O'Neill v. United States

• Decision Date: 13 July 2018
• Docket Number: Civil Action No. 17-12057-FDS
• Parties: Michelle O'NEILL, individually and as administrator of the estate of Michael Romano Jr.; Darlene Romano, as administrator of the estate of Michael Romano Jr.; Michael O'Neill; and Michayla O'Neill, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Massachusetts

328 F.Supp.3d 16

Michelle O'NEILL, individually and as administrator of the estate of Michael Romano Jr.; Darlene Romano, as administrator of the estate of Michael Romano Jr.; Michael O'Neill; and Michayla O'Neill, Plaintiffs,

v.UNITED STATES of America, Defendant.

Civil Action No. 17-12057-FDS

United States District Court, D. Massachusetts.

Signed July 13, 2018

Christopher J. Trombetta, Law Office of Christopher J. Trombetta, Mansfield, MA, for Plaintiffs.

Elliott M. Davis, US Department of Justice, Washington, DC, for Defendant.

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS

F. Dennis Saylor IV, United States District Judge

This is another civil action arising out of the relationship between the Federal Bureau of Investigation and organized crime leaders in Boston in the 1980s and 1990s. Plaintiffs are the widow, two children, and estate administrator of Michael Romano Jr., a member of the Carrozza faction of La Casa Nostra. Romano Jr. was murdered by individuals affiliated with Francis "Cadillac Frank" Salemme in 1994. Romano Jr. was mistaken for a rival Mafia leader, Enrico Ponzo, and shot at close range while changing a flat tire. Plaintiffs allege that Mark Rossetti, a mob leader aligned with Salemme who was also an FBI informant, had ordered the hit on Ponzo.¹

Plaintiffs have brought suit against the United States under the under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq. , for failure to prevent the murder. The United States has moved to dismiss the complaint for lack of subject-matter jurisdiction and failure to state a claim. It contends that because a private person would not have owed a duty to Romano Jr. to control the actions of Mark Rossetti, the United States has not waived its sovereign immunity under the FTCA. It further contends that the claims are barred by the statute of limitations.

For the following reasons, the motion to dismiss for lack of subject-matter jurisdiction will be granted. Because the Court concludes that sovereign immunity has not been waived, it will not reach the limitations issue, and the motion to dismiss for failure to state a claim will be denied as moot.

I. Background

A. Factual Background

The facts are set forth as described in the complaint and public record.

1. Infighting in the New England Mafia

La Cosa Nostra, also known as the Mafia, is a "notorious crime syndicate." United States v. DeCologero , 364 F.3d 12, 17 (1st Cir. 2004). During much of the second half of the 20th century, the New England branch of the Mafia, the Patriarca crime family, was led by Raymond Patriarca Sr. Id. After Patriarca Sr.'s death in 1984, his son Raymond Patriarca Jr. took over operations. Id. By 1990, Patriarca Jr.'s heir-apparent was Francis Salemme, better known as "Cadillac Frank" Salemme. Id. However, a faction of the Patriarca family, led by Robert Carrozza, Joseph Russo, and Vincent Ferrarra (the "Carrozza faction"), began challenging Patriarca Jr.'s leadership. United States v. Marino , 277 F.3d 11, 19 (1st Cir. 2002).

In 1991, Salemme became the leader of the Patriarca family. Id. The Carrozza faction challenged Salemme and his faction, and various individuals on both sides of the conflict were murdered. Id. Sometime in early-to-mid-1994, members of the Carrozza faction, including Michael Romano Sr. (Michael Romano Jr.'s father), Enrico Ponzo, and others, plotted to kill certain members of the Salemme faction, including Mark Rossetti. Id. at 20. Romano Sr.'s son, Michael Romano Jr., was also a "Carrozza stalwart[ ]." Id. Around that time, the two sides met in a "peace" meeting but negotiations fell through. Id.

2. Involvement of the Irish Mob

Stephen "The Rifleman" Flemmi was also a long-time "fixture in Boston's organized crime hierarchy." United States v. Flemmi , 225 F.3d 78, 81 (1st Cir. 2000). Flemmi and Whitey Bulger were leaders of the Irish Mob in Boston, the Winter Hill Gang. Id. Flemmi did extensive business with La Casa Nostra, and was a close associate of Salemme. Id. ; United States v. Salemme , 91 F.Supp.2d 141, 176 (D. Mass. 1999). However, beginning in the 1960s, Flemmi and Bulger began cooperating with the FBI. Flemmi , 225 F.3d at 81. By 1967, both men were "top-echelon informants," helping government officials investigate and eventually prosecute major Mafia figures. Id.

3. The Murder of Michael Romano Jr.

On September 1, 1994, Michael Romano Jr., then 20 years old, was murdered by Salemme faction members David Clark, Joseph Souza, and Stephen Rossetti. (Def. Ex. B, Luisi Tr. at 151-53).² Romano Jr. was shot at close range while changing a flat tire in Everett. He had been mistakenly identified as Ponzo, the intended target of the shooting. (Am. Compl. ¶ 10).

The complaint alleges that Mark Rossetti, a FBI informant, sought to kill Ponzo to help the Salemme faction take control of Mafia operations in the Boston area. (Id. ¶¶ 12-13). After the murder of his son, Romano Sr. called Salemme faction member Robert Luisi Jr. and stated "I thought we were going to leave the kids out of this." (Def. Ex. B, Luisi Tr. at 147-54).

Soon after Romano Jr.'s murder, the Carrozza faction met at the Northgate Mall to determine the responsible party. Marino , 277 F.3d at 20. Speculation initially focused on Ponzo himself and Salemme faction members Joseph Cirame, Clark, Souza, Lonnie Hilson, and Salemme. Id. To retaliate for the murder, the Carrozza faction developed a "hit list." Id. Carrozza faction members twice attempted to kill Cirame; opened fire on Stephen Rossetti; and attempted to murder Salemme. Id. Romano Sr. personally shot and killed Souza. Id.

4. FBI Corruption is Revealed

In 1995, Flemmi and various Mafia members, along with Salemme, were arrested on RICO charges. Rakes v. United States , 442 F.3d 7, 14 (1st Cir. 2006). Flemmi's Winter Hill colleague, Bulger, escaped before being arrested. Id. The media began investigating allegations of FBI wrongdoing, particularly by Special Agent John Connolly. Id. Judge Wolf of this district held a 10-month hearing into the FBI's connections with the Irish Mob, culminating in an opinion detailing corruption in the FBI. See generally Salemme , 91 F.Supp.2d 141. The opinion suggested that Bulger and Flemmi may have "received numerous benefits from the FBI ... including protection from prosecution [and] access to the names of informants who were themselves providing information to the FBI...." McIntyre v. United States , 367 F.3d 38, 40 (1st Cir. 2004).

5. Michael Romano Sr.'s Accusation

On February 29, 2000, Michael Romano Sr. was sentenced to a term of 252 months' imprisonment for conspiracy to commit murder in aid of racketeering and other related charges. See United States v. Carrozza et al. , 97-cr-40009-NMG, Docket No. 1112. At sentencing, Romano Sr. made the following statements:

[Judge Wolf] found out that the Justice Department and the FBI allowed Stephen Flemmi and Whitey Bulger to operate their illegal organized crime gang with their partner, as indicted by the government, Frank Salemme.

...

Yes, Stevie Flemmi, Whitey Bulger, and his partner, as charged, Frank Salemme, sent their hit squad out to revenge who shot Salemme. And who allowed all this to happen? The FBI and the Justice Department.

...

I ask you, where was the FBI agents and the prosecutors and the Justice Department employees and the Boston and state police when all these people were being murdered? Let me tell you. The corrupt ex, ex—and I reiterate ‘ex’—FBI agents and others still to be named were keeping them all in the dark by protecting the likes of Frank Salemme and his partners, Flemmi and Bulger, allowing them to operate, resulting in the murder of many, many more people, one being my only dear son.

...

Where was the investigations all those years when all those families like mine were being destroyed and murdered? I'll tell you, as ex-FBI Agent John Connolly will soon enough. The FBI and the Justice Department employees were protecting them. Remember when Stevie Flemmi and Whitey Bulger and Frank Salemme sent out their gang of killers to shoot whom they thought had shot Frank Salemme September 1st? They ... killed my son by accident. They were all working and was being protected by the FBI and the U.S. Attorney's Office. My son's blood and that of Trooper Charbon[n]ier and that of many others are all on their hands. They, too, are responsible for their deaths and all those murders that could have been prevented if they just did their own jobs.

(Def. Ex. A, Romano Sr. Sen. Tr. at 48, 50, 52, 57-58).

While Michael Romano Sr. was imprisoned, news outlets reported that Salemme faction member Mark Rossetti had been an FBI informant. See, e.g. , Milton J. Valencia, Reputed Mob Boss Is Called FBI Informant , Boston Globe, Aug. 12, 2011, available at 2011 WLNR 15966564; Peter Gelzinis, Just Another Rotten Apple in FBI Barrel , Boston Herald, Aug. 25, 2011, available at 2011 WLNR 16868898. The complaint states that Mark Rossetti had become an FBI informant sometime before Romano Jr.'s death. (Am. Compl. ¶ 8). It further alleges that FBI agents were aware that Mark Rossetti was responsible for multiple murders in the Greater Boston area and that he was planning to kill Ponzo. (Id. ¶¶ 12-13).

In December 2011, the Boston Globe reported that Romano Sr. blamed the FBI for his son's death:

Mike Romano [Sr.] is no choirboy. And he admits he was trying to find out who killed his son, Mikey. He says that just when he was getting close to figuring out who did it, the FBI and Justice Department swooped in to take him and a faction opposed to then-Mafia boss Frank Salemme off the street. Romano says, and many in law enforcement agree, that Mark Rossetti was aligned with the Salemme group, which Romano believes was responsible for his son's death. The FBI let Rossetti and his associates shoot and kill with impunity, Romano contends. "All we did was try to protect ourselves," Romano said.

Kevin Cullen, From Mouths of Criminals , Boston Globe, Dec. 6, 2011, ava...