579 F.3d 79 (1st Cir. 2009), 08-1327, Limone v. United States

Docket Nº:08-1327, 08-1328.
Citation:579 F.3d 79
Opinion Judge:SELYA, Circuit Judge.
Party Name:Peter J. LIMONE et al., Plaintiffs, Appellees, v. UNITED STATES of America, Defendant, Appellant. Edward Greco, Plaintiff, Appellant, v. United States of America, Defendant, Appellee.
Attorney:Joshua Waldman, Appellate Staff, Civil Division, United States Department of Justice, with whom Gregory G. Katsas, Assistant Attorney General, Michael J. Sullivan, United States Attorney, and Michael S. Raab, Appellate Staff, Civil Division, United States Department of Justice, were on brief, for...
Judge Panel:Before TORRUELLA, SELYA AND TASHIMA,[*] Circuit Judges.
Case Date:August 27, 2009
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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579 F.3d 79 (1st Cir. 2009)

Peter J. LIMONE et al., Plaintiffs, Appellees,

v.

UNITED STATES of America, Defendant, Appellant.

Edward Greco, Plaintiff, Appellant,

v.

United States of America, Defendant, Appellee.

Nos. 08-1327, 08-1328.

United States Court of Appeals, First Circuit.

August 27, 2009

Heard May 6, 2009.

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Joshua Waldman, Appellate Staff, Civil Division, United States Department of Justice, with whom Gregory G. Katsas, Assistant Attorney General, Michael J. Sullivan, United States Attorney, and Michael S. Raab, Appellate Staff, Civil Division, United States Department of Justice, were on brief, for the United States.

James R. Murray, Alex E. Hassid, Erin C. Wilcox, Christopher J. Allen, and Dickstein Shapiro LLP on brief for Society of Former Special Agents of the FBI, Inc., amicus curiae.

Michael Avery, with whom Juliane Balliro, Christine M. Griffin, Wolf Block, LLP, Richard D. Bickelman, Catherine J. Savoie, Ian H. Moss, Posternak, Blankstein & Lund, LLP, William T. Koski, Koski & Kearns, LLP, Daniel R. Deutsch, John C. Foskett, Deutsch Williams, Howard Friedman, Jennifer L. Bills, David Milton, Law Offices of Howard Friedman, P.C., Victor J. Garo, Austin J. McGuigan, Glenn E. Coe, Joseph B. Burns, Bridget Ciarlo, Rome McGuigan, P.C., Michael Rachlis, Edwin L. Durham, and Rachlis Durham Duff & Adler, LLC were on joint liability brief, for all individual appellees.

Michael Avery, William T. Koski, Koski & Kearns, LLP, Juliane Balliro,

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Christine M. Griffin, and Wolf Block, LLP on damages brief for Limone and Tameleo appellees.

Austin J. McGuigan, Joseph B. Burns, Rome McGuigan, P.C., and Victor J. Garo on damages brief for Salvati appellees.

Richard D. Bickelman, Catherine J. Savoie, Ian H. Moss, Posternak, Blankstein & Lund, LLP, Daniel R. Deutsch, John C. Foskett, and Deutsch Williams on brief for appellee Roberta Werner, individually, as Executrix of the Estate of Louis Greco, and as Administratrix of the Estate of Louis Greco, Jr.

Howard Friedman, with whom David Milton, Law Offices of Howard Friedman, P.C., Michael Rachlis, Edward L. Durham, and Rachlis Durham Duff & Adler, LLC, were on brief, for appellee and cross-appellant Edward Greco.

Before TORRUELLA, SELYA AND TASHIMA,[*] Circuit Judges.

SELYA, Circuit Judge.

The genesis of these appeals can be traced to the gangland slaying of Edward " Teddy" Deegan, which occurred in 1965 in Chelsea, Massachusetts. Initially, the murder went unsolved. Two years later, agents of the Federal Bureau of Investigation (FBI), intent on frying bigger fish, cultivated a cooperating witness, Joseph Barboza, with tight ties to organized crime. Barboza thereafter met with state authorities and implicated several individuals in the Deegan slaying.

Based principally on Barboza's testimony, the Commonwealth of Massachusetts secured indictments in 1967 and convictions the following year. Among those convicted were Peter Limone, Sr., Enrico Tameleo, Louis Greco, Sr., and Joseph Salvati (collectively, the scapegoats). All of them received stiff sentences.

Some three decades later, disturbing revelations cast grave doubt upon the verdicts. In December of 2000, the FBI for the first time disclosed that all along it had possessed reliable intelligence undercutting Barboza's account of the murder and that it had suppressed this intelligence. By the time that this information came to light, Tameleo and Greco had died in prison, Salvati had been paroled, and Limone was still behind bars. In due course, the convictions of all four men were vacated and Limone was released.

Salvati, Limone, and the representatives of the estates of Tameleo and Greco, along with various family members (collectively, the plaintiffs), brought suit against the United States advancing claims under the Federal Tort Claims Act (FTCA), 28 U.S.C. § § 1346(b), 2671-2680. Following a bench trial, the district court found the government liable on a multitude of theories and awarded over $100,000,000 in damages. The government appeals, as does one of the plaintiffs.

The record evinces egregious governmental misconduct; the FBI agents responsible for handling Barboza exhibited a callous disregard for the scapegoats' rights. But it is our duty to interpret and apply the law even-handedly, regardless of the egregiousness of a defendant's misconduct. Fidelity to that duty requires us to examine and resolve several vexing issues concerning both liability and damages. After painstaking consideration of the voluminous record, the parties' briefs, and the district court's carefully crafted rescripts, we affirm the liability finding (albeit on grounds that differ in one significant respect from those relied upon by the district court).

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The damage awards give us pause. Insofar as the awards embody damages for wrongful incarceration, they are considerably higher than any one of us, if sitting on the trial court bench, would have ordered. We nonetheless affirm those awards. Our proper function as appellate judges is not to second-guess the trial court but, rather, to apply a very deferential standard of review. Adhering to that role, and testing the disputed awards only to that extent, we conclude that the awards, though high, are not so grossly disproportionate to the harm sustained as to either shock our collective conscience or raise the specter of a miscarriage of justice.

I. BACKGROUND

These appeals have a long factual and procedural history. We rehearse that history only insofar as is necessary to place into perspective the issues that we must decide. We direct the reader who hungers for more detail to consult the district court's capstone opinion in Limone v. United States ( Limone IV ), 497 F.Supp.2d 143 (D.Mass.2007).

We bifurcate our account. First, we limn the unsavory history of the Deegan murder and its aftermath. Then, we move to the commencement and travel of the federal case. Because these appeals follow findings made by a district court sitting without a jury, we resolve factual conflicts in favor of the district court's findings (to the extent that those findings are not clearly erroneous). Jackson v. United States, 156 F.3d 230, 232-33 (1st Cir.1998).

A. The Murder and Its Aftermath.

On the night of March 12, 1965, Teddy Deegan's bullet-ridden body was discovered in Chelsea, Massachusetts. Deegan had been shot six times, and the shots had been fired from three different guns. Suspicion focused upon a group of men that included Barboza, Jimmy Flemmi, Roy French, Joseph Martin, and Ronald Cassesso, all of whom were linked to organized crime. The group had been observed leaving a local gang hangout, the Ebb Tide Lounge, earlier that evening and returning shortly after the murder was committed. Eyewitnesses attested that they had seen blood stains on French's clothing that night.

Despite local officers' suspicions, the trail went cold within a matter of weeks. The police were unable to gather sufficient evidence to prefer charges against anyone.

Some two years later, FBI agents H. Paul Rico and Dennis Condon started cultivating Barboza, a known killer, in hopes of " flipping" him; that is, developing him as a cooperating witness against the Italian Mafia (La Cosa Nostra or LCN). At the time, Barboza was facing up to 89 years of imprisonment on state " habitual offender" charges. See Mass. Gen. Laws ch. 279, § 25. Barboza indicated a willingness to deal but placed one immutable condition on any information that he might provide: he would not inculpate his close associate, Flemmi. The FBI tacitly accepted that condition.

Throughout the spring of 1967, the agents used both carrots and sticks in their efforts to mine information from Barboza. Barboza was in state custody, and the agents plied him with promises of favorable recommendations and a slap-on-the-wrist sentence. They also fabricated a story that La Cosa Nostra was attempting, by influencing state prosecutors, to bring about Barboza's lifetime confinement.

Barboza's cooperation was not a one-shot affair. Over the course of several months of interrogation, he claimed to be knowledgeable about many crimes. Pertinently, he mentioned the Deegan murder (although in his conversations with the

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FBI agents he was not forthcoming as to any details). That crime was primarily a matter of state, not federal, interest. Accordingly, Massachusetts law enforcement officers sought to interview Barboza.

On September 8, 1967, two Suffolk County detectives (John Doyle and Frank Walsh) conversed with Barboza. Agents Rico and Condon were present, but the detectives pulled the laboring oar. Under questioning, Barboza finally provided his account of the Deegan killing. According to that account, Limone hired Barboza to murder Deegan because Deegan had robbed an LCN-affiliated bookmaker. Barboza then requested permission to carry out the " hit" from Tameleo, an LCN hierarch. After Tameleo's blessing had been secured, Barboza and Greco formulated a plan.

According to Barboza, the mechanics of the plan were as follows. French would accompany Deegan to the site of a hypothetical burglary. Once there, French would turn on Deegan and, assisted by Barboza, Salvati, Greco, Martin, and Cassesso, would kill both Deegan and another putative participant in the burglary, Anthony Stathopoulos, Jr. Upon learning the details of the plan, Limone approved it and agreed to pay an additional sum because it involved a double murder.

During subsequent meetings with the detectives and the agents, Barboza modified his account. This modified...

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