Donahue v. U.S.
| Decision Date | 10 February 2011 |
| Docket Number | 10–1766,09–1952.,09–1951,Nos. 09–1950,s. 09–1950 |
| Citation | 634 F.3d 615 |
| Parties | Patricia DONAHUE, Individually and in her Capacity as Administratrix of the Estate of Michael J. Donahue; Michael T. Donahue; Shawn Donahue; and Thomas Donahue, Plaintiffs, Appellees,v.UNITED STATES of America, Defendant, Appellant.The Estate of Edward Brian Halloran, by Patricia Macarelli, in her Capacity as Administratrix of the Estate, Plaintiff, Appellee/Cross–Appellant,v.United States of America, Defendant, Appellant/Cross–Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Jonathan H. Levy, Attorney, Appellate Staff, Civil Division, United States Department of Justice, with whom Tony West, Assistant Attorney General, and Thomas M. Bondy, Attorney, Appellate Staff, were on brief, for the United States.Edward T. Hinchey, with whom Nicholas W. Schieffelin and Sloane & Walsh, were on brief, for Donahue appellees.William E. Christie, with whom Shaheen & Gordon, P.A. was on brief, for Estate of Edward Brian Halloran.Before TORRUELLA, SELYA and HOWARD, Circuit Judges.SELYA, Circuit Judge.
These are the latest in a series of civil cases arising out of the unholy alliance between the Federal Bureau of Investigation (FBI) and a notorious mobster, James J. “Whitey” Bulger. In this chapter of the sordid saga, the estates and heirs of two men killed on Bulger's orders sued the United States under the Federal Tort Claims Act (FTCA) for leaking confidential information to Bulger and enabling his reign of terror. The proceedings below culminated in multi-million-dollar judgments for the plaintiffs. The principal issue on appeal is whether the suits were timely filed.
Two different district judges answered this question in the affirmative. Since then, this court has passed upon the timeliness issue in a number of similar cases and refined the legal doctrines that inform the decisional calculus. In fidelity to this intervening authority, we conclude that the suits were not timely filed and, therefore, reverse. We do so, however, without endorsing the FBI's conduct, which we regard as reprehensible.
The tawdry tale of the FBI's corrupt collaboration with Bulger and his sidekick, Stephen “the Rifleman” Flemmi, has been recounted many times. See, e.g., Rakes v. United States, 442 F.3d 7, 11–17 (1st Cir.2006); Callahan v. United States, 426 F.3d 444, 446–50 (1st Cir.2005); McIntyre v. United States, 367 F.3d 38, 40–51 (1st Cir.2004); see generally United States v. Salemme, 91 F.Supp.2d 141 (D.Mass.1999), rev'd, United States v. Flemmi, 225 F.3d 78 (1st Cir.2000). We assume the reader's familiarity with this compendium of cases and rehearse here only those facts necessary to bring these appeals into focus.
For decades Whitey Bulger, a key figure in organized crime circles in Boston, and the leader of a criminal syndicate known as the Winter Hill Gang, led a double life. Unbeknownst to his counterparts in crime, he served as a confidential informant for the FBI. Bulger's underworld position made him privy to various and sundry activities of rival gangs, including the Mafia (sometimes known as La Cosa Nostra). The FBI's ardent desire to bring the Mafia to heel led it to make a Faustian bargain: in exchange for information about Mafia activities, the FBI would protect Bulger and Flemmi and “look the other way” as the duo pursued their own felonious misadventures. This alliance spanned three decades, lasting from the late 1970s well into the 1990s.
John Connolly, a member of the FBI's organized crime unit, was tasked to “handle” Bulger and Flemmi. Connolly and Bulger had grown up in the same South Boston neighborhood. John Morris, who for most of the relevant period headed the organized crime unit in the FBI's Boston office, oversaw Connolly.
Over time, Bulger and Flemmi plied their FBI handlers with assorted gratuities. See, e.g., United States v. Connolly, 504 F.3d 206, 210 (1st Cir.2007); Salemme, 91 F.Supp.2d at 210. More importantly, they provided a cornucopia of high-quality information that led to the convictions of several Mafia hierarchs. These convictions were a gift that kept on giving: they enhanced the informants' value to the FBI, decimated a powerful rival of the Winter Hill Gang, and created a vacuum that Bulger and Flemmi systematically exploited.
Not surprisingly, the FBI coveted Bulger and Flemmi and considered them “Top Echelon” informants. See Flemmi, 225 F.3d at 81 (). Because this characterization elevated the status of their handlers, Connolly and Morris did everything in their power, whether legal or illegal, to protect their prized informants and keep them happy. In the bargain, the agents blithely ignored FBI guidelines and permitted Bulger and Flemmi to carry out a constellation of criminal activities, ranging from loan-sharking to extortion to murder.
The FBI's protective efforts extended as far as discouraging other law enforcement agencies from investigating crimes committed by Bulger and Flemmi; notifying the pair of planned law enforcement activities; and leaking to them the identities of persons who came forward with incriminating information related to their malefactions. We focus here on one such informant: Edward “Brian” Halloran.
Halloran was a low-level hoodlum, who functioned primarily as a cocaine dealer. At times, he worked with the Winter Hill Gang. A life of crime typically has twists and turns and, in January of 1982, Halloran was facing a state murder charge.
This development brings front and center a different murder—the murder of Roger Wheeler. Wheeler's killing stemmed from a disagreement over a string of Connecticut-based Jai Alai parlors owned by him and managed by John Callahan (who had ties to the Winter Hill Gang). Wheeler suspected Callahan of skimming money, cashiered him, and commissioned an audit. Wheeler was gunned down shortly thereafter.
Seeking immunity from prosecution, Halloran offered to share with the FBI information about Wheeler's murder. He indicated that Bulger, Flemmi, and Callahan had conspired to kill Wheeler and had offered Halloran the contract. When he declined, Bulger had Wheeler killed by someone else.
In evaluating Halloran's proposal, his FBI handlers had asked Morris about Halloran's reliability. Because it was the FBI's policy to “close” informants who were themselves under investigation, Morris and Connolly (with whom he consulted) feared that Halloran's allegations would lead the FBI to terminate its partnership with Bulger and Flemmi. Rather than run that risk, Morris responded (without any foundation in fact) that Halloran was untrustworthy. On the basis of this mendacity, the FBI rejected Halloran's offer to turn traitor and denied his request to be put into its witness protection program.1
Even though Halloran's charges had been defused, word of his perfidy made its way from Morris to Connolly to Bulger. Morris and Connolly, who were both experienced agents steeped in the mores of organized crime, must have realized that disclosure of Halloran's identity and allegations not only violated FBI guidelines but also jeopardized Halloran's safety. That jeopardy materialized: shortly after Connolly leaked Halloran's identity to Bulger, Bulger and Flemmi hatched the plot to eliminate Halloran.
On May 11, 1982, Halloran asked his neighbor, Michael Donahue, for a ride home. Donahue, in what later would prove to be a costly gesture of good will, agreed. As they drove, Bulger's car pulled alongside and a fusillade of shots followed. Donahue died immediately; Halloran tried to flee, sustained a myriad of gunshot wounds, survived for a short period of time, identified James “Jimmy” Flynn (a Winter Hill associate) as his assailant during the ambulance ride, and was pronounced dead upon arrival at a local hospital.
The murders of Halloran and Donahue, along with Bulger's possible role in the Wheeler and Callahan slayings, presented the FBI with a dilemma. FBI offices outside of Boston, as well as state law enforcement agencies, were investigating Bulger's and Flemmi's potential involvement in the murders of Wheeler, Halloran, Donahue, and Callahan (which had long been thought to be related). If given credence, Halloran's allegations would have shed light on Bulger's participation and, quite possibly, would have led the FBI to “close” him as an informant.
FBI agents from the Boston office's organized crime unit, including Connolly and Morris, met to discuss the situation. They decided to retain Bulger and Flemmi as informants unless and until they received “substantial information” implicating the men in the murders.2 Then, in a cynical twist, the agents took an active role in preventing any such “substantial information” from surfacing. Their actions included hindering attempts by other FBI offices to solve the Wheeler and Callahan murders; furnishing information about pending investigations to Bulger and Flemmi; failing to index documents summarizing Halloran's charges; and prohibiting interviews of Bulger and Flemmi. They also made certain that no information about Bulger's role in Halloran's murder was revealed to the Massachusetts authorities.
In 1985, the Suffolk County (Mass.) District Attorney prosecuted Flynn for the Halloran and Donahue murders. Flynn proclaimed his innocence and went to trial—a trial that members of the Donahue family attended. The jury acquitted Flynn and the murders remained unsolved for the next decade.
Bulger's cozy arrangement with the FBI began to unravel in 1992. The United States Attorney for the District of Massachusetts empaneled a grand jury that eventually handed up indictments against numerous gangland crime figures, including Bulger, Flemmi, and Francis P. “Cadillac Frank” Salemme (the reputed “boss” of the Patriarca crime family). Although Connolly was no longer working for the...
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