking Flemmi to acquire information vital to the FBI’s effort to bug Vanessa’s, Connolly told him when the bug was installed so that Flemmi would not be intercepted. Connolly later told Flemmi when the bug had been removed. § 11.20. In 1988, Connolly advised Flemmi that a Boston Police Lieutenant, James Cox, would be wired and would attempt to engage Flemmi in incriminating conversation. § 11.26. Also in 1988, Morris had Connolly warn Flemmi and Bulger to stay away from John Bahorian, whose telephone was about to be tapped by the FBI in an effort to acquire evidence against Flemmi, among others. Morris also told Connolly to tell Bulger and Flemmi not to do anything to Bahorian because he “did not want another Halloran.” Morris later reiterated both of these warnings directly to Bulger and Flemmi. He also told Flemmi that he could keep him out of any indictment arising from the Bahorian electronic surveillance. Although Bahorian and others were ultimately indicted, Flemmi was not. M In 1988 or 1989, Connolly told Bulger that Timothy Connolly was cooperating with the FBI and would try to record conversations with Bulger and Flemmi. Bulger passed this warning on to Flemmi. § 11.28. After providing Connolly information to assist in the FBI’s effort to recruit Mercu-rio as an informant, Flemmi was told when that initiative had succeeded. § 11.29. Following his retirement in 1990, Connolly used his continuing connections with his close friends and former colleagues on the Organized Crime squad to obtain information concerning investigations that might have resulted in charges against Bulger and Flemmi. Connolly regularly shared the information he acquired with them, including the scheduled date for the indictment of Bulger and Flemmi in this case. § 11.32. While Rico, Morris, and particularly Connolly were at the hub of the protection promised and provided to Flemmi, many of their colleagues and superiors in the FBI also contributed by their conduct to that promise and to its fulfillment. In 1977, Daly and Special Agent Rod Kennedy were told by Francis Green that Bulger and Flemmi had threatened to Mil him in connection with their attempt to collect a debt, but no effort was made to develop the reluctant Green as a witness against them. § II.7. As described earlier, in 1979, Daly later joined O’Sullivan in agreeing not to charge Bulger and Flemmi in the race-fix case. § II.9. In 1982, the Boston FBI agents aware of Halloran’s cooperation did not tell their colleagues in OMahoma City, who had expressed interest in him, that Halloran was available to be interviewed. When agents from OMahoma City sought to interview Bulger and Flemmi, ASAC Robert Fitzpatrick successfully opposed this request, in part by falsely claiming that he had interviewed Bulger about the matter. § 11.13. In 1984, Sean MeWeeney, the Chief of the Organized Crime Section at FBI Headquarters, told Connolly that the DEA was leading an investigation targeting Bul-ger and Flemmi. Connolly shared this information with his sources. § 11.17. In 1988, Rod Kennedy, John Newton, their supervisor Bruce Ellavsky, and ASAC Larry Potts provided Bulger and Flemmi protection concerning an ongoing extortion of Raymond Slinger. Although Slinger was willing to wear a recording device and testify against Flemmi and Bul-ger, after Ellavsky consulted Potts, the information that he provided was neither documented nor investigated. Instead, Bulger was told that Slinger had spoken to the FBI. § II.22. Bulger and Flemmi were also protected by the FBI in the successful investigation of drug dealer Hobart Willis and others. Although in 1986 and 1987, Ellavsky and James Blackburn, Jr. received increasingly specific information that Bulger was extorting Willis, after Connolly was consulted no investigation of Bulger was conducted. Nor was the information that the FBI had received concerning Bulger shared with the other agencies involved in the joint investigation of Willis. § 11.23. Similarly, in 1987, when James Lavin obtained photographs and other information indicating that City of Boston employees had illegally erected guardrails on the private property of the South Boston Liquor Mart, he consulted Connolly. After being advised that Bulger was a valuable informant, Lavin made no record of the information he had received and conducted no investigation. § 11.24. In 1989, Joseph Murray, an incarcerated drug dealer understood to be closely connected with Bulger, alleged that Connolly and Newton were selling information about electronic surveillance to Bulger and Flemmi. Murray also claimed to know of a witness who saw Bulger participate in the Halloran murder. However, when interviewed by Edward Quinn and Edward Clark in 1989, Murray was either not asked about his allegations concerning Connolly and Newton or his responses were not recorded in the notes and FBI report of the interview. ASAC Dennis O’Callahan, however, subsequently prepared a memorandum, which Ahearn sent to FBI Headquarters, stating that Murray’s allegations were unsubstantiated. In addition, Murray evidently was not questioned in detail about the information he indicated that he had concerning Bulger’s role in the Halloran murder. Moreover, the information Murray did provide was not given to the FBI agents responsible for the Halloran murder investigation or indexed in a way that would permit them to find it. Nor was any effort made to employ the willing Murray as a source of information to be used against Flemmi, Bulger, or anyone else. § 11.25. Finally, as indicated earlier, members of the Organized Crime squad kept Connolly advised of at least some developments in the investigation of Flemmi and Bulger that was initiated after Connolly retired. Connolly used that information to honor his promise to protect Bulger and Flemmi. § II.32. After Connolly retired, in about 1992, the United States Attorney’s Office began a grand jury investigation of Bulger and Flemmi. Agents from the FBI Organized Crime squad participated in the investigation. At least six of the agents who testified before the grand jury knew that Bul-ger and Flemmi had been FBI informants. Several of them had read all or parts of Flemmi’s and Bulger’s informant files before testifying. In addition, contrary to the promises made to Flemmi explicitly concerning 98 Prince Street and implicitly concerning 34 Guild Street, evidence intercepted at those locations was presented to the grand juries which indicted him. § 11.32. In 1992, the FBI refused a request by the then United States Attorney Wayne Budd, and his assistants, to confirm that Bulger was an informant or to permit them to review Bulger’s informant file. The prosecutors were concerned about the implications for their investigation if Bul-ger was, or had been, an FBI informant. Among other things, they wished to address the foreseeable issues of immunity and authorization now raised by Flemmi, whose history as an informant would have been revealed if Bulger’s had been disclosed. Id. On October 25, 1994, the original indictment in this case was returned against defendant Robert DeLuca. It charged him with participating in the October 29, 1989 LCN induction ceremony. The indictment was evidently obtained because the five-year statute of limitations was about to expire. DeLuca was not immediately given notice of the indictment. Rather, it was sealed and randomly assigned to this court. Id. On about December 22, 1994, in anticipation of the imminent, additional charges in this case, the United States Attorney’s Office again asked the FBI if Bulger was an informant, emphasizing its need to know because the government would soon have to disclose exculpatory information to Bulger and his codefendants. Once again, the FBI resisted this request. The Boston Office of the Bureau urged FBI Headquarters to continue to support its opposition to telling the United States Attorney that Bulger had been an informant. It argued that it was not expected that the issue of Bulger’s informant status would be raised by Bulger or his codefendants and, in any event, that no judge would compel disclosure of his status if the issue were raised. Id. However, the FBI’s Principal Legal Adviser in Boston, John Michael Callahan, examined the Bulger and Flemmi files with a view to determining if they contained information which would be exculpatory in the context of their forthcoming indictment. Callahan focused on the issues raised by the United States Attorney’s Office, including whether Bulger and Flemmi had been authorized to engage in conduct which would otherwise be criminal, whether they had been explicitly or implicitly promised any form of immunity, and whether Bulger and Flemmi “had provided information to the FBI which would undercut a central theme of the indictment, namely, that there was a close working relationship between La Cosa Nostra and the Winter Hill Gang.” Ex. 271; § 11.32. After completing his review, Callahan concluded that Flemmi had been “at least tacitly authorized” by the FBI to participate in “illegal gambling” and “LCN poli-cymaking.” The FBI recognized that the Flemmi and Bulger informant files contained information that would be exculpatory in the context of the imminent charges. The Bureau also realized that the failure to tell the United States Attorney that Bulger and Flemmi had been informants, and to provide the prosecutors with relevant materials, “could wreck the proposed organized crime indictments scheduled to be returned on January 9, or January 10,1995.” Id. Accordingly, on January 9, 1995, the FBI told United States Attorney Donald Stern, and two of his assistants who were not directly involved in the investigation, that Bulger and Flemmi had been informants. The FBI also provided what Callahan characterized as a “quick general overview of the kind of information” that he had discovered. Id. Stern did not, however, insist that the prosecutors handling the case, or anyone else outside the FBI, review the Bulger and Flemmi informant files before the indictment previously prepared was presented to the grand jury. Nor did Stern share the information that he had received with the prosecutors who were presenting the case to the grand jury, evidently because he recognized the risk that their disqualification might be required if they were exposed to information acquired from Bulger or Flemmi as a result of any promise of immunity. Id. Thus, the indictment that was previously prepared and approved was presented to the grand jury on January 10, 1995, by prosecutors who “did not know that Bulger and Flemmi had been informants or of any assessment of the information in their informant files.” Ex. 269; § 11.32. Those charges were brought against six more defendants in a ninety-one-page Superced-ing Indictment of the original charges against DeLuea. Therefore, pursuant to the District Court’s well-known procedures concerning superceding indictments, the greatly expanded case was not randomly drawn, but rather was assigned to this court. Thus, the government exercised what was in effect an option offered by the District Court’s rules to select this court to preside in the case against Bulger, Flem-mi, and their original codefendants, Francis Salemme, Francis Salemme, Jr., Robert DeLuea, George Kaufman, and James Martorano. § II.32. The First Superceding Indictment charged the defendants with, among other things, from 1969 to January 1995, engaging in a conspiracy to violate, and violating, the RICO statute. They were also charged with conspiring to extort, and extorting, bookmakers, from 1979 to 1994. § 11.33. With regard to the RICO charges, the alleged enterprise was neither the Patriar-ca Family of La Cosa Nostra nor the Winter Hill Gang, organizations that have, in effect, been proven to be RICO enterprises in prior prosecutions. Rather, the defendants were alleged to have been part of a unique association-in-fact enterprise made up of individuals who joined together to use their respective relationships with either the Patriarca Family or the Winter Hill Gang to, among other things, facilitate the unlawful activities of the enterprise and coordinate the activities of the Patriar-ca Family and the Winter Hill Gang. Id. In view of the roles of Bulger and Flem-mi as Top Echelon informants utilized to provide, and in some instances tasked to obtain, information for the FBI concerning the LCN, there is now a serious question presented concerning whether they were authorized to engage in the conduct alleged to be criminal and are, therefore, not guilty as charged. There are also questions relevant to all of the defendants regarding whether the alleged conspiracies and enterprise genuinely existed, because an agreement with someone acting as an agent of law enforcement is not a criminal conspiracy. These questions, however, must be addressed at trial. §§ 11.33, III.1.A. It is the issue of immunity that the court must decide in these pretrial proceedings. §§ III.l.B, C, D(l)-(5). All of these issues, however, present serious impediments to the successful prosecution of this case. If the United States Attorney and other officials of the Department of Justice had been properly informed before the proposed indictment of Bulger and Flemmi was presented to the grand jury, perhaps Bulger and Flemmi would not have been charged at all, or different, more narrow charges might have been fashioned in an effort to reduce the risk that their indictment would prove to be fatally flawed. It is inconceivable to this court, however, that the case against Flemmi and Bulger as indicted in January 1995, would have been brought by any reasonable prosecutor who was properly informed of their relationship with the FBI. The pending charges against Flemmi and Bulger were brought without anyone outside the FBI reviewing Flemmi and Bulger’s informant files or considering carefully the issues that they raised. It was not until July 1995, that a member of the United States Attorney’s staff first read those files. The prosecutors in this case were subsequently told that Bulger and Flemmi had been FBI informants. They were not, however, then provided with any additional information because of an enduring fear that if they knew more, their disqualification would be requested, if not required. § 11.33. In August 1995, the government advised the magistrate judge, ex parte, that Flem-mi had made potentially relevant statements to the FBI in the context of a confidential relationship over the course of many years. The government reported that Department of Justice officials would review the relevant flies and would seek guidance from the magistrate judge concerning the government’s discovery obligations. Although in September 1995, this court told the parties that it understood that there were no matters pending before the magistrate judge and would decide all future issues itself, the government continued to secretly seek rulings from the magistrate judge relating to the implications for discovery of Flemmi’s service as an informant. Id. In the fall of 1995, representatives of the Department of Justice and of the United States Attorney’s Office who were not then on the prosecution team for this case, informed the magistrate judge, in sealed ex parte submissions, that Callahan had concluded that the FBI had “at least tacitly authorized [Flemmi’s] participation” in “illegal gambling and in LCN policymaking,” but that “very little in the Flemmi and Bulger files is even arguably Brady material.” The magistrate judge agreed with this erroneous assessment. Nevertheless, the government recognized that Flemmi was entitled to certain documents that were in his informant file. As requested by the government, in December, 1995, the magistrate judge ordered that those documents be furnished to Flemmi directly, rather than to his attorney. Id. The government, however, did not comply with this Order. Flemmi did not receive any of the documents the government had been directed to produce to him. If those documents had been promptly provided to Flemmi, he would, in 1995 or early 1996, have learned for the first time that the FBI had documented some of the information that he and Bulger had furnished. Id. During 1995 and 1996, this court decided many pretrial matters. Among other things, Flemmi was denied bail; the government was allowed to obtain another superceding indictment to address defects identified by defendants’ motion to dismiss; charges against an additional defendant, John Martorano, were brought in the Flemmi case and later alleged instead in what the court deemed to be a separate indictment; and motions to suppress the electronic surveillance conducted at the Busy Bee restaurant were denied, after evidentiary hearings, despite proven defects in obtaining the warrants and in sealing the tapes. Id. In March 1997, the defendants moved for evidentiary hearings on their motions to suppress certain electronic surveillance evidence, including the electronic surveillance conducted jointly by the DEA and FBI in 1984-85, and by the FBI at 34 Guild Street in 1989. In connection with these motions, each of the defendants, with the significant exception of Flemmi, moved for disclosure of whether Bulger, Mercu-rio, Robert Donati, and other individuals were FBI informants. Flemmi joined in all of the motions except for the request concerning Bulger. Id. With the agreement of the parties, because the motions implicated the safety of suspected informants, the submissions and hearings on the motions were initially closed to the public. The government strenuously opposed the requests for evi-dentiary hearings on the motions to suppress and the related requests to confirm or deny that Bulger, Mercurio and/or Do-nati were informants. In the course of the proceedings the court discovered the sealed submissions indicating that Flemmi and Bulger had been informants. With the consent of all counsel, the court consulted Flemmi privately. Flemmi immediately decided to disclose to his attorney and his codefendants that he had been an FBI informant. Id. On May 22, 1997, the court issued a decision granting the requests for eviden-tiary hearings on the motions to suppress and ordering that the government reveal whether Bulger, Mercurio, and/or Donati were informants. At the request of the government, the decision was sealed to permit the Acting Deputy Attorney General to decide whether the government would comply with the Order concerning Bulger, Mercurio, and Donati, dismiss the case, or be held in civil contempt in an effort to render the decision appealable. Id. It was then foreseeable that, if the government did not dismiss this case, Flem-mi’s history as an informant would soon be disclosed publicly and that Bulger’s status as a source would be revealed by Flemmi or, since they were virtual Siamese twins, be easily inferred. In response to the May 22,1997 Memorandum and Order, the government, in a sealed submission, confirmed that Bulger had been an informant and, contrary to its previous position, conceded that there was a proper basis for the court to have ordered evidentiary hearings on the motions to suppress the electronic surveillance conducted in 1984-85 and at 34 Guild Street. Id. Demonstrating again the Department of Justice’s traditional deference to the FBI in matters concerning the confidentiality of its sources, however, the Acting Deputy Attorney General declined to obey the Order to confirm or deny whether Mercurio and/or Donati were informants who had assisted the government concerning the electronic surveillance conducted at 34 Guild Street. At that point the May 22, 1997 Memorandum and Order was unsealed. Id. The defendants moved to have the Acting Deputy Attorney General held in civil contempt. Thus, he was at risk of being incarcerated until he complied with the court’s Order concerning Mercurio and Donati. Nevertheless, he repeatedly refused to do so. When questioned by the court, however, Mercurio acknowledged that he had been an informant. The Department of Justice subsequently represented that the deceased Donati had not been a source. Thus, the motion to hold the Acting Deputy Attorney General in contempt became moot. Id. In connection with the pending motions to suppress, Flemmi filed several increasingly specific affidavits describing promises of protection that he had received from the FBI and instances of those promises being performed. Flemmi alleged, among other things, that Morris had told him and Bulger that they could be involved in any criminal activities short of murder and would be protected by the FBI; that he had been tipped off to the indictment in this case so that he could flee if he wished to do so; and that Mercurio had also been given prior notice of his indictment and, therefore, had been able to become a fugitive. Id. In late June 1997, the court ordered that the government disclose to the defendants information relating to the pending motions. Thus, a great many documents which the FBI expected would never be seen by anyone outside the Bureau were produced and, in many instances, made part of the public record. Id. In addition, pursuant to Federal Rule of Criminal Procedure 12.3(a)(1), Flemmi was required to provide notice of his intention to assert as a defense at trial that conduct alleged to be criminal was actually authorized by the FBI. At the government’s request, the defendants were also ordered to file their foreseeable motions to dismiss and supporting affidavits, so that any hearings granted on those motions could be conducted in conjunction with the hearings on the related motions to suppress. The court allowed Flemmi’s request for an evi-dentiary hearing on his motion to dismiss because of purported promises of immunity. It denied, without prejudice to later consideration, the defendants’ request for evidentiary hearings on their motions to dismiss on other grounds, including alleged outrageous government misconduct constituting a denial of their rights to Due Process. The hearings ordered were held throughout 1998. They generated over 17,000 pages of transcripts and 276 exhibits. The court’s findings of fact are detailed in this Memorandum. Its conclusions of law are also described in detail, and are summarized below. 2. The Motion to Dismiss Based on Immunity Flemmi’s motion to dismiss based on an alleged promise of general immunity from prosecution is not meritorious. § III.l.C. Further proceedings will be required, however, to determine whether Flemmi is entitled to dismissal because evidence that he was properly promised would not be used against him was presented to the grand juries which returned the indictments in this case. § III.l.D.(2)-(4). As summarized below, it would also have been illegal for evidence derived from the 1984-85 electronic surveillance to have been presented to those grand juries. Future proceedings will also be required to determine whether this occurred. If evidence derived from the 1984-85 electronic surveillance was presented to the grand juries that indicted Flemmi, the court will have to decide if that unlawful use of intercepted evidence requires, or contributes to requiring, dismissal of the case against Flemmi. § III.2.F. In addition, the further hearings will permit the court to identify the evidence which must be excluded at trial if the case against Flemmi is not dismissed. Flemmi did not have an agreement that he would not be prosecuted in return for his service as an FBI informant. The FBI agents primarily responsible for dealing with Flemmi, by word and deed, for thirty years, promised Flemmi protection in return for the valuable information that he was providing. The conduct of many other members of the FBI, including at least three ASACs, and the Chief of the Organized Crime Section at FBI Headquarters, contributed to creating, communicating, and performing the promise of protection to Flemmi. Flemmi reasonably relied on the FBI’s promise of protection and, in return for it, provided very valuable assistance to the government in its war against the LCN and other matters. § III.l.C. Flemmi was not, however, explicitly or implicitly promised immunity from prosecution. The term immunity was never used in conversation with him. More importantly, Flemmi did not understand that the government, or any of its agents, had agreed that he would not be investigated by the FBI, or any other law enforcement agency, or not be prosecuted. Rather, he expected that the FBI would overlook some of his criminal activity, provide him information concerning any investigations that were conducted, and warn him of any imminent charges against him of which it learned. The FBI performed its part of the bargain. Thus, it is not necessary or appropriate to decide if the agents entering into this agreement were authorized to do so, or whether the agreement was not valid because it violated public policy or because it attempted to provide immunity for future criminal conduct. Id. In addition, the mere fact that Flemmi was an informant does not mean that nothing that he said to the FBI could be used against him in any way. § III.l.D(l). However, the FBI’s promise to maintain the confidentiality of the fact that Flemmi was a source also constitutes an enforceable promise not to use statements he made against him if disclosure of those statements would, as a practical matter, reveal that Flemmi had been an informant. § III.1.D(2). Therefore, Flemmi’s statements that would identify him as an informant could not have properly been presented to the grand juries which indicted him. It is doubtful that any such statements were used in this fashion. However, further evidence will be required to resolve this question. Id. In addition, in the absence of a defense of public authority, or any other defense requiring introduction by Flemmi of some of his communications with the FBI, his statements to its agents that would identify Flemmi as an informant would not be admissible at trial. However, if this case is tried and, as represented, Flemmi relies on some of his communications with the FBI, the court will, pursuant to Federal Rules of Evidence 106 and 611, permit the government to offer other statements of Flemmi to the Bureau in order to assure that the jury is presented with an appropriate record on which to decide fairly the merits of his defenses. Id. Flemmi was expressly and implicitly promised that in return for his contributions to the bugging of 98 Prince Street nothing intercepted there would be used to prosecute him. This promise is enforceable. § III.l.D(S). The Attorney General has the authority to investigate crime. As part of that power, he has the authority to utilize informants and to provide them promises of immunity informally, rather than conferring it by the process established by statute. Id. The Attorney General’s power to investigate violations of federal law has been generally delegated to the FBI. This authority inherently includes the power to develop and utilize informants. As a corollary of this, the Bureau has been delegated the power to promise informants both confidentiality and informal immunity. Id. There is no statute, regulation, order, or other legal limitation that prohibits the FBI from promising a source that any information that he provides will not be used against him, directly or indirectly. When the Attorney General wished to restrict the power of prosecutors and investigators to promise cooperating witnesses entry into the Witness Protection Program, he issued a public order that expressly stated that they were not authorized to do so. That restriction has been enforced by the courts. The Guidelines developed by the Attorney General and incorporated in the FBI Manual do not constitute a comparable prohibition. The Guidelines are neither public documents nor legally enforceable. In addition, while they have at relevant times stated that the FBI “should not” promise its informants immunity, they did not provide that it could not do so. §§ II.6, III.1.D(3). Moreover, the Attorney General has not directed that the FBI consult a prosecutor before promising an informant immunity. To do so would be inconsistent with the long recognized right and obligation the FBI has to maintain the secrecy of its sources. Id. According to the testimony of the present and former members of the FBI, including its former Acting Deputy Director Potts and former SAC Greenleaf, the supervisor of an informant’s handler was generally the FBI’s chief decisionmaker regarding informants. The SACs generally relied completely on the informant’s handler and his supervisor for making all ■decisions and recommendations regarding the informant, including those for which the SAC was responsible under the Guidelines. In Potts’ experience, FBI Headquarters never reversed a recommendation from a field office that an individual be used, or continued, as an informant. Moreover, there is no evidence that FBI Headquarters ever inquired about what promises had been made to informants generally or to Flemmi particularly. §§ II.6,11.16, III.1.D(3). In these circumstances, Morris and Connolly had implied, actual authority to promise Flemmi that if he assisted the FBI’s effort to bug 98 Prince Street, nothing intercepted there would be used against him. Therefore, it was impermissible for the government to present evidence intercepted at 98 Prince Street, or any information derived from that evidence, to the grand juries that indicted Flemmi. Id. Similarly, Flemmi had an enforceable agreement, implied in fact from the promise concerning 98 Prince Street and the conduct of the government, that there would be no direct or indirect use against him of the intercepted evidence that he helped the FBI obtain at Vanessa’s and 84 Guild Street. Therefore, it was improper for the government to present evidence intercepted at 34 Guild Street to the grand juries which indicted Flemmi. It would also have been improper to provide to those grand juries any evidence derived indirectly from the interceptions at 34 Guild Street or Vanessa’s. Id. The conclusion that Flemmi had received enforceable promises of immunity concerning the electronic surveillance conducted at 98 Prince Street, Vanessa’s, and 34 Guild Street is not qualified by the fact that the FBI may not have been aware of all of his criminal activity. The Bureau did not generally ask an informant about his own criminal activity and did not expect him to divulge the details of it. The FBI was not misled, however, with regard to the nature of Flemmi and Bulger’s crimes, including the fact that they were likely murderers. Indeed, on three occasions Morris attempted to obtain the assistance of reluctant individuals by sending them the message that they would be in danger of being murdered by Bulger if they did not cooperate with the FBI. §§ II.4,11.16,11.33, III.1.D(3). In addition, the fact that Morris accepted $7000 from Bulger and Flemmi does not render the immunity promised to Flemmi concerning the electronic surveillance conducted at 98 Prince Street, Vanessa’s, and 34 Guild Street unenforceable as violative of public policy. An agreement to provide immunity in exchange for information does not inherently, or typically, involve a cooperative violation of the law. No payments were made to Morris before the initial promise concerning 98 Prince Street. Nor were any later payments directly related to the promises at issue. § III.1.D(3). The court does not by any means suggest that the payments to Morris were proper or should be condoned. However, the FBI’s bargain with Flemmi and Bulger was based on the very valuable assistance that they provided to the government. The payments that Bulger and Flemmi made to Morris were only incidental to a relationship that was important to the FBI for valid, professional reasons. Moreover, they were an expression of the sense of a friendship between the FBI and its sources which the Bureau deliberately created and cultivated. In the circumstances, it would be fundamentally unfair to deprive Flemmi of the immunity that he was legitimately promised, and on which he reasonably relied, because of the payments Morris initially sought and ultimately received. Id. Accordingly, further hearings are necessary to determine if the indictment of Flemmi must be dismissed because it was impermissibly secured based upon the direct and possibly indirect use of information Flemmi provided pursuant to promises of immunity. In order to avert dismissal, the government will be required to prove that the information that it presented to the grand juries to obtain the indictmen