[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]
INVESTIGATION OF ALLEGATIONS OF LAW ENFORCEMENT MISCONDUCT IN NEW
ENGLAND--VOLUME 3
=======================================================================
HEARINGS
before the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
MAY 11, DECEMBER 5 AND 6, 2002
__________
Serial No. 107-56
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
U.S. GOVERNMENT PRINTING OFFICE
84-604 WASHINGTON : 2003
___________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON GOVERNMENT REFORM
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut MAJOR R. OWENS, New York
ILEANA ROS-LEHTINEN, Florida EDOLPHUS TOWNS, New York
JOHN M. McHUGH, New York PAUL E. KANJORSKI, Pennsylvania
STEPHEN HORN, California PATSY T. MINK, Hawaii
JOHN L. MICA, Florida CAROLYN B. MALONEY, New York
THOMAS M. DAVIS, Virginia ELEANOR HOLMES NORTON, Washington,
MARK E. SOUDER, Indiana DC
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
BOB BARR, Georgia DENNIS J. KUCINICH, Ohio
DAN MILLER, Florida ROD R. BLAGOJEVICH, Illinois
DOUG OSE, California DANNY K. DAVIS, Illinois
RON LEWIS, Kentucky JOHN F. TIERNEY, Massachusetts
JO ANN DAVIS, Virginia JIM TURNER, Texas
TODD RUSSELL PLATTS, Pennsylvania THOMAS H. ALLEN, Maine
DAVE WELDON, Florida JANICE D. SCHAKOWSKY, Illinois
CHRIS CANNON, Utah WM. LACY CLAY, Missouri
ADAM H. PUTNAM, Florida DIANE E. WATSON, California
C.L. ``BUTCH'' OTTER, Idaho STEPHEN F. LYNCH, Massachusetts
EDWARD L. SCHROCK, Virginia ------
JOHN J. DUNCAN, Jr., Tennessee BERNARD SANDERS, Vermont
JOHN SULLIVAN, Oklahoma (Independent)
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
James C. Wilson, Chief Counsel
Robert A. Briggs, Chief Clerk
Phil Schiliro, Minority Staff Director
C O N T E N T S
----------
Page
Hearing held on:
May 11, 2002................................................. 1
December 5, 2002............................................. 251
December 6, 2002............................................. 403
Statement of:
Bulger, William, president of the University of Massachusetts 406
Gershengorn, Wendie, judge, Middlesex Superior Court......... 101
Huff, Michael, supervisor of the homicide squad, Tulsa Police
Department; and David Wheeler, son of murder victim Roger
Wheeler, accompanied by Frank Libby, attorney.............. 265
McDonough, James M., Esq..................................... 84
O'Sullivan, Jeremiah, former New England Organized Crime
Strike Force chief attorney................................ 289
Zalkind, Jack, Esq........................................... 8
Letters, statements, etc., submitted for the record by:
Burton, Hon. Dan, a Representative in Congress from the State
of Indiana:
Exhibit 1................................................ 338
Exhibit 3................................................ 345
Exhibit 4................................................ 347
Exhibit 5................................................ 349
Exhibit 16............................................... 342
Prepared statement of.................................... 256
Delahunt, Hon. William D., a Representative in Congress from
the State of Massachusetts:
Exhibit 21............................................... 54
Exhibits 15 and 16....................................... 36
LaTourette, Hon. Steven C., a Representative in Congress from
the State of Ohio:
Exhibit 12............................................... 22
Exhibit 18............................................... 61
Exhibit 49............................................... 87
Exhibits 4, 5 and 8...................................... 14
Exhibits 11 and 13....................................... 91
Lynch, Hon. Stephen F., a Representative in Congress from the
State of Massachusetts:
Exhibit 10............................................... 363
Exhibits 1 and 2......................................... 48
Prepared statement of.................................... 5
O'Sullivan, Jeremiah, former New England Organized Crime
Strike Force chief attorney, prepared statement of......... 294
Tierney, Hon. John F., a Representative in Congress from the
State of Massachusetts:
Exhibit 20............................................... 64
Exhibit 22............................................... 75
Exhibit 26............................................... 66
Exhibit 41............................................... 72
Wilson, James C., chief counsel, Committee on Government
Reform, exhibit 46......................................... 103
INVESTIGATION OF ALLEGATIONS OF LAW ENFORCEMENT MISCONDUCT IN NEW
ENGLAND
----------
SATURDAY, MAY 11, 2002
House of Representatives,
Committee on Government Reform,
Boston, MA.
The committee met, pursuant to notice, at 10 a.m., at the
J.W. McCormack U.S. Post Office and Courthouse, 90 Devonshire
Street, Courtroom 6, 15th Floor, Boston, MA, Hon. Steven C.
LaTourette presiding.
Present: Representatives LaTourette, Tierney, Delahunt,
Frank, and Lynch.
Staff present: James C. Wilson, chief counsel; Chad
Bungard, counsel; Joshua E. Gillespie, deputy chief clerk;
Nicholis Mutton, assistant to chief counsel; and Michael J.
Yeager, minority deputy chief counsel.
Mr. LaTourette. The hearing will come to order.
We are meeting today out of the location of Washington, DC.
This is a meeting of the Government Reform Committee for the
purposes of having a continuation of hearings into law-
enforcement irregularities in the New England area.
The chairman of the full committee, Dan Burton, is
unavoidably detained today, and has asked me to chair today's
proceedings.
We're lucky to be joined by two members of our committee,
Mr. Tierney and Mr. Lynch of the Commonwealth of Massachusetts,
and also someone who has been with us all the every step of our
proceedings, and who serves capably on the Judiciary Committee.
Good morning.
I want to ask unanimous consent at this time that all
Members' and witnesses' statements be included in the record.
Without objection, so ordered.
Tabular material referred to be included in the record?
Without objection, so ordered.
I ask unanimous consent that the binders of exhibits be
included in the record. Without objection, so ordered.
I also ask unanimous consent that Representative Delahunt,
who is not a member of the committee, as I indicated before, be
permitted to participate in today's hearing. Without objection,
so ordered.
Just a couple of brief observations before I yield to my
colleagues.
One is that, as I indicated, this is a continuation of a
variety of hearings that we've had here. We were also in Boston
a couple of months ago for the purposes of deposing witnesses.
All of this relates to the long and unjust imprisonment of
Joseph Salvati and others surrounding the murder of Teddy
Deegan.
During the course of our investigation, we have discovered
information that has led the Chair and committee to believe
that the Federal Bureau of Investigation, while a wonderful and
honorable institution in our country, engaged in behavior in
New England in the 1960's and 1970's of which no one should be
proud.
The purpose of these hearings is not to embarrass anyone.
The purpose of these hearings is to get to the truth, and, as
this committee is engaged in oversight responsibilities, to
determine whether or not there are additional legislative items
that are needed to be addressed in this or future Congresses to
make sure that what happened in New England does not occur
again.
A couple sort of procedural notes.
The rules of the committee, since most of you probably
don't attend committee hearings on a regular basis--and why
would you?--the rules of the committee indicate that, as far as
the questioning of witnesses is concerned, all witnesses that
come before the committee are sworn.
Second, the time is then divided between the majority and
minority party. Even though I happen to be in the minority this
morning, I am a Member of the majority party. We will assign
half-hour rounds to each party.
At the conclusion of that, we have in our possession a
prosecution memo prepared in the Patriarca prosecution by
people not here today. It is the committee's desire to question
Mr. Zalkind about the contents of that prosecution memo.
It has been the subject of sort of an ongoing discussion
between committee counsel and the Department of Justice; and
it's my opinion, as well as I think the opinion of Chairman
Burton and others on the committee, that there is nothing
contained in this memorandum that even comes close to talking
about national security, or by which national security would be
compromised.
However, the administration has taken the view that this
internal Justice Department document is privileged. As a matter
of fact, President Bush, much to my dismay, asked this of the
Attorney General, and the Department of Justice has caused it
to be the subject of executive privilege.
Because of that claim, with which I disagree, we will at
the conclusion of the first round of questioning close the
hearing for a brief period of time and conduct a hearing in
executive session while we talk to Mr. Zalkind about the
prosecution memo.
That is not something that we think is necessarily a good
idea, but it is the agreement we had with the Department of
Justice; and failing that agreement, we would not have the
opportunity to ask this very important witness about this very
important document.
With that, it is my pleasure to yield to Mr. Tierney from
Massachusetts. Thank you.
Mr. Tierney. Thank you, Mr. Chairman.
I'm going to be brief, only because I've been through a
number of hearings and have had an opportunity to open on many
occasions.
The purpose of these hearings, at least in part, is to
determine what further oversight is necessary with the Federal
Bureau of Investigation, particularly with respect to their use
of confidential informants or, as we suspect here, misuse of
confidential informants, and the lack of transparency enabling
a proper amount of oversight.
Just a brief word on the behavior of the administration
here.
Once again, we find a claimed need for secrecy with respect
to documents that nobody on this committee believes warrant
that type of treatment.
Since September 11th, this is an administration that has
sought increasingly to give more and more power to
investigative and prosecutorial bodies; and yet we find their
desire for secrecy more and more troubling.
If we're going to expand power, I think we need to have
better oversight and more transparency, at least between the
body that does the oversight and the agencies that are
involved.
That's a matter for another day. But I'm glad to note that
both parties, minority and majority, are concerned about it;
and it's an ongoing controversy that we'll continue to address
here and back in Washington.
But for the purposes of these hearings, Mr. Chairman, I
look forward to hearing from these witnesses so that we can
continue in our efforts to make some determination as to what
the best way is for us to deal with the improprieties which
have occurred, which seem unfortunately to run broadly and to
run deep.
So I thank you for coming up here this morning and
conducting these hearings, and look forward to the testimony of
the witnesses.
Mr. LaTourette. Thank you very much, Mr. Tierney.
Mr. Lynch.
Mr. Lynch. Thank you, Mr. Chairman.
Good morning; and I want to join my colleagues in thanking
you for your good work, and also Chairman Burton. I state the
obvious when I say we do have our differences at times, but I
have nothing but admiration and commendation for the work
handled by the Chair, and also the subcommittee Chair, in this
matter.
First and foremost, I would like to just say that we are
after the truth in these hearings. We're after whatever justice
can be provided to the families that have been so hurt by this,
for the lives and the years that have been stolen by misconduct
of the FBI.
Today's hearing focuses on the next step in this ongoing
investigation to clarify the circumstances around the wrongful
prosecution of Mr. Salvati and Mr. Limone, and others, for the
murder of Teddy Deegan.
I'm new to this committee, and I'm obviously the caboose on
this train; but I must say that Mr. LaTourette and Mr. Delahunt
and Mr. Tierney and Mr. Wilson have put in many, many hours and
many days and weeks in this investigation, and I'm in a role of
just lending support to their efforts, their good work.
I must, however, say that this is the most distressing
thing that I have seen since I have come to the Congress.
Sitting in these hearings, and hearing the testimony of
current Federal officials and FBI personnel, both current and
retired, this is most heart-wrenching; and I am just heartsick
over the loss to the families that have been affected here.
And I think it is our remaining duty, if we cannot find
full justice for the families that have been damaged here, that
we have to first of all make sure that this never happens
again, and that those at fault must be brought to justice.
That will be very difficult; but I think if we are truly to
fulfill our responsibilities to protect those rights guaranteed
under the Constitution, then we must do so. I think it is
inappropriate, at the least, for a thinly veiled defense of
executive privilege to be asserted in this case.
Thank you, Mr. Chairman.
[The prepared statement of Hon. Stephen F. Lynch follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. LaTourette. Thank you very much, Mr. Lynch.
Also, I see that Congressman Frank of Massachusetts has
joined us; and as we did with respect to Mr. Delahunt, I would
make the same unanimous request that Congressman Frank, a
Member of the Massachusetts delegation, be permitted to
participate in today's hearing. Without objection, so ordered.
In introducing Mr. Delahunt, I want to note, I made a
wisecrack about being in the majority party, but being in the
minority today.
In this particular endeavor, the investigation of the
allegations of law-enforcement misconduct in New England, those
of you from the New England area can be more than proud of your
congressional delegation in the House of Representatives.
Despite their committee assignments, and despite the fact
that they may be busy with other things, all of them, to a
man--we don't have any women--all of them, to a man, have
dropped what they were working on to make sure that this
received the full consideration of the Congress; and I give
them great credit.
And now it's my privilege to yield to Mr. Delahunt for
anything he might want to say.
Mr. Delahunt. I'll be very brief, Mr. Chairman.
Let me just say, while we're passing out kudos here, that
your effort and your work and your commitment to this exercise
has been extraordinary, Congressman LaTourette.
You deserve much credit; as does counsel, Chief Counsel Jim
Wilson, who's sitting to my right; as well as Mike Yeager, who
is chief counsel for the minority side.
These hearings have gone on for some time now. They have
been very exhaustive and intensive, and they have been very
informative.
I think it's appropriate for me to note today that in our
presence we have with us two of the individuals whose names
have been mentioned quite frequently during the course of these
hearings; and they are Mr. Joseph Salvati and Mr. Peter Limone.
I don't think it's necessary to go into the history of the
Deegan case. Many of us are aware of it; and there's a growing
understanding by the public, not just here but I think all over
the United States, that certainly justice was not done in their
case.
But just to pick up on something that Congressman Lynch
said, it is absolutely essential in a healthy democracy to have
a justice system that has the confidence of the American
people, of the public; and that's what we're here about, to
restore that confidence.
There is a key issue that we're looking into; whether law-
enforcement officials should have known that certain
individuals went to trial and were not provided what clearly
was exculpatory information, and that at the same time certain
confidential informants were developed. Their conduct was
ignored; even protected.
By that I mean that there will be testimony entered into
the record today that will establish that the very top of the
FBI was aware that in the case of one of these confidential
informants there was a likelihood that he would commit murder
in the future; and yet they believed that the so-called benefit
to the FBI and law enforcement outweighed that risk.
I think it's fair to say that we all find that totally
unacceptable. Not only were innocent people convicted, but the
public was put at risk; and in fact innocent people died as a
result of the development, or rather the ignoring, of a certain
confidential informant.
With that, I yield back to the Chair.
Mr. LaTourette. Thank you, Mr. Delahunt.
Mr. Frank, any opening remarks you would like to make?
Mr. Frank. Thank you, Mr. Chairman.
I am very pleased to be here, although as a general rule
staying out of courtrooms is a principle that many people in my
profession strive to achieve. I appreciate the opportunity to
be available. Being in a courtroom--or the courthouse, I
guess--is a little more familiar for my colleague. There are
very few courthouses in this area not named for one of his
predecessors, so he gets to go to them more often.
I am very grateful to the gentleman from Ohio who is
presiding today, to the chairman of the full committee, and to
the gentleman from Indiana for his willingness to take on a
task that many would shy away from; and that is--and I can't
think of any task more important--trying to make sure that law-
enforcement people, whom we necessarily trust with enormous
power over our lives, discharge those powers responsibly.
Last fall, Congress significantly increased the ability of
the FBI and other law-enforcement agencies at the Federal level
to pierce the veil of privacy that most people would prefer to
have. We greatly enhanced law enforcement's powers.
Some of us were torn at the time. We understood the need to
enhance law enforcement's ability to protect us from a new type
of criminal, even unfortunately suicidal criminals who elected
to do great damage; but we were worried about safeguards.
What is essential is for us to show that when we give law-
enforcement agencies that power, we can exercise oversight to
minimize abuse of that power; and that's why these hearings are
so important.
What has come forth through Judge Wolf as well as through
these hearings and elsewhere is a pattern of abuse of law-
enforcement powers that is so shocking that many of us, had we
been confronted with these facts in the absence of the
evidence, would not only have denied them but would have chided
those who brought them forward with being obsessed with
imagined conspiracy.
This is one of the worst examples of the failure of people
to do their duty that I've ever seen with regard to the FBI.
While we have no reason to think that these abuses are
ongoing, I am still disappointed that I have not seen in the
FBI, or in the people who supervise it in the Justice
Department--and this is bipartisan; it was true in the previous
administration, and it's true in the current one--I haven't
seen the kind of zeal to penalize people who abuse power that
the public is entitled to see. Only when there is a zeal to
penalize the abuse of power will people be confident in
granting more and more power.
We still have the situation of Wen Ho Lee, where it was
acknowledged that an FBI agent gave a judge false information;
and on the basis of that false information, a man was shackled
and put in solitary confinement for a year.
The FBI acknowledged--this is in the previous
administration--that the FBI had given false information.
I don't know whether someone was lying, or if someone lied
to the agent. We don't know where it came from. But the FBI has
done nothing to tell us what has happened, or to penalize
anybody for the fact that a man was put in these very, very
restrictive conditions, which a judge said were based on false
information. We have this ongoing outrageous situation.
Unfortunately, many of my colleagues are intimidated
against looking into this; and so I'm especially grateful to
the leadership of the Committee on Government Affairs, and
grateful to them for coming here.
I also want to acknowledge my colleague Congressman
Delahunt, whose considerable experience has been an especially
important asset in our trying to deal with this. He went
through some of this. He's in the position of being able to say
``I told you so'' with regard to some of these specifics; and I
am very grateful, as I said, because I cannot think of a more
important job than for us to show that we are capable of
dealing with abuse.
If we cannot deal with abuse of law-enforcement powers,
we're not going to be able as a society to give law enforcement
the power it ought to have to protect us.
Mr. LaTourette. Thank you very much, Mr. Frank.
The first panelist this morning is Mr. Jack Zalkind, who
was the prosecutor in the Deegan case representing the Suffolk
County District Attorney's office.
Mr. Zalkind, it is the custom of this committee for all
witnesses to be sworn.
[Witness sworn.]
Mr. LaTourette. Thank you very much, sir.
At this time, Mr. Zalkind, if there are any opening remarks
that you would like to make to us, we would be happy to receive
them.
STATEMENT OF JACK ZALKIND, ESQ.
Mr. Zalkind. I'll wait until the end, if you don't mind.
Mr. LaTourette. Very good.
That being the case, under the rules of the committee, we
will now engage in half-hour rounds among the parties. As I've
indicated to my friends on the Democratic side, since there are
four times as many of them as on our side, we'll be willing to
enlarge that particular time.
Mr. Zalkind, if you could, just for the purposes of the
record we're creating today, could you give us a little bit of
your professional history?
Mr. Zalkind. I graduated from Boston University Law School
in 1961. That year, I was active in Senator Edward M. Kennedy's
first campaign for the Senate.
I had originally come from Bridgeport and planned to go
back to Bridgeport; but when Senator Kennedy was elected to the
Senate, I was fortunate enough to be nominated as an Assistant
District Attorney for Suffolk County.
I held onto that position until 1971; but I must add that
during those 10 years the position of an Assistant District
Attorney was part-time. It did not become full-time until Mr.
Delahunt's movement to make it full-time.
I left the office in 1971, and I have been in private
practice as a defense attorney and a litigator since then.
Mr. LaTourette. Thank you very much.
The reference to the change made by Mr. Delahunt by
legislation from part-time to full-time, is there some
significance to that, other than the hours, in terms of how you
would approach or handle a case, or how cases were delivered to
you?
Mr. Zalkind. Yes.
Mr. LaTourette. Can you just describe what that was?
Mr. Zalkind. Well, for example, when this case was being
brought forth in 1967, most of the prosecutors had been there
for 10 or 15 years. They couldn't practice criminal law; but
they practiced probate, they did a lot of tort work, and they
had their own practices.
Because I was sort of young, and because I wasn't married
at the time, I didn't have much of an outside practice. I had a
lot of time; and I think that I could give time to a case. For
most of the other prosecutors, that wasn't the case.
One Assistant District Attorney brought the case in front
of the grand jury, and the next thing the prosecutor did was,
he had a case, and he said, go ahead and try it. So he had
nothing to do with the original investigation, and he was as
blind as could be.
I think that situation has changed also. Today, most of the
prosecutors bring their own cases before the grand jury.
Indeed, through the efforts of former Attorney General
Bellotti and of Mr. Delahunt, prosecutors now start the
investigations themselves, so that they know where the case is
coming from.
In this particular case that I was involved with, I had
prosecuted--well, I think I've answered the question as far as
why I think that part-timers are wrong.
Mr. LaTourette. Prior to the Deegan case, had you handled a
capital-murder case?
Mr. Zalkind. I think this was the first murder case that I
had ever handled.
Mr. LaTourette. So I assume you didn't present the
testimony, if I understood your answer to the previous
question, to the grand jury?
Mr. Zalkind. I did.
Mr. LaTourette. You did?
Mr. Zalkind. Well, why that was unusual was this: I had
originally prosecuted Joe Barboza back in 1964 or 1965 for some
misdemeanor. He was found guilty; and after he was let out of
jail, I prosecuted him again under some gun-carrying charges
while there was still an outstanding charge for an attempted
murder.
I got a conviction against him on the gun charge, and he
was sent to Walpole. There was still an outstanding felony; and
during that year--I think it was 1967--a Supreme Court decision
came down that said that the habitual-criminal statute was
constitutional, so that in Massachusetts, if a defendant was
sent to Walpole for a third time, he would then receive the
maximum sentence.
So I asked the District Attorney if we could take a
chance--we had never done that before--and I brought an
indictment against Barboza for habitual criminal.
Mr. LaTourette. And how much time would Mr. Barboza
potentially face to----
Mr. Zalkind. I think it was 84 years.
Mr. LaTourette. And was it about that time, down in
Walpole, that he was visited by Mr. Rico and/or Mr. Condon?
Mr. Zalkind. What happened was, I had heard scuttlebutt
that Joe Barboza had become an informer.
I wasn't assigned to the original case. The original case
was assigned to Assistant District Attorney John Pena, who
became a Municipal Court judge. He prosecuted that first case,
and they lost that case.
He then became a witness in the case against Raymond
Patriarca down in Rhode Island, and that was prosecuted by Mr.
Harrington.
Again, I wasn't very much involved with that. I never liked
Joe Barboza; I never trusted him.
Well, they won that case in Rhode Island; and then Mr.
Byrne asked me--I won't say asked me--told me that Barboza had
another case. He mentioned the facts of this Deegan case, and
they thought that I would be the guy that could handle it, for
many reasons.
I was hesitant to do it, because I knew Barboza. I never
trusted him. I said that I would take it under the conditions--
and I'm not trying to make myself a big shot; obviously I was
only a young guy, but I just knew I was trying to protect
myself--I said I would take the case, but I did not want to
talk to Barboza until such time as he appeared before the grand
jury under oath.
So the next time I saw Barboza, he was in front of the
grand jury and testified under oath. So I took a lot of
precautions. That was unusual in those days. Most of the time
the prosecutions were presented by, I think in those days it
was a fellow by the name of Ralph Bernard. So this was a little
unusual.
Mr. LaTourette. I think in some of the records we have it
indicates that your first contact was in September 1967. Does
that sound about right, in terms of when he appeared in front
of the grand jury?
Mr. Zalkind. That sounds right, yes.
Mr. LaTourette. Going back to, then, the prior contacts,
before you actually met him at the grand jury as he gave
testimony leading to the indictments in the Deegan murder case,
did you receive documents from the FBI concerning their
contacts with him?
Mr. Zalkind. No.
Mr. LaTourette. During the course of the Deegan trial,
Special Agent Condon testified that they had met with Mr.
Barboza nine times between the time when he originally
indicated he would cooperate and when you eventually met him at
the grand jury.
We have today documents that were prepared
contemporaneously with those meetings, that describe the sum
and the substance of those. Were those items ever shared with
you?
Mr. Zalkind. I've seen them now; but in those years I never
saw any FBI reports, nor did I speak to Condon about the
substance of the Deegan case.
I did speak to him about what kind of a witness Barboza
would make, because he had seen him testify in the Patriarca
case; but more than that, we had not much contact.
Mr. LaTourette. If you weren't made aware of the substance
of the conversations, were you made aware of the fact that he
was receiving things from the FBI in return for his
cooperation?
Mr. Zalkind. The only thing that I was made aware of was
that he was put into the Witness Protection Program, and that
his wife was being protected, and that he was being kept in an
area off in Gloucester.
But as far as receiving money or anything like that, I have
no memory now if I was told anything like that.
Mr. LaTourette. Your understanding of what the Witness
Protection Program would have been was that he would have
received a new identity and a new location; you don't know
anything about money, and you don't know anything about
potential employment?
Mr. Zalkind. I may have known then, Mr. Chairman, but I
certainly don't remember them now.
Mr. LaTourette. OK.
As an old prosecutor, let me ask you this. When you showed
up at the grand jury, and this was your first new contact in
the Deegan case, how did you know what to ask him?
Mr. Zalkind. I had a booklet prepared. The prosecution had
given me a booklet of the events that transpired. It was a
summation of the various factors. I started right off by
reading questions, etc., and went sort of right through the
script.
Mr. LaTourette. When you say the prosecution, who prepared
that document?
Mr. Zalkind. That was prepared by, probably, John Doyle and
Sergeant Frank Walsh.
Mr. LaTourette. Aside from handing you a script from which
to read at the grand jury when Mr. Barboza testified, was it
your understanding that they had had contact with his FBI
handlers in preparing that?
Mr. Zalkind. Oh, yes. I saw them in the office; of course.
Mr. LaTourette. Did you ever talk to Doyle or Walsh about
their contacts, how's the star witness coming, what's Barboza
up to, anything like that? Was there any office talk about this
prior to your----
Mr. Zalkind. I think I only became interested--I told you I
didn't like him.
Mr. LaTourette. Right.
Mr. Zalkind. And even when we had this prosecution going on
in our own office, I never watched any of the trial. I just
wasn't interested in it until I became involved with this, with
my own case. But then I did talk to him; of course.
Mr. LaTourette. I wrote down, as you were talking before,
two phrases--``never liked him, never trusted him''--in
reference to your feelings about Barboza; and I guess that
means that probably some of the seminal questions that bother
members of the committee--if you never liked him and you never
trusted him, it's our understanding that this case was based
solely upon his testimony.
Mr. Zalkind. No, that's not true.
Mr. LaTourette. What else was it based on?
Mr. Zalkind. There was a lot of corroboration of his
testimony; for example, the autopsy report. Barboza told us
that there were three guys involved with the shooting; and sure
enough, there were three different types of bullets that were
found in the body.
Barboza told us that Roy French cooperated with him in
setting this up in this alleyway; that was corroborated.
He said that while he was sitting in a car, a policeman
passed in front of him and noticed the bent plates. Well, we
had that Captain Barslowski, I think his name was, who
testified that, yes, indeed, he did see this license plate, he
did see it bent; he described the men that were in the car, and
he described them almost exactly the way Barboza had told us.
There was a lot of corroboration.
There was another witness, Anthony Stathopoulos, who became
a government witness; and he testified that he had meetings
with Barboza and French where this thing was set up, etc.
So there was a lot of corroboration.
Mr. LaTourette. But again, I think you hit the nail on the
head when you said there was a lot of corroboration of Mr.
Barboza's statements.
Mr. Zalkind. Yes.
Mr. LaTourette. In other words, again, to me, Mr. Barboza's
testimony could lead in two directions. One, it was absolutely
true, he was there; and the reason the story was so accurate is
that he was a participant, which we now know today he was.
So again, the question is, as a prosecutor, based upon the
level of corroboration of his testimony, despite the fact that
you didn't trust him, didn't like him, you felt comfortable
that he had gone on the straight and narrow at least relative
to this----
Mr. Zalkind. No, I never said that he had gone on the
straight and narrow; never.
Mr. LaTourette. You never did; but the truth of the
testimony----
Mr. Zalkind. When I put this case in to the grand jury--and
it was really, really voluminous--then I spent, Mr. Chairman,
the next 6 months speaking with him at least four or five times
a week, with a detective with me at all times, going through
every phase of the case.
And I told him over and over again, if I ever find out that
you put someone here that doesn't belong here, or you left
someone out, that's perjury in a murder case; and I'll put you
in. I mean, I made it so clear. I thought that I had done
everything that was humanly possible to keep the story
straight.
Mr. LaTourette. We know today that the story wasn't
straight, obviously; and we know it through documents that
we've obtained from the FBI.
Mr. Zalkind. I agree with you.
Mr. LaTourette. And the question is, first of all, out of
six individuals who were charged in the Deegan murder, Jimmy
Flemmi was not one of them?
Mr. Zalkind. That's correct.
Mr. LaTourette. I think the committee has provided you with
an exhibit book. Exhibits 4, 5 and 8, for instance, all
indicate that it was pretty common knowledge in the New England
underworld that Jimmy Flemmi very much wanted to kill Teddy
Deegan. Was any of that information----
[Exhibits 4, 5 and 8 follow:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Zalkind. Let me interrupt you, Mr. Chairman. Let me say
this.
I was not from Boston. I had not been involved in organized
crime. Jimmy Flemmi, before or after this case, didn't mean
very much to me at all; and perhaps I was naive in that
respect.
I did see the documents that were shown to me; and I must
tell you this, that I was outraged--outraged--at the fact that
if they had ever been shown to me, we wouldn't be sitting here,
because, I wasn't the person that made the decisions, but I
certainly would never have allowed myself to prosecute this
case having that knowledge. No way.
Mr. LaTourette. Which brings me to another document; and I
might ask counsel to give me a hand with what the exhibit
number is, but it's the Chelsea Police Department report.
Mr. Zalkind. I'm familiar with it.
Mr. LaTourette. Again, we have some conflicting
information. That's exhibit No. 12, I've been told; that is the
Chelsea Police Department police report.
Again, the way I'm familiar with things is, when you're
prosecuting a case, they give you a police report, there's some
followup investigation, you go to the grand jury, and you move
forward.
I think pretty clearly the Chelsea Police Department report
indicates that, first of all, Mr. Barboza was a participant in
it, and his testimony at trial was not truthful.
When was the first time you saw the Chelsea Police
Department report?
[Exhibit 12 follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Zalkind. I submitted an affidavit on that. It begins
this way.
Victor Garo, who was the attorney for Joseph Salvati, whom
I had known before, and on whose behalf I had sent letters for
commutation for many of these men, had shown me this report. I
looked at it, and I saw that most of the report looked very,
very familiar to me. It seemed like it was material that I
knew.
There was a certain portion of the report in the back that
indicated that certain men were seen leaving the Ebb Tide,
certain men were seen not leaving the Ebb Tide; and as soon as
I got that report, I sent a letter--I'm sorry; I called up the
District Attorney's office. I believe that would have been in
February 1993.
I spoke to the First Assistant, Mr. Gittens. That office,
by the way, had just come in. Newman Flanagan had left office,
and there was a new District Attorney. I asked him if I could
come up and see my old file; that there was something in there
that I wanted to look at.
I never received an answer from him. I sent a followup
letter; I never received an answer from him.
I think I provided your committee with copies of all of
these letters. My first letter was sent on March 16; I sent
another letter October 20, and another letter on October 27.
To this day--despite, I know, the fact that my colleague
McDonough says he remembers seeing them in the file--I must
tell you that I have no memory of seeing that report in the
file.
Just one step further.
As I said in the affidavit that I submitted at the time, if
I had had the file, I thought that I might go further. I didn't
consider it exculpatory evidence in the respect that the
evidence at the trial did not indicate that Mr. Salvati left
the Ebb Tide with Joe Barboza.
According to Barboza's testimony, he was in the parking
lot, and when they came back, the evidence didn't indicate that
Mr. Salvati came back with him. He was allegedly disposing of
some guns.
I never paid much attention to that report; it didn't mean
that much to me. But that's my position.
Mr. LaTourette. I think the Chelsea Police Department
report, together with information developed contemporaneously
with the murder of Teddy Deegan by the FBI and observations of
statements that Mr. Salvati and others eventually convicted
were not involved and it was Barboza and Flemmi, and as a
result of some listening equipment, that Mr. Barboza and Mr.
Flemmi went down and asked permission to kill Teddy Deegan;
when combined with the Chelsea Police Department report,
obviously today we have a picture where----
Mr. Zalkind. Absolutely, sir, absolutely.
Mr. LaTourette. And so you have no quibbling at all that if
that information had been made available to you by the FBI or
the Chelsea Police Department, you would not have been in the
situation that you found yourself in now?
Mr. Zalkind. We wouldn't be sitting here today, Mr.
Chairman.
Mr. LaTourette. From an oversight standpoint, I understand
that one fix that you think is a good one was Mr. Delahunt's
legislation going from part-time to full-time; but what else
went wrong here? We can leap to one conclusion.
Mr. Zalkind. I'll tell you what went wrong, and I think
it's a very important factor.
In those days, the discovery process for a defendant was
practically nil. In this case here, the defense attorneys never
received the grand-jury minutes; they never received any
reports by witnesses; they never received a list of the
witnesses that were going to appear. That was the way the law
was written. They received practically no discovery.
Under today's evidentiary rules, both in the state court
and even in the Federal court, they would have received the
grand-jury minutes; they would have received any statements
that were adopted by witnesses; they would have received the
list of witnesses.
I mean, my God, when lawyers went into court those days,
they had no idea who they were going to face. They would ask me
at the beginning of the day, you know, who's our witnesses? And
if I felt it was OK, I would give them the names of the
witnesses.
So they couldn't do any background checks. It was really,
really hard to try a case.
But, the most important thing: I think that there should be
a rule of law that when a state prosecutes a case, or vice
versa, and a request is made by defense counsel, that all
exculpatory evidence in the possession of the prosecution
should be given not only to the local prosecution, but to any
law-enforcement agency that is involved with the case.
If that had been the law in this case here, again, this
case wouldn't have gone forward; because the evidence that
you've seen would have been presented as exculpatory evidence.
Mr. LaTourette. Let me ask you, in conjunction with that,
we know today about the promises of money, jobs and other
things that were made to Barboza; relocation, protection.
Was the status of the law such in 1967 as to indicate that
if a motion was made by defense counsel to reveal inducements,
payments or other incentives reflecting a person's reliability
as a witness, could they have forced that from the prosecution?
Mr. Zalkind. You know, I must tell you, Mr. Chairman, I
really think that they may have made such a motion. We had made
no promises to Barboza.
Mr. LaTourette. Right.
Mr. Zalkind. I now see that the FBI had made promises to
him that they would intercede on his behalf to get the District
Attorney to do things for him. Obviously that is the rule now.
Mr. LaTourette. That's one of the things that concerns me.
I have no difficulty that the Suffolk County folks didn't make
any promises to Mr. Barboza; I also have no problems
understanding that the Federal Government made a lot of
promises to Mr. Barboza.
The link in the chain that appears to be missing, and it's
something that I've seen a lot in law enforcement, is, I don't
have anything in my file; did you feel an obligation to those
who took credit for this prosecution?
Mr. Condon and Mr. Rico received raises; they received
upgrades in rank; they were commended by J. Edgar Hoover.
Did you feel an obligation to go to the people that had
developed Mr. Barboza's testimony and say, I have been asked
whether or not we've given anything to Mr. Barboza; I haven't,
have you?
Mr. Zalkind. If that had been part of a motion, I certainly
would have done it.
Mr. Chairman, in those days, you have to understand that
the FBI and local prosecution were far apart. This case sort of
came together because years ago Garrett Byrne prosecuted the
famous Brinks robbery after the Federal statute of limitations
had run out; so he had a pretty good relationship with the FBI.
We would never have thought of asking an FBI agent for his
reports; it just wasn't done. Now, today, it's done as a matter
of course.
Mr. Wilson. It is?
Mr. Zalkind. Every motion I file now, it will say from all
law-enforcement officials, including the DEA, the FBI. I make a
whole list. Whether I get it or not is a different story; but
it's on the record.
And another thing: What is considered exculpatory under
Brady today was not the law in 1968. It had just come into
effect; and, you know, the law of what's exculpatory and what
isn't has changed through the historical works.
Mr. LaTourette. I understand that. But I do think that even
under the old standard of Brady, that's now developed over the
last 40 years, information from witnesses that say that people
other than those being charged with the murder committed the
murder probably fell under the category of exculpatory----
Mr. Zalkind. I agree with you 100 percent. My only problem
is that Chelsea report has always bothered me; I just don't
know where that fits. But the FBI statements, certainly, yes.
Mr. LaTourette. I'm going to close.
Just before I yield to Mr. Tierney, I want to be clear
about this Jimmy Flemmi business. You say you weren't from New
England; and so, when did the name Jimmy Flemmi ever mean
anything to you?
Mr. Zalkind. Ah. In 1970, I was asked to prosecute Jimmy
Flemmi. That was 2 years after this case.
Flemmi had allegedly beat up someone, or tried to extort
him; and the government had a tape. Again, I didn't put the
case in to the grand jury; someone else did.
They said, here's the case, and you've got a cinch case.
Here's a tape that the victim made of Jimmy Flemmi shaking him
down.
So I put on the case--he was represented by Joe Balliro, as
a matter of fact--I put on the case; and during the case said
that this guy's a good friend of Joseph Barboza. And I
certainly noticed he was bald, something like the guy sitting
in the back seat.
And a strange thing happened in that case. Now that I
realize it, what happened was, after I played my tape showing
that he had tried to extort this guy, in defense they come up
with a tape, and the tape was a tape that Flemmi made saying,
you know, I wasn't really serious about hurting you the other
day, etc.
So in my mind, in those days, I thought, goodness, someone
must have tipped him off that they were making a tape.
Well, I can see today that if the FBI was using him as an
informer, and the word got back to him that we had tapes, I
guess that's what happened.
Mr. LaTourette. Were you ever aware or has anyone told you
that the FBI had information that the Deegan murder had been
sanctioned by Raymond Patriarca?
Did you learn that either before----
Mr. Zalkind. I did not learn that until I watched this
committee's hearing on closed-circuit TV, when Judge Harrington
testified before your committee.
Mr. LaTourette. It's my pleasure now to yield half an hour
to Mr. Tierney.
Mr. Tierney. Thank you, Mr. Chairman. I don't intend to use
the half-hour by myself. I'd like to make sure that my
colleagues all get a fair amount of time here, so I'm going to
try to be brief and then pass it along.
Let me just ask you, sir, were you at the time of this
prosecution on the Deegan case privy to a March 15, 1965 memo
from FBI Special Agent H. Paul Rico?
Mr. Zalkind. No.
Mr. Tierney. You never saw that at all?
Mr. Zalkind. Never. I've seen it recently.
Mr. Tierney. And that goes back to your testimony that you
didn't see it because not all of the different law-enforcement
agencies made materials available?
Mr. Zalkind. That's correct.
Mr. Tierney. Were you privy to the 1965 memo from the FBI
Special Office to the Deputy Director?
Mr. Zalkind. No.
Mr. Tierney. Same reason?
Mr. Zalkind. Same reason.
Mr. Tierney. You made mention a little bit earlier that you
had later an opportunity to send letters recommending
commutation on behalf of some of these gentlemen. Would you
tell me how that circumstance arose?
Mr. Zalkind. Yes. The lawyers called me. I don't remember
who it was at first; but Victor Garo, who is sitting here now,
after I became a defense attorney, we tried a case together,
and he said to me that he was representing Joe Salvati; he was
doing well in prison, etc. We had a long talk.
I said to him, you know, honestly, in those days, if these
guys had ever asked me and the plea was second degree, we would
have taken it in 15 seconds; because, you know, to get to first
was sort of a price.
In any event, I said, based upon what I know about the
case, no one ever made any threats to me during the trial.
Everyone behaved like a gentleman. They had done their time.
And I said, I agree; I think that if they can get a
commutation to second degree, it wouldn't bother me one bit.
And so I wrote letters on all their behalfs, as far back I
think as 1975. I'm not sure of the date, but I did.
Mr. Tierney. In relation to that, have you ever been
contacted by anybody from the Federal Bureau of Investigation
or the U.S. Attorney's Office to discuss your role in that
commutation proceeding?
Mr. Zalkind. No. No one ever told me not to. No one ever
told me that it was the wrong thing to do; and if they had, I
would have told them they were wrong.
Mr. Tierney. Just to followup on the chairman's questions
to you about where do we go from here, what comments might you
have to make concerning law enforcement's use of confidential
informants, and how they use that process? How can we be sure
as we go forward that we don't get the same kinds of abuses and
problems that we see in this case?
Mr. Zalkind. I certainly can't believe that the FBI or
anybody should sanction informers committing crimes that are
not told to the prosecution.
In other words, if they're left to their own ways, and you
can deal with drugs and you can deal with B&Es, but you can't
deal with murders, that's an outrageous situation.
I understand, they can't be foolish; they have to
integrate, and they have to put on this facade of crimes. But I
think the FBI's got to know exactly what's going on in their
lives.
Second, and I think even more importantly, the FBI or law-
enforcement agents should not keep informants' identities away
from the Attorney General's office or the U.S. Attorney's
Office.
In other words, if there's an informer, then the
prosecution has got to know about it. It can't be kept
separate. There's got to be some balance.
Mr. Tierney. Thank you.
What I would like to do, Mr. Chairman, is to allow my
colleagues to question. I'd like to ask Mr. Lynch if he would
use 7 minutes, and then seven for each. Then if there are any
left, we'll go back and utilize that; give everybody an
opportunity here.
Mr. LaTourette. As I said, I'm more than happy to enlarge
the time.
Mr. Tierney. Thank you.
Mr. Lynch. Thank you, Mr. Zalkind. Actually, I'm pleased
that you also saw the tape of the testimony from Judge
Harrington before this committee.
For me, this case boils down to a certain framework of
events and facts that really illustrate the wrong that was done
here.
In terms of your own knowledge--and I appreciate your
coming before the committee, and being so helpful--did you have
any knowledge of the fact that the Organized Crime Strike Force
had put a surveillance device--a so-called bug, as Mr.
Harrington described at the hearing--in the offices, I think it
was on Hanover Street, in the North End? Did you have any
knowledge about those activities?
Mr. Zalkind. No. I think that bug was in Providence, wasn't
it?
Mr. Lynch. I'm sorry?
Mr. Zalkind. The Harrington bug was in Providence, Rhode
Island, at Patriarca's office.
Mr. Lynch. OK.
Mr. Zalkind. But I had no knowledge of that. No, no; none
whatsoever.
Mr. Lynch. All right.
Did you have any knowledge at all of the fact that Mr.
Flemmi had asked Mr. Patriarca, apparently in Providence if
you're correct, for permission to kill Teddy Deegan?
Mr. Zalkind. Absolutely no knowledge of that.
Mr. Lynch. And can you just share with the committee any,
as you've described it, scuttlebutt, or any knowledge at all
around the time of the Deegan murder, the fact that Mr. Barboza
or others had actually been the ones that provided information
that led to the prosecution of Mr. Limone and Mr. Salvati for
that crime?
Mr. Zalkind. I don't understand what you mean by
scuttlebutt.
Mr. Lynch. Well, if you don't have direct knowledge, you
did indicate that there were discussions within prosecutorial
circles around what was being said about the individuals
involved in this case.
Mr. Zalkind. It was years later that things came to me. I
spoke to Joe Balliro, and Joe Balliro told me as recently as a
couple of years ago that if this privilege were lifted, he
could tell a story that he had heard from Jimmy Flemmi when he
represented him in that 1970 case.
And then, even as early as 1970, I heard a lot of
scuttlebutt that Jimmy Flemmi was Barboza's real close man, and
probably--probably--Jimmy had something to do with the Deegan
case; but, you know, who knew? This was 3 years later.
Mr. Lynch. I understand.
Mr. Zalkind. At the time, I would think that no one in
their right mind would give any information to me, the
prosecutor, because I think I had a reputation of being a tough
guy and a very honest guy; and if anyone ever leaked anything
to me that would throw this case off, I'd really explore it.
But as I said, when I said I didn't trust Barboza, I did
everything humanly possible to check out his story. I mean,
even when it came to Joe Salvati, I asked him, how was this guy
involved? He's not a member of so-called organized crime. And
his answer to me was that he was a good friend of Ron Cassesso,
and that Ronny wanted a man.
He just passed it off so lightly, and I couldn't find
anything that indicated that Joe Salvati wasn't there.
But I worked on that continuously; and I must tell you that
up until the day the jury came back, I had no information that
would have alerted me that there was something left out.
Mr. Lynch. In my closing remarks--and maybe we can come
back to this later; I don't want to take up all the time--but
in the time after the wrongful prosecution of Mr. Salvati for
the Deegan murder, there was a great body of knowledge that
came out after that, where slowly people became aware of
certain facts that would serve to exonerate Mr. Salvati.
Was there any movement among any of the offices that you
dealt with to go back and question the premise under which Mr.
Barboza and others pointed to Mr. Salvati and others in the
wrongful prosecution?
Mr. Zalkind. After the prosecution, it must have been about
2 years later, Joe Barboza--this is what I was anticipating--
Joe Barboza met with F. Lee Bailey someplace in the woods and
said that his whole story was a lie, and he wanted to make
amends, etc.
Of course we investigated that. We had a hearing; and then
as soon as we came forth for a hearing, Barboza said, nah, I
was just kidding around with Bailey; I just wanted to shake him
down for some money.
But we investigated it again, and we still couldn't find
anything really wrong with the story.
There was another incident where Stathopoulos and another
witness started to recant on his testimony. We investigated--
not we; by 1971 I was out of the office--they investigated that
end of the story. It led to a dead end.
There were motions for a new trial by Cassesso, which were
denied. There was a motion for a new trial by Mr. Salvati,
which was denied.
And so there was always this stuff going on. I wasn't
involved with it by that time; I was out of the office.
And I must say that in 1993, when I did send a letter or
when I received this statement allegedly by the Chelsea police
and I did contact the District Attorney's office, I really
didn't get much cooperation.
I don't say it was intentional; it may very well be that
they couldn't find the file. It was a new office, you know.
But I think that if I had seen the file in those years in
1993, and if indeed that was there, maybe this process could
have been shortened. I don't know.
Mr. Lynch. I appreciate your coming before the committee.
Thank you, Mr. Zalkind.
Thank you, Mr. Chairman. I yield back my time.
Mr. LaTourette. Mr. Delahunt.
Mr. Delahunt. Mr. Zalkind, I think you've laid out the
changes in terms of the relationship between the prosecutor and
the investigator after State District Attorneys' offices became
full-time. I think that response was ample and adequate.
Going back to the prosecution in the Deegan case, would you
describe for the committee the members, if you will, of the
team? I think I heard you say that you saw FBI agents in the
office.
Mr. Zalkind. They weren't part of my team. They were there
for another reason.
At the time, one of the witnesses, John Fitzgerald, had had
his leg blown off, and they were involved with finding a place
to store him, to keep him safe. They were there involved with
Barboza's safety.
Obviously there was all kinds of talk with law enforcement
in my office; but really, other than time of the day, how's it
going and so forth, I was busy. I would not consider----
Mr. Delahunt. You had a private practice during this time,
also?
Mr. Zalkind. Yes; but as I told the Members before, I had
put it to one side at that time.
Mr. Delahunt. Right.
Mr. Zalkind. This was a full-time job.
Mr. Delahunt. But in terms of preparing the case for
presentation, it was Mr. McDonough that you would work with?
Mr. Zalkind. Mr. McDonough worked with me in the respect
that--I don't think I ever had him with me when I questioned
witnesses. I think what he did mostly was prepare legal
memoranda for me.
Mr. Delahunt. He was the second seat at the prosecution,
too?
Mr. Zalkind. No. As I understand second seat, that's
someone that helps you try the case. Mr. McDonough I don't
believe ever questioned any witnesses.
Strategically, I would always bring in Larry Cameron or
some other assistant to sit next to me; because there were
rumors that during the course of the trial some harm was going
to come to me.
Mr. Delahunt. And better to Cameron than to Zalkind?
Mr. Zalkind. Well, I wanted the message to go out that if
you off Zalkind, people are going to know about it; and once in
a while Garo would sit down next to me and toss out ideas.
Mr. Delahunt. But the truth is, in terms of trial
preparation, it was more or less your exclusive domain; you had
Mr. McDonough doing the research in terms of issues of law. Is
that a fair statement?
Mr. Zalkind. I prepared the case. Once this case went to
the grand jury, the decisions were mine.
Mr. Delahunt. Did you ever have an occasion to discuss the
Chelsea police report with Mr. McDonough? Do you have any
memory of having a conversation?
Mr. Zalkind. I have no memory. I'm not saying I didn't.
Mr. Delahunt. No; I understand.
Mr. Zalkind. I have no memory.
Mr. Delahunt. In terms of the investigative team, who was
running the investigation?
Mr. Zalkind. John Doyle.
Mr. Delahunt. John Doyle, and he was a Boston police
officer?
Mr. Zalkind. He was a Boston police officer who had not
obtained the rank of anything more than a patrolman; but
because of his ability, I guess----
Mr. Delahunt. Or his relationship with Mr. Byrne; right.
And were there any other Boston police officers involved?
Mr. Zalkind. Yes. There was Sergeant Frank Walsh; there was
Detective Eddie Walsh. I had 10 policemen involved with this
case.
Mr. Delahunt. Were they assigned to the District Attorney's
office?
Mr. Zalkind. Yes.
Mr. Delahunt. They were assigned, so in effect they
answered to Garrett Byrne, then District Attorney in Suffolk
County; is that correct?
Mr. Zalkind. That's correct.
Mr. Delahunt. And they worked with you.
Did you consider either Paul Rico or Dennis Condon as part
of the investigative effort in terms of the Deegan case?
Mr. Zalkind. No.
Mr. Delahunt. But in fact, you would see them on occasion
in the courthouse building, in the District Attorney's office?
Mr. Zalkind. Yes.
Mr. Delahunt. But you never had a conversation with them
regarding the case?
Mr. Zalkind. I may have, but I don't remember ever saying
to them, listen, is there something I should know about this
case? I would be embarrassed. These were FBI guys. My contact,
if I had to go outside my office, I would go to John Doyle. But
that just didn't happen.
I mean, for example, on a hunch, I asked the Malden police
to see if there were any parking tickets that were ever issued
to Louis Greco; and lo and behold, I think there was a parking
ticket we found for Greco when he was supposedly in Florida,
something like that.
But we did nothing with the FBI that I can remember.
Mr. Delahunt. Actually, the crime was committed in Chelsea,
and for the benefit of those who are unaware, Chelsea is not
part of Boston; it's a separate municipality?
Mr. Zalkind. That's correct.
Mr. Delahunt. And the Chelsea police would then provide,
presumably, their reports and their information to the Boston
police that were assigned to the District Attorney's office?
Mr. Zalkind. Through John Doyle.
Mr. Delahunt. So you wouldn't interact necessarily with the
Chelsea police that were involved in the investigation? If you
can remember.
Mr. Zalkind. Sure; I talked with them if I felt it
necessary. You have to understand how it went.
John Doyle was the chief of investigations, and he had this
file; he had everything. I don't know what he had in his file.
And he would say, Jack, this is what I have, this is what I
have, this is what I have, this is what I have. I'm not saying
he held anything back, but I never looked into his file.
The file that I had myself was my trial notes; it was a
trial preparation sheet. I don't think I would allow any of the
detectives to look at that file.
But I would say that the main body of the preparation of
this case before I got it was in John Doyle's hands.
Mr. Delahunt. There was a State Police report that was
drafted shortly after the Deegan murder. Do you have any memory
of that particular report? It was authored by a Lieutenant
Cass; I believe that's the name.
Mr. Zalkind. I have some vague memory of something like
that, but I have no memory what it was like or anything.
Mr. Delahunt. In that report, I should indicate, there was
reference to Flemmi as being involved in the Deegan case.
Mr. Zalkind. I have no memory of that.
Mr. Delahunt. You have no memory?
Mr. Zalkind. No memory.
Mr. Delahunt. Also, it's somewhere in the book of exhibits,
but I don't want to dwell on it; there was also a Boston Police
Department report, and it was from the Intelligence Division,
which also implicated Flemmi in the Deegan murder.
Mr. Zalkind. After the fact?
Mr. Delahunt. After the fact; but contemporaneously,
shortly after the fact. And you have no memory of that?
Mr. Zalkind. I have no memory of that.
Mr. Delahunt. And it could--I'm not saying it is--but that
could have been within, let's call it the John Doyle file; but
you had no information?
Mr. Zalkind. I have no memory now that I had that
information.
Mr. Delahunt. Now that you've had an opportunity to review
the exhibit book that obviously has been developed by committee
staff and for the committee, there are numbers of exhibits
there that would implicate Jimmy Flemmi, the so-called
``Bear,'' as a principal in the Deegan homicide.
Mr. Zalkind. Congressman Delahunt, let me say this to you.
The information that Joe Barboza had told an FBI agent that
he would not implicate Jimmy Flemmi in a murder case is the
most exculpatory piece of evidence that anyone could have.
That information should have been in my hands. It should
have been in the hands of the defense attorneys. It is
outrageous, it's terrible, and that trial shouldn't have gone
forward.
And I can't make personal apologies; but I would say this,
that based on what I've seen, this is awful. And I feel
terrible. I've lived with this for a long time.
Mr. Delahunt. We've known each other for a number of years,
and you know that I have great respect for you; and I'm glad
you've made that statement. I think we all can agree. I know
the members of the committee agree with that.
I want to again, and I've done this before, on behalf of
the people of the Commonwealth apologize to these two gentlemen
for having served a sentence that never should have been
imposed on them.
You came to this case 6 months after Barboza became a
cooperating witness.
Mr. Zalkind. That's correct.
Mr. Delahunt. So you never had any knowledge about Joe
Barboza, other than the fact that you had prosecuted him,
cooperating with the government until some 6 months after he
had agreed?
Mr. Zalkind. Oh; that's correct.
I find out now that they had attempted to bring him into
their fold; but it was only when he was indicted as a habitual
criminal that I guess they were able to put the last nail in
the keg.
Mr. Delahunt. Do you have any idea how Mr. Barboza was
convinced, or who influenced him to cooperate with the
government?
Mr. Zalkind. Yes. I would absolutely think it was Paul Rico
and Dennis Condon.
Mr. Delahunt. And now that you're aware of, clearly, his
relationship with Joseph Barboza----
Mr. Zalkind. You mean with----
Mr. Delahunt [continuing]. I mean with Vincent Flemmi, are
you aware of the fact that subsequent to the Deegan murder,
despite all of the information regarding the involvement of
Flemmi in the Deegan murder, in fact the Federal Bureau of
Investigation conferred upon Jimmy Flemmi top-echelon status as
an informant? Are you aware of that?
Mr. Zalkind. I'm aware of that now, yes; and----
Mr. Delahunt. Three months after the murder?
Mr. Zalkind. After the murder.
And also, I'm not convinced; but I gave you the story, when
I prosecuted him in 1970 with that mysterious tape, I think
then he was cooperating with them.
And if he was cooperating with them then, then they knew
that he must have been involved with this murder; and even
then, didn't they have an obligation to tell me that then?
Didn't they have an obligation to tell me that, when all these
motions for a new trial were coming forward?
I mean, I don't mean to be redundant----
Mr. Delahunt. I'm going to yield to my colleague on the
Judiciary Committee; but after he concludes, I'm going to ask
you to review exhibit 15 and exhibit 16, which provide some
very recent information that I feel is rather disturbing, Mr.
Zalkind.
Mr. Frank.
[Exhibits 15 and 16 follow:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Frank. Did they whack the budget so bad that they only
have one mic?
With respect to a general point, Mr. Zalkind, you've had
experience as a prosecutor and a defense attorney; and I was
particularly struck when you noted that the state of the law is
such today that, while not impossible, it is less likely that
an innocent person would be falsely convicted, because we have
changed the procedures so that people on trial get a fairer
shake, in the sense that material is available to them. You
mentioned the Brady material, discovery rules, etc.
Obviously, there's been a lot of controversy over some of
the legal changes; and we have people who say, well, you make
it easier for criminals to get off, you're interfering with law
enforcement in doing their job.
I think it's important to underline the point that you have
made, that what we have done in this past 35 years to some
extent has been to strengthen protections for innocent people,
and make it less likely that innocent people will be convicted,
because you've given them a fair shot.
Mr. Zalkind. In one respect you're right, Congressman
Frank.
But on the other hand, Congress puts laws in hand that make
it difficult to defendants to proceed with a fair shake, and
then they come in with sentencing guidelines that are
outrageous. The sentencing guidelines are draconian.
So on one hand we give them a little bit more knowledge, a
little discovery; but now that you have the discovery, so what?
We make it harder for you to do sensible sentencing.
Mr. Frank. I believe the sentencing guidelines are a grave
error.
My sense of what you cite as an improvement came from the
courts; so the courts have made it fairer, but you think that
the political branches have restricted that fairness?
Mr. Zalkind. Somewhat.
Mr. Frank. But I do think that it's important to understand
that some of the reforms that have come in that have been so
harshly criticized in fact have worked to make it less likely
that people would be unfairly treated.
Mr. Zalkind. That is true.
Mr. Frank. I was struck by your telling us several times
that you didn't like Joe Barboza. Which ones of those guys
didn't you like? I mean, you didn't like Barboza----
Mr. Zalkind. I had a deal----
Mr. Frank. Were some people likable? Who did you want to
hang out with?
Well, let me ask you, more to the point, about the FBI.
Clearly, they withheld information about Barboza. This is
obviously somewhat speculative; but we are here, obviously,
without strict rules of evidence. We're trying to come to
conclusions in a policy sense.
Do you think Barboza's handlers at the FBI knew that Mr.
Salvati was innocent?
Mr. Zalkind. I can't answer that question.
Mr. Frank. Do you think they became aware of it at some
point?
Mr. Zalkind. I think that they knew from the beginning that
Joe Barboza was lying, and that alone is enough to impede all--
--
Mr. Frank. They knew that he was lying, and he was the
linchpin of the case?
Mr. Zalkind. He was it. Without Joe Barboza there was no
case.
Mr. Frank. So they came before you and told you dishonestly
they wouldn't proceed against Joe Barboza?
Mr. Zalkind. That's correct.
Mr. Frank. And we do know they were talking to Barboza
about what happened in the Deegan case; is that fair to say?
Mr. Zalkind. From the reports I've read, of course.
Mr. Frank. So we do know that the FBI were talking to
Barboza about the case; and I would then say it's a reasonable
inference that he was probably telling them the truth.
That leads me to believe that the problem here with the FBI
was not simply that they didn't tell you more about Barboza,
but that at some point in these conversations we do believe
they knew that Flemmi was involved, correct?
Mr. Zalkind. When you say ``we''----
Mr. Frank. I'm saying, do we now know that the FBI learned
that Flemmi was involved in the Deegan murder?
Mr. Zalkind. Yes.
Mr. Frank. That's the point.
If we now know that Barboza told them the truth about
Flemmi's involvement, it seems to me overwhelmingly likely that
he told them the truth about Salvati's non-involvement.
This is particularly distressing. Again, we're not making a
legal judgment here; we are as elected officials trying to come
to the likeliest conclusion on the basis of which to make
policy.
It does sound to me like it's fairly clear that the FBI not
only withheld information from you about their relationship
with Barboza, and the fact that he was lying, but that they are
very likely to have known that Mr. Salvati was innocent, and
allowed you to proceed with that knowledge, and didn't tell
you.
Mr. Zalkind. I can't answer that.
Mr. Frank. I understand.
What was the relevance of the Chelsea police report?
Mr. Zalkind. I never gave much, frankly----
Mr. Frank. What did it say?
Mr. Zalkind. Well, it was a very long document. You have it
there; and----
Mr. Frank. Just the substance of it.
Mr. Zalkind. The substance was the last paragraph.
Mr. Frank. Mr. Zalkind, I'll wait for you to get to the
mic, unless you don't want to be on the record on this.
Mr. Zalkind. Fine, fine; but I do have it. There's a
paragraph. Should I read it into the record?
Mr. LaTourette. Go ahead.
Mr. Zalkind. This is the last page, the third paragraph
from the bottom.
``I received information from Captain Renfrew that an
informant of his had contacted him and told him that French had
received a telephone call at the Ebb Tide at 9 p.m. on 3-12-65,
and after a short conversation he had left the cafe with the
following men: Joseph Barboza, Ronald Cassesso, Vincent Flemmi,
Francis Imbuglia, Romeo Martin, Nicky Femia and a man by the
name of Freddi who is about 40 years old and said to be a
`strong-arm.' They are said to have returned about 11 p.m., and
Martin was alleged to have said to French, `We nailed him.' ''
I think that's the thing----
Mr. Frank. So the relevance here is the absence of any
reference to Salvati.
First of all, we understand you have no recollection of
ever having seen that. Second, you said there was an
explanation that Barboza gave that Salvati's absence was that
he left earlier and that he came back late, etc.
And this isn't a question; it's a comment, and it's why I
think these hearings are so important, and why remedial action
is so important. The likeliest conclusion is that the FBI had
pretty good reason to believe that Mr. Salvati was innocent,
and for their own purposes kept silent, while you were acting
on misleading and inaccurate information to prosecute.
I cannot think of anything worse as far as the Federal
Government is concerned than to sit quietly by and allow an
innocent man to lose so much of his life for their own
purposes, mainly to protect people who were hardly worth
protecting.
That's all, Mr. Zalkind.
Mr. Zalkind. Let me just say, Mr. Salvati is correct; and
all my heart says, how about the other guys? If he was going to
lie about this, it's such a terrible mess. I don't even know
where to begin.
Mr. Frank. He may very well have----
Mr. Zalkind. He may have lied about other people. I don't
know.
Mr. Frank. In fact, given what we know about Barboza and
about this relationship, it's very likely that he did; and it
is very likely that we have uncovered only some of the
injustice, and that other injustices may have occurred.
That again reinforces our obligation as the Congress to
continue to focus on this, and not to drop it until we have the
best assurance you can get that we've got safeguards against
this kind of thing happening again.
Mr. Zalkind. We've got to make some laws that make it
mandatory on law-enforcement personnel, whether they be FBI or
whether they be state people, whether they're involved in the
case or not, to come forward with exculpatory evidence.
Even if the FBI had nothing to do with this case, if they
looked in their reports and they saw that John Jones had said
that someone else was involved, do they just sit on it?
I think that you've got to make some legislation that says
it's got to be turned over to the prosecution.
Mr. Frank. I appreciate that.
There's an analogy here, obviously. The legislature here
has just enacted legislation, and the Governor signed it, to
strengthen affirmative obligations of reporting on the part of
clergy where there is an allegation of child abuse.
I think that people who are put in special positions of
responsibility concurrently ought to be given special
obligations to come forward as applicable.
I will talk to my colleagues; it sounds like something that
the Judiciary Committee ought to take up.
Thank you.
Mr. Zalkind. Thank you.
Mr. LaTourette. Mr. Zalkind, Mr. Delahunt asked you about a
couple of exhibits.
I think, for the benefit of people who are watching this
who may be interested in taking a break--including you Mr.
Zalkind--I just want to talk about these two documents, solicit
your opinions about them and then any opinions my colleagues
may have; and then we'll take a 10-minute recess so everyone
can collect themselves.
In his chatting with you, Mr. Delahunt talked about two
exhibits which you'll find in your exhibit book, 15 and 16.
Fifteen is a pretty short document. It's just an Airtel
that is basically a communication from the director of the FBI
to the special agent in charge of Boston wanting to know about
the progress in terms of developing this top-echelon-informant
individual. We know that person today to be James Vincent
Flemmi.
Exhibit 16 I think is the more intriguing document. It's a
multi-page document; if you want to just take a minute to
review it.
Five days after the Airtel was sent on June 4, on June 9 a
communication was sent back to J. Edgar Hoover that reads in
pertinent part, ``Concerning the informant's emotional
stability, the agent handling the informant believes, from
information obtained from other informants and sources, that BS
919-PC,'' and we know that to be Jimmy Flemmi, ``has
murdered,'' and then there are, sadly, six names redacted,
where we don't even know from this document what six people he
murdered; but Edward ``Teddy'' Deegan is the non-redacted name,
``as well as a fellow inmate at the Massachusetts Correctional
Institution, Walpole, Massachusetts, and, from all indications,
he is going to continue to commit murder. . . . Although the
informant will be difficult to contact once he is released from
the hospital because he feels that,'' another redacted
individual, ``will try to kill him, the informant's potential
outweighs the risk involved.''
The committee now knows that the informant, as I indicated,
referred to in this passage was Teddy Deegan.
Mr. Zalkind. Teddy Deegan was the informant?
Mr. LaTourette. Excuse me; Jimmy Flemmi. And this is an
exchange of documents that went back and forth from the FBI in
1965. As a matter of fact, June 9, 1965 is when they indicate
that they know that Jimmy Flemmi had participated in the murder
of Teddy Deegan.
The sort of softball question to you is, I guess you would
have an opinion as to whether or not it was wrong to withhold
this information from you, and if that would have affected your
thinking during the prosecution.
Mr. Zalkind. I really have to answer that. It's so obvious.
That's probably the most startling revelation that's been
before me since this case began way back when.
I mean, I just can't imagine anyone allowing that to happen
and not telling the prosecution.
Mr. LaTourette. The last question I want to ask you on it
is this.
You said that you had watched Judge Harrington testify
before the committee in Washington, DC; and he indicated to us
then that Jimmy Flemmi at one time was put in front of the
grand jury to give him cover.
Were you a participant in having Jimmy Flemmi testify
before----
Mr. Zalkind. No knowledge whatsoever.
Mr. LaTourette. I think I would yield my turn now to my
colleagues to ask any questions or express any reactions.
The other thing I want to say about exhibits 15 and 16 is
that why some of us have some sort of strident remarks about
what's going on with the production of documents is that after
about a year of investigating this case by the committee and
requesting documents, it's my understanding Mr. Wilson, and
counsel can correct me if I'm wrong, that we just came into
possession of 15 and 16 last week. Is that correct?
Mr. Wilson. It's correct to say that the first exhibit, 15,
just came to us a couple weeks ago. The other one, we had.
Mr. Frank. Can I ask a question? Some of the victims of Mr.
Flemmi, those victims were redacted. My guess is it's probably
too late----
Mr. Wilson. They wouldn't care.
Mr. Frank. Do we know who those were, and can we get them?
There may be other cases where someone may have been convicted
unfairly.
It would seem to me that knowing the other list of victims
might give you a lead on what other occasions to look at as to
who might have been convicted unfairly; so I would think at
least they might show you those.
If this guy's an informant to the Federal Government, and
he kills somebody, I think it's a little late for the Federal
Government to show such concern for the person that was killed
by not letting anybody see his name. That doesn't seem to do
much good.
And I would think that would be one of the areas where you
would want to look to see who these others were.
Mr. LaTourette. We will let counsel make an observation.
Mr. Wilson. We have recently received documents that
indicate who these other individuals are. The Justice
Department has asked us to keep these names confidential, and
we've done that thus far.
But the committee is aware, first through me being allowed
a number of months ago to inspect some redacted documents at
the FBI headquarters, and then recently, just two or 3 weeks
ago, through a production to the committee, we now know who
these other individuals are; so that the redactions here, we
know who the names are, but the Department of Justice would
prefer that we not disclose this information.
Mr. Delahunt. Can I ask a question, Mr. Chairman?
Mr. LaTourette. You can ask a question.
Mr. Delahunt. I just simply cannot understand any rational
basis put forth by the Department of Justice to seek, after
some almost 40 years, to continue to maintain secrecy. People
have a right to know. This is absolutely unconscionable on the
part of the Department of Justice.
Mr. LaTourette. Mr. Tierney?
Mr. Tierney. Thank you, Mr. Chairman. Let me join in this.
We've had a number of hearings, one hearing on specifically
the issue of Mr. Zalkind and the Department on whether or not
they would produce documents.
The administration sent in a witness to testify who not
only wasn't cooperative but actually failed to even testify as
to who gave that witness instructions not to produce certain
documents. It got to that level of absurdity.
Now we sit here with a document that's heavily redacted for
no apparent reason, 35 years old or more. There certainly are
no reasonable grounds for claiming executive privilege, even on
any limited basis, on that.
The overwhelming capacity of these documents and the
testimony of witnesses to help us with the purpose of making
sure of the appropriate oversight of government agencies would
far outweigh any executive privilege under any case law that
may exist.
So it's outrageous and ridiculous of this administration.
Both parties are upset with the path this administration has
taken. We should not have to go through this type of dynamics
just to get to the bottom of this, if in fact we're going to
try to put some proceedings in place.
These two documents that the chairman just went over with
you, the most recent ones, should give us all cause for serious
concern at a time in this country when this administration and
Attorney General Ashcroft have sought more and more
prosecutorial authority, and have sought to limit more and more
defendants' opportunities even to get evidence that they might
use in their own defense.
If we're going to seek those kinds of powers for the
government, then we ought to make sure that the administration
is giving this committee and the Congress the information it
needs, as well as appropriate oversight, to make sure that the
FBI and other investigators have in fact safeguards, that there
is transparency, and there is adequate oversight to make sure
this kind of travesty that we see perpetrated in this case is
not continued.
These two documents reflect on the comments I made earlier
in the opening remarks that this is not a problem limited to a
couple of rogue agents in the FBI on a local basis.
This was an endemic problem; it goes all the way to the
top. Why we continue to have a building in Washington named
after J. Edgar Hoover is beyond my comprehension, particularly
when you look at documents like this.
It's a disgrace what went on in this case. It's a disgrace
to this administration, and it continues to this day for no
apparent reason.
To withhold information under the guise of executive
privilege is entirely without merit. We've seen it in this
matter.
We've seen it in the Enron situation, where the
administration refuses to produce documents showing which
companies had met with the administration when policy for this
country's energy situation was being created. We know that
there's information there that would be valuable to the public.
We've seen it in an instance where members of this
committee in minority requested census information, and had to
sue the White House in order to get census information for
every census release going back to the beginning of census
time.
This shield or veil of secrecy is not doing this country
any good, is not allowing Congress to do its work, and is
consequently not allowing us to do our best job in providing
the protections that you've testified to and other witnesses in
front of this committee have testified to.
I thank the chairman here, and Chairman Burton as well, for
their willingness to make this a bipartisan effort.
This is not about parties or about politics. It's about
having a justice system that works for every American, and
making sure that they believe and have faith in it; because
without that we aren't going to be able to have the protections
that people in this country are overseas fighting for.
We need to strike some balance for people to have their
liberties protected in every sort of way, but also protection
for this country; and if this administration wants us to expand
on one side of that, they've got to convince the American
people that they're willing to put in place the protection of
people's civil liberties on the other side of that.
With that said, I pass this on to Mr. Lynch.
Mr. Lynch. Thank you; thank you, Mr. Chairman.
Mr. Zalkind, just based on these two exhibits that the
chairman has focused on, it's indeed troubling that 3 months
after the Deegan murder, exhibit 15 basically reflects a
decision of the Director of the FBI--this was after he has
received information that Jimmy Flemmi has killed Deegan, or
certainly expressed an intent to kill Deegan, and others--that
the Director is asking how is the progress in terms of
developing Mr. Flemmi as a top-echelon informant.
So that's with that information in hand; and with direct
evidence that he attempts to continue covering up.
I think in exhibit 1 he states--this is Mr. Condon's memo--
``Flemmi told him that all he wanted to do now was to kill
people, and that it is better than hitting banks,'' and that he
feels he can become ``the top hit man in the area and intends
to be.''
Then we have another exhibit in a similar vein, exhibit 2,
a Boston letter to the Director of the FBI. This is Mr. Condon
again telling the Director of the FBI, Mr. Hoover, that
``Flemmi is suspected of a number of gangland murders and has
told the informant of his plans to become recognized as the
number-one `hit man' in this area as a contract killer.''
And again, Mr. Rico from the FBI, in a Boston memo, says
that ``Vincent Flemmi''--this is from another informant--
``Vincent Flemmi wanted to be considered the best hit man in
the area.''
Again, the Director has information that Mr. Flemmi wants
to kill Teddy Deegan.
Now, here, after the murder of Mr. Deegan, 3 months after,
here's the Director of the FBI asking the Boston office, how is
the progress on Mr. Flemmi, in terms of being developed as a
top-echelon informant?
That is just so disheartening. It is clearly criminal. It's
criminal; there's no other way around this.
Just coming fast-forward to the current situation, I would
love to believe your earlier statement that things are getting
better; that this can't happen anymore.
[Exhibits 1 and 2 follow:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Zalkind. Well, I didn't say----
Mr. Lynch. While certainly there was----
Mr. Zalkind. They're getting better.
Mr. Lynch. That certainly this couldn't happen again.
All I'm saying is that as members of the committee, and as
representatives of the legislative branch, we see what the
President is doing.
On the one hand, we understand the need after September
11th for gathering greater information in our war against
terrorism; but the plain fact of the matter is, the President
is seeking the ability to deal with unsavory characters and to
get around any limitations in terms of the terrorists and the
associates of terrorists with whom the government cooperates.
So we're looking to expand the group of people whom we
bring into these types of relationships, because we want to get
at the terrorists. So we're not getting away from dealing with
unsavory characters; we're actually recruiting them to a
greater degree.
Second, which is confounding, is this insistence on
executive privilege 40 years after the fact, when truth is
needed, where justice is needed.
I don't see us moving in a better direction; and I don't
think that there's greater reason for hope that this is an
isolated case and that these are circumstances that are wholly
unique to this time and place.
And again, I know I'm being redundant. I just want to thank
the chairman for his good work and for his persistence. I think
we need to further investigate these other related cases that
may have had the same taint, the same fallibility, that the
Deegan case had.
And I just call upon the witness to add his voice to those
who might lend some common sense and reason to the argument
regarding the scope of executive privilege being exercised in
this case.
Thank you.
Mr. Zalkind. Well, I can tell you this; that now, as I sit
here now, I realize exactly what happened in this case.
I'm a pretty tough guy; I went through a war and so forth.
I was a victim in this case. The FBI knew that they had lost
Joe Barboza. He was in jail. I was instrumental in making him a
prisoner for the rest of his life.
So what they did, they knew they had Joe lost; but they
figured, well, let's flip Joe, and let Joe know that we're not
going to push him on his friend Jimmy Flemmi. So they let Joe
go on and tell the story, leaving out Jimmy Flemmi; and then
Jimmy Flemmi is allowed to go on and be their informer.
He then commits a crime 2 years later; and I believe that
they interfered by telling him about the prosecution and giving
him a tape, and it's the same story that you have right now
that's going on with this agent--I'm not taking any position on
that--but it comes right from the top.
The Bureau has always allowed these rogue agents to go as
far as they wanted with the excuse that, well, you have to do
what you have to do to stop organized crime. Maybe you do; but
you don't have to put innocent people in harm's way, and
especially not put them in jail, as they did in this case.
When I leave here today, I must tell you, I just need some
time. This has been very shocking to me.
Mr. Lynch. Mr. Zalkind, I just want to make something
perfectly clear. In no way do my questions--and I speak for
myself, but I think it's true of the other Members as well--in
no way do my questions offer any suggestions of culpability on
your part.
Mr. Zalkind. I know that, sir; I know that.
Mr. Lynch. To go back to the Harrington testimony at the
previous hearing, there were parallel cases here, one a Federal
case and one a state case, against Deegan. There was
information obtained in the Federal case through a bug, a
surveillance device, that indicated that Mr. Flemmi had asked
for permission to kill Mr. Deegan.
At that time, when your case was going on, Mr. Harrington
was asked as the head of the Organized Crime Task Force, why
did you not share that information--not referring to you, Mr.
Zalkind, but to your case--why was that information not shared
in the Deegan case?
The explanation given by Mr. Harrington was that he was
involved in a Federal case against Mr. Patriarca, and that you
were involved in a state case surrounding the murder of Mr.
Deegan. That information was not shared with you. Was not
shared with you; that was Mr. Harrington's statement.
And when the Chair asked further why that information was
not shared, the answer was completely unacceptable; it was in
the ``I forgot'' category.
So I just want to make clear that I am in no way
suggesting, in any remote way, that there's any culpability on
your part, Mr. Zalkind.
Mr. Zalkind. I understand that, Congressman.
Mr. LaTourette. Thank you.
Would you like to say something? How about Mr. Delahunt?
Mr. Delahunt. Mr. Zalkind, I appreciate your revelations
that have occurred here today.
What if I added into that body of knowledge the fact that
Mr. Barboza was influenced to become a cooperating witness
through the efforts of FBI agents, utilizing Mr. Stevie Flemmi?
What would you say to that, Mr. Zalkind?
Mr. Zalkind. I would say I can't believe that, because
Stevie Flemmi was charged as one of the men who blew off John
Fitzgerald's leg.
Mr. Delahunt. Well, before we return, I would recommend
that you, during the break here, review exhibit 21, because
it's been recently disclosed that the head of the Boston office
of the FBI sent to the Director, Mr. Hoover, a memorandum on
June 20, 1967, that Stevie Flemmi was developed by Rico and
Condon.
And I'm quoting now, ``via imaginative direction and
professional ingenuity, utilized said source,'' referencing
Stevie Flemmi, ``in connection with interviews of Joseph Baron,
a professional assassin responsible for numerous homicides and
acknowledged by all professional law enforcement
representatives in the area to be the most
dangerous individual known.''
Now, going back all these decades, is there any wonder, or
should there be any question, as to why Jimmy Flemmi was left
out of his obvious involvement in the Deegan murder?
[Exhibit 21 follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Zalkind. It's obvious.
Mr. Delahunt. It becomes obvious now?
Mr. Zalkind. It's obvious; it's obvious.
Mr. Delahunt. Well, I think we should probably----
Mr. Zalkind. Heinous, but obvious.
Mr. Delahunt. Heinous, but obvious.
I'll yield, Mr. Chairman.
Mr. LaTourette. Ladies and gentlemen, it's about 13 minutes
to noon. Let's take a recess and startup again at 12.
[Recess.]
Mr. LaTourette. The committee hearing will be back in
order. Mr. Lynch is still with us; he will join us again. Mr.
Frank advised us that he has some other business that he had to
attend to, but we thank him for being here.
Mr. Zalkind, prior to the break--and it's my intention to
go on to something known as the 5-minute rule; we're going to
move through some of the other portions--before the break, Mr.
Delahunt talked about Stevie Flemmi, with particular reference
to exhibit No. 21.
Just by the way of record purposes, I think I indicated,
and others did, that Agents Rico and Condon were given salary
increases because of their work with Joseph Barboza; and that's
included in some of the exhibits that you have before you.
What has always mystified the committee in moving through
this was a reference to a confidential informant identified by
the code BS 955 C-TE.
When Mr. Delahunt and I were up in Boston several months
ago interviewing Special Agent Condon, we asked questions like,
was this electronic surveillance? Was it a person? Who was it?
And he indicated to us he had no knowledge of who it was.
And we've asked the Justice Department for over a year who
this informant was, and there was no way to understand the
Deegan case and the use of Barboza without understanding what
this was a reference to.
We've now been told, Mr. Delahunt indicated to you, that BS
955 C-TE was Stevie ``The Rifleman'' Flemmi.
And it occurs to me that a few questions by any competent
investigator who knew what the FBI was up to would have asked
Barboza things such as, Mr. Barboza, you told us you would
never provide information that would allow James Vincent Flemmi
to fry; we know that today, and why shouldn't we just conclude
that you were lying?
I think it would have been appropriate to ask whether
Raymond Patriarca was part of the conspiracy to kill Deegan,
and I think you indicated you had no knowledge to indicate
Raymond Patriarca was part of the conspiracy back in the
1960's. Is that correct?
Mr. Zalkind. That's correct.
Mr. LaTourette. Someone might have asked where was Jimmy
Flemmi on the night of the Deegan murder, I suppose, if this
information had been available.
Mr. Zalkind. Well, if the information had been available, I
certainly think you would--aside from the problem of Flemmi--
probably would have indicted Raymond Patriarca.
Mr. LaTourette. Mr. Barboza indicated to some other inmates
of Walpole, and through other informants we have information,
that Mr. Barboza actually shot Teddy Deegan with a .45-caliber
handgun; and obviously that's inconsistent with the testimony
he gave to you. It would have been appropriate to ask Mr.
Barboza whether or not, the day before the Deegan murder, he
and Jimmy Flemmi had gone to Raymond Patriarca and asked for
his permission to kill Deegan.
From the records we have, no one asked Barboza about the
information the FBI had; and it appears from the record that
the FBI agents handling Barboza didn't want to ask the
questions, because it might then upset the story that he was
prepared to tell.
In the last month, we have received some additional
documents from the Justice Department that help us resolve the
puzzle of how Rico and Condon got him to testify.
Again, that's because BS 955 was the brother of one of the
men who killed Teddy Deegan, specifically the informant whom
they developed, Steve ``The Rifleman'' Flemmi, who killed a
number of people, along with Whitey Bulger.
Director Hoover gave Rico and Condon $150 raises each for
providing information in the Deegan case, and the case against
Raymond Patriarca and Gennaro Angiulo.
I would ask you, did you even know who Steve Flemmi was at
the time of the Deegan trial?
Mr. Zalkind. No.
Mr. LaTourette. Were you ever made aware that the person
who was credited with changing Barboza's mind about testifying
was the brother of the man who went with Barboza to Patriarca
to ask for permission to kill?
Mr. Zalkind. No.
Mr. LaTourette. Obviously we're building a record here, so
I hope you don't think I'm as big an idiot as the question
sounds; but if you had known what we just told you, would you
have approached Mr. Barboza's testimony differently?
Mr. Zalkind. I wouldn't have prosecuted this case.
Mr. LaTourette. And were you ever aware that Steve Flemmi
was targeted to become a top-echelon informant for the FBI in
1965?
Mr. Zalkind. No. No, I was not.
Mr. LaTourette. When he testified in the Deegan trial,
Special Agent Condon said it was not fair to say that he and
Paul Rico were major figures with regard to the investigation
surrounding the information furnished by Mr. Baron. Do you
remember that testimony?
Mr. Zalkind. Yes, I do.
Mr. LaTourette. Was this, in light of what we know today,
accurate testimony?
Mr. Zalkind. Well, they weren't major participants in my
trial; but of course, they were major, major participants in
the whole Barboza episode, since they flipped him.
Mr. LaTourette. Exhibit 18 is Agents Rico's and Condon's
summary of their interview with Mr. Barboza.
On Page 2, Barboza told Rico and Condon again this
statement that ``he would never provide information that would
allow Jim Flemmi to `fry.' '' I believe you told the staff of
our committee when you were interviewed earlier that you nearly
fell out of your chair when you heard that information. Did you
in fact say that to our staff?
[Exhibit 18 follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Zalkind. Yes, I did.
Mr. LaTourette. And why did you say that?
Mr. Zalkind. Well, again, it's the whole thing of secreting
evidence. They have a witness that they knew was lying to me,
and they never told me he was lying.
I mean, there must be some rule, whether it be regulatory,
administrative or actual criminal rules, that when an FBI agent
lies to another law-enforcement agency to protect someone,
that's got to be a crime. It's got to be, someplace along the
line.
Mr. LaTourette. And did the FBI ever indicate to you that
they had evidence of Mr. Patriarca's involvement in this at
all?
Mr. Zalkind. No.
Mr. LaTourette. And did you ever hear any talk within the
law-enforcement community, either at the same time or shortly
thereafter, about prosecuting either Mr. Patriarca or Mr.
Angiulo for their complicity in the Deegan murder?
Mr. Zalkind. No.
Mr. LaTourette. Thank you very much.
Mr. Tierney.
Mr. Tierney. Thank you.
Mr. Zalkind, let me just put some other things in the
record. Would you look at exhibit 20, please?
[Exhibit 20 follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Zalkind. Sorry; there's a lot that's blank before you
get to it.
Mr. Tierney. Well, as you're looking----
Mr. Zalkind. I have it; I have it.
Mr. Tierney. Let me summarize.
It indicates that on May 24, 1967, which is about the time
that Barboza was being developed as a witness, FBI Director
Hoover asked for an investigative report on Barboza.
Were you ever aware that Hoover, or at a minimum the FBI
headquarters in Washington, were interested in Barboza?
Mr. Zalkind. Yes, I was aware that J. Edgar Hoover was
interested in this case.
I think that my boss, Garrett Byrne, had had some
communications with Hoover, I guess congratulating him for
doing such a good job in prosecuting this case. That's the
extent.
Mr. Tierney. Exhibit 26 appears to be the report that was
requested by Hoover that we talked about earlier. Among the
catalogue of murders, it indicated that Barboza claims he shot
Teddy Deegan with a .45-caliber gun.
Now, this certainly contradicts Barboza's testimony that
not only did he not shoot Deegan, but that he never saw who did
it; correct?
[Exhibit 26 follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Zalkind. That's correct.
Mr. Tierney. Would this knowledge have been important to
you if you had been aware of it at the time you had been
putting Barboza in front of the grand jury?
Mr. Zalkind. What's the date of this report?
Mr. Tierney. It's July 18, 1967.
Mr. Zalkind. There wouldn't have been the prosecution.
Amongst other things, this would have been just another nick in
the rifle, and that would have been the end of it.
Mr. Tierney. So obviously, that would have had some impact
on your assessment of Barboza's credibility?
Mr. Zalkind. It would have had an impact on my assessment
of the credibility of the FBI.
Mr. Tierney. We all have some concern about that.
Were you aware that the defense lawyers in the Deegan
matter made a motion to obtain all police-department reports?
Mr. Zalkind. I know they made motions for the police
department. I don't know if they ever referred to FBI reports.
But all of those motions were ruled upon by the judge; and
as I said before in my opening, discovery in those days was
very restricted.
Mr. Tierney. Did you oppose the motion?
Mr. Zalkind. Probably. Probably.
Mr. Tierney. And looking back, obviously you would agree it
would have better served the interests of justice if----
Mr. Zalkind. I wouldn't have opposed any motion that asked
for exculpatory evidence, but I would have opposed motions that
asked for police-department reports.
Mr. Tierney. Why?
Mr. Zalkind. Because they're not available as a general
rule anyhow.
Mr. Tierney. Should they be?
Mr. Zalkind. I think it depends upon the case.
I think, if it's a police report made by a policeman
testifying, they certainly should be available. He's a witness
testifying; it's like a grand-jury record in a Federal case.
Should all police reports? I don't think all of them should
be. Some of them obviously have to be kept within the confines
of confidentiality.
Mr. Tierney. Did you ever consider using a polygraph on
Barboza?
Mr. Zalkind. No.
Mr. Tierney. Were you aware that Louie Greco, who was one
of the defendants in the Greco case, was in Florida on the day
of the Deegan murder, and had passed a whole series of
polygraphs indicating----
Mr. Zalkind. There was some talk by Larry O'Donnell, his
defense counsel, that he had taken a polygraph. I don't even
remember if he asked to have it introduced into evidence. He
might have asked a question. It didn't really concern me very
much, because in those days polygraph tests were not
admissible.
Mr. Tierney. Exhibit 41 is an affidavit by Anthony
Stathopoulos. Essentially, you know who Anthony Stathopoulos
was?
[Exhibit 41 follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Zalkind. I do.
Mr. Tierney. Who was he?
Mr. Zalkind. Anthony Stathopoulos was the witness in the
trial that brought Teddy Deegan to the alley after having a
meeting with Joe Barboza.
Mr. Tierney. On the first page of his affidavit----
Mr. Zalkind. This is 41?
Mr. Tierney. 41; right.
Mr. Zalkind. Yes.
Mr. Tierney. On the first page of that affidavit,
Stathopoulos says that Officer Doyle had told him that Barboza
said that Greco shot Deegan, and that when he testified he was
told the seating arrangement of the witnesses.
Had you ever seen the affidavit before today?
Mr. Zalkind. Yes, I have seen this affidavit. I think I saw
this attached to some motion that maybe Ronny Cassesso made for
a new trial; but I think I've seen this before, yes.
Mr. Tierney. At the end of the first page, it says that
``Baron told me''--Stathopoulos--``that he was going to keep
Flemmi out of it because he said that Flemmi was a friend of
his and the only one who treated him decently.''
When did you become aware of that statement?
Mr. Zalkind. I don't know whether I was out of the office.
I think I may have been out of the office at that time. But I
was made aware of this.
Mr. Tierney. In fact, the second page discusses reports and
conversations that the department says he reportedly had with
you.
Mr. Zalkind. Yes.
Mr. Tierney. Do you have any recollection of any of the
events or reports that Stathopoulos is talking about in this
document?
Mr. Zalkind. Yes, I have.
I have a very firm recollection insofar as the defense
counsel in the case asked that they be allowed to interview the
witnesses, including Stathopoulos. I told Stathopoulos, they
have an absolute right to interview him, but he has an absolute
right not to be interviewed.
He says, what do you think I should do? I said, I think
you'll get confused, but it's up to you.
I never told him not to do it. I didn't have much faith in
any of these witnesses, as far as what happened later on.
Mr. Tierney. Do you know whether or not that interview took
place?
Mr. Zalkind. The interview with the Boston police officer?
Mr. Tierney. Right.
Mr. Zalkind. I was told about it. I wasn't there, so I
don't know.
Mr. Tierney. If you look at exhibit 22, it's a summary of
an interview with Anthony Stathopoulos as conducted by Officer
Robson. Do you remember who Officer Robson was?
[Exhibit 22 follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Zalkind. Yes. He was assigned to us. I think he was
MBTA. Yes.
Mr. Tierney. In the interview, Stathopoulos says he saw
Cassesso and Martin, but did not see anyone else; but when
Stathopoulos testified at the Deegan trial about a year later,
he said he saw Louie Greco. Were you aware then of the
inconsistency in those two statements?
Mr. Zalkind. I don't know if I ever saw this before.
Mr. Tierney. That's exhibit 26, you're saying?
Mr. Zalkind. Exhibit 26?
Mr. Tierney. 22.
Mr. Zalkind. 22; yes. I may have seen this report; I may
not. I don't know. But when we questioned him, the eventual
statements that came out were that he couldn't really recognize
anyone that he saw coming out of the alleyway.
And I said, well, they're going to be all sitting in front
of you. If you see anyone that's familiar to you, point it out;
if you don't, don't. And that was the extent of it. And he did
point out Louie Greco as being a man that looked like the
fellow.
Mr. Tierney. And the inconsistency between the two
statements was not known to you at that time?
Mr. Zalkind. It may have been; it may have been. It may
have been.
Mr. Tierney. But it meant nothing to you?
Mr. Zalkind. Well, not nothing. This was an officer writing
it down. It just didn't mean that much to me. If I saw it; I
don't even remember seeing it at the time.
Mr. Tierney. To go back to his affidavit, which is exhibit
41, it indicates that Stathopoulos visited Barboza before the
Deegan trial. Did you know that?
Mr. Zalkind. That the police had visited Stathopoulos?
Mr. Tierney. No; that Stathopoulos had visited Barboza.
Mr. Zalkind. Yes; with the two police officers from the
District Attorney's office?
Mr. Tierney. Right.
Mr. Zalkind. Yes, I knew about that.
Mr. Tierney. Did you make further inquiry as to what that
was all about?
Mr. Zalkind. Yes.
Mr. Tierney. And what did you find?
Mr. Zalkind. They told me that Stathopoulos wanted to be
assured that Barboza was not going to bother him. They sort of
brushed it off.
I wasn't even involved when that took place. They went down
there; and then I said, what was all this about? They said,
well, he wanted to go down and talk to Barboza to be sure that
nothing's going to happen to him. Something like that.
Again, you know, that's my memory. It wasn't important to
me at the time.
Mr. Tierney. Who were those officers that accompanied him?
Mr. Zalkind. I think it was John Doyle and an elderly--I'm
sorry; what was the exhibit, please?
Mr. Tierney. The affidavit is 41, and the other is 22; the
inconsistencies between the two documents.
Mr. Zalkind. I knew about the visit, and I think it took
place--before the indictment or after the indictment? I think
it was--I forget when the indictment was in the case, but I
knew about this.
Mr. Tierney. And that raised the prospect of the
improprieties or the difficulties there.
Mr. Zalkind. You mean as far----
Mr. Tierney. As far as going down and talking down to Mr.
Barboza.
Mr. Zalkind. Oh, no, no. All this information came to me
long after I was out of the District Attorney's office, but I
knew that they had gone down there.
I asked them why they were going. The police gave me some
reason at the time; it sounded OK. I said, go ahead; take him.
That was about it.
Mr. Tierney. Thank you.
Mr. LaTourette. Mr. Lynch.
Mr. Lynch. Thank you, Mr. Zalkind.
I don't want to beat a dead horse on this electronic-
surveillance information that was available, but the next
exhibit is a prosecution memorandum. It's not in the book of
exhibits, but was provided to you separately. It was prepared
by Federal prosecutors in anticipation of the prosecution of
Raymond Patriarca.
Mr. Zalkind. Am I allowed to talk about this?
Mr. LaTourette. We're going to go into executive session
and talk about it then.
Mr. Lynch. I guess we'll reserve that point for executive
session.
I apologize; I'll hold my question for executive session.
Thank you.
Mr. LaTourette. Mr. Delahunt.
Mr. Delahunt. The bottom line, Mr. Zalkind, is that there
was a plethora of evidence that would have implicated Jimmy
Flemmi in the Deegan murder, given what we've been talking
about this morning.
Mr. Zalkind. That's correct.
Mr. Delahunt. Particularly the reports from FBI agents; but
additionally from Chelsea, the report from the State Police
that I referred to that you were unaware of, as well as that
report from the Intelligence Division of the Boston Police
Department.
But nobody, most specifically, ever asked the tough
questions of Joe Barboza.
Mr. Zalkind. That's not true. I asked the tough questions.
Mr. Delahunt. But you did not have available to you----
Mr. Zalkind. Oh, that's correct; that's correct.
Mr. Delahunt [continuing]. The information that was
available that would have allowed his credibility to be truly
assessed and evaluated?
Mr. Zalkind. That's correct.
What I meant was, Congressman, I said to him, now, look,
Joe, I want you to tell me everyone who was there. This is
after he told the story to the grand jury, and I was preparing
him.
I said, you've got to tell me why this person was there,
why that person. Why did you put Louie Greco in the alleyway?
Mr. Delahunt. We don't even know, Mr. Zalkind, if Mr.
Barboza was aware of the existence of these various reports, do
we?
Mr. Zalkind. Of course not. I wouldn't know that, no.
Mr. Delahunt. And so the reality is that specifically the
FBI, but also other law-enforcement agencies, had within their
possession documents that exculpated Mr. Salvati and Mr.
Limone, simply because they were referenced in those documents,
and those documents related to interviews and statements made
by Mr. Barboza to a variety of informants.
Mr. Zalkind. That's correct.
Mr. Delahunt. But--and I'm talking at the investigative
level--we have no information whatsoever from any investigator
that they pursued the information to determine whether the
information that they had was in fact accurate.
Mr. Zalkind. You mean prior to the indictment?
Mr. Delahunt. Prior to the indictment, or during the
indictment, or during the trial, or subsequent to the trial. I
think later on we might be hearing from a former member of the
parole board.
All of this information was in the custody of the Federal
Bureau of Investigation; and yet it was never brought to your
attention, it was never brought to the attention of the parole
board when it was reviewing the petitions for parole at any
point in time. No point in time.
Going back, like I said earlier, in time, it's clear that
the interest of the FBI in developing Jim Flemmi as an
informant overrode all other concerns.
Mr. Zalkind. It certainly appears so, Mr. Delahunt.
Mr. Delahunt. And then we pause for a moment, and think of
what it meant in terms of public safety.
There are references in here to the inclination of Vincent
James Flemmi to continue to commit murders, and he was given a
free pass. That is the bottom line; he was given an opportunity
to commit more murders.
Mr. Zalkind. Well, may I suggest to you that previously I
think I understood you to say that Steve Flemmi was also
cooperating with the FBI.
Mr. Delahunt. Well, we just learned, I think within the
past 2 weeks--and Mr. Wilson, the chief counsel, can elaborate
on that--that it was Steve Flemmi who intervened and encouraged
and influenced Barboza to cooperate.
Mr. Zalkind. But here's the thing that gets me as I sit
here now.
Steve Flemmi was one of the men that blew off John
Fitzgerald's leg 6 months before this trial; and if he was a
government informant, then the FBI knew the perpetrators of
John Fitzgerald's attempted assassination.
Really, for my own mind, do we know when he became an
informer? Or am I stepping out of line? Because it really,
really----
Mr. Delahunt. I would defer that to Mr. Wilson.
You referenced earlier in your remarks the relationship
between the FBI and other law-enforcement agencies. Are you
aware that when Barboza entered into the Witness Protection
Program he was relocated to California?
Mr. Zalkind. No. I purposely did not want to know that.
Mr. Delahunt. I don't know if you're aware that
subsequently he was relocated to California, and he committed a
murder in California.
Mr. Zalkind. I know that.
Mr. Delahunt. Are you aware of the fact that neither the
District Attorney's office there, the State Police there, nor
the local police were ever informed that Mr. Barboza, who is
described in many of these reports as one of the most dangerous
psychopaths in the history of the Commonwealth of
Massachusetts, was being relocated there?
Mr. Zalkind. I have since learned that fact.
Mr. Delahunt. I think it was Mr. Frank earlier who
referenced what is going on here in terms of clergy and sexual
abuse.
Can you for a moment imagine allowing someone with
Barboza's record, knowing him as well as you do, to go to
another part of the country without informing either state or
local law enforcement?
Mr. Zalkind. Well, I think today, Mr. Delahunt, that
couldn't happen; because under the terms of probation, the
probation department of the area where he goes to becomes
knowledgeable of the person being there, even if his identity
is changed. I think; I'm not sure.
Mr. Delahunt. I have to respectfully disagree with you, Mr.
Zalkind. I'm not sure that is in fact the case.
Mr. Zalkind. Then that's what you boys should be doing, is
making sure that it does happen.
Mr. Delahunt. I think that it's important to stress that we
have a situation where evidence, as you say, is concealed
resulting in an injustice; but it is also concealed resulting
in an erosion of public safety elsewhere.
It is as if the premise and the predicate of all of this
behavior is concealment; don't disclose.
Today we're asking you, for example, to review a memorandum
that you haven't seen, to review it, digest it, assimilate it,
analyze it, because the Department of Justice still abides by
that principle of concealment.
And let me say this, just in terms of the spirit of
bipartisanship. This has nothing to do with who sits in the
White House. This has been a culture that has been created over
a period of decades by both Republican and Democratic
administrations, and it's time that we addressed it.
Mr. LaTourette. Thank you very much, Mr. Delahunt.
As I indicated a little earlier, we're going to now, at the
request of the U.S. Department of Justice, go into a closed
session. Before we do that, I want to do two quick pieces of
business.
Without objection, I want to insert into the record a
letter dated May 10, 2002 to the chairman of our committee, Dan
Burton of Indiana, from Assistant Attorney General Daniel J.
Bryant, which describes the U.S. Justice Department's position
on what we're going to do.
And prior to going into executive session, I want to yield
to chief counsel on our side, Mr. Wilson, to ask a few
questions about the prosecution memoranda; and then we will ask
everyone to clear the room, shut off your cameras, and we'll
try and alert you when you can come back in.
Mr. Wilson.
Mr. Wilson. Mr. Zalkind, I'll be fairly brief. A few
housekeeping matters.
Earlier on, you mentioned there was a memo prepared by, I
believe, Detective Doyle for your use before the grand jury; is
that correct?
Mr. Zalkind. Yes.
Mr. Wilson. Do you still have a copy of that memo?
Mr. Zalkind. No, I don't.
Mr. Wilson. What happened to that after you----
Mr. Zalkind. It was in the file with everything else when I
left the office.
Mr. Wilson. Did you leave all of the material that was
pertinent to the Deegan case at the District Attorney's office?
Mr. Zalkind. Yes, I did.
Mr. Wilson. One other thing. We, through our investigation
over the last year, have learned that there might be some
significance to some testimony by Joseph Barboza before the
grand jury, and we've been able to obtain minutes from
Barboza's appearance before the grand jury.
I have a copy here, which it may or may not be necessary to
show you; but over the course of the last year, through our
investigation, we've heard that there may be some significance
to something he said, and we have not been able to find that in
the grand-jury minutes, but there's a page missing from our
grand-jury minutes.
Did you by any chance keep copies of the grand-jury
minutes?
Mr. Zalkind. No.
Mr. Wilson. Were you ever aware at any point that there was
missing material from the grand-jury minutes?
Mr. Zalkind. No.
The only thing I was thinking about is that during the
course of the grand-jury sessions he had mentioned some place
where he had gone to get hot goods, Arthur's Farm, and amongst
the people that he met there, he would mention some people.
There was one name he mentioned, it was very embarrassing,
and I may have said to the stenographer something like, strike
that name. It might have been some sports figure or something
like that, that had nothing to do with it. I never, never would
allow any page to be stricken or anything like that.
Mr. Wilson. But if that took place, that would be one name?
Mr. Zalkind. Oh, yes.
Mr. Wilson. What we have is an absence of an entire page.
Mr. Zalkind. I know nothing of that.
Mr. Wilson. Just one followup.
We have talked about the Barboza recantation, the
Stathopoulos affidavit, various other information; and you
pointed out at the time that those events occurred they did not
have a particular significance to you.
In light of all of the evidence that you've now been
presented, do you think that those materials should have had
relevance to the people that did have access to material about
what happened in the Deegan murder?
Mr. Zalkind. Yes.
Stathopoulos, I did not consider him a credible witness. I
certainly know that when he said in some statement or affidavit
that I wore a disguise to meet him in a hotel, I mean, it was
just ludicrous. I didn't give much attention to it at all.
I saw one affidavit that he said that Joe Barboza said that
Jimmy Flemmi was not going to be involved, and that's why he
went to see Joe, so that Joe could assure him that Jimmy wasn't
going to hurt him.
I think probably, if I were still in the office, coupled
with the fact that I prosecuted Flemmi in 1970, maybe something
more should have gone on. I don't know what good would have
happened; I don't know.
Mr. Wilson. I'm directing that more to other people who,
when that information came out, one would think that they
would, if they were operating in good faith, have indicated to
you that they have information that perhaps bolsters Barboza's
recantation or bolsters the Stathopoulos affidavit or other
material that subsequently we've been able to obtain.
Mr. Zalkind. I can't answer that question.
Mr. Wilson. Before we go to executive session, I have here
now a memorandum that you reviewed yesterday; is that correct?
Mr. Zalkind. Yes.
Mr. Wilson. You were provided a copy of a prosecution----
Mr. Zalkind. Yes. It was provided. I saw and read it. I
have no copy of it.
Mr. Wilson. We'll provide that to you in a moment, and ask
you questions specifically about that memo when we go into
executive session.
But just as a general comment from you, we wanted to be
able to question you about this memorandum in an open session,
because we thought that would be fair for you. We appreciate
your coming forward and answering these questions.
Do you think as a matter of fundamental fairness to you we
should be asking you questions about the memorandum you
reviewed in secrecy?
Mr. Zalkind. Absolutely not.
But, without skirting the edges, that memorandum never
mentions my name in any way, shape or form. However, what it
does, I guess we can't talk about it; but it certainly
buttresses my statement that I never had any information about
Flemmi or anybody else being involved.
Mr. Wilson. Well, to be fair, you can talk about it if
you'd like to characterize what you saw, and I think it's
appropriate for you to provide----
Mr. Zalkind. Well, then, I will say it.
Absolutely; this memo that I saw had within it
conversations had between Raymond Patriarca, Joe Barboza, Ralph
Cassesso, Jimmy Flemmi.
And in there, they go down and they want to speak to
Raymond; and Raymond----
Mr. LaTourette. If I may, I think we're getting really
close to the edge, and I don't want to violate it.
I think the question to you is, do you think it's fair that
we talk to you, are forced to talk to you, in private, and a
general observation about it; but I think the specifics of it
probably would violate the agreement we have with the
Department of Justice.
Mr. Zalkind. Whatever you say. But it is extremely
exculpatory. It's probably the most exculpatory bit of evidence
that you've shown me.
Mr. Wilson. Now, one reason we did want to question you
about this particular memorandum is because it's not a
memorandum that was prepared at the time of the Deegan murder.
Many of the materials you've seen today were prepared in
1965. There are transcripts of an illegal bug in Patriarca's
headquarters in Providence, there are Airtels going from Boston
to Director Hoover; but they were all prepared in 1965.
The particular prosecution memo we're going to talk about
in executive session was prepared in 1967, at the time people
were preparing to prosecute a number of individuals for the
Deegan case.
Mr. Zalkind. Correct.
Mr. Wilson. Is it, in your mind, significant that a
document that, to use your words, contains exculpatory
information was prepared at the time of prosecution of the
individuals for the Deegan murder?
Mr. Zalkind. Of course it's significant. It should have
been given to me, along with other things.
Never mind given to me; I should have been told about it.
It would have influenced our decision as to whether to go
forward with this case, and we wouldn't have gone forward with
this case.
Mr. Wilson. The last question is, is it significant, as you
sit here today, that government prosecutors in Boston were
sending to senior government officials at Justice in
Washington, DC, some of the information that you're now aware
of that pertains to the Deegan murder?
Mr. Zalkind. It's significant, I suppose, in that maybe
they had a guilty conscience and wanted to unload, or make sure
there was a record of what they knew. I don't know, other than
that.
Mr. LaTourette. Thank you very much.
Ladies and gentlemen, at this time, pursuant to our
agreement with the Department of Justice, I would ask everybody
to clear the room, turn off all equipment; and also pursuant to
our agreement with the Department of Justice, this portion of
the transcript will not be subject to public review.
[Whereupon, proceedings were continued in executive
session.]
Mr. LaTourette. We're back in public session at this moment
in time.
Mr. Zalkind, I want to express, if I haven't already, on
behalf of myself and other members of the committee, our
appreciation for your willingness to be here today and your
willingness to answer all the questions we had.
Before we move to our next witnesses today, I just would
make an invitation to you. If there's any closing observation
you would like to make, we would be more than happy to hear it.
Mr. Zalkind. Well, I think that in the last couple of weeks
we've read about a decision made by our Supreme Judicial Court
wherein they say that most people do not have to volunteer to
come forward to disclose a dangerous situation. That was the
Worcester fire.
The Supreme Court said that, however, when you are the
instigator of that potentially dangerous situation, then you
have a duty to come forward to law enforcement, so that it
won't become more dangerous. It's pretty simple words.
I think that, if this committee does anything, it could in
some way perhaps make law that would force either prosecutors
or law-enforcement people to disclose knowledge that they have
that, if not given, could adversely affect the lives and
freedom of other people.
In this case here, this information was exculpatory. I know
they were trying to hide an informer.
But there should have been an obligation on their part to
come forward, even if there were not a motion made, that would
have stopped this trial, or at least have clarified it; and
they didn't do so.
Today, under our Federal system, we've got some Rule 16s,
where a defendant doesn't even have to come forward and ask for
exculpatory evidence. There is a Rule 16 that makes it
mandatory.
Well, I think we've got to go one step further.
I think that the FBI, or whatever law-enforcement agency,
when they have this situation and there's good cause to believe
that by withholding this information they are going to put into
force a step that could cause men like this to spend all these
years in jail, that's a horrible thing.
I don't have to live with this. You used to let this stuff
roll off; but I realize now that there was a terrible injustice
here.
I can't apologize to these men for the whole FBI, but I
certainly apologize for myself. I don't know what I could have
done, but maybe I could have worked harder at pushing this
thing; I don't know.
I think, if we can come out of this hearing with some
legislation that will prevent this, then we've done the job
that all of us in this country want to have done.
Mr. LaTourette. Mr. Zalkind, thank you for your testimony,
and you go with our thanks. Thank you very much.
The next witness that the committee will hear from now this
afternoon will be James McDonough.
Mr. McDonough, before taking your seat, the practice of the
committee is that all witnesses be sworn. I would ask you to
raise your right hand.
[Witness sworn.]
Mr. LaTourette. Thank you, sir. Please be seated.
Mr. McDonough, we have a brief understanding of what it is
you did in the Suffolk County prosecutor's office; but could
you summarize what it is you did do in 1967 in the Suffolk
County prosecutor's office?
STATEMENT OF JAMES M. McDONOUGH, ESQ.
Mr. McDonough. At that time, I was not a full Assistant
District Attorney.
At that time, there were a number of Assistant Attorneys
General in various offices throughout the state who were
regulated by the state legislature.
There were in the Suffolk County DA's office, and most
offices, people like myself who did legal research, wrote
briefs, wrote memorandums of law, and in major cases assisted
the District Attorney in charge of the case with the production
of the witnesses and logistical matters and so forth.
Mr. LaTourette. Were you assigned to such a major case as
the Deegan murder?
Mr. McDonough. Yes. Mr. Zalkind was given the Deegan case.
He asked me to assist him in the trial.
Mr. LaTourette. Can you describe for us as best you can
recall what it is that you did in the Deegan case?
Mr. McDonough. My memory is, I think, a little bit
different from Mr. Zalkind's in some respects.
I was present throughout that trial, and I was in the
second seat. Not being an Assistant, I could not make any
objections to testimony; I could not argue to the court. I
didn't have any vocal dealings, I didn't have any direct
dealings, with opposing counsel, which I would say were about
five or six.
But I was responsible for some of the technical aspects of
advising Mr. Zalkind on what testimony should be brought
forward.
And I'd like to save some time a little bit here; and I
guess the reason I'm here is the so-called Chelsea police
report.
Mr. LaTourette. Right.
Mr. McDonough. I'm amazed at some of the comments that have
been made about this situation; because as far as I'm
concerned, the matter of the Chelsea police report is here
because I remembered having it, because of the testimony
regarding the finding of the bullets in the alley.
But this matter has been before the Supreme Court of
Massachusetts, and was heard by Judge Banks.
The Supreme Court of the state has ruled, first of all,
that the Chelsea police report was not exculpatory; that it
could be inferred that all of the information in it was known
to defense counsel from their cross-examination, and that the
prosecutor had no duty to disclose that at the time and under
the circumstances revealed.
And unless we're going to criticize the Supreme Judicial
Court of the Commonwealth for their ruling on the matter, I
don't see that there's much of an issue there.
Mr. LaTourette. Let me just ask you a couple questions.
You're right; it is your 1993 affidavit, the Chelsea police
report, and the other two police reports that have our
attention.
But just to finish what it is you did during the Deegan
trial, did you interview witnesses?
Mr. McDonough. No. I was not allowed to, and I never did.
Mr. LaTourette. Did you respond to motions filed by defense
counsel?
Mr. McDonough. No. I could not speak in open court at any
time at that time.
Mr. LaTourette. I'm talking about in terms of research and
writing. If a defense lawyer filed a motion for some purpose
and a written response was required by the District Attorney,
would you help in the drafting?
Mr. McDonough. I don't recall specific instances, but I
would have done that.
Mr. LaTourette. That would be the type of thing that you
would do?
Mr. McDonough. Yes.
Mr. LaTourette. You said you gave Mr. Zalkind advice about
witnesses.
Do you recall, if not the specifics--if you recall the
specifics, great--but do you recall having active conversation
with Mr. Zalkind relative to, when this guy's on the stand, we
should ask him this?
Mr. McDonough. Well, when you're sitting in that second
seat, you have an idea what the prosecutor wants to ask; but
sometimes they forget, so that you can remind them, maybe, to
go to that subject.
Mr. LaTourette. Did you, like Mr. Zalkind, meet Mr. Barboza
for the first time at the grand jury?
Were you present at the grand jury?
Mr. McDonough. I was not present at the grand jury. I was
not involved in the case at that time.
Mr. LaTourette. Did you ever meet Mr. Barboza?
Mr. McDonough. I saw him, but I never really met him. I
never had any personal face-to-face conversation with him. I
was in rooms on two or three occasions that he was in the room
during court recesses. That's about it.
Mr. LaTourette. Exhibit No. 49 in the materials is an
affidavit executed in 1993 indicating that the Chelsea police
report was in the prosecutor's file during the trial.
[Exhibit 49 follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. McDonough. That was my memory.
That was my memory; and the reason I remember it is not
because of the statement that Mr. Zalkind referred to, but it
was an evidentiary problem contained therein of number of
bullets.
The bullets were picked up by various police officers. As
you know, it's important to establish a chain of custody,
especially in this case, where there's a question of how many
guns were used.
That had to be resolved, and that's why I remember the
report. I guess my memory was right. I don't know; I'm not
familiar with Mr. McKenna's affidavit, but the report was found
in files of the District Attorney's office.
Mr. LaTourette. I heard what you said about, I'm sorry, I
don't remember the name of the court, but I guess it's the
Supreme Court of the State of Massachusetts. I understood that
you said there's been a discussion about the Chelsea police
report, and it's been found by the court not to be exculpatory.
What it does contain, whether exculpatory or not, if you
look at it, there are people in the report who were not
prosecuted, and then there are some who are not in the report
who were prosecuted.
Mr. McDonough. That's an evidentiary problem. These hearsay
statements, this is the trouble with disclosing information. I
have raw files that I had.
Mr. LaTourette. Here's the difficulty I have. You have the
report from the Chelsea Police Department, which some people
have said never turned up during the course of the prosecution.
You say it was in the prosecution file. The Supreme Court or
whatever it is says that it's not exculpatory.
If the prosecuting agencies are in possession of the report
in 1967, when this case is going on, don't you think it's
unusual that somebody doesn't go to Barboza and say, what's the
deal? We have this Chelsea Police Department report prepared
right after Teddy Deegan is murdered. Some people listed in it
we're not prosecuting, and there are some people we are
prosecuting who aren't listed in it.
Mr. McDonough. Barboza, in this trial, was cross-examined
extensively about Flemmi and the information in this report.
That's why the Supreme Court of Massachusetts inferred they had
this report from a cross-examination, I think by Mr. Chisholm
mostly, and Mr. O'Donnell.
That was the whole theory of the case; and then it was
argued in the same case that Barboza was guilty, and he should
have put him in. That was all put before the jury.
Mr. LaTourette. Have you been following the hearings of
this committee at all?
Mr. McDonough. Somewhat, in the paper; but this is the
first time I've seen these so-called 23 pages, and I don't know
where they come from, or what kind of statements they are. Is
there anything in the summary that says they did it?
Mr. LaTourette. I think Mr. Barboza says he did it,
eventually.
Mr. McDonough. I mean, in these FBI reports, is there any
other suggestion that somebody actually said that they did it?
In other words, these statements are also hearsay
statements, which, even if they were available, probably
couldn't have been used without bringing in the witnesses.
Mr. Wilson. That's the point.
Mr. McDonough. There are serious evidentiary problems with
some of these. I haven't read them, so I don't know.
Mr. LaTourette. Before I leave you to my colleagues, let me
ask you about the other two exhibits of interest to us, 11 and
13. These are reports from the Boston Police Department and the
Massachusetts State Police Department. Exhibits 11 and 13.
[Exhibits 11 and 13 follow:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. McDonough. I have 13. [Pause].
OK; I have 11 in front of me now.
Mr. LaTourette. And 11 is the police report from Boston; is
that right?
Mr. McDonough. Yes.
Mr. LaTourette. Boston Police Department; 13 is the
Massachusetts State Police Department.
My question is not that complicated. I'm just wondering, as
with the Chelsea Police Department report, do you have a
recollection whether or not these two documents were within the
prosecutor's file during the prosecution of the Deegan murder
case?
Mr. McDonough. I have no memory of seeing exhibit 11 in the
files of the District Attorney at any time.
Mr. LaTourette. Could you look at exhibit 13 for me? And my
question will be the same.
Mr. McDonough. I think I know the background of this
report.
I really don't have a specific memory of this; but I notice
in Paragraph 9 it just paraphrases the language in Evans'
report.
At this time, the Chelsea police did not have the capacity
to investigate homicides. In other words, there's a 3-year
period between the date of the homicide and Barboza's becoming
a witness.
At the time of the murder, the Chelsea police used to call
in State Police to investigate homicide cases. Then, when this
case went nowhere, right after the event, then Suffolk County
got involved in it, and the Boston Police.
Mr. LaTourette. Who was responsible for assembling the
prosecutor's file in this case? Who determines what goes into
the prosecutor's file and what doesn't?
Mr. McDonough. Well, the prosecutor mostly, and whatever
materials come in.
Mr. LaTourette. This document was prepared 2 days after the
murder, if that's a correct statement.
The Chelsea Police Department didn't do their own homicide
investigations, so they called on the State Police. I
understand that; but why, then, isn't the State Police report
located within the prosecutor's file as you guys get ready to
prosecute the Deegan murder case?
Mr. McDonough. I won't say that it isn't; I just don't
recall. I know that Lieutenant Richard Gass was a State
policeman at that time.
Mr. LaTourette. Mr. Tierney.
Mr. Tierney. Just very briefly. Part of what troubles me is
this.
If counsel had received the evidence contained in the
Chelsea Police Department report done by Lieutenant Evans and
that had led to an investigation as to the whereabouts of the
men named in the report but not named in the indictment, so
beginning with whether the Supreme Judicial Court thought it
was exculpatory, getting back to what the lead prosecutor in
this case would have done if he had this information, if you
were the person doing the research in this case for Mr.
Zalkind, and you recall having this report that was authored by
Lieutenant Evans of the Chelsea Police Department about the
Deegan murder, how is it that document did not get before Mr.
Zalkind and brought to his attention so that he could in fact
question in more depth about those individuals?
Mr. McDonough. I can't speak for his memory of what his
decisionmaking process was at the time, but the evidence report
wasn't a part of the District Attorney's office. I think they
found it at the time of the Salvati motion.
Mr. Tierney. Was it your responsibility to make sure that
documents like that were in fact in Mr. Zalkind's file? Was
that your role in the office at that time?
Mr. McDonough. To some extent, yes.
Mr. Tierney. Do you remember putting this document in that
file?
Mr. McDonough. No, not this one.
Mr. Tierney. So you're assuming it was there?
Mr. McDonough. I assume it possibly was. I don't know.
I really don't know. I have no memory of this one being
there. The Chelsea police report I knew was there.
Mr. Tierney. That's the report I'm talking about.
I'm talking about the report that was written by Lieutenant
Thomas Evans of the Chelsea Police Department. In it he said he
had information from Captain Renfrew that an informant of his
had contacted him and told him that Roy French, Vincent Flemmi,
Francis Imbuglia, Romeo Martin, Nicky Femia and a man called
Freddi left the Ebb Tide restaurant at 9 at the evening of the
Deegan murder and returned around 11. According to the report,
Martin was alleged to have said to French, ``We nailed him.''
Mr. Flemmi appears in this document; and again, there's no
mention of Joseph Salvati.
Mr. Zalkind testified that if he had seen the information
in that report, he would have, perhaps prior to the return of
the indictments, but certainly during the trial, caused a more
concentrated investigation into the whereabouts of the men
mentioned in the report who were not named in the indictment.
So with that report, sir--do you recall that report? You've
said in an affidavit that you did; and do you recall it because
you thought it important to the case to put it in Mr. Zalkind's
preparatory file?
Mr. McDonough. It was in the file somewhere; I know that.
It's in the custody of the DA's office now.
But that evidence, if you can call it evidence, would not
be conclusive anyway.
Mr. Tierney. No, no. I don't want to keep going back to it.
I want to give you that point for what it's worth right now.
You're the person who, I understand, prepared Mr. Zalkind's
trial file?
Mr. McDonough. To some extent, yes.
Mr. Tierney. To a good extent?
Mr. McDonough. Yes, that's fair.
Mr. Tierney. It was your job?
Mr. McDonough. Yes.
Mr. Tierney. You recalled this document, and you thought it
was important enough in that trial to put it in Mr. Zalkind's
file for preparation purposes?
Mr. McDonough. It was among the documents we had, yes.
Mr. Tierney. Was it among the documents that you culled out
from the others included in the trial preparation file?
Mr. McDonough. I don't know what you mean by a trial
preparation file.
Mr. Tierney. In the course of preparing the file for Mr.
Zalkind to use at trial, you didn't take some information and
say, that's not something I want to use at trial, and take
something else and say, that's something I want to put in his
trial file; you just put everything in one file?
Mr. McDonough. It didn't work the way you say.
Mr. Tierney. How did it work?
Mr. McDonough. Well, we had reports, but then when the
witnesses came, we dealt with it as we went along.
Mr. Tierney. How did you deal with this when the witnesses
came up? How did you deal with this one?
Mr. McDonough. In the first place, I don't think it's
accurate. The information in it that the phone call came to
French, French didn't need any phone calls; French was there.
Why would anybody tell him that we nailed him? I wouldn't
regard that as reliable information anyway.
Mr. Tierney. Back at that time, do you recall whether or
not you thought this was a significant document that should be
brought to Mr. Zalkind's attention?
Mr. McDonough. I don't remember bringing that specific
portion of it to his attention.
Mr. Tierney. Is it significant to you now that Mr. Zalkind
thinks it was significant, in that if he had had it, he would
have done a more thorough inquisition of the gentlemen who were
not named in the indictment but were named in the report?
Mr. McDonough. I don't know what he could have done with
it; because the defense lawyers cross-examined Barboza
extensively with regard to this very matter, with regard to the
very same names.
This was all brought out in their cross-examination, and as
part of their argument.
Mr. Tierney. But you don't recall specifically bringing it
to Mr. Zalkind's attention, or indicating you thought it was in
any way significant?
Mr. McDonough. No. My concern, as I said, was informants,
and that's how I remember the documents.
Mr. Tierney. Thank you.
Mr. LaTourette. Mr. Lynch.
Mr. Lynch. No questions at this time.
Mr. LaTourette. Mr. Delahunt.
Mr. Delahunt. Mr. McDonough, you referred to cross-
examination by the defense counsel, and obviously you're
indicating that they did have this Chelsea police report at
their disposal.
Mr. McDonough. I don't know that. They had the information,
no question about it; and the Supreme Court has inferred that
they did have the same information.
Mr. Delahunt. We don't know whether they had this
particular report, but you claim at least that they had this
information?
Mr. McDonough. Oh, definitely.
Mr. Delahunt. But what they didn't have was access to the
informants?
Mr. McDonough. But they had access to Lieutenant Evans, and
they could have asked him for his report on the stand.
Mr. Delahunt. But let me ask you this. I think we can agree
that the role of the prosecutor ought to be to do justice.
Mr. McDonough. No question.
Mr. Delahunt. Correct?
Mr. McDonough. No question.
Mr. Delahunt. Do you see any sort of responsibility on the
part of government, whether it be state or the Federal
Government, to vet a particular report, whether it be an FBI
report or a State Police report or a Boston report or a Chelsea
report?
Mr. McDonough. In the abstract, I'd say they do.
Mr. Delahunt. Well, in reality; because clearly I hope and
believe that it's the responsibility of the government to
investigate and to be satisfied that they're indicting those
that are truly responsible.
If there should be information, I won't even call it
exculpatory, but that tends away from particular topics and a
particular subject, would you agree it ought to be pursued by
the government; not by defense counsel on cross-examination,
but by the District Attorney's office and the investigative
agencies?
Mr. McDonough. The answer, I think, is yes.
Mr. Delahunt. That's the point that my colleague is making.
You sat here this morning as we've been talking again about
the problems that are endemic, some of us believe, in terms of
the Department of Justice as well as the FBI, in terms of
disclosure.
There's a case going on across the street that we're all
familiar with that most likely would not have occurred but for,
you know, a Federal District Court Justice by the name of Mark
Wolf threatening the Department of Justice with contempt, so
that the names of particular informants were revealed.
So just simply to suggest that it's the burden of defense
counsel on cross-examination to come up with this information--
you know, we do have an adversarial system; I understand we
have an adversarial system. But it's not a game; it's a search
for the truth. And there are unfortunately too many cases where
the government does not disclose the necessary information to
secure the truth. That's what I think we've discovered during
the course of these hearings.
Again, I don't disagree; the Supreme Judicial Court could
rule that this wasn't necessarily exculpatory information.
But where I do disagree is at the responsibility of the
government to pursue to whatever ends were necessary to make a
determination that they were in fact proceeding against the
right people.
In any event, you have no memory of a Boston police report.
Have you had a chance, Mr. McDonough, to review the exhibit
books?
Mr. McDonough. Just this morning.
Mr. Delahunt. Just this morning?
Mr. McDonough. Yes.
Mr. Delahunt. You had no information that you can remember
from the FBI, the reports from the FBI that we've been
discussing here this morning?
Mr. McDonough. There were no reports from the FBI.
I'll remind you that in those days, the FBI would never
give you a 302 report, or whatever you call it; you had to get
permission for an agent to testify from the Attorney General of
the United States. They never gave us any information.
With regard to their presence, I think I met Rico once in
the street, or was introduced to him. I never had a
conversation with him. They were not present during the trial
of this case.
During the trial of this case, actually, my memory was
Barboza was not in Federal custody. Barboza was kept in a safe
house which was run by the Suffolk County District Attorney's
office, and he was also kept at the Barnstable County House of
Correction.
Mr. Delahunt. Are you aware that in the Deegan case,
Special Agent Condon did testify?
Mr. McDonough. Yes, I am.
Mr. Delahunt. But Special Agent Rico did not testify?
Mr. McDonough. That's right; he did not.
Mr. Delahunt. In your conversations with either of those
two gentlemen, or with anyone else, did you have conversation
that would have raised some doubts in your mind as to whether
there was other information that you did not have available
which would have compelled you to produce that information to
counsel for the defense?
Mr. McDonough. No.
My memory is that the only reason Dennis Condon testified
was that there was some suggestion that Barboza and
Stathopoulos had been together with him, and they had compared
notes as to the incidents in the alley.
Mr. Delahunt. So that was the rationale----
Mr. McDonough. That's all he testified to.
Mr. Delahunt. Are you practicing law, Mr. McDonough?
Mr. McDonough. I'm on the other side now. I'm semi-retired;
I'm writing appellate briefs for the Committee on Public
Counsel.
Mr. Delahunt. Thank you.
Mr. LaTourette. Mr. Wilson.
Mr. Wilson. Mr. McDonough, do you have any recollection of
who participated in determining whether the death penalty would
be sought in the Deegan case?
Mr. McDonough. No.
Mr. Wilson. Do you have any recollection----
Mr. McDonough. That was not an option, I don't think, at
that time. The penalty for first-degree murder was the death
penalty unless the jury recommended clemency.
Mr. Wilson. Well, we'll leave that.
Do you recall whether Jimmy Flemmi was ever put before a
grand jury?
Mr. McDonough. Not to my knowledge.
Mr. Wilson. My last question is, do you recall whether
anybody ever went back to Lieutenant Evans and asked him where
he got his information for the report that was the Chelsea
police report?
Mr. McDonough. Well, I was not involved in the trial; but
it was Judge Banks who offered to produce the informant for the
consideration of defense lawyers, and they declined the
opportunity, I believe.
But that was in connection with the Salvati motion for a
new trial; and at that time I suspect that Mr. McKenna talked
to Lieutenant Evans of the Chelsea police.
Mr. Wilson. Do you know that, or is that speculation?
Mr. McDonough. I think I can say I know that. I wasn't
present at any of those meetings, but----
Mr. Wilson. So McKenna spoke to Evans?
Mr. McDonough. I think he spoke with Barslowski and
Lieutenant Evans.
Mr. Wilson. And what was McKenna's job at that time?
Mr. McDonough. McKenna handled the motion for a new trial
in the Salvati case.
Mr. Wilson. Now, you mentioned that there was an informant,
and Judge Banks offered to make that informant available.
Mr. McDonough. That came from the so-called Evans report.
Mr. Wilson. How do you know that?
Mr. McDonough. From reading the Salvati case and reading
the report. Evans said Renfrew had an informant, or tipster as
the Supreme Court called it; but I think it's actually a woman.
Mr. Wilson. How do you know that person was the only
informant that Evans would have----
Mr. McDonough. I don't know that; but Evans said somebody
told Renfrew, and that's in the report.
Mr. Wilson. Right. But do you have any knowledge that there
was only one informant that gave information in the Chelsea
police report?
Mr. McDonough. No, I don't. Just what the report says.
Mr. Wilson. So all you know is what's in the report and
what's in the Supreme Judicial Court's opinion; is that
correct?
Mr. McDonough. Correct.
Mr. Wilson. Do you have any other knowledge apart from
those two documents that would shed light on any of the
informant information?
Mr. McDonough. No.
Mr. LaTourette. Mr. McDonough, we thank you very much for
coming here today. We thank you for answering all the questions
we put to you, and you go with our thanks.
Mr. McDonough. Thank you very much.
Mr. LaTourette. The last witness to appear before the
committee today is Wendie Gershengorn.
Welcome; we appreciate your being here today. It is the
practice of the committee that all witnesses be sworn, and so I
would like you to raise your right hand and stand.
[Witness sworn.]
Mr. LaTourette. I think, by agreement of the Members of the
minority party, we're going to let Mr. Wilson, lead counsel,
begin with the questioning; and if anybody else has questions,
we'll go from there.
Mr. Wilson.
Mr. Wilson. Good afternoon.
STATEMENT OF WENDIE GERSHENGORN, JUDGE, MIDDLESEX SUPERIOR
COURT
Ms. Gershengorn. Good afternoon.
Mr. Wilson. Judge Gershengorn, how long have you served on
the Massachusetts Parole Board?
Ms. Gershengorn. It was approximately 3 or 4 years. I can't
remember the dates.
Mr. Wilson. Do you have a general recollection of how many
commutation petitions you reviewed?
Ms. Gershengorn. No.
Mr. Wilson. Is it safe to assume it is a fairly large
number?
Ms. Gershengorn. It was a large number.
Mr. Wilson. We wanted to focus on one document. It's
exhibit 46; and we've supplied this to you in advance of the
hearing, so hopefully you've had an opportunity to review
exhibit 46. Do you have that in front of you now?
[Exhibit 46 follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Gershengorn. I do.
I'm sorry; but I was told by Mr. Mutton that it was
customary for me to be permitted to just make a short
statement, and I did want to just do that.
Mr. LaTourette. You know what? That's my job, and I
apologize for that. It absolutely is your right and opportunity
to make a short statement. We would welcome you to do that.
Ms. Gershengorn. I first of all wanted to thank you all for
my being here in the way that I am here, because Mr. Wilson was
kind enough when he first contacted me to offer to speak to me
informally.
Since at that time I believe there was an active case
pending in the Superior Court involving these issues, and
indeed involving the very person that I understand you're going
to want to speak to me about today, I thought it was important,
and I thought that it was even required under the Code of
Judicial Conduct, for any comments that I made to be on the
record. So I appreciate your accommodating that request.
Those same rules as I read them prohibit me from making any
public comments about pending or impending public cases.
So again, I appreciate your accommodating that aspect by
being willing to summons me so that I can speak to you; and I
am delighted to share any information I have with you and
answer any of Mr. Wilson's questions.
Mr. LaTourette. I want to thank you very much for that,
Judge; and I apologize for not doing that to Mr. McDonough in
the back of the room. I didn't deny that opportunity, but I
didn't give the opportunity to Mr. McDonough.
The record of this hearing will be open for a period of 7
days; and if there's a statement that you would like to provide
to us, an opening set of remarks, Mr. McDonough, you're more
than welcome to do that, and we'll be more than happy to
receive that.
Mr. Wilson.
Mr. Wilson. Exhibit 46, which you have before you, is a
memorandum dated November 29, 1976, and it is to the Board of
Pardons, Special Attention Board Member Gershengorn, from
Joseph M. Williams, Jr., Supervisor, Warrant Investigation
Unit; and it's involving Joseph Salvati.
Who was Joe Williams, Judge Gershengorn?
Ms. Gershengorn. Mr. Williams was a parole officer. He was
the head of the investigation unit, warrant department; he was
a supervisor. He actually did all of the investigations.
Mr. Wilson. We've spoken with many people, and their
general consensus was that he took his job seriously. Would you
agree with that assessment?
Ms. Gershengorn. I would; I would.
Mr. Wilson. Do you know why Mr. Williams prepared this
particular report?
Ms. Gershengorn. I have no memory of this specific report;
so I can't say I know why he prepared the report, no.
Mr. Wilson. Do you recall asking him to provide a report?
Ms. Gershengorn. The report is dated November 29, 1976, and
Mr. Williams, in the report, says, ``As you advised on 11-17-
76.'' I don't know why I asked him; but I can tell you what my
practice was, if that is helpful to you.
Mr. Wilson. Pardon?
Ms. Gershengorn. I can tell you what my practice was; but I
have no recollection, no specific recollection.
Mr. Wilson. Just very briefly, was it your practice in
cases where you had questions to ask for a report to be
prepared for you?
Ms. Gershengorn. Yes.
Mr. Wilson. And do you recall that happening, although not
in this case?
Ms. Gershengorn. In general, my procedure was to ask staff
to get all the information they could about a petitioner, and
different persons were responsible for different areas of
questions.
Mr. Wilson. This document indicates that it was prepared at
your request.
Ms. Gershengorn. Correct.
Mr. Wilson. Is it fair to say that reports such as this
were not prepared for every single commutation request?
Ms. Gershengorn. Every commutation request came in as a
petition with reasons why that person believed they should get
a commutation; and obviously, depending on what reasons they
gave, that would direct the kind of investigation or questions
that you have.
If they say that they had worked for many years in a
hospital program with severely incapacitated kids, you'd ask a
staff member to get all of the records from the hospital that
involved the kind of work he was doing; everyone he knew.
Mr. Wilson. What I'm getting at is, Mr. Williams didn't
prepare a report like this for every single commutation
request; is that correct?
Ms. Gershengorn. No.
Mr. Wilson. He had to be asked to prepare a report; is that
correct?
Ms. Gershengorn. He had to be asked to prepare a report,
and the report would depend on the person.
Mr. Wilson. If we could turn to the second page of exhibit
46, there are four points made in the memorandum, and I'll read
the fourth in full for the record.
``The `word' from reputable law enforcement officers was
that subject was just thrown in by Barboza on the murder
because he hated subject, that Joseph Barboza was asked by
people, was this true, and that Barboza denied this''; and the
second word, ``word,'' in this section is in quotation marks.
Do you have any recollection as to whether you did anything
further after you received this memo and read this section?
Ms. Gershengorn. As I say, I have no memory of this
particular petition or the events specifically surrounding it;
but when you called me I told you that it might help
reconstruct what happened if I could have the whole request for
commutation from Mr. Salvati, or from counsel if he was
represented by counsel.
I would have written notes, I would have seen who came on
Mr. Salvati's behalf, and I would have had some opinion, given
a vote with an opinion, and that would perhaps refresh my
recollection.
But I have no specific memory of doing anything as a result
of this information.
Mr. Wilson. If it's acceptable to the chair, we're waiting
to receive some information that we thought we would have
received by this week; and when we obtain that information, if
it's agreeable to you, we will provide you information, and if
there's something that furthers our purposes you can perhaps
provide a written on-the-record response for inclusion in the
record.
Ms. Gershengorn. I would be happy to.
Mr. Wilson. Let me just go to where we're ultimately going
to.
This is a very short memorandum, and it seems to be
somewhat significant that the final point is that the ``word''
from reputable law-enforcement officers was that this
individual was not at the crime, that he was convicted, and
indeed it was a capital crime that he was convicted of
committing.
Obviously the question arises, how did this information
strike you at the time, and what did you do next? And I think
you've answered the question that you don't have any
recollection; is that correct?
Ms. Gershengorn. That's correct.
Mr. Wilson. Do you recall whether any other board members
at the time had any questions about Mr. Salvati's case? Moving
away from this document, were there other questions that were
shared amongst the Parole Board members?
Ms. Gershengorn. Every member would have voted on this
case.
To the extent that the member was one who was inclined to
give reasons for their decision, those reasons would have been
expressed on the vote sheet, which I assume you have because
it's part of the corrections commutation file.
So I'm afraid I don't understand the question.
Mr. Wilson. No; the question is, aside from this particular
document, do you recall any discussions amongst the other board
members or observations made by them that, for example, they
had concerns about this particular commutation application, and
specifically there was an argument that the person convicted
was innocent, and then there was an official report prepared by
the man who prepared reports for the board that indicated that
some reputable law-enforcement officers thought that he was
thrown into this murder because the person that testified
against him didn't like him, and he was not at the crime, which
seems to be a fairly salient piece of information in the
context of a commutation application for somebody who had been
through a capital-murder case?
Ms. Gershengorn. I think I wasn't understanding where you
were going with that, and what you were asking me.
To the extent that I've devoted my entire professional
career to the criminal-justice system, the justice system, as a
public defender and Federal defender, District Court judge and
Superior Court judge for 20 years, I am constantly concerned
that there may be innocent people incarcerated.
It has been with me all the time, as a public defender and
Federal defender, that I was perhaps not doing enough, that
somebody else perhaps could have done a better job.
As a Superior Court judge, it's a significant part of my
jurisdiction to look at motions for new trials; and in
Massachusetts motions for new trials because of newly
discovered evidence are always entertained.
So, yes, whenever a person tells me such a thing--and I
think my colleagues on the board, every one of them, feels this
way--that was an area that you would just really feel in the
pit of your stomach.
However, No. 1, it was not unusual for persons appearing
before the Parole Board or the Governor's Board of Commutations
to tell us that they weren't responsible.
That aside, the oath that we took was to enforce the law;
and the statute that creates the Parole Board and that creates
the Governor's Board of Commutations in Massachusetts is one
that constrains the role of the government.
The statute specifically says that the Board shall not
review the proceedings of the trial here, and shall not
consider any questions regarding the correctness, regularity or
legality of such proceedings.
And so the Parole Board was just not a place that was
designed to or that could consider guilt or innocence. We
weren't equipped for it; but, and equally as important, it
wasn't what we were permitted to do.
Mr. Wilson. That anticipates my next question, which is
simply the what-next aspect.
You asked for a memo to be prepared; a memo was prepared,
and what happened next? And I think it's fair to say you don't
recall what happened next.
Ms. Gershengorn. Do you mean what happened as far as a
vote?
Mr. Wilson. Well, anything that's pertinent to this case
and your involvement.
Ms. Gershengorn. I have no specific memory of the taking of
a vote on this case.
So I guess the answer is, I have no memory of what happened
next; except that I'm a judge, and I read the advance sheets, I
read the reports, and I know that the Supreme Judicial Court
and a judge of the Superior Court reviewed this case as late as
1995, and the judge of the Superior Court reviewed it yet again
within perhaps the past year.
Mr. Wilson. My last question has a couple parts to it.
Did any Federal law-enforcement personnel speak with you
about Louis Greco?
Ms. Gershengorn. Again, I have no memory of that. I have no
memory of who Mr. Greco is.
There has been only one occasion, which has nothing to do
with any of these individuals, on which I remember any law-
enforcement person appearing before the Parole Board. That was
done in a session on the record, and had nothing to do with any
of these individuals.
Mr. Wilson. I'll ask the same question putting the three
names again, Peter Limone, Henry Tameleo and Joseph Salvati;
and I think your answer would be no?
Ms. Gershengorn. No.
Mr. Wilson. Do you have any recollection of any law-
enforcement personnel speaking to you about a parole or
commutation in an ex parte fashion?
Ms. Gershengorn. Never. Never.
Mr. Wilson. Do you have a recollection that you did not
have one?
Ms. Gershengorn. I have no recollection in this matter; I
guess that should be the predicate. It was many years ago.
There was nothing really unusual about it. I have no memory.
But I have no memory of any law-enforcement person coming
to speak to me.
You say ex parte. In those days, the petitioner himself
would often come, because lifers in those days got furloughs,
and they would come to the Board. Family members would come,
and that would be in a sense ex parte. They would actually come
and talk to a member.
But law enforcement did not. I don't remember any time law
enforcement did.
Mr. Wilson. Thank you.
Mr. Delahunt. Wendie, how are you?
Ms. Gershengorn. Good.
Mr. Delahunt. These applications by the four individuals
that Mr. Wilson listed received a lot of attention. They were
high-profile matters. I don't know whether you have a memory of
the publicity surrounding the hearings. I see Mr. Salvati here
and Mr. Limone. Do you have a memory of the publicity
surrounding those hearings?
Ms. Gershengorn. In 1970--there weren't----
Mr. Delahunt. When did you serve on the Board? From when to
when?
Ms. Gershengorn. 1975 through 1979.
Mr. Delahunt. Through 1979; OK.
Ms. Gershengorn. And this petition was around 1976.
I don't recall. I don't recall this at all, but I don't
recall a hearing being given. I mean, I don't recall a public
hearing at that time.
Mr. Delahunt. Who was the chair during your tenure on the
Parole Board?
Ms. Gershengorn. Judge Chernoff.
Mr. Wilson. Judge Chernoff was the chair of the Parole
Board at the time?
Ms. Gershengorn. Yes.
So, was there a hearing? I don't recall any hearing.
Mr. Delahunt. I don't want to belabor this, but the
committee has a number of statements and testimony relative to
the issues and concerns surrounding the petitions. Maybe the
staff could provide them to you, to see if it evokes any memory
whatsoever.
And why don't we just simply leave it like that, Mr.
Chairman.
Thank you.
Mr. LaTourette. Judge, I want to thank you very much for
your participation this afternoon, for your answers.
As we indicated, there may be additional information coming
your way. We would appreciate whatever response you have in
response to that.
I want to thank all of our witnesses for appearing today;
and with that, this hearing is adjourned.
[Whereupon, at 1:40 p.m., the committee was adjourned.]
[A complete set of exhibits for the hearing record follow:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
THE JUSTICE DEPARTMENT'S USE OF INFORMANTS IN NEW ENGLAND
----------
THURSDAY, DECEMBER 5, 2002
House of Representatives,
Committee on Government Reform,
Boston, MA.
The committee met, pursuant to notice, at 10 a.m., in
Courtroom 6, 15th Floor, J.W. McCormack U.S. Post Office and
Courthouse, 90 Devonshire Street, Boston, MA, Hon. Dan Burton
(chairman of the committee) presiding.
Present: Representatives Burton, Shays, Tierney, and Lynch.
Also present: Representatives Delahunt and Meehan.
Staff present: James C. Wilson, chief counsel; Chad
Bungard, Hilary Funk, and Matt Rupp, counsels; Blain Rethmeier,
communications director; Allyson Blandford, assistant to chief
counsel; and Robert A. Briggs, chief clerk.
Mr. Burton. I ask that the tabular material referred to be
included in the record and without objection so ordered. I ask
you now to consent that a binder of exhibits for this hearing
be included in the record and, without objection, so ordered.
I also ask you now to consent that questioning in the
matter under consideration proceed under Clause 2J2 of House
Rule 11 and Committee Rule 14 in which the chairman and ranking
minority member allocate time to the committee counsel as they
deem appropriate for extended questioning not to exceed 60
minutes divided equally between the majority and minority and,
without objection, so ordered.
I also ask unanimous consent that Representatives Delahunt
and Meehan, who are not members of the committee, be permitted
to participate in today's hearing and, without objection, so
ordered.
We may have another Member appear later. If not, that's
fine. If he does, we will ask that there be no objection to him
participating in the hearing as well.
I want to thank my good colleague, one of our subcommittee
chairman, Mr. Shays, for being here, especially with the
weather being like it is in the northeast today. It is nice
having my colleague on the committee, Mr. Tierney and Mr. Lynch
with us. Mr. Meehan and Mr. Delahunt, we appreciate you being
here as well.
We are here today in Boston because the Government Reform
Committee has been conducting an investigation for the last 2
years into how the FBI used informants here in organized crime
cases.
What we have found has been absolutely shocking. When I was
growing up in Indiana, the FBI was revered. J. Edgar Hoover had
been put up on a pedestal. I thought he could walk on water. I
remember watching Jimmy Stewart in ``The FBI Story,'' and
watching Herbert Filbrick in ``I Led Three Lives,'' and how
they referred to Mr. Hoover like he was deified.
There was no organization in the country that was more
highly regarded than the FBI. So it is very disturbing when we
dig into something like this episode in Boston and discover a
level of corruption that is absolutely appalling. And it is
extremely disappointing to learn that so much of what was going
on here was brought directly to J. Edgar Hoover's attention in
Washington. It seems that he and his aides just let these
terrible injustices slip by.
I want to make it clear that I am a strong supporter of the
FBI. There are many, many good people in the FBI who are
dedicated law enforcement officers. So when I single out one
group of FBI officials for criticism, it is not meant to
denigrate the entire organization.
But I really believe in congressional oversight. And when
we see the type of abuse that happened here in Boston, we have
an obligation to dig into it. We have an obligation to get the
facts and lay them out for all of the American people to see.
Hopefully, the FBI and the Justice Department will be
stronger organizations as a result. Maybe if congressional
oversight had been more vigorous, we wouldn't be sitting here
today. And when we finish, I hope we will have done our best to
make the system better.
We first got involved in this because we heard about the
case of Joe Salvati. I see him sitting here today, along with
his wife Marie. Joe Salvati went to prison for 30 years for a
crime he didn't commit. He was convicted because the FBI let
their star witness, Joe ``The Animal'' Barboza, commit perjury
on the witness stand.
The Justice Department had lots of evidence of who the real
killers were. But they let Barboza put Joe Salvati away for
life. Other defendants were given the death penalty, although
it wasn't carried out. That was in 1967. It took 30 years for
Joe Salvati to get out of prison. When he went to prison, he
had four little kids. When he finally got out, they were grown
men and women.
He isn't the only one. Peter Limone, who I also see here
today, spent 34 years in prison. That is pretty shocking. But
that is just the tip of the iceberg. That was the beginning of
nearly four decades of corruption involving the Justice
Department: Informants committed murders with impunity. Killers
were tipped off so they could flee before being arrested. Local
investigations of murders, and drug dealing and arms smuggling
were limited to Boston. They sent Joe Barboza into the
compromised. When people went to the Justice Department with
evidence about murders, some of them wound up dead.
One FBI agent, John Connelly, has been convicted and sent
to prison. A second agent, Paul Rico, took the Fifth before our
committee. When he first appeared before our committee he
didn't take the Fifth. He was very recalcitrant.
I asked him if he wanted to take his Fifth Amendment
privilege and he said, ``What can you do to me?'' After we
questioned him and after he found out how grievous the problem
was, he came back the next time with several lawyers and did
take the Fifth.
I never thought I would see the day when an FBI agent took
the Fifth. But what makes what happened here so bad is that it
wasn't just one or two people. The pattern of corruption and
ethical shortcuts went on for nearly 40 years.
The damage that was done wasn't just limited to Boston.
They sent Joe Barboza into the witness protection program in
California. They gave him a new identity and he killed again.
An FBI agent and a Justice Department lawyer flew out to
California to testify on Barboza's behalf and they helped him
get a lighter sentence.
We held a hearing on that episode back in February. One of
the local law enforcement officials from California said it all
in his testimony: ``The FBI at the time was considered pretty
sacrosanct. They had damaged our case to the point that we
didn't think the jury would give us a first degree murder
verdict.''
At the end of the day, people's respect for the rule of law
was destroyed. And the reach was wide--Bulger and Flemmi's cozy
relationship with law enforcement caused problems in
Massachusetts, Rhode Island, Connecticut, Florida, Oklahoma,
Nevada and California.
Today, we're going to hear about a murder in Tulsa,
Oklahoma. A prominent businessman named Roger Wheeler was
murdered in 1981. In Boston, the FBI had reason to believe that
Whitey Bulger and Stephen Flemmi were involved. But they didn't
share the evidence. It's hard to believe that people in
Oklahoma were trying to solve a murder and Federal law
enforcement officials were protecting the killers.
Now we know a lot more. Flemmi and Bulger were prized
informants. They were protected. Worse still, the hit man in
the Wheeler murder has said former FBI Agent H. Paul Rico was
part of the conspiracy. That is the same Paul Rico who came
before our committee and took the Fifth.
We're going to hear today from Sergeant Mike Huff of the
Tulsa Police Department. He's going to tell us about the stone
walls he kept running into when he tried to conduct this
investigation. We're also going to hear from Mr. Wheeler's son,
David. I think that's important. We can never forget, we aren't
talking about abstract ideas. People died because of what FBI
informants did. Lives were destroyed. And we shouldn't ever
lose sight of that.
In addition, we're going to hear from two former Federal
prosecutors, Jeremiah O'Sullivan and Paul Markham. Mr.
O'Sullivan led the prosecution of a horse race-fixing case.
James ``Whitey'' Bulger and Stephen ``The Rifleman'' Flemmi
were deeply involved. They were named as co-conspirators, but
they were never indicted. We'd like to know why. Mr. O'Sullivan
also played a major role in a lot of other matters involving
Whitey Bulger and William Bulger.
Mr. Markham was the lead prosecutor in the trial of Raymond
Patriarca. He relied heavily on the testimony of Joe ``The
Animal'' Barboza. In the course of that investigation, Mr.
Markham and his staff had access to wiretaps of Patriarca.
Those wiretaps revealed that Patriarca talked to Joe Barboza
and Stephen Flemmi about killing Teddy Deegan--the murder for
which Joe Salvati and others were convicted.
Some of the documents say Patriarca authorized the killing.
But Jimmy Flemmi was given a free pass. Patriarca was given a
free pass. We have a number of questions for Mr. Markham,
including whether he became aware of the facts in the Deegan
case, and if he did, what he did with them. I just want to
remind you of what happened when we were last here and the
prosecutor in the Deegan case appeared before us.
He said: ``I must tell you this, that I was outraged--
outraged at the fact that if [the exculpatory evidence] had
ever been shown to me we wouldn't be sitting here . . . I
certainly would never have allowed myself to prosecute this
case having that knowledge. No way. . . . That information
should have been in my hands. It should have been in the hands
of the defense attorneys. It is outrageous, it's terrible, and
that trial shouldn't have gone forward.''
The prosecutor concluded by saying that he believes that
Barboza's FBI handlers ``knew from the beginning that Joe
Barboza was lying. . . . They have a witness that they knew was
lying to me, and they never told me he was lying.'' It's just
unbelievable.
I'd like to thank all of our witnesses for being here
today. I know some of you aren't here by choice. And I know
that these are difficult questions to answer, and that it's
tough to dredge up these old cases. But I wouldn't have stuck
with this investigation for so long if I didn't feel like this
investigation was so important.
We cannot have the FBI winking and nodding while their
informants commit murders. We cannot have the Justice
Department being complacent in perjured testimony that sends
innocent men to death row or to prison. The American people
have a right to know what happened. We need to lay this all out
in the open so we can restore the faith of the people in their
government. And we need to make sure that nothing like this
ever happens again.
Before we go to our first panel, I want to say a few words
about tomorrow. I have called William Bulger to testify. Mr.
Bulger is well-known in this state. He was the President of the
Senate. He is the President of the University of Massachusetts.
He's a very prominent person I am sorry he has to answer
questions, but if we didn't talk to him, there isn't a person
here who could say we did a thorough job.
This has caused quite a stir in the press. I did not make
the decision to call him lightly. We do not intend to make
unfair allegations. Our purpose is not to embarrass him. I
think there are a number of fair and legitimate questions that
ought to be asked, and that's what we plan to do.
We were initially informed by his attorney that Mr. Bulger
would not appear before the committee, so I issued a subpoena.
I think it's very unfortunate that I had to take that step. I
had hoped that Mr. Bulger, as a prominent member of the
community, would appear voluntarily and cooperate with the
committee's investigation.
Yesterday, the Boston Globe published excerpts of Mr.
Bulger's grand jury testimony. As everyone knows, grand jury
testimony is secret, and it's against the law to release it.
This committee has never been in possession of that testimony.
I want it noted for the record that we were not the source of
that information. I also think that whoever did leak it acted
in a very irresponsible manner.
We've had a very difficult time getting documents from the
current Justice Department during this investigation. We had to
fight for months just to get an opportunity to read prosecution
memos we asked for. That fight wasted a lot of time. We found
out just this week that very important documents had not been
turned over to us.
More time will be wasted. It's very frustrating that at the
same time that important documents are being withheld from a
congressional committee, grand jury testimony is being leaked
to the press. That's not the right way to do business.
I want to again thank everyone for being here today. I want
to thank Mr. Delahunt who is very informed about a lot of these
issues. He's not a member of the committee, but he's been an
active part of this investigation from the outset, and he
deserves a lot of credit.
I also want to thank Mr. Shays, who made the suggestion
almost 2 years ago that we start looking into this, and he's
made valuable contributions all along the way. Thanks also to
my other colleagues for taking time during their holiday break
to be here and work with us on this issue.
With that, I'll go to Mr. Tierney for an opening statement.
[The prepared statement of Hon. Dan Burton follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Tierney Thank you, Mr. Chairman. Mr. Chairman, I think
that I for one want to thank you for having the half a dozen
hearings that we've had over the past 2 years on this
committee. We've made a vigilant effort in pursuit of the facts
of this case. We have attempted to shed light on what appears
to be a disgraceful relationship between the FBI and members of
organized crime in Boston.
Over the next 2 days I expect we are going to continue that
vigilant search for the truth and will be asking questions that
long ago should have been answered. We will seek the truth
about those crimes that should have been adverted.
You are right in saying that for nearly 40 years FBI agents
in Boston recruited members of organized crime to act as bureau
informants. The facts bear that out. It also appears that
meanwhile these same agents may have also been recruited by
organized crime.
The result was a corrupt system where FBI agents protected
the informants at the expense of innocent citizens. What is
most disturbing is that the FBI and other branches of the
government are alleged to have been complacent in the
miscarriage of justice perhaps knowing that the wrong man had
been convicted and imprisoned.
We have a particular responsibility to see that the
Department of Justice ensures that the victims of this corrupt
relationship between FBI agents and members of Boston's
organized crime see justice done. I urge the Department of
Justice to explore a wide range of options including the
establishment of a victim's compensation fund to address the
claims of those most adversely affected by these crimes.
You indicated, Mr. Chairman, that you support the FBI and
the Justice Department. I think that is obviously true for
every Member of Congress. We are not doing our job unless we
make sure that those in our organizations that are properly
functioning and that people can have confidence in them in that
they are representing the true values of the country.
We have to keep in mind that one critical component of this
inquiry is to determine what has to be done in the future so
that these shameful activities don't happen again. We had one
very specific hearing on this a while back with recommendations
of what we might do about informants and protected witnesses
and how the law might be applied as it stands or be amended so
it would be more effective and not lead to situations as this
one has apparently done.
We need to have another hearing, I suspect, Mr. Chairman,
before we wrap up to make sure that we are pointed in the same
direction to make sure that any improvements are, in fact, put
in place.
We also have to question how appropriate it is for the FBI
headquarters to bear the name of J. Edgar Hoover. I thank you
for filing a bill and co-sponsoring that with several others
here. If, in fact, as the evidence seems to indicate, the
director at that time knew of the situation and knew that
innocent people being sent to jail it seems to me we are not
doing a justice to anybody to let that name remain on that
building.
While it's symbolic more than anything else, it is at least
a good measure of our seriousness of purpose in moving forward
and making sure that we try to make it real to the Department
of Justice and the FBI employ agents that uphold the law rather
than undermine it.
There is much that we have to scrutinize and condemn about
the past but we do have to look forward to the future and see
what we are going to do to correct the situation and prevent it
from happening again.
Before I close, I just want to extend my heartfelt
sympathies to the family of Roger Wheeler whose killer remains
unpunished. I also want to express the concerns again that I
did to the Limone family and the Salvati family. I appreciate
that all of you have testified before this committee in trying
to help us do our job of oversight. I hope in some small way
that this process will bring some measure of justice to your
families and other families that might have been scarred by
this sorted saga.
Mr. Chairman, thank you.
Mr. Burton. Thank you, Mr. Tierney. We will now hear from
one of very important subcommittee chairman Mr. Shays.
Mr. Shays. Thank you, Mr. Chairman. Mr. Chairman, the truth
is sometimes stranger than fiction. For me it sure was over 25
years ago when our Connecticut State's Attorney said that
former FBI employees were killing his witnesses. I looked at
Austin McCreggan with some disbelief. He was right. He talked
about how there was a corrupt FBI organization in the greater
Boston area, in the New England area. I didn't believe him. I
didn't believe my friend.
I care mostly about this hearing because of Joe Salvati and
Marie and Peter Limone, and obviously the other two gentlemen
who were in prison and who passed away in prison. And for who
knows how many other families that may still have loved ones in
jail because of a corrupt FBI in the northeast.
So this is a very important hearing. We need to make sure
that the FBI cleans up its act. And we need to get better
cooperation, I think, from the FBI. The fact that they still
are so reluctant to cooperate with us and, frankly, the
Department of Justice is very disconcerting.
I know that you will continue to pursue this next year.
Whoever is chairman of this committee will continue to pursue
it. I can't say I look forward to this hearing today but I know
it's an important hearing and I thank you for having me.
Mr. Burton. Thank you, Mr. Shays.
Mr. Lynch is a very valuable member of the committee. Mr.
Lynch.
Mr. Lynch. Thank you, Mr. Chairman. Mr. Chairman, and also
Chairman Shays and our ranking member in attendance, Mr.
Tierney. I want to thank my colleagues for the bipartisan
efforts that have been in place and the efforts to resolve this
troubling matter.
In the course of these hearings and in the transcripts of
the Federal court proceedings before Judge Wolf we have
retraced a long history of misconduct and criminal behavior
undertaken and supported by the Boston and Washington offices
of the FBI. Specifically the use of informants to infiltrate
and prosecute organized crime in New England in the last 40
years.
The nature and extent of the wrongdoing by agents and
supervisors, which are the subject of these hearings, go to the
very core of our legitimacy as a government. While there have
been important procedural questions raised in the press
recently, which the chairman has touched upon, I think it is
important to refocus on the factual basis of these hearings.
It is important to recall that under the color of law there
have been what we would fairly describe in other countries as
atrocities committed here. Let us remember that with the aid
and assistance of law enforcement there have been brutal
murders of innocent committed here. Let us be reminded that
under the watchful eye of the FBI completely defenseless women
have been strangled here.
Let us not forget that based upon the findings of fact,
that people who return to the FBI for protection were led to
their deaths by the very people who held the duty to protect
them. Let us not for a moment forget that based upon the
evidence before this committee, that the FBI allowed innocent
men to be implicated and to be convicted and imprisoned while
they remained silent.
These were innocent men, husbands, fathers who spent over
30 years, and in some cases the remainder of their lives, in
prison. It is also important to remember that while these
innocent men went to trial and were convicted for a murder that
they did not commit.
For every moment that these men sat in jail year after year
for 30 years separated from their families, watching their
children grow up without fathers, watching their wives raise
families without husbands, during all this as all this
transpired, the FBI and law enforcement officials either failed
or refused to come forward with the evidence that would have
allowed these men to be free.
In closing, I find it impossible to ignore the human cost
that these events have caused. The families whose lives have
been destroyed, the sons and daughters, brothers and sisters
who have been taken, the lives of fathers and husbands who have
been stolen--stolen all under the color of law.
Mr. Chairman, I must compliment you on your energy and your
persistence during these hearings. As we have seen during these
hearings, in some of these atrocities the FBI and others were
active participants. In other instances they simply looked the
other way.
I am pleased to say that with your help, Mr. Chairman, and
the good work of Mr. Waxman and Mr. Tierney and Mr. LaTourette
and Mr. Delahunt and my colleagues here today along with
Chairman Shays that looking the other way has never been an
option for this committee.
Simply put, we seek the truth. It may in the end turn out
to be the painful truth. It may be the ugly truth, but in the
end we need the truth. We owe it to the victims, some of who
were not even afforded a decent burial. We owe it to those like
Maria Salvati and Joe Salvati and their kids and their
families.
We owe it to their esteemed counsel, Mr. Carrillo who has
also been a true hero on the part of justice in this matter.
While we can never restore has been taken away, if we aren't
vigilant and thoughtful and loyal to the principles that
underlie this country, our democracy and our constitution,
perhaps in the end we may prevent something like this from ever
happening again.
Thank you, Mr. Chairman.
Mr. Burton. Thank you, Mr. Lynch.
Mr. Meehan, welcome.
Mr. Meehan. Thank you, Mr. Chairman. Thank you for inviting
Congressman Delahunt and me to this hearing. We are both
members of the House Judiciary Committee with jurisdiction over
the Justice Department. In fact, back in July 1998 I was the
first Member of Congress to call for hearings on this matter.
About a year and a half later Congressman Delahunt, Congressman
Frank, and I sent letters to the chairman of the Judiciary
Committee seeking hearings on this matter.
Chairman Burton, I just want to say for the record the work
of this committee has been outstanding and shedding light on so
much of the horrible corrupt actions of so many people in
positions of public trust are very, very important.
I think these hearings have a special importance to all the
people of Massachusetts, to every Member of Congress, to me as
a former state prosecutor in this state.
What happened between Federal prosecutors, Boston FBI
agents, and Boston gangsters is really outrageous. It has
damaged the FBI's credibility. It has exposed terrible flaws in
the informant management and undermined cases against these
gangsters and many others.
This special relationship helped dangerous felons flee
justice. It cost people their lives. People were murdered.
There were people in this room whose lives have been shattered
forever.
There is nothing wrong with the FBI and the U.S. Attorney's
Office cultivating informants for cases, but there is something
very wrong when the relationship goes from agents using
informants to informants using agents. Guidelines were supposed
to govern the use of informants. The existing guidelines were
clearly inadequate, but regardless of the adequacy of the
existing guidelines, these guidelines were completely and
totally ignored anyway.
Interactions between FBI agents and gangsters weren't
documented or disclosed. In many, many instances we have found
out they were falsified. Oversight by the Justice Department,
the FBI headquarters, was the exception instead of the norm.
Inevitably maintaining relationships with informants may
require law enforcement to make tough decisions about an
informant's criminal actions. I think any former prosecutor or
prosecutor knows that is the hard truth. But, Mr. Chairman,
there is a difference between making careful case-by-case
decisions about how long the leash should be and the notion of
not only giving informants a blank check but allowing the
system of corruption to take place.
Unfortunately, Stephen ``The Rifleman'' Flemmi, Whitey
Bulger, and others headed to nothing. In fact, some FBI agents
went out of their way to keep their criminal enterprise and
operation. They identified FBI and police informants for their
gangsters. They lied and they dissembled. They shut down leads
in crimes of violence in other cases.
Perhaps worst of all they hindered and obstructed Michael
Huff and the Wheeler family from learning the truth about these
gangsters and their role in their father's murder. And, yes,
some Federal prosecutors in Boston facilitated this incestuous
relationship between the officers and the gangsters.
The Judge Paul Wolf found despite some of their denials,
Federal prosecutors knew Whitey Bulger, Stephen Flemmi were
long-time FBI informants. These prosecutors made grave errors
that allowed Boston gangsters to commit and continue to commit
these heinous crimes. Worst of all, some of these Federal
prosecutors lost sight of their most solemn duty.
Above all, prosecutors with the enormous power they have
must maintain the public's trust and have balance. Here in
Boston with the victim's families here today, the trust was
completely and totally shattered. Sadly, some of these
prosecutors let their zealousness blind them into the duty that
they had to maintain the integrity of their office.
With these hearings, Mr. Chairman, and the light that has
been shed on, I hope that we are never in a position again to
have a case like this unfold, but it is more than just
regulations. It's more than just making sure they follow the
rules. It's shedding light and making sure that we change the
culture of these agencies that have committed such corruption.
Thank you, Mr. Chairman.
Mr. Burton. Thank you, Mr. Meehan.
Mr. Delahunt, once again, I want to thank you very much for
all the hard work you've put in with this committee even though
you are not a member of it. You are now recognized.
Mr. Delahunt. Thank you, Mr. Chairman. I mean that in a
very sincere and genuine way. The work of the committee in your
leadership has been extraordinary. I think I would be remiss
not to also note that it was Judge Wolf back four or 5 years
ago that started this process, if you will. I find it
particularly disturbing that a judge, a Federal district court
judge, had to threaten with contempt an associate attorney
general to produce a response.
As you have indicated, the cooperation on the part of the
Department of Justice and the FBI has been remiss, has not been
willing. But you have persevered. You persisted and, yes, we
have accomplished something. Let me suggest this. I truly hope
that whoever succeeds you, whether it be another committee of
the House, possibly even the Judiciary Committee, that we
continue to pursue and continue this effort.
As I was reading the briefing board this morning, there are
so many individuals whose testimony could be valuable to this
effort. I just took a list of them if I can find them. If you
would just indulge me.
I suggest that we should be hearing from special agent in
charge Larry Sarhardt, from Anthony Ciulla, from John Connelly,
from maybe Mrs. Steve Flemmi, from Mr. Martarano, from John
Morris, from Assistant Special Agent in charge Robert
Fitzpatrick, from one Frances Greene, from former Governor and
former U.S. Attorney Bill Weld. We should also extend an
invitation to the current director of the FBI Robert Meuller
who was first Assistant U.S. Attorney here in this
jurisdiction.
I think it's important, as others have said, to lay it all
out on the table and let the chips fall where they may. But,
again, your efforts to date that were impeded by a lack of
cooperation from the Justice Department and from the FBI have
born great fruit and you are truly to be commended.
I think it's particularly noteworthy that you, Mr.
Chairman, took on an Attorney General of your party who had
recommended to the President of the United States executive
privilege and you succeeded and prevailed. That should never go
unnoticed. If there ever is any suggestion about partisanship,
that is simply not been the case in this particular matter.
I would ask, Mr. Chairman, if through you we could inquire
in the audience here if there is any representative from the
FBI, from the U.S. Attorney's Office, or from the Department of
Justice. If they could just simply stand and identify
themselves as maybe at some point in time you or a member of
the committee may have a question to ask of them. With that,
I'll yield back.
Mr. Burton. Thank you, Mr. Delahunt. I will exceed to your
wishes. Are there any members of the Justice Department, the
FBI, or any of the other agencies that are relevant to this
investigation here? If you are, just stand up so we can see who
you are. Anyone else? Could you identify ourself, please?
Mr. Wyshak. I am Fred Wyshak, Assistant U.S. Attorney.
Mr. Burton. Thank you.
Mr. Herbert. I am James Herbert, Assistant U.S. Attorney.
Mr. Burton. Thank you very much.
Once again, Mr. Delahunt, thanks for all your help. We
really appreciate that.
We will now hear testimony from our first witness panel,
Michael Huff and David Wheeler. Please approach the witness
table. Mr. Huff, you are here on my left.
We will also ask Frank Libby, who is Mr. Wheeler's
attorney, if he would join us at the table.
Mr. Huff, Mr. Wheeler, Mr. Libby. Would you raise your
right hands?
[Witnesses sworn.]
Mr. Burton. Let the record show that the witnesses answered
in the affirmative.
Mr. Huff, do you have an opening statement?
Mr. Huff. Yes, sir.
STATEMENTS OF MICHAEL HUFF, SUPERVISOR OF THE HOMICIDE SQUAD,
TULSA POLICE DEPARTMENT; AND DAVID WHEELER, SON OF MURDER
VICTIM ROGER WHEELER; ACCOMPANIED BY FRANK LIBBY, ATTORNEY
Mr. Huff. Thank you, sir, for having us here. I appreciate
the chance to share some of these thoughts.
Mr. Burton. Would you identify yourself and in what
capacity you are here, please?
Mr. Huff. I am Sergeant Michael Huff of the Tulsa Police
Department. I am supervisor of the Homicide Unit and the
leading investigator on the Roger Wheeler homicide for the past
21 years.
On May 27, 1981, a sunny, spring afternoon, Roger Wheeler,
Sr., family man, oil man, CEO of Telex Corp., and owner of
World Jai Alai, was murdered in Tulsa, Oklahoma, at the
Southern Hills Country Club, with one shot between the eyes
from close range, in full view of the crowded swimming pool.
The murderers were Winter Hill hit men from Boston, killing at
will, with no fear, and empowered by corruption from within the
FBI.
Mob hits don't happen in Tulsa, let alone at the Southern
Hills Country Club, where prestigious golf tournaments like the
U.S. Open grab the media attention. With this in mind, the
Winter Hill Gang and associates chose Tulsa, with an assumption
that the Tulsa Police Department wouldn't solve the case. They
were wrong.
The impact of this murder was tremendous and immediate. The
Wheeler family was torn apart; the Telex Corp. went away,
taking thousands of high-paying jobs with it. The Tulsa Police
Department launched a tremendous commitment and investigative
effort that has spanned over 21 years. A task force of over a
dozen dwindled down to me, the first detective at the scene.
I became consumed and obsessed with this case. The stress
of it all destroyed my family also. I can only imagine how life
would have been so very different had the Winter Hill Gang not
come to Tulsa that day in May. Early in the investigation the
leads came in fast and furious.
The investigation led us in the direction of the killers of
Sheriff Buford Pusser, made famous by the Walking Tall movies,
to international intrigue of CIA spies, to the investigation of
the Lancaster Street garage conducted by the Massachusetts
State Police, including my good friend Trooper Rick Fraelick.
The Massachusetts State Police were the first to offer
information on suspects from the Winter Hill Gang, as we came
up here in July 1981.
In July 1982, myself, my partner, and detectives from the
Connecticut State Police traveled to Boston to meet with the
Massachusetts State Police to gain information on activities
and whereabouts of John Callahan, the former president of World
Jai Alai, who had been fingered by Brian Halloran as offering
him the hit on Wheeler.
Halloran had been killed several weeks earlier after
telling his story to the FBI. The FBI had cut him loose without
telling us about Halloran's cooperation. Hours later, he and
Michael Donahue were gunned down on the Boston waterfront.
We then met with Strike Force Prosecutor Jerry O'Sullivan.
In a meeting that lasted over an hour, we came away in shock
with the information exchanged. Flemmi and Bulger were hit men
known to the Feds. Retired FBI Agent Paul Rico, then vice-
president of World Jai Alai, was described as a ``rogue agent''
that caroused with the Winter Hill Gang members during his
tenure in Boston.
FBI Agent John Connelly was mentioned as having some real
estate transactions with the Winter Hill Gang. All the while,
the official FBI line was that these agents were the ``cream of
the crop.'' Callahan was also discussed with O'Sullivan during
this meeting and was subsequently murdered and found in the
trunk of his car at Miami International Airport just weeks
later.
These are just a few tidbits of that meeting. I was shocked
and upset to the point I completed my 1982 reports on this
meeting concerning members and activities of the Winter Hill
Gang to include FBI Agents Paul Rico and John Connelly as
associates of the Winter Hill Gang.
Over the past 20 years, there have been many such instances
of surprise and disappointment during this investigation. I
look back to the July meeting in this very building as an ``end
of innocence'' in my career in law enforcement. I had never
been exposed to such a cesspool of dirt and corruption.
The investigation sputtered for years. In January 1995, I
received a phone call from the Massachusetts State Police. They
had put together a case on Flemmi, Bulger, and others. I was so
excited--help had arrived. The Massachusetts State Police had
always been in the thick of it--hardworking, honest
investigators.
In the next few weeks, I traveled to Boston with 60 pounds
of reports and phone records--most pre-dating the careers of
many of the troopers working on this case--I also arrived with
the message to these fine men that I knew they were about to
step off into unimaginable corruption within the FBI.
During this trip, I had a conversation with now-retired FBI
Agent Connelly, who talked of his ``deal'' with the FBI to come
back to Boston to ``take down the LCN'' and not work ``his
Irish.'' That comment from the now-convicted, corrupt agent has
come to have a greater meaning to me.
As Flemmi dropped his bombshell that he was a protected
informant of the FBI, the Wolf hearings uncovered some dirty
truths about the FBI in Boston. As a result, the investigation
of the Justice Task Force led by John Durham and Garret Byrne,
and staffed with some excellent investigators, including
Special Agent Tim O'Rourke, one of the finest investigators I
have ever worked with, John Connelly was indicted for his
sickening, cowardly, and corrupt acts. I admire, respect, and
appreciate the work of the Justice Task Force.
Were there more corrupt FBI agents from the Boston office?
I think so. We continue to accumulate evidence and information
in the investigation of Roger Wheeler's death concerning the
involvement of a retired FBI agent. The Tulsa Police Department
and the Tulsa County District Attorney recently had a very
productive and promising meeting concerning additional charges
reference the Wheeler murder.
I have no agenda in this situation other than solving the
murder of Mr. Wheeler and arresting all of the involved
parties. I encourage anyone that may have information
concerning Mr. Wheeler's murder to contact me.
I have spent nearly one-half of my life working murder
cases, and I am sickened by the thought of law enforcement
officials, or anyone else for that matter, protecting
murderers. They are scum bags that should be locked up along
with the killers.
I must say, the stress and emotions of this investigation
have taken their toll on relationships and friendships. But if
not for the work of AUSA Fred Wyshak, DBA Agent Dan Dougherty,
Troopers Tom Foley, Steve Johnson, Tom Duffy, and others, we
would not be here today. They have my sincere respect and
thanks.
In closing, I would like to say that the fugitive Whitey
Bulger is a degenerate lowlife. I look forward to the day he is
in custody, and I hope to be part of the arrest team. My final
question is why doesn't the FBI turn that fugitive case over to
the U.S. Marshal's Service, an objective agency with an
outstanding reputation that specializes in the capture of
fugitives?
Thank you very much for your time.
Mr. Burton. Thank you, Mr. Huff. We are going to try to
accommodate you before this is over with.
Mr. Huff. Thank you, sir.
Mr. Burton. Mr. Wheeler, you are recognized.
Mr. Wheeler. Thank you, Mr. Chairman, for your invitation
to appear before this committee today. I was 29 when this
started so this is not as easy for me now.
Roger Wheeler started life as the son of a Boston newspaper
proofreader. He joined the Navy during WW II and later met my
mother, then a student nurse from Kansas, at an ROTC tea dance.
The jukebox had broken down, and my mother asked him to fix it.
She was impressed and a year later, they were married.
My father went to college and got an engineering degree on
the GI Bill. He went looking for work and found it, in the oil
fields of Oklahoma and Venezuela. My father believed in hard
work--he considered hard work a good thing--and he passed that
belief, and others, on to my three brothers, my sister and
myself.
More than anything, my father believed in the American
Dream. As a depression-era child living north of Boston, he
started and ran his own neighborhood businesses, ranging from
bicycle repair to selling potholders and firewood. He was a
natural entrepreneur. After the war he built businesses that
ultimately grew to employ thousands.
His first interests were the oil and mineral industries; he
was an expert in the engineering of oil pipelines. But he later
recognized the promise of a brand new industry with a bright
future, computers. He became chairman of Telex Corp., one of
the first to companies to separately manufacture computer hard
drives. From his vision and hard work came companies, such as
Telex, that competed with IBM, Dow Chemical, and other major
corporations.
This was a man who didn't steal, who tried not to harm
people. He employed people, thousands of people who ultimately
lost their jobs when he was murdered. This was a son of Boston
the city can and should be proud of. He was, after all, one of
them. He was also my father.
In the late 1970's, at home in Tulsa, my father was
approached with a business opportunity, an opportunity
presented to him by the bank formerly known as the Bank of
Boston, whose main offices were right down the street from
where we sit today. The opportunity was a company known as
World Jai Alai, founded back in the 30's by some old-line New
England families.
My father was a careful businessman, and he looked into
this proposal for some time before deciding to commit to
purchasing WJA. My father had the greatest respect for the
Federal Bureau of Investigation.
My father wasn't much for television; the time spent with
us kids was mainly reserved for the out of doors: Hiking, water
skiing; fishing--one day we caught the same fish, on separate
hooks--and working together, outside. But there was one
television program, I recall that he would religiously watch
with us kids: ``The FBI.''
My father's faith in the Federal Bureau of Investigation
carried over into his decision to purchase WJA. On more than
one occasion, my father said that, with all of the rumors of
organized crime's involvement the gaming industry, he had solid
comfort, knowing that his executive staff was made up of former
FBI agents, and they had told him his company was ``clean.''
My father's life represented what many consider to be the
American ideal: vision, hard work, a good sense of opportunity
and maybe a little bit of luck, leading to great financial
success. Sometimes his patriotism overflowed, like the time he
installed a large flagpole in the front yard of our home and
had the first flag raising dedicated by several ministers
complete with a marching band.
In May 1981, I was working at World Jai Alai in Miami; my
father had hired me, a computer software engineer some years
out of college, to learn all I could about the WJA computerized
accounting systems. One Wednesday afternoon I received a call,
telling me only that my father had been shot in the head and
had been taken to a Tulsa hospital.
In a race to see my father before he died I picked up my
wife and 8-month old son, threw clothes from the wash cycle
into a suitcase, and headed to the airport. With soapy water
dripping behind us I raced from counter to counter looking for
a quick flight to Oklahoma. Only when it became obvious that we
had a 2-hour wait did I make a call to the hospital to check on
my father. The operator said she had no record of his admission
and, after a long pause, told me simply that I should call
home.
My family and I got on the plane and flew to Tulsa. Police
officers met the plane as it arrived, and came directly down
the aisle looking for us by name, instructing other passengers
to sit back down. My wife, child and I were escorted off,
taking the stairs directly to the tarmac; we were whisked into
a pair of unmarked vehicles. Weapons were everywhere as my
family was pressed between officers for safety.
In fewer than 7 hours our lives had become surreal. The
next day I had to repeatedly negotiate between the funeral home
and my mother. She kept asking to see her husband. They kept
asking for more time and finally, in desperation, asked me,
``Do you realize where he was shot?''
When we arrived at the funeral home to view my father, I
finally started to lose control. My mother kissed my father's
body. I almost passed out fearing that part of dad's face would
fall apart.
Twenty-one years have now passed. In spite of all of the
FBI corruption uncovered to date, I am still working with the
FBI. I believe that there are many good people in law
enforcement, prosecutors such as John Durham and FBI agents
such as Tim O'Rourke. And there is at least one courageous
judge, Federal Judge Mark Wolf, who dug into all of this by
holding hearings, day after day, for months. Without their
perseverance, it's likely that none of this corruption would
have been uncovered.
Sadly, I also realize that there are others who have
themselves been corrupted over time; corrupted in their deals
with informants from one element of organized crime, in their
misguided efforts to bring down another element of organized
crime. And there are the other agents and law officers,
otherwise decent and honorable people, who stood quietly by,
tolerating this in their midst, so as not to upset careers or
give the Bureau a black eye.
Forgotten in all of this are the people the Agency is sworn
to serve, the people it was designed to protect: People like my
father. People like all of the others murdered by this Agency's
informants, whose families, some of them present today, in this
room, grieve to this day.
Something else has been lost, too, perhaps forever, as a
result of these disclosures of FBI abuse; trust and confidence.
The trust of people who, like my father, believed the FBI
served a good and honorable purpose. People who would like to
trust the Bureau, but now, sadly, do not. Where there was once
trust, there is now fear. And that is a loss we cannot afford.
Twenty-one years have passed since John Martarano, the hit
man for informants working for FBI, Boston, came up to my
father and shot him in cold blood, between the eyes. We know
precisely how this happened, 20 years after the fact, from Mr.
Martarano's own testimony.
Martarano testified as a government witness in the recent
corruption case against former FBI Agent John Connelly. We know
that Bulger shot Brian Halloran, and that Martarano, at the
direction of Bulger and Flemmi, later shot John Callahan, the
former president of WJA, to keep them quiet about my father's
murder.
How many others were involved, in these and other FBI
informant murders? Who else at the Bureau knew about these
secret relationships with these known criminals, but turned
away, said nothing, as others were murdered? Did any
Supervisors or other agents care to ask any questions, connect
the dots between these murders and their own informants?
How could the FBI pretend to investigate itself, give
itself a clean bill of health and then a year later bring
criminal charges against John Connelly, Whitey Bulger and Steve
Flemmi? Where was the Justice Department in all of this? Was
there no oversight at all?
I think that this committee's work, in seeking records from
the FBI and the Department of Justice, and in conducting
hearings such as this, is critical to finding the answers to
these questions. It is the place to start the process of
restoring some measure of faith in the FBI. I am deeply
concerned that little has changed.
My family and the families of several others who have been
murdered as a result of these abuses have come forward with
claims of wrongful death against the government. We want the
truth to come out and have come into Federal court to seek it.
The government defends itself from our claims on grounds almost
too absurd to believe.
It says we are all too late in bringing our suits; the same
government that just prosecuted John Connelly for this
corruption, says that we should have come forward sooner, that
somehow we were supposed to know more about the FBI's
misconduct, and sooner than the FBI itself.
For all of these reasons, I urge the committee to continue
its work on this, in the next session of Congress. No other arm
of government can or will take this up, and it is too important
to leave alone. The integrity of the FBI, and much of our faith
in Federal law enforcement is in the balance.
Let me close by briefly mentioning two special people, two
individuals who are responsible for me being here today, and
who helped me survive since that horrible day, more than 20
years ago. My wife, Laurie, was and is today, always there for
me regardless of how bad things became. She gave me stability
when the rest of my world came apart. I am grateful to her for
that and I want to publicly thank her.
Like Laurie, Sgt. Det. Mike Huff, of the Tulsa Police
Department Homicide Unit, has been there with me. Mike was
among the first law officers responding to the scene of my
father's gruesome murder, in May 1981.
Mike, sitting next to me, is with my family and me to this
day. When I began to complain to him about my situation, Mike
took me around to see and speak with others less fortunate.
Mike often showed me how crime can be solved by dedication to
duty, and hard work--not by trading one life for another.
Inspired by Mike, I spent time developing a new type of
software, designed to assist law enforcement in evaluating
apparently unconnected pieces of evidence developed in crime
investigations. A derivative of this technology is going to be
part of the new Transportation Department's computer search for
terrorists.
Thank you, Mr. Chairman, for your invitation to appear and
testify before this committee. I would be pleased to answer
whatever questions you might have.
Mr. Burton. Before we start the questioning, I want to say
two things, Mr. Wheeler. First of all, I want to thank you very
much and your family for putting a human face on this tragedy.
Too many times we read in the paper somebody has been killed
and the next day that's all there is to it.
Today you have put a human face on your dad and your family
and what you've gone through. I think that is very, very
important because I think one of the other things we need to do
is tug at the heartstrings of America to let them know how
important it is that this sort of thing never, ever happens
again and that we hold law enforcement officials accountable
who participate in this kind of thing.
The second thing I would like to say to you before we start
our questioning is if you would send to this committee a letter
enumerating the problems you've had with the civil suit
including the statute of limitations that evidently they said
has passed so you couldn't pursue it.
We will take a look at it and see if we can't help you in
some way with that civil suit because it is obvious to me, and
I think to the rest of the committee, that there is no way you
could have started the civil suit unless you knew that the FBI
was involved and you couldn't have known that for a fact until
some time later. If you will get that to us and to Mr. Wilson,
we will see if we can't be of some assistance to you.
Mr. Wheeler. Thank you, sir.
Mr. Burton. With that, I don't know how we're going to run
this clock. I'll tell you what we will do. We will just try to
keep a rough idea on the time. I'll let my colleagues ask
questions if you guys would try to stay within--you know what
the parameters are. When Mr. Wilson asks questions, if any of
my colleagues want to interrupt and ask followup questions, you
are welcome to do so.
Let me start. For the record, I'll ask----
Mr. Huff [continuing]. Jack and James Herbert and his crew
came on board, absolutely they helped. Prior to that we had
roadblocks to say the very least.
Mr. Burton. To you think that former FBI agent Paul Rico
has been protected by the actions of the Justice Department?
Mr. Huff. I do want to say that my investigation concerning
Paul Rico is still ongoing and it has been publicly reported
before that we are seeking murder charges against Paul Rico in
Tulsa for the murder of Mr. Wheeler.
Mr. Burton. Would you care to elaborate on any of that
information that you have?
Mr. Huff. Well, in respect, sir, to that ongoing
investigation, any information with regards to evidence I
can't. But I can tell you that, yes, we did feel that the
Justice Department hindered our investigation. There is one
particular time, November 1982, when the Justice Department
convened a meeting in Tulsa, Oklahoma, where they invited
investigators and prosecutors from all the agency locations
where these murders had happened out to Tulsa for a meeting and
it was a sham.
It was under the guise of information sharing, although
little information was shared. At the very end of the meeting
it was, ``OK. All you guys, what do you know on Paul Rico?
Stand up and tell us now.'' That was because Paul Rico was due
to be a witness against Judge Al C. Hastings in a Federal
corruption trial in southern Florida. They were allegedly
looking for discovery material in relation to Paul Rico.
That meeting with fine troopers from Massachusetts State
Police and Connecticut State Police ended in everybody getting
up and walking out. We felt we had been misled. We felt that it
was a very poor attempt to try to share information. We felt at
that time that we weren't going to get anywhere with Paul Rico
with the help of any Federal people.
Mr. Burton. You've touched on this a little bit but 20
years ago you thought it was important to interview Whitey
Bulger and Stephen Flemmi about the Wheeler murder. Can you
tell us what happened and whether or not you got any assistance
in interviewing those guys?
Mr. Huff. I do want to say that the FBI agent that we were
working with in Tulsa was attempting to help us to a certain
point. I think he was being lied to also. As time as gone on
and I've had access to look at other information and reports
and whatever, I do feel that he was trying to straddle the
fence, if you will, trying to keep the FBI happy and not assist
us to a certain extent.
We felt that we needed to talk to Whitey Bulger and Stephen
Flemmi. We had no idea that they were informants. We kept
pressuring the FBI in Tulsa to be the liaison. That never
happened. It turned out later on we see in reports where they
convened a high-level meeting in Washington to discuss this. We
were just led on by the FBI. ``Yeah, we will get you there. We
will facilitate that.''
All the while we're thinking in the back of our naive minds
that surely the FBI has targeted these guys as some sort of
organized crime targets. They were going to take him down. We
didn't want to step in the way of that. We just wanted to do
our job but it was totally opposite of that. They had targeted
the Wheeler case to not get soft.
Mr. Burton. Now, in 1982 you met with Jeremiah O'Sullivan.
I believe he was a prosecutor at the time. You met with him in
Boston. I guess a year had passed since the Wheeler murder and
they were looking for leads--you were. You and others met with
Mr. O'Sullivan in Boston. Is that correct?
Mr. Huff. Yes, sir. Myself, my partner, Dick Bishop, two
Connecticut state troopers who were actual investigators. It
was Andy Osuf and Dan Toomey, as well as a very excellent
Massachusetts state trooper by the name of Greg Foley.
Mr. Burton. As I understand it, O'Sullivan laid out the
Halloran story and told you guys about the alleged involvement
of Flemmi, Bulger, and Martarano. Can you go into that?
Mr. Huff. Yes, sir. It was what has become known as the
Halloran story, the Halloran debriefing, where Flemmi, Bulger,
Martarano were involved. He down played that. He said Halloran
was a liar, that he was only given a percentage of the truth
and it couldn't be corroborated. They cut him lose and they
never told us about him while they had him and he was still
alive.
Shortly after they cut him lose he wound up dead here in
Boston, he and Michael Donahue. He down played Halloran's
credibility. He talked in detail about his knowledge about
Bulger and Flemmi doing murders. They were doing murders for
the LCN here in Boston. Being able to travel cross-country on
murders. Other than Tulsa and Florida the only other cross-
country murder I've later become aware of is the one of, I
believe, Peter Paulus in Nevada which occurred in the 1970's.
It appeared to us, especially hindsight is always 20/20,
but he really knew quite a bit about these guys. We thought in
the back of our mind surely these guys have got to get ready to
take a fall.
Mr. Burton. Would you have liked to have known about this a
year earlier?
Mr. Huff. Oh, absolutely. I believe that if Halloran came
forward in January 1981, I would have liked to have known that.
We could have worked with that and worked alongside them, or at
least had some input to contribute to their investigation.
Mr. Burton. I have more questions but I'll yield to Mr.
Tierney.
Mr. Tierney. Thank you. I just want to ask, Mr. Huff, when
you were talking to Mr. O'Sullivan about this Halloran thing,
did he tell you specifically why it was that he was discounting
his credibility?
Mr. Huff. He said that Halloran had become a coke freak
over time and that Halloran had a diminished respect in the
Boston circle of organized crime people that one time he had
been a very well respected hit man but, for other reasons, he
was not as well respected now.
He also said that Halloran chose not to offer information
on Howie Winters which apparently was a man of interest to them
here. Because of that and because they couldn't corroborate
some of the things he said they cut him lose.
Mr. Tierney. Did your information have Mr. Halloran having
any contact with the World Jai Alai?
Mr. Huff. Not that I recollect at the moment. That was a
question I wasn't anticipating. I would imagine in my several
thousand pages of reports I address that but I don't think
that----
Mr. Tierney. But none that you are aware of, or none that
you can recall, at least?
Mr. Huff. No, sir. Not right at the moment other than his
association with John Callahan who was the former president of
World Jai Alai.
Mr. Tierney. Did you know that association?
Mr. Huff. Yes, sir. I did know that association. He was
very closely associated with John Callahan here in Boston.
Mr. Tierney. Mr. Wheeler, you didn't know Mr. Halloran, did
you?
Mr. Wheeler. No, sir.
Mr. Tierney. Did you have any subsequent meetings with Mr.
O'Sullivan?
Mr. Huff. That was my one and only meeting. It lasted about
90 minutes. It was, I believe, July 8, 1982.
Mr. Tierney. And you said at that time it was pretty clear
that he had a lot of information not just about Martarano but
also about Flemmi and Bulger?
Mr. Huff. Yes. Quite a bit of information on Flemmi and
Bulger on how they did hits. We felt that reading between the
lines that he knew of specific hits they had been involved in.
He also appeared to be very familiar with Paul Rico and aware
of John Connelly also.
Mr. Tierney. And Mr. Rico at that time held a position with
World Jai Alai?
Mr. Huff. Yes, sir.
Mr. Tierney. Was he security vice president?
Mr. Huff. He was in the management. I think after Mr.
Wheeler's death he became vice president of World Jai Alai.
Mr. Tierney. Now, Mr. Huff, did you have a meeting last
year with the Justice Department lawyers in 2001?
Mr. Huff. Yes, sir. Which ones are you talking about?
Mr. Tierney. How many did you have last year?
Mr. Huff. Well, I've had meetings with Fred Wyshak. I've
had meetings with John Durham. I am trying to think if there
was a lawyer involved when the Department of Justice did the
leak investigation last year. I've had several meetings.
Mr. Tierney. And the purpose of those meetings?
Mr. Huff. The exchange of information primarily in regards
to these ongoing cases as well as the Wheeler case
specifically.
Mr. Tierney. And the cooperation level that you find at
this point in time?
Mr. Huff. At this point in time it's wonderful between
Wyshak, John Durham, and those people. They are fine people.
Mr. Tierney. Mr. Chairman, I have no further questions.
Mr. Burton. Mr. Shays, do you have questions?
Mr. Shays. I would like to allow my Massachusetts
colleagues to ask some questions and then I would like to jump
in again.
Mr. Burton. Mr. Lynch.
Mr. Lynch. Mr. Huff, I am going to ask some obvious
questions but we are trying to create a record here so bear
with me. Why is it in your mind you think the FBI clearly
withheld relevant information from you for so long? The second
part of my question is bring us up to date more recently your
dealing with the Justice Department and the FBI and has the
relationship and their level of cooperation changed?
Mr. Huff. Yes, sir. In looking back obviously the reason
why they were withholding information is that they were
protecting Flemmi and Bulger. I guess individually we see that
John Connelly was probably protecting them not only for career
reasons but for personal reasons.
I feel that they knew that Paul Rico was a target of ours
and that didn't set well with them for one reason or another.
Yes, I think it's very obvious why they protected these guys
and withheld information recently. When I say recently, I am
going from 1995 on when I first became aware of indictments on
Flemmi and Bulger.
The level of cooperation changed and that's because of
state troopers here in Massachusetts, the DEA agent Dan
Dougherty and Fred Wyshak, James Herbert, Brian Kelly. They
have one goal in mind and I thought this as I heard each of
your opening statements--they are seeking the truth. Wherever
that leads, they are heading in that direction. That has
changed.
John Durham, outstanding man. He has been very helpful in
furthering our specific investigation on the death of Mr.
Wheeler. Yes, it's a different group of people we're dealing
with today.
Mr. Lynch. One final question, Mr. Wheeler. I understand
that after your dad's passing that Mr. Rico was elevated to the
position of Vice President with World Jai Alai. Would in the
internal structure of that company, if you know, would Mr. Rico
have been able to rely on the fact that he might have moved up
in the organization or succeeded in the organization with your
father's absence or if your father was unable to serve?
Mr. Wheeler. Yes, I do. I think that based upon their
understanding of how my older brother would be the general
partner that they would be in a position to do that. They would
be in a position to do basically what they wanted as far as
management control.
Mr. Lynch. How old was your brother at that time? Do you
remember?
Mr. Wheeler. He was 34 but he had no experience running a
business. Basically he would follow my father's direction. When
my father was killed the business just--Roger, Jr. relied upon
Donovan and Rico.
Mr. Lynch. Thank you, sir. No further questions.
Mr. Burton. Mr. Meehan.
Mr. Meehan. Mr. Huff, you indicated that you had one
meeting with Mr. O'Sullivan that lasted about 9 minutes.
Mr. Huff. Ninety minutes.
Mr. Meehan. Ninety minutes.
Mr. Huff. An hour and a half, yes.
Mr. Meehan. During the course of that hour and a half
meeting did you find at that time your conversation and his
statements credible, truthful, and honest at that time?
Mr. Huff. At that time I thought they were honest. I was
wondering what was not being said.
Mr. Meehan. Given your experience over the last 20 years,
looking back and reflecting on that 90-minute conversation with
Mr. O'Sullivan, would you to the extent it's possible consider,
looking back, his conversation and his statements to be
truthful, credible, and honest?
Mr. Huff. Well, in some ways I would think that they--I
think that the decision to cut Brian Halloran lose, there was a
story behind that we have since come to know, I think, why that
happened.
I found in looking back 20 years later his statements, some
of them may have been truthful but they were outlandish to find
out now that he knew that Flemmi and Bulger were informants
working for them and knowing specifically about murders and how
they do murders. He seemed to have some real inside information
and I just couldn't imagine law enforcement using cold-blooded
killers to let them run lose like vicious animals.
Mr. Meehan. Did you at anytime after that 90-minute
conversation request any additional meetings or communication
or conversations with Mr. O'Sullivan?
Mr. Huff. Well, not directly with Mr. O'Sullivan. I think
in writing. I wrote to our U.S. Attorney in Tulsa requesting
that we call Paul Rico before a grand jury. That never
happened.
Subsequently, we did call, I believe, Dick Donovan to a
grand jury in Tulsa which was very unproductive even to the
point of--I mean, all this minutia of what happened way back
when, but when you recall the day that Dick Donovan came to a
grand jury and we were positioned in the hallway waiting to
talk to him afterwards, the FBI was facilitating the grand jury
and the FBI sneaked him out of the building, into the basement,
into an FBI agent's personal car, and drove him directly to the
airport to keep him from us. I mean, those kind of things add
up and they accumulate.
Mr. Meehan. Sure do. Thank you, Mr. Huff.
Thank you, Mr. Chairman.
Mr. Burton. Mr. Delahunt.
Mr. Delahunt. Thank you, Mr. Chairman.
Our condolences to you, Mr. Wheeler. Your testimony was
particularly moving and poignant. We all emphasize with what
you've endured for years.
Let me direct my questions to Mr. Huff. Subsequently have
you become aware of what FBI agents developed, Bulger and
Flemmi, as informants?
Mr. Huff. Yes. It all tracks back to Paul Rico.
Mr. Delahunt. So you now understand given the information
that has been made public that Whitey and Stevie Flemmi were
developed as informants by H. Paul Rico?
Mr. Huff. Yes, sir. I have.
Mr. Delahunt. Upon his retirement, Mr. Rico became an
employee of World Jai Alai?
Mr. Huff. Yes, sir.
Mr. Delahunt. And subsequently have you learned that Mr.
Martarano was an associate of Mr. Bulger and Mr. Flemmi?
Mr. Huff. Yes, sir. I have.
Mr. Delahunt. And obviously you have learned through the
testimony of Mr. Martarano that he traveled to Tulsa, Oklahoma,
and committed the murder of Roger Wheeler?
Mr. Huff. Yes, sir.
Mr. Delahunt. During your meeting with Mr. O'Sullivan back
in 1982, did Mr. O'Sullivan disclose to you that he was aware
that Bulger and Flemmi were informants of the FBI?
Mr. Huff. He did not disclose that to us.
Mr. Delahunt. He did not disclose it?
Mr. Huff. No, sir.
Mr. Delahunt. But you came to that meeting with the
intention of securing assistance in the investigation of the
murder of Roger Wheeler.
Mr. Huff. Absolutely.
Mr. Delahunt. At that point in time did you have
information which led you to believe that Bulger and Flemmi
were involved in that murder?
Mr. Huff. Yes, sir. That initial information was received
from that Massachusetts State Police approximately a year prior
to that.
Mr. Delahunt. So that information came from the
Massachusetts State Police to you and then you came and had
that meeting with Mr. O'Sullivan who, at that point in time, do
you remember what his particular role was in the U.S.
Attorney's Office?
Mr. Huff. He was the chief Strike Force prosecutor on the
organized crime Strike Force.
Mr. Delahunt. So he headed the organized crime Strike
Force?
Mr. Huff. Yes, sir.
Mr. Delahunt. And he never disclosed the fact that both
Bulger and Flemmi were informants of the FBI?
Mr. Huff. No, sir.
Mr. Delahunt. You said during that meeting with Mr.
O'Sullivan that references were made to Mr. Connelly, the
former Special Agent of the FBI, the now convicted former
Special Agent of the FBI, had certain real estate transactions
with Bulger and Flemmi or associates. Did that occur during
that meeting with Mr. O'Sullivan?
Mr. Huff. Yes, sir. That was an exchange between the
Massachusetts State Trooper and O'Sullivan.
Mr. Delahunt. So was that information that was disclosed by
Mr. O'Sullivan to the Massachusetts State Police, or was it
presented by the Massachusetts State Police to Mr. O'Sullivan?
Mr. Huff. It was presented to Mr. O'Sullivan at which time
he tried to downplay that.
Mr. Delahunt. What was his response, if you can remember? I
understand that this is very difficult. This is 20 years ago.
Mr. Huff. There are certain things in the past 20 years
that you remember pretty vividly and I remember that hour and a
half pretty vividly. In that downplay of that it was him trying
to change the subject. He seemed to be very protective of Mr.
Connelly. In fact, he even--I believe that he even told us that
this whole situation was being handled by, I believe, Agent
Gerry Montanari who was not even in Mr. Connelly's squad. He
was in a labor racketeering squad and Connelly was in organized
crime squad.
Mr. Delahunt. Suggesting that they didn't even talk
together?
Mr. Huff. Suggesting that, but even when he said that, I
recalled that months back shortly after Wheeler was murdered
when we were reaching out to other agencies to help us gather
information, that it was Connelly of the FBI that they sent to
talk to John Callahan about this.
Mr. Delahunt. Not Special Agent Montanari but Special Agent
Connelly?
Mr. Huff. Absolutely. Hindsight is 20/20 but I look back on
that and thought why would they send Connelly to talk to
Callahan where Callahan, I believe, gave him a prepared
statement. You know, quite candidly you look back----
Mr. Delahunt. Callahan gave who a prepared statement?
Mr. Huff. Callahan gave Connelly a prepared statement
denying his involvement with the Wheeler murder.
Mr. Delahunt. I see. If you know, was there any followup in
terms of inquiry or was it just simply the acceptance of a
signed statement?
Mr. Huff. I think it was the acceptance of a--I believe the
statement was faxed to him.
Mr. Delahunt. Faxed?
Mr. Huff. Which really----
Mr. Delahunt. It was an in depth investigation, in other
words, Mr. Huff?
Mr. Huff. Right.
Mr. Delahunt. Getting back to those real estate
transactions, when this was presented to Mr. O'Sullivan by an
official of the Massachusetts State Police, did he indicate
that he would investigate that allegation?
Mr. Huff. No, sir. He did not.
Mr. Delahunt. He did not? Can you remember with any
specificity whatsoever the assertions that were made by the
Massachusetts State Police official relative to real estate
transactions?
Mr. Huff. I believe it was a transaction of a piece of real
estate, maybe a home. I know that Whitey Bulger's name came
into it like maybe he was the seller or something of that
nature.
Mr. Delahunt. Was O'Sullivan surprised by the allegation?
Mr. Huff. Not necessarily surprised but maybe alarmed. I
know that the state trooper also said that Connelly had been
seen several times with Bulger. Those were the kind of things I
was soaking in like a sponge. I couldn't imagine that.
Mr. Delahunt. But you were unaware at the time that Bulger
and Flemmi had become informants for Special Agent Connelly?
Mr. Huff. Totally unaware of that.
Mr. Delahunt. Did Connelly ever disclose that to you? You
made reference earlier to how they were going to focus on the
LCN, La Cosa Nostra, and they were going to use--I think they
weren't going to do the Irish. I think maybe that's the word
you used.
Mr. Huff. Those are his exact words. I recall that
conversation. I had attempted to contact Connelly direct
several times when he was still an FBI agent and never got a
reply from him. I tried to communicate with him through an FBI
agent in Tulsa. That didn't really happen much either. When I
came up here in 1995 after the Massachusetts State Police had
worked their investigation on Flemmi and Bulger, I brought a
load of reports.
At that time Connelly had gone to work for the power
company or Boston Edison somewhere here. I was trying to get a
meeting with him. All I was able to do was get a phone
conversation with him which lasted several minutes.
In that his very specific words is ``his deal,'' and that
was his word, with the FBI was to come back to Boston to take
down the LCN--those were his specific words--and not work ``his
Irish.'' I really recall that specifically. I don't think that
we talked at that time about them being his informants. He was
wanting to talk about there was going to be a movie made on him
or something.
Mr. Delahunt. A movie made on Mr. Connelly?
Mr. Huff. Yes, sir. I acknowledged to him that I had seen
on television on Top Cops or something. I am trying to change
the subject back to something important and he's wanting to
talk about himself. I ended up ending the phone call and didn't
get to the point with him.
Mr. Delahunt. Thank you. I yield back.
Mr. Burton. Mr. Shays, did you have something?
Mr. Shays. Mr. Wheeler, I don't think I owe you an apology
more than I just want to say that you should have been on my
list and your family should have been on that list alongside of
Joseph Salvati. Mr. Salvati's children have him back in the
family minus 30 years. You don't have your dad. Your children
don't have their grandfather. I am just interested how old your
dad was when he was killed?
Mr. Wheeler. That's kind of an interesting thing. I am not
very good with ages actually. It seems like he was about 52,
55.
Mr. Shays. She he potentially would still be living today.
Mr. Wheeler. Yes. His mother is still alive today.
Mr. Shays. I want to ask you about your civil suit. I would
be willing to have your attorney participate but he wasn't
sworn in so if it's necessary for him to participate, we would
need to swear him in. I want to understand where the civil suit
lies right now and what your task is to move forward.
You need to be sworn in.
[Witness sworn.]
Mr. Libby. Briefly, Mr. Shays, the Wheeler suit was filed
roughly a year or more ago. We're not alone. There are eight or
10 other families similarly situated including another case
that is not a wrongful death case but an extortion case
involving the South Boston Liquor Mart scenario where a claim
has been made against the United States and many former FBI
agents for their wrongdoings.
We have a collection of cases pending before three
different Federal judges in this district. The Justice
Department Civil Division, not the Massachusetts U.S. Attorney
but the Justice Department Civil Division down in D.C., is
handling the defense of each of those cases.
It's gone into just beginning just now after more than a
year to get into discovery which, of course, is somewhat
ticklish because of all the various claims of privilege and
grand jury testimony, confidential law enforcement information
material and the like. We're talking about 20 or 30 years worth
of material.
The defenses which have been raised today, and I trust that
this is the heart of your question, has been singular and that
is it's not been a denial so far as we know. There may be one
or two answers where there have been--in the way of a denial of
liability but it's focused primarily on timeliness, or rather
untimeliness of bringing these claims.
The essence of that is that you sat on your right so if you
sue the United States you have to sue within a certain period
of time--2 years I believe is the statute--or you lose those
rights forever. The claim from the government, the very
government that is prosecuting the criminal actions here, they
are defending the very same kind of conduct on claims that
these private citizens should have brought these suits, should
have known about this FBI misconduct earlier than the FBI did
essentially.
This FBI gave itself, as I understand it, responsibility
back in as late as 1997 so that they couldn't find any
wrongdoing. The Connelly indictment didn't come until the
following years. These civil suits followed on the heels
primarily on the remarkable yeoman work of Mr. Wyshak and
others who have been involved in the so-called Salenni hearings
held by Judge Mark Wolf over the course of nearly 2 years.
He finally in September 1999 put together a nearly 700-page
report of findings of those hearings which span decades of
these secret relationships. Only then did the nature of his
misconduct come to light. From that you saw the families
finally understand how it was the Government was somehow
answerable, reliable, responsible for their harms. The suits
have been filed. In virtually every instance, as I understand,
the defense is that we're all too late.
Mr. Shays. The bottom line is, though, you filed within 2
years of learning of that.
Mr. Libby. We certainly filed within 2 years of Judge
Wolf's decision where he has pulled all that information
together. Before then it's been speculation, conjecture,
rumors, newspaper reports of OC figures on the one hand and
speculation about internally in the FBI on the other.
Mr. Shays. I understand why you need statutes of limitation
but it seems to me the law is flawed if you are not able to
move forward.
Mr. Libby. Well, some have been ruled on. One or two, as I
understand, have been ruled on and have been denied by one of
the judges handling the case. There are others--I don't want to
comment beyond that--that are still pending.
Mr. Delahunt. Would the gentleman yield for a moment?
Mr. Shays. I would be happy to yield.
Mr. Delahunt. I think in response to the gentleman's
question, myself, Mr. Meehan, and Mr. Frank sent a letter to
the Department of Justice expressing our dismay that the
Department of Justice would interpose such a defense. I have
never heard a theory as put forth by Justice in the history of
American juris prudence to defend a case that obviously lies
with both Mr. Wheeler and others. Hopefully Justice will
revisit the fact that defense is simply unconscionable and
insulting.
Mr. Libby. If I may, Mr. Chairman, just a final point. I am
familiar with that letter, Mr. Delahunt, and all of the various
families are familiar with it as well. We appreciate the
sentiment behind it. We think it is perfectly appropriate.
Understand we are simply looking to get our day in court.
We're not looking for a leg up or any of that. In fact, we
have some serious logistics issues to deal with that we are
confronting with respect to various agencies spanning from
Oklahoma, Florida, Connecticut, Massachusetts, as you might
imagine over 20 to 30 years, as I mentioned. We just simply
want to be heard.
Mr. Shays. I would say when you said would Justice revisit,
I read that two ways. Will the Department of Justice revisit
and will Justice be revisited. I know that my chairman and I
have talked about this kind of issue and I would think that
both of us would love to kind of add our names to that letter
as well. It just seems so obvious to, I think, both of us that
there has to be a statute of limitations but at a point which
you are aware that you have a case.
I want to ask you, Mr. Huff, you are on record obviously as
saying your investigation was hindered by the FBI and the
Department of Justice. Correct?
Mr. Huff. I believe so.
Mr. Shays. And you have subsequently concluded that the FBI
and the Department of Justice hindered your investigation
because?
Mr. Huff. Because goes off in several different directions,
I guess.
Mr. Shays. You can go off on more than one.
Mr. Huff. I guess because they wanted to keep Flemmi and
Bulger on board because John Connelly didn't want his house of
cards to fall. Because they were protective of H. Paul Rico for
whatever reason, whether it be the Judge Alcee Hastings case
they had put effort into, or the fact that they just wanted to
protect Rico.
And because they didn't want embarrassment from the FBI for
the FBI. I think that is probably a pretty narrow focus there,
too, I think, as this thing further unfolds. I mean, I look
back on so many things. For example, one that I got kind of
upset about last night when I recalled where supposedly
Connelly wrote an FBI report shortly after Callahan's death to
say that Flemmi told him that this would be a group of Cubans
that Callahan had begun to deal with in Florida.
The assertion was that Flemmi just gave that to Connelly to
report because Flemmi had told Martarano to drop the watch off
in Little Havana, Callahan's watch which they took from the
body, Little Havana in Miami. When in actually that tracks back
to us because in July 1982 prior to Callahan's death we had
begun to investigate a man of Cuban decent that had a lose
connection with World Jai Alai as a pretty good suspect.
We shared that information with the FBI. It doesn't take
much to connect the dots there that information gets to
Connelly and Connelly feeds that to Flemmi and off of that they
leave the watch in Little Havana knowing that is going to be a
red herring that we're going to chase like a dog chasing a
bone, which we did unfortunately. It just fed on each other.
You know, there are so many instances of that kind of
information that so much time was wasted. They sent us off
chasing ghosts. I got to tell you, this has been 21 years of my
life.
This isn't the only murder case I've investigated. I
investigate a lot of murders and we solve 90 percent of them in
Tulsa but, boy, did this distract me and this totally screwed
up my life. I am mad about that. That's me talking to you.
That's not the Tulsa Police Department. My ex-wife is mad about
it, too. My kids are mad about it.
Mr. Shays. Mr. Chairman, thank you. Mr. Huff, I really
appreciate you coming to testify today.
Mr. Wheeler, I was a State Legislator when you dad was
killed. At the time I thought gambling is a messy business, you
know. It's controlled by organized crime. It's kind of my
stereotype. My first pass was to think, ``Well, this is a man
involved in organized crime.''
Austin McGreggan told me your dad was a man of impeccable
character. Just a beautiful man who had come up from a more
modest beginning. Your testimony today obviously just makes
that so personal. I am so grateful you are here today. So
grateful you testified.
Mr. Wheeler. Thank you very much.
Mr. Burton. Thank you, Mr. Shays. I think Mr. Tierney has
one or two questions. Then we will try to wrap this up. I think
the chief counsel has a couple of questions and then we will
try to wrap up this panel.
Mr. Tierney. Thank you. I just wanted to see whether or not
you've given us everything you can recall with respect to that
1982 meeting with Mr. O'Sullivan. You said a moment ago in
answer to somebody's question that the story behind cutting
Halloran lose has since come to be known by you. Have you told
us everything that you believe is related to that story about
Halloran being cut lose or is there something else you want to
add?
Mr. Huff. I believe I've told the crux of it. I mean, I
think that Halloran was cut lose. I think that probably there
was some input from John Connelly to O'Sullivan to get rid of
this guy. I mean, the FBI line for many, many years until
recently was that Halloran was a liar. He might have lied about
some things but he didn't lie about this. It was right in line
with.
Now, in talking to people that were involved to a certain
extent in these murders, we know that Halloran was being
truthful. In that meeting there were other things that came
out. There was a lot that came out. He told us that John
Martarano, the fugitive John Martarano, was in the Fort
Lauderdale area with some specificity.
Certainly he was in the Ft. Lauderdale area. He was staying
in and around the apartment of John Callahan. You know, when
John Callahan was murdered, we told the Metro Dade Police that,
``Hey, John Martarano is a figure in this somewhere or
another.''
Little did we know that some 20 years later we would find
out that John Martarano was a traitor man that killed Callahan.
We told them that John Martarano was a fugitive and he was in
the Fort Lauderdale, Southern Florida area and they acted upon
it. I see no indication that the FBI, the feds, acted on it at
all.
Mr. Tierney. Was Trooper Dana Toomey with you at that
meeting in 1982?
Mr. Huff. Dan Toomey. Yes, sir. Connecticut State Trooper.
Mr. Tierney. I am just looking at a report filed by him on
this. He indicated that Mr. O'Sullivan described Halloran as
somebody that had information that wasn't corroborated. Do you
recall that?
Mr. Huff. Yes. Yes.
Mr. Tierney. O'Sullivan said that Halloran would not
testify against Howie Winters. That was apparently by way of
disparaging?
Mr. Huff. Yes. Apparently they really wanted to get at
Howie Winters and since he wasn't going to help him that way, I
kind of thought the pay back was, ``We're cutting you loose.''
Mr. Tierney. Do you recall Mr. O'Sullivan indicating that
he didn't think that either Martarano, Bulger, or Flemmi were
brilliant and that he called them not brilliant?
Mr. Huff. He did call them not brilliant. I thought that
was kind of interesting. He would say they traveled across the
country to commit murders. They didn't put the amount of effort
or planning into it that the Italians did.
Mr. Tierney. Thank you.
Mr. Burton. I just have two questions here and then we will
let Mr. Wilson sum up. In that 1982 meeting in Tulsa, Oklahoma,
can you give us the names of the FBI agents and the people that
were in attendance? We would like to have those for the record.
Mr. Huff. I was fearing you were going to ask that. I did a
pretty thorough report except for that. Agent Bob McKechnie
from Tulsa, Oklahoma, was there.
Mr. Burton. Bob McKegney?
Mr. Huff. McKechney.
Mr. Burton. McKechney?
Mr. Huff. Yes, sir. Agent Gerry Montanari from Boston, Joe
Usher from Miami.
Mr. Burton. FBI agent?
Mr. Huff. Yes. And maybe Tom Diehl from Miami.
Mr. Burton. Those are the four that you recall? Anybody
else?
Mr. Huff. I think there were FBI supervisors from Boston
and I don't recall their names.
Mr. Burton. Can you check and give that to us for the
record. John Morris maybe?
Mr. Huff. I don't believe it was Morris. It was their Agent
Hannigan. Maybe an Agent Hannigan sticks with me.
Mr. Burton. Was it a state trooper Hannigan?
Mr. Huff. No, sir. Then there were two Department of
Justice people from Washington.
Mr. Burton. Do you know who they were? Do you have a record
some place that you can get those to us and get those names for
us?
Mr. Huff. I am sorry to say I don't. I am certain the FBI
has a record somewhere. And I do have a record which, as far as
our case file, it was the FBI agenda to the meeting.
Mr. Burton. If you could check on that and I'll tell you
why. Because we have subpoenaed documents and, as you know, we
had to move. We requested documents. We threatened a subpoena
but we requested documents and we were even at one time in the
possibility of holding the president in contempt on that
executive privilege issue. We did get documents but there are
still documents we just don't have. If you have any additional
information that would be helpful to us, we would appreciate
it.
Mr. Huff. I'll research it and I'll make contact with other
participants at the meeting.
Mr. Burton. We have specifically asked for this information
on the 1982 meeting and they have stonewalled us. I would just
like to say to the Assistant U.S. Attorneys who are here if you
could pass on to your compatriots at the Justice Department
that this isn't going to go away. We would really appreciate it
if they would give those to us.
It would be very helpful because we are going to continue
to plug on either through the Judiciary Committee or our
committee or the Senate because we've got a lot of people that
are now interested in this. It would be a lot easier if they
would just give us that information whether than force us to
keep fighting for it. It's not going to do any good. We're
going to keep pounding on this until we get it so if you could
help us with that, we would appreciate it.
The four investigators that were looking at the Callahan
murder in Miami. Tell us just real quickly about their attitude
toward the lack of cooperation or cooperation that we're
getting?
Mr. Huff. Detective Shelton Merit was a primary
investigator at first. He put his heart and soul into it and
felt that he was being followed by FBI people. He felt that he
was really kind of in jeopardy. Ultimately ended up going
through a divorce and getting transferred out.
Mr. Burton. The pressure on him was great like yourself.
Mr. Huff. Yes, sir.
Mr. Burton. Before we turn it over to Mr. Wilson, is there
anything you think ought to be added to the record that we
haven't asked you questions about real quickly? You think we
covered it pretty well?
Why don't you take the mic then, Mr. Wilson.
Mr. Wilson. I'll be very brief. Mr. Huff, I wanted to ask
you some questions about two documents. We got them last night
and I reviewed them very late. Mr. Tierney referred to one and
I think somebody is going to bring this down to you. It's an
investigative report from the Connecticut State Police. It's
dated July 8, 1982. It was prepared by Trooper Toomey. This is
the document that Mr. Toomey referred to.
Mr. Huff. Yes, sir.
Mr. Wilson. This can be included in the record.
Mr. Burton. Without objection.
Mr. Wilson. The final full paragraph on the page, I'll just
read this and I was going to ask you for some comment on a
couple of sentences. ``Mr. O'Sullivan told us he had third-hand
information that Halloran was offered the Wheeler hit and he
[Halloran] discussed it with the Winter Hill Gang and Callahan.
The hit was done by Martarano, Bulger, and Flemmi.
Later in our meeting Mr. O'Sullivan told us Halloran told
him this information. Mr. O'Sullivan said that at the time of
the murder of Roger Wheeler, Sr., Halloran was not in the
gang's inner circle. He also said H. Paul Rico was connected to
the Winter Hill Gang. Now, this document will be included in
the record of the hearing. We just got it last night and it
won't be released today because we haven't had a chance to
redact it for personal information.
I wanted to ask you about the first sentence here. It says
that, ``Mr. O'Sullivan told us he had third-hand information
that Halloran was offered the Wheeler hit.'' Now, that doesn't
appear to be accurate. Is this inaccurate information?
Mr. Huff. I believe that line may be inaccurate. I mean,
O'Sullivan talked of his direct exchange between Halloran and
he.
Mr. Wilson. This is what I am driving at. Did he first try
and put you off this trial by saying that he didn't have the
direct information?
Mr. Huff. I don't recall that, Mr. Wilson, no.
Mr. Wilson. But you don't recall one way or the other?
Mr. Huff. No, but I do feel like he was trying to put us
off the trial and more to the fact of him talking about how
unreliable Halloran was and how it was all uncorroborated.
Mr. Wilson. OK. But you don't have any reason to disagree
with Mr. Toomey's report here that Mr. O'Sullivan did say it
was initially third-hand information?
Mr. Huff. No. I didn't quite understand that. I am OK with
Toomey's report.
Mr. Wilson. Fair enough. Now, the final sentence says that
he, that would be Mr. O'Sullivan, said that H. Paul Rico was
connected to the Winter Hill Gang. Do you have a recollection
of that?
Mr. Huff. Yes, sir.
Mr. Wilson. Can you tell us everything you can tell us
about that one observation?
Mr. Huff. I recall his initial words were that Rico
caroused with the Winter Hill Gang guys. He played cards and
pool with them, drank with them. He said this was in the
timeframe when some of the criminal activities that some of the
Winter Hill Gang Members were committing were not under a
Federal statute. Everybody felt that it was OK. The activities
that he was talking about were murder so everybody is looking
the other way because there's no Federal law against murder so
Rico can hang out with these guys. That was a big point of
conversation for us after we left.
Mr. Wilson. And Mr. O'Sullivan had no doubt about this
statement that he made?
Mr. Huff. It seemed very matter of fact, very specific. I
mean, it was so specific and I was so alarmed by it that I put
it in my--I listed them in my report on all the information
that I had gathered about people associated with the Winter
Hill Gang. I don't know if it was right or not but I was naive
and shocked. I came back and did a 20-some-page report and I
listed him as an associate of the Winter Hill Gang.
Mr. Wilson. Let me cut you off here because that is the
last thing I am going to ask you about. Another document has
just been put in front of you.
Mr. Libby. This can be included in the record as well, Mr.
Chairman.
Mr. Burton. Without objection.
Mr. Wilson. If you could take a quick look, the document I
am looking at is what appears to be a Tulsa Police Department.
It appears to be prepared by yourself. It's in conjunction with
the Roger Wheeler Homicide. I wanted to ask you two questions.
If you go to the third page of the document, at the bottom
there's a handwritten number 1129.
Mr. Huff. Yes, sir.
Mr. Wilson. We have the name John Connelly in the middle of
the page.
Mr. Huff. Yes, sir.
Mr. Wilson. Now, you prepared this report on May 27, 1981.
Is that correct?
Mr. Huff. Well, I prepared this report--I believe on the
last page it's probably going to tell you--on August 20, 1982.
The murder happened May 27, 1981 which is just listed in the
heading.
Mr. Wilson. So this was prepared after your meeting with
Mr. O'Sullivan?
Mr. Huff. Yes, sir.
Mr. Wilson. It's obviously a little bit surprising to us
that in 1982 you would prepare a summary and the title at the
top is Winter Hill Gang and Associates and you would include
John Connelly. Is there anything more you can tell us than what
you just did tell us about what Mr. O'Sullivan said that led
you to put John Connelly on this list?
Mr. Huff. This was investigative information that we
obtained from sources in Massachusetts. A lot of this is just
the investigative reports, not conclusions. I put in here that
we received unsubstantiated information about a home purchase
from James Bulger on John Connelly. He's currently an FBI agent
working in organized crime in Boston, Massachusetts.
Mr. Wilson. So you in Oklahoma were able to come up with
this information based on one trip to Boston or maybe a couple
of trips?
Mr. Huff. We made trips to Boston. We felt we had a good
contact with the state police. We felt that this conversation
with O'Sullivan put us to the point of--Mr. O'Sullivan seemed
to appear to accept that Bulger and Connelly had been seen
together. In the context of that conversation was that they had
been seen together in more of a social setting than in a work
related setting.
Would I put this in a report today with 27 years experience
as a policeman, 22 of it working homicide? I don't think I
would put this in a report today, but that day after we came
back from that trip, you just can't imagine how disenchanted I
was with what we learned. Maybe it was frustration that I put
it in this report.
Mr. Wilson. Let me just followup with one last question on
the page that is marked at the bottom 1140. There is an entry
for Rico, H. Paul. This was put in this report for the same
reason, for the information you obtained from people during you
investigation. Correct?
Mr. Huff. Yes, sir. This is as a result of that meeting
with Mr. O'Sullivan.
Mr. Burton. I believe Mr. Tierney has one.
Mr. Tierney. Just one. Maybe I didn't hear you but in your
page 1129, the third page of that report, where you are talking
about John Connelly, you have a sentence in here that says,
``Subject also allegedly socializes with James Bulger and Steve
Flemmi.''
Under Mr. Rico's comments on 1140 you say that Jerry
O'Sullivan told you that Rico socialized at one time with the
Winter Hill Gang. You don't say that necessarily under Connelly
but is that where you got the information that you put in this
report that Connelly allegedly socialized with James Bulger and
Steve Flemmi? Did you get that from O'Sullivan?
Mr. Huff. Well, that came in exchanging information between
the state trooper and O'Sullivan. The state trooper seemed to
have some specifics about these contacts of seeing Connelly and
these guys together.
Mr. Tierney. Do you know who the state trooper was?
Mr. Huff. I believe it was Trooper Foley.
Mr. Tierney. Trooper Foley mentioned to the group of you
that were at that meeting that Connelly had some social
contact?
Mr. Huff. Well, had been seen with them more in a social
setting. That's the way we took it. That's the way my partner
took it.
Mr. Tierney. Did O'Sullivan have any comment to make about
that?
Mr. Huff. He down played, avoided, changed the subject.
Mr. Tierney. He didn't respond to it directly?
Mr. Huff. No, not directly, sir, that I recall.
Mr. Tierney. He didn't ask any questions about it or
explored it any deeper?
Mr. Huff. Definitely didn't look into it deeper.
On several occasions and that was the context in which the
conversation appeared to me. I don't remember any specifics
about any specific location or activity, what they were doing,
but I felt it was a social meeting.
Mr. Tierney. Well, I want to thank you.
Mr. Delahunt. Mr. Chairman, if I may.
Mr. Burton. Mr. Delahunt.
Mr. Delahunt. If you could indulge me for two final
questions.
Mr. Burton. OK, Mr. Delahunt.
Mr. Delahunt. In the report by the Connecticut State
Police, there is a reference there to Halloran seeking to get
into the Federal witness protection program. It further goes on
that Mr. O'Sullivan would not get him in because the
information given by Halloran was not corroborated. Did at
anytime the subject come up in your conversations with Mr.
O'Sullivan? If it did, did he explain to you the basis for the
request by Mr. Halloran?
Mr. Huff. He said Halloran had a lot of information on
hits. I think Halloran was--it was my understanding that
Halloran was fearful of going back out on the street. I think
O'Sullivan had kind of expounded upon that people knew Halloran
was a snitch.
Mr. Delahunt. So Mr. O'Sullivan indicated to you that there
was an awareness that Halloran was, in fact, an informant, a
snitch?
Mr. Huff. Yes, sir.
Mr. Delahunt. Did he indicate to you that Halloran
expressed fear for his life, if you can remember?
Mr. Huff. Well, in the context I think Halloran was wanting
in the witness protection program because of fear for his life.
He knew he was giving up a lot and he knew he couldn't survive.
That was what I understood that as, Mr. Delahunt.
Mr. Delahunt. Are you aware that several hours before he
was murdered there was a special agent, I think by the name of
Grummage, that had a conversation with Mr. Halloran?
Mr. Huff. I believe that was agent Bruntick. I was aware
that there was a phone conversation, I believe, between
Bruntick and he.
Mr. Delahunt. Did you ever have a conversation with
Bruntick relative to Halloran?
Mr. Huff. I don't recall if Bruntick ever came to Tulsa or
not. I might have run into him out here in Massachusetts. But I
think when I learned in detail of that conversation, or learned
about it, I think Mr. Bruntick was already dead. He was
deceased.
Mr. Delahunt. Are you familiar with, or did you become
familiar with Assistant Special Agent in charge by the name of
Fitzpatrick?
Mr. Huff. Yes, sir.
Mr. Delahunt. Have you had an opportunity to have
conversations with Mr. Fitzpatrick?
Mr. Huff. Yes, sir.
Mr. Delahunt. Did he indicate to you that he advocated in
behalf of Mr. Halloran in terms of participating in the witness
protection program?
Mr. Huff. I tell you, when I got to know Bob Fitzpatrick
was during the Wolf hearings. I felt that Mr. Fitzpatrick was
being truthful to me. Yet, because of those hearings and
uncertain if I was going to be part of those hearings or
whatever, I really tried to avoid in detail a lot of
conversation with Mr. Fitzpatrick about this because I didn't
want it to jeopardize, you know, any potential testimony that
he or I may have.
Mr. Delahunt. Let me pose it a different way. Were you
aware of the fact that Mr. Fitzpatrick felt so strongly about
the need to place Halloran in the witness protection program
that he went over Mr. O'Sullivan's head and sought the
assistance of the then U.S. Attorney William Well?
Mr. Huff. Yes, sir. I became aware of that.
Mr. Delahunt. You became aware of that?
Mr. Huff. Yes, sir.
Mr. Delahunt. And that obviously bore no fruit.
Mr. Huff. I think Fitzpatrick was trying to do the right
thing between a rock and a hard place there.
Mr. Delahunt. In other words, Assistant Special Agent in
charge Fitzpatrick felt that there was a legitimate concern in
terms of the danger that was present for Mr. Halloran. Is that
right?
Mr. Huff. I believe so.
Mr. Delahunt. I guess he was right. Wasn't he, Mr. Huff?
Mr. Huff. I believe he was right.
Mr. Delahunt. I thank the chairman.
Mr. Burton. I want to thank you both very much. I think on
behalf of the whole committee we want to thank you for your
testimony. Mr. Wheeler, once again, thank you for coming here
and giving us a human side to the problems that your family
faced. Mr. Huff, thank you very much for your diligence over
these past 20 some years in pursuing this. Hopefully it will
come to fruition. We are going to continue to try to assist you
in getting this case resolved regarding Mr. Rico so we will
work with you.
Mr. Huff. Thank you.
Mr. Burton. What I would like to do, I don't hear any
stomachs growling up here but what I would like to do because
we have two more witnesses coming up very quickly and we have
extensive questioning from Mr. O'Sullivan and Mr. Markham, I
would like to take about a 10-minute break and try to get back
here right at 12:30 to bring the next panel up.
With that, we stand in recess until 12:30.
[Recess.]
Mr. Burton. We will start off before we swear in the
witness and say that we want to make absolutely sure that all
of our witnesses are aware of their constitutional rights and
prerogatives and that if they have any concern about testimony,
that we understand if they exercise their rights.
With that, Mr. O'Sullivan, would you stand to be sworn,
please?
[Witness sworn.]
Mr. Burton. Have a seat. Mr. O'Sullivan, do you have an
opening statement you would like to make?
Mr. O'Sullivan. I do, Mr. Chairman.
Mr. Burton. OK.
Mr. O'Sullivan. I was about to say Your Honor.
Mr. Burton. The only people I make say Your Honor are my
kids and my family.
STATEMENT OF JEREMIAH O'SULLIVAN, FORMER NEW ENGLAND ORGANIZED
CRIME STRIKE FORCE CHIEF ATTORNEY
Mr. O'Sullivan. This is the courtroom where the Winter Race
Fix Case took place. It's all come back in a very different
way.
Mr. Chairman and members of the committee, I am pleased
that this committee has invited me to testify at this hearing
regarding the FBI's use of cooperating witnesses and
confidential informants in New England. As I believe the
committee knows, although this topic has been the subject of
public interest for some time. I have not previously had the
opportunity to comment publicly on it.
In early 1998, shortly before my scheduled appearance at
the hearings then being held by U.S. District Judge Mark Wolf,
I suffered a serious heart attack and two strokes which
precluded my testimony then. Although I have not fully
recuperated and have not returned to the practice of law, I
welcome this opportunity to be of assistance to this committee,
but I ask your indulgence if I should need to pause and reflect
in order to articulate my answers to your questions.
I had the privilege of serving in the U.S. Department of
Justice as a Federal prosecutor for approximately 16 years from
1973 through 1989. During that time, I held positions as a
Special Attorney with the New England Organized Crime Strike
Force, as an Assistant U.S. Attorney, as the Chief Attorney of
the New England Organized Crime Strike Force, and briefly as
the U.S. Attorney, all in Boston.
Much of the focus of my activities was on the prosecution
of organized crime both in Boston and throughout New England. I
was personally responsible for and involved in the successful
prosecution of Howard Winter and his criminal organization in
what has come to be known as the ``Race Fix Case'' in 1979.
I was also personally responsible for and involved in the
successful prosecution of Gennaro Angiulo and the Boston branch
of the Patriarca Family of La Cosa Nostra in 1986. These cases
crippled organized crime in the Boston area. Organized crime
became a primary target of the Justice Department in the early
1960's under the guidance of Attorney General Robert Kennedy
for good reason: it is an insidious force of evil in our
society.
Unchecked, it is like a cancer, invisible, but spreading
and deadly, affecting the lives of many innocent people. By its
nature, it is secretive and operates by instilling fear in its
victims and participants alike. One way to prosecute such crime
effectively is through the use of inside information from
informants and immunized witnesses. They are, to use an apt
cliche, a ``necessary evil.''
During my tenure as a Federal prosecutor, I believed--and I
believed it to be the view of the Department of Justice--that
it was necessary and in the public interest for the government
to use informants who, for their own reasons, wanted to provide
information about criminal activity of others to help the
government build cases.
However, I also believed that the goal in such situations
was to build important cases that otherwise could not be
brought. The goal was not to protect or aid the informants, and
my view was that any informant who engaged in other criminal
activity was fair game for prosecution and should be pursued
and prosecuted just like any other criminal, absent a formal
determination by the Department of Justice in Washington that a
grant of immunity was in the public interest. This was the
basis on which I conducted my activities as a Federal
prosecutor, and I did in fact personally prosecute informants.
Much of the public focus on government's handling of
informants over the last few years has been on the FBI's
dealings with James Bulger and Stephen Flemmi. I welcome this
opportunity to state unequivocally that I never authorized,
suggested or supported any grant of immunity from prosecution
or other protection for Bulger and Flemmi. To the contrary, I
was involved in repeated endeavors to build criminal cases
against them, despite knowledge of their work as FBI
informants.
In the 1970's, Bulger and Flemmi were affiliated with
Howard Winter's vicious gang, which was the subject of the
indictment in the ``Race Fix Case.'' The key witness in that
case was a gangster-turned-government-witness who had a long
record of criminal conduct.
Because of potential issues with his credibility, the
indictment was focused on key members of the Winter gang
against whom the government had developed independent
corroborating evidence. Bulger and Flemmi were not the central
figures, and independent corroborating evidence did not exist
against them. Thus, although they were named as unindicted co-
conspirators, they were not charged as defendants in the
indictment.
Before the indictment was returned, FBI agents approached
me, told me that Bulger and Flemmi were informants, and asked
me not to indict them on that basis. I told the agents that I
had already determined not to indict them based on lack of
corroborative evidence.
In response to the agents' query whether I objected to
their telling Bulger and Flemmi that the agents had intervened
and saved them from indictment, I told the agents that I did
not care what they told Bulger and Flemmi about my decision as
they were the agents' informants, not mine. I assume, based on
the public record, that the agents proceeded to take credit
with Bulger and Flemmi for preventing their indictment.
That, however, is not the case. One need only review the
trial transcript of the Race Fix Case to note the absence of
evidence--telephone toll records, visual surveillance, or
anything else--corroborating for the jury the cooperating
witness' assertion that Bulger and Flemmi were part of the
race-fixing scheme.
More than 20 years after the fact, in light of Bulger and
Flemmi's recent notoriety, it is easy to forget that Howard
Winter was the focus of the case. The gang was named after him.
Had I believed, based on my prosecutorial experience, that
Bulger and Flemmi could have been named as defendants without
undermining the overall likelihood of success of the case, I
would have recommended their indictment.
Indeed, approximately a year later, I was approached by the
Massachusetts State Police with a request for assistance in
obtaining a wiretap on a garage on Lancaster Street where
Bulger and Flemmi were believed to discuss criminal activity.
The State Police declined to work with the FBI, and, after
unsuccessfully approaching other Federal law enforcement
agencies, I discussed the matter with the Suffolk County
District Attorney's office and proceeded to advise and assist
that office in obtaining the wiretap order.
After the wiretap was compromised by a leak to the
subjects, both the Massachusetts State Police and I were upset.
The source of the leak has publicly been identified in other
proceedings. Flemmi testified before Judge Wolf in 1998 that
the tip came from an FBI agent who had consulted me. That is
categorically untrue. Judge Wolf's opinion, which questions the
accuracy of Flemmi's assertion about me, is correct in doing
so.
In the aftermath of the Lancaster Street garage matter, a
senior FBI official contacted me and vociferously upbraided me
for assisting the State Police in an investigation regarding an
FBI informant. In late December 1980, that official, who was
evaluating whether Bulger should be kept as an FBI informant,
contacted me to inquire about Bulger's value in a pending
investigation.
My response was that the FBI would have to make that
evaluation regarding one of its informants. Judge Wolf's
opinion quotes from a memorandum written by that FBI official,
recording my response as purportedly being that the information
from Bulger was ``crucial,'' and that there was no ``improper
conduct'' by the FBI in continuing the relationship
``regardless of his current activities.''
Judge Wolf notes that I was not sent a copy of this
memorandum, and the Judge raises the question whether the
memorandum is an example of self-serving ``Bureau-speak''
``written in meaningful measure for the protection of the
FBI.''
Judge Wolf's question is right on the mark. My view was
that it was within the FBI's province to evaluate its
informants and that, assuming that the FBI followed its proper
procedures and guidelines, its use of Bulger would not have
been improper. I certainly did not give the FBI official any
hint or suggestion that Bulger--and Flemmi--should not be
vigorously pursued and prosecuted for any crimes they
committed.
Indeed, on two subsequent occasions, other FBI agents
developed plans to surreptitiously record potentially
incriminating conversations with Bulger and Flemmi. When those
agents consulted me, on each occasion I supported the effort.
However, on each occasion, the effort failed, apparently
because certain other FBI agents alerted Bulger and Flemmi.
Since these matters came to public attention in
approximately 1998, I have been the subject of testimony, press
comment, and mention in books. Some of this has been wildly
inaccurate, reflecting, for example, a level of journalism that
has failed even to get my marital status correct.
Some of this has been simply untrue, as was, for example,
recent testimony of a now-disgraced FBI agent that I did not
indict Bulger and Flemmi in the Race Fix Case in response to
FBI agents' request to spare their informants. I welcome this
opportunity to set the record straight.
I state categorically and unequivocally that, although I
was made aware of the status of Bulger and Flemmi as FBI
informants in the late 1970's, I never authorized them to
commit any crimes and have no knowledge of any such
authorization.
Nor did I ever give them any type of immunity from
prosecution. Nor did I ever take any steps to protect them from
investigation or prosecution. As a prosecutor, my goal was to
prosecute criminal activity vigorously, but always following
the highest ethical and moral standards.
I firmly believe that, to continue to be successful in the
war on organized crime that is so important to our Nation, the
government must rely on the use of informants as one of the
weapons in its arsenal. However, the concept is that the
informant is a tool to be used by law enforcement, not that law
enforcement is a tool to be used by the informant.
Based on publicly reported information of which I am aware,
the system appears to have gone awry with respect to the
handling by some FBI agents of some informants in the 1970's
and 1980's, and steps to ensure that this does not occur again
are warranted. Thank you.
I want to followup briefly on some of the questioning of
Mr. Huff. Representative Burton's invitation letter mentioned
only the Race Fix Case so that a July 1982 meeting with
Detective Huff and others is not addressed in my opening
statement.
I would like to address briefly the July 1982 meeting. How
did this meeting come about first? This meeting came about at
the request of the Massachusetts State Police that I meet with
Detective from Oklahoma and from Connecticut State Police and
describe to them the structure of the Winter Hill Gang and it's
operations in the Boston area.
What occurred at this meeting? This meeting, as indicated
by Detective Huff, with my description of the Winter Gang and
its structure and their relationship to other people, i.e.,
Agent Rico.
Third question. Why was Brian Halloran not put in the
witness protection program, which I think is the substance of a
lot of the questions? I thought I told Detective Huff this but
the answer is very succinct and very brief. At the time that
Mr. Halloran was cooperating with the FBI, he was under charges
of murder in the Suffolk County, Massachusetts.
It would have been contrary to Justice Department Policy to
sponsor somebody against whom there was a murder case pending
to sponsor him in the witness protection program. However, I
did approach Suffolk County District Attorney Newman Flannigan
and asked him whether, in fact, he would consider removing the
murder charges or in some way dismissing the murder charges if
Mr. Halloran would cooperate with him.
Mr. Flannigan said he would think about it and he turned me
over to Thomas Munday who was in charge of his homicide unit
and Sergeant Hudson, retired and now Detective Lt. Hudson of
the Boston Police Department, who was the chief homicide
investigator for Suffolk County District Attorney's Office.
Assistant District Attorney Munday and Detective Hudson
took Mr. Halloran to various murder sites that they thought
that Mr. Halloran might have information and that Mr. Halloran
indicated that he had information regarding murders committed
by the Winter Gang. I can remember one specifically. A murder
site in South Boston. I think the victim was Louis Little and
the bar outside of which the murder occurred was Triple O's.
Detective Hudson and Assistant District Attorney Munday
told me that Mr. Halloran's story about how the murders went
down and Assistant District Attorney Munday told me that Mr.
Halloran's story about how the murder went down and how other
murders went down was totally inconsistent with the physical
evidence that they had developed regarding the murders. So they
told me they would not recommend to Mr. Flannigan that the
murder case against Mr. Halloran be dismissed.
As a matter of fact, they recommended to me that I get away
from Mr. Halloran because they thought Mr. Halloran was lying
to them. That's when I told Detective Huff that I didn't
believe Mr. Halloran because Mr. Munday and Detective Sergeant,
later Lt. Hudson, told me that they didn't believe him and that
was the only basis on which I made the statement to Mr. Huff.
Thank you for your attention.
[The prepared statement of Mr. O'Sullivan follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Burton. Did you ever talk to Mr. Halloran directly?
Mr. O'Sullivan. Yes.
Mr. Burton. Did he tell you that he thought his life was in
jeopardy?
Mr. O'Sullivan. No, he never said that but----
Mr. Burton. Why did he want to get in the witness
protection program?
Mr. O'Sullivan. He told the agency he thought his life
might be in jeopardy and the agents told me that but Halloran
never said that to me.
Mr. Burton. But you were aware that he thought his life was
in danger?
Mr. O'Sullivan. I was.
Mr. Burton. And you felt that even though his life was in
danger, according to him, that he should not be in any way
protected because of this case against him?
Mr. O'Sullivan. I thought he should be protected. I
recommended the FBI give him some money and they put him in a
safe house as they did for a period of time down on Cape Cod.
He returned to the Boston area from that safe house. They had
given him a cottage on the cape, as I remember it, and that's
where he was supposed to stay but he returned to the Boston
area on his own.
Mr. Burton. On his own?
Mr. O'Sullivan. On his own.
Mr. Burton. How long after the request was made of you that
he be put in a witness protection program that he was murdered?
Mr. O'Sullivan. I have no idea. I have a chronology here.
He was murdered in May 1982.
Mr. Burton. When were you asked to put him in the witness
protection program?
Mr. O'Sullivan. I do not recall, Congressman.
Mr. Burton. You don't recall when the FBI talked to you
about him?
Mr. O'Sullivan. Sometime shortly before his murder, at
least.
Mr. Burton. Do you have a rough idea of the timeframe?
Mr. O'Sullivan. I would say it was probably 2 or 3 months
before his murder.
Mr. Burton. Two or 3 months? But you did tell the FBI that
you thought he ought to be put in a safe house some place but
not in the witness protection program?
Mr. O'Sullivan. Yes.
Mr. Burton. Did you ever suspect that Bulger and Flemmi
were committing murders?
Mr. O'Sullivan. Yes.
Mr. Burton. When did you first learn that Bulger and Flemmi
were informants? I think you touched on that a minute ago.
Mr. O'Sullivan. I think I said in my statement when
Supervisor Morris and Agent Connelly approached me when I was
considering whether to indict in the Race Fix Trial. Shortly
before the Race Fix indictment was returned was when I first
thought they were informants.
Mr. Burton. But you said you didn't have enough evidence to
indict at that time.
Mr. O'Sullivan. I didn't have enough corroborating
evidence.
Mr. Burton. But there was evidence that they might have
been participants?
Mr. O'Sullivan. That's what Mr. Ciulla said, yes.
Mr. Burton. When you say you didn't have enough
corroborative evidence, can you explain how much you needed and
what you did have?
Mr. O'Sullivan. Sure. Let me back up a second, Congressman.
The Race Fix Case was about attacking the Winter criminal
organization which was head by Howie Winter. My primary purpose
in bringing the case was to convict Mr. Winter and remove him
from the scene. I didn't want to do anything which would impair
the chances of conviction to Mr. Winter.
The evidence against all the other defendants was there was
at least telephone call records that came from hotel rooms
where Mr. Ciulla was out of state fixing races, where he would
call, i.e., telephone calls to Joe McDonald's house. And there
was testimony in one case, the secretary for the Demetri
brothers who identified Howie Winter and Martarano as having
met with the Demetris. There was at least some total record of
evidence and some witness testimony regarding public
defendants.
Mr. Burton. Well, the other defendants we're talking about
are Bulger and Flemmi. There were 21 total defendants. You said
you did not have enough corroborating evidence to indict Bulger
and Flemmi. What evidence did you have on them? Did you have
any evidence at all?
Mr. O'Sullivan. All I had was Mr. Ciulla's testimony.
Mr. Burton. And you didn't think that was sufficient?
Mr. O'Sullivan. I did not.
Mr. Burton. But, at the same time, did you know Bulger and
Flemmi were involved in murders?
Mr. O'Sullivan. Yes.
Mr. Burton. So you knew they were involved in murders but
you didn't feel like in this particular case, the Race-Fixing
Case, you had enough corroborating evidence to include them in
the indictment?
Mr. O'Sullivan. That's exactly correct.
Mr. Burton. Let me ask my chief counsel to jump in here
real quickly.
Mr. Tierney. Mr. O'Sullivan, do you know whether any of the
21 defendants were indicated with only the testimony of Anthony
Ciulla?
Mr. O'Sullivan. I think there was one.
Mr. Tierney. And do you recall who that was?
Mr. O'Sullivan. I don't. It was a member of the Winter
Gang. I just don't remember.
Mr. Tierney. Would it have been James Simms?
Mr. O'Sullivan. That sounds right. It could be.
Mr. Tierney. Were you able to review this week the
prosecution memo? We had asked the Department of Justice to
make a copy available to you one of the documents the President
claimed executive privilege of or the prosecution memo for the
Race Fix Case?
Mr. O'Sullivan. I did not.
Mr. Tierney. Did they make it available to you?
Mr. O'Sullivan. No.
Mr. Burton. Let me ask you this question, Mr. O'Sullivan.
Mr. O'Sullivan. Yes, Congressman.
Mr. Burton. You said he was indicted because of the
testimony of this individual.
Mr. O'Sullivan. By he you are referring to Mr. Simms?
Mr. Burton. Yes. Did the same person make the allegations
against Mr. Flemmi and Mr. Bulger?
Mr. O'Sullivan. Yes, Congressman.
Mr. Burton. Then why did you indict one and not the other
two? I mean, the only evidence you had was the testimony of
that individual and you did indict this individual. Why did you
not indict the other two based upon his testimony?
Mr. O'Sullivan. Because, Congressman, as I said in my
statement, the case was about the Winter Gang, the gang headed
by Howard Winter, and I wanted to take out as much of the
leadership of that gang as I could. I thought if I left anybody
in the leadership position standing, i.e., Mr. Simms, that the
gang would continue.
Mr. Burton. Let me just followup. I want to be sure I've
got this straight. You knew Bulger and Flemmi were murders.
Right?
Mr. O'Sullivan. I knew that all the Winter Gang were
murders.
Mr. Burton. You knew Bulger and Flemmi were murders?
Mr. O'Sullivan. Yes, sir.
Mr. Burton. And the testimony that indicted Mr. Simms came
from the same individual that testified against Bulger and
Flemmi?
Mr. O'Sullivan. That's correct.
Mr. Burton. And yet you chose not to indict them. It's
alluding me why would you--you had three people that he
mentioned, and probably others. You indicted one that was part
of the Winter Hill Gang, but you did not indict Bulger and
Flemmi based upon the same testimony and yet you knew they were
murders. I can't figure out why you let them off the hook.
Mr. O'Sullivan. Congressman, a little history. The Winter
Gang was composed of various disparate elements of other gangs.
The core of the Winter Gang were the Winter Hill Gang headed by
Howard Winter and his cohorts. That was the glue that held the
Winter Gang together. My approach to the prosecution was to
convict Howard Winter and any other member that I thought would
continue the gang going forward. That included Mr. Simms.
I also thought, backing up a step, Congressman, that given
the fact there were 21 defendants and given the fact that Mr.
Simms had a history of being a fugitive from justice, that he
wouldn't be around when the trial started so that was the
second reason I indicted Mr. Simms because I didn't think he
would be ready for trial and he wasn't.
Mr. Delahunt. Will the chairman yield for a moment?
Mr. Burton. Let me ask one more question and then I'll
yield to District Attorney because it's his time and then he
can yield to you.
I mean, maybe I am just not getting it but you were afraid
that he might flee and he was an integral part of the Winter
Hill Gang.
Mr. O'Sullivan. Yes, I wanted him to flee. I didn't want 21
defendants standing in the courtroom, Congressman.
Mr. Burton. I understand.
Mr. O'Sullivan. Even though this is a big courtroom.
Mr. Burton. But you were afraid he might flee? If you
indicted Bulger and Flemmi, who you knew were murders, what
made you think that they wouldn't flee?
Mr. O'Sullivan. They didn't have any history that they
would be fugitive because I just didn't see them as being
fugitives.
Mr. Burton. Wait a minute. I've got to get this straight,
Mr. O'Sullivan. You knew they were murderers.
Mr. O'Sullivan. I knew that everybody I was indicting was a
murderer.
Mr. Burton. You knew they were murderers but you thought
they might not--there was no history of them fleeing if they
were indicted so you weren't worried about them leaving.
Mr. O'Sullivan. That's correct.
Mr. Burton. Mr. Tierney.
Mr. Tierney. You had 20 defendants already. Mr. Simms would
make it 21 but you had some objection to going to 23 even if it
meant getting two murderers off the street?
Mr. O'Sullivan. Yes.
Mr. Tierney. Mr. Ciulla, I suspect, was going to say very
clearly that Bulger and Flemmi were both involved with the
race-fixing scheme. Right?
Mr. O'Sullivan. He would say that they were partners and
shared in the proceeds but they didn't have any involvement. He
didn't describe them to have any operational involvement in the
scheme. He never called them. He had no contact with them. Had
no meetings with them. He knew they received some of the
proceeds of the race-fixing scheme. That's all he would testify
to.
Mr. Tierney. At the time that you were finding out what Mr.
Ciulla would testify about Bulger and Flemmi, did you know that
Bulger and Flemmi were informants?
Mr. O'Sullivan. No.
Mr. Tierney. You didn't know it at that time?
Mr. O'Sullivan. No.
Mr. Tierney. Did either Mr. Morris or Mr. Connelly from the
FBI tell you at that time they were informants?
Mr. O'Sullivan. No. The first time I learned they were
informants is when I was considering drawing the indictments of
the race-fixing scheme and they approached it. That was the
first time.
Mr. Tierney. Well, this is pretty much in the same
proximity, right? You were considering the Ciulla case from the
time they approached you?
Mr. O'Sullivan. Yes.
Mr. Tierney. You were considering drawing the indictment on
all 21 of the people that you eventually indicted.
Mr. O'Sullivan. Yes, Congressman.
Mr. Tierney. So you did know at that time that they were
informants?
Mr. O'Sullivan. Yes.
Mr. Tierney. And is that, in fact, the reason that you then
decided not to indict them?
Mr. O'Sullivan. No it's not, Congressman.
Mr. Tierney. What did both John Morris and Agent John
Connelly tell you exactly about Bulger and Flemmi at that time?
Mr. O'Sullivan. I really don't have any specific
recollection of the conversation, Congressman, but they
approached me and they said that they understood that I was
considering indictment of them, among others, and they wanted
to bring to my attention that they were informants. They were
requesting that I not indict them because they were informants.
That's all I remember.
Mr. Tierney. Did you have any concern knowing that Mr.
Ciulla had some evidence against Bulger and Flemmi? Were you at
all concerned that either of them might try to cause him
physical harm or kill him?
Mr. O'Sullivan. Of course. I was concerned about all of the
defendants that they might get to them. Yes.
Mr. Tierney. Did Mr. Ciulla tell you that he was afraid
that they might do that?
Mr. O'Sullivan. I don't think he told me that he was afraid
they would kill him. He was afraid that another member of the
Winter Gang, Joe McDonald, would be his primary fear.
Mr. Tierney. Did every one of the 21 people that you
indicted, every one of them, you had information on them that
each and every one of them was a murderer at one time or
another?
Mr. O'Sullivan. No. A number of the people that were
indicted in the case were indicted in the case in order to make
the case more solid against Winter, i.e., the bookmakers in Las
Vegas, those type of people.
Mr. Tierney. Mr. Delahunt, did you want to proceed?
Mr. Delahunt. Yes. I just want for one moment to clarify. I
thank my colleague for yielding. You are referring to the
Winter Hill Gang.
Mr. O'Sullivan. I am referring, Congressman, to the Winter
Gang. It's different than the Winter Hill Gang.
Mr. Delahunt. I understand that. At the same time would you
agree with me, and you and I have, you know, had professional
relationships through the years, that both Mr. Flemmi and Mr.
Bulger were considered part of the Howie Winter Gang.
Mr. O'Sullivan. Yes. They were partners in the gang.
Mr. Delahunt. They were, as you would suggest--you made
reference to Mr. Simms, Jimmy Simms. In your professional
judgment in terms of the hierarchy of the Winter Gang, it was
clear that Bulger and Flemmi would succeed to be the successors
to Mr. Winter if he should be convicted. Would you say that's a
fair statement, Judge?
Mr. O'Sullivan. It's not a fair statement.
Mr. Delahunt. It is not?
Mr. O'Sullivan. No.
Mr. Delahunt. We have a disagreement on that. Let me
explore a little differently. It was clear that Bulger and
Flemmi had a continuing relationship with Howie Winter.
Mr. O'Sullivan. Yes.
Mr. Delahunt. On a regular basis.
Mr. O'Sullivan. Yes.
Mr. Delahunt. If we had the opportunity to explore
Massachusetts State Police files and FBI reports, we would
discover that they were in constant communication with each
other. Is that correct?
Mr. O'Sullivan. I believe so.
Mr. Delahunt. But you don't want to describe them as the
logical successors to Mr. Winter?
Mr. O'Sullivan. No, Congressman, because the logical
successor to Mr. Winter would be the people that he most
trusted which were the remnants of the Winter Hill Gang, Joe
McDonald, Jimmy Simms, and Sal Sperlinga who was also named by
Mr. Ciulla as somebody who was involved in the Race Fix scheme
who I also did not indict because there was no corroborating
evidence.
Mr. Delahunt. I'll yield back and I'll save my time. I just
wanted to clarify and put in context the relationship between
these parties. They were well known to each other.
Mr. O'Sullivan. Absolutely.
Mr. Tierney. Mr. O'Sullivan, prior to this occasion had you
ever been told before or given the identity of the informant?
Mr. O'Sullivan. Yes.
Mr. Tierney. Was that a regular occurrence?
Mr. O'Sullivan. No, it's not, Congressman.
Mr. Tierney. How frequently would you say you had that type
of information in a previous investigation?
Mr. O'Sullivan. I would suggest it was less than 10.
Mr. Tierney. So it was pretty unusual?
Mr. O'Sullivan. Very unusual.
Mr. Tierney. So were you surprised when Morris and Connelly
approached you and gave you information about Bulger and Flemmi
in this instance?
Mr. O'Sullivan. Surprised that they were informants? Yes, I
was surprised but not surprised that they would approach me
about an informant because Mr. Connelly had done it before.
Mr. Tierney. When you met with Detective Huff, do you
recall a state trooper telling you that there was a real estate
transaction between Connelly and James Bulger?
Mr. O'Sullivan. I don't know.
Mr. Tierney. Do you remember being told at that time that
Connelly had numerous social contacts with Bulger and Flemmi?
Mr. O'Sullivan. I don't.
Mr. Burton. I want to make sure I clarify one thing and
then I'll go to Mr. Shays. When you met with Mr. Huff did you
indicate that there was some social contact between Connelly
and Mr. Bulger and Flemmi?
Mr. O'Sullivan. I did not, Congressman. I don't remember
doing that and I don't think I would have.
Mr. Burton. You didn't indicate that there was a good
relationship there between those two individuals?
Mr. O'Sullivan. I did not, Congressman.
Mr. Burton. How about Rico? Did you indicate that there was
a cozy relationship between Rico and Bulger and Flemmi?
Mr. O'Sullivan. I don't think I did that either.
Mr. Burton. I think Mr. Huff's recollection is a little
different than yours in that meeting. Are you sure about that?
Mr. O'Sullivan. I'm not sure about it but I don't think I
did.
Mr. Burton. Did you know there was a cozy relationship
between them?
Mr. O'Sullivan. Between whom, Congressman?
Mr. Burton. Connelly and Bulger and Flemmi?
Mr. O'Sullivan. I did not.
Mr. Burton. You did not? Did you know their was a cozy
relationship between Rico and Bulger and Flemmi?
Mr. O'Sullivan. I did not.
Mr. Burton. You are sure about that?
Mr. O'Sullivan. I am sure about that.
Mr. Burton. So you wouldn't have said that in a meeting
with Mr. Huff?
Mr. O'Sullivan. I wouldn't have said it in a meeting with
Mr. Huff.
Mr. Burton. Mr. Shays.
Mr. Shays. Mr. Chair, I'm happy just to suspend my time and
let my Massachusetts colleagues ask questions and then come
back.
Mr. Burton. OK.
Mr. Lynch.
Mr. Lynch. Thank you, Mr. Chair. I just want to go back, if
I could, Mr. O'Sullivan. You testified just a short while ago
and I just want to get this straight. I'm trying to write some
of this down. First you testified that all the members of the
Winter Hill Gang were murderers. Is that correct or is that--am
I mishearing you?
Mr. O'Sullivan. I think you are mishearing me. Most of the
members of the Winter Hill Gang were murderers. I would
exclude, for instance, Sal Sperlinga who was a bookmaker. I
believe most of the Winter Hill Gang members were murderers,
yes.
Mr. Lynch. OK. Let's back this up. I'm new at this. How
many members are you saying are in the Winter Hill Gang?
Mr. O'Sullivan. Well, it depends on how you define a gang.
I think the core membership was seven individuals. Then there
was various other people who were associated with the members.
Mr. Lynch. For the committee, could you name who those
individuals are?
Mr. O'Sullivan. Yes.
Mr. Lynch. Or were.
Mr. O'Sullivan. Howard Winter, James Simms, Joe McDonald,
John and Jimmy Martarano, Whitey Bulger, and Stevie Flemmi. Is
that seven?
Mr. Lynch. Seven. That's right. Bulger and Flemmi are
members of the Winter Hill Gang. Let me get this right. You
testified previously that they were involved somehow in the
profit sharing end of this race-fixing scheme. Is that correct?
Mr. O'Sullivan. That's correct, Congressman.
Mr. Lynch. And if I follow this correctly, the race-fixing
scheme relied upon threats and intimidation and bribes. Quite
often threats and intimidation to force these jockeys to
participate in this race-fixing scheme. Am I correct?
Mr. O'Sullivan. That's correct.
Mr. Lynch. OK. So you've got two guys who are known
murderers to you. They are getting profit from this race-fixing
scheme. The race-fixing scheme is using threats and
intimidation. Again, these two fellows are known murderers.
Somehow they are not indictable in this matter. Is that what
you're telling this committee?
Mr. O'Sullivan. That's what I'm telling the committee,
Congressman.
Mr. Tierney. Could you yield for a second?
Mr. Lynch. Sure.
Mr. Tierney. You said a moment ago, Mr. O'Sullivan, you
wanted to take off the street all the potential ascendents to
the leadership of this gang. That's why you indicted Mr. Simms.
Mr. O'Sullivan. That's correct.
Mr. Tierney. Now we have seven members of that gang. You
indicted Winter. Right?
Mr. O'Sullivan. Right.
Mr. Tierney. You indicated Simms, you indicted McDonald,
and the two Martaranos. Then the only ones you didn't indict
were the two remaining people who could ascend into the
leadership, Flemmi and Bulger.
Mr. O'Sullivan. That's true, but my analysis was that the
core of the gang was made up of Winter and the survivors of the
Winter Hill Gang. That was Winter, Simms, McDonald. That was my
analysis. The Martaranos were indicted because I had very good
physical evidence, i.e., a witness who would testify that she
saw them meeting with the Demetri brothers and with Howie
Winter. I had telephone calls to premises they locate.
Mr. Tierney. Am I wrong in saying your first thought was
that you wanted to take them off the street anybody who could
ascend to the leadership?
Mr. O'Sullivan. That's correct.
Mr. Tierney. And then you gave us the names of seven people
that you thought were the top dogs. Right?
Mr. O'Sullivan. That's correct.
Mr. Tierney. So you took five off the street and you let
two. Those two you had no more--you had the same amount of
evidence against them as you had against Simms, one person's
testimony.
Mr. O'Sullivan. That's correct.
Mr. Tierney. Yield back.
Mr. Lynch. Just one more question. Were there any other
persons indicted of this 21 defendants that were indicted
solely for participating in the profit sharing, if you will, of
this illegal enterprise?
Mr. O'Sullivan. I'm not sure I understand your question,
Congressman.
Mr. Lynch. OK. You explained before, Mr. O'Sullivan, that
Bulger and Flemmi did, in fact, benefit from the profit sharing
aspects of this illegal enterprise, this race-fixing scheme.
Somehow that distinguished them from the other 21 who were
more--at least I'm surmising that they were involved in the
operational aspects of this race-fixing scheme.
Mr. O'Sullivan. True.
Mr. Lynch. In that other group, the 21 indicted, were there
any members of that group whose sole involvement was merely--
not merely but solely taking profits from that enterprise?
Mr. O'Sullivan. No, sir. One person wasn't indicted because
he was similar. We had no evidence against him and he was
sharing only in the profits.
Mr. Lynch. But he was indicted?
Mr. O'Sullivan. He was not indicted.
Mr. Lynch. He was not indicted.
I yield. Thank you.
Mr. Tierney. Then is it, Mr. O'Sullivan, that you found out
that Connelly and Rico did have a social relationship with
Whitey Bulger and James Flemmi?
Mr. O'Sullivan. Only from rumors I've heard around the
street over a period of time primarily emanating from DEA but I
can't give you a date or specific time but I've heard rumors
over time.
Mr. Tierney. At any other point in time where you were
prosecuting cases did you ever exercise your prosecutorial
discretion and not bring charges against Bulger and Flemmi?
Mr. O'Sullivan. No, Congressman. As a matter of fact, I
tried to develop cases against them.
Mr. Burton. At that meeting with Mr. Huff that you recall,
Mr. Toomey stayed with police fellows there in Connecticut, I
believe. Correct?
Mr. O'Sullivan. I don't remember who was there. I know
there was a number of people there.
Mr. Burton. I want to make absolutely sure about your
testimony because it's very important. I don't want you to find
later that you misspoke and it might be a problem for you. You
did not say that Rico caroused with the Winter Hill Gang and he
was friendly with them?
Mr. O'Sullivan. I did say he was friendly with them. I did
not say that he caroused with them.
Mr. Burton. Well, he was involved with them. He was
intimately involved with them. Mr. Huff indicated that you were
very emphatic that he was very close and was seen many times
with the Winter Hill Gang?
Mr. O'Sullivan. Yes, that's what I said.
Mr. Burton. And that would be Bulger and Flemmi as well?
Mr. O'Sullivan. Yes, I assume that was the case.
Mr. Burton. So what you're saying now is a little bit
different than what you said earlier in that you didn't recall
saying that?
Mr. O'Sullivan. Well, I just didn't understand. I never
said carousing or that kind of stuff. I had no knowledge that
he was socially involved with them. I had knowledge that he was
in business with them in the sense that he was then the head of
security of the race track that Mr. Callahan owned.
Mr. Burton. We can bring Mr. Huff back up. I want to make
sure that I've got this clear. Mr. Huff said, and we just asked
him about this a minute ago, that you were very emphatic in
saying that Mr. Rico was seen with them a lot at social
gatherings and those things and you were very emphatic about
his closeness to the Winter Hill Gang and Bulger and Flemmi.
Mr. O'Sullivan. I don't have any memory of saying that,
Congressman, but I would not dispute that I did say it.
Mr. Burton. Mr. Meehan.
Mr. Meehan. So Mr. O'Sullivan, you testified in response to
Mr. Tierney's question that you heard on the streets that
Flemmi and Bulger had this relationship with Connelly and Rico.
Is that correct?
Mr. O'Sullivan. That's correct.
Mr. Meehan. What period of time is that? When did you first
become aware, through hearing it on the street?
Mr. O'Sullivan. I don't know, Congressman.
Mr. Meehan. Don't you think as a Federal prosecutor you had
an obligation to followup and find out what that relationship
was all about?
Mr. O'Sullivan. I did followup, Congressman. I did try to
investigate them both. The investigations were blown up by
someone else. I tried with the state police to aid them in the
wiretap at the Lancaster Street Garage. I tried to do a wiretap
on Stevie Flemmi. I tried to get a cooperating Boston police
officer wear a body reporter against Mr. Bulger. In all
situations those efforts came to naught.
Mr. Meehan. OK. Let's go to Lancaster Street Garage
investigation. How did you become aware of the state police
investigation?
Mr. O'Sullivan. Colonel O'Donovan from the state police
approached me and asked me if I would do an investigation of
Mr. Bulger and Flemmi with the state police and I said I would.
Mr. Meehan. Do you remember who headed up that operation
for the state police?
Mr. O'Sullivan. Yes, Colonel O'Donovan and Lt. Robert Long.
Mr. Meehan. Did you discuss the Lancaster Street bugging
operation with Trooper Bob Long of the Massachusetts State
Police?
Mr. O'Sullivan. Yes.
Mr. Meehan. And do you recall Trooper Long telling you that
he thought that Bulger and Flemmi were FBI informants?
Mr. O'Sullivan. Yes.
Mr. Meehan. What did you say in response?
Mr. O'Sullivan. I don't remember. I said let's go ahead and
do the case anyway.
Mr. Meehan. Did it make sense to you?
Mr. O'Sullivan. During the case, yes, it made sense to me.
Mr. Meehan. Did it make sense to you that Bulger and Flemmi
were FBI informants?
Mr. O'Sullivan. I have to believe it since the rumor was
around on the street. A lot of knowledgeable law enforcement
officers were saying it and I believed it.
Mr. Meehan. Did you know by then? In other words, Bob Long
says that, ``Gee, I think that Bulger and Flemmi are FBI
informants.''
Mr. O'Sullivan. Did it make sense to me?
Mr. Meehan. Did you know that they were informants?
Mr. O'Sullivan. Yes. At that point in time the FBI
approached me and told me in the Race Fix Case that they were
informants.
Mr. Meehan. OK. So you knew that they were informants.
Mr. O'Sullivan. Yes.
Mr. Meehan. In that operation isn't it true the state
troopers had collected substantial evidence on Whitey Bulger's
ongoing criminal activities with the mafia?
Mr. O'Sullivan. Yes. That's why I----
Mr. Meehan. This potentially could have been the biggest
organized crime case ever presumably. Would you agree?
Mr. O'Sullivan. I would not.
Mr. Meehan. You wouldn't? A big case, though?
Mr. O'Sullivan. Certainly a big case.
Mr. Meehan. Can you understand why Trooper Bob Long who
certainly had worked with the FBI in other cases like Operation
Lobster was reluctant to work with the Boston FBI?
Mr. O'Sullivan. Absolutely I understood it.
Mr. Meehan. Can you understand his concerns about the FBI
after Bulger had eluded prosecution in the horse race-fixing
case?
Mr. O'Sullivan. That never came up because----
Mr. Meehan. Did he ever bring it up?
Mr. O'Sullivan. He didn't bring it up, no.
Mr. Meehan. Did you ever tell Bob Long that it would be
political suicide for you to recommend that any case be
assisted by a Federal agency other than the FBI?
Mr. O'Sullivan. I think when he approached me with the
Lancaster Street Garage case I may have said that, yes. I don't
have memory of it but that is probably what I did say.
Mr. Meehan. Do you think it would have been political
suicide for you to have recommended that another Federal agency
assist the Massachusetts troopers?
Mr. O'Sullivan. I was using political in a small p sense
meaning administratively it would have caused big problems. I
took the state police and I went to the DEA and I went to the
Secret Service and asked them to participate in an
investigation in Bulger and Flemmi with the state police and
they both refused.
Mr. Meehan. So if you had a sense that it would be
political suicide for you to have recommended that other
Federal agencies be involved, does that tell us anything about
the FBI culture during that period? What does it tell us about
the FBI culture during that period?
Mr. O'Sullivan. It tells us that the FBI if you go against
them, they will try to get you. They will wage war on you. They
will cause major administrative problems for me as a
prosecutor. That's what it tells us.
Mr. Meehan. Well, wouldn't you feel as a prosecutor then,
and a well-respected prosecutor, one that the young prosecutors
coming into the U.S. Attorney's Office looked up to, and given
that awesome responsibility to make sure that Federal law
enforcement is being carried out in an honest manner with
integrity.
Wouldn't you think that you had an obligation then in the
interest of the U.S. Attorney's Office, in the interest of the
administration of justice, to followup with that problems of
the culture, to followup with the notion of it would be
political suicide not to include the FBI in this investigation?
Mr. O'Sullivan. And by following up, Congressman, could you
define it a little more clearly? What does followup mean?
Mr. Meehan. Following up means finding out specifically in
an aggressive way, the same way that you aggressively handled
other cases successfully I might add, prosecutions of organized
crime, to make sure that there wasn't any corruption or
misdealings with organized crime figures and witnesses within
the Justice Department and potentially within the FBI.
Mr. O'Sullivan. I did that, Congressman.
Mr. Meehan. Unsuccessfully.
Mr. O'Sullivan. Unsuccessfully.
Mr. Meehan. You apparently told Bob Long that maybe the
microphone surveillance could have been compromised by a
civilian installer. Is that true?
Mr. O'Sullivan. It is.
Mr. Meehan. And you even knew the name of the installer?
Mr. O'Sullivan. That's right. This is a person who had done
some wiretap sweeps for the Patriarca family so I was concerned
about him.
Mr. Meehan. And did that cause Bob Long to want to
investigate the installer and go in that direction rather than
another direction?
Mr. O'Sullivan. I have no idea.
Mr. Meehan. After the Lancaster Street failed, do you think
it did so because it was compromised by the FBI?
Mr. O'Sullivan. Yes.
Mr. Meehan. You told the FBI and the Office of Professional
Responsibility investigators that you came to know of a series
of leaks about the investigation that was attributable to John
Morris. Is that true?
Mr. O'Sullivan. I'm not quite sure what I meant by that
when I said it, Congressman. I just don't have a memory of when
I said that what I meant.
Mr. Meehan. Were you concerned then at that time about the
quality of the investigation?
Mr. O'Sullivan. I'm not quite sure what you mean.
Mr. Meehan. How would you characterize leaks?
Mr. O'Sullivan. How would I characterize leaks?
Mr. Meehan. The leaks in this case, which was obviously a
critical case that potentially could have been a major case
against Bulger and Flemmi. How would you characterize the
leaks? Were they favorable to anyone else in the investigation?
Mr. O'Sullivan. They were favorable to Bulger and Flemmi
clearly.
Mr. Burton. Let me followup. I might have missed what you
said just a moment ago but did you indicate that the FBI said--
you can put it in your own words--that if you caused them
problems, that they wouldn't cooperate with you in an
investigation or something?
Mr. O'Sullivan. Yes.
Mr. Burton. Can you tell me in your words how you said
that?
Mr. O'Sullivan. During the Lancaster Street Garage
aftermath, the SAC of the FBI, Lawrence Sarhadt, called me and
asked me to come over to his office and berated me up and down,
swearing at me, yelling as loud as he could about how I should
never have associated myself with the state police and gone
against FBI informants.
Mr. Burton. So you felt that they were not going to
cooperate with you unless you worked with them?
Mr. O'Sullivan. That's what he told me.
Mr. Burton. OK. So he told you that. Now, go back to what
Mr. Huff said. Mr. Huff said, ``Rico was connected to the
Winter Hill Gang. Rico caroused with them.'' This is according
to what you told him. ``Rico caroused with them according to
O'Sullivan. He drank with them. He played pool with them. He
was, as a matter of fact, very specific about this.'' This is
what Mr. Huff said a few minutes ago before you came up and
testified.
Mr. O'Sullivan. I was sitting in the courtroom and I heard
him say it.
Mr. Burton. The reason I'm bringing it up again is you
indicted five of the seven, as Mr. Tierney asked, but you did
not indict the race scandal, the two individuals we have been
talking about.
Mr. O'Sullivan. That's correct, Congressman.
Mr. Burton. Bulger and Flemmi. And it seems to me that
there must have been some reason for that. Now, if Rico was
carousing with the Winter Hill Gang and he was close to Bulger
and Flemmi, and you were ``in someway threatened by the FBI,''
was that the reason you didn't indict them in the race scandal?
Mr. O'Sullivan. It was not, Congressman. The reason, as I
articulated earlier, was a lack of corroborative evidence.
Mr. Burton. I know but the thing that bothers me a little
bit is that you indicted somebody based upon the testimony of
an individual. You also said the same things about Bulger and
Flemmi but you didn't indict them. Now, in my mind there has
got to be a reason why. The same evidence was presented.
I know you said he was higher up in the gang, but the fact
is the FBI said they wanted you to cut out this working with
the state police so you had been admonished, maybe before that
even, to not go around the FBI. Here was Rico carousing with
the Winter Hill Gang and two of the top lieutenants in the
Winter Hill Gang, Bulger and Flemmi, were not indicted in the
race scandal, even though the testimony of an individual
indicted somebody else for the same reasons.
It seems to me if Rico was carousing with them, you had
been admonished by the FBI to keep your hands off of some
things because they didn't want you going around with the state
police. Here are two kingpins of this group, two murderers,
that you didn't indict. There has got to be some reason for it
and I still in my mind can't figure it out.
Mr. O'Sullivan. Well, I'm sorry, Congressman. My reasons
are as stated, that I wanted the case against Howard Winter to
be the strongest case that I could bring and I thought that
having people in the case against whom the evidence was very
weak--the evidence against Winter was weak as it started but I
decided based on that I did not want to have people in the case
that the jury--we would have a domino affect where the jury
would consider certain people not guilty and then it would
carryover to the key people. That's why I did it.
Mr. Burton. Mr. Meehan, because I took some of your time,
go ahead.
Mr. Meehan. Do you know, Mr. O'Sullivan, how the state
trooper's bug was compromised in the Lancaster Street Garage
investigation?
Mr. O'Sullivan. I don't.
Mr. Meehan. You don't to this day?
Mr. O'Sullivan. I don't to this day.
Mr. Meehan. How did this all happen? I mean, just listening
to you talk about what you heard in the street, what you knew
of the relationships, being pushed around by the FBI because
you were talking to the state police, state police
investigations being compromised by the FBI.
Why in the world didn't somebody stop in what was
considered at that time to be one of the best U.S. Attorney's
Office in the country stop and say, ``What the hell is going on
here? What is the FBI up to?'' How did this happen?
Mr. O'Sullivan. Well, some of us tried to stop it anyway. I
asked the FBI to remove John Connelly as a Strike Force rep
from the FBI. I knew that would cause a major problem but I
asked them to do it and I did it based at the behest of various
agencies including the state police. Some of us tried to do
something. We tried to get him out of the organized crime
program.
Mr. Meehan. But sometimes when you are trying to clean up
an agency you have to go above that agency because sometimes
agencies don't want to clean up themselves and it is just
remarkable to me after so many years that more couldn't have
been done. I don't know. You bring in young attorneys and the
first thing you do--I was a prosecutor in Middlesex County. The
first thing you do is you teach them about the ethics of the
enormous power they have as prosecutors. You teach them to be
leery of the police departments when they come in on cases. And
you teach them to always be able to balance what the police are
saying or what the investigators are saying, to make sure you
always have integrity in that system, and to watch that we
couldn't have expected better from the Justice Department.
Thank you, Mr. Chairman.
Mr. Burton. Mr. Delahunt.
Mr. Delahunt. Just to pursue the thought expressed by my
colleague, Mr. Meehan. Let me ask you a policy question first.
You suggest that you took what you felt to be a dramatic step
by going against the FBI and your dealings with, I presume,
Special Agent in charge Sarhadt?
Mr. O'Sullivan. That's correct.
Mr. Delahunt. If you could restructure the relationship
between the U.S. Attorney's Office and the Federal Bureau of
Investigation, would you make any changes? Let me editorialize
for a moment. It seems to me that you felt that the FBI in many
respects was an intimidating force without any checks, without
any accountability, and certainly without any transparency.
It was as, if you will, an island unto itself operating out
there with only internal supervision. Of course, as we've
learned subsequently, what goes on in field offices and what
reports to send up to Washington can be distorted, can be
sugarcoated, important information can be omitted. If you could
respond to my question, how would you structure as we
contemplate legislation to ensure that not just the FBI, but
all investigative agencies have some accountability outside of
the institutions themselves.
Mr. O'Sullivan. Congressman, I really don't have an answer
to that question because that's why you're having these
hearings. I would suggest that it really isn't a structural
issue down at the field level. It really is a question of
somebody above the field looking over their shoulder.
I would suggest that the Inspector General of the Justice
Department, the Inspector General of the FBI, they ought to
take some test cases around the country and go into those
offices and talk with the prosecutors rather than what the FBI
does now. They have an inspection with, you know, somebody
comes over and counts the pens and pencils and then they come
over to the U.S. Attorney's Office and they ask how are
relationships.
The U.S. Attorney's Office being politicians say,
``Everything is fine as far as we can tell.'' If, in fact, the
internal investigative unit of the FBI were to look
specifically at dynamics of how the cases are operated, what
the relationship between the FBI and the prosecutors are. That
would be, I think, one way to do it.
Mr. Delahunt. And that wasn't done during your tenure?
Mr. O'Sullivan. I've never seen it done, Congressman.
Mr. Delahunt. Getting back for a moment to the Race Fix
Case. You suggested that it was your decision not to prosecute
prior to the approach by Morris and Connelly relative to Flemmi
and Bulger and the fact that they were informants.
Mr. O'Sullivan. That's correct.
Mr. Delahunt. And at different times, I think, during the
course of some of your responses to questions posed by my
colleagues, and I also believe in your opening statement you
referenced the findings of Judge Wolf.
Mr. O'Sullivan. Yes.
Mr. Delahunt. Let me read to you a finding that Judge Wolf
made. This is on page 142 you have these findings. Maybe you
could identify counsel for us.
Mr. O'Sullivan. This is my partner, Hugh Scott. We've got a
copy if you want to give me a minute.
Mr. Delahunt. Sure. Also, if we could trouble the
committee, could we have some more water for Mr. O'Sullivan?
Mr. Burton. Would you yield?
Mr. Delahunt. Yes.
Mr. Burton. I want to read you something, Mr. O'Sullivan,
while you're looking for that. Anthony ``Fat Man'' Ciulla
implicated Bulger and Flemmi in that national horse race-fixing
scheme. There were 21 people involved and, of course, the
President claimed executive privilege and we did get those
documents.
Apparently Ciulla himself was outraged that Bulger and
Flemmi were not indicted. He was afraid they would kill him. Of
course, I'm sure you are familiar with the Black Mass and I
want you to comment on this. It states that Bulger and Flemmi
were made to promise that they would not murder Ciulla and that
was what got him to go along and testify against all the others
who had been indicted.
Because Bulger and Flemmi were told about the impending
indictments by the FBI, they were able to warn others including
John Martarano who was the contract killer for Bulger and
Flemmi and he was able to get out of town before being picked
up. Of course, 2 years later he was the trigger man in the
Wheeler murder.
Can you comment on that? Ciulla who, you know, you base
some of these indictments on his testimony. Did he indicate any
outrage to you or anybody that you know of that Bulger and
Flemmi had not been indicted?
Mr. O'Sullivan. No, Congressman. I wouldn't have listened
to what a witness said anyway. I have not read Black Mask and I
am not familiar with it. I kept myself away from it on the
basis that I knew I would be testifying sometime and I knew
that Black Mask was incorrect in a number of major factual
ways.
Mr. Burton. Do you think what I just read is incorrect?
Mr. O'Sullivan. Yes.
Mr. Burton. You do?
Mr. O'Sullivan. I do.
Mr. Burton. So you don't think that Ciulla was upset that
Bulger and Flemmi of the seven leaders was not indicted?
Mr. O'Sullivan. He may have been upset, Congressman. I
don't know that for a fact but I'll assume.
Mr. Burton. Do you think if they found out he testified
against them, that they would have been a little ticked off?
Mr. O'Sullivan. Yes.
Mr. Burton. Do you think maybe since they were known
murderers they might murder him?
Mr. O'Sullivan. They among others in the Winter Gang, yes,
including Howard Winter.
Mr. Burton. Yet you said that there was not enough
corroborating evidence to indict those two?
Mr. O'Sullivan. That's what I said, Congressman.
Mr. Burton. Did you have any indication or did anybody tell
you there was a deal not to murder Ciulla, that he had
testified against the others but not Bulger and Flemmi?
Mr. O'Sullivan. No, Congressman.
Mr. Burton. You don't know anything about that?
Mr. O'Sullivan. Absolutely not.
Mr. Burton. You don't know anything about Martarano being
told that he was going to be indicted and he took off and, of
course, killed somebody 2 years later?
Mr. O'Sullivan. I did not know that either, Congressman.
Mr. Delahunt. On page 142 I'm going to read out loud and
I'll make a reference to page 141. Let me read it out loud
while you are thumbing through the transcript.
``In May 1979 the FBI in Boston requested and received from
the Director of the FBI approval to reopen Bulger as an
informant. The Director was told, however, that no prosecutable
case developed against Bulger in the opinion of the Strike
Force attorney handling the matter.'' That would be you, Mr.
O'Sullivan. Correct?
Mr. O'Sullivan. I assume.
Mr. Delahunt. Judge Wolf goes on further. ``This was not
true. While Bulger and Flemmi were not prosecuted in the Race
Fix Cases because Connelly, Morris, and O'Sullivan had decided
that their value as informants outweighed the importance of
prosecuting them.'' You would disagree with that?
Mr. O'Sullivan. I disagree with that, Congressman, because
I think it was based on the testimony of Mr. Morris who
testified that he and Connelly had approached me and convinced
me not to indict them. I didn't testify at those hearings for
various reasons.
Mr. Delahunt. On page 141 another finding by Judge Wolf.
This is a simple sentence. ``O'Sullivan consulted Daily and
subsequently agreed not to charge Bulger and Flemmi in the Race
Fix Case.'' Presumably, Daley is an FBI agent with whom you
were working.
Mr. O'Sullivan. Yes, he was the case agent.
Mr. Delahunt. He was the case agent. Do you have any memory
whatsoever of consulting with Special Agent Daley regarding
Bulger and Flemmi in seeking his approval or his support in
terms of not indicting Bulger and Flemmi?
Mr. O'Sullivan. I don't.
Mr. Delahunt. You don't. Would you disagree with the
finding or you just simply don't have----
Mr. O'Sullivan. Would you read the finding again?
Mr. Delahunt. I'm sorry?
Mr. O'Sullivan. Would you read the finding again?
Mr. Delahunt. It's just a simple statement. It says,
``O'Sullivan . . .'' Again, this is Judge Wolf. ``. . .
consulted Daily and subsequently agreed not to charge Bulger
and Flemmi in the Race Fix Case.'' I don't know whether Agent
Daley might have testified before Judge Wofe. I don't have any
knowledge to that effect.
Mr. O'Sullivan. Nor do I.
Mr. Delahunt. However, just one inference that could be
drawn given the finding by Judge Wofe was that Daley did, in
fact, testify. One could draw another inference that Daley
before Judge Wolf would have acknowledged that there was some
consultation between you and Daley relative to not indicting
Bulger and Flemmi based upon the fact that they were FBI
informants.
Mr. O'Sullivan. That's not the case. There was some
consultation with Agent Daley about all the defendants and
about the evidence we had against them and how we could get
further evidence that might buttress the case against them.
Yes, I consulted with Agent Daley about the structure of the
indictment and who the defendants could be. We were intimately
involved in putting the case together but not about Bulger and
Flemmi as informants or their role as informants.
Mr. Delahunt. Again, on page 141 of the findings, this is a
reference to Connelly and Morris. They emphasized that Bulger
in a purported conversation with you either subsequent to your
decision as to whether to prosecute or not or before. We don't
know that.
But in their conversation with you, they emphasized that
``Bulger and Flemmi were crucial to the ambitious plan they and
O'Sullivan were developing to bug 98 Prince Street, the
headquarters of Gennaro Angiulo, then the leader of the LCN in
Boston. Thus, Morris and Connelly asked O'Sullivan not to
include Bulger and Flemmi in the forthcoming race fix
indictment.'' Again, this is the finding that was made by Judge
Mark Wolf.
Mr. O'Sullivan. I assume it's based on Morris' testimony.
At least to that extent, we did discuss how important Bulger
and Flemmi might be to the wiretap at 98 Prince Street. Yes,
that is true.
Mr. Delahunt. You know, you just used, I think, a very
important verb, ``might.''
Mr. O'Sullivan. I'm sorry?
Mr. Delahunt. Might. Might be crucial. It seems to have
become accepted among those that are interested in these
matters that somehow Flemmi and Bulger were crucial or were
critical in developing the probable cause necessary for 98
Prince Street bug.
Mr. O'Sullivan. They weren't.
Mr. Delahunt. They weren't?
Mr. O'Sullivan. They weren't.
Mr. Delahunt. Thank you. I think that is really important
for the public to hear that because I hope that once and for
all the myth of information that was secured by Mr. Connelly
and Mr. Morris from Flemmi and Bulger was just about nothing.
Is that a fair statement?
Mr. O'Sullivan. You have to understand the iterations of
the wiretap application process at 98 Prince Street.
Mr. Delahunt. I am familiar with the process.
Mr. O'Sullivan. It was originally going to be a Rico
wiretap. Unfortunately, the First Circuit came down and said
that Rico did not apply to criminal organization so we had to
redo the wiretap application just to focus on subsequent crimes
like loansharking and gambling, not Rico. I believe that Bulger
and Flemmi might have been some help in the initial application
but they weren't of any substantive help ultimately when we did
the application.
Mr. Delahunt. I would dare say my own perusal, if you will,
and I would ask you to try to recollect in developing the
affidavit, whatever positive assistance came from these two
individuals relative to the development of the probable cause
necessary in the affidavit came from Flemmi and none of it came
from Bulger.
Mr. O'Sullivan. I don't know that, Congressman, because I
don't remember the information today so I can't answer that
question.
Mr. Delahunt. Do you have any memory whatsoever in terms of
the contribution, or can you distinguish between the
contribution by Flemmi and Bulger in terms of the 98 Prince
Street? Would you weigh one over the other or is it vague to
you at this time?
Mr. O'Sullivan. It's vague. I couldn't distinguish,
Congressman.
Mr. Delahunt. Again, I think that for the first time we
have heard that this myth that these informants were developed
because they were crucial is just that, it's a myth. Any former
agent that would take credit for developing them and cracking
La Cosa Nostra in New England is a gross exaggeration.
I say that directed to the members of the states that are
here present because it has taken on a life of its own. You had
numerous other investigative techniques as well as informants
that were assisting you and providing you information that was
necessary in terms of the 98 Prince Street investigation.
Mr. O'Sullivan. That's true, Congressman. As a matter of
fact, I met with some of those informants personally to develop
the information so I know who has contributed to the 98 Prince
Street wiretap.
Mr. Burton. We will come back if you need to. Thank you.
Mr. O'Sullivan, I am grateful that you are here today. I
appreciate you not using your very serious illnesses as a basis
for not being and I consider you a very willing witness. I
understand that during your time in service to your government
that you were considered one of the best and the brightest. I
have to tell you as I listened to you, I feel that your
responses have been candid and fairly quick and responsive and
not a lot of hesitation and wanting us to understand how you
view it.
It still doesn't add up to me and so I'm struggling to see
if there is something that is in your heart or in your mind
that you think we may know that we don't know. I was somewhat
stunned by your very veracious response to Representative
Meehan when he asked you about the FBI. I mean, that lit a fire
under you and you became very animated in your description
about if you confront the FBI, you pay a big penalty. I would
think if the FBI confronted you they would pay a big penalty.
Yet, it seemed to be the other way around. As we talk about
various FBI agents, I'm thinking the FBI folks that I know,
they don't have that kind of personality. I either don't know a
lot of FBI folks or I just didn't know them up in this area. It
is your testimony if you confront the FBI you pay a penalty.
That blows me away.
When I hear Winter Gang, I heard seven and I said five down
and two to go. I was kind of waiting for you to say, ``We
wanted to get those five but, you know, these guys were next in
line. They were on my list.'' I didn't hear you say that. Tell
me this. Did anyone from the FBI tell you that you should not
prosecute Whitey Bulger and Stephen Flemmi?
Mr. O'Sullivan. No, not specifically.
Mr. Burton. Did anyone from any local or state police
department tell you not to prosecute Whitey Bulger or Stephen
Flemmi?
Mr. O'Sullivan. No, Congressman.
Mr. Burton. Did anyone from the Justice Department suggest
that you not prosecute----
Mr. O'Sullivan. No, Congressman.
Mr. Burton. Then having successfully prosecuted the first
five, when were you planning to prosecute them?
Mr. O'Sullivan. In my opening statement, Congressman, I
said that I had developed two cases against them. The Lancaster
Street Garage, in my agreement with the Suffolk County District
Attorney's Office list, if that wiretap was fruitful, we would
sit down and allocate which part would go Federal and which
part would go to the state.
Second, in the Boston police corruption investigation I had
planned a wiretap on a bookmaker who is in direct contact with
Stevie Flemmi and I had planned to have a Boston police officer
who was cooperating wear a body recording against Whitey
Bulger. There were two cases that were in the wings waiting to
take off.
Mr. Burton. Mr. Tierney just brought to my attention that
when you were asked a question by Mr. Shays whether or not
anybody in the FBI asked you not to prosecute Bulger and
Flemmi, you said not specifically. Is that what your answer
was?
Mr. O'Sullivan. I don't remember my answer. If that's what
it is, I was referring back to the fact that Morris and
Connelly had come over and seen me and ask me not to do it.
Mr. Burton. They came over and asked you what?
Mr. O'Sullivan. Not to prosecute.
Mr. Burton. Not to prosecute Bulger and Flemmi.
Mr. O'Sullivan. Yes, in the Race Fix Case.
Mr. Burton. So they specifically asked you not to?
Mr. O'Sullivan. Yes. That's correct.
Mr. Burton. Did you ask them why?
Mr. O'Sullivan. They told me because they were FBI
informants.
Mr. Burton. They told you they were FBI informants and you
thought that was sufficient even though you knew they were
murderers and you knew that they had been accused just like--
what's the other fellow's name that was indicted?
Mr. O'Sullivan. No, I didn't think that was sufficient,
Congressman. I told you I made up my mind before they came over
and asked me that question. When they did come over and ask me
that question, I told them I already decided not to indict
them.
Mr. Burton. You know, it kind of troubles me that you knew
they were murderers and here is two FBIs saying that we are, in
effect, protecting murderers who were involved in numerous
murders because they were informants. Didn't you find that a
little troubling?
Mr. O'Sullivan. I didn't reflect on it but----
Mr. Burton. You didn't reflect on it?
Mr. O'Sullivan. No.
Mr. Burton. Well, you know, it goes back to the same thing
we've been asking over and over again and I can't get a grasp
on your reasoning; that is, that you indict one guy based upon
testimony and two other guys you don't indict and they are
murderers. Two FBI agents came over and told you not to indict
them because they were informants. You said, ``I have already
decided not to indict them because there is not enough
corroborative evidence. Yet, there is another fellow who is
pretty high up in the organization that you did indict because
he might be up here above him. I just can't understand that.
Why would you get the whole kit and caboodle?
Mr. O'Sullivan. Because it's better settling for half a
loaf than the whole loaf. The half a loaf, in my opinion, was
Howie Winter. He was the linchpin that held this criminal
organization together.
Mr. Burton. How many times when you were a prosecutor did
you agree not to prosecute known murderers because they were
informants?
Mr. O'Sullivan. I don't think it has ever happened.
Mr. Burton. You never did?
Mr. O'Sullivan. No.
Mr. Burton. Except in this case because you had already
made up your mind?
Mr. O'Sullivan. That's correct.
Mr. Burton. If you hadn't already made up your mind you
would have indicted them?
Mr. O'Sullivan. Yes.
Mr. Burton. OK.
Mr. Shays. I didn't listen, I guess, to the question. I
said did anyone from the FBI ask you not to indict Bulger and
Flemmi. I thought you said no. You said not specifically and
now you are saying yes? I do want to be clear.
Mr. O'Sullivan. In my opening statement I said that when I
made up my mind not to indict them, that Morris and Connelly
came over after the fact and asked me not to indict them.
Mr. Shays. So when I asked you the question did anyone from
the FBI ask you not to indict them, you said no to me. Really
what you should have said is, yes, but----
Mr. O'Sullivan. That's correct, Congressman.
Mr. Shays. OK. Did anyone from the Justice Department tell
you not to indict them?
Mr. O'Sullivan. No, Congressman. Absolutely not.
Mr. Shays. Did anyone from the state police at anytime ask
you----
Mr. O'Sullivan. Absolutely not.
Mr. Shays. So the only people, according to your testimony,
that asked you not to indict are the FBI?
Mr. O'Sullivan. Yes.
Mr. Shays. Based on the facts. Now, did you respond with
some degree of--somewhat incredulously like, ``What do you mean
these are FBI informants? They are known murderers?``
Mr. O'Sullivan. No, I did not, Congressman.
Mr. Shays. Why not?
Mr. O'Sullivan. I assume that when you have informants at
that level they are involved in crimes.
Mr. Shays. Let me ask you, though, should I make an
assumption that they were involved in past crimes or do you
think that they had stopped committing crimes? Let me
understand something. If you are an informant and giving
testimony against someone else, are you still allowed to be
killing people?
Mr. O'Sullivan. I assume that is a rhetorical question,
Congressman.
Mr. Shays. Where would you have drawn the line with the
crimes they were allowed to commit?
Mr. O'Sullivan. Whatever the Justice Department guidelines
are on that.
Mr. Shays. What were they?
Mr. O'Sullivan. I have no idea because they are the FBI's,
in the first instance, to put into effect. They are the ones
that control the informants, not the prosecutor.
Mr. Shays. This isn't a pretty picture right now. I mean,
someone of your stature is basically saying that you've got a
gigantic problem with the FBI and that if you confront them,
you do it at some risk to your ability to carry on your work,
which is like they can blackmail you practically by their
simply refusing to cooperate. The implication is that under
your command of this job, the FBI was able to influence who
would prosecute and who you wouldn't based on their willingness
to cooperate with you. Is that the kind of view I should leave
this hearing with?
Mr. O'Sullivan. No, it's not, Congressman. I would bring to
your attention that I worked with the state police and I worked
with the FBI to build a case on Bulger and Flemmi in two
separate instances.
We have gone over that fact. When the state police came to
me after the Race Fix trial and they asked me to develop a case
on Flemmi and Bulger and they didn't want to work with the FBI,
then I went to the District Attorney of Suffolk County, which
was the only agency that I could think of that might be willing
to bring the wiretap. I went to him and I aided them in
developing the wiretap, the state wiretap, but they did get the
Lancaster Street Garage.
Mr. Burton. Would you yield for a moment? Let me ask you
this. You said that you did try to indict Bulger and Flemmi
subsequent to this.
Mr. O'Sullivan. I didn't. I said I tried to investigate
them.
Mr. Burton. You tried to investigate them. Why didn't you
indict them? You couldn't find anything?
Mr. O'Sullivan. That's correct.
Mr. Burton. You knew they were murderers, you knew they
were involved in the race-fixing thing, and you couldn't indict
them and couldn't find anything?
Mr. O'Sullivan. That's correct, Congressman.
Mr. Burton. After the case was resolved in the race-fixing
thing, you knew they were involved and you had testimony from
Ciulla or whatever.
Mr. O'Sullivan. Ciulla.
Mr. Burton. You still didn't have a hook to hang your hat
on?
Mr. O'Sullivan. Yes, I could have indicted them after the
verdict came back in another case, but the case went on for 4
plus months and I didn't think that a subsequent effort would
be any less in that I didn't have enough evidence to convict
them.
Mr. Burton. Well, the gentleman that Ciulla accused, was he
convicted?
Mr. O'Sullivan. I'm sorry?
Mr. Burton. The gentleman that Ciulla----
Mr. O'Sullivan. Winter was convicted.
Mr. Burton. Was Simms convicted?
Mr. O'Sullivan. Yes, he was.
Mr. Burton. He was convicted on Ciulla's testimony. Was he
not?
Mr. O'Sullivan. Yes, he was.
Mr. Burton. And you say you can't go back and indict these
other two who had the same accusation made by Ciulla?
Mr. O'Sullivan. That's correct.
Mr. Burton. Why? Why didn't you go back and get them?
Mr. O'Sullivan. Because my judgment was I wouldn't have
been able to convict them.
Mr. Burton. Why, you already convicted one? Why did you
think you had less of a case the second time?
Mr. O'Sullivan. Because I believed that these cases, you
know, you put them on and sometimes they don't work.
Mr. Burton. But you did convict him.
Mr. O'Sullivan. That's correct.
Mr. Burton. So it was the same evidence. Why did you not go
back and get him? You said you wanted to nail him.
Mr. O'Sullivan. That's correct.
Mr. Burton. Why didn't you go back and get him on the same
charge?
Mr. O'Sullivan. Because I didn't have any corroborative
evidence.
Mr. Burton. You didn't have corroborative evidence on the
other guy either, Simms.
Mr. O'Sullivan. Yes, but he was an important person in the
Winter Gang.
Mr. Burton. I know. I understand.
Mr. O'Sullivan. I could take a risk of charging him.
Mr. Burton. OK. You took a risk and you convicted him on
the basis of the same evidence that you had on Bulger and
Flemmi, but you didn't go back and get him. Why?
Mr. O'Sullivan. Why? Because I didn't think that they were
convictable based on the facts of the case.
Mr. Burton. Mr. O'Sullivan, I am lost because you convicted
one guy based upon the facts, the same facts, and then you go
back to Bulger and Flemmi and you've got the same evidence on
them and you don't even charge them and you're saying you
didn't have enough evidence. It doesn't wash. Why?
Mr. O'Sullivan. I keep repeating myself, Congressman. I
can't say it any clearer than I've said it. I'll rest on my
statement.
Mr. Shays. Would the chairman yield for a moment?
Mr. Burton. Let me finish, Mr. Shays, before I yield.
I do want to say, and not ask it again, but the question
that I would have said having been successful against Simms,
that the testimony held up, I would have thought that you would
have said, ``Boy, I got these two guys because we've got a
successful conviction here so it did hold up.'' It makes me
then wonder if deciding not to act was because the FBI said
Bulger and Flemmi were informants.
Mr. O'Sullivan. No, that wasn't the reason.
Mr. Burton. OK. Let me just ask you to characterize three
FBI agents. I want you to describe to me FBI Agent Connelly.
Mr. O'Sullivan. Can I interrupt you for a second,
Congressman?
Mr. Burton. Sure.
Mr. O'Sullivan. One thought came to mind. When I prosecuted
the Race Fix Case, I was then an Assistant U.S. Attorney and
Chief of the Public Corruption Unit. I took the case with me
from the Strike Force down to the U.S. Attorney's Office. But
my duties in the U.S. Attorney's Office soon became so
overwhelming in terms of the cases I was developing in the
public corruption unit that I didn't have time to go back and
reconsider Bulger and Flemmi. It wasn't my job.
Mr. Burton. I will say this. I do agree that sometimes we
have lots of choices we have to make. We sometimes overwhelm
the criminal justice system and prosecutors. I understand that
part of your argument, but it still is a mouthful. As it
relates to FBI Agents Connelly, Rico, and Condon, I want you to
describe to me what they were like to work with.
Mr. O'Sullivan. I never worked with Rico. I never saw him.
I very rarely worked with Condon. I very rarely worked with
Connelly since Connelly wasn't a case agent. He was developing
informants.
Mr. Burton. So you wanted to get rid of him?
Mr. O'Sullivan. I did.
Mr. Burton. Even though you didn't work with him?
Mr. O'Sullivan. He was a Strike Force rep. All the agencies
get to develop somebody who is the liaison between that agency
and the Strike Force. I asked the FBI to remove him as a Strike
Force rep.
Mr. Burton. And explain to me why.
Mr. O'Sullivan. I didn't trust him.
Mr. Burton. Well, you didn't trust him because?
Mr. O'Sullivan. I didn't trust him because of his
relationship with his informants.
Mr. Burton. And his informants were?
Mr. O'Sullivan. Bulger and Flemmi.
Mr. Burton. Thank you very much.
Mr. Tierney.
Mr. Tierney. Thank you.
Mr. O'Sullivan, I just want to talk to you a little bit
more about something that has me puzzled here. What were Mr.
Simms' priors?
Mr. O'Sullivan. Mr. Simms has a substantial criminal
record. I can't remember it off the top of my head now,
Congressman.
Mr. Tierney. But murder wasn't one of the prior
convictions. Was it?
Mr. O'Sullivan. No.
Mr. Tierney. So you had a fellow who was not a murderer, or
not known to be a murderer to you, and you had a situation
where you thought that this case was relatively weak but you
only had Mr. Ciulla's testimony and nothing corroborative. Yet,
you were willing to put that person in with 20 odd others and
potentially, according to your testimony, make that whole case
weaker and stand the risk of that jury finding him not
responsible, not guilty, and then going right down the line and
having an impact on all the other cases.
Yet, when it came to then having the conviction in knowing
you had found him guilty along with the others, you then made a
decision not to go after Bulger and Flemmi even though they
were murderers and you have the same evidence and you have a
risk but you didn't have the same risk of losing other 20 other
cases, just the risk of losing that case possibly.
Mr. O'Sullivan. The answer is I didn't go after them in the
Race Fix Case. I went after them in other cases.
Mr. Tierney. You investigated in other cases.
Mr. O'Sullivan. And hopefully I would have been successful
in those cases.
Mr. Tierney. But here is one where you had enough to indict
them and prosecute them on because you had the same thing you
had on Simms. If, as you say, you just thought, ``I'm just
moving on to other things. I have an overload of work,'' or
whatever, why didn't you refer it to somebody else and let me
do it?
Mr. O'Sullivan. Well, there was somebody in charge who
could have taken over the case.
Mr. Tierney. Who was that?
Mr. O'Sullivan. My boss at the time, Gerald McDowell.
Mr. Tierney. Did you recommend that Mr. McDowell do that?
Mr. O'Sullivan. I did not.
Mr. Tierney. One account of this whole situation has
Lawrence Sarhadt asking you to close out Whitey Bulger as an
informer in 1980. Did that every happen?
Mr. O'Sullivan. It didn't.
Mr. Tierney. It did not?
Mr. O'Sullivan. It did not.
Mr. Tierney. Not long after the Oklahoma investigators
learned about the possible tie between Flemmi and Bulger,
Flemmi was closed out as an informant. Did you know that at the
time?
Mr. O'Sullivan. I did not.
Mr. Tierney. No further questions.
Mr. Burton. Mr. Lynch.
Mr. Lynch. Thank you, Mr. O'Sullivan. I just want to
followup on the mirror image of Mr. Tierney's questions. That
is, at a certain point in time in the Race Fix Case you had
these 21--actually, there were 23, I guess, candidates for
indictment. Actually, there is a list of some 64 other co-
conspirators who remain unindicted. We'll talk about them in a
minute.
But you got this fellow named Simms who you say had a
substantial criminal record. At that point in time you say you
were at least aware of Mr. Bulger's record and Mr. Flemmi's
record. I just want to ask you at the time you were considering
an indictment, did you know the fact that James Bulger had
several arrests in Massachusetts for armed robbery? Were you
aware of that?
Mr. O'Sullivan. I was generally aware he had a substantial
criminal record.
Mr. Lynch. And he had grand larceny charges against him as
well, a prior record. You were aware of that time?
Mr. O'Sullivan. I knew he had a substantial criminal
record, the specifics of which I don't remember that I knew.
Mr. Lynch. Well, do you remember that he had done time in
Leavenworth and also in Alcatraz Prison?
Mr. O'Sullivan. I've heard that.
Mr. Lynch. OK. How about Mr. Flemmi, the fact that he had
been tracked previously. He had arrests connected with armed
robbery, gambling offenses. This is a race-fixing scheme. Were
you aware of that?
Mr. O'Sullivan. Yes.
Mr. Lynch. OK. How about his loansharking and propensity to
carry firearms? Were you aware of those?
Mr. O'Sullivan. In general terms, yes.
Mr. Lynch. OK. How about murder and also dynamite bombing a
District Attorney's personal vehicle in Boston? Were you aware
of that?
Mr. O'Sullivan. Yes.
Mr. Lynch. OK. You know these people are part of this
criminal enterprise, which is they are taking money from a
race-fixing scheme. Still sitting here today you insist that
based on all the evidence that has come out here, that these
gentlemen were unindictable?
Mr. O'Sullivan. As I think about it, there was one other
fact that distinguished Flemmi and Bulger from Simms.
Mr. Lynch. Let's hear it.
Mr. O'Sullivan. Simms was an active participant in the
race-fix scheme. Flemmi and Bulger were not. All they did was
to share the proceeds. If I had a trial and I put Ciulla on the
stand, all Ciulla would testify to is he fixed races and he sat
down and they whacked up the money in Winter Hill. That's all
he would testify to.
He had no specific facts that would tell me anything or
would tell the jury anything about what role Bulger and Flemmi
had other than sharing in the proceeds. Whereas Simms had a
specific role. He was Winter's alter ego who would give Ciulla
directions, etc.
Mr. Lynch. I ask you just the general sense here the
willingness for a prosecutor to go for an indictment. In your
own experience in your career, what is the success rate on--I
understand you don't want to indict the innocent, those that
have no connection. You want to spare them their reputations.
You want to spare them the risk of wrongful prosecution. With
the weight of evidence here, what is the success rate? In order
for an indictment to be rendered, does it have to be 100
percent certain before you can bring an indictment?
Mr. O'Sullivan. There was something in effect at the time
called ``The Principles of Prosecution'' in the Justice
Department U.S. Attorney's manual which said that you should
not indict someone unless you had a substantial probability
that you could convict them. That was the standard that I used.
Mr. Lynch. Let me ask you just finally, in addition to the
21 indictments that were handed down, were all these people
convicted?
Mr. O'Sullivan. No.
Mr. Lynch. How many?
Mr. O'Sullivan. Most of them were convicted but at least
one was found not guilty.
Mr. Lynch. You're saying 20 out of 21 were convicted? Is
that right?
Mr. O'Sullivan. Well, there were several levels. Some of
them pled guilty, some----
Mr. Lynch. That's OK. We'll count down. If they pled
guilty, chances are they were probably guilty.
Mr. O'Sullivan. I think one was found not guilty. That's my
memory.
Mr. Lynch. And there was another group of 64 unindicted co-
conspirators. Do you remember that?
Mr. O'Sullivan. I don't. I know there was a lot of people
that I didn't indict but I don't remember how many.
Mr. Lynch. Tell me of the 64 initially unindicted co-
conspirators were any of those eventually indicted?
Mr. O'Sullivan. I don't know, Congressman.
Mr. Lynch. Thank you.
Mr. Burton. Mr. Meehan.
Mr. Meehan. I have two questions here real quickly and then
I'll yield to Mr. Wilson. He has a question. If Bulger and
Flemmi were splitting up the money that came in from this race-
fixing, was that a criminal offense?
Mr. O'Sullivan. Yes.
Mr. Meehan. So then why didn't you consider indicting them?
Mr. O'Sullivan. As I said, there was no corroborative
evidence.
Mr. Burton. Would you yield to Mr. Wilson just for a
moment?
Mr. Wilson. Mr. O'Sullivan, why is it that you have such a
clear recollection that Bulger and Flemmi only received
proceeds from the face-fixing scheme?
Mr. O'Sullivan. It came into my head, Mr. Wilson.
Mr. Wilson. On January 29, 1979, you apparently wrote a
memorandum along with Gerald McDowell to Gerald McGuire who is
the Deputy Chief of Organized Crime for the Racketeering
Section. This memo conflicts with what you just testified to.
It says, and I'll read the pertinent part and then we'll
break it down and talk about the various pieces. It says,
``Truman Barnosky met with Howard Winter and six of his
associates in late 1973 to discuss a race-fixing scheme, Winter
and his associates, including Bulger and Flemmi.'' The memo
states that after the initial meeting with Winter Truman
Barnosky met with Winter and partners in the scheme, John
Martarano, Joseph McDonald, James Simms, Whitey Bulger, Stephen
Flemmi.
Bulger and Flemmi, ``Would help find outside bookmakers to
accept the bets of the group.'' Then later is says, ``Ciulla
and the Winter group then began to fix races at tracks around
the country.'' This is not a quote but it says the scheme
lasted for 2 years and more than 200 races were fixed.
This memorandum, one of the ones the President claimed
executive privilege over, states that the group actually met to
discuss the race-fixing scheme which indicates that Bulger and
Flemmi were part of the conspiracy to actually create the
scheme. That's the first thing it says.
Then it says, ``Winter and his partners would provide the
money necessary to carry out this scheme.'' They actually
funded the scheme. Then it says that Bulger and Flemmi
specifically, ``Would help find outside bookmakers to accept
the bets of the group.'' They were a very, very integral part
of actually involving themselves in this bookmaking and race-
fixing process. You made it sound like all they were doing was
getting some ill-gotten proceeds. First of all, is this memo
correct?
Mr. O'Sullivan. It must have been at the time I wrote it.
It was in 1979. I just don't have a clear memory of the facts
today so you got me, Mr. Wilson.
Mr. Wilson. We apologize for this. I asked the Department
of Justice on Monday to provide you with a copy of this
memorandum.
Mr. O'Sullivan. They didn't.
Mr. Wilson. It's not for us to apologize to you for that,
but we did ask them.
Mr. O'Sullivan. Well, I regret, Mr. Wilson, when I spoke to
you on the telephone Tuesday you did not mention to me. We
would have been glad to look at the memorandum and I'm sorry we
didn't.
Mr. Wilson. I just assumed they would do something that was
so simple.
Mr. Burton. Mr. Meehan.
Mr. Meehan. Thank you, Mr. Chairman. I'll be brief. Mr.
O'Sullivan. Whether you accept it or not, it's clear that the
public's trust was shattered by both the Boston FBI office and
Federal prosecutors. In retrospect do you believe that you
could have done anything at all to prevent some of this from
happening?
Mr. O'Sullivan. I don't, Congressman.
Mr. Meehan. You don't know?
Mr. O'Sullivan. I don't know.
Mr. Meehan. You blame the FBI for what happened but I want
to know if you believe that you could have done more to make
sure that the Boston FBI office was not abusing its power
regardless of organizational skills.
Mr. O'Sullivan. I don't think I could have, Congressman,
because that would have precipitated World War III if I tried
to get inside the FBI to deal with informants. That was the
holy of holies, inner santurium. They wouldn't have allowed me
to do anything about that, Congressman.
Mr. Meehan. Let's put it in a specific context. Did you
know that Whitey Bulger and Stephen Flemmi were interviewed
together on several occasions?
Mr. O'Sullivan. I did not.
Mr. Meehan. How is it that you are the head of the
Organized Crime Task Force at the heights of one of the Federal
Government's most significant crackdown on organized crime and
interviews with the likes of Whitey Bulger and Stephen Flemmi
are taking place. Hardly a meaningless event.
It's hard to believe they were leading organized crime
figures among the Irish mob at the time. Yet, you didn't know
anything of them being interviewed together. Nobody ever went
over the notion of interviewing them together.
Mr. O'Sullivan. That's correct, Congressman.
Mr. Meehan. Would anyone in the U.S. Attorney's--do you
find that to be outrageous, the fact that they would actually
bring these two gangsters into a room and interview them
together giving them the opportunity to corroborate their
stories?
Mr. O'Sullivan. I would like to know more of the facts as
to what they were interviewing about.
Mr. Meehan. Generally as a matter of policy you bring in
two of the biggest gangsters----
Mr. O'Sullivan. Generally as a matter of policy it's wrong.
Mr. Meehan. But does it make sense that the head of the
Organized Crime Task Force wouldn't be aware of this? Does that
make sense? How do we prevent that from ever happening again?
It is incredible to me to think that you have these two
gangsters, murderers who clearly have a corrupting influence on
other investigations and the Federal Government, the chief law
enforcement agency in the country, brings them in to have
interviews and they interview them together. Yet the head of
the Organized Crime Task Force doesn't know about it. It's hard
to believe.
Mr. O'Sullivan. That's what happened, Congressman.
Mr. Meehan. No further questions, Your Honor.
Mr. Burton. Mr. Delahunt.
Mr. Delahunt. Thank you, Chairman.
Earlier today Detective Huff in his testimony referenced,
or alluded to the fact that you had what to him was surprising
information about John Martarano. He referenced that you
indicated to him that Martarano is in the Ft. Lauderdale area.
Do you have any memory of you expressing that during the
meeting with Detective Huff?
Mr. O'Sullivan. I don't, Congressman.
Mr. Delahunt. You don't. Do you have any independent memory
of having information regarding the whereabouts of John
Martarano in Florida in the Ft. Lauderdale area?
Mr. O'Sullivan. I don't.
Mr. Delahunt. You don't. You also earlier referenced
something about Mr. Simms and the likelihood of his fleeing.
Mr. O'Sullivan. Yes.
Mr. Delahunt. Could you explain that again for me?
Mr. O'Sullivan. Yes. I had been--let me back up a step. The
whole Race Fix Case was about dismantling the Winter Gang. Not
the Winter Hill Gang, the Winter Gang. I started by working on
the Winter Hill Gang back when I first became a Federal
prosecutor. Actually, when I was a state prosecutor as well.
One of the things we did was we did a gambling case. I did
the gambling case with the state police involving football
cards. When we traced the football cards back to the layoff
office where they went, lo and behold there was Mr. Simms who
was then a fugitive from justice for something. He was arrested
and indicted in a football card case and then he became a
fugitive again. He has a history of fugitivity.
Mr. Delahunt. That factored into your decision to proceed
against Simms and not against Flemmi and Bulger?
Mr. O'Sullivan. It factored into my decision. There was
only a critical mass of people that I could indict in one
indictment. Twenty-one was a lot.
Mr. Delahunt. But if you take your description as the core
group being three and then, let's say, the larger group being
seven and then you include Flemmi and Bulger, that's a fairly
nuance distinction, I would suggest.
Mr. O'Sullivan. It's a distinction I make, Congressman. I
may have been wrong but that is the distinction I made.
Mr. Delahunt. OK. The reality is that we know Mr. Flemmi
was a fugitive for an extended period of time.
Mr. O'Sullivan. Yes, he was.
Mr. Delahunt. I mean, he was involved in the Carborn, an
attorney by the name of Fitzgerald.
Mr. O'Sullivan. Fitzgerald. Right.
Mr. Delahunt. And he disappeared for how many years. Do you
remember?
Mr. O'Sullivan. I don't.
Mr. Delahunt. You also indicated that you had two
investigations where the subjects of the investigation were
Flemmi and Bulger.
Mr. O'Sullivan. Yes.
Mr. Delahunt. Could you describe briefly?
Mr. O'Sullivan. Yes. One was the Lancaster Street garage
investigation. The second was the Boston police corruption
investigation in which we were attempting to do a wiretap on a
bookie in Rocksberry who had some interaction with Mr. Flemmi.
At the same time we developed a Boston police officer who was
willing to wear a body wire against Mr. Bulger.
Mr. Delahunt. Those two proved to be unsuccessful?
Mr. O'Sullivan. That's correct.
Mr. Delahunt. Do you remember another investigation where I
happened to be a potential corroborating witness involving a
Frances Greene?
Mr. O'Sullivan. I remember the name Frances Greene. I don't
remember the case at all. Yes, I do remember the case.
Mr. Delahunt. In an attempt to refresh your memory, there
was an allegation that Bulger and Flemmi threatened this
individual's life in a restaurant in my former jurisdiction in
Norfolk County. I would suggest substantial corroborating
evidence. I referred that case to the FBI and to the Strike
Force. At that point in time you were the head of the Strike
Force and a colleague of ours by the name of Marty Gutrol was
your assistant. The deputy, if you will. You have no memory of
that?
Mr. O'Sullivan. I don't, Congressman. I have a memory of
Frances Greene and using him as a witness in a political
corruption case but that's all.
Mr. Delahunt. Involving Frank Tracy?
Mr. O'Sullivan. Yes.
Mr. Delahunt. Do you remember having a conversation with me
several years--that occurred in 1976. You and I had a
conversation in the old Statler Hilton Hotel over on Park
Plaza. I asked you about that particular case and you indicated
to me that nothing happened on the case. You have no memory of
that?
Mr. O'Sullivan. I don't, Congressman.
Mr. Burton. Would the gentleman yield?
Mr. Delahunt. I yield.
Mr. Burton. Maybe I can refresh your memory a little bit on
the Greene case. You mentioned him immediately when you started
talking about it so you evidently remember Mr. Greene pretty
well.
Mr. O'Sullivan. I do.
Mr. Burton. OK. Frances Greene alleged that in 1976 Whitey
Bulger and Stevie Flemmi threatened to kill him if he didn't
repay $175,000 loan he had borrowed. Greene went to Edward
Harrington who was the prior attorney at the time but was about
to become the new U.S. Attorney in Massachusetts who told him
the matter could best be pursued through a state investigation
because the extortion occurred in Norfolk County.
Harrington phoned District Attorney William Delahunt who
forwarded the case to the FBI because Federal extortion laws
carried stiffer penalties than they could obtain under
Massachusetts law. Greene and Delahunt were interviewed by
agents working with Connelly and the case was put in FBI files
and closed a year later.
Now, what Mr. Delahunt was asking you was do you remember
that case? I mean, it seems pretty substantial. You knew these
guys were murderers. Didn't you?
Mr. O'Sullivan. Yes.
Mr. Burton. You knew they were murderers and a case was
referred to you where there was a $175,000 loan that was not
repaid and these two guys who you knew were murderers
threatened to kill this fellow and you didn't followup on the
case.
Mr. O'Sullivan. Congressman, I have no memory of the case,
no memory of it being referred to me.
Mr. Burton. And you don't remember talking to Mr. Delahunt?
Mr. O'Sullivan. I have no memory of talking to Mr.
Delahunt. Yes, that's correct.
Mr. Burton. You just don't remember?
Mr. O'Sullivan. I do remember Mr. Greene.
Mr. Burton. But you don't remember this case?
Mr. O'Sullivan. I don't.
Mr. Burton. And you were the head of the Strike Force?
Mr. O'Sullivan. That's correct.
Mr. Delahunt. Maybe if I mentioned some names it might job
your memory. There was the recipient of the loan. The provider
of the loan was an individual by the name of Rita Tobias. Does
that name ring a bell?
Mr. O'Sullivan. No, it doesn't, Congressman.
Mr. Delahunt. The FBI agents that interviewed me were
Kennedy and Daley, I believe.
Mr. O'Sullivan. Daley was a case agent in the Race Fix
trial.
Mr. Delahunt. I don't know if it was the same agent but
this, again, doesn't help you?
Mr. O'Sullivan. It doesn't.
Mr. Delahunt. They came and they interviewed me. I
indicated that I was present in the restaurant at the time of
the extortion. My colleague says to me I had better explain it
a little more. I'll let that sit right there. But I obviously
could identify several of the individuals.
Mr. O'Sullivan. It doesn't ring a bell, Congressman.
Mr. Delahunt. I yield back to the chairman.
Mr. Burton. Do you have a question?
Mr. Shays. Yes, I do.
Mr. Burton. Yield to Mr. Shays.
Mr. Shays. I don't intend to keep you here much longer, Mr.
O'Sullivan. I just want to say my interest in this whole issue
started with Mr. Salvati and Marie Salvati and their incredible
story. You were in the Massachusetts Attorney General's Office
at the time of the Deegan trial. That part is correct?
Mr. O'Sullivan. I don't know.
Mr. Shays. OK. Do you know anything about the Deegan murder
or anything about innocent people being sent to jail?
Mr. O'Sullivan. I don't.
Mr. Shays. When you started reading these stories later on,
did you start to say, my God, these guys were fingered by two
corrupt informants, people that you knew to have no
credibility. Did you start to have a little question of
interest in this case at all?
Mr. O'Sullivan. I did not, Congressman.
Mr. Shays. Why?
Mr. O'Sullivan. It just wasn't on my turf. I didn't think
that I could right the wrongs of the whole world, Congressman.
Mr. Shays. That's not really what I'm asking whether you
could right them. I'm interested whether you began to have any
questions or doubts about the fact that innocent people might
have been in jail because of Mr. Bulger and Mr. Flemmi.
Mr. O'Sullivan. I didn't, Congressman. I just didn't think
about it to be honest.
Mr. Shays. When did you start to think that they might be
innocent?
Mr. O'Sullivan. I don't know.
Mr. Shays. It had to be at some point. When they were
finally let go or a little before or when?
Mr. O'Sullivan. I think probably when they were finally let
go.
Mr. Shays. OK. Let me ask one last question. Is there
anything that this committee has been working on that you are
aware of that you have information about that you think would
be pertinent but we just simply failed to ask you?
Mr. O'Sullivan. I don't think so.
Mr. Shays. There's nothing you need to say to this
committee that would be helpful to this committee?
Mr. O'Sullivan. I don't think I do, Congressman.
Mr. Shays. Thank you.
Mr. Burton. Mr. Tierney.
Mr. Tierney. Mr. O'Sullivan, at one point you told the
FBI's Office of Professional Responsibility that there were
always allegations being made against FBI Agent Connelly, but I
don't have any record of you telling exactly what those
allegations were. What were the allegations that you alluded
to?
Mr. O'Sullivan. I don't remember what I told the Office of
Professional Responsibility, Congressman.
Mr. Tierney. You don't have any recollection of that at
all?
Mr. O'Sullivan. Don't have any recollection at all. Don't
even remember being interviewed by the Office of Professional
Responsibility. When was the date of that?
Mr. Tierney. 1997. You don't remember back to 1997?
Mr. O'Sullivan. No.
Mr. Tierney. Not at all?
Mr. O'Sullivan. Not at all.
Mr. Tierney. You are familiar with the incident referred to
as 75 State Street?
Mr. O'Sullivan. I am.
Mr. Tierney. Did you ever discuss the 75 State Street
investigation with William Bulger prior to your announcement in
1989 that the investigation was closed?
Mr. O'Sullivan. No.
Mr. Tierney. Which FBI agent was in charge of that
investigation, Agent Morris?
Mr. O'Sullivan. He was the squad supervisor, yes.
Mr. Tierney. When you announced that the 75 State Street
investigation was closed, you said it was ``not even close.''
Would you have said that publicly if you knew at that time John
Morris was taking money and gratuities from James Bulger?
Mr. O'Sullivan. I don't think that would have affected my
decision on 75 State Street. The answer is yes, I would have
said that, even if I knew that fact.
Mr. Tierney. When you decided to close the case, did you
rely on the word of the FBI?
Mr. O'Sullivan. Yes, but I relied primarily on the two
investigating Assistant U.S. Attorneys who had done most of the
work and had interviewed most of the witnesses in that case. I
relied on Ralph Gantz and Alex Leak.
Mr. Tierney. So you did not rely on the FBI people at all
or just to a limited degree?
Mr. O'Sullivan. To a very limited degree.
Mr. Tierney. Do you think that investigation could have
been compromised by the information that you got from the FBI
sources?
Mr. O'Sullivan. Anything is possible but I don't think so,
Congressman. I think that the investigation was conducted
appropriately by the Assistant U.S. Attorneys and I think that
they got to the bottom of the case and there was no case
against Mr. Bulger.
Mr. Tierney. Did you ever interview Mr. Bulger, William
Bulger?
Mr. O'Sullivan. When I took over as U.S. Attorney I
arranged to have Mr. William Bulger interviewed by Alex Leak
and Ralph Gantz.
Mr. Tierney. But you didn't personally do this?
Mr. O'Sullivan. I did not personally.
Mr. Tierney. Before that interview were you aware of
whether John Connelly had talked to Mr. Bulger, Mr. William
Bulger, about the Federal investigation or any evidence that
had been developed?
Mr. O'Sullivan. I was not because I had basically set a
hermetic seal around that investigation so nobody would know
what we were doing. The information didn't go either way. I
didn't know he was asking about it or anything about it. I read
about it in the paper later on that he did ask about it.
Mr. Tierney. Did you direct any of your people to ask
questions concerning the relationship between Mr. Connelly and
Mr. Bulger, both Mr. Bulgers?
Mr. O'Sullivan. No. Let's back up a step because 75 State
Street was an investigation which a decision had been made that
they not be indicted, that an indictment should not be brought,
and it was reviewed by the then U.S. Attorney who ratified the
decision. The then U.S. Attorney was fired by the Justice
Department and I was made the temporary U.S. Attorney.
I was asked by Attorney General Thornburgh to review 75
State Street so that was a tertiary review that I was
reviewing. And that's where I directed these various interviews
of William Bulger, etc., which had not been done at that point.
That is a long way of answering your question, I think,
Congressman.
Mr. Tierney. You did not know at that point in time that
John Morris had been taking money and gratuities from James
Bulger?
Mr. O'Sullivan. I did not.
Mr. Delahunt. Does the gentleman yield?
Mr. Tierney. Yes, I yield.
Mr. Delahunt. Just one question. It's my memory that you
made a public announcement relative to the 75 State Street
investigation.
Mr. O'Sullivan. That's correct.
Mr. Delahunt. Where was that announcement made?
Mr. O'Sullivan. Where was it made? I think it was made in a
press room in this building the U.S. Attorney's Office had.
Mr. Delahunt. How long were you a government lawyer for the
Federal Government?
Mr. O'Sullivan. Sixteen years, I think.
Mr. Delahunt. How many times did you have a press
conference to announce the closure of an investigation without
an indictment?
Mr. O'Sullivan. This was a very rare instance.
Mr. Delahunt. Answer the question. How many times?
Mr. O'Sullivan. I think it may have happened before but I
just don't remember the instance. At least one other time, I
think.
Mr. Delahunt. One other time?
Mr. O'Sullivan. One other time.
Mr. Delahunt. Could you go back and try to refresh your
memory and let the staff and the committee know about that
other time?
Mr. O'Sullivan. Sure.
Mr. Delahunt. I yield to my friend.
Mr. Burton. But you didn't think there was enough evidence?
Is that correct?
Mr. O'Sullivan. I'm sorry, Congressman. Which case are we
talking about now?
Mr. Burton. We're talking about the 75 State Street
allegations.
Any other questions?
Mr. Meehan. Mr. Chairman.
Mr. Burton. Mr. Meehan.
Mr. Meehan. Were there other investigations of this matter?
Did any law enforcement agency conduct a similar investigation?
Mr. O'Sullivan. Of 75 State Street are you talking about?
Mr. Meehan. Yes.
Mr. O'Sullivan. Yes. The Massachusetts State Attorney
General reviewed the matter as well.
Mr. Meehan. Which Attorney General was that?
Mr. O'Sullivan. Scott Harshbarger.
Mr. Meehan. And had the prior Attorney General reviewed the
case? State Attorney General.
Mr. O'Sullivan. I don't know. I only know that I think it
was Mr. Harshbarger's office.
Mr. Meehan. And did Mr. Harshbarger make a determination on
the case?
Mr. O'Sullivan. He did.
Mr. Meehan. What was that determination?
Mr. O'Sullivan. That there was no indictable case.
Mr. Meehan. No further questions.
Mr. Burton. Let me just go through this real quickly here.
Thomas Finnerty was a partner or a law associate of Bulger.
Brown paid Finnerty $500,000 in July 1985 as a partial payment
for Finnerty's partnership interest in the 75 State Street
development. A month later Finnerty issued himself and Bulger
checks for $225,000 each.
Two additional checks were issued to Bulger and Finnerty
for $15,000 in October 1985. Bulger claims that the money was a
loan in anticipation of a legal fee. There was a superseding
indictment that was issued by a Federal grand jury in Boston
that Brown had made illegal payments to the city of Boston
further alleging that other public officials had received
moneys from Brown.
Bulger returned $215,000 to Brown's trust 3 days after the
indictment became public and made an additional repayment of
$39,000 2 weeks later. All the funds that Bulger paid, he
repaid all these loans but they were returned to him within the
next 12 months, I presume, as legal fees. You said the case
showed power brokering but did not rise to the level of
extortion.
Mr. O'Sullivan. That's correct, Congressman.
Mr. Burton. You don't think that sounds a little bit
unusual?
Mr. O'Sullivan. Sure. That's why I said it was power
brokering, Congressman.
Mr. Burton. What is the difference between power brokering
and extortion?
Mr. O'Sullivan. My view was that Mr. Finnerty was
attempting to play on his connection with Mr. Bulger to shake
down the real estate developer who wanted some influence from
Mr. Finnerty. But the real question is what does Mr. Bulger do
with respect to it? We had no evidence that Mr. Bulger did
anything in his official capacity. That is, he introduced no
legislation, did nothing about it.
Mr. Burton. So he returned all the money to show that there
was nothing?
Mr. O'Sullivan. I have no idea why he returned it.
Mr. Burton. All the money was repaid to him over the next
year?
Mr. O'Sullivan. I have no idea about that. In order to be a
Federal crime it has to be under color of official right and a
state official has to do something and we could find nothing.
We diligently went through the state house archives to find
legislation whether Mr. Bulger had introduced legislation to
facilitate the city taking the parking garage that 75 State
Street is built on.
Out of all of that we couldn't find a single thing that he
did. All I was doing, Congressman, was a tertiary review of a
decision that had been made by two line prosecutors and
ratified by a then U.S. Attorney to close the case. I was
reviewing the closure. I wasn't the line attorney doing the
investigation. I was reviewing the investigation.
Mr. Burton. OK.
Any other questions?
Mr. Delahunt. I have some to wrap up and clean up.
Mr. Burton. Go ahead, Mr. Delahunt.
Mr. Delahunt. It's just some clean-up in terms of an
interview that was conducted by the FBI back in July 1997 of
yourself. Presumably it was done pursuant to an OPR
investigation. I think, Mr. Scott, you were present with Mr.
O'Sullivan.
Some of these statements, I think, are not ample enough to
reflect the facts. On page 1 it says, ``O'Sullivan had no
involvement in the Lancaster Garage Title 3 investigation until
after the fact.'' That's inaccurate. Correct?
Mr. O'Sullivan. That's inaccurate, Congressman.
Mr. Delahunt. Not only were you intimately involved in that
investigation per your testimony here today, but presumably you
were funding it through LEAA or----
Mr. O'Sullivan. Was not funding it, Congressman. It was
done by the state police and the District Attorney's Office.
All I did was help the District Attorney. The Assistant
District Attorney who was assigned to the case had no
experience with electronic surveillance.
If there is anything that I know, it's an electronic
surveillance. I helped them write the T3 application, the state
T3 application, and familiarize them with the T3 routine, how
we would have to file reports with the monitoring judge at that
time.
Mr. Delahunt. If you read this, it would appear to be a
Federal Title 3. Obviously it's not a Title 3 investigation.
It's a state investigation but it wouldn't be Title 3.
Mr. O'Sullivan. That's correct.
Mr. Delahunt. OK.
Mr. O'Sullivan. Title 3 authorizes a state to have their
own.
Mr. Delahunt. I understand. There are references here to an
investigation you were conducting relative to the Boston Police
Department. There is a statement in here. I don't know whether
it belongs here and what the rationale is for it but let me
read it to you. ``Connelly [referring to the former agent John
Connelly] was very close to Ed Walsh of the Boston Police
Department. Walsh became a Deputy Superintendent of the Boston
Police Department and was a self-proclaimed expert on organized
crime.'' What is the purpose, if you can remember?
Mr. O'Sullivan. I don't remember. I don't remember making
that statement. I don't remember the interview, Congressman but
it's there. I must have said it.
Mr. Delahunt. Also there is a reference in here to a
statement that you made relative to an Angelo Sonny Macurrio.
Let me read it to you. ``O'Sullivan was never told that
Maccurrio was an FBI informant while he was the governing
prosecutor. O'Sullivan was shown a copy of a letter dated
October 31, 1988, that he appeared to have drafted. The letter
was addressed to the U.S. Parole Commission.
It was written in behalf of Angela Macurrio. O'Sullivan did
not recall this letter and it did not refresh his recollection.
O'Sullivan does not recall having any conversations with Diane
Kottmyer, who was a member of the Strike Force, about Macurrio
being an informant. At that time there was nothing special
about Macurrio and, therefore, no reason for any of this to
stick out in O'Sullivan's mind.'' Is that an accurate
reflection of what you can remember?
Mr. O'Sullivan. Or can't remember.
Mr. Delahunt. Or can't remember.
Mr. O'Sullivan. Yes.
Mr. Delahunt. It goes on here to say, ``There were probably
15 to 25 instances where the identities of FBI informants were
revealed to O'Sullivan. O'Sullivan traveled on several
occasions to testify on behalf of informants. He also had
meetings at the Department of Justice where the identities of
informants were revealed to him.'' Is that a reflection of what
you can remember now in terms of your interaction with
informants?
Mr. O'Sullivan. I don't remember saying that but, yes,
that's my interaction with informants.
Mr. Burton. Mr. Wilson has one question and then we'll let
you go, Mr. O'Sullivan.
Mr. Wilson. Mr. O'Sullivan, is it fair to say that the
decision not to indict Bulger and Flemmi in the Race Fix Case
was an exercise in prosecutorial discretion?
Mr. O'Sullivan. Yes.
Mr. Wilson. Fair enough. My last comment was, Mr. Scott,
your attorney, has vigorously represented you but he has been a
pleasure to deal with. We don't always get that. I really do
appreciate his willingness to work with us and his cooperation
with us. I want to thank him for that because, as I say, it's
not what we always get.
Thank you, Mr. Scott.
Mr. Scott. We appreciate the opportunity to cooperate with
this committee because there have been a lot of misstatements
and distortion of the record in regard to Mr. Mr. O'Sullivan's
very distinguished career as a Federal prosecutor. We welcome
the opportunity to set the record straight. 20/20 hindsight is
a wonderful thing in terms of guessing the exercises, as Mr.
Wilson as said, of prosecutorial discretion.
I think that the record is absolutely clear that Mr.
O'Sullivan using his best good faith judgment as an experienced
prosecutor made what he believed to be an appropriate decision
at the time and under the circumstances not to indict Mr.
Bulger and Mr. Flemmi in the Race Fix Case. He did that using
his best good faith judgment of what was a way to proceed and
the most effective way to obtain a conviction of Mr. Winter and
not do it as a response to the FBI and he exercised his best
judgment.
Mr. Burton. We appreciate your comments. You weren't sworn.
We normally don't have attorneys for witnesses who are
testifying. Let me just say that we will followup on the
answers that were given by Mr. O'Sullivan and we may get back
to you with some additional questions at some point in the
future.
With that, we'll let you go and we'll go to the next panel.
We would like to take maybe a five or 10-minute break and then
we'll come right back at 3 because it's getting late in the day
and we want to get through the rest of this.
Mr. O'Sullivan. Thank you, Mr. Chairman. I appreciate
appearing before the committee.
[Recess.]
Mr. Burton. Sorry for the lateness of getting back in here
but we had some things come up that we had to address. Like all
hearings, you have unexpected things occur.
Paul Markham, thank you for being here. Would you please
rise. Do you have counsel with you?
Mr. Markham. No.
[Witness sworn.]
Mr. Burton. Do you have any opening statements you would
like to make, Mr. Markham?
STATEMENT OF PAUL MARKHAM, FORMER U.S. ATTORNEY FOR THE
DISTRICT OF MASSACHUSETTS
Mr. Markham. No, sir.
Mr. Burton. You do not have any opening statement?
Mr. Markham. No, I'm here to answer your questions.
Mr. Burton. OK. Great. You were the lead prosecutor in a
case involving the use of Joe ``The Animal'' Barboza against
New England Mafia Boss Raymond Patriarca. Barboza testified in
three cases over a 6-month period. One was the Patriarca
prosecution and another was a prosecution of Gennaro Angiulo.
The third was a prosecution of six individuals for the murder
of Edward ``Teddy'' Deegan. The Patriarca prosecution was
Federal and the other two were state. I mark them as important
because Federal law enforcement developed the Barboza, so on
and so forth. I won't go into all of that. Let me get to the
questions.
You have the exhibits in front of you, sir?
Mr. Markham. What exhibits?
Mr. Burton. Do we have any exhibits in front of him?
Mr. Markham. I never received any exhibits.
Mr. Burton. You did not?
Mr. Markham. No.
Mr. Burton. OK. You'll get them right now and we'll take
the time to let you take a look at them. There are questions we
will be asking based upon these exhibits.
Mr. Markham. What are they?
Mr. Burton. You have exhibit No. 1 before you, sir?
[Exhibit 1 follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Markham. I have it, yeah.
Mr. Burton. OK. It states that the microphone surveillance
advised on March the 9, 1965, that James Flemmi and Joseph
Barboza requested permission from Patriarca to kill Edward
``Teddy'' Deegan as they are having a problem with him.
Patriarca ultimately furnished his OK. Were you aware of this
in 1968, that Patriarca had OKed the hit?
Mr. Markham. Well, I was aware. Are you familiar with the
Taglianetti Case, sir?
Mr. Burton. My chief counsel is and I'll be glad to yield
to him.
Mr. Markham. There was for a period of time a bug, if you
will, in the Patriarca office in Providence, Rhode Island. That
had been in place since 1962 through 1965. The Taglianetti Case
was in Providence, Rhode Island, which was a Federal income tax
prosecution.
The government voluntarily at that time, or the FBI, said
that we had these illegal tapes in Patriarca's office during
that period of time. As a result of our prosecution of
Patriarca, we wanted to be sure that it was clean. That is, the
so-called Marfeo case.
As a result of that, we were sent not the tapes themselves
but what is called logs which were excerpted by somebody in the
Department of Justice who had listened to these tapes
presumably certain excerpts. We wanted to know the excerpts
with respect to Barboza and the Marfeo case.
With respect to this first thing, it very well may have
been in those logs. I don't recall at this point but I don't
dispute the fact that it was. Let me say this. I had no
interest in the Teddy Deegan case. That was a state case. Not
only that, but this log was also produced in the Patriarca
case.
One of the defendants, rather one of the counsel in that
case, was the most prominent and best criminal lawyers in the
state, Mr. Balliro, had this information. Mr. Balliro also
represented one of the defendants in the Deegan case. Aside
from that, is there a question with respect to--yes, I was
aware of it perhaps, but it had no relevance to me at the time
in connection with the Patriarca prosecution.
Mr. Burton. I understand. What bigger targets for
prosecution did the U.S. Attorney's Office in Boston have in
1968 than Raymond Patriarca?
Mr. Markham. I would say none.
Mr. Burton. We asked Dennis Condon why Patriarca wasn't
prosecuted for the Deegan murder and he suggested that we
should ask you about that. Microphone surveillance had Jimmy
Flemmi and Joe Barboza asking Patriarca for permission to kill
Deegan.
Mr. Markham. I didn't understand the first part. Why he
wasn't prosecuted for what?
Mr. Burton. We asked Dennis Condon why Patriarca wasn't
prosecuted for the Deegan murder because he OKed the hit.
That's why I asked you that first question. And he suggested
that we ought to ask you. Microphone surveillance had Jimmy
Flemmi and Joe Barboza asking Patriarca for permission to kill
Deegan.
At least two FBI documents say that Patriarca gave his
permission. That is in exhibit 1 and 16 that you have before
you. Deegan
was killed 3 days later and the Justice Department had a lot of
reliable evidence that Flemmi and Barboza killed Deegan. Did
you ever discuss with anyone whether Patriarca should have been
prosecuted for Deegan's murder?
[Exhibit 16 follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Markham. No, I did not. As was stated earlier today,
there is no Federal statute on murder. If he was murdered, that
would either have been in Rhode Island or Massachusetts.
Mr. Burton. What about interstate conspiracy?
Mr. Markham. Patriarca was indicted in our case on the so-
called Travel Act, Title 18, 1952. Marfeo was never killed, by
the way. After our indictment Barboza was turned over to the
District Attorney's Office from whom we got him in the first
place. Now, if they wanted to prosecute anybody for murder,
they could have. I had no control over that.
Mr. Burton. But you didn't think you should take any action
knowing that Patriarca gave the OK to kill Deegan?
Mr. Markham. I didn't think who should take any action?
Mr. Burton. You didn't feel like you should take any action
against Patriarca for the Deegan murder?
Mr. Markham. No, I didn't. What action could I have taken?
Mr. Burton. You have a tape that----
Mr. Markham. No, I don't have a tape.
Mr. Burton. You have the excerpts of the tape.
Mr. Markham. Yeah.
Mr. Burton. Did the excerpts of the tape indicate or show
that Patriarca OKed the murder?
Mr. Markham. The excerpts are here presumably. I don't
recall seeing any excerpts. Now, whether or not----
Mr. Burton. You said you read exhibit 1.
Mr. Markham. I read the first----
Mr. Burton. I know, but you had this in your possession
when the prosecution was taking place. You got these logs, you
said.
Mr. Markham. I'm sure that they were not--I didn't. My
staff in the office went over this. I reviewed it, of course.
I'm sure I saw this.
Mr. Burton. I'm sure the staff would point out something as
relevant.
Mr. Markham. Not relevant to my case.
Mr. Burton. Well, I know, but something as important then
as Patriarca saying to those individuals, Barboza, ``Yeah, go
ahead and you can kill Deegan.'' You say there is no action
that you could have taken?
Mr. Markham. Yeah, the action to turn Barboza over to the
District Attorney's Office. They could pursue that if they
wanted to. I don't know whether they knew this or not but don't
forget, sir, these were illegal tapes that were under seal in
this court. I don't know whether I could have possibly released
this information.
Mr. Burton. Did you ever talk to Jimmy Flemmi about his
involvement in the Deegan murder?
Mr. Markham. Wouldn't know Jimmy Flemmi if I tripped over
him. Never heard of him.
Mr. Burton. Exhibit No. 3 is a memorandum written by FBI
agent Dennis Condon. It says Flemmi told an informant that all
he wants to do now is kill people and that is better than
hitting
banks. Informant said Flemmi said that he feels he can now be
the top hit man in this area and intends to be. Exhibit 4 has
FBI Director Hoover asking the Boston Office how its efforts to
develop Jimmy Flemmi as an informant were coming along.
[Exhibit 3 follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Markham. I don't know that I have ever seen that, sir.
Mr. Burton. Uh?
Mr. Markham. I don't know that I have ever seen that.
Mr. Burton. You don't have exhibit 4 before you?
[Exhibit 4 follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Markham. Exhibit list, exhibit 4. Memorandum from FBI
Director. No, I don't have that. I don't think I've ever seen
that.
Mr. Burton. I think it's in your packet there.
Mr. Markham. It says right here. I see it, but I never saw
that before.
Mr. Burton. Have you looked at the exhibit in there, sir,
exhibit No. 4?
Mr. Markham. Yes.
Mr. Burton. It says the FBI Director asked the Boston
office how its efforts to develop Jimmy Flemmi as an informant
were coming along. A couple of days later Hoover got an answer.
In exhibit No. 5 it says that Jimmy Flemmi has murdered seven
people including Deegan.
From all indications he is going to continue to commit
murder. The document concludes by saying that the benefit of
developing Flemmi as informant outweighs the risk. Were you
aware at the time that Flemmi wanted to be the best hit man in
the area?
[Exhibit 5 follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Markham. No, I wasn't.
Mr. Burton. And at the same time that the FBI----
Mr. Markham. Sir, I have never seen these documents that
you show us that are attached here until just this minute. I
wouldn't see them in the normal course of business.
Mr. Burton. Let me ask you some questions then assuming you
haven't seen those documents.
Mr. Markham. Go ahead.
Mr. Burton. Were you aware that Flemmi wanted to be the
best killer, hitman, in this area?
Mr. Markham. I had never heard of Jimmy Flemmi. I didn't
know him. I had never heard that, no.
Mr. Burton. And you weren't aware that he killed seven
people?
Mr. Markham. No, I wasn't.
Mr. Burton. Did Jimmy Flemmi ever go before a grand jury to
talk about the Deegan murder?
Mr. Markham. No, he didn't. I don't know. The State's grand
jury? I don't know. He never was here.
Mr. Burton. Judge Harrington said Flemmi was put before a
grand jury to give him cover. Were you aware of that?
Mr. Markham. No. What grand jury? State grand jury?
Mr. Burton. We don't know whether it was a Federal or state
grand jury. You are not aware of it?
Mr. Markham. No, I'm not. I don't think it was a state
grand jury because I had no contact with Jimmy Flemmi.
Mr. Burton. So you didn't know that Jimmy Flemmi was a
Federal informant?
Mr. Markham. I don't know if he ever was. There's two
Flemmis. One is Steve and one is Jimmy.
Mr. Burton. Well, Vince and Jimmy Flemmi.
Mr. Markham. Yeah.
Mr. Burton. You didn't know that he was a Federal
informant?
Mr. Markham. I didn't know that until I read the decision
in Commonwealth against Limone wherein part of that opinion
states that, ``FBI focus on Flemmi as a potential source began
on March 1965. The first reported contact with Flemmi as an
informant was by FBI Agent Rico on April 5. In his letter AUSA
Durham states that FBI files show that Flemmi was contacted
five times as an informant by Special Agent Rico and that
Flemmi's file was closed on September 15, 1965.''
Mr. Burton. You reviewed the handwritten logs, you said.
Mr. Markham. I said my staff reviewed them and I reviewed
their pros memo.
Mr. Burton. Do you recall reviewing the part that said
something about Patriarca talking about approving the hit of
Deegan?
Mr. Markham. I just said yes. Yes, I did.
Mr. Burton. You remember that? OK.
Mr. Markham. Well, I don't remember it specifically. If it
was in there I didn't pay that much attention to it because it
had nothing to do with the case I was interested in.
Mr. Burton. It seems to us if you had the microphone
surveillance about Patriarca and the Deegan----
Mr. Markham. No, I didn't have the microphone surveillance,
sir. That's where you're wrong. The FBI did and they admitted
that it was illegal.
Mr. Burton. But you had the logs.
Mr. Markham. That's right.
Mr. Burton. And your staff reviewed the logs.
Mr. Markham. That's right.
Mr. Burton. And you reviewed your staff report.
Mr. Markham. That's right.
Mr. Burton. If you had the logs about the surveillance
about Patriarca and the Deegan murder that showed Patriarca was
involved, and you had a witness that had decided to testify
because he was facing a very long prison sentence, you would
spend a lot of time discussing the Deegan murder. Is that a
mistaken assumption?
Mr. Markham. That's a mistaken assumption on your part. My
focus in the Patriarca case was with the informant that we had,
Mr. Barron, who was going to testify about the Willy Marfeo
situation, not about Deegan. Deegan was done by the state. I
had nothing to do with the state prosecution of Deegan.
I would be very much surprised if Mr. Balliro, who was
aware of these logs, did not talk to Flemmi. I would be very
much surprised if that is not the case. I would be very much
surprised if there is not also other information somewhere in
the files that disclose there were several other people
involved in this.
Mr. Burton. That's why we're asking you these questions,
sir. Just a moment.
Mr. Tierney. The only question I would have, just to cut to
the crux of it, sir, having had those notes did you at sometime
become aware that there was a prosecution with respect to the
Deegan murder?
Mr. Markham. I was aware only that there was such a
prosecution. It had no significance to me with respect to my
function as a U.S. Attorney.
Mr. Tierney. Knowing there was a prosecution going on it
just never came into your consciousness that, ``Gee, I have
information and maybe these guys on trial aren't responsible.''
Mr. Markham. Well, I would assume that the Suffolk County
District Attorney investigated that case fully.
Mr. Tierney. I guess what I'm thinking is did you not even
get to the level of concerning yourself that, ``I heard
something different than it what it looks like they are
prosecuting?''
Mr. Markham. I didn't hear something different.
Mr. Tierney. Or you read something perhaps.
Mr. Markham. Well, I'm not so sure that's so.
Mr. Tierney. I'm asking you whether or not your staff gave
you that information and whether or not it rang a bell for you
when you found out they were prosecuting other individuals.
Mr. Markham. Well, of course, as you know, Baron was in on
the Deegan case and testified that he shot him. Flemmi was not
indicted. Why I don't know. I never thought of it.
Mr. Tierney. That's my question. You never thought of it?
Mr. Markham. No. Any number of reasons why he might not
have been indicted.
Mr. Tierney. Well, that's where I was going. I was
wondering if you thought of it and thought you just didn't have
to take any action or whether it never occurred to you.
Mr. Markham. It never occurred to me.
Mr. Lynch. Mr. Markham, in the earlier testimony with Judge
Harrington, you talked about the fact that this listening
device that had been planted in Patriarca's office had rendered
evidence to the New England Strike Force. Not just to one
single person but was disseminated among law enforcement that
were interested in prosecuting organized crime as a rule, not
just what was perceived to be happening in a Federal court but
what was happening in society and all of New England.
On this tape based on the evidence that we got from the
FBI--and they have summaries there. They are not the actual
logs--it was reported that Vincent, or James Flemmi, and Joe
``The Animal'' Barboza had asked Mr. Patriarca for permission
to kill Teddy Deegan.
Mr. Markham. Yeah.
Mr. Lynch. And after getting the approval they carried that
out. Mr. Deegan's body was found in the trunk of a car in
Massachusetts in Chelsea. Any sense that might be some type of
interstate conspiracy to commit murder that would fall under a
Federal jurisdiction?
Mr. Markham. They were prosecuted. The Deegan murder was
Roy French. About five people were prosecuted for that case.
Mr. Lynch. The wrong people.
Mr. Markham. I don't know whether they were or not. I
wasn't there. You know, the SJC affirmed that decision. There
were several motions for a new trial. As a result of Judge
Wolf's hearing there is some question now on the credibility of
some of the witnesses. The testimony was principally based on
Baron who in exhibit 1 admits that he was down with Patriarca
requesting permission. Why Flemmi wasn't indicted I don't know.
Maybe they didn't have anything on Flemmi. I don't know.
Mr. Burton. Let me followup on that. Since the murder
involved going across the state line, you did have jurisdiction
if you wanted to indict Patriarca for murder. Didn't you?
Mr. Markham. We had already indicted Patriarca on the
Marfeo thing when these things----
Mr. Burton. I understand. I understand, but you could have
indicted him.
Mr. Markham. Perhaps. I wasn't familiar nor was there any
investigation with respect to corroboration on that thing. That
was done by----
Mr. Burton. I know, but you saw----
Mr. Markham. No, no, no. Let me finish my answer. That was
done by the Suffolk County Office, not by the U.S. Attorney's
Office.
Mr. Burton. I understand. But you looked at the logs.
Mr. Markham. Yeah, and saw this.
Mr. Burton. And you saw that the Deegan hit was approved by
Patriarca. The crime went across state line so you did have
jurisdiction.
Mr. Markham. Yeah.
Mr. Burton. Since you had jurisdiction why didn't you
indict Patriarca on that charge?
Mr. Markham. Because Patriarca had already been indicted on
the Marfeo thing. OK?
Mr. Burton. I understand.
Mr. Markham. We wanted to do that one first. I had left the
office in 1969. I left the office in June 1969.
Mr. Lynch. Mr. Markham, just because Mr. Patriarca was
being already prosecuted for another murder, I don't just
understand that----
Mr. Markham. Because there were several legal issues
involved in this on the Title 18 1952, the so-called Travel
Act. They were determined by the Court of Appeals as to whether
or not the particular facts in the Patriarca case would support
a conviction under 1952.
There was plenty of time--I don't know if there was plenty
of time. I don't know about the statute of limitations or
anything, but we had gone through with the information we had
at the time of the indictment, prior to the indictment, and we
prosecuted him. I didn't get this information until after the
indictment. I'm sorry. I misspoke. We didn't get this
information until after the----
Mr. Burton. The logs clearly showed----
Mr. Markham. I understand that.
Mr. Burton. Let me finish. The logs clearly showed that
Deegan and Barboza were involved in the Deegan murder.
Mr. Markham. No, it doesn't. I disagree with you on that.
It clearly shows that two hoodlums were down in Patriarca's
office and requested permission.
Mr. Burton. Flemmi and Barboza were involved in the murder
so there was----
Mr. Markham. No, it doesn't. Two hoodlums were down there
shouting their mouth off probably, bragging and wanting to know
if they could. That's doesn't prove it. Do you think that is
admissible in a court?
Mr. Burton. Just let me finish my question.
Mr. Markham. I thought you had.
Mr. Burton. Just let me finish. I haven't because you keep
interrupting. You had four or five people go to jail.
Mr. Markham. No, I didn't have four or five people----
Mr. Burton. No, not you. Listen.
Mr. Markham. You said you did and I didn't.
Mr. Burton. Four or five people went to jail.
Mr. Markham. Yeah.
Mr. Burton. They were not guilty of----
Mr. Markham. I don't know whether they were or not.
Mr. Burton. They were not guilty of the Deegan murder
history has proven. There was information in these logs that
showed that Patriarca OKed Flemmi and Barboza to make the hit.
You had that information before you. Why----
Mr. Markham. It didn't----
Mr. Burton. Listen. You had it and you saw it. You knew
these other people were convicted and went to jail and they
stayed for 30 years. Why wasn't that ever pursued by you or
your office? Why wasn't that brought forward?
Mr. Markham. Because it was irrelevant to my office. It
didn't say in this log here that Roy French was also going to
do it either. Do you know the facts in the Deegan case, sir?
Mr. Burton. Well, we certainly have looked at it for the
last several years.
Mr. Markham. Well, OK. How many people were indicted?
Mr. Burton. Six.
Mr. Markham. Was Roy French one of them?
Mr. Burton. Hey, listen. You're not questioning me.
Mr. Markham. No, no. But you are imputing my integrity that
I resent.
Mr. Burton. OK. I'm going to let our legal counsel question
you.
Mr. Wilson. If we could just back up for a minute.
Mr. Markham. What?
Mr. Wilson. If we could just back up for a minute, please.
Mr. Markham. Sure.
Mr. Wilson. What we want to start off with, I think one of
the first questions was was Raymond Patriarca a very important
target for the Boston U.S. Attorney's Office in 1967 and 1968?
Mr. Markham. That's right.
Mr. Wilson. Was he the biggest target for prosecution of
the Boston U.S. Attorney's Office in 1967 and 1968?
Mr. Markham. I don't know.
Mr. Wilson. If there was somebody who was a bigger target,
who would that have been?
Mr. Markham. Dr. Spock perhaps, that whole thing.
Mr. Wilson. Fair enough.
Mr. Markham. The Plymouth Mail Robbery.
Mr. Wilson. Well, had you received any direction from
Washington, DC, vis-a-vis Raymond Patriarca? For example, was
Raymond Patriarca part of the top hoodlum program?
Mr. Markham. See, we didn't have at that time--back in
1968, 1967 when this originated, there was no such thing as an
Organized Crime Strike Force. There just wasn't.
Mr. Wilson. Fair enough, but will you stipulate that
Raymond Patriarca was one of the most significant targets for
prosecution in New England in 1967 and 1968?
Mr. Markham. I wouldn't call him a target. He was a well-
known organized crime figure. Target, I don't know.
Mr. Wilson. As a prosecutor in your efforts to attempt to
prosecute individuals who you believed were breaking law, was
he a person known to you at the time?
Mr. Markham. He was a person known to everybody who read
the paper, yeah.
Mr. Wilson. Fair enough. When you had information such as
the information in the prosecution memo that was discussing
Raymond Patriarca and his possible involvement in a conspiracy
to murder Willy Marfeo, were you interested in the information
that was relevant to Raymond Patriarca?
Mr. Markham. With respect to the Deegan thing, the answer
is no because my focus was on the Marfeo case.
Mr. Wilson. Let me just sort of try and move to a level of
common sense.
Mr. Markham. Please. I'm trying to use common sense.
Mr. Wilson. Information pertaining to Raymond Patriarca
that was picked up from microphone surveillance, was that of
interest to you and your office?
Mr. Markham. This particular log on March 9, 1965?
Mr. Wilson. I'm not asking about a particular piece of
information. I'm just thinking as you prepared the Marfeo
indictment were you interested in the landscape of information
available to you? For example, if there was a piece of
information that indicated to you Patriarca might have been
involved in a Marfeo conspiracy to murder Marfeo, that might
have been of interest to you. Correct?
Mr. Markham. It was because I had a witness who was going
to testify to that. I had no witness who was going to testify
with respect to the Deegan case.
Mr. Wilson. Fine. If there was a piece of information in
the same set of logs available to you that said that Patriarca
was not involved in the Marfeo conspiracy, would that have been
of interest to you?
Mr. Markham. I wouldn't have prosecuted him.
Mr. Wilson. OK. So what you're telling us is that you
reviewed all of the information available to you to determine
what you were able to do as a prosecutor.
Mr. Markham. With a witness. I had no witness on the----
Mr. Wilson. I'm not asking you about the Deegan case.
Mr. Markham. You asked me a broad question and you want the
answer.
Mr. Wilson. I'm asking you very broad questions. I'm asking
you the question were you--was it important to you to review
all of the relevant information pertaining to Raymond Patriarca
as you prepared the Marfeo indictment?
Mr. Markham. As it affected Willy Marfeo, yes.
Mr. Burton. Let me finish my statement and then you can
respond.
Mr. Markham. I would be happy to.
Mr. Burton. You had documentation that showed that
Patriarca OKed the hit on Deegan. Let me finish. You had that
information before you. The two people involved was Flemmi and
Barboza. That information was relevant to the people who went
to jail for the Deegan murder. Why wasn't that information made
public so that these people who were innocent might have gotten
out of jail quicker?
Mr. Markham. Because that information was under seal in
this court, No. 1. It was illegally obtained information.
That's No. 1. I don't think it would have been appropriate of
me to release it.
Mr. Burton. Let me followup on that.
Mr. Markham. Let me finish the answer. Also, this
information that is exhibit 1 was known to Mr. Balliro and Mr.
Chisum both of whom represented defendants in the Deegan case.
Mr. Burton. How do you know they knew that?
Mr. Markham. Because they had access to it. It was given to
them.
Mr. Burton. How do you know that?
Mr. Markham. I know that Mr. Balliro is one of the most
competent trial lawyers I know and I know that if everything is
turned over to him that could be of a exculpatory nature or
that is relevant, he would have read it.
Mr. Burton. That is deductive reasoning.
Mr. Markham. It is. It is.
Mr. Burton. How do you know that? You don't know it for a
fact.
Mr. Markham. I did not go up to him and say, ``Joe, did you
read the Deegan case?'' No.
Mr. Burton. So you don't know?
Mr. Markham. Only what I told you, that it was available to
them. If they wanted to read it they could and I'm sure they
did.
Mr. Burton. I want to make sure I understand this.
Mr. Markham. Sure.
Mr. Burton. There were two attorneys who were representing
the defendants in the Deegan case.
Mr. Markham. Two of the defendants.
Mr. Burton. Two of the defendants in the Deegan case. They,
according to you, had exculpatory evidence that would have
shown that they weren't involved in the murder.
Mr. Markham. No, according to you. They had the log that is
exhibit 1 here.
Mr. Burton. They had the log and it was not used in court?
Mr. Markham. I don't know whether it was or not. I didn't
follow the Deegan case.
Mr. Burton. You said it was under seal. How did you know
that?
Mr. Markham. Because it was under seal except for defense
counsel in the Patriarca case that had access to it. Presumably
Mr. Balliro and Mr. Chisum availed themselves of the
opportunity to look at this evidence that was produced which
was this.
Mr. Tierney. Could you yield for a second?
Mr. Burton. Yeah, I'll be happy to yield.
Mr. Tierney. Just for my benefit, are you assuming that in
the normal course of things the information would have been
available to them?
Mr. Markham. Sure.
Mr. Tierney. Do you know for a fact that it was given or
might it not have been given?
Mr. Markham. We were instructed to deposit it with the
court.
Mr. Tierney. For the purposes of disclosing it to Mr.
Balliro and Mr. Chisum?
Mr. Markham. Yeah, sure.
Mr. Tierney. For that specific purpose?
Mr. Markham. Well, you know, that was 30 some years ago.
There were motions for a production of documents and for
exculpatory evidence. This was produced in response to those
motions.
Mr. Tierney. In the Deegan case?
Mr. Markham. No, in the Patriarca case.
Mr. Tierney. OK. So in your Patriarca case you disclosed
these documents or deposited them in court for those attorneys
to see.
Mr. Markham. That's correct.
Mr. Tierney. And then you are assuming that if they saw
them in that case, they would then use them in the other case?
Mr. Markham. I would think so, yeah.
Mr. Burton. Mr. Wilson.
Mr. Wilson. I want to go back to where I was pursuing this.
In the Taglianetti Case Mr. Taglianetti got selected
information that was pertinent to Taglianetti's interaction
with Patriarca. Correct?
Mr. Markham. I don't know the facts in the case except that
Taglianetti was the case that the FBI----
Mr. Wilson. Hold on.
Mr. Markham. Let me finish. Voluntarily disclosed that they
had a bug in the Patriarca office for about 4 years.
Mr. Wilson. But in the Taglianetti case Mr. Taglianetti got
a small subset of the information from the overall universe of
material reported in 168 Atwell Avenue. Correct?
Mr. Markham. Yeah.
Mr. Wilson. OK. If Mr. Taglianetti got a subset of the
information available to him for use in his case, how are you
able to tell us today that an individual got everything?
Mr. Markham. I'm not saying that today. I'm saying that
exhibit 1 was part of the logs. I told you I don't recall what
the whole logs were but I do know that this was in it.
Mr. Tierney. Can I go through this again because I'm not
sure that you weren't talking when we said this. My
understanding is that in your case of Marfeo you had these
excerpts of the tapes. Your office had them.
Mr. Markham. That's right. There were excerpts----
Mr. Tierney. In the Marfeo case two of the attorneys were
Chisum and Balliro.
Mr. Markham. Right.
Mr. Tierney. Who we later found out were also two of the
attorney in the Deegan case.
Mr. Markham. Right.
Mr. Tierney. In our Marfeo case the judge deposited to
court for purposes of the defense counsel's review all the
exculpatory material you had. You deposited it amongst that
exculpatory material these excerpts.
Mr. Markham. Correct.
Mr. Tierney. And then assumed that they had the opportunity
to see them here and assumed that they did because you know
them to be good counsel.
Mr. Markham. Sure.
Mr. Tierney. If they had in the Marfeo case, then you would
assume that they, being the same counsel in the Deegan case,
had also seen them for that purpose.
Mr. Markham. Correct. And the further assumption is that
because the case was investigated by the Suffolk County
District Attorney's Office who had access to Baron, Baron was
going to tell them the whole thing whether in fact Flemmi was
there or not there or whatever it was. The fact that he did or
did not is something that is a different jurisdiction.
Mr. Burton. I would just like to make a comment. You don't
have to answer because it's not relevant to your questioning.
Mr. Markham. What are you going to make it for then?
Mr. Burton. I just want to make this comment. It seems
incredulous to me that there were sealed documents that would
show the innocence of people that were languishing in prison
and they were sealed because it was illegally obtained. Even
though it was illegally obtained to let people rot for 30 years
in jail when you know they are innocent is just hard to
comprehend.
I mean, obviously these phone taps were illegal. Obviously
the logs were illegal. Obviously it was sealed by the court
because it was illegal. Yet, those documents showed clearly
that the people who were responsible for the Deegan murder
weren't the people in jail. Why you would let people rot----
Mr. Markham. Wait a minute. Please.
Mr. Burton. Why anybody would let people stay in jail when
there is exculpatory evidence, even though illegally obtained,
is beyond me.
Mr. Markham. Are you accusing me, sir, of knowing----
Mr. Burton. Not you. Not you.
Mr. Markham. What are you asking me for?
Mr. Burton. I didn't ask you that. I was making that
comment. This stuff was sealed and it showed that the wrong
people were in the slammer.
Mr. Markham. Why don't you ask Mr. Balliro that?
Mr. Tierney. Just in fairness I want to give you an
opportunity to say something on this. You never saw the
transcripts in total or never heard the tapes?
Mr. Markham. No. They weren't available to anybody.
Mr. Tierney. So it wasn't a case of you personally not
making these available. I know the chairman didn't mean to
imply that but I want to give you the opportunity to speak to
that point. All that you saw were the excerpted----
Mr. Markham. Yeah.
Mr. Tierney. You were working with District Attorney Garret
Byrne at the time in matters back and forth?
Mr. Markham. Correct.
Mr. Tierney. There is a memo written by who was then your
assistant, I think, Ed Harrington, who subsequently became a
judge. He thought there was excellent cooperation between U.S.
Attorney Paul Markham, District Attorney Garret Byrne and the
FBI. Then he said that District Attorney Byrne ``at our
request,'' assuming yours and his or yours and the FBI and his,
``held off calling Baron before a local grand jury until we
have concluded our investigation.''
Mr. Markham. That's right.
Mr. Tierney. Is that accurate?
Mr. Markham. Yeah.
Mr. Tierney. Now, as part of that excellent cooperation,
did the FBI provide the District Attorney's office with all of
your file or some of your file?
Mr. Markham. I don't know. I don't know what the FBI did.
Mr. Tierney. OK. You wouldn't have directed them one way or
the other?
Mr. Markham. No.
Mr. Tierney. He's talking about cooperation between you and
the FBI and the District Attorney.
Mr. Markham. I think the cooperation was this. I had a
telephone call one day from Garrett Byrne who told me this
bellow Barboza was going to do the rest of his life in jail. He
had some information with respect to Patriarca and would I be
interested. I said of course. From that day we assumed
responsibility for Barboza.
We were the forerunners of this Federal protection act.
What I did, I got in touch with the U.S. Marshals. I called a
friend of mine in Gloucester who has a brother who is a priest
who has a house down there that wasn't being used. I said,
``Can we use your house for a couple of days to put this guy in
with the protection of the Federal Marshall?'' ``Yes.''
We then took him out to Twin Lakes, Thatcher's Island--I'm
sure you are familiar with that--for a period of time. That was
totally impractical. We then got another place that we rented
in Gloucester on Dolliver's Neck where we kept him through the
trial. That was the cooperation that we had with Garret Byrne.
Mr. Tierney. What did you do for them, anything?
Mr. Markham. He went back to testify in the Deegan case.
Mr. Tierney. But that is the extent of it?
Mr. Markham. I don't know what else he did for them.
Mr. Tierney. I'm just trying to figure out what Mr.
Harrington meant. I don't know if you know or not but I'm
trying to find out.
Mr. Markham. With the cooperation there was I'm sure he was
made available even though he was in our custody at the time.
Mr. Tierney. That's as much as you know about that?
Mr. Markham. That's right.
Mr. Burton. Mr. Lynch.
Mr. Lynch. I would just like to followup on this. You know,
at least your initial remarks sounded very similar to what
Judge Harrington had said, which was when we asked him why he
had not come forward, even though he had general knowledge of
the transcripts and the logs certainly implicating Mr. Barboza
and Mr. Flemmi in the murder of Teddy Deegan.
Mr. Markham. Barboza testified that he did it in court.
Mr. Lynch. Sir, may I remind you that you are sitting about
five rows in front of a group of people that sat in jail for 30
years for killing Teddy Deegan. May I please remind you of that
fact? May I please?
Mr. Markham. Of course you may.
Mr. Lynch. Please. Don't dismiss it.
Mr. Markham. I'm not dismissing it. I feel very sorry for--
--
Mr. Lynch. You keep implying that they got the right
people, sir. We found that to be wrong.
Mr. Markham. You did. I don't know--well, OK, fine. Go
ahead.
Mr. Lynch. That response right there is indicative of the
problems that we've had.
Mr. Markham. I can't help you with respect to that. All I
can tell you is that this case was not investigated by my
office. This case was investigated by the Suffolk County
District Attorney. We turned over Mr. Barboza who is quoted in
exhibit 1. Why they didn't go further with that I don't know.
Mr. Lynch. Sir, all I'm saying, and let me finish, is that
you are not the first witness to come before this committee to
say that the reason that five innocent--a group of innocent men
went to prison for 30 and 34 years. Some of them died in
prison. The reason that happened is because the State and the
Federal Government were not talking to each other. That's not
the first time I've heard this.
Mr. Markham. I didn't say that.
Mr. Lynch. However, I just want to point out something
here, exhibit 10. This is from Ramsey Clark, the Attorney
General at the time, to J. Edgar Hoover. It talks about, ``I
have been advised by the Organized Crime and Racketeering
Section and Mr. Paul Markham, the U.S. Attorney in Boston, that
without the outstanding work performed by Special Agents Dennis
Condon and Paul Rico, these convictions would not have been
obtained.''
They are talking about Patriarca. ``In addition to Special
Agent Condon, who was an excellent witness, the Government
called representatives of the Rhode Island State Police
Department, the Providence City Police, the Boston Police
Department, the Revere Police Department, the Treasury
Department.'' The final sentence here, ``This prosecution is
certainly one of the most significant examples of Federal and
state cooperation.''
That is not an inability of jurisdictions to talk to one
another. I don't think it supports the argument that the reason
that the Federal Government never got involved or the FBI never
got involved or the U.S. Attorney's Office never came forward
with evidence that would have been exculpatory and would have
probably garnered the release of some innocent men from prison.
[Exhibit 10 follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Markham. That's your assessment, sir, and you may have
it.
Mr. Lynch. I have heard nothing from you that leads me to
believe otherwise, sir.
Mr. Markham. Pardon me?
Mr. Lynch. I have heard nothing from you that leads me to
believe otherwise.
Mr. Markham. I'm just reading everything that you rest your
assumption on. I'll read it so the press can have it here, too.
A report by Charles Rapuchy regarding arraignment and the
Patriarca microphone surveillance reads, ``The microphone
surveillance advised on March 9, 1965 that James Flemmi and
Joseph Barboza requested permission from Patriarca to kill
Edward ``Teddy'' Deegan as they are having a problem with him.
Patriarca ultimately furnished his OK.''
Now, that is information that is worthless unless you have
a witness. I did not have a witness on that. I had a witness,
Joe Barboza, who was going to testify in the Marfeo case. I
don't know whether he would have ever testified in the Deegan
case because that was being prosecuted in Suffolk County. I
can't be more clear than that.
Mr. Burton. And as interesting as this would be to any
prosecuting attorney, you are saying that you didn't discuss
this in your office with your subordinates or the other
attorneys there that had looked at those logs?
Mr. Markham. I didn't say that.
Mr. Burton. You did talk to them about it?
Mr. Markham. We discussed on the prosecution memo this
particular thing. The reason----
Mr. Burton. So you did discuss that? You did discuss that?
Mr. Markham. What do you mean discuss it? It was part of
the prosecution memo and I was aware that there was taped
recordings. The purpose of that was to show----
Mr. Burton. I know. I understand all that. So you were
aware and your staff was aware that information was in there
even though you didn't have any witness to back that up. Right?
Mr. Markham. Yeah.
Mr. Burton. You knew it was in there?
Mr. Markham. And so did counsel for the defendant's in the
Deegan case.
Mr. Burton. And you're saying that was not used in court to
defend----
Mr. Markham. Why don't you ask Mr. Balliro that? I don't
know what he did with it.
Mr. Burton. Mr. Wilson.
Mr. Wilson. Mr. Markham, this is a matter of great interest
to us. We have gone to the Department of Justice and we have
asked them for the material that was turned over to Mr. Balliro
and Mr. Chisum. Maybe there are legitimate reasons for this but
they were unable to furnish us with the material that was
furnished to Balliro and Chisum. We do know in the Taglianetti
case he didn't get everything. He got a subset of information.
We do know that in subsequent occasions pursuant to the
Freedom of Information Act requests, the Patriarca logs have
been released to the public and not everything went out so we
don't know what was released. We do know one thing. You have
been telling us that Mr. Balliro and Mr. Chisum got access to
this information. We know that the Deegan case was a death
penalty case and we know that the other attorneys for the other
individuals who were subject to a death penalty did not get
access to these logs.
Mr. Markham. Presumably co-counsel would have advised me of
that.
Mr. Wilson. Is presumably good enough in a death penalty
case not to give each individual lawyer access to exculpatory
information?
Mr. Markham. I didn't give them. The court gave them access
to it.
Mr. Wilson. I'm asking you that question. Is it good enough
to give the potential exculpatory information to two lawyers
out of six lawyers in a death penalty case?
Mr. Markham. Would you tell me what is exculpatory about
this with respect to Roy French?
Mr. Wilson. I'm asking you the question.
Mr. Markham. I can't understand you. You are saying this is
exculpatory. I disagree with you. I don't think it is
exculpatory.
Mr. Wilson. That's an interpretational issue. Mr. Barboza's
credibility was the central issue at the Angiulo trial. It was
the central issue in the Marfeo trial. It was the central issue
in the Deegan murder trial. Mr. Barboza's credibility was all
there was in these prosecutions.
Mr. Markham. Not so. Not so. Not in the Marfeo case.
Mr. Burton. Unfortunately we have to recess for about 5
minutes. We' had something come up that is very important so
we'll stand in recess until the fall of the gavel.
We are reconvened.
Mr. Markham. Mr. Chairman, I may have misspoken and I want
to clear the record. The order of the U.S. District Court to
turn over the log was prior to the indictment in the Federal
court in the Deegan case. In case that was unclear, I wanted to
clarify.
Mr. Burton. The logs were turned over prior to the
indictment.
Mr. Markham. Yes.
Mr. Tierney. So the ``exculpatory evidence,'' and you can
argue about that, that was in the logs was turned over before
the indictment?
Mr. Markham. Not very long before the indictment but
somewhat before the indictment but still to Mr. Balliro and Mr.
Chisum.
Mr. Tierney. So that tells us at the time that you filed
these documents in the court for the Marfeo thing, Mr. Chisum
and Mr. Balliro didn't even know there was a Deegan case.
Mr. Markham. I don't know whether they did or not.
Mr. Tierney. Well, there was no indictment in the Deegan
case.
Mr. Markham. There was no indictment.
Mr. Tierney. So it well may be that they didn't know there
was a case, didn't know they were going to be retained as
counsel, didn't know they were going to be representing the
defendants, and may well not have made any connection on that.
Mr. Markham. Except this. Barboza was turned over to
Garrett Byrne's office after the indictment in the Patriarca
case. How far along there investigation went at that time I
don't know.
Mr. Tierney. That was going to be a subsequent question to
ask you. So I think then being the sequence, at that time you
certainly could not have assumed that because you put those
documents into court that Chisum and Balliro necessarily were
going to use them in a subsequent case. You didn't even know
there was a subsequent case at that time.
Mr. Markham. No. At that time, no. I certainly assumed that
any case down the road that would be helpful.
Mr. Tierney. When you found out there was a Deegan case,
you read it in the paper, or how did you find out there was a
Deegan case?
Mr. Markham. I don't know.
Mr. Tierney. Do you remember having a conscious thought at
that time, ``God, there was exculpatory information but I don't
have to worry because Chisum and Balliro already have that.''
Mr. Markham. No.
Mr. Tierney. This was constructed after the fact?
Mr. Markham. Yes. That reference to the log, you know,
perhaps I forgot about it because it was not in my case.
Mr. Tierney. Originally whether you had intended to or not,
you had my thought process going that you consciously thought,
``It's all set. I know there might be a problem but because
those two attorneys have the case, it's not a problem.''
Mr. Markham. I'm not sure that's so. I think in retrospect,
the basketball thing, no harm, no foul.
Mr. Tierney. That's more the way you are looking at it now.
When you look back at this, you're saying you think----
Mr. Markham. At the time I don't think I gave it all that
consideration because the Deegan case was not an essay at that
time. They weren't indicted until after--well, Deegan was
murdered in October 1965 and the indictments were in October
1967, 2 years later. Patriarca was indicted in our court here
in June 1967 and we turned him over to the state authorities
right after the indictment.
Mr. Tierney. He was indicted before the conviction?
Mr. Markham. Oh, yeah. That case was continued any number
of times. It wasn't tried until March 1968.
Mr. Tierney. So Garret Byrne had this witness first and he
offered him over to you.
Mr. Markham. Correct.
Mr. Tierney. So he didn't proceed at all. You kept him for
a period of time until you got your indictment in. Is there any
other reason why you didn't give him back to Garrett Byrne and
proceed with his grand jury hearing in the interim?
Mr. Markham. No, because that was the deal. We were going
to keep him under wraps so to speak and protect him. There was
serious thought of attempts on his life, especially in the
Patriarca case.
Mr. Tierney. Was there some thought that he couldn't be
protected and be a witness at a grand jury hearing in Suffolk
County?
Mr. Markham. He was.
Mr. Tierney. I know, but not at the last one. I guess I'm
asking why----
Mr. Markham. Because prior to our indictment----
Mr. Tierney. I'll start again. Garrett Byrne gave you a
phone call and said, ``I've got this guy, Barboza. He's got
stuff on Patriarca. Would you like it?''
Mr. Markham. That's right.
Mr. Tierney. He then proffered him over to you and you
started protecting him, your group.
Mr. Markham. Correct.
Mr. Tierney. Then he started testifying at your grand jury.
Mr. Markham. Correct.
Mr. Tierney. Was there any reason that he also couldn't
have been testifying in that period of time at the Suffolk
Country grand jury, or what was the delay? Why didn't he?
Mr. Markham. Because the deal was that we were going to use
him for our purposes to get the Patriarca indictment and then
you can have him. That's what it was.
Mr. Tierney. Is there some reason it couldn't be done
simultaneously? It went over a significant period of time.
Mr. Markham. No, not really.
Mr. Tierney. The grand jury?
Mr. Markham. He was developed in March of--it was 6 months.
Patriarca was indicted in June 1967, 4 or 5 months after we got
him. Then he was turned over. I didn't question him about the
Eddie Deegan murder. I was concerned about the Marfeo case.
Mr. Tierney. He was not even indicted during that period of
time that you had him for the Deegan?
Mr. Markham. No. He was indicted in the Deegan case in
October 1967. That was prior to our trial.
Mr. Tierney. Prior to your trial.
Mr. Markham. The Patriarca trial was March 4, 1968.
Mr. Tierney. Who protected Deegan when he testified at the
grand jury down in Suffolk County?
Mr. Markham. Who protected Deegan?
Mr. Tierney. I'm sorry, not Deegan. Barboza.
Mr. Markham. The U.S. Marshals.
Mr. Tierney. So they continued to protect him even at that
point in time?
Mr. Markham. That's right.
Mr. Tierney. At any point in that time you were cooperating
with Mr. Byrne's office and he had the two grand juries or
whatever, was there any discussion----
Mr. Markham. We didn't have two grand juries.
Mr. Tierney. You had a grand jury and they had a grand
jury. That would be two grand juries. Right? The Suffolk County
one and yours.
Mr. Markham. I only had the one grand jury in the Patriarca
case.
Mr. Tierney. I don't dispute that at all. I hope you don't.
So now each of the jurisdictions had a grand jury hearing.
Mr. Markham. Right.
Mr. Tierney. And you were proceeding on it. At any point in
time during that period was there any discussion that you were
aware of concerning the fact that Mr. Flemmi or Mr. Bulger were
protected witnesses for the FBI?
Mr. Markham. I have never heard of it while I was a U.S.
Attorney.
Mr. Tierney. And you had no idea of the relationship
between Mr. Flemmi and Mr. Barboza?
Mr. Markham. Never heard of it. There's two Flemmis now.
You know that?
Mr. Tierney. Right. Either Flemmi.
Mr. Markham. Jimmy Flemmi is the one of notoriety now. I
had never heard of him, nor had I ever heard of Bulger.
Mr. Tierney. But you heard of Vincent--not Vincent,
Stephen?
Mr. Markham. Well, just as a result of this and he was
mentioned in that.
Mr. Tierney. Was it ever mentioned to you by the District
Attorney's Office or by the FBI or anybody that they didn't
want Barboza to actually be tried in Suffolk County?
Mr. Markham. What?
Mr. Tierney. They didn't want him to have to proceed to
trial and be sentenced in Suffolk County.
Mr. Markham. Barboza not be tried in Suffolk County?
Mr. Tierney. Right.
Mr. Markham. Of course, that was the deal. Garrett Byrne
was not going to prosecute him and turn him over to us. We
agreed to take him on the condition that he gives us the Marfeo
case. What prompted Garrett Byrne to do that I don't know.
Mr. Tierney. You said he subsequently had a grand jury
hearing and indicted him himself. Right? Or am I missing
something?
Mr. Markham. The Deegan case, but that's not the same
matter that he was held on in the first instance. I don't know
what that was about.
Mr. Tierney. So it wasn't anything you picked up on Deegan
given to you and then take back on Deegan. It was totally a
separate matter.
Mr. Markham. Correct.
Mr. Tierney. For which you have no information.
Mr. Markham. Correct.
Mr. Tierney. Was there ever any discussion by the FBI with
you, any of the agents about not giving him back to Garrett
Byrne at that point in time and just keeping him in the
program?
Mr. Markham. No. There was no program at that time.
Mr. Tierney. Well, keep him protected, I should say. Did
you have any conversations with FBI Agent Rico about your
prosecution about the Marfeo case?
Mr. Markham. Sure.
Mr. Tierney. And Connelly?
Mr. Markham. Condon.
Mr. Tierney. Condon, not Connelly.
Mr. Burton. I think we are about to wrap this up. I want to
make sure I understand the Marfeo case, which you were working
on, the logs were filed or sent to the court before that case
came to trial.
Mr. Markham. No. Oh, before it came to trial. Yes.
Mr. Burton. Before it came to trial. And before the
indictment of the innocent people that went to prison.
Mr. Markham. Well, before the indictment in Suffolk County,
yes.
Mr. Burton. In Suffolk County. But the indictment came
before your trial took place.
Mr. Markham. Correct.
Mr. Burton. So your awareness of the issues was pretty--
your antenna was up on your case before you were about to go to
trial at the same time that this indictment came down regarding
the Deegan murder.
Mr. Markham. I don't understand your question.
Mr. Burton. Well, let me rephrase it. You were about to go
to trial on the Patriarca case. Before you went to trial on
that case, an indictment came down on the Deegan murder.
Mr. Markham. Right.
Mr. Burton. It is curious to me that having had those logs
before you that indicated that Barboza and Flemmi were the hit
men in the Deegan case, that you wouldn't have felt some
responsibility to inform the prosecution about that evidence in
the Deegan murder.
Mr. Markham. It may be curious to you, sir, but it's not
curious to me for the reasons I stated because four of the
defendants in the Deegan case knew that.
Mr. Burton. I think that begs the question. You knew that
innocent people were going to go to jail.
Mr. Markham. I didn't know they were innocent.
Mr. Burton. You knew the sentence was there. You saw this
information about the Patriarca OK on the hit.
Mr. Markham. Yeah.
Mr. Burton. I don't want to prolong this because I thought
we were winding it up.
Mr. Markham. Let me respond to that question. In the Deegan
case there was ample evidence, a lot of evidence that this was
authorized by Camillio and Patriarca.
Mr. Burton. That's right but not the two principles that
really were involved in it, Flemmi and Barboza.
Mr. Markham. Sure. Barboza testified.
Mr. Burton. What about Flemmi?
Mr. Markham. He wasn't indicted.
Mr. Burton. He wasn't indicted so you knew that those two
got the OK but you didn't know about these other individuals
so----
Mr. Markham. I don't know whether Flemmi went through with
it. I can't look into that. That happened in 1965.
Mr. Burton. It seems to me that since you were working on a
case involving Patriarca at that time, you would have at least
picked up the telephone and said to the prosecuting attorney in
that other case, ``Hey, here is some evidence that you ought to
take a hard look at because it may show that some of those guys
might not have been involved in that murder. I just don't know
but you ought to look at it.''
Mr. Markham. What guys?
Mr. Burton. The guys that went to jail that were innocent.
Mr. Markham. I didn't know what the evidence was against
them. I didn't even know who was going to be indicted. I didn't
know what the evidence was that they had.
Mr. Tierney. I just want to clarify this. You keep going
back to the fact that Chisum and Balliro were lawyers in both
cases. That really wasn't relevant at that time.
Mr. Markham. I'm sorry, sir?
Mr. Tierney. It was not relevant at that time because you
didn't know they were going to be engaged in the other trial.
Mr. Markham. That's right.
Mr. Tierney. OK. We keep getting back to that point. I
don't want it to be left with anybody or on the record that you
consciously thought everybody knew about what was in that
record because you have the same two attorneys in both cases.
Both cases didn't exist at the time you deposited those items
into court for discovery in the Marfeo case.
Mr. Markham. Well, the Deegan case, that indictment was in
October 1967 well before the trial of the Patriarca case which
was not tried until March 1968.
Mr. Tierney. So you are telling me now that it was a
conscious decision, that you understood both lawyers at that
time to be involved in both cases?
Mr. Markham. I assumed as much. As I said, this was not
really paramount in my mind.
Mr. Tierney. I just want to make sure we understand what is
assumption and what is factual. It's not factual but assumption
on your part.
Mr. Markham. As I said before, it may be somewhat now in
retrospect but it----
Mr. Tierney. It sounds an awful lot like retrospect.
Mr. Markham. It was not a big concern of mine at the time.
Mr. Tierney. Sounds an awful lot like retrospect. Maybe
looking back you saw, ``Gee, both attorneys are there. I hope
they got the information.''
Mr. Markham. Yeah.
Mr. Tierney. All right. At some point after you finished
your indictment and your trial, you were aware through
publicity of one way or another that the Deegan matter was
proceeding to trial.
Mr. Markham. Correct.
Mr. Tierney. And I assume that in the course of reading
those public pronouncements on that, that you understood who
the defendants were?
Mr. Markham. I didn't have a great deal of interest in that
case. I followed it somewhat.
Mr. Tierney. You followed it somewhat. You are a prosecutor
and the guy is related. You know, it's the same situation.
Mr. Markham. That's right.
Mr. Tierney. So you saw the names of the defendants and the
name that you didn't see in there was Flemmi. Right?
Mr. Markham. Well, I assume so. I read the paper and he was
not there. That's right.
Mr. Tierney. And I guess, sir, that's what we're all
assuming, too, and we are all wondering knowing that and
knowing your commitment to justice, presuming it at least, you
didn't say to somebody why isn't Flemmi named on this when
you've got this document so the other guy tells you if there is
a reason or not.
Mr. Markham. I didn't think of it at that time, but I'll
tell you why. There is any number of reasons a prosecutor would
leave somebody out of the indictment. (A) he didn't do it; (B)
he was going to be a witness; (C) they didn't have a good case
against him. Now, all we know is that at some time Flemmi and
Barboza, who was a bargain by the way, were down there and
requested permission to do it and was given it. Whether they
did it or not, I don't know. Because if you followed that case
at all, Roy French was--as a matter of fact, that's the name of
the case, Commonwealth versus French.
Mr. Tierney. I have no more questions. Thank you.
Mr. Burton. Well, Mr. Markham, it's been interesting.
Mr. Markham. I apologize to you if I got a little, you
know, from time to time but, you know, I probably can
understand the concern of the committee. I do resent any
inference that I purposely did something that resulted in
innocent people going to jail. I did not purposely or
negligently.
Mr. Burton. All I can tell you is there was evidence that
could have led to a different outcome and 30 years of several
people's lives were lost. I think that is a real tragedy.
Mr. Markham. I couldn't agree with you more but that has
nothing to do with me. Thank you.
Mr. Burton. That's your opinion.
Mr. Markham. Well, it is my opinion and I challenge you to
tell me what I should have done that I did not do.
Mr. Burton. I'll leave it to the people who are paying
attention to what is going on. Thank you very much.
We stand adjourned.
[Whereupon, the hearing was adjourned.]
[A set of exhibits and additional information submitted for
the hearing record follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
THE JUSTICE DEPARTMENT'S USE OF INFORMANTS IN NEW ENGLAND
----------
FRIDAY, DECEMBER 6, 2002
House of Representatives,
Committee on Government Reform,
Boston, MA.
The committee met, pursuant to notice, at 10 a.m., in
Courtroom 6, 15th Floor, J.W. McCormack U.S. Post Office and
Courthouse, 90 Devonshire Street, Boston, MA, Hon. Dan Burton
(chairman of the committee) presiding.
Present: Representatives Burton, Tierney, and Lynch.
Also present: Representative Meehan.
Staff present: James C. Wilson, chief counsel; Chad
Bungard, Hilary Funk, and Matt Rupp, counsels; Blain Rethmeier,
communications director; Allyson Blandford, assistant to chief
counsel; and Robert A. Briggs, chief clerk.
Mr. Burton. Good morning. The Committee on Government
Reform will come to order. I think yesterday we put in the
record all the sessions that we needed.
Edmund Burke said: ``The only thing necessary for the
triumph of evil is for good men to do nothing.'' He wasn't
talking about why we're here, but he might just as well have
been.
Everyone in this room knows that the Government Reform
Committee has been trying to get to the bottom of what happened
here back in the 1960's and subsequent to that. We've tried to
be thorough. We've tried to be fair. Perhaps if others had done
this, we wouldn't need to be here.
Perhaps people like Joe Salvati wouldn't have spent their
lives in prison. People like Roger Wheeler wouldn't be dead.
But we are here, and we are going to do our very best.
For the most part, cooperation has been the rule. We've
talked to hundreds of people. Most have tried to be helpful. We
haven't needed to issue many subpoenas and I'm encouraged that
most people genuinely want to know what happened. And most of
them want to help. That's a good sign.
I'm glad Mr. Bulger is here. I'm glad he's going to
testify. But I do wish it had been easier. The committee wasted
months when executive privilege was claimed over documents.
Yesterday, you could see how important those documents were.
I wish Mr. Bulger had been a little more willing to
discharge his civic duty and cooperate. We don't need to be
running into court like yesterday. It's a big distraction, and
it takes valuable time away from what we need to be doing. But
I am glad we are going to move forward.
I'll close by reminding you why we're here.
Rogue members of the FBI, up to the highest levels,
protected informants at the expense of innocent people.
Informants committed murders with impunity.
Killers were tipped off so they could flee before being
arrested.
Local investigations of murders, and drug dealing, and arms
smuggling were compromised.
When people went to the Justice Department with evidence
about murders, some of them wound up dead.
It is sad. It's tragic. It's unbelievable. But it did
happen. I think an awful lot of good people stood by and did
nothing. Hopefully, we'll never see anything like it again.
But we can't stand by now and do nothing. That's why
congressional oversight like this is so important. I thank my
colleagues for being here. I really appreciate it. I look
forward to Mr. Bulger's testimony.
With that, Mr. Tierney, do you have an opening statement?
Mr. Tierney. Just very brief, Mr. Chairman. Thank you. I
welcome our witness here today. Again, Mr. Chairman, I want to
thank you for these hearings which have really been a vigilant
pursuit of the facts in this case. Without reiterating
yesterday's opening statement, I'll just say once again how
important it is to shed light on the relationship between the
FBI and members of organized crime so that we can determine
just what went on in this situation and get to the proper
culture of our FBI.
People need to trust this investigative body and they need
to have faith in its integrity and the integrity of its agents.
The same is true of the Department of Justice. That has been
the goal of this hearing, to make sure that we determine what
must be done in this process with respect to informants and
protected witnesses and relationships of that office.
Yesterday there was some disturbing testimony as to how at
least one U.S. Assistant Attorney or U.S. Attorney felt
somewhat intimidated by the culture of the FBI and their
attitude toward how they did their work. Today's hearing
presumably will give us more information about how the FBI
operated in this area and we need to know that. We need to move
forward. I thank you for the opportunity and I thank the
witness for being here today to give us what information he may
have.
Mr. Burton. Mr. Meehan.
Mr. Meehan. Mr. Chairman, again, thank you for your
diligence and your dedication in terms of conducting these
hearings. Also including members of the Judiciary Committee who
have oversighted the Justice Department. Frankly, when we look
at the regulations and procedures that were violated in this
case, ultimately what this case is about is trying to make sure
that this never happens again.
We heard yesterday how the Boston FBI agents actively
handled Michael Huff's investigation into the murder if Roger
Wheeler. We heard about the terrible impact this had on the
Wheeler family. We heard extremely disturbing testimony about
the practices of the Boston FBI agents and Federal prosecutors.
These hearings have raised serious questions about law
enforcement practices in the United States. Who watches the
guidelines? What happens to those who are supposed to protect
the public trust?
There has been incredible distractions swirling around in
the media and I want to clear a couple of thing up. First,
these hearings are about getting to the truth. We are trying to
get to the truth for the Wheeler family. Trying to get to the
truth so that we make sure that these violations of the public
trust never happen again.
We have seen abuses in law enforcement. Frankly, in this
particular instance we saw grand jury testimony that apparently
had been leaked. I don't know who leaked the information but
there is a possible violation there as well. All of these
violations of the rules and procedures that law enforcement are
required to follow should be followed diligently.
I believe that every Member of Congress should make a
commitment to making sure the rules of procedure are followed
and to do everything we can to make sure the type of corruption
that was seen in this horrible case involving the Boston FBI
office never happens again. The ultimate goal of all in
Congress should be to make sure that this type of abuse in law
enforcement never happens again.
Thank you, Mr. Chairman.
Mr. Burton. Thank you, Mr. Meehan. I appreciate the
Judiciary Committee and I am confident that you folks will be
pursuing this investigation next year as well.
Congressman Lynch is on his way. He'll be here shortly.
We'll recognize him when he gets here if he wants to make a
statement.
Before we swear in the witness, I just like to say to the
witness's counsel, according to the rules of the committee,
your client can confer with you at anytime and there is no
problem with that. But we admonish you not to participate in
answering the questions. If he has reason to confer with you,
he can do that. You can do that here in the room or outside,
whatever you want to do but we are here to hear from Mr.
Bulger.
Mr. Kiley. Certainly, Mr. Chairman. I understand the rules.
I will certainly will not participate in answering the
questions you pose to the witness. I think, as you know from
the letter I sent yesterday, that I have asked you to postpone
Mr. Bulger's hearing. I want to formally request it again
today.
The principal bastian that we have protecting us against
the abuses of Government is the Bill of Rights. In order to
protect my client I want to exercise rights under the Bill of
Rights. It is my intention to appeal yesterday's order and I
want to formally ask you to postpone pending that appeal. I
have no illusion that you are going to grant it but I want to
ask it.
Mr. Burton. I understand, Mr. Kiley. Have a seat. Let me
just say that we have conferred with legal counsel and we
checked all of the reasons why we can't do that. As you know,
we are at the end of this session. It has been going on for a
long time.
Because of that and other reasons, we can't grant an
extension. That coupled with the fact that, you know, we asked
that Mr. Bulger testify and we had to end up sending a subpoena
so the subpoena is only valid for a period of time. We feel
like we must continue today.
With that, Mr. Bulger, would you stand to be sworn, please.
[Witness sworn.]
Mr. Burton. Would you like to make an opening statement,
Mr. Bulger?
Mr. Bulger. I believe my attorney, if it is acceptable,
would like to make a statement.
Mr. Burton. Mr. Bulger, we will allow you to make any
statements you want. You can confer with your attorney but we
want to hear from you.
STATEMENT OF WILLIAM BULGER, PRESIDENT OF THE UNIVERSITY OF
MASSACHUSETTS
Mr. Bulger. Mr. Chairman, some of our communications during
the past week may have resulted in a misunderstanding and that
is regrettable. There certainly was no intention on my part to
show disrespect to the committee or to the institution of the
Congress.
Mr. Chairman, under the rules of the House that the
committee has provided to me, if a witness believes that the
evidence or testimony he is going to give the committee may
tend to defame or degrade the witness, he may request that the
committee proceed in closed session. That is Rule 11K5 of the
House. I am asking the committee to do that at this time.
Mr. Burton. Mr. Bulger, we will take a vote on that at your
request. We may have to wait just a minute until Mr. Lynch gets
here. Oh, Mr. Lynch is here.
Glad you made it.
We talked about this yesterday and we feel like the issue
is such that the questions should be asked in open session, but
we will ask for a vote.
All those in favor of closing the hearing to the media and
the public, say aye. All opposed, say no. It's unanimous we
will proceed in open session. We talked to the parliamentarian
about the rule to make sure we were following the rules of the
parliamentarian. It was concurred so we will proceed with the
questions.
Mr. Bulger, have you talked to your brother, James, since
1995? If so, where was he and where is he now?
Mr. Bulger. On advice of counsel, I am unable to answer any
questions today. This position is based, among other things, on
privacy and due process rights, and the right against being
compelled to provide evidence that may tend to incriminate
myself, all of which are found in the Bill of Rights including
the rights and privileges under the first, fifth, and sixth
amendments to the U.S. Constitution.
As the Supreme Court recognized in the case of Ohio versus
Ranier, one of the Fifth Amendment's basic functions is to
protect innocent men who might be ensnared by ambiguous
circumstances. I find myself in such circumstances and, hence,
stand on my constitutional rights as advised by counsel.
Mr. Burton. I presume then that any of the questions posed
to you by the committee will be met with the same Fifth
Amendment response?
Mr. Bulger. Yes, sir.
Mr. Burton. Well, unless members of the committee have some
comments or questions. Jim, is there anything you think we
should proceed further with? Any comments or questions from the
Members?
Well, you have that right, Mr. Bulger. We'll honor that
right and the committee stands adjourned.
[Whereupon, the hearing was adjourned.]
-