Bergmann v. United States, 79-1041C(4).

• Decision Date: 16 September 1981
• Docket Number: No. 79-1041C(4).,79-1041C(4).
• Citation: Bergmann v. United States, 526 F.Supp. 443 (E.D. Mo. 1981)
• Parties: Leona BERGMANN, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

526 F. Supp. 443

Leona BERGMANN, Plaintiff, v.UNITED STATES of America, Defendant.

No. 79-1041C(4).

United States District Court, E. D. Missouri, E. D.

September 16, 1981.

COPYRIGHT MATERIAL OMITTED

Robert C. Ely, Ely & Wieland, St. Louis, Mo., for plaintiff.

Joseph B. Moore, Asst. U. S. Atty., Dept. of Justice, St. Louis, Mo., for defendant.

MEMORANDUM

HUNGATE, District Judge.

This matter is before the Court for a decision on the merits following a two-day bench trial on July 20, and 21, 1981.

Plaintiff brings this wrongful death action under the Federal Torts Claims Act, 28 U.S.C. § 2671 et seq.The action arises from the murder of plaintiff's husband, a city police officer, while investigating a burglary perpetrated by a participant in the federal witness security program.

Having considered the pleadings; testimony of witnesses, documents, and other evidence adduced at trial; and being otherwise fully advised in the premises, the Court hereby makes and enters the following findings of fact and conclusions of law.

Findings of Fact

1.Plaintiff's husband, Fred Bergmann, was an auxiliary police officer for the City of St. Charles, Missouri.In performance of his duties, Officer Bergmann was shot on September 12, 1976, while interrupting a burglary at the St. Charles gas company.After extensive surgery, Officer Bergmann clung to life for a few weeks and then died of complications.

2.In May of 1977, Benjamin Rosado, also known as Benjamin Russo, was implicated in the Bergmann killing.Formally charged with murder in August of 1977, Rosado was found guilty after a full trial in the state court and sentenced to life imprisonment.

3.At the time of the Bergmann killing, Rosado and his immediate family were participants in the federal witness security program established by Pub.L. 91-452, Oct. 15, 1970, which in pertinent part provides:

Sec. 501.The Attorney General of the United States is authorized to provide for the security of Government witnesses, potential Government witnesses and potential witnesses in legal proceedings against any person alleged to have participated in an organized criminal activity.

Sec. 502.The Attorney General of the United States is authorized to rent, purchase, or remodel protected housing facilities and to otherwise offer to provide for the health, safety, and welfare of witnesses and persons intended to be called as Government witnesses, and the families of witnesses and persons intended to be called as Government witnesses in legal proceedings instituted against any person alleged to have participated in an organized criminal activity whenever, in his judgment, testimony from or a willingness to testify by, such a witness would place his life or person, or the life or person of a member of his family or household, in jeopardy.Any person availing himself of an offer by the Attorney General to use such facilities may continue to use such facilities for so long as the Attorney General determines the jeopardy to his life or person continues.

4.Rosado had become a protected witness on June 17, 1976, to provide testimony against organized crime figures in New York City, particularly related to the death of a government informant, Tony Finn.Rosado had been present when Finn was beaten and shot to death because he had provided information to the government concerning illegal drug traffic.

5.Rosado had a criminal record known to the Assistant United States Attorney, John P. Cooney, who requested protection for Rosado.The identification record on Rosado from the Federal Bureau of Investigation contains the following arrests and convictions:

1952 and 1954  —  imprisoned for assault and unarmed robbery
                1957           —  charged with burglary—no disposition
                1957           —  charged and convicted of a Dyer Act violation
                                  (car theft); sentenced to 3½ years imprisonment
                                  He was paroled, then violated
                                  that parole by carrying a knife
                1961           —  charged and convicted of unarmed robbery
                                  sentenced to 7½ to 20 years imprisonment
                1962           —  charged with armed robbery—no disposition.
                1974           —  charged with rape, sodomy, and incest—no
                                  disposition.
                1974           —  charged with robbery—no disposition.
                May 22, 1976   —  charged with burglary, grand larceny, fire-arm—no
                                  disposition.
                

The teletype request for witness protection for Rosado to the Criminal Division of the Department of Justice portrays a person with underworld connections.Rosado's presence at the Finn murder suggested familiarity with the narcotics, extortion, and contract killing aspects of organized crime.As well as indicating that Rosado possessed information related to two other murder cases, the teletype request indicates that Rosado was acquainted with Patty Huston, a known bank robber on the FBI's list of Top Ten Most Wanted Criminals in 1976.Finally, the teletype request included information that Rosado faced pending burglary charges in the Court of Queens County, New York.

6.The procedures for establishing a person as a protected witness are set forth in Department of Justice OrderOBD 2110.2, dated January 10, 1975.Paragraph 6 of the order sets forth the following conditions for participation in the witness protection program:

(1) The person is a qualifying witness in a specific case in process or during or after a grand jury proceeding;

(2) Evidence in possession indicates that the life of the witness and/or that of a member of the witness' family or household is in immediate jeopardy; and

(3) Evidence in possession indicates it would be advantageous to the federal interest for the Department to protect the witness and/or a family or household member.

Paragraph 7 of the order directs that requests for protection of a witness shall be made by a United States Attorney; the Assistant Attorney General in charge of the concerned division, or his designee, shall determine whether a proposed witness meets the criteria for protection.

7.The Rosado teletype request for protection went through normal channels in the Justice Department from initiation to final approval.Assistant United States Attorney John P. Cooney made the initial request through Robert B. Fiske, Jr., United States Attorney for the Southern District of New York.

From the United States Attorney's office, the teletype request was directed to Thomas J. O'Malley, who testified that he immediately referred the matter to Stephen Harwood because he, O'Malley, no longer handled such matters.Having found that the criteria of OBD 2110.2 were met, Harwood forwarded the request to his superior, Morton Sitzer, who approved the request and referred it to the Chief of Narcotic and Dangerous Drug Section, Kurt W. Muellenberg.

After reviewing the teletype request, emergency protection for Rosado was authorized by Robert L. Keuch, a Deputy Assistant Attorney General, who was designated to make final approval for the Assistant Attorney General pursuant to paragraph 7(b) of OBD 2110.2, supra.Keuch testified that he has no recollection of the request for protection of Rosado.

8.The Assistant United States Attorney, Cooney, was the only government official in the above channeling of the teletype request for protection who considered whether Rosado would return to crime in the relocation area.In processing the request, only Cooney met with Rosado, reviewed his FBI identification record, and discussed his past crimes with him as well as his involvement in the murder cases in which he was offering testimony.

At the time Cooney requested protection for Rosado, Rosado was charged with burglary in Queen's County, New York, but Cooney coordinated with the Queen's County prosecutor so that Rosado could participate in the witness protection program.

Cooney understood that Rosado's activities would not be monitored in the relocation area and that his identity would not be known to the local police.

Cooney testified that the only steps he took to prevent Rosado from returning to crime in the relocation area were to admonish Rosado that he must not return to crime and that if he did, his privileges under the program would be terminated.

9.After approval of Rosado and his family as protected witnesses, the United States Marshals Service undertook the actual protection tasks, following the guidelines of OBD 2110.2, supra, which direct that

The witness will normally be relocated to a place of safety, given a new identity and assisted in securing housing and employment in order to become self-sufficient.

The Marshals Service took steps to effectuate the legal name change from Rosado to Russo and relocated the family to a place of safety — St. Charles, Missouri.The Marshals Service arranged for the rental of an automobile, an apartment, the establishment of credit with service companies, and the placement of one of the Rosado children in school.

10.There is no evidence of regulations or records of the Marshals Service monitoring the activities of a protected witness on a 24-hour basis where the witness is not in legal custody, a prisoner, or a committed mental patient.

The marshals were not authorized to disclose the true identity of any protected witness or the fact that an individual was a protected witness, unless the protected witness was arrested and local authorities requested his name and the Department of Justice authorized the release of the witness' true identity.

The Marshals Service did not inform the local law enforcement officials in the St. Charles, Missouri, area of Rosado's previous identity until after Rosado was implicated in the Bergmann shooting.

11.The director of the United States Marshal Service has stated that the greatest threat to a witness in the witness protection program is his or her own self-destructive tendencies, including tendencies to recommence a criminal career.Hearings on Department...