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INVESTIGATION INTO ALLEGATIONS OF JUSTICE

DEPARTMENT MISCONDUCT IN NEW

ENGLAND—VOLUME 2

HEARINGS

BEFORE THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

FEBRUARY 13, 14, AND 27, 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

(II)

COMMITTEE ON GOVERNMENT REFORM

DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

THOMAS M. DAVIS, Virginia

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

BOB BARR, Georgia

DAN MILLER, Florida

DOUG OSE, California

RON LEWIS, Kentucky

JO ANN DAVIS, Virginia

TODD RUSSELL PLATTS, Pennsylvania

DAVE WELDON, Florida

CHRIS CANNON, Utah

ADAM H. PUTNAM, Florida

C.L. ‘‘BUTCH’’ OTTER, Idaho

EDWARD L. SCHROCK, Virginia

JOHN J. DUNCAN, Tennessee

——— ———

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

PATSY T. MINK, Hawaii

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, Washington,

DC

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

THOMAS H. ALLEN, Maine

JANICE D. SCHAKOWSKY, Illinois

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

———

BERNARD SANDERS, Vermont

(Independent)

KEVIN BINGER, Staff Director

DANIEL R. MOLL, Deputy Staff Director

JAMES C. WILSON, Chief Counsel

JIM SCHUMANN, Counsel

CHAD BUNGARD, Counsel

MATTHEW RUPP, Counsel

ROBERT A. BRIGGS, Chief Clerk

NICK MUTTON, Assistant to Chief Counsel

PHIL SCHILIRO, Minority Staff Director

(III)

C O N T E N T S

Page

Hearing held on:

February 13, 2002 ............................................................................................ 1

February 14, 2002 ............................................................................................ 93

February 27, 2002 ............................................................................................ 641

Statement of:

Duke, Steven, esq., Yale University law professor ........................................ 706

Garo, Victor, esq., attorney for Joseph Salvati .............................................. 668

Harrington, Edward F., senior Judge, Federal District Court, former assistant U.S. attorney ..................................................................................... 107

Lawrence, Frederick M., esq., Boston University law professor ................... 686

McGuigan, Austin, former Connecticut chief State’s attorney ..................... 674

Miller, Marteen, former public defender; Edwin Cameron, former investigator; and Tim Brown, former detective sergeant, Somona County

Sheriff’s Office ............................................................................................... 31

Letters, statements, etc., submitted for the record by:

Barr, Hon. Bob, a Representative in Congress from the State of Georgia,

exhibit 18 ....................................................................................................... 129

Burton, Hon. Dan, a Representative in Congress from the State of Indiana:

Exhibit 8 ..................................................................................................... 120

Exhibits 9 and 10 ...................................................................................... 122

Exhibit 11 ................................................................................................... 125

Prepared statements of ..................................................................... 7, 102, 648

Prepared statement of Mr. Gershman ..................................................... 643

Prepared statement of John Cavicchi ...................................................... 94

Clay, Hon. Wm. Lacy, a Representative in Congress from the State of

Missouri, prepared statements of............................................................... 44, 746

Cummings, Hon. Elijah E., a Representative in Congress from the State

of Maryland, prepared statement of ............................................................ 664

Delahunt, Hon. William D., a Representative in Congress from the State

of Massachusetts:

Exhibit 15............................................................................................... 151, 179

Exhibit 16 ................................................................................................... 182

Letter dated July 31, 1973 ....................................................................... 84

Duke, Steven, esq., Yale University law professor, prepared statement

of ..................................................................................................................... 708

Duncan, Hon. John J., a Representative in Congress from the State

of Tennessee, prepared statement of ........................................................... 19

Garo, Victor, esq., attorney for Joseph Salvati, prepared statement of ....... 672

Harrington, Edward F., senior Judge, Federal District Court, former assistant U.S. attorney, prepared statement of ............................................. 110

Horn, Hon. Stephen, a Representative in Congress from the State of

California:

Exhibit 18 ................................................................................................... 140

Exhibits 20 and 21 .................................................................................... 142

Exhibit 25 ................................................................................................... 167

Exhibit 26 ................................................................................................... 172

Exhibit 27 ................................................................................................... 175

LaTourette, Hon. Steven C., a Representative in Congress from the State

of Ohio:

Exhibits 2 and 3 ........................................................................................ 57

Exhibits 4 and 5 ........................................................................................ 65

Exhibit 6 ..................................................................................................... 71

Page

IV

Letters, statements, etc., submitted for the record by—Continued

Lawrence, Frederick M., esq., Boston University law professor, prepared

statement of ................................................................................................... 690

McGuigan, Austin, former Connecticut chief State’s attorney, prepared

statement of ................................................................................................... 680

Tierney, Hon. John F., a Representative in Congress from the State

of Massachusetts:

Exhibit 2 ..................................................................................................... 52

Prepared statements of ........................................................................... 24, 653

Waxman, Hon. Henry A., a Representative in Congress from the State

of California, prepared statement of ........................................................... 15

(1)

THE CALIFORNIA MURDER TRIAL OF JOE

‘‘THE ANIMAL’’ BARBOZA: DID THE FEDERAL GOVERNMENT SUPPORT THE RELEASE OF A DANGEROUS MAFIA ASSASSIN?

WEDNESDAY, FEBRUARY 13, 2002

HOUSE OF REPRESENTATIVES,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

The committee met, pursuant to notice, at 10:49 a.m., in room

2154, Rayburn House Office Building, Hon. Dan Burton (chairman

of the committee) presiding.

Present: Representatives Burton, Barr, Morella, Horn,

LaTourette, Duncan, Waxman, Kucinich, Norton, Cummings,

Tierney, Clay, Watson, and Delahunt.

Staff present: Kevin Binger, staff director; James C. Wilson, chief

counsel; David A. Kass, deputy chief counsel; Mark Corallo, Director of Communications; Thomas Bowman, senior counsel; Chad

Bungard and James J. Schumann, counsels; Robert A. Briggs, chief

clerk; Robin Butler, office manager; Elizabeth Frigola, deputy communications director; Joshua E. Gillespie, deputy chief clerk;

Nicholis Mutton, assistant to chief counsel; Corinne Zaccagnini,

systems administrator; Phil Barnett, minority chief counsel; Jon

Bouker, minority counsel; Michael Yeager, minority deputy chief

counsel; Ellen Rayner, minority chief clerk; and Earley Green, minority assistant clerk.

Mr. BURTON. The Committee on Government Reform will come

to order. I ask unanimous consent that all Members and witnesses’ written and opening statements be included in the record. Without

objection, it is so ordered.

I ask unanimous consent that all articles, exhibits, extraneous or

tabular material referred to be included in the record and without

objection it’s so ordered.

I ask unanimous consent that a binder of exhibits for this hearing be included in the record and without objection it’s so ordered.

I also ask unanimous consent that questioning on the manner

under consideration proceed under clause 2J(2) of House rule XI

and committee rule 14 in which the chairman and ranking minority member allocate time to committee counsel as they deem appropriate for extended questioning, not to exceed 60 minutes divided

equally between the majority and the minority. Without objection,

it’s so ordered.

I also ask unanimous consent that Representatives Frank,

Delahunt and Meehan be permitted to participate in today’s hearVerDate 11-MAY-2000 08:28 Jun 19, 2002 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 C:\DOCS\78662.TXT HGOVREF1 PsN: HGOVREF1
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ing. Without objection it’s so ordered. The reason for that, of

course, is that they are from the region in question and they are

very knowledgeable about this issue. Since it affects their constituency, we think it’s appropriate for them to be here.

I want to start off by repeating a few sentences from my opening

statement before last week’s hearing. The U.S. Department of Justice allowed a lying witness to send men to death row. It stood by

idly while innocent men spent decades behind bars. It permitted informants to commit murder.

The U.S. Department of Justice and the FBI tipped off killers so

they could flee before they were caught. It interfered with local investigations of drug dealing and arms smuggling. Then when people went to the authorities with evidence about murders, some of

them ended up dead.

Now, those are strong accusations and the thing that is so bad

about it is it is true. We know of at least three or four people who

were innocent of murders that spent time in jail. Mr. Salvati spent

30 years in jail for a crime he didn’t commit. All the way up to the

head of the FBI, Mr. Hoover, knew it.

He got the death penalty. Nobody said a word. And his sentence

was commuted to life imprisonment. Finally, after 30 years, thanks

to his hard efforts, his wife and his lawyer, who are here with us

today, he was released. But 30 years is something you can’t give

back.

There was a man in Rhode Island, we understand, who spent 18

years in prison for a crime he did not commit. It is just unbelievable.

What I said was word for word of what I said last week. And the

Justice Department official sat in front of this committee and they

nodded their heads. They said they would cooperate with the committee’s investigation and then they hung tough and said we could

not see the documents relative to the investigation that we subpoenaed.

We are in the middle of an elaborate shell game. The Justice Department knows we are justified in wanting to see the documents

that we subpoenaed. The Justice Department knows that we have

good reason to review the documents. They know that if we don’t

our investigation will be harmed. If they were doing an investigation, they would want to review the same documents themselves.

They would insist on it, for the same reason we have to insist on

it.

I want to digress just a minute and say that I have this horrible

feeling in my gut that there are other people in prison who are innocent of crimes like Mr. Salvati, who are still there. A more horrible feeling is that some of those people were put to death who

were innocent and the Justice Department knew it. The reason I

am very concerned is because we can’t get the Justice Department

to cooperate with us. They won’t let us see documents.

That means we are not going to be able to find out if there are

people who were in prison who are innocent or who died who were

innocent or who may still be there. We need to find out if there are

rogue FBI agents who were involved in these kinds of atrocities

who are still working for the Justice Department. We need to find

out who people were who were putting innocent people in jail, who

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knew they were innocent, and make sure they are held accountable.

That is the only way the criminal justice system in this country

can be cleaned up and make sure that these sorts of things never

happen again. This is America. This is not Soviet Russia. This is

not some Third World country. This is the United States, the land

of the free and the home of the brave. We believe in fairness, equality and in justice. When we find out innocent people are being sent

to jail and the authorities that put them in jail know they are innocent and even give them the death penalty to protect mafia and underworld informants, that in itself is more than criminal, in my

opinion.

For decades Federal law enforcement did terrible things up in

New England and they were successful in covering it up. Now, the

Justice Department today, in 2002, continues to make it hard to

find out what happened. We are not going to tolerate that. I want

to emphasize two important points. First, the Justice Department

has never said that our review of these documents would harm an

ongoing investigation.

Second, the Justice Department has never said that our review

of these documents would compromise secret Grand Jury information. The simple fact of the matter is, they don’t want us to see

these documents for possibly a number of reasons, some of which

I just alluded to, and that’s unacceptable.

I am not going to belabor the point about how unhappy I am

with the Justice Department. They just don’t seem to care that

they are putting hurdles before the committee. Rest assured, we

will do everything we can to get to the bottom of what happened.

I just hope at some point the Attorney General and the President

who are getting really bad advice, will do the right thing and tell

their staffs to cooperate with the Congress of the United States

which has oversight responsibilities.

Last year we held a hearing about the 1965 murder of Teddy

Deegan. Joe ‘‘The Animal’’ Barboza lied on the witness stand and

innocent men got the death penalty, including Mr. Salvati. Only a

Supreme Court ruling in another case prevented the death penalty

from being carried out. Otherwise, Mr. Salvati wouldn’t be here

today.

Still two men died in prison. Another served 34 years before he

was cleared. Mr. Salvati served 30 years before he was exonerated.

The FBI knew Barboza was lying and they covered it up.

Today, we are going to focus on a second chapter in the life of

Joe ‘‘The Animal’’ Barboza. By the mid-1960’s, Barboza was an accomplished killer. The Justice Department believed he had murdered at least 26 people. Barboza was described by FBI Director

Hoover as ‘‘a professional assassin responsible for numerous homicides and acknowledged by all professional law enforcement representatives in New England to be the most dangerous individual

known.’’ And yet they were working with this guy, putting innocent

people in jail.

The FBI knew what kind of man Barboza was from microphone

surveillance of mob figures. For example, here is a story passed

along to FBI Director Hoover. He was told that Barboza was going

to kill a man by burning down the man’s house. Either the fire

4

would do the job or he would shoot the man as he ran from the

burning building.

When Barboza was told the man’s aged mother lived in the house

and would also be killed, Barboza said that it wasn’t his fault and

he didn’t care. After Barboza lied in the Deegan murder prosecution the FBI created the Witness Protection Program specifically

for him. He was moved to Santa Rosa, CA.

Predictably enough, he killed again. For a while he got away

with the murder. Shortly after the murder in California Barboza

went back to Massachusetts. He got into another legal problem and

was put into Walpole Penitentiary. While he was there he told a

career criminal in the cell next to him about the murder that he

committed in California.

That inmate proceeded to tell people about the latest murder, but

the Justice Department did not care. It was OK for Barboza to get

away with murder, literally. In fact, the Federal Government wanted to cover up Barboza’s involvement in the murder in California.

The man Barboza confided in, William Geraway, did write one

letter to the District Attorney in Santa Rosa. That is how he finally

got caught. Investigators were sent from California to Massachusetts. In fact, Mr. Cameron who is here with us today was one of

those investigators. While the Justice Department didn’t seem to

care much about the murder committed by their star witness, the

community of Santa Rosa cared.

Geraway provided the names of eyewitnesses, the location of the

body and other critical details. Santa Rosa prosecutors were able

to indict Joe ‘‘The Animal’’ Barboza in spite of the opposition and

obstruction of the Federal Government.

Today we will hear from three men who were involved in this

tragic episode. They are here to help us understand something

about what happened a long time ago. It’s my understanding that

when my staff contacted today’s witnesses, some said they had

been waiting for 30 years for someone to call about this. No one

ever had, so you probably weren’t holding your breath any more.

But we did call, better late than never.

I just want to say that I am really grateful to all three of you

for being here. Sorry you had to wait so long. You have been cooperative. You tried to help us as much as possible. You dug up old

documents, made time for our questions and voluntarily came to

Washington to testify. I really want to thank you for that.

Marteen Miller was the most experienced public defender in

Santa Rosa, CA. In 1971, when California decided to prosecute Joe

‘‘The Animal’’ Barboza for murder, the case was assigned to Mr.

Miller. You probably never thought you would have a client like

him, did you?

Mr. MILLER. No, I did not, sir.

Mr. BURTON. Ed Cameron was the investigator for the Sonoma

County District Attorney during the Barboza case. Mr. Cameron

was part of everything that was happening during the Barboza investigation and trial. I know you had some health problems recently and I appreciate your being here with us.

Tim Brown was a detective sergeant with the Sonoma County

Sheriff’s Office. He also played a prominent role in the Barboza

murder investigation and he learned some important facts from

5

local FBI agents that the Boston FBI did not want him to know.

We appreciate you being here as well.

What they told us already was enough for me to call this hearing. So far, we have learned that, one, the Federal Government

went to extraordinary lengths to help Barboza get away with the

California murder.

Two, all of tomorrow’s witnesses, each an important Federal Government official, testified on Barboza’s behalf at his trial for the

California murder. Former FBI supervisor, Chuck Hiner, who was

interviewed, told us that he got a call from Dennis Condon, one of

the FBI agents up in Boston and he told us that Denny said he

would be a character witness for this murderer, Barboza.

Barboza’s defense lawyer was helped by the Federal Government.

The prosecutors were snubbed when they sought help. The murder

weapon was given to the FBI for analysis. It was conveniently lost

for a period of time. The FBI in Boston was told that two of the

witnesses against Barboza were going to be assassinated. The FBI

in Boston showed no interest in helping to prevent the murders

from being carried out. Fortunately, they were not carried out.

Investigator Ed Cameron flew out to Boston to talk to the Justice

Department officials. The climate was so hostile he stored his papers in a hotel safe. He later came to believe that someone broke

into his room and searched his briefcase. Barboza ultimately took

a plea bargain for the Wilson murder because he was pretty sure

he was going to be found guilty.

He served less than 4 years for the murder, even though he had

committed dozens of murders and killed while he was in the Witness Protection Program.

Tapes were made of Barboza’s conversations when he was in jail

in Santa Rosa. These tapes, which helped solve at least one additional murder, were given to the FBI. The FBI either lost these

tapes or will not provide them to the committee. Doug Ahlstrom,

the FBI agent who was given these tapes, will not cooperate with

this committee.

Everyone on this committee understands that when you are

fighting organized crime you won’t be working with angels. Witnesses will often be untrustworthy. They may be killers themselves. Well, we might have to work with the underworld, but we

don’t have to sell our souls to the devil. We can’t let the FBI become complacent in putting innocent people in prison.

If we help a witness who has cooperated, we certainly can’t tolerate further murders. Nothing should ever give a government informant or a witness a license to kill. That, however, is what seems

to have happened in the case of Joe ‘‘The Animal’’ Barboza and in

the case of Vincent Flemmi and in the case of Whitey Bulger as

well. Mr. Bulger is still on the 10 most wanted list.

In the case of Stevie Flemmi, that was the rifleman, wasn’t it?

Stevie ‘‘The Rifleman’’ Flemmi who loved killing as well. For 30

years the Justice Department turned a blind eye to witnesses and

informants who committed murder.

After he lied and sent Joe Salvati and others to prison for life,

the animal got dumped on an unsuspecting community in California. He then killed someone else. From that time forward the

6

United States didn’t owe him anything. It certainly didn’t owe him

enough to help him get away with murder.

To come to any other conclusion would be to turn our back on

everything that this system we, this system of justice, stands for.

Congress recently gave the administration sweeping new powers to

deal with the terrorists who committed the atrocities of September

11th. We were all deeply touched by this tragedy.

A former lawyer on this committee, one of my former lawyers,

was in one of those planes and was killed. I don’t regret for a

minute giving the government the powers that it asked for after

September 11th. But with power comes responsibility. It has to be

used wisely.

The Justice Department has the power to protect, but it also has

the power to destroy people’s lives, people like Joe Salvati. I think

every person in a position to wield these new powers standards

should take a few hours to sit down and think about what happened to Joe Salvati, his wife Marie and their four children. Thirty

years were taken out of all their lives. They should take some time

and reflect on today’s testimony and the things we are going to talk

about tomorrow.

They should think about secrecy. They should consider the words

of Federal District Court Judge Wolfe that he used in Boston when

he forced the government to admit its treacherous use of Whitey

Bulger and Stevie Flemmi as informants.

Judge Wolfe quoted Lord Acton when he said, ‘‘Everything secret

degenerates, even the administration of justice.’’

Thirty years ago it would have been unthinkable for the Federal

Government to knowingly try to put men in the electric chair for

crimes they didn’t commit, just as it’s unthinkable that the same

thing could happen today. But it does happen. Our laws are administered by human beings.

I hope everyone that follows these hearings understands what we

are doing today is not an exercise in academics. We don’t want

there to ever be another case like Joe Salvati’s.

I would just like to end by saying that the American people and

the media have only partially focused on this. We have a lot of

things that are going on right now that are very important, the

Enron Investigation. We have campaign finance reform on the

floor. We’ve got the war going on.

But in my opinion there’s nothing more important than making

sure that Americans are treated fairly in the criminal justice system. If any part of our government is putting innocent people in

jail for life or giving them the death penalty knowing they are innocent, then my gosh, we’ve got to correct that and we have to correct it quickly.

I think, in my opinion, that’s just as important as the terrorist

problems we are facing right now because in fact it’s terrorism

being fostered on American citizens who are innocent and that’s

something we can’t tolerate.

Mr. Waxman.

[The prepared statement of Hon. Dan Burton follows:]

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Mr. WAXMAN. Thank you very much, Mr. Chairman. I want to

start where you left off. There are a lot of things happening in the

world. I want to commend you for making sure that we investigate

any perversion of justice because what this country has always

stood for is fairness and justice.

We are today examining allegations of FBI and Justice Department misconduct in their dealings with Joseph Barboza, a violent

criminal who turned State’s evidence in several high profile organized crime prosecutions in New England. I very much welcome

this hearing.

In the 1960’s Joseph Barboza was well known to the FBI and law

enforcement authorities in Massachusetts. He worked as an enforcer and killer for organized crime groups in New England. To

avoid a lengthy prison sentence, he decided to work with the government in major Federal and State organized crime prosecutions.

Mr. Barboza’s testimony led to the conviction of some of the most

notorious mafia figures in New England at the time, including a

mafia boss, Raymond Patriarca, as well as two of his top lieutenants and other members of the mafia.

The Federal and State prosecutors involved in the prosecutions

won great praise for their work. J. Edgar Hoover gave personal

commendations to the agents who helped develop the cases. At the

time, the convictions won by way of Joseph Barboza were a mark

of professional accomplishment, and they established practices in

the Boston office of the FBI that lasted for decades.

Today the history of the Federal Government’s dealings with Joseph Barboza no longer stands as an achievement, but as an egregious example of law enforcement abuses.

From this committee’s investigation and materials uncovered by

the Justice Department Task Force investigating related allegations, several things are clear. Mr. Barboza gave false testimony in

the trial of six defendants in 1968 for the murder of Edward

Deegan. This resulted in the wrongful conviction of Joseph Salvati

and possibly others.

The FBI agents who worked with Mr. Barboza in connection with

that State prosecution knew or should have known that his testimony was false. Federal officials withheld crucial exculpatory evidence in the Edward Deegan murder trial and denied the defendants in that case a fair trial.

After the trial, the Justice Department relocated Mr. Barboza to

California where he killed again. During his trial for murder in

California, the Justice Department and the FBI worked on Mr.

Barboza’s behalf to assist in his defense. With the assistance of the

Justice Department, Mr. Barboza made a plea agreement that

minimized the term of his imprisonment and allowed him back on

the streets.

I think all of us on this committee would agree that the Justice

Department and the FBI lost their way. No ends, not even the

laudable goal of eliminating organized crime, justify these means.

Before Robert Mueller was confirmed as Director of the FBI, he

told a Senate committee that, ‘‘The measure of an institution is

how it responds to its mistakes.’’ He went on to say that it was his

highest priority to restore public confidence in the FBI. I commend

Mr. Mueller for his commitment to this priority, but I do not unVerDate 11-MAY-2000 08:28 Jun 19, 2002 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 C:\DOCS\78662.TXT HGOVREF1 PsN: HGOVREF1
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derstand why the Justice Department and President Bush continue

to impede this committee’s investigation into these matters by asserting executive privilege over potentially important documents.

I urge President Bush to reverse course and to direct his administration to cooperate fully with this committee. That’s the only

way that we in the Congress and the general public can understand this unfortunate episode.

Thank you, Mr. Chairman.

[The prepared statement of Hon. Henry A. Waxman follows:]

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Mr. BURTON. Thank you, Mr. Waxman.

Mr. Horn, do you have an opening statement?

Mr. HORN. I don’t want an opening statement. I would like to get

to the questions.

Mr. BURTON. OK. Well, we will get to those very, very quickly

then.

Mr. Duncan.

Mr. DUNCAN. Mr. Chairman, let me say once again how much I

appreciate your courage and persistence in having hearings on this

matter. I will say once again, as I said last week, when you opened

up your statement last week and you repeated this opening paragraph again today, I serve on three full committees and six subcommittees. This is my 14th year in the Congress. I have participated in probably several thousand committee and subcommittee

hearings during that time.

I said last week I have never heard a more shocking statement

made in any committee or subcommittee hearing that I have ever

participated in than your opening paragraph.

In case anybody here, in case they did not hear that or their

minds were some place else, I want to repeat that. The chairman

said, ‘‘The U.S. Department of Justice allowed a lying witness to

send men to death row. They stood by idly while innocent men

spend decades behind bars. They permitted informants to commit

murder. It tipped off killers so they could flee before they were

caught. It interfered with local investigations of drug dealing and

arms smuggling. ‘‘Then when people went to the Justice Department with evidence about murders, some of them ended up dead.’’ I can tell you this: I spent 71⁄2 years as a criminal court judge

trying felony criminal cases. I mentioned that in here before. The

first year I ran for Congress, 302 out of 309 of the Knoxville City

Police Department officers ran an ad endorsing me for election. The

Knox County Sheriff’s Department did the same thing. I think that

I have supported law enforcement as much as anybody possibly

could.

But there’s a reason why our founding fathers wanted most of

our law enforcement to be local and there’s a reason why most or

many people who have thought about this do not want us to create

a Federal police state.

You know, our lowest paid law enforcement officials are our local

police officers. Next are the State and then our highest paid law

enforcement officials are the Federal officials. Many of them never

see a real criminal unless they are mugged on the way to their cars

after work.

We give the lowest pay to our people who are out there fighting

the street crime, the real crime that people want fought. Then

when we read about cases such as this Barboza case that we are

going to hear about today where the Special Agent in Charge of the

Boston office told J. Edgar Hoover, ‘‘I Barboza was a professional

assassin responsible for numerous homicides and acknowledged by

all professional law enforcement representatives in New England to

be the most dangerous individual known.’’

Then we had Barboza taking a plea agreement for a murder in

California and serving less than 4 years, even though he had comVerDate 11-MAY-2000 08:28 Jun 19, 2002 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 C:\DOCS\78662.TXT HGOVREF1 PsN: HGOVREF1
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mitted dozens of murders, dozens of murders. His own lawyer

called him, ‘‘one of the worse men on the face of the earth.’’ When

asked about the short prison term for Barboza of less than 4 years,

his lawyer said that was pretty amazing. ‘‘I figured out that was

how it worked when you had friends in the FBI.’’ That’s really sad, that when you have friends in the FBI you can

commit dozens of murders and get out with a sentence of less than

4 years.

But a man who has done nothing at all and who is totally innocent has to serve 30 years. I do not believe that the people of this

country feel that the Justice Department was set up to protect

murderers like Barboza. I am totally amazed at what I am hearing

at these hearings. I am more than amazed. I am shocked. I am

going to do what I can in my small way to call attention to this.

I am going to go on C-Span and I am going to talk about this.

I am really embarrassed and ashamed and saddened that the Justice Department is continuing to try to withhold documents from

the chairman and from this committee and try to continue this

cover-up. The whole thing is just shocking.

I appreciate your calling these hearings and letting me participate. Thank you, Mr. Chairman.

[The prepared statement of Hon. John J. Duncan follows:]

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Mr. BURTON. Thank you, Judge Duncan.

Mr. Tierney.

Mr. TIERNEY. Thank you, Mr. Chairman. With your permission

and that of the other members of the committee, I would like unanimous consent to just put my remarks on the record so we can get

to the witnesses.

Mr. BURTON. Without objection, it’s so ordered.

[The prepared statement of Hon. John F. Tierney follows:]

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Mr. BURTON. Mr. Delahunt.

Mr. DELAHUNT. I thank you, Mr. Chairman. Again, as I have

stated on previous occasions, let me commend you for moving forward with this. Also, let me commend the witnesses. I am sure

they are here with some ambivalence. But what you are doing

today is very important.

We don’t have a democracy if we have a justice system whose integrity is at risk. What you experienced and what I anticipate your

testimony will reveal, your experience in California in the late

1960’s and early 1970’s did not stop then. It continued. It continued

in the Boston area and at some level I presume elsewhere all over

this country, in the 1970’s, in the 1980’s and the 1990’s.

Again, a justice system that has integrity is so critical to a

healthy vibrant democracy. In the notice put out by the committee,

and maybe I could inquire through the chair to Mr. Wilson, chief

counsel. There was an indication that possibly a representative of

the Department of Justice would be here. If I could inquire, is

there a representative of the Department of Justice here?

Mr. BURTON. We’ll have the department here for testimony tomorrow. The other case you were talking about, which we might

as well bring up at this time was that one of the agents that was

involved in the case at hand couldn’t be here, he said, because of

health problems.

We subpoenaed him and he will submit to a sworn deposition

next week, so we will get his testimony as well.

Mr. DELAHUNT. Again, the question I would pose to the Department of Justice is many of these documents which we have been

provided with have names and possibly important information redacted.

I think the Department of Justice has the obligation to inform

the committee of the rationale for the redaction. I think that’s important that we can further realize what we are dealing with here.

I think I do see a representative of the Department of Justice in

the audience. Maybe at some point in time he can respond to that

question. Who is responsible for the redaction of some materials

and names in the documents that were presented and provided to

the committee?

Mr. BURTON. If he is not prepared for that today, we will try to

get that information tomorrow and you can ask that question then.

Ms. Watson, did you have any comments?

Ms. WATSON. I just want to say that I am pleased to be part of

this committee that continues to search for truth and justice at a

time when our integrity is being questioned and there are tremendous scandals and cover-ups, I think we have to do everything we

can publicly to dig it out, bring it forward and clear it up and let

justice prevail.

I just came back from Cuba. This weekend I had maybe a 5 or

6 hour meeting with President Fidel Castro. When our ‘‘Ambassador’’ used a hard line, we repeated the language to him and he

said, well, America appears to be hypocritical and gave us the

names of five, as he called them, innocent Cubans that are in Federal prisons. He pointed out that one of them was in Lompoc in the

State that I represent.

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What can you say? You sit there in a chagrin fashion. We must

clear these issues up. We must bring them public. We must reform.

If we are going to be the leader of the free world, we need to model

a kind of behavior that says these kinds of crimes and cover-ups

cannot exist in America.

Thank you so much, Mr. Chairman.

Mr. BURTON. The gentle lady yields back her time.

We will now hear testimony from our witnesses who are here

today. We want to thank you once again for coming all the way

from out in sunny California to be here. You all live in southern

California, don’t you? You all have nice tans. You look good. Oh,

one of you is living in Nevada? Well, it is warm there, too.

Mr. Marteen Miller, Mr. Edwin Cameron and Tim Brown, would

you please rise and be sworn?

[Witnesses sworn.]

Mr. BURTON. I think we will start at my left. Mr. Miller, would

you like to make an opening statement?

STATEMENTS OF MARTEEN MILLER, FORMER PUBLIC DEFENDER; EDWIN CAMERON, FORMER INVESTIGATOR; AND

TIM BROWN, FORMER DETECTIVE SERGEANT, SOMONA

COUNTY SHERIFF’S OFFICE

Mr. MILLER. No, sir. I will waive that.

Mr. BURTON. OK. Well, you can answer questions.

Mr. Cameron, do you have an opening statement?

Mr. CAMERON. No. I will waive that.

Mr. BURTON. Just answer questions, OK.

Mr. Brown.

Mr. BROWN. No, sir. I will waive that.

Mr. BURTON. Very well, we will get on with the questions then.

I think this is one of the first panels we have ever had that did

not have an opening statement. That’s why I wasn’t ready for the

questions.

OK, we will proceed under the 5-minute rule today. Mr. Cameron, you were the police officer and the investigator for the

Sonoma County District Attorney’s office. If that correct?

Mr. CAMERON. Yes, sir.

Mr. BURTON. Is it fair to say that when you were investigating

a murder committed by Joseph Barboza the FBI and the Justice

Department did not help you very much? Is that correct?

Mr. CAMERON. It would be more than fair to say that we did not

get any cooperation from the Federal Government.

Mr. BURTON. From the FBI?

Mr. CAMERON. The FBI.

Mr. BURTON. When you began your investigation, did you know

that Joe ‘‘The Animal’’ Barboza had been described to J. Edgar

Hoover as a professional assassin responsible for numerous homicides and acknowledged by all professional law enforcement to be

the most dangerous individual known?

Mr. CAMERON. When we originally got the letter telling us that

we had a body in California? No, I did not know that.

Mr. BURTON. Mr. Brown, did you know when you started that

was how the FBI described Mr. Barboza?

Mr. BROWN. No, sir, not at the time that it began.

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Mr. BURTON. Did you know that the FBI, Mr. Cameron, believed

that he committed at least 26 murders?

Mr. CAMERON. Not when we began. Later I found that out.

Mr. BURTON. So, at the beginning none of you knew that?

Mr. CAMERON. No, sir.

Mr. BURTON. Mr. Miller, when you started the case the prosecution had two eyewitnesses, another witness who had all the facts

right, a body and a client with a very bloody past. I think you told

our lawyers that you thought it would take the jury about 2 minutes and that the prosecution’s case was a lead pipe cinch. Do you

recall telling us that?

Mr. MILLER. That’s substantially correct. I did not have too much

hope at the beginning of the trial, but sometimes things go poorly

for you and sometimes they break for you. I think we rolled 7s and

11s in that case.

Mr. BURTON. So, you thought that this was potentially a death

penalty case for Mr. Barboza?

Mr. MILLER. It was a death penalty case, yes.

Mr. BURTON. And you did not hold out much hope for him because of the evidence involved.

Mr. MILLER. Well, there is always hope, but I have to address reality.

Mr. BURTON. Mr. Brown, you were a detective sergeant with the

Sonoma County Sheriff’s office. Is that right?

Mr. BROWN. Yes, sir.

Mr. BURTON. Joe Barboza was alleged to have killed someone

outside of Santa Rosa. We’ll get into the specifics later, but from

our interview of you it sounds as though the Justice Department

didn’t really want Barboza to go to prison for the murder he committed. Is that right?

Mr. BROWN. Yes. That’s correct.

Mr. BURTON. At the time of the Barboza prosecution, you were

the public defender, Mr. Miller?

Mr. MILLER. Yes, sir.

Mr. BURTON. And as the most experienced attorney in the office,

you handled all the murder cases, correct?

Mr. MILLER. That’s correct.

Mr. BURTON. Did the FBI provide significant help in your defenses of Barboza?

Mr. MILLER. Well, they were very friendly to me when I went

back to Massachusetts as far as getting into Walpole and so on,

and telling me where to stay and so on, and offering any assistance

that they could give. But the evidence in the case, realizing that

they had an individual to whom Mr. Barboza had made a statement about the case. They had two eyewitnesses to the case. The

body was found exactly where Mr. Geraway said it would be found.

The trauma was exactly the way Mr. Geraway described it and

the witnesses that testified in that trial also said that they witnessed the case. So, there was no real evidentiary help that the

FBI could have given me in relation to that case.

If I may add gratuitously, I think what you should be looking at,

I think, is what happened post-trial. In my 40 years as a criminal

defenses lawyer, I have never seen a situation where someone goes

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into prison with a second degree murder charge getting out in as

short a time as he did.

Obviously, I asked if they could appear, just for color’s sake.

There was nothing in their testimony in relation to the actual killing in the case. The FBI was held in such esteem that if I could

call them as a witness and have them say substantially anything,

relevant or not, that would be a point in my favor.

Mr. BURTON. Did they agree to appear as ‘‘character witnesses?’’ Mr. MILLER. Well, I wouldn’t say character witness. My apologies, Mr. Cameron, I know you weren’t the attorney, but I was surprised that there was an objection made by the prosecution asking

what the relevancy was. All I wanted to do was place before the

jury the color of the FBI in my favor, in any way I could.

Mr. BURTON. But the FBI did agree to testify in support of, to

a degree, Mr. Barboza?

Mr. MILLER. Oh, well, sure, yes. May I continue just for a moment?

Mr. BURTON. Sure.

Mr. MILLER. I think it may clear something. Maybe I was naive,

but I knew that the FBI did not want Mr. Barboza to get the death

penalty. They were absolutely fearful of that. My rationale was

they were afraid that if he got the death penalty he would have

nothing to lose, he would then recant his testimony and the payoff for the mafia would be remuneration financial to his ex-wife and

his children. So, maybe there’s a lot more to it, after your opening

statement, and there probably was. But at the time my feeling was

that the FBI’s interest in this case was solely to keep Mr. Barboza

from recanting his testimony and I had no reason to believe other

than recanting against people that were actually guilty.

Mr. BURTON. Well, we are trying our best to get to the bottom

of that. That’s why we are working so hard to get the documents

in question.

Mr. Tierney.

Mr. TIERNEY. Thank you, Mr. Chairman. Let me broaden out the

question a little bit with the hope that you can give us some help.

Starting with you, Mr. Cameron, your recollection back on this period of time, what would you tell us about your observations as to

whether or not any of the law enforcement people involved, the

Federal law enforcement people that were involved in that case at

that time did anything that could be perceived to have obstructed

the pursuit of justice in that particular case.

Mr. CAMERON. Our office, I called. It has been a number of years

ago. I am the one who said, ‘‘Why has it taken 30 years to get to

this place?’’ I waited that long. We called back for background information. We got that information which was publicly known at

the time.

Whenever we asked them for any help, in our case to buck it up,

I would call back and make a request. I don’t know how many

times I called, but I would say numerous. I never ever got a return

telephone call, once ever.

Mr. TIERNEY. Do you remember the names of any particular

agents that you were trying to reach at that time?

Mr. CAMERON. When I would call? No. The two fellows we were

attempting to deal with were Condon and Rico.

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Mr. TIERNEY. And that’s the sum total of what you can tell us

about specifics with regard to possible obstructions or interferences

with your prosecution of that case?

Mr. CAMERON. I can only tell you what happened to me. I didn’t

like the feeling. You know, you are a cop long enough, you get gut

feelings. I had never had a gut feeling in a law enforcement establishment before. When I got back to Boston on one of the trips, I

put my papers in the hotel safe and I fixed my briefcase with a

hair to see is somebody would open it. We left, I came back and

somebody had opened it.

Now you have to keep in mind that we are dealing with the

mafia and the FBI. I am not here to damn them because they are

brother law enforcement officers. I don’t like being here because I

am going to do that, I think. But I don’t know who opened it, but

something opened it.

Mr. TIERNEY. You had no idea who had access to your room?

Mr. CAMERON. Nobody should have.

Mr. TIERNEY. Mr. Miller, some of the information that staff put

together before this indicated that at one time you believe that one

of the Federal officers, either Rico or Condon, offered to testify and

you were uncomfortable with the nature of that testimony. You

thought that they were perhaps not going to be as straightforward

as they should have?

Mr. MILLER. No. That was probably my mistake in talking with

them. You know, in 40 years as a criminal defense lawyer, you get

involved with all spectrums, both sides of the fence. What I was

trying to get at is that it is kind of common knowledge among

criminal defense lawyers and even prosecutors that sometimes

when the Federal Bureau of Investigation witness gets into trouble,

I am not saying that he is going to perjure himself, but he gets into

trouble where his answers may not be helpful to him and he will

announce that he wants to go into chambers and then will claim

that to answer that question would be a breach of national security. So, that was the import of that. But not, there was no offer

by any of the agents that I called to proffer anything other than

the truth.

Mr. TIERNEY. Was there any occasion when any of those agents

refused to testify about a particular matter, claiming that it was

an issue of either national security or——

Mr. MILLER. Yes. I think it was on an insignificant point. I think

it was Mr. Hyland that asked, I think it was Mr. Condon, asked

him about the Deegan matter, some specifics, and he declined to

answer on the basis of advice from the Attorney General.

Mr. TIERNEY. Mr. Miller, what was the plea that was finally entered?

Mr. BURTON. Excuse me, I want to make sure that we don’t miss

anything on that point. There was some question about national security or something that dealt with the law enforcement at the FBI

level regarding the Deegan murder that they didn’t want brought

out in court?

Mr. MILLER. That’s correct. However, he did not use, the transcript did not use the words ‘‘national security’’ but the import

would be, in further questioning that’s what he would have said.

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He said that he would not answer that question based upon the advice of the attorney general.

Mr. BURTON. Regarding the Deegan murder?

Mr. MILLER. Any specifics in that regard.

Mr. BURTON. I thank the gentlemen for yielding.

Mr. TIERNEY. Let me ask, have any of you gentlemen been contacted by the Federal Bureau of Investigation or any of its officers

or agents prior to this hearing, since you were subpoenaed or asked

to come here to testify?

Mr. MILLER. No, sir.

Mr. CAMERON. No.

Mr. TIERNEY. Mr. Miller, I started to ask you just briefly, what

were the terms of the plea agreement that was finally entered in

that case in terms of disposition?

Mr. MILLER. Well, we were along in the case, a few months in

the case. I felt that we were on top of the case, however you never

really know what can happen. It was a death penalty case. I think

the prosecution, especially Mr. Hyland, was very experienced and

saw what might be happening.

So, we had a discussion. I offered to plead Mr. Barboza to second

degree murder and I think it was an in determinant sentence at

that time, 5 years up and so on. He had parole to do in Massachusetts. So, I figured he would do his parole time and we would run

it concurrent so he would have little if any time to do in the California penal system.

Mr. Hyland agreed to that. Then, lo and behold, I guess he

doesn’t do any time in Massachusetts and he comes to California,

and to be perfectly honest, was calling my office from time to time

from prison, just like he owned it, and was released very early. So,

in my personal opinion, if there was any impropriety with the FBI

it was only in terms of the amount of time, but again—— Mr. TIERNEY. Let me ask you, what happened between the beginning of the case when your assessment of the case was that the

prosecution had a very strong case and the client was in trouble

and that point in time when the prosecution was all ready to dive

into a second degree murder with short time in California?

What were the circumstances during the trial that would have,

in your judgment as an attorney, led a seasoned prosecutor to decide to fold?

Mr. MILLER. Well, No. 1, I think Mr. Geraway became very emotional on the stand because of a question I asked him and lost a

lot of credibility.

No. 2, there was two eye witnesses who made three separate

tape recording statements to the police or the investigators. Naturally, they were probably afraid of Mr. Barboza, so they were trying

to protect themselves in the first tape. Then there was the third

tape where they said exactly what Mr. Geraway said.

I think where the prosecution made an egregious error they allowed me to cross-examine extensively on the first tape, then on

the second tape and then on the third tape. I think I cross-examined the witnesses for over 3 or 4 days. So, the jury is sitting there

saying, what is going on there? How can they change their stories

and so on?

Mr. TIERNEY. And this was a seasoned prosecutor?

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Mr. MILLER. Well, I’ll tell you that I was examining one of the

witnesses and one of the prosecutors objected and Mr. Cameron objected on the basis that I was trying to proffer something that

wasn’t even real.

Mr. Cameron, as I recall, tapped him on the shoulder and gave

him a copy of the police report.

Mr. TIERNEY. Do you recall that, Mr. Cameron?

Mr. CAMERON. Yes, I do.

Mr. TIERNEY. Give me your impression of the qualifications of

the prosecutor during that trial if you would.

Mr. CAMERON. I work for a lot of attorneys and I work for him

specifically. That was my duty. I wasn’t assigned to anybody else

but the D.A. He is probably the finest, toughest guy I ever worked

for. You asked why we took the second degree. I can tell you why

we took the second degree. We didn’t have as witnesses a bus full

of nuns that witnessed the killing. They weren’t the best in the

world, two convicted murders or two ladies.

But we did have a pretty dead bang capital murder case. We

were going to call the FBI. For some reason we found out that they

were going to testify for the defense. That happened and we had

a meeting shortly after they testified. I wanted a first degree on

Barboza but realistically our office knew that we weren’t going to

get it.

You have to keep in mind this was in the early 1970’s. Everybody

had nothing but the highest respect for the FBI.

Mr. TIERNEY. Can I take one or two more questions on this?

Thank you. When is it that you became aware that the FBI would

not testify for the prosecution but would testify for the defense?

Mr. CAMERON. During the trial. Sometime during the trial.

Mr. TIERNEY. Were you privy to the conversations between the

prosecutor and the agents?

Mr. CAMERON. I’m not sure that we had more than a very brief

meeting yes, I was privy to it, but it was a very brief conversation

with them.

Mr. TIERNEY. What were your expectations of the testimony?

Mr. CAMERON. Oh, we expected they were going to tell us about

the background of Barboza, what he was about, what kind of a

man he was. He had testified for them and we expected that. We

didn’t expect him to say yeah, everything he had ever said was

truthful and righteous.

What effect that testimony had on us is that when we came back

and Mr. Fahey and myself and Mr. Hyland, the District Attorney,

thought we had better take a second degree murder because they

had injured us that badly with their testimony.

Mr. TIERNEY. In all of your experience before that trial and since

that trial, have you ever seen an occasion where the FBI agents

take the stand and serve essentially as character witnesses to a

man charged with murder.

Mr. CAMERON. Absolutely not.

Mr. TIERNEY. Thank you. Thank you for your indulgence.

Mr. BURTON. Mr. Horn.

Mr. HORN. Thank you, Mr. Chairman. We left off with Mr. Burton. Mr. Miller, I might add, was public defender for Mr. Barboza

in the Clay Wilson murder trial. The question that was really not

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quite put out was, the FBI, did they give you significant help in

your defense when you went back to Boston?

I think you told our staff that the FBI did buy you a lobster dinner. Is that right, Mr. Miller?

Mr. MILLER. That is true. That is correct.

Mr. HORN. Now, Mr. Cameron, you were the prosecution. You

were working. Did you get a lobster dinner out of the Justice Department also?

Mr. CAMERON. Yes.

Mr. HORN. Now were you getting the facts that you wanted out

of the FBI?

Mr. CAMERON. No, sir. We got romanced but never kissed.

Mr. HORN. And it was a tough lobster, I take it.

Mr. CAMERON. I remember it as being good. It didn’t cost me

anything.

Mr. HORN. Now, do you feel they were just unhelpful or did you

press them on what you wanted and did they just say, ‘‘We can’t

do it’’ or did they just stonewall you?

Mr. CAMERON. They would tell us what was public knowledge

and that was about it. Of course, we did not know anything about

Mr. Salvati and the Deegan murder case at the time. I could not

figure out why we were not getting any help from another law enforcement agency.

I can understand having a Witness Protection Program. I understand the reason for it. Every good investigator that I have ever

met draws a line in the sand when dealing with informants. I know

that every good investigator that I have ever met will help a petty

thief if he is willing to give you somebody better, up to, my line

in the sand was I would never help a child molester or a murderer.

I could never understand in this case why the FBI, the epitome

of everything that I thought was good about law enforcement,

crossed the line that I drew, my personal line in the sand, which

was helping those fellows, and they did.

Mr. HORN. Did you feel when you got back there, you are saying

they didn’t really interfere, they just sort of didn’t help. Did any

of them help and which were they? Were they one or two or three

members?

Mr. CAMERON. The most help we got was—but I don’t believe he

was an FBI agent, his name was Reagan. I think he was a State

policeman. I would say I got the majority of my information from

him, outside of that which was public knowledge.

Mr. HORN. When you thought through what you needed in the

California prosecution, is that probably the most memorable case

you had or were there others?

Mr. CAMERON. Oh no, that’s why I remember it as clearly as I

do 30 years later.

Mr. HORN. Mr. Brown, is that Barboza case the most memorable

you ever had?

Mr. BROWN. Yes, beyond a doubt.

Mr. HORN. Now, you had a murder victim in Sonoma County and

that was Clay Wilson. You had what you thought was the murder

weapon, isn’t that right?

Mr. BROWN. Yes, sir.

Mr. HORN. And it was a handgun?

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Mr. BROWN. Yes.

Mr. HORN. And who did you give the handgun to for testing?

Mr. BROWN. We sent it to the FBI laboratory, with slugs, if I

might add. We dug up the slugs that we thought came from that

gun. It had the victim’s hair on the slugs, both of them. That was

all sent to the FBI Crime Laboratory.

Mr. HORN. Well, what happened to your handgun that you sent

to the FBI laboratory?

Mr. BROWN. It got lost.

Mr. HORN. Did they ever tell you what happened?

Mr. BROWN. Yes. It was recovered somehow, I think just before

the trial.

Mr. HORN. So, what kind of evidence did they have before the

trial, even though it was later missing?

Mr. BROWN. Well, we had the gun, but we were concerned with

the chain. I mean, how do you lose a gun in the laboratory? But

it all worked out. It worked out as the trial began.

Mr. HORN. I think it was pretty delicate. Did that play a real— I mean they didn’t say that this handgun was damaged or anything

and we can’t determine that the slugs and everything came off that

handgun? What did they give you that you could use and what

didn’t they give you?

Mr. BROWN. You know, I can’t tell you. I can’t remember that.

I don’t remember how it came about as far as—you know, I don’t

remember.

Mr. HORN. Mr. Cameron, during your investigation you traveled

to Boston, as we saw. One of the purposes of the trip was to get

information about Barboza that would help your case. Is that correct?

Mr. CAMERON. Yes, sir.

Mr. HORN. Instead of getting information, you became suspicious

of the FBI, didn’t you?

Mr. CAMERON. I was uncomfortable with them, yes, sir.

Mr. HORN. In fact, you became so suspicious that you did something with your briefcase?

Mr. CAMERON. I did.

Mr. HORN. Tell us what you did with your briefcase.

Mr. CAMERON. We talked about that a moment ago. I had this

terribly uncomfortable feeling, so when I left the hotel I took a hair

and wrapped it around the lock and left it there. I did not lock it.

I just closed the hasps.

When I returned, someone was in it.

Mr. HORN. And you put a hair set to show whether anyone tampered with it, but when you returned later it was broken?

Mr. CAMERON. It was broken.

Mr. HORN. Now, the Wilson murder was discovered because William Geraway, a prisoner who was in the cell next to Barboza

wrote a letter to authorities saying Barboza confessed to the murder. After Geraway’s letter was received, your office decided that

you would go the Massachusetts. Is that correct?

Mr. CAMERON. Yes, sir. When we got the letter, yes.

Mr. HORN. Once you were in Massachusetts, did you meet with

FBI Agent Dennis Condon?

Mr. CAMERON. We did.

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Mr. HORN. Was the meeting with Agent Condon unusual and

how so?

Mr. CAMERON. No, I don’t believe it was unusual at the time. We

had no reason to—we were asking them for help, what was

Barboza about? Is this in fact a good—you know before you go out

and talk to somebody in Walpole Prison, you want to find out what

is going on and can they help you? They filled us in because we

were completely ignorant about Joe Baron. We had no knowledge

of him at all.

Mr. BURTON. Would the gentlemen yield?

Mr. HORN. Yes.

Mr. BURTON. In the notes that we have from our legal staff, that

first meeting you had with Condon, you indicated that it was kind

of a strained meeting. Do you recall saying that?

Mr. CAMERON. I felt tension. I felt that you would ask a direct

question and you get—that is what I meant by being romanced

without being kissed. I felt that they were giving us exactly what

they wanted to give us and not anything more. I don’t know why

I felt that. It proved to be true, of course.

Maybe my 30 years of hindsight has reinforced my original uneasy feeling.

Mr. BURTON. Why don’t you ask a couple more questions, Mr.

Horn?

Mr. HORN. In your experience now, and we have that already for

the record, were law enforcement agencies usually helpful if one of

their witnesses or informants were accused of a crime, particularly

murder?

So, what your feeling was, as the chairman says, you were

strained about this and maybe a little worried about what you were

going to get and you didn’t seem to get it. Is that correct?

Mr. CAMERON. We just didn’t know what we were going to get.

We got what we thought we wanted, but it was not an open and

free discussion, I think.

Mr. HORN. You didn’t feel that it was cooperative with what you

wanted to have done, I take it.

Mr. CAMERON. I didn’t feel like we were getting the whole story.

Mr. HORN. At one point, your office asked Agent Condon for

records. What happened? What was his response?

Mr. CAMERON. To my knowledge, sir, we asked the FBI on more

than one occasions for records. We never received one that I can

remember.

Mr. HORN. Did you ask them and they said, ‘‘Sorry, we can’t do

it?’’

Mr. CAMERON. I would call and ask for records. I never so much

as got a return telephone call.

Mr. BURTON. We will come back here in just a minute, Mr. Horn.

Mr. Delahunt.

Mr. DELAHUNT. Mr. Cameron, don’t feel like you are a member

of an exclusive club in terms of not receiving records. You should

be aware that this committee has requested records and has not received them.

Let me direct this question to Mr. Cameron and Mr. Brown, if

you have knowledge. I think I just heard you say, Mr. Cameron,

that you had no knowledge of Joe Barboza.

40

Mr. CAMERON. No, sir. We did not know he was in town. I did

not know who he was. I had no knowledge of him.

Mr. DELAHUNT. You didn’t know that he had committed 26 murders, according to a senior FBI official?

Mr. CAMERON. Prior to going back to Boston, when we got the

letter we had no idea we had a murderer of that ilk in Santa Rosa,

CA, no, sir.

Mr. DELAHUNT. You were never notified that you had one of the

most dangerous criminals of that generation living in your community?

Mr. CAMERON. We had no idea. Our law enforcement community

had no idea.

Mr. DELAHUNT. No one that you were aware of at the local or

State or county level in terms of law enforcement was ever notified

or ever informed regarding the fact that pursuant to a deal, Mr.

Barboza was relocated to your community?

Mr. CAMERON. We had no idea.

Mr. DELAHUNT. Mr. Brown.

Mr. BROWN. No official notification. I had seen him. I was with

Agent Ahlstrom on a few occasions and I was told by Agent

Ahlstrom, his words were he is taking care of him and babysitting

this man. I mean, we had no idea who he was, what were the circumstances. That was before we had our homicide.

Mr. DELAHUNT. Before the homicide?

Mr. BROWN. Yes, sir.

Mr. DELAHUNT. So, you received no notification whatsoever from

the Federal Government?

Mr. BROWN. No.

Mr. DELAHUNT. Given your experience in local and State law enforcement, if you had been notified, would you have conducted any

surveillance? Would you have taken any measures to monitor the

conduct of Mr. Barboza given what you now know in terms of his

background?

Mr. CAMERON. I would hope so. We had a young man missing,

Clay Wilson, who had been missing for some time. We later found

out that they knew that he was hanging around this guy. As backward a policeman as maybe I was in Santa Rosa, CA, I could figure

out that if we had a guy who killed 26 people in Boston and we

had a young man missing in California, I would think that any cop

worth his salt could at least put that piece of the puzzle together.

Mr. DELAHUNT. You could have deduced that he had a proclivity

to murder?

Mr. CAMERON. I would think that if one killed 26 people he

would.

Mr. DELAHUNT. Twenty-seven wouldn’t be all that difficult.

Mr. CAMERON. Not at all that difficult.

Mr. DELAHUNT. Mr. Brown.

Mr. BROWN. At the time period you are after prior to our knowledge of Barboza living in Santa Rosa he had been involved in several things with our victim, Clay Wilson, at the time. There was

an ongoing activity as far as some bonds that were stolen and

weapons.

But at that time we had no knowledge of what was going on with

Barboza. But life was the same for him. He was continuing his

41

former course of conduct before he came under the Witness Protection Program.

Mr. DELAHUNT. During that timeframe, did you have conversation with Agent Ahlstrom of the FBI regarding Mr. Barboza? You

said he indicated to you that he was babysitting him?

Mr. BROWN. Yes, he told me 1 day, we were having lunch or

whatever, and he says, ‘‘I’m taking care of this guy’’ or I’m babysitting him. It was just kind of a trivial little remark. I never

thought much of it. I mean I really didn’t think anything of it.

Mr. DELAHUNT. Was this prior to the Wilson homicide?

Mr. BROWN. Yes, sir, yes.

Mr. DELAHUNT. Did he ever indicate to you that Mr. Barboza was

one of the most dangerous criminals in the annals of crime in

America?

Mr. BROWN. No, he didn’t. He never discussed it again. I saw

him. We were together. He talked to him and that was it. We never

discussed it. I was with Agent Ahlstrom on many occasions, but it

never came up.

Mr. DELAHUNT. In the aftermath of the Wilson homicide, did you

have any conversation with Agent Ahlstrom or did he offer any

opinion?

Mr. BROWN. Yes. We were talking regularly, daily, after things

happened.

Mr. DELAHUNT. What did he say to you? Of course you had a

missing person, until you received the information from an inmate

in Walpole, not from any law enforcement source.

Mr. BROWN. Yes. You know, I want to apologize. After we had

our body and the thing was rolling along, that is when we had our

daily meetings. Well, we would meet three or four times a week in

the meetings and just discuss what was going on. He would assist

me with certain things, up to a point.

Mr. DELAHUNT. Up to a point? Did he give you an opinion as to

the veracity of the Geraway statement regarding the commission of

the murder by Barboza?

Mr. BROWN. OK, before we charged Barboza, are you after? Is

that the time period?

Mr. DELAHUNT. Right.

Mr. BROWN. When things started rolling along, when Mr. Cameron went back to Boston, things started moving, as far as activity

with Agent Ahlstrom. But I never really knew the magnitude until

we had our body. I mean, that’s when things blossomed and all this

information came out.

Mr. DELAHUNT. That is when you came to a certain realization.

Mr. BROWN. Yes, that’s when things started to happen.

Mr. DELAHUNT. But something was really funny here.

Mr. BROWN. Yeah.

Mr. BURTON. The gentleman’s time has expired. Judge Duncan?

Mr. DUNCAN. Thank you very much, Mr. Chairman. Let me

apologize. I had to slip out and participate in a meeting on the subcommittee on which I chair, so I didn’t get to hear a lot of the questions. But I understand I have been told some of the questions that

were asked.

Mr. Miller, let me ask you this: You spent 40 years as a criminal

defense lawyer. I can tell you that from my experience I think

42

that’s about the most difficult kind of law that anybody can practice.

The Barboza case was potentially a death penalty case, as I understand it.

Mr. MILLER. More than potentially. At the outset, as I said before, I had little optimism but things just developed. May I interject, because something was stated, I think Mr. Hyland, the main

prosecutor there, was probably the finest prosecutor that I have

ever known and gone against.

The assistant, Fahey, is not too bad either. So, I just wanted to

clear that up. Go ahead, sir.

Mr. DUNCAN. I can tell you that I have been involved in several,

in fact quite a few death penalty cases. I am just wondering, I am

told by the staff that these two FBI agents, Rico and Condon and

Edward Harrington who was the head of the Organized Crime

Task Force at the time that they all testified for Barboza. Is that

correct?

Mr. MILLER. Well, they were subpoenaed by me, called by me as

witnesses and responded to my questions, yes, sir.

Mr. DUNCAN. Had you ever had a Justice Department attorney

testify for a client facing a murder charge before or an FBI agent?

Mr. MILLER. I am really being serious and thinking about it. I

have had lots and lots of murder cases. I don’t think so, but maybe.

I do not recall, no, sir.

Mr. DUNCAN. I can tell you I handled several murder cases also.

It is very unusual.

Mr. MILLER. Yes.

Mr. DUNCAN. That is an understatement or that is putting it

lightly.

Mr. MILLER. I agree with you.

Mr. DUNCAN. I understand, Mr. Cameron, that you and Mr.

Brown both, separately, went to Massachusetts and met with the

FBI.

Mr. CAMERON. Yes.

Mr. DUNCAN. Would you tell me, before you went there did you

think that you would get help or assistance or at least cooperation

from the FBI and would you tell me what your reactions were, your

feelings were after you had been there, both of you?

Mr. CAMERON. I certainly thought we were going to get help and

more background information, possibly to use it as testimony in our

trial, if we could get it in. We didn’t get any help or much help.

Like I said, we got romanced but not kissed.

Mr. DUNCAN. Mr. Brown.

Mr. BROWN. There was an agent at the New Bedford field office,

I believe it was the New Bedford field office, that assisted us when

we brought Barboza back to California. I didn’t have any real contact with the FBI as far as Boston was concerned, up to that point.

But that agent, and I cannot remember his name, he was more

than cooperative. I mean that man helped us. I mean I can’t say

enough about him positive. But he did assist us in getting Barboza

out of town.

Mr. CAMERON. We did get assistance from a fellow by the name

of Reagan, but I believe he was a State policeman. He was terrific.

43

Mr. DUNCAN. Did you get the impression, though, that the FBI

did not want Barboza to be prosecuted to the fullest extent possible?

Mr. CAMERON. At the initial contact, no, I can’t say that I got

that impression. I got the impression that something was definitely

wrong. You know, it is a little odd to get a letter from a prisoner,

convicted murderer, saying, I want to freely tell you about a conversation another murderer had with him.

So, I thought that was strange and I wondered what he was supposedly going to get out of it. You know, it is a give and take.

Mr. DUNCAN. Let me ask you this, Mr. Brown: I understand that

you had an Agent Ahlstrom of the Santa Rose FBI office who did

tell you at some point that Barboza had killed 26 people. Is that

correct?

Mr. BROWN. Yes, sir. That’s correct.

Mr. DUNCAN. Did that shock you or surprise you at the time?

Mr. BROWN. Well, yeah. I mean it is a shock. He is living there.

In fact at one time I lived about three blocks from where his house

was. His children went to school. I mean he lived a regular life on

appearances. Yes, it was a shock. In fact I would like to say on behalf of Agent Ahlstrom I probably learned more through him about

things than I did from any other source. The day he told me that,

I mean it knocked my socks off.

I thought, ‘‘How come we didn’t know?’’ Then you understand,

well, it is a bigger picture than what we had.

Mr. DUNCAN. My time is up. Let me just ask one last question:

How do you gentlemen feel now knowing that this man who committed 26 murders, I mean it is almost mind boggling, was protected or assisted and a man who was innocent was kept in prison

for 30 years? Does that not shock you? I mean where is the justice?

Mr. BROWN. You know, it is a shocking thing, but I think what

you men are doing here is going to iron things out a little bit. As

far as that man doing prison time, we had no knowledge of that,

but Barboza’s lifestyle and his history of things and moving to our

area, back in the 1970’s it was a podunk place, nice place to live,

nice place to raise your family and they brought him there, which

is probably a good thing for them, but to put him in our environment that we had there, it is an atrocity, with no knowledge of it.

If they would have sat with him and monitored him, maybe this

would not have happened.

Mr. DUNCAN. Mr. Cameron, as a man who spent your life in law

enforcement, how do you feel about what you are hearing here

today and about this whole situation?

Mr. CAMERON. I was privileged to watch Mr. Salvati testify before this is committee. I think that’s a terrible, terrible thing. How

we in law enforcement could let that happen is atrocious.

Mr. BURTON. The gentleman’s time has expired. Mr. Clay.

Mr. CLAY. Mr. Chairman, I prefer to ask unanimous consent to

put an opening statement into the record.

Mr. BURTON. Without objection, it is so ordered.

[The prepared statement of Hon. Wm. Lacy Clay follows:]

44

45

46

Mr. CLAY. Thank you, Mr. Chairman. Mr. Chairman, I just sit

here in utter amazement listening to your testimony. I really want

to hear more. So for that reason I would like to yield the balance

of my time to Mr. Delahunt, if I may. Thank you.

Mr. DELAHUNT. I thank the gentleman for yielding. When we

talk about the sharing of information, if we pause and reflect for

a moment, and I think you responded, Mr. Cameron, that if you

had this information maybe Clay Wilson would have been alive

today. Mr. Brown. Mr. Wilson.

Mr. CAMERON. He might have been, however, I don’t know that

we would have stayed with him 24 hours a day. The sheriff’s office

certainly couldn’t have and our office, the District Attorney’s Investigator staff couldn’t have. However, we could have put two and

two together after Clay Wilson came up missing. Had we known

Mr. Barboza had done these things? Of course we would have put

it together then. I hope we would have.

Mr. DELAHUNT. Well, there’s the possibility of prevention. That’s

the point. You know, again, various States now are, for example,

passing legislation creating a registry of sexual offenders. Would

you concur that it is appropriate when witnesses, particularly those

with history of violent behavior are relocated to localities and

venues where they have the potential to wreck violence within a

community, that it is incumbent upon the Federal Government to

notify local and State authorities?

Mr. CAMERON. Well, I totally recognize there has to be a Witness

Protection Program of some kind. I totally understand it. What I

don’t understand and what I haven’t understood for 30 years is

why in the world wasn’t someone in local law enforcement told that

we have a guy who killed 26 people living amongst our citizens?

Mr. DELAHUNT. That’s exactly my point. I don’t think it is something that has to receive publicity, but clearly at a minimum, local

and State law enforcement, public safety officials have to be notified. Mr. Brown.

Mr. BROWN. I would like to go back to that podunk statement.

I am sorry I said that. I didn’t mean that in a derogatory term. It

was a very nice place to live. But anyway, we had a system set up

within a department as far as kind of a need to know basis. I certainly concur, somebody needs to know when you have a subject

like Mr. Barboza living in your neighborhood.

But it was again on the basis of need to know, certain people.

And if you needed to know it. But he didn’t go around telling everybody about it. But like if the District Attorneys’ office, somebody

should have had knowledge because when things start to occur,

hopefully before you have a homicide, if there’s activity around this

person you may be able to not have a homicide.

Mr. DELAHUNT. The question of information sharing, now I think

it was you, Mr. Cameron, that stated to the committee that when

you requested documents that they were not forth coming. The

phone didn’t ring.

Mr. CAMERON. No, sir. I can truthfully say I never saw——

Mr. DELAHUNT. Let me just pose this to all three of you, including you, Mr. Miller, that have an excellent reputation as a trial

lawyer. Documents can be utilized to impeach the credibility of witVerDate 11-MAY-2000 08:28 Jun 19, 2002 Jkt 000000 PO 00000 Frm 00054 Fmt 6633 Sfmt 6633 C:\DOCS\78662.TXT HGOVREF1 PsN: HGOVREF1
47

nesses. I don’t know if, you know, whether you had any intention

to put Barboza on the stand.

Mr. MILLER. I absolutely did have the intention, which I did.

Mr. DELAHUNT. Well, I can assure you that if you had access to

the documents in the possession of this committee, particularly as

it relates to Salvati and others, you would have had an abundance

of information to impeach the credibility of Mr. Barboza, if you

happened to be the prosecutor in this case.

So, again, the need for the Federal Bureau of Investigation and

the Department of Justice to share this information is important

at many different levels in terms of the ability to proceed and successfully prosecute those that are guilty and at the same time

hopefully to secure the safety of those members of a community

where an individual who is described by the Federal Bureau of Investigation as one of the most dangerous criminals ever. This is

what happens when we don’t provide that information. I see my

time is up. But I look forward to an additional round.

Mr. BURTON. Mrs. Morella.

Mrs. MORELLA. Thank you, Mr. Chairman. Thank you for your

perseverance on this very important issue.

I guess I will start off with Mr. Miller. Mr. Miller, as Barboza’s

attorney, you also went to Massachusetts, correct?

Mr. MILLER. That is correct.

Mrs. MORELLA. You seem to have had a different experience in

Boston than Mr. Cameron. You had lots of contact with the FBI

and they were very friendly, correct?

Mr. MILLER. Correct.

Mrs. MORELLA. They took you out to dinner every night on their

expense account, didn’t they?

Mr. MILLER. I assume every night, yes.

Mrs. MORELLA. You said that Agent Condon took you under his

wing. How did he do that?

Mr. MILLER. Well, I think he was the one I was in contact with

more, more friendly with. He showed me around Boston. I think he

even told me where Walpole was and the best way to get there.

Mrs. MORELLA. He told you all the ‘‘ins’’ and ‘‘outs?’’ Mr. MILLER. I didn’t find that unusual.

Mrs. MORELLA. I wondered, why did agents Condon and Rico say

they were willing to help Barboza on the California murder charge?

Mr. MILLER. Well, again, you weren’t here at the time I expressed how naive I probably was, but they were afraid, in my

mind, that if Mr. Barboza was given the death penalty that he

would recant his testimony and therefore guilty men would be released from incarceration.

So, that was my take. So, they were going to help me ethically,

I thought, in any way they could, not necessarily to prevent him

going to prison, but to prevent his getting the ultimate punishment, which is the death penalty because he would have absolutely

nothing to lose in that situation.

Mrs. MORELLA. I had heard that you had said that agents Rico

and Condon told you that when somebody did them a favor they

would not back down or wouldn’t back off?

Mr. MILLER. Well, if I understand your question that if someone

does a favor for them in relation to having some bad guy convicted,

48

that they would take care of them in the witness program. Is that

what you meant?

Mrs. MORELLA. Kind of.

Mr. MILLER. And further, the better that they treat the ones on

the Witness Protection Program, the more incentive someone would

have to become an informant and then take advantage of the Witness Protection Program. They made that very clear.

Mrs. MORELLA. Mr. Brown, you got word that your two eye- witnesses might be the targets of an assassination attempt, didn’t

you?

Mr. BROWN. Yes ma’am.

Mrs. MORELLA. When you flew to Boston, you sought help from

the FBI so that you could prevent your witnesses from being murdered; is that correct?

Mr. BROWN. No. That happened way after my trips to Boston. It

happened after we had Barboza back in California. We were told

by a man that was in our jail in Sonoma County that people were

being sent from the East Coast to Santa Rosa to shoot our witnesses. Is that what you are after?

Mrs. MORELLA. Yes. Did you seek help from the FBI?

Mr. BROWN. OK. So, normally we would help, you know. So, we

contacted the FBI agent, Ahlstrom. Things were in the mill but

time was going and after several days time is moving and we did

not get any help.

Mrs. MORELLA. So, you got no help, really, which is kind of what

I am getting at.

Mr. BROWN. Yes, that is right.

Mr. BURTON. Would the gentlelady yield?

Mrs. MORELLA. Did this surprise you? Yes, I will certainly yield.

Mr. BURTON. What I would like to know about that is the person

in jail that told you there were going to be hit men out there, assassins to kill two witnesses, was he credible?

Mr. BROWN. It was Geraway who started this whole thing with

his letter to the District Attorney’s Office.

Mr. BURTON. He is the one that said that?

Mr. BROWN. Yes, sir.

Mr. BURTON. And he had heard that from whom? From Barboza?

Mr. BROWN. No. We kept them apart.

Mr. BURTON. Where did he get that information?

Mr. BROWN. You know, I don’t know. I don’t know how it happened. I really don’t. I can’t remember.

Mr. BURTON. But it was Geraway that told you that there was

going to be a hit?

Mr. BROWN. I am 90 percent sure it was Geraway.

Mr. BURTON. I thank the gentlelady.

Mrs. MORELLA. Picking up on that, Barboza’s murder of Wilson

surfaced in a letter sent by William Geraway, a prisoner who said

that Barboza confessed to him in jail back in Massachusetts. After

you received Geraway’s letter, did Agent Ahlstrom start coming

around more and asking questions, sir?

Mr. BROWN. Mr. Cameron, his office, received the letter, and yes,

that’s true. As things started to develop, I saw Agent Ahlstrom regularly.

49

Mrs. MORELLA. Did Agent Ahlstrom seem concerned by

Geraway’s letter?

Mr. BROWN. You know, I imagine he was concerned, you know.

But I don’t mean this in a derogatory way, but the FBI, they get

other information. I mean their information source, which is their

job, and Agent Ahlstrom was gathering. That is how I took it at

the time.

Mrs. MORELLA. So he was concerned about the letter?

Mr. BROWN. Yes.

Mr. BURTON. May I interrupt once more?

Mrs. MORELLA. Yes, Mr. Chairman.

Mr. BURTON. In your testimony at the deposition before this committee, you said that Ahlstrom told you that he was bothered by

the fact that Harrington, Rico and Condon were coming out to help

Barboza.

Mr. BROWN. He said that.

Mr. BURTON. Now, in what context did he say that? I mean, did

he say, ‘‘We have FBI agents and U.S. Attorneys coming out to

support this guy.’’ Why are they doing that? How did he say it?

Mr. BROWN. Agent Ahlstrom was concerned that those individuals would be helping the defense. We were sitting in the office

talking. My opinion of his statement, he is concerned that his agency was going to assist the man we were trying to prosecute. And

that’s how I took it.

Mr. BURTON. Was he vehement or what did he say, ‘‘I am ticked

off about this?’’ Mr. BROWN. He was unhappy.

Mr. BURTON. Stronger language than that?

Mr. BROWN. Well, he wasn’t swearing, but he was unhappy. He

was unhappy.

Mr. BURTON. The gentlelady.

Mrs. MORELLA. Maybe I have time for one more question, Mr.

Chairman. Actually, once Barboza was in custody in California

awaiting trial, did you begin meeting with Agent Ahlstrom regularly to discuss Barboza?

Mr. BROWN. Yes.

Mrs. MORELLA. I wanted to note that the committee staff interviewed Chuck Hiner who was the agent in charge of the—said that

wasn’t normal procedure and it was very unusual.

Mr. BROWN. I agree with that. Agent Ahlstrom felt the same way

and Chuck Hiner was kind of the connection to the East Coast

through Agent Ahlstrom and to myself. That’s how it kind of

worked. When we needed something, I would talk to Doug

Ahlstrom. He would talk to Chuck Hiner. The next day Ahlstrom

would get back to me.

Mrs. MORELLA. My time has expired. Thank you.

Mr. BURTON. I thank the gentlelady.

Mr. MILLER. Mr. Chairman, could we take about a 1-minute

break, a lavatory break?

Mr. BURTON. If I could make one statement, then we will take

the break. OK?

Mr. MILLER. OK.

Mr. BURTON. I want to make sure that this point that was made

by the gentlelady is really emblazoned on people’s minds because

50

here you had the agent in charge of the San Francisco FBI, Mr.

Hiner, saying that it was not normal procedure for the FBI to allow

two FBI agents from the East Coast to come out and testify on behalf of a man who committed 26 murders, and it was very unusual.

So, this had to be something that was cleared at a higher up

level and they couldn’t figure out why it was. Ahlstrom felt the

same way.

We will take about a 5-minute break and then we will be right

back and go to Mr. Tierney.

[Recess.]

Mr. BURTON. The committee will come to order again.

You see, Mr. Miller, we really don’t dislike trial attorneys. We

want to help you guys out. In fact, Mr. Tierney, I think you were

a trial attorney; weren’t you?

Mr. TIERNEY. I was.

Mr. BURTON. So, we have a couple of you here in the room. Mr.

Tierney.

Mr. TIERNEY. Thank you, Mr. Chairman.

Mr. Miller, to your knowledge at that time, were you of the opinion that your client had something on the FBI that he was holding

or harboring some information that would make them more favorably disposed to being kind to him than otherwise might be the

case?

Mr. MILLER. That wasn’t posed in that manner, but Mr. Wilson,

some months ago in our dialog brought that up. I forget what I

said, something innocuous probably, but then thinking about this

over and over, I do recall no specificity, but I do recall, ‘‘They owe

me and they had better.’’ At the time I didn’t give too much

thought about that, but now with the revelations forthcoming, that

was probably what he had in mind, I guess.

Mr. TIERNEY. Your best recollection was that Barboza told you

that ‘‘They owe me, they’d better?’’

Mr. MILLER. Yes. He slammed his hand down and said, ‘‘They

owe me and they better do it.’’

I thought, well, they owe him for his testimony he gave against

Patriarca and——

Mr. BURTON. If the gentleman will yield very briefly—but he did

say ‘‘They’d better.’’

Mr. MILLER. Yes.

Mr. BURTON. So, that was an implied threat. He was speaking

rhetorically, but he was saying——

Mr. MILLER. Well, if you dealt with him the way I did over those

months, I mean he was doing that every minute. This was a joke.

I assume that my investigator, a very young man, would be just

talking about the case and he would reach over, very strong, and

grab him and lift him up in the air, and say, ‘‘Another word out

of you and you are finished.’’

I mean that is the kind of a guy he was. He was banging things

around. Obviously, he didn’t mean that, you know, he was just

playing with this investigator.

Mr. TIERNEY. Whose idea was it to have Mr. Harrington and Mr.

Rico and Mr. Condon testify on behalf of Mr. Barboza?

Mr. MILLER. I am guilty.

51

Mr. TIERNEY. Now, did you just get that on your own or how did

you come to that conclusion? It was probably not something you did

a lot of in the course of your defense work is ask for one of the high

ranking members of the Justice Department to testify on behalf of

a murder client.

Mr. MILLER. Well, as a trial lawyer, you understand, you do everything you possibly can for the benefit of your client. I though it

was beneficial to call the FBI man who had nothing relevant to testify to but just the color of their office. That’s what I wanted and

I think I got.

Mr. TIERNEY. The reason you went to that is that you were

aware from your client that he had a relationship with him?

Mr. MILLER. Of course, I knew he was in the witness program.

Mr. TIERNEY. It wasn’t your client who said to you I’ll talk to

them and they said they will testify or something of that nature?

Mr. MILLER. No.

Mr. TIERNEY. Now, Mr. Cameron, at some point you see in the

exhibits, exhibit 2 in particular, where the prosecutor in the case

sent the letter both to Attorney General Mitchell and to Mr. Hoover of the FBI explaining that this was unusual. He thought it

would be a house divided if the testimony of those three individuals

came in, and then asking if the individual, Mr. Harrington in particular, was going to testify, you would give the courtesy to the

prosecutor of at least first speaking to him.

Do you know whether or not that courtesy was ever extended?

[Exhibit 2 follows:]

52

53

54

Mr. CAMERON. I don’t believe it was. Mr. Harrington, now this

is 30 years ago and as best that I recall, through the Sheriff’s Department, through Tim or the jail staff, our office was informed

that Mr. Harrington was there to see Mr. Barboza before coming

to see us.

I recall a very brief meeting with Ken Hyland, our District Attorney, and myself and Ron Fahey, one of the senior deputies, in our

office with Mr. Harrington. My boss was unhappy, to say the least.

He went to the jail to visit Mr. Barboza prior to coming to see us.

It was very brief.

Mr. TIERNEY. Your meeting with Mr. Harrington?

Mr. CAMERON. Mr. Harrington, yes.

Mr. TIERNEY. Mr. Miller, when you were meeting with Mr. Harrington, Mr. Rico and Mr. Condon prior to their testimony, in preparation for it, was their attitude one of reluctance that they had

been subpoenaed to testify or were they fully cooperative? Were

they eager? How would you categorize it?

Mr. MILLER. Fully cooperative, yes.

Mr. TIERNEY. Did they offer suggestions to you as to what their

testimony might be?

Mr. MILLER. No. I was responsible for that.

Mr. TIERNEY. Now, you agree, don’t you, that nothing they had

to say weighed at all on the issue of mafia or organized crime involvement with Mr. Barboza?

Mr. MILLER. Yes, I think it did. What I was saying is that their

testimony did not relate to any of the evidence in issue at the trial.

Mr. TIERNEY. No connection at all?

Mr. MILLER. None.

Mr. TIERNEY. My time is up. Thank you.

Mr. BURTON. The gentleman from Ohio.

Mr. LATOURETTE. Thank you, Mr. Chairman. I apologize for not

being here a little earlier. We are dealing with an issue of pipeline

safety in another room.

Gentlemen, welcome. Mr. Brown, I would like to ask you first,

while it is our understanding that while Mr. Barboza was in custody, you learned that he was getting visits from a bookie, I think,

by the name of Sharliss. Do you remember that?

Mr. BROWN. Yes.

Mr. LATOURETTE. And when you learned Mr. Sharliss’ background, it is my understanding that you then began taping the visits between the bookmaker and Mr. Barboza. Is that also correct?

Mr. BROWN. Yes, sir.

Mr. LATOURETTE. And as a result of information received from

the tape recordings that you made, it is my understanding that a

homicide in Las Vegas may have been cleared as a result of the information that you developed?

Mr. BROWN. Yes, sir.

Mr. LATOURETTE. Do you recall anything about the specifics of

that murder?

Mr. BROWN. Evidently, somebody was buried by a real estate

sign. I don’t remember the exact location. I remember the real estate sign.

Mr. LATOURETTE. OK. I would assume that during the course of

these meetings between Sharliss and Barboza that from time to

55

time there would be information that would be developed or you

could hear information that you thought might have been of interest to the FBI?

Mr. BROWN. Yes, sir.

Mr. LATOURETTE. And did you do anything relative to cooperating with the FBI?

Mr. BROWN. Yes.

Mr. LATOURETTE. Can you tell us what you did?

Mr. BROWN. I would make cassettes. This was a reel-to-reel, slow

reel. When things were pertinent, I would make a cassette of it and

give it to Agent Ahlstrom.

Mr. LATOURETTE. Let me ask you and Mr. Miller. As I understand it, Mr. Barboza came to California in February 1972. Then

in March 1972 Mr. Harrington, who was the agent in charge of the

Organized Crime Task Force, if I understand his position correctly,

came to visit Mr. Barboza. Do you remember that meeting occurred?

Mr. BROWN. My memory has been refreshed and now I do remember that.

Mr. LATOURETTE. Were you, as Mr. Barboza’s lawyer, asked to

attend that meeting?

Mr. BROWN. No, I don’t believe I was.

Mr. LATOURETTE. Mr. Cameron, are you aware whether or not

the District Attorney or representatives of the District Attorney’s

office was invited to attend that meeting with Mr. Barboza or Mr.

Harrington?

Mr. CAMERON. No, we were not.

Mr. LATOURETTE. Following Mr. Harrington’s visit, however, I do

understand that the prosecuting attorney’s office did request some

information of Mr. Harrington or a meeting with Mr. Harrington

to determine what he was doing. Do you recall that, Mr. Cameron?

Mr. CAMERON. I do.

Mr. LATOURETTE. Was there such a meeting with Mr. Harrington?

Mr. CAMERON. There was a meeting in our office in the District

Attorney’s office. I believe Mr. Hyland, the District Attorney, Ron

Fahey, myself and Mr. Harrington were there. It was a very brief

meeting. The District Attorney wanted to know what he was doing

there, what he could do to help our case, if anything.

Frankly, my boss was upset that a member of the Justice Department was—I won’t use ‘‘interfering,’’ but at least not giving us

information as to why he was there and what he was doing and

could he help us.

Mr. LATOURETTE. Well, I think that leads to not only the Harrington visit, but the fact that these fellows were going to testify

in the upcoming trial. When Mr. Tierney was asking you questions,

Mr. Miller, a little earlier, one of you made the comment that they

didn’t know anything about this homicide, this Clay Wilson homicide. To your knowledge, did they, Mr. Miller? They had no facts

relative to the homicide that you were defending, did they?

Mr. MILLER. Well, I am sure they had the communication from

Mr. Geraway to Mr. Hyland, the District Attorney. You are talking

about prior to the trial?

Mr. LATOURETTE. Right.

56

Mr. MILLER. Yes, I am sure that they had that information and

probably in my discussions we talked about it.

Mr. LATOURETTE. But they didn’t have any relative—I mean they

weren’t eyewitnesses. They hadn’t discovered any. I think you

made the observation that the only purpose that you could see for

their testimony was to show the flag or use the prestige of their

office to show that FBI agents were testifying on behalf of Mr.

Barboza.

Mr. MILLER. That’s correct.

Mr. LATOURETTE. Mr. Tierney mentioned two letters. I would

just like to have those put up on the screens as exhibit 2 and 3

and, Mr. Chairman, ask that they be admitted into the record of

this hearing.

It is my understanding that exhibits 2 and 3 are the letters from

Mr. Hyland that Mr. Tierney was asking about wherein he basically was asking for the courtesy that if Mr. Harrington is going

to testify, would you be kind enough to give us the courtesy of having them come in and chatting with us first. Is that what exhibits

2 and 3 are?

I think, Mr. Cameron, I will ask you that since they appear to

be letters generated from the office of the District Attorney.

[Exhibits 2 and 3 follow:]

57

58

59

60

Mr. CAMERON. I am sorry, sir. I was reading.

Mr. LATOURETTE. Exhibits 2 and 3, I just want for record purposes to make sure that exhibits 2 and 3 are the letters that Mr.

Tierney was discussing that were sent by Mr. Hyland, his District

Attorney, expressing his displeasure to both the Attorney General

and also to Mr. Hoover, I believe, indicating that, one, we are not

really happy about this, and two, if Mr. Harrington is going to testify, could you at least give us common courtesy if you are not

going to give us usual courtesy.

Is that what Exhibits 2 and 3 are?

Mr. CAMERON. Yes.

Mr. LATOURETTE. Mr. Miller, I apologize again for not being here

at the beginning. But did your trial practice back when this trial

was occurring, had you represented murder cases before?

Mr. MILLER. Yes, sir, I have.

Mr. LATOURETTE. Had you ever seen a situation where a Federal

law enforcement agent had ever come in and testified on behalf of

one of your defendants?

Mr. MILLER. No.

Mr. LATOURETTE. From chatting with other members of the defenses bar, was this something that you had ever even heard of in

the course of your practice?

Mr. MILLER. I don’t know if it came up, but I am sure it was

something that they probably never heard of.

Mr. LATOURETTE. And Mr. Cameron, are you aware, based upon

your experience, of a Federal law enforcement agent coming into

court and testifying on behalf of a defendant charged with capital

murder?

Mr. CAMERON. In my experience, no, sir.

Mr. LATOURETTE. Mr. Chairman, I will stop now and wait for the

next round.

Mr. BURTON. The gentleman yields back his time.

Let me just ask one quick question here. Mr. Miller, were you

asked to participate in that meeting with your client and Mr. Harrington when he came to visit him?

Mr. MILLER. Not that I recall, sir.

Mr. BURTON. Were you aware that he was going to meet with

him? I mean you are his defense attorney. And here is a guy who

was a strike force attorney, prosecuting attorney, up in Boston who

came in to see your client who you are defending on a murder

charge. He talked to him and you didn’t even know about it?

Mr. MILLER. I don’t know for sure, but if I had to bet on it, I

don’t think I was aware of it.

Mr. BURTON. I mean you would have wanted to be there,

wouldn’t you? I mean, if somebody of that stature was coming in

to talk to your client?

Mr. MILLER. Yes.

Mr. BURTON. I guess one could draw the conclusion that they

wanted this meeting to be just between the two of them?

Mr. MILLER. Well, that would just be a guess.

Mr. BURTON. Let us put it this way. If there’s a person of that

stature who is involved in prosecution of criminals and he comes

to see a defendant in a murder case, isn’t it a little bit unusual

that he would meet privately with the defendant?

61

Mr. MILLER. I would go out of my mind, except they were so— I thought they were so—— Mr. BURTON. Close?

Mr. MILLER. I thought they were so intent upon his not getting

the death penalty that they wouldn’t do anything to hurt me. Otherwise, I would be afraid that they would turn against me.

Mr. BURTON. But one could draw the conclusion that they wanted their meeting to be between the two of them.

Mr. MILLER. Yes, but again, he may well have asked my permission. It has been over 30 years ago and I just don’t recall.

Mr. BURTON. OK.

Mr. Delahunt.

Mr. DELAHUNT. Thank you, Mr. Chairman. I have a question for

Mr. Cameron, but before I do, well, let me put it in the form of a

question. You made reference to a Massachusetts State Police Officer. Can you repeat his name for the record?

Mr. CAMERON. His name is Reagan.

Mr. DELAHUNT. Could it be John Reagan?

Mr. CAMERON. Reagan, Yes, sir.

Mr. DELAHUNT. At that time he would have been a lieutenant on

the State Police?

Mr. CAMERON. He was a lieutenant in the State Police as I remember.

Mr. DELAHUNT. How would you describe his cooperation with

your efforts?

Mr. CAMERON. I am positive, I got more information from him in

whatever time—I am pretty sure he drove us to Walpole State Prison. Whatever time it takes to go from Boston to Walpole, I remember it is kind of a journey, we got more information on that ride

from him than we did from the FBI.

Mr. DELAHUNT. In full disclosure, Mr. Chairman, I want to make

it a matter of record that Major John Reagan worked with me in

a variety of investigations during my tenure as District Attorney.

He is someone whom I have very fond memories. He was a dear

friend and someone whom I consider the ultimate professional and

whose integrity is beyond any reproach. I just want to make that

a matter of record.

I have never met Mr. Cameron before except for today. I am not

surprised that Major John Reagan of the Massachusetts State Police provided you whatever information he could regarding this particular matter.

Mr. CAMERON. He was a good fellow.

Mr. DELAHUNT. Post the plea, if I could just direct your attention

for a moment to your involvement or the Office of the District Attorney’s involvement or the police involvement. Were you ever notified in terms of transfers in terms of where Mr. Barboza was incarcerated?

Mr. CAMERON. I inquired when he first went in our State system

that I would like to know where he went. I lost him. Subsequently,

I think he was in Montana, in their State system, I believe, but

under Federal control.

Mr. DELAHUNT. So, he was in a State system. You and Mr.

Brown were intimately involved in the investigation of the Wilson

homicide. You requested to be informed, but somehow he got lost.

62

Mr. CAMERON. To me, yes, sir, he was lost.

Mr. DELAHUNT. Are you aware or were you ever invited or are

you aware of anybody in California that received an invitation to

testify at a parole hearing for Mr. Barboza?

Mr. CAMERON. I was not, sir.

Mr. DELAHUNT. You were not invited to testify?

Mr. CAMERON. No, I think I would be one of the last people to

be invited.

Mr. DELAHUNT. They didn’t want you there, is that what you are

saying, Mr. Cameron?

Mr. CAMERON. I would think that I would not be on his list of

witnesses.

Mr. DELAHUNT. Mr. Brown, were you ever invited to testify at a

parole hearing?

Mr. BROWN. No, sir.

Mr. DELAHUNT. In retrospect, I presume that you would have

been in opposition to allowing or in opposition to having Mr.

Barboza paroled back into the community?

Mr. BROWN. Yes, sir.

Mr. DELAHUNT. Do you have any information relative to the parole hearing that must have been held for Mr. Barboza?

Mr. BROWN. No, no, nothing. As Mr. Cameron said, he disappeared in the system.

Mr. DELAHUNT. He disappeared in the system and then he disappeared out to the street.

Mr. BROWN. That’s about right.

Mr. DELAHUNT. Are you, Mr. Brown and Mr. Cameron aware of

the fact that Mr. Salvati sought a parole for some 20 years and was

denied a parole for 20 years?

Mr. CAMERON. I am aware of it now because I watched Mr.

Salvati’s testimony.

Mr. DELAHUNT. Right.

Mr. CAMERON. I just met him this morning and I knew nothing

about his situation at all until last night. Just for the record, Mr.

Salvati sought parole through his attorney, Mr. Garo, I believe

commencing in the late 1970’s. We don’t really understand yet,

given all of the evidence that has been made available to this committee of an exculpatory nature why Mr. Salvati was never paroled, but I would hope, Mr. Chairman, that we would find out the

answers to those particular questions.

Mr. BURTON. You may rest assured, we are going to do our best

to find out.

Mr. DELAHUNT. Thank you, Mr. Chairman.

Mr. Miller, you seem to have continuing contact with Mr.

Barboza post his plea.

Mr. MILLER. Very little. He did appear at the courthouse after

his release. We had a conversation in the judge’s chambers. After

that I recall little or no contact, but my investigator, I think, had

contact with him after his release from prison.

Mr. DELAHUNT. Did you represent him at a parole hearing?

Mr. MILLER. No, sir. I wasn’t even aware of any parole hearing

until—I didn’t even know if there was a parole hearing and are you

sure there was one?

63

Mr. DELAHUNT. So, we don’t even know if there was a parole

hearing.

Mr. MILLER. That’s correct. I am not aware of one.

Mr. DELAHUNT. But the sentence that was imposed, if you can

help us in terms of California law, was 5 to life?

Mr. MILLER. Yes.

Mr. DELAHUNT. And yet he served some 4 years.

Mr. MILLER. I think it was less than that.

Mr. DELAHUNT. Less than 4 years. Mr. Cameron, do you know

how much time Mr. Barboza served?

Mr. CAMERON. No, but I believe it was less than 4 years.

Mr. DELAHUNT. Less than 4 years? We don’t know if there was

a parole hearing. You, as his counsel, were never notified as to

whether there was a parole hearing.

Mr. MILLER. Not that I recall. I was surprised when I found out

he was out of custody.

Mr. CAMERON. I am sure if our office had been notified we would

have opposed it.

Mr. DELAHUNT. You would have opposed it?

Mr. CAMERON. Absolutely.

Mr. BURTON. We will come back to the gentleman in just a few

minutes.

Mr. Miller, you know, I know you are a great defenses attorney

and I know you have great experience, but it surprises me that Mr.

Harrington came out there and you didn’t know about it or didn’t

get a chance to go. You weren’t notified about any potential parole

hearing. You kind of probably found out he was on the street when

he came up to you and started talking to you in the courtroom.

You don’t think any of that seems a little odd? It’s funny, don’t

you think? A little odd, not funny.

Mr. MILLER. Yes. I think he was sent to Deer Park, MT, wasn’t

he, immediately?

Mr. CAMERON. He first went into the State system and I don’t

remember how long he was in the California penal system, but he

went to Montana shortly after he went into the California system.

Mr. MILLER. So, he came out of our system into, I think they call

it Deer Park, and then he was taken back to California. The guard

found marijuana in his shoe and he broke, he said, ‘‘That just is

my luck.’’ He hit a guard one with a left hook and he would break

his jaw.

So, there he was back in isolation at San Quentin. I talked to

him and he was manacled. The next thing I knew——

Mr. BURTON. He was out.

Mr. MILLER. No, he was out in some camp somewhere. He was

making long distance calls to my office.

Mr. BURTON. So, it was not a major security penitentiary?

Mr. MILLER. He went from Deer Park to San Quentin to Folsom.

At Folsom they had him in a cage, almost. Then, the next thing

I know he was up around Sonora at one of those——

Mr. BURTON. Nicer ones, yes.

Mr. LaTourette, I will yield my time to you.

Mr. LATOURETTE. Thank you, Mr. Chairman.

64

Gentlemen, if I could direct your attention back to the exhibit

book for just a second. My task here is to sort of make a record,

so this might be boring, but we will do it as best we can.

Exhibits 4 and 5, if you could take a look at those, Mr. Miller,

they are unsigned, undated letters from the Attorney General of

the United States that set out the conditions under which Mr. Rico

and Mr. Condon may testify on Mr. Barboza’s behalf. If one of you

can just tell me that is what they are, then I can ask you some

questions.

[Exhibits 4 and 5 follow:]

65

66

67

68

69

Mr. MILLER. You said 4 and 5?

Mr. LATOURETTE. Yes, sir.

Mr. MILLER. I thought that the authorization came with a different exhibit. Oh, yes, 5, yes, instructions to Dennis Condon as to

what he could and could not testify to.

Mr. LATOURETTE. Right. And 4, I think is the one to Mr. Rico.

Mr. MILLER. Yes.

Mr. LATOURETTE. OK. Were you satisfied, Mr. Miller, despite the

fact that these restrictions, and they are pretty tight restrictions,

had been placed on Mr. Condon and Mr. Rico, that despite those

restrictions that there testimony would still be valuable to Mr.

Barboza?

Mr. MILLER. Yes.

Mr. LATOURETTE. And can you tell us why?

Mr. MILLER. Again, not necessarily as to the content of their testimony or the relevance of their testimony, but rather, the color of

their office as it would shine upon me and my client.

As we have said, it is very unusual to have any law enforcement

officer testify as a subpoenaed witness for the prosecution, especially, if they are FBI and especially if there are three of them.

Mr. LATOURETTE. The unusual part that occurred a little bit

later that I want to talk to you about, but it is my understanding

that when Mr. Condon, Agent Condon, was on the stand the prosecutor asked him whether or not he was aware that Barboza was

negotiating with the mafia to recant his testimony. Do you remember him asking that question?

Mr. MILLER. Not exactly, but I do recall—is that when he declined to answer?

Mr. LATOURETTE. I think it is. Is that your memory, also?

Mr. MILLER. Yes, something along those lines.

Mr. LATOURETTE. It is my understanding that he cited the instructions he received from the Attorney General and basically indicated he could not answer the question.

Mr. MILLER. That’s correct.

Mr. LATOURETTE. The question I have of you, though, is that despite these instructions that sort of limited the amount of information they gave on direct testimony, are you aware that there was

a fellow by the name of Lawrence Hughes? His name surfaced in

this case, Lawrence Hughes.

Mr. MILLER. Only when my memory was refreshed, yes.

Mr. LATOURETTE. OK. And Lawrence Hughes, if I understand

Mr. Hughes’ involvement, it is that he offered—and Mr. Cameron,

maybe you can help us—he offered to testify against Mr. Barboza

relative to not only some stolen bonds that he had received, but

also the fact that allegedly Mr. Barboza confessed the Wilson murder to him.

Is that your recollection, Mr. Cameron?

Mr. CAMERON. Yes, sir. It was during the trial itself that he

popped up like a mushroom to help our case. I suspected at the

time, I suspect now, that he was sent out by organized crime to

help our case.

Mr. LATOURETTE. And Mr. Miller, does that fit with your refreshed recollection that Mr. Hughes appeared in the middle of the

case and he was going to offer some rather——

70

Mr. MILLER. I have no independent recollection of that at all, sir.

Mr. LATOURETTE. OK. Well, let me then direct you, Mr. Cameron, if I can, to exhibit No. 6. Exhibit No. 6 appears to be a request to the FBI Director to let Condon, despite the restrictions

placed upon his testimony in exhibits 4 and 5, but a request to the

FBI Director to let Mr. Condon come back and impeach the prosecution witness, Hughes.

Am I reading that document correctly?

[Exhibit 6 follows:]

71

72

73

74

75

Mr. CAMERON. I have never seen this before, sir.

Mr. LATOURETTE. OK. Could you just take a minute to study it?

I think it speaks for the fact that we now have the Justice Department and the FBI not only offering up agents to testify in the defense case in chief, but when a troublesome witness like Mr.

Hughes shows up, they now go above and beyond and say that, you

know what, these FBI guys can come back and call Mr. Hughes a

liar, further damaging the prosecution’s case. So, if you could just

take a minute to study that, if any of you have any insight or recollection, either refreshed or otherwise that you can add for the

record, I would appreciate it.

The information specifically that I think that I’m referring to is

at the bottom of page 3 of exhibit 6. Maybe we can go there.

Mr. MILLER. And your question, sir?

Mr. LATOURETTE. My question is, do you recall any of this occurring. That is that at the time I think you said, Mr. Cameron, that

Mr. Hughes popped up like a mushroom to give the prosecution a

hand.

All I am asking is: Is it a fair characterization of exhibit 6, specifically the third page, that a request was being made to Mr. Hoover to let Mr. Condon come back and impeach the prosecution witness, Mr. Hughes. That’s the way, at least, it appears to me.

Mr. CAMERON. That’s the way it appears to me, sir.

Mr. LATOURETTE. Mr. Miller, is that a fair reading by you, also?

Mr. MILLER. Yes, sir.

Mr. LATOURETTE. Mr. Miller, last, also on the same page of exhibit 6 in the second full paragraph, and let me just read that. In

the second full paragraph it says that ‘‘in an interview with

Condon and Rico and Strike Force Attorney Harrington by the Public Defender, he, the Public Defender, requests the results of the

FBI interview in September of Hughes and the identity of the

agent who conducted the interview.’’ That paragraph, to me, makes it sound as if you wanted to see

a copy of the interview of Mr. Hughes by FBI agents. Do you ever

recall making such a request?

Mr. CAMERON. No, but I am sure if I was aware of it, I would

have asked for that, yes, which under California law I would have

been entitled to.

Mr. LATOURETTE. OK. Then, last, at the bottom of the last page

of exhibit 6, which I think is page 4, it says, ‘‘Defense is also calling

John Doyle, the Chief Investigator, Suffolk County District Attorney’s Office, Boston, Massachusetts.’’ Did you ever have any contact with John Doyle and the Suffolk

County District Attorney’s Office?

Mr. MILLER. Not that I am aware, nor am I aware of my investigator being in touch with him, but he might have been.

Mr. LATOURETTE. Since you don’t remember any dealings with

Mr. Doyle, do you know whether the idea to potentially call Mr.

Doyle as a witness to help your case or at least to be identified

came from the FBI or the Justice Department?

Mr. MILLER. I have no idea, sir.

Mr. LATOURETTE. Thank you very much. I yield back.

Mr. BURTON. Boy, I will tell you, you read that exhibit 6, and I

hope everybody in the media gets a chance to read that. It is really

76

something. Those FBI agents were given authority by the Attorney

General to impeach Mr. Hughes’ testimony. I just can’t believe

that.

Mr. Tierney.

Mr. TIERNEY. Mr. Chairman, at this time, all I wanted to do was

to make sure that through unanimous consent that all of the exhibits in the exhibit book be admitted into the record.

Mr. BURTON. Without objection, it is so ordered.

Mr. TIERNEY. The only remaining question that I have was for

Mr. Brown. Was that gun ever found?

Mr. BROWN. Yes.

Mr. TIERNEY. In time for the trial?

Mr. BROWN. Yes.

Mr. TIERNEY. With respect to Agent Ahlstrom, do you know

whether or not he ever registered formally his disappointment over

the Justice Department and FBI’s assistance in his trial?

Mr. MILLER. You know, I don’t know that he did, no.

Mr. TIERNEY. Thank you. I will yield to Mr. Delahunt if he has

any questions.

Mr. DELAHUNT. Yes, if I may, Mr. Chairman, Mr. Miller, did

Barboza ever discuss with you the arrangements that he had made

relative to his cooperation with the Federal Government that led

to his arrival in Santa Rosa, CA?

Mr. MILLER. He liked to brag a lot. He said he was the first witness of this type and he was placed in—where do they keep all the

gold in this country? Fort Knox. That he was held there under the

witness protection and from there I think he was placed somewhere else and eventually to Santa Rosa, CA.

He indicated that he was being rewarded for his testimony

against, I guess it is Raymond Patriarca and he mentioned a few

other names.

Mr. DELAHUNT. Did he tell you the benefits and the reward that

he received for his testimony, albeit his perjured testimony in the

case of Mr. Salvati and others?

Mr. MILLER. Well, he went from Baron to Bentley.

Mr. DELAHUNT. Then he was given training to become a cook?

Mr. MILLER. He was given with the Marine Cooks and Stewards,

a union hall, yes, he was given employment there.

Mr. DELAHUNT. And presumably, he was provided a stipend of

sorts?

Mr. MILLER. Oh, sure.

Mr. DELAHUNT. He was given money, taxpayers’ money.

Mr. MILLER. I’m sure.

Mr. DELAHUNT. And he was relocated, his travel expenses were

paid to start all over again in Santa Rosa, CA?

Mr. MILLER. Correct.

Mr. DELAHUNT. And out in Santa Rosa, he begins a new phase

of his criminal career. Did he ever explain that the benefits that

he was to receive as a result of his negotiations with the Federal

Government were to continue ad infinitum?

Mr. MILLER. Only for his protection, but not for any illegality,

I’m sure. That wasn’t discussed, but that—he had done the Government a tremendous favor, and in response they were going to take

care of him, as long as he behaved himself, the rest of his life.

77

Mr. DELAHUNT. So in behaving yourself, you’re charged with a

first degree capital case, that’s behaving yourself?

Mr. MILLER. Well, no, as it turned out, evidently he did not behave himself in a manner in which they had hoped.

Mr. DELAHUNT. But the benefits continued. Mr. Cameron.

Mr. CAMERON. That was always my question, where does it stop.

Mr. DELAHUNT. Where does it end.

Mr. CAMERON. If a man commits murder, in my book, it should

stop there.

Mr. DELAHUNT. This was after the deal was done, though, Mr.

Cameron, wasn’t it?

Mr. CAMERON. This was after the deal was done. He committed

another murder and the Federal Government was still supporting

him, as best I understand it.

Mr. DELAHUNT. And the benefits just kept accruing?

Mr. CAMERON. As I understand it, sir, yes, sir.

Mr. DELAHUNT. Would you, Mr. Brown, or you, Mr. Cameron, be

disturbed if you discovered that this career criminal of great notoriety was granted parole and early release because of the intervention of the Federal Government? How would you feel about that,

Mr. Brown?

Mr. BROWN. Well, it’s a terrible, terrible system, if that’s how it’s

going to operate.

Mr. DELAHUNT. Mr. Cameron, how would you feel about it?

Mr. CAMERON. It’s a travesty of justice to have that happen, and

to have had that happen.

Mr. DELAHUNT. What do you suspect, Mr. Miller? You’ve been

around a while?

Mr. MILLER. Well, if the allegations by the chairman are true, it’s

saddening and heartbreaking and a travesty.

Mr. DELAHUNT. Well, we do know that he ended up on the street,

didn’t he? That’s one fact we know. We don’t know if there was a

parole hearing, we don’t know how he ended up back in the street.

Mr. Salvati, he couldn’t get paroled, and he was sitting there for

30 some odd years, innocent. And you received no cooperation. Is

that what justice is about in America?

Mr. CAMERON. Not in my book.

Mr. DELAHUNT. Not in mine, either. I yield, Mr. Chairman.

Mr. BURTON. We have a vote on the floor. We’ve got about 11

minutes until the vote closes. So let me just go through a couple

of things here real quickly.

I think this is something that’s very interesting. John Doyle was

the chief investigator for the Suffolk County District Attorney’s office in Boston. He had been in touch with this Hughes, and he was

also going to be there, was asked if he would, he indicated he

would go out there and impeach Hughes as a witness.

Mr. Miller, I don’t know if you were asked this question or not,

I may have missed it. Did the Suffolk County District Attorney’s

office ever talk to you about him coming out and testifying on behalf of——

Mr. MILLER. I have no recollection of that. However, my investigator may have been in touch with him. I have no recollection.

Mr. BURTON. So Harrington from the U.S. Attorney’s Office and

the Suffolk County District Attorneys’ Office both were willing to

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come out and testify on behalf of Mr. Barboza if he had wanted it

to?

Mr. MILLER. I was aware of the FBI, yes. But not aware of any

other person.

Mr. BURTON. Now, Judge Harrington, Rico and Condon all testified on the same day, is that right?

Mr. MILLER. Probably. I’m not sure.

Mr. BURTON. Did Judge Harrington or Rico or Condon have any

knowledge of the murder or the circumstances surrounding the

murder of Clay Wilson, to your knowledge?

Mr. MILLER. Only after it happened. And that was probably from

the communication from Mr. Geraway to Mr. Hyland.

Mr. BURTON. According to the transcript, Judge Harrington and

Rico and Condon were all basically asked the same questions. The

questions concerned Barboza’s cooperation with the Federal Government and the Mafia attempts to kill Barboza. There were no

questions about the murder of Clay Wilson. As Barboza’s attorney,

what was more important to you, what Mr. Harrington and the

agents were saying about Barboza, the fact that a senior Justice

Department official and two FBI agents were there testifying on

his behalf? He just wanted them there because of their credibility

as an agency?

Mr. MILLER. That’s all.

Mr. BURTON. OK. Did you ever wonder why they sent out three

instead of one?

Mr. MILLER. Again, I just thought they were deathly afraid that

he would get the death penalty and that he would recant his testimony and that’s the last thing they wanted.

Mr. BURTON. Did they ever say that to you?

Mr. MILLER. No, that’s just something that I assumed.

Mr. BURTON. That you surmised?

Mr. MILLER. Yes.

Mr. BURTON. OK. Since their testimony had nothing to do with

the murder, you thought that they were just going to be able to influence them by their presence and saying he was cooperating?

Mr. MILLER. That’s correct.

Mr. BURTON. Was there a discussion with the prosector, Mr.

Hyland, about whether to be more aggressive with Mr. Harrington

and the FBI agents, do you know, Mr. Cameron or Mr. Brown?

Was there any discussion saying he should be——

Mr. CAMERON. Was there a discussion in our office?

Mr. BURTON. Yes, regarding cross examination, that they should

be more aggressive, either in cross examination or in asking the

Justice Department not to allow these people to come out.

Mr. CAMERON. We talked about that during the trial, whether or

not to really tear into them. And we all came to the conclusion that

it wasn’t going to do us any good, it was going to hurt us even

more, because they weren’t going to say anything that was going

to help us. By that time, they had taken our first degree murder

case, and I truly believe with our testimony, they had colored it to

the point where we were not going to get a first degree murder.

Mr. BURTON. That’s why the plea bargain took place?

Mr. CAMERON. Yes, sir.

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Mr. BURTON. We have a few more questions we’d like to ask you.

Would you mind waiting until we come back, probably about 15

minutes, then we’ll wind this thing up?

We’ll recess for about 15 minutes for the vote, then we’ll be right

back. Thank you.

[Recess.]

Mr. LATOURETTE [assuming Chair]. If we could ask the witnesses

to come back to the table, we’ll try and conclude things in an expeditious fashion. And we appreciate your indulgence. As you may

know, the House is taking up the rather non-controversial issue of

campaign finance reform today. So we’re called to come back and

forth once in a while.

Mr. Delahunt, for 5 minutes.

Mr. DELAHUNT. Thank you, Mr. Chairman, and I’ll be brief. Let

me just conclude by thanking Mr. Miller and Mr. Cameron and Mr.

Brown. I mean, you have really provided your Nation a service

today, you truly have. I know maybe it doesn’t seem like that, but

it is. It’s been extremely informative.

The chairman, Mr. Burton, announced at the beginning of the

hearing today that there would be in lieu of an appearance by

former Special Agent Condon a deposition to be conducted in Massachusetts, in Boston, presumably. And I have consulted with my

friend, Mr. LaTourette from Ohio. We share a State prosecutorial

experience. I’m pleased to say, and I’m making this a matter of

record so it will box him in, that he and I will also attend and participate with chief counsel, Mr. Wilson, in that particular deposition. And through you, Mr. LaTourette, to Mr. Wilson.

I think it’s very important, particularly given what we heard

today in terms of post-plea, if you will, and what happened in

terms of parole, release back into the community, that in stark contrast to what occurred in the case of Mr. Salvati up in Massachusetts, that this committee attempt to work an agreement with a

number of individuals that may have information regarding the

reason that Mr. Salvati was not granted a parole permit, that we

do make an effort also to depose those individuals that might have

that information.

I think it’s important. I think there’s a theme here that we’re

talking about. And again, the lack of sharing of this information

with State and local officials.

With that, I’ll conclude, Mr. Chairman and reiterate my thanks

to Mr. Miller, Mr. Cameron and Mr. Brown.

Mr. LATOURETTE. I thank you very much, Mr. Delahunt. I look

forward to traveling to Boston with you. I’m thinking seafood and

Patriots memorabilia might make it go down a little bit better.

[Laughter.]

Gentlemen, I know that you’ve been patient all day. I just have

about six or seven more questions, and our counsel, Mr. Wilson,

may have a few questions. Then we’ll be concluded.

I’m always reminded, I’m 47 years old and I can remember when

I was growing up there was a show on television called the FBI,

Efram Zimbalist, Jr. was in it. I think many of us thought that J.

Edgar Hoover and Efram Zimbalist, Jr. were infallible and they

were solving all the world’s problems.

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I know where we left off when the chairman recessed the hearing

to go for the votes. It’s my understanding, Mr. Cameron, that there

may have been a discussion between, in the District Attorney’s office, whether Mr. Hyland, the District Attorney, should be more aggressive or not with the FBI agents who were coming to testify. Do

you recall a discussion of that?

Mr. CAMERON. That was during the trial, yes, sir.

Mr. LATOURETTE. Can you relate for us now, some 30 years later,

what was Mr. Hyland’s concern, what was he thinking and what

he eventually did relative to whether or not to be aggressive with

these FBI guys who were really ruining his case?

Mr. CAMERON. Well, our concern was that, we thought we had

a pretty good capital murder case. And we didn’t have the best witnesses in the world, but we had witnesses, and we had evidence.

And we had testimony from people who, and all of that. And we

got to the end and we’re having FBI agents suddenly appear as almost character witnesses. We had a long talk about what we

should do with them as far as attacking them.

And you have to keep in mind, this is in the early 1970’s. The

FBI, as far as we were concerned, was pretty sacrosanct. And our

feeling was that if they really started getting into it and we knew

what was going to happen, they were going to say, we can’t go into

that because of this, that and the other thing. Plus they had damaged our case to the point we didn’t think the jury was going to

convict on a first degree murder case.

So we thought we’d better take what we got offered.

Mr. LATOURETTE. As I understand it, eventually the decision was

made, because of the esteem that the FBI was held in, to not go

after them, as you might another negative witness to your case. Is

that your recollection?

Mr. CAMERON. I’m sorry sir, I didn’t hear you.

Mr. LATOURETTE. The decision was made by Mr. Hyland, if I understand it right, to not go after them, as it were——

Mr. CAMERON. That’s right.

Mr. LATOURETTE [continuing]. When they were on the stand, because of who they were and who they represented.

Mr. CAMERON. We felt that we were only going to get damaged

more.

Mr. LATOURETTE. Sure. Mr. Miller, do you have an opinion as

to—I know this was resolved by plea, but do you have an opinion

as to whether or not these agents, Mr. Harrington had an impact

on the jury?

Mr. MILLER. No question they had an impact, sir.

Mr. LATOURETTE. And it’s my understanding that 2 days after

they hit the stand is when the State decided to come forward, and

you made the offer of plea, did you not, Mr. Miller?

Mr. MILLER. That’s correct.

Mr. LATOURETTE. And if I understood you earlier, Mr. Cameron,

it was your feeling that the agent’s testimony and Harrington’s testimony had put you in a position where you were now willing to

listen to, or the prosecution was now willing to listen to a plea of

something other than capital murder, is that right?

Mr. CAMERON. Absolutely.

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Mr. LATOURETTE. And is that pretty much how that all happened, after they testified you guys decided, we’d better take this

and get out of Dodge?

Mr. CAMERON. We were willing and eager to go ahead with the

capital case up until that time and then, you’re right, it was time

to get out of Dodge.

Mr. LATOURETTE. Aside from the agent’s testimony, was anything else going wrong with your case? In other words, up until the

fact that they hit the stand and you decided, this is not good for

us, was there anything else negative going on in your case that

caused the district attorney to come off of a capital murder charge?

Mr. CAMERON. We were always concerned when Mr. Miller was

defending a murder. He’s a good attorney and he did a good job in

this case. Did I personally think that we still had a capital case?

Yes, sir. Did our office think that? Yes, sir.

Mr. LATOURETTE. What was it then that caused you to accept his

offer of plea to a lesser charge?

Mr. CAMERON. It wasn’t anything but having the FBI there, and

the color of their authority painting him an honest person and

truthful and what-not.

Mr. LATOURETTE. Mr. Miller, I mentioned earlier a fellow by the

name of Ted Sharliss, I think, who was a bookmaker and gambler,

if I understand it, from back east. Were you aware of him, Mr.

Sharliss, first of all?

Mr. MILLER. Yes, sir. I was aware of him before the trial, and

I was aware of his involvement in the execution of Mr. Barboza

after.

Mr. LATOURETTE. But were you aware back in the early 1970’s

that Mr. Sharliss was an informant for the FBI? Did you know that

at the time?

Mr. MILLER. Yes.

Mr. LATOURETTE. OK. Did you during the contact that you might

have had with him during your representation of Mr. Barboza ever

believe that he was recording conversations that you and he were

having, that is you and Sharliss?

Mr. MILLER. Yes.

Mr. LATOURETTE. Can you describe why it is you felt that?

Mr. MILLER. A friend of mine knew Mr. Sharliss and knew that

he always had a recording apparatus. And I went to a birthday

party, and Mr. Sharliss is where I met him. He told me what great

friends he was with Mr. Barboza. Offered me several hundred dollars just for cigarettes for Mr. Barboza. And I said, why don’t you

just go deliver that yourself. And that conversation was played

back to me by some law enforcement agent.

Mr. LATOURETTE. One of the witnesses to the murder, my understanding, one of the eyewitnesses to the murder of Mr. Clay Wilson

was Wilson’s wife, Dee.

Mr. MILLER. That’s correct.

Mr. LATOURETTE. There may have been some questions asked

earlier of you as to, I think, Mr. Cameron or maybe Mr. Brown, you

became concerned that there were threats made against your eyewitnesses, contracts taken out on them, is that an accurate observation?

Mr. BROWN. Yes, that’s true.

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Mr. LATOURETTE. OK. Were any of you aware that Dee Wilson

was an FBI informant at that time?

Mr. CAMERON. No.

Mr. BROWN. No.

Mr. LATOURETTE. Mr. Miller.

Mr. MILLER. No, I don’t think so, sir. By the way, she was held

in protective custody around the clock by three agents.

Mr. LATOURETTE. In order to, Mr. Wilson has some questions

about Dee Wilson and some of the things that occurred. I want to

yield to him and hopefully we can be about finished.

Mr. DELAHUNT. Mr. Chairman, before the counsel makes an inquiry, if I may.

Mr. LATOURETTE. Certainly.

Mr. DELAHUNT. The line of questioning that I was pursuing relative to the parole of Mr. Barboza, I think that a partial answer

might be a letter that I was just handed by minority counsel. If I

may just have a moment to inquire of Mr. Miller whether he has

any recollection of hearing about or reading this letter.

It would appear that it was dated in July 1975. It purports to

be from Mr. Barboza. It’s signed Joseph Bentley, but I presume

that is his pseudonym. It’s signed off as, always, Joe. It’s addressed

to a Gary Evans. Was he an investigator?

Mr. MILLER. Gregory Evans, yes.

Mr. DELAHUNT. Gregory Evans?

Mr. MILLER. Yes.

Mr. DELAHUNT. He was an investigator that worked for you during the course of this?

Mr. MILLER. That’s correct.

Mr. DELAHUNT. Let me just read some pertinent extracts, and

then I’ll provide you or the clerk will provide you a copy of this letter to see if it refreshes your recollection. I’m just seeing this myself for the first time.

Halfway down the first page, he writes, I’m inserting the parole

board decision in this letter. California is rather slow in reply, so

I guess I’ll be here 2 to 3 months more. Greg, I plan to come to

Santa Rosa for a visit and I’ll make my presence known immediately to the police. Why bring this up? Because I truly, truly feel

no ill.

Mr. MILLER. Feels what, sir?

Mr. DELAHUNT. No ill will. It was my fault and not theirs in regard to the case breaking wide open. So when I go into Santa Rosa,

I don’t want nobody getting paranoid.

Then he proceeds to say, and this is probably the most germane

part of the letter in terms of the issue of early release. The parole

board said that this is the fastest hearing in the history of Montana. You have made parole. I didn’t even say one word except

thank you. And I floated out in a dream that I never thought would

come truthfully. You, Marty and Ted H. made this all come true.

Nobody did I ever owe so much to. Always, Joe.

Mr. MILLER. Ted H?

Mr. DELAHUNT. Ted H presumably would be Ted Harrington.

Does this in any way refresh your recollection?

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Mr. MILLER. I had no contact with him really, as I recall. But

I did give, from my files a number of correspondences. I guess this

was one of the letters I gave to Mr. Wilson.

Mr. DELAHUNT. OK. Mr. Chairman, I would request that this letter be submitted and made part of the record.

Mr. LATOURETTE. Without objection.

[The information referred to follows:]

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Mr. DELAHUNT. Thank you.

Mr. LATOURETTE. Thank you. Mr. Wilson.

Mr. WILSON. Just to followup on that, Mr. Miller did provide this

correspondence, very graciously allowed us to review a number of

letters that Mr. Barboza sent to his investigator, Greg Evans. We

also do have information from the Montana and California authorities, and we’re aware of the various parole proceedings. In fact,

Judge Harrington did in fact testify at one of the parole proceedings on behalf of Mr. Barboza. So that is something that did happen and tomorrow we’ll be able to ask Judge Harrington a question

about that.

Mr. Brown, I just wanted to clarify one thing. There were two

witnesses to the murder of Clay Wilson, Dee Wilson and Paulette

Ramos.

Mr. BROWN. Yes.

Mr. WILSON. Before you talked a little bit about them and security concerns. Could you just walk us through in a narrative fashion what happened with those two witnesses, from your recollection?

Mr. BROWN. OK. The exact date I’m not sure of. It was before

the trial, maybe 3 months before the trial, 4 months before the

trial. But at a point, we were told that three individuals, and they

were named for us, were coming from the East Coast to eliminate

our witnesses.

Mr. WILSON. Before you go to that, at this point, it’s our understanding that Ms. Wilson’s house had been burned down.

Mr. BROWN. Yes.

Mr. WILSON. Had this already taken place?

Mr. BROWN. Yes.

Mr. WILSON. So is it correct to say that Ms. Wilson’s house had

been burned down, and then after the house was burned down, individuals came to you with information?

Mr. BROWN. Yes. The house burned down before we knew we had

a body, before we knew her husband had been killed. We were trying to identify these people that were coming. In the meantime, we

took the two witnesses and put them from house to house. We

moved them around.

Mr. WILSON. So they were in your protective custody?

Mr. BROWN. Yes, sir. We tried, we asked the FBI to help us out.

We wanted them, who are these people, we need a description of

them, etc. Nothing happened. We tried to, all avenues, we sought

out. Anyway, Massachusetts has got this blue book on criminals,

and they were identified in this, we were told if we could just find

out the particulars, they were in this book. And we got no help

from the FBI. Weeks went by.

So we made a phone call to an attorney in Boston. I believe his

number and name were given to us by Geraway, call this guy,

you’ll get it. We did and we got it. We got the information on these

three people.

Mr. WILSON. So to just restate this, you were worried that your

two eyewitnesses would be murdered?

Mr. BROWN. Yes.

Mr. WILSON. And the only person that ended up helping you was

a man who was serving a life sentence himself?

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Mr. BROWN. Yes, he got mail, we went through his mail. How he

got information, I really don’t know how he found out things. He

was locked up, we had him isolated. I don’t remember anybody

coming to visit him. Anyway, so we made this phone call to an attorney in Boston. And it wasn’t too long after that we had this information of who these individuals were. In fact, it was pages, or

copies of pages from this book, blue book.

Mr. WILSON. Just before we resumed this session of the hearing,

you mentioned that you had information at the time that Barboza

may have been involved in other homicides?

Mr. BROWN. Yes.

Mr. WILSON. Could you tell us a little bit about that?

Mr. BROWN. I was looking at exhibit 6 about the bonds, the

DeCarli bonds. There was a young man from Santa Rosa that made

a trip back to New Bedford with Barboza before we knew we had

a homicide. And he was present at a meeting with the individuals

discussed, named here in this book, or in exhibit 6. And what he

told us, what he told me is exactly what you have got in this report.

Barboza moved freely. He moved freely across the country. He

did what he wanted to do. But the bonds had a large bearing on

things as far as Barboza was concerned. Because these bonds started turning up across the country in other lands, in back rooms of

stock companies. And they were the DeCarli bonds who our witness

said he was with Barboza when he met with Bailey and all this

happened.

Sure enough, it was after Barboza’s trial that things started coming to light, these bonds started appearing in these back rooms of

stock companies.

Mr. WILSON. What about, there were a couple of homicides?

Mr. BROWN. Yes. That same man, and I can’t remember his

name, the same man told us, myself and another investigator, that

he thought Barboza had shot another man, and he was buried on

a hill across the street from his house, which was up, I think it was

on Saint Elena Road outside of Santa Rosa. We spent a lot of time

up there, we took infrared pictures, we couldn’t find anything. We

couldn’t find a body.

However, on a Halloween before Barboza was arrested in Massachusetts, we were told by two individuals, Geraway was one of

them, that Barboza shot a man riding a bicycle on Halloween

night, a black man. Drove by and shot him with a 45 automatic.

You know, that information was passed on the New Bedford police

and I don’t know whatever became of that.

Mr. WILSON. Are you aware of any Federal efforts to try and

solve these crimes?

Mr. BROWN. No. This information was passed on, though. Agent

Ahlstrom was advised of this.

Mr. WILSON. I ask that because we received all of the records

that appear to be relevant to this from the FBI and we’ve not seen

any of the information that you apparently passed on to them.

Mr. BROWN. Agent Ahlstrom was informed. He was told, an ongoing deal.

Mr. WILSON. Thank you very much.

Mr. LATOURETTE. Thank you, Mr. Wilson.

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Just to sum up the point, Dee Wilson was in your custody, and

she was, somebody in the FBI’s protective custody was trying to

kill people in your custody, is that what we had going on pretty

much, Mr. Brown?

Mr. BROWN. No, sir. At the time we had those two witnesses

under protection, it was individuals who were, I don’t think they

were in the Witness Protection Program.

Mr. LATOURETTE. No, but Mr. Barboza was in the Witness Protection Program?

Mr. BROWN. Yes, sir.

Mr. LATOURETTE. And he was the one on trial, so the person that

would benefit from Dee Wilson’s destruction would have been Mr.

Barboza, who was in the Federal Witness Protection Program?

Mr. BROWN. You’re correct.

Mr. LATOURETTE. OK. Mr. Chairman, is there anything you’d

like to ask?

Mr. BURTON. No, I just wanted to conclude by saying pretty

much the same thing as Mr. Delahunt, and that is, we appreciate

very much all three of you coming out here from the West Coast,

Nevada and California and testifying. Hopefully your testimony

and answering of questions will be very helpful in getting us to the

answers we want and getting the information we want from the

Justice Department. You helped us make our case and we appreciate it very, very much.

With that, Mr. Chairman, thank you.

Mr. LATOURETTE. Thank you, Mr. Chairman.

Mr. Delahunt, any closing words?

Mr. DELAHUNT. I would make a note that tomorrow we will be

continuing this inquiry.

Mr. MILLER. Thank you.

Mr. BURTON. Let me just ask, if the Chair would yield, do you

plan to leave tomorrow, or when are you planning to go back out

west? Would it be possible for you to stay tomorrow?

Mr. BROWN. Yes, sir. We’re going home Friday.

Mr. BURTON. Just in case, it might jog your memory and there

may be some additional information you could give to us. If you do,

I hope you’ll contact Mr. Wilson or myself and let us know.

Mr. CAMERON. Do we get that fabled lobster, sir? [Laughter.]

Mr. LATOURETTE. I think you have to go to Boston to get the lobster.

Mr. BURTON. I don’t know if I can get you lobster, but we’ll certainly take care of your expenses until you leave.

With that, thank you, Mr. Chairman.

Mr. LATOURETTE. Thank you, Mr. Chairman.

And gentlemen, you go with the committee’s thanks. By the

power invested in me by Chairman Burton, this hearing is adjourned.

[Whereupon, at 2:06 p.m., the committee was recessed, to reconvene on Thursday, February 14, 2002.]

(93)

THE CALIFORNIA MURDER TRIAL OF JOE

‘‘THE ANIMAL’’ BARBOZA: DID THE FEDERAL GOVERNMENT SUPPORT THE RELEASE OF A DANGEROUS MAFIA ASSASSIN?

THURSDAY, FEBRUARY 14, 2002

HOUSE OF REPRESENTATIVES,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

The committee met, pursuant to recess, at 10 a.m., in room 2154,

Rayburn House Office Building, Hon. Dan Burton (chairman of the

committee) presiding.

Present: Representatives Burton, Barr, Morella, Horn,

LaTourette, Cummings, Kucinich, Tierney, and Lynch.

Also present: Mr. Delahunt.

Staff present: Kevin Binger, staff director; James C. Wilson, chief

counsel; David A. Kass, deputy chief counsel; Mark Corallo, director of communications; Thomas Bowman, senior counsel; Chad

Bungard and James J. Schumann, counsels; Elizabeth Clay, professional staff member; Robert A. Briggs, chief clerk; Robin Butler, office manager; Elizabeth Crane, legislative assistant; Elizabeth

Frigola, deputy communications director; Joshua E. Gillespie, deputy chief clerk; Nicholis Mutton, assistant to chief counsel; Leneal

Scott, computer systems manager; Corinne Zaccagnini, systems administrator; Michael Yeager, minority deputy chief counsel; Ellen

Rayner, minority chief clerk; and Jean Gosa and Earley Green, minority assistant clerks.

Mr. BURTON. The Committee on Government Reform will come

to order.

I ask unanimous consent that a statement by John Cavicchi, attorney for Peter Limone—is that how you pronounce his name,

Limone—be included in the record. Without objection, so ordered.

[The information referred to follows:]

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Mr. BURTON. We are resuming the hearing which we began yesterday morning. I will make a brief opening statement.

As everyone knows, we have been reviewing the way the Justice

Department and the FBI have been investigating organized crime

over the last three or four decades. We have been looking very hard

at the way the FBI handled their confidential informants in Boston—which has been a disaster.

We have held 2 days of hearings. We focused on two different

trials—Joe Salvati’s trial and Joe ‘‘the Animal’’ Barboza’s trial. The

way the FBI and the Justice Department behaved during those two

trials was as different as night and day.

What happened says a lot about why we are conducting this investigation.

Joe Salvati was on trial for the murder of Teddy Deegan in 1967.

He had no history of involvement in organized crime. The FBI had

all kinds of evidence that other people committed the murder. But

the FBI allowed their star informant, Joe ‘‘the Animal’’ Barboza, to

testify against Salvati. He lied. He committed perjury and convicted four men who did not commit the crime. The FBI knew

Barboza was lying and they did not lift a finger to stop him. They

let Joe Salvati go to prison for 30 years. And as I understand it,

they initially asked for the death penalty but they gave him life imprisonment and he spent 30 years there.

Joe Barboza went on trial for murder in 1971. Here you had a

known mob hit man. The FBI believed that he had already committed 26 murders. The evidence against Barboza in the 1971 trial

was overwhelming. The detectives and even Joe Barboza’s lawyer

testified yesterday that it appeared to be slam-dunk capital murder

case. And then the FBI pulled out all the stops to try to help Joe

Barboza get off.

They flew out to California. They worked with the defense team.

They testified on Barboza’s behalf. According to our witnesses to

date, 2 days after FBI agents Paul Rico and Dennis Condon testified, along with Justice Department lawyer Edward Harrington,

the prosecutors agreed to a lenient plea bargain.

Mr. Cameron said it all yesterday: ‘‘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.’’ Mr. Cameron said that what was really damaging was,

‘‘having the FBI there and the color of their authority painting him

[Barboza] as honest and truthful.’’

So in 1967, they had an innocent man on trial—Joe Salvati. The

FBI had all the evidence showing that he was innocent. And they

let their star witness commit perjury and put Mr. Salvati away for

30 years. Four children and a wife, and they missed him for 30

years.

In 1971, they had a known Mafia hit man on trial. The evidence

against him was overwhelming. And the Justice Department and

the FBI flew all the way across the country, testified on his behalf,

and helped him get a soft sentence. I think it was 5 years to life,

and he was out in about 3 years or something like that.

But it does not stop there.

Joe Salvati spent 30 years in prison. His lawyer, Victor Garo,

spent decades trying to get his sentence commuted. When Mr. Garo

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submitted petitions to the Massachusetts pardon commission, it appears that the FBI helped stop Mr. Salvati from getting a pardon.

Joe Barboza spent less than 5 years in prison. At his first opportunity for parole, Mr. Harrington, from the Justice Department,

flew out to Montana to testify on his behalf. In a 1973 letter, Joe

Barboza wrote, ‘‘the parole board said this is the fastest hearing in

the history of Montana, how you made parole, I didn’t even say one

word!’’ In the same letter, he thanked Mr. Harrington profusely: ‘‘How

can I ever thank you and Marty for what you two and Ted H. did

for me today. Words can never even begin to express what I feel.’’ This is a man that killed 26 people at least, murdered 1 while he

was in the Witness Protection Program. The FBI and the Justice

Department helped him get a light sentence instead of first degree

murder which was a death penalty in those days, and then they

helped him get parole. While Mr. Salvati rotted in prison for 30

years. That was in 1973. Joe Barboza, who murdered a bunch of

people and lied on the witness stand, was about to be a free man.

Joe Salvati, who never killed anyone, had another 20 years to

spend in prison.

I do not know about anyone else, but it seems to me like Justice

was stood on its head.

That is why we are conducting this investigation. We had a Justice Department that was determined to break the back of the mob,

and that is good. But in Boston, we had a group of FBI agents who

decided to throw the rules out the window. They let a lying witness

send innocent men to death row and life in prison. They had a

group of mob informants committing murders with impunity. They

tipped off killers so they could flee before being arrested. They

interfered with local investigations of drug dealing and arms smuggling. And when people went to the Justice Department with evidence about murders, some of them wound up dead.

We cannot allow this type of conduct. We need to know how extensive it was. We need to know how far up the food chain this

went. How many people at the Justice Department and the FBI

knew what was going on? J. Edgar Hoover received two memos

every week about the illegal wiretaps in New England. We have

dozens of other memos written to him about the Deegan murder

and other topics.

We cannot have the FBI or the Justice Department being

complicitous in giving innocent men life sentences or possibly the

death penalty. We cannot have the FBI winking and looking the

other way when their informants go on a crime spree.

I cannot understand why Mr. Rico and Mr. Condon and Mr. Harrington did what they did in the Clay Wilson murder trial.

Joe Barboza was a cold-blooded killer. They gave him a new

identity. They put him in the middle of an unsuspecting community. They put him on the payroll. And he killed again. At that

point, they should have locked him up and thrown away the key.

But they did just the opposite. They did everything they could to

get him back out on the street. Joe Barboza was murdered himself

in 1976. I just have to wonder, if he had not been killed, how many

more murders would they have let him commit before the Justice

Department decided to rein him in?

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On our first panel, we have two of the three men who participated in that trial in California. Paul Rico, who was an FBI agent,

is here. Edward Harrington, who was the chief of the Justice Department’s Strike Force Against Organized Crime in New England,

is here. Mr. Rico is now retired. Mr. Harrington is now a Federal

judge.

We appreciate both of you being here today. We have lots of

questions about the things that you did and the reasons that you

did them. And we are looking forward to hearing what you have

to say.

We were also going to have Dennis Condon, the other FBI agent,

testify today. But because of his health problems, we have excused

him for today. However, he will be interviewed under oath by the

committee members and staff next week. We are going to send I

think two or three committee members. I think you are going to be

going up there next week along with the gentleman from Ohio.

On our second panel, we have Jay Bybee, the head of the Justice

Department’s Office of Legal Counsel. We asked Mr. Bybee to be

here because of the ongoing dispute that we have over this committee getting access to documents that we need.

I think everyone knows that last fall we subpoenaed a set of Justice Department memos that deal directly with the issues we are

looking at. The Justice Department found 10 memos that comply

with the subpoena, but they refuse even to let us see them. Now

we did see one yesterday, they finally acquiesced on that one. After

all of the terrible things that happened up in Boston—perjury,

murders, obstruction of justice, an innocent man spending 30 years

in prison—they refuse to let us see those documents, with the exception of one.

Let me be clear. This is the People’s House. We are the elected

Representatives of the people. Our constituents send us here to

oversee the Government and to protect their rights. And that is the

system of checks and balances.

I want to say also that we asked for documents pertaining to this

case in addition to the ones we subpoenaed 6 months ago, I think

it was over 6 months ago, in June of last year. And yesterday, the

Justice Department dumped thousands of pages of documents on

my chief counsel’s desk, knowing full well that we could not go

through them before today’s hearing. Now he did review some of

those last night and some of those documents are very, very important to this investigation.

So I just want to say to the Justice Department, if you think because you dropped those on our desk last night and knowing that

we would not have a chance to review them before the hearing

today, you made a mistake. Because we will review those documents and if we have to we will haul everybody back in here, including the Justice Department, to go over those documents. So

this kind of nonsense has to stop. If we ask for documents and you

are going to give them to us, do not give them to us at the last

minute so we cannot look at them. We are not going to let that

stand.

This is not going to end until we get the documents we want and

find out what happened and bring this case to a close. We had a

bunch of criminals running around killing people under virtual FBI

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protection. The FBI let innocent men die in prison. And we have

an obligation, as I said, to get to the bottom of it.

Yesterday, we had a little crack in the dike. The Justice Department let us read one of the memos. They did not let us keep it,

but they let us read it. It was written by Judge Harrington over

30 years ago. It goes right to the heart of what we are investigating. It would have been helpful if we had read this weeks ago before we interviewed Judge Harrington up in Boston. But we have

read it now and that is a step in the right direction.

I have told the Justice Department, I will tell everyone here

today, as I said a moment ago, with probably more passion than

is in this document, we are not going to let this stand. We are

going to get to the bottom of it.

We had one other little surprise yesterday, and I alluded to that

as well.

I want to ask my friends from the Justice Department, how are

we supposed to conduct an investigation when we have these kinds

of problems? We have a Federal judge testifying. We have a former

FBI agent appearing under subpoena. And we get thousands of

new documents in at the last minute. It is not fair to those who

are staying here till 3 a.m. and then finding out about this the next

day. My staff has been working till 2 and 3 a.m. the last 2 or 3

weeks to prepare for these hearings. I appreciate what they do and

I am very sorry that after all that work we get all this thrown at

us at the last minute. But we will get to the bottom of it.

[The prepared statement of Hon. Dan Burton follows:]

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Mr. BURTON. Do you have an opening statement that you would

like to make?

Mr. DELAHUNT. I do not have an opening statement, Mr. Chairman. Again, thank you for extending the invitation to myself and

my colleagues from Massachusetts, Mr. Frank and Mr. Meehan, to

serve on the committee. Obviously, we have a parochial interest as

well as an interest in discovering the truth.

But let me take this opportunity while I am here to welcome as

a witness Judge Harrington. Judge Harrington and I have interfaced and intersected on many occasions; when I was a District Attorney in the greater Boston area, and when he was the U.S. Attorney. I just read through his statement and this is at the conclusion,

but I think it is important that I read it. ‘‘Today, many believe that

Joseph Salvati was falsely implicated by Baron.’’ I happen to feel

confident about that conclusion, Mr. Harrington. ‘‘I do not know

whether this allegation is true or not, but I wish to make clear that

the government’s campaign against organized crime could never

justify the false conviction of any man and that I would never

knowingly participate in any scheme to elicit false testimony or to

cover up a false conviction.’’ I want you, Mr. Chairman, to know and I want to say it publicly

that I am absolutely convinced of the veracity of that statement.

I’ve known Mr. Harrington for 30 years. We have had some disagreements along the way. But I know him to be a man of integrity, and I believe Ted Harrington. I yield back.

Mr. BURTON. Mr. Barr. Mr. Horn.

Mr. HORN. Thank you, Mr. Chairman. I praise you for the tenacity and the focus you have on this situation. And I would hope that

the Attorney General of the United States will wake up and say

let’s clean house. The new Director of the FBI seems to be a very

fine person and he ought to look at C–SPAN and walk out of his

luxurious office there and say the FBI is not going to be corrupt

and we are going to get to the bottom of it.

And the business of dumping box after box of memoranda at the

last minute reminds me of most of what we have listened to from

the Clinton administration. I would hope that this Bush administration will not be sort of having a problem of not doing anything

because the President is invoking executive privilege. I think that

is just wrong. And it will be a sad story if that happens. Thank

you, Mr. Chairman.

Mr. BURTON. Thank you, Mr. Horn. Mr. Tierney, I believe you

said you wanted to pass on an opening statement.

Mr. TIERNEY. That is correct.

Mr. BURTON. OK. We will get right to it. We will start with you,

Mr. Rico. Let me swear you in first. Would both of you please

stand.

[Witnesses sworn.]

Mr. BURTON. Mr. Rico, do you have an opening statement?

Mr. RICO. I am accompanied by counsel today. On advice of counsel, it is my intention to invoke my fifth amendment rights to remain silent in response to every question asked by the committee

today.

Mr. BURTON. We certainly understand you exercising your fifth

amendment rights. However, when you were here the last time we

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asked you, I think I had my counsel come out and talk to you directly, and I asked you if you wanted to have legal counsel advise

you. I think you were very graphic, I will not comment on exactly

what you said, but you said something about your age and you did

not have anything, that you were not concerned about testifying,

and you testified. And I am just curious about why there is a different attitude today than there was the last time you appeared before the committee.

Mr. RICO. I have my counsel here today and he advised me, and

I am taking his advice and am invoking my fifth amendment right

to remain silent in response to every question asked by the committee today.

Mr. BURTON. Very well. Could you at least identify your counsel,

please.

Mr. RICO. Yes. Peter Parker.

Mr. BURTON. OK. And he is your local counsel from up in Massachusetts?

Mr. RICO. Yes.

Mr. BURTON. OK. Thank you. Judge Harrington, do you have an

opening statement you would like to make?

STATEMENT OF EDWARD F. HARRINGTON, SENIOR JUDGE,

FEDERAL DISTRICT COURT, FORMER ASSISTANT U.S. ATTORNEY

Judge HARRINGTON. First of all, I want to thank the chairman

and the committee for the opportunity to answer your questions. I

would ask that my full statement be made part of the record of

these proceedings as well as the one attachment which is a memorandum that I prepared on August 28, 1970. With the permission

of the chairman, I would like to just read approximately 10 paragraphs from that statement.

Mr. BURTON. That is fine. And the rest of your statement will appear in the record and we will take a look at it.

Judge HARRINGTON. From 1961 to 1966, over 60 gangland figures

were murdered in the Boston Gang Wars. Prior to 1968, none of

these murders was prosecuted. Law enforcement was unable to

prosecute organized crime because of the essential characteristics

of organized crime, namely, the insulation of the ‘‘boss’’ from the

overt criminal act, the underworld’s code of silence, and the threat

of reprisal should anyone testify against its members. Because of

these realities, in order to prosecute a major racketeer, accomplice

witness testimony was a necessity. This was especially so before

the legalization of court authorized electronic surveillance in 1970.

In 1967 Joseph Baron was the first of the organized crime accomplice witnesses to be developed in New England and one of the first

such witnesses in the entire Nation. Baron was the original witness

in the Witness Protection Program and the Government’s experience gained in protecting him provided the basis for the congressional establishment of the formal Witness Protection Program in

October 1970.

In the spring of 1967, Baron expressed to the FBI a willingness

to testify in three prosecutions, namely, the Patriarca case involving the charge of conspiracy to travel interstate to murder Willie

Marfeo, which was tried in the Federal court in March 1968; and

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the DeSeglio and Deegan murder cases which were both tried in

State court, by District Attorney Garrett Byrne’s office.

I was an assistant U.S. attorney assigned to the Federal

Patriarca case and was not involved in the prosecution of the two

State murder cases. I never knew the details of Baron’s testimony

concerning the conspiracy to murder Deegan. I never discussed the

case with him. According to the Massachusetts Supreme Judicial

Court, Baron’s testimony in the Deegan case was developed by the

District Attorney’s office ‘‘in pieces’’ from July through October

1967.

I was not cognizant of any information provided by confidential

informants concerning the Deegan murder. I never had any knowledge of the confidential informant reports that have recently come

to light.

Walter T. Barnes and I interviewed Baron at Walpole Prison on

August 28, 1970, after he had been arrested on a gun carrying

charge in the Commonwealth of Massachusetts. Baron requested to

see Barnes and me. The information contained in our memorandum to James Featherstone of that same date fully sets forth what

Baron told us during that interview. Baron told us that his recantation was false, that it was induced by the payment of money

funded by the organization, and that his trial testimony in the

Deegan murder case was truthful. I have asked that a copy of that

memorandum be made a part of the record in these proceedings.

At the time of this interview, Barnes and I were unaware of Baron’s alleged involvement in the killing of Clay Wilson in California.

I was authorized by the Attorney General of the United States,

after being subpoenaed by defense counsel, to testify on Baron’s behalf in the Wilson murder case in California in 1971, to bring to

the attention of the court the extent of Baron’s cooperation with

prosecuting authorities in their fight against organized crime. The

reason for this testimony was threefold: The Government had

promised to bring the extent of his cooperation to sentencing authorities at the time he was developed as an accomplice witness;

in that Baron was the original witness for the Witness Protection

Program and as the Government’s experience gained in protecting

him served as the basis for the congressional establishment of that

program in 1970, the Government supported Baron to provide

needed support to the fledgling Witness Protection Program; and

three, it provided the Government an opportunity to send a signal

to potential informants and accomplice witnesses that the Government would honor its commitments in their cooperation with the

Government in its fight against organized crime.

The Justice Department’s strategy was very successful. In the

next several years the Government was able to develop many significant accomplice witnesses.

In summary, I did not try the Deegan murder case and was not

cognizant of the details of its evidence. I did not believe that any

information of which I was aware was exculpatory. I believed that

any recantation by Baron would have been perjurious. And I testified at the Wilson murder trial under the explicit instructions

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of the Attorney General of the United States, after having been

subpoenaed by Baron’s defense counsel.

Thank you, Mr. Chairman, for the opportunity to make an opening statement.

[The prepared statement of Judge Harrington follows:]

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Mr. BURTON. Just 1 second.

Mr. BARR. Mr. Chairman, the witness kept referring to the name ‘‘Baron.’’ For clarification, that is Joseph ‘‘the Animal’’ Barboza, is

that correct?

Mr. BURTON. Yes. Mr. Barboza, when he went into the Witness

Protection Program, that was one of the pseudonyms that he used,

an alias.

Mr. BARR. OK.

Mr. LATOURETTE. Mr. Chairman, could I make an inquiry of the

staff. Judge Harrington, when he made his opening remarks, referred to a memo I think that was prepared following a visit to

Walpole Prison. Is that in our exhibit book?

Mr. BURTON. I do not think—did we have that exhibit?

Mr. WILSON. Mr. LaTourette, that is not in the exhibit book.

There was a prosecution memo prepared in 1967 that we were allowed to review yesterday that the Justice Department has not provided to us. Now there was another memorandum that was referred to that is attached to Judge Harrington’s statement.

Mr. BURTON. He wanted to make it part of the record.

Mr. WILSON. And we have that.

Mr. BURTON. Do members of the committee have that?

Mr. WILSON. Yes.

Mr. BURTON. They do have that. OK.

All right, we will proceed. Before we get to questioning, I have

a couple pages of background information we want to read into the

record and then we will get started with the questioning.

Teddy Deegan was murdered in 1965. The FBI had considerable

information about the Deegan murder in 1965. It knew from informants and microphone surveillance, wiretaps, and surveillance

that Joe ‘‘the Animal’’ Barboza and Jimmy ‘‘the Bear’’ Flemmi were

involved in the murder. But before this information was developed,

both Special Agents Rico and Condon knew that Flemmi wanted to

become a professional assassin.

On May 25, 1964, Dennis Condon wrote a memo that talks about

Jimmy ‘‘the Bear’’ Flemmi. Mr. Condon said that ‘‘all he wants to

do now is kill people’’ and that ‘‘it is better than hitting banks.’’ Mr.

Condon then indicated that the informant told him that Jimmy

Flemmi feels he can be the top hit man in the area, and he intends

to be. That is in exhibit 8 of our documents that we have.

[Exhibit 8 follows:]

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Mr. BURTON. Five months later, Mr. Rico, you wrote a memo that

says, an informant told you that Jimmy Flemmi wants to be considered the best hit man in the area. That is exhibit No. 9. A few

days later, Mr. Rico, you wrote a memo that says an informant told

you that ‘‘Jimmy Flemmi wants to kill Teddy Deegan.’’ That is exhibit No. 10.

[Exhibits 9 and 10 follow:]

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Mr. BURTON. In late December 1964 Director Hoover was informed that Jimmy Flemmi stabbed FBI informant George Ash 50

times and then shot him. Yet in early 1965, even though it knew

that Flemmi’s professional goal in life was to be an assassin, the

FBI targeted Jimmy Flemmi to be an informant. That is exhibit

No. 11.

[Exhibit 11 follows:]

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Mr. BURTON. The day after the FBI indicated that it wanted

Flemmi as an informant, Mr. Rico wrote a memo that came from

information that was obtained through microphone surveillance of

Raymond Patriarca. The memo said that Patriarca gave permission

for Jimmy Flemmi to kill Edward Teddy Deegan. In fact, the memo

even says that a dry run had already been made and that Deegan

would be set up by a close associate. This information was important enough that it was sent to FBI Director J. Edgar Hoover in

Washington. Two days later, Director Hoover and three office supervisors in Albany, Buffalo, and Miami were sent the following information by AirTel: ‘‘James Flemmi and Joseph Barboza contacted

Raymond Patriarca and they explained that they are having a

problem with Teddy Deegan and desired to get the OK to kill him.

Flemmi stated that Deegan is an arrogant, nasty sneak and should

be killed.’’ Mr. Rico, I will skip the questions for you right now. And I think

I will yield time starting off to—well, we will skip the questions for

right now.

Later the same day that the FBI Director got the information

about the plan to kill Deegan, Deegan was murdered in an alley

in Chelsea, MA. The day after the Deegan murder, Agent Rico

wrote a memo describing in detail who killed Deegan and how the

murder was carried out. This memo says that ‘‘Informant advised

Vincent Jimmy Flemmi contacted him and told him that the previous evening Deegan was lured to a finance company in Chelsea

and that the door to the finance company had been left open by an

employee of the company, and when they got to the door Roy

French, who was setting Deegan up, shot Deegan and Joseph

Romeo Martin and Ronnie Cassesso came out the door and one of

them fired into Deegan’s body. While Deegan was approaching the

doorway, he [Flemmi] and Joe Barboza walked over toward the car

driven by Tony Stats and they were going to kill Stats but Stats

saw them coming and drove away before any shots were fired.

Flemmi told informant that Ronnie Cassesso and Romeo Martin

wanted to prove to Raymond Patriarca that they were capable individuals and that is why they wanted to hit Deegan. Flemmi indicated they did an awful sloppy job.’’

A few days later, on March 19, 1965, the head of the FBI office

in Boston sent an AirTel to FBI Director Hoover. It states: ‘‘Informants report that Cassesso, Martin, Vincent James Flemmi, and Joseph Barboza were responsible for the Deegan killing.’’

On June 4, 1965, the head of the Boston office sent another

memo to Director Hoover. It is about Jimmy Flemmi. It states: ‘‘It

is known through other informants and sources that this individual

[Jimmy Flemmi] has been in contact with Raymond Patriarca and

other members of La Cosa Nostra in this area and potentially could

be an excellent informant. Concerning the informant’s emotional

stability, the agent handling the informant believes from information obtained from other informants and sources that [the FBI code

number for Vincent Jimmy Flemmi] murdered,’’—and then we have

some redacted information that we do not have—‘‘Edward Teddy

Deegan and [blank] as well as a fellow inmate at the Massachusetts Correctional Institution at Walpole, Massachusetts, and from

all indications he is going to continue to commit murder. Although

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the informant will be difficult to contact once he is released from

the hospital because he feels that [blank] will try to kill him, the

informant’s potential outweighs the risk involved.’’ The FBI Director was told, Mr. Hoover was told that Flemmi had

previously murdered seven people, including Teddy Deegan. There

are dozens of additional details that are important, but that provides a summary of what was known by the FBI in 1965.

Joe Barboza and Jimmy Flemmi killed people for money and

they killed people for pleasure. The FBI wanted Jimmy Flemmi

and his brother Stevie ‘‘the Rifleman’’ Flemmi to be informants.

The FBI had microphone surveillance information that Flemmi and

Barboza were going to kill Deegan, and the FBI had information

that Flemmi and Barboza did kill Deegan. Neither Flemmi nor

Barboza appear to have been questioned about the Deegan murder

in 1965 and nothing happened to them.

Two years passed and Joe Barboza was arrested in 1967 on an

unrelated crime and faced a 70 year prison sentence. The FBI assigned H. Paul Rico and Dennis Condon to work with Barboza to

see if they could get him to become a cooperating witness. They

convinced Barboza to testify in three different trials. One of the

trials was for the murder of Teddy Deegan. Before the trial, however, Barboza told Mr. Rico and Mr. Condon something that was

very important. In one of those very first interviews, Barboza told

Mr. Rico and Mr. Condon he would never provide information that

would allow James Vincent Flemmi to ‘‘fry.’’ We will now go to the questions and we will start off with Mr.

Barr. I will reserve my time, Mr. Barr.

Mr. BARR. Mr. Rico, I would like to ask you a question that has

nothing to do with testimony in this case. But over the years, I am

sure as an FBI Special Agent you had a lot of witnesses that took

the fifth. You knew they were guilty of something and that is why

they took the fifth. Are you comfortable being in that position yourself today?

Mr. RICO. I invoke my fifth amendment right to remain silent in

response to that question.

Mr. BARR. I heard you. I am just looking at you, something to

look at. Very interesting. I hope you sleep well at night.

Judge Harrington, on December 20, 2001, committee staff interviewed you and you told us that you were not privy, and that is

consistent with your statement today, to information that Barboza

was providing Rico and Condon. But 3 days ago you made the following statement to Boston reporter Dan Rea, and I would like to

run that tape, exhibit No. 18: ‘‘. . . Vincent Jimmy Flemmi. [Mr.

Harrington:] He told the Bureau, and I was informed of it, that of

all the murders that he was involved in, and Baron was reputed

to be in over twenty murders, he would not testify in those murders in which Jimmy Flemmi was involved.’’ [Exhibit 18 follows:]

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Judge HARRINGTON. That is a correct statement, sir.

Mr. BARR. OK. And how do you square that with your statement

today, basically sort of the Ken Lay approach, that you knew nothing and do not know anything?

Judge HARRINGTON. I do not think I meant to convey that. If I

did, I am sorry. I indicated in my opening statement I thought that

I was unaware of any informant information relating to the Deegan

murder case. When I heard that, what I just spoke of, from the FBI

agents, that is what they conveyed to me from Joseph Baron, not

from any informant. Joseph Baron, in my mind, was an accomplice

witness at that time and not an informant. So if there is any ambiguity, I am quite sorry. But my statement there on TV was absolutely correct and I do not believe that it is inconsistent with my

opening statement.

Mr. BARR. It is your testimony here today that whatever you now

know about or previously knew about information that Barboza

was providing to Rico and Condon about committing murders that

was all information conveyed to you long after the fact.

Judge HARRINGTON. That is not so.

Mr. BARR. When was it that you found out what Barboza——

Judge HARRINGTON. My statement is that I had no detailed

knowledge of Baron’s testimony in the Deegan murder case and

that I had no information regarding informant information that

had been provided to the Bureau on the Deegan murder case. I

knew what Baron was going to testify on the Federal Patriarca

case because I was assigned to that case, I tried that case. So I am

making the distinction between the Federal Patriarca case in

which I was assigned as an assistant U.S. attorney and the Deegan

murder case which was tried in State court by the District Attorney of Suffolk County. I did not know anything—anything—about

Baron’s testimony with respect to the Deegan murder case nor any

informant information regarding it.

Mr. BARR. Did you ever discuss it with Mr. Rico?

Judge HARRINGTON. Did I ever discuss what with Mr. Rico?

Mr. BARR. Mr. Barboza.

Judge HARRINGTON. Of course, I discussed with Mr. Rico about

Mr. Barboza, but with respect to the Federal Patriarca case, not

the State Deegan murder case.

Mr. BARR. Give me some feel for how such a conversation would

take place. You have Mr. Rico who is well aware of basically the

entirety of Mr. Barboza’s criminal activities, both historical and

current, and you are sitting there talking to him as an assistant

U.S. attorney tasked with a prosecution and Mr. Rico starts to tell

you something about the State case, do you say, please, do not go

into that, I do not want to know about that. How could you

compartmentalize——

Judge HARRINGTON. I do not think I said that.

Mr. BARR. How could you compartmentalize the information

about this?

Judge HARRINGTON. I do not think I said——

Mr. BARR. As a prosecutor, wouldn’t you have wanted to find out

everything there is to know about this person?

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Judge HARRINGTON. I will say it again. I never discussed the

Deegan murder case with Joseph Barboza or with Mr. Rico. I was

assigned to the Federal case. That is what I concentrated on.

Mr. BURTON. Would you yield to me, please?

Mr. BARR. I yield to the chairman.

Mr. BURTON. There was a wiretap—— Judge HARRINGTON. There was a bug. It was a bug.

Mr. BURTON. OK, there was a bug. And in that bug, we looked

at the document yesterday which came from the bug, and in that

there was a conversation between Joe ‘‘the Animal’’ Barboza, who

you keep calling Baron, and Flemmi and Patriarca, and in that

they said they wanted to kill Deegan. That information was never

brought out in the State trial but you knew about it. No, wait a

minute—— Judge HARRINGTON. No, I am—— Mr. BURTON. Just a minute. I know that you were not involved

in that trial but you knew about it ahead of time. And I cannot understand as a prosecutor, knowing that Barboza and Flemmi had

asked Patriarca for permission to kill Deegan, you knew they were

involved, you knew that it was not bought up in the trial, you knew

that four people were being prosecuted for it, but not Barboza and

Flemmi, and you had exculpatory information at your disposal and

yet it never was brought out during that trial. Now you were the

prosecuting attorney in the Patriarca case but you knew while this

very infamous trial was going on that it was Barboza and Flemmi

that wanted to kill Deegan. Why didn’t you tell somebody that?

Why didn’t that come out in the trial? You knew about it ahead of

time.

Judge HARRINGTON. Could I explain it.

Mr. BURTON. Yes. I would like for you to explain it.

Judge HARRINGTON. There are certain matters and sequence of

events that would have to be explicated, and I am prepared to do

it. First of all, I would like to tell the staff that when they saw me

on December 20 they were asking me questions relating to matters

that were 35 years ago and I told them that at that time I had no

memory of the references in the Patriarca bug, and that was truthful.

Approximately a few weeks later, the FBI Task Force came to me

and provided me with my pros memo that Walter Barnes and I had

prepared in May and April 1967. Prior to their providing me with

the pros memo, I had no memory that I had even written this pros

memo which was, looking at it, 30 or 40 pages. This pros memo related to our need to have the Department of Justice approve the

prosecution of Raymond Patriarca in the Federal case. There were

two references, at least two references were shown to me about the

logs from the Patriarca bug. I want to just give you the sequence

so you will know.

In preparing that pros memo, I was focusing on two things: One,

whether the results of the illegal Patriarca bug would taint the

Federal Patriarca case; and second, whether there was anything in

the logs of the Patriarca bug that would corroborate Baron’s testimony in the Patriarca case. I reviewed those logs with Walter

Barnes, 3 years of logs, in April and May 1967. Baron’s testimony

in the Deegan State murder case was developed in pieces by the

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District Attorney’s office of Suffolk County, according to the Supreme Judicial Court’s opinion in that case, from July 1967 to October 1967.

Now why did we have two references at least in the Deegan murder case in the Patriarca pros memo? The fact that reference that

Patriarca gave authority to Baron to kill Deegan tended to corroborate his testimony in the Federal Marfeo case because it showed

two things. One, that Joseph Baron had personal access to the boss

of the New England Mafia. That was something that some people,

including me, thought might not have been valid. The second reason why it tended to corroborate Baron’s testimony in the Federal

Patriarca case is it showed that he received authorizations to kill

from Patriarca. And that, again, substantiated his testimony in the

Federal Marfeo case.

So at the time, 5 months later, when the Deegan murder indictments came down, 5 months after I had gone through the logs, and

James Flemmi’s name was not named as a defendant, I had no

memory at that time of these two references. That is the fact. And

the reason is because I was exclusively involved on a daily basis

for prosecuting the major criminal figure in New England for 35

years and that was my object.

Mr. BURTON. With the consent of the committee, I want to followup on this. Now Patriarca would have been guilty of complicity in

a murder by giving permission to Barboza and Flemmi to kill

Deegan.

Judge HARRINGTON. No doubt about it.

Mr. BURTON. There is no question about that.

Judge HARRINGTON. No doubt about it.

Mr. BURTON. Now if you knew that Patriarca had given approval

to kill Deegan, then why didn’t you prosecute him for that case?

Because that was before the case in which you did prosecute him.

Judge HARRINGTON. The reason why we would not prosecute him

for that case is because it was a murder case. But the fact that I

said nothing when I did not see Patriarca’s name as a defendant

in the Deegan murder case proves that at that time, 5 months

later, I had no memory of the one reference in 3 years of logs that

I had looked at 5 months earlier.

Mr. BURTON. Well, it stretches credulity as far as this Member

is concerned. It stretches credulity, Judge, that you would have

bugged recordings that showed that Barboza and Flemmi asked

Patriarca for permission to kill Deegan. That was a murder charge

that could have been used against him and that would have stuck

in your memory like a hot iron because you were after this guy.

And if that information stuck in your mind and then you saw the

Deegan murder trial at which four people, not Barboza and not

Flemmi, were on trial, that you would have had this exculpatory

memory emblazoned in your mind because you were after Patriarca

in the first place. And for you to say that you did not remember

it just stretches my imagination, stretches credulity.

Judge HARRINGTON. I think the record should be clear. These

logs, of which one reference I was supposed to remember 5 months

later, were available to counsel for the defendants in the Patriarca

case, two of which counsel were counsel for the defendants in the

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Deegan murder case. So the defendants in the Deegan murder case

were well aware of this reference to Patriarca, Baron, and Flemmi.

Mr. BURTON. How do you know that the defense counsel for the

defendants in that murder case, the Deegan murder case had access to this information about Barboza and Flemmi asking

Patriarca for permission to kill Deegan?

Judge HARRINGTON. It is my understanding and memory that

they were so authorized under court order.

Mr. BURTON. We will have to check that out, because I cannot

imagine defense counsel not bringing that exculpatory information

before when there are four people up on a murder charge and three

of those people were not involved in that murder. It would be a

dereliction of their responsibility to not bring that out. And so I am

going to find out if they had that information.

Judge HARRINGTON. Could I answer the chairman. The reason

they did not bring it out is because if they had brought out the fact

on cross-examination that the Deegan murder was a sanctioned hit

coming from Rhode Island and also concurred in by the Boston

mob, two other individuals would have gone down, obviously;

namely, Henry Tameleo, the alter ego of Raymond Patriarca, and

Peter Limone, the alter ego of Gennaro Angiulo.

Mr. BURTON. So?

Judge HARRINGTON. So if it was an authorized hit, as the logs

seem to say it was, then Limone and Tameleo are there. Because

at that time there was no authorized hit in Massachusetts that was

not authorized by Patriarca or Tameleo and concurred in by

Angiulo and Limone.

Mr. BURTON. I know, but that is not the point. You had four people, three of whom were not guilty of the Deegan murder, on trial.

Their defense attorneys, you are telling us, had access to this information, this exculpatory information that Barboza and Flemmi

asked Patriarca for this hit on Deegan. And for defense counsel to

have that information when their people are up on a murder

charge and not bring that out in court does not make any sense.

It just does not make any sense.

Judge HARRINGTON. I did not say all of them. I said the counsel

for Henry Tameleo and counsel for Ronald Cassesso, who were the

defendants in the Federal Patriarca case, were also counsel for

those two same defendants in the Deegan murder case and they

had access to the logs under court order.

Mr. BURTON. What about the counsel for Mr. Salvati?

Judge HARRINGTON. Mr. Salvati was represented by the law firm

of Henry Tameleo’s lawyer.

Mr. BURTON. And so you are saying that there was collusion between them to keep this under wraps.

Judge HARRINGTON. I am not saying it at all.

Mr. BURTON. His attorney is right here right now, Mr. Salvati’s

attorney.

Judge HARRINGTON. I am not saying that. Mr. Garo was not

counsel for Mr. Salvati at that time.

Mr. BURTON. So Mr. Salvati’s counsel was connected to the law

firm that was——

Judge HARRINGTON. He was. He was an associate of the lead attorney in the Deegan murder case.

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Mr. WILSON. Judge Harrington, just to try and clarify this one

issue. It is my understanding that in the Patriarca case, the Federal case, the information that would have been turned over to the

defense might not have been all of the Patriarca logs but it would

have been information that was germane to Patriarca’s involvement in the Marfeo murder conspiracy. Is that correct?

Judge HARRINGTON. I do not know. I do not know. But I was told,

when I was interviewed by the Task Force of the FBI, when for the

first time in 35 years they showed me my exhaustive prosecution

memo on the Patriarca case, they advised me and they refreshed

my recollection that Tameleo and Cassesso’s lawyer had access to

the logs of the Patriarca bug. How much they were, I do not know,

they did not say that and I did not question it.

Mr. WILSON. Well this is an important distinction, because in the

Taglianetti case it is true that the Taglianetti defense lawyers only

got a very small subset of the Patriarca logs. Correct?

Judge HARRINGTON. That is correct.

Mr. WILSON. So it would stand to reason that in the Patriarca

Federal case the defense lawyers would only get information that

was germane to the Patriarca case.

Judge HARRINGTON. I do not think that is true. And the reason

is this, sir, if I can explain. The real first reason we were obligated

by the Department of Justice to review the 3-years of the logs of

the illegal Patriarca bug was to ensure that there would be no

taint, no taint that would prevent our proceeding in the Federal

case. Therefore, we reviewed all the logs and it is my belief, sir,

my belief, that all the logs were made available to defense counsel

in the Federal case.

Mr. BURTON. Let me just followup. But you did know from the

illegal bug, you did know while the case was going on in which

these four defendants were up for murder on the Deegan case, you

did know at that time that there had been a conversation between

Flemmi, Barboza, and Patriarca about the murder. Barboza,

Flemmi, and Patriarca had a conversation. You knew when the

trial was going on that these four people were on trial in the

Deegan murder case, you already knew that conversation took

place. So you had exculpatory information at your disposal. And

what you are saying is that you were prohibited from divulging

that information because of the Patriarca case that you wanted to

prosecute later on.

Judge HARRINGTON. No. That was not the reason, sir.

Mr. BURTON. Well why did—when you were reading in the newspapers that these four people were going to be convicted and you

knew that Barboza and Flemmi had talked to Patriarca about this

hit, why didn’t you say something? These four guys—he spent 30

years in jail for a crime he did not commit and you had this exculpatory information at your disposal and you did not say anything

about it. Why?

Judge HARRINGTON. In brief, sir, I reviewed the logs in April and

May 1967. There was one reference or two to the Deegan case.

When the indictment came down 5 months later I had no memory

of this particular reference. But if I had—if I had—it would have

been consistent with my general understanding of the Deegan prosVerDate 11-MAY-2000 08:28 Jun 19, 2002 Jkt 000000 PO 00000 Frm 00142 Fmt 6601 Sfmt 6601 C:\DOCS\78662.TXT HGOVREF1 PsN: HGOVREF1
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ecution; namely, that it was an authorized hit emanating from

Providence and concurred in by the Boston faction.

Mr. BURTON. I understand that. But two of the people that were

involved in the hit, Barboza and Flemmi, were never prosecuted for

that and innocent people went to jail. And that information that

you had was never brought out. So 30 years of a man’s life went

by and some other people’s lives went by. I cannot understand

when you did read that it did not ring a bell in your head saying

why in the world was this not brought out in the trial.

Judge HARRINGTON. Because, Mr. Chairman, I did not know the

details of Baron’s testimony in the Deegan case and at the time of

that trial I had no memory of this one reference or two references

to the Deegan case in logs that I had checked out 5 months earlier.

I just didn’t.

Mr. BURTON. I am not going to belabor this. But you were trying

to nail this mob boss and you knew this conversation—— Judge HARRINGTON. It was the policy of the U.S. Department of

Justice.

Mr. BURTON. I know. But you were trying to nail this mob boss

and you knew he had this conversation with these two people, and

you are telling us that you just forgot it and 5 months later you

did not remember it. That does not make any sense because he

would have been complicitous in a murder because he authorized

the hit. And you are telling us you forgot that 5 months later and

that is why you did not bring this exculpatory evidence out.

Judge HARRINGTON. The proof that I forgot it is that if I had remembered I think I would have gone to Garrett Byrne and said

how come you are not prosecuting Raymond Patriarca for murder.

The fact that I did not do it proves that I had no memory of this

reference 5 months earlier.

Mr. BURTON. Well, that does not sit with me because I do not

think you would have forgotten that.

Mr. LATOURETTE. Mr. Chairman, before you yield to Mr. Tierney,

could I just ask a procedural matter, with Mr. Tierney’s indulgence.

Mr. BURTON. Sure.

Mr. LATOURETTE. I heard the Judge in your questioning talk

about the fact that the Department of Justice came to him with a

30 to 40 page prosecution memorandum to help refresh his recollection after our counsel met with him in December. And my question

is, do we have a copy of that? Then the question I have is—and

I took in response to Mr. Barr’s questioning of Mr. Rico and his

previous observation that he is not going to answer any questions

and he is going to invoke the fifth amendment. I see on the second

panel you have a member of the Department of Justice. I think it

is unusual that the Justice Department will not give to the Congress of the United States these documents, however they are giving them to people who are about to appear in front of us. I do not

have any problem with the Judge reviewing his own memo from 35

years ago. But my view would be that if the Judge can see it, I cannot quite figure out why we cannot see it, too, as we go through

the questioning of Judge Harrington today.

There is also some questions about redactions that have been

made by the Department of Justice in some of these reports. This

Member, speaking only on behalf of myself, would find it instrucVerDate 11-MAY-2000 08:28 Jun 19, 2002 Jkt 000000 PO 00000 Frm 00143 Fmt 6601 Sfmt 6601 C:\DOCS\78662.TXT HGOVREF1 PsN: HGOVREF1
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tive to perhaps replace the silent Mr. Rico with the member from

the Department of Justice so that we have Judge Harrington and

the Department of Justice side by side on the same panel so we can

explore those issues.

Mr. BURTON. I think that makes sense. Mr. Rico is not going to

testify today because of his fifth amendment rights. So why don’t

we excuse you now, Mr. Rico, you and your counsel.

And let’s have the Department of Justice come up and we will

swear him in right now. And then we will let the members of the

panel quiz them side by side. We will stand in recess for just a moment.

[Recess.]

Mr. BURTON. The attorney for the Justice Department will come

forward. If he chooses not to—because this information, for the

media and for everybody, this information was given to Judge Harrington over 2 weeks ago and the Justice Department decided to

let us see it last night knowing full well that we would not have

time to digest everything. And so the attorney for the Justice Department will come forward now or else we will move on a contempt citation. This stuff has got to stop. I do not know what the

heck is going on over there, but this is nonsense.

Let me swear in the witness, Mr. Bybee.

[Witness sworn.]

Mr. BURTON. OK, I think Mr. Tierney is next.

Mr. TIERNEY. Thank you, Mr. Chairman. Judge, let me ask some

questions from another point in time in this process. While the

prosecution was going on in California with respect to the allegation and what turned out to be the murder of Clay Wilson by Mr.

Baron [or Mr. Barboza]. There is information that you went to California and had a visit with Mr. Barboza while he was in prison.

Judge HARRINGTON. I did.

Mr. TIERNEY. What occasioned that visit?

Judge HARRINGTON. I was sent out there by the Organized Crime

Section of the Department of Justice to determine whether Baron

had been set up on this charge; namely——

Mr. TIERNEY. Not to be rude but we only have 5 minutes so I

want to try to get this where I want to go.

Judge HARRINGTON. Sure.

Mr. TIERNEY. And I do not get a chance to go after judges often

so we get them to do what we want to do. Who contacted you and

asked you to go? Who, specifically?

Judge HARRINGTON. I think it was either James Featherstone or

Bill Lynch, who at that time were running the Organized Crime

Section of the Department of Justice. But in view of the fact that

Baron was charged with a murder and he was such a significant

breakthrough in the Government’s effort in organized crime, and

we knew that the organization was going to retaliate against him,

either kill him, as they ultimately did, or get him in trouble, our

first decision was to determine whether he was in fact involved in

this murder. So I went out there to speak with him to find out if

this was a set up, are you being framed, or were you involved.

Mr. TIERNEY. Do you think it was a little unusual that you went

out there without first contacting the prosecuting attorney involved

in that murder case?

137

Judge HARRINGTON. I think that has been overblown. It was my

intention to find out first what the situation was and then immediately report to the District Attorney’s office. I had no reason not

to go to him. But my main responsibility was to determine whether

Baron was being framed. Here is a man who after 6 years of the

Department of Justice conducting intelligence gathering but had

not had one single case, we see Baron, the first witness in the Witness Protection Program, involved with being charged with murder.

We had to go out and find out whether he was in fact involved. And

that was my purpose.

Mr. TIERNEY. But knowing his background, it could not have

been a surprise to you that he was charged with a murder.

Judge HARRINGTON. Well, I thought that after he joined the Witness Protection Program that maybe he would try to stay within

the bounds of the law. It is obvious that a mistake was made. However, the Witness Protection Program was authorized by the Congress of the United States because they saw that in the long run

we are going to have some failures but overall it has been an effective tool against the organized underworld.

Mr. TIERNEY. At the same time you went out to see Mr. Barboza,

you did not even contact his lawyer to tell him that you were going

to see him in person. Is that right?

Judge HARRINGTON. I think on that first trip I did meet with his

lawyer.

Mr. TIERNEY. Before you saw Barboza?

Judge HARRINGTON. In conjunction therewith. I do not know who

I saw first. I wanted to see Baron first myself. But on that, it is

my memory that in conjunction with that visit I spoke with both

the District Attorney and——

Mr. TIERNEY. But they may well both have been after you saw

Barboza?

Judge HARRINGTON. There is no doubt I saw Barboza first.

Mr. TIERNEY. OK. At the time you went out there, did you know

that the prosecuting attorney had already written to both FBI Director Hoover and U.S. Attorney Mitchell indicating his concerns

about the fact that you and FBI agents might be going out there

to testify in that trial?

Judge HARRINGTON. I do not know when I knew that. But I knew

that the prosecuting attorney was not happy with the Government’s effort to support Baron.

Mr. TIERNEY. In all of your career, on how many occasions did

you testify as a character witness for a murderer?

Judge HARRINGTON. Well I never testified as a character witness.

What I testified to was the extent of his cooperation with the U.S.

Government. I never said that Joe Baron was a good fellow.

Mr. TIERNEY. In all of your career, how often did you testify to

somebody’s involvement in the program or with the Government?

Judge HARRINGTON. Well, I think it was the only so-called accomplice witness who after he had been developed was engaged in a

murder trial. So I would say he was the only one.

Mr. TIERNEY. How is it the decision was made that you and the

FBI agents would actually take the step of testifying for the defense in that trial?

138

Judge HARRINGTON. We were subpoenaed, first of all. I have my

subpoena right here.

Mr. TIERNEY. Were you a reluctant witness, Mr. Harrington?

Judge HARRINGTON. I was not. I was subpoenaed because defense

counsel wanted us, and, second, I was authorized by the Attorney

General under explicit instructions. So my appearance out

there——

Mr. TIERNEY. Did those instructions, your authorization from the

Attorney General come after the Attorney General was contacted

in writing by the prosecuting attorney expressing his concerns?

Judge HARRINGTON. I do not know when the prosecuting attorney

wrote that letter to the Attorney General. But I was accepting my

orders from the Attorney General and the Organized Crime Section. They thought it was an important effort at that time. And the

reason why it was important is because we sent a signal for the

first time to the underworld that the Government would abide by

its commitments. And in so doing, many accomplice witnesses were

developed in New England and throughout the United States.

Mr. TIERNEY. At the time you testified in that Wilson trial in

California, what was your knowledge about Mr. Barboza’s criminal

involvement at that time? Did you have an idea of how many murders he had been implicated in?

Judge HARRINGTON. I think he was reputed to have been involved in at least 20 murders.

Mr. TIERNEY. And knowing that, it was still the determination of

the Department to send you and FBI agents out to testify at that

trial?

Judge HARRINGTON. It was. And it seems in retrospect different.

But this was in the early days of a national governmental effort to

root out a national scourge, and Baron, being what he was, was the

only type of individual who would be able to provide the evidence

necessary to convict major racketeers.

Mr. BURTON. Let me, before I yield to Mr. Horn, ask two quick

questions. You were subpoenaed by the defense to testify. Was that

after you went out to see Mr. Barboza?

Judge HARRINGTON. After I went out?

Mr. BURTON. Yes.

Judge HARRINGTON. Oh, yes. I was subpoenaed for the trial

which took place I would say 6 months later.

Mr. BURTON. After. And the FBI agents, I do not know if they

were subpoenaed or not, do you know about that?

Judge HARRINGTON. I am sure they were subpoenaed. I think

they were subpoenaed.

Mr. BURTON. OK. So you go out and you meet with a man who

is on trial for murder who has killed 26 people, and after you meet

with Mr. Barboza you talk to his defense counsel, and the defense

counsel knows a U.S. attorney very prominent in Boston is out

there on Barboza’s behalf, and then he subpoenas you. It sounds

to me like you were subpoenaed because he knew you were going

to be a friendly witness because you were out there seeing Barboza.

Judge HARRINGTON. There is no doubt about it.

Mr. BURTON. Yes. So you probably would not have been subpoenaed if you had not gone out there?

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Judge HARRINGTON. That is true. But it was a judgment of the

Department of Justice, for the reasons I gave in my opening statement, that we wished to support this person.

Mr. BURTON. Did you suggest to the defense counsel that you

would be willing to be a witness if you were subpoenaed?

Judge HARRINGTON. I am sure I did.

Mr. BURTON. Ah. OK. Now the other thing I want to ask is, obviously when you are dealing with the underworld and you have an

informant that is going to cooperate in exchange for leniency and

you are going to put them in the Witness Protection Program, obviously you want to help them for past offenses. The big problem is

he killed 26 people before that. You were out there after he was

put in the Witness Protection Program and he murdered another

person. If a person is in the Witness Protection Program and you

have given them free rein because they are cooperating with you,

have cooperated in the past, why do you excuse another murder?

And how many will you excuse before you take them to task? How

many times do you go to defend these crudballs?

Judge HARRINGTON. All I can say is that he was the first. He was

more significant than most accomplice witnesses. He was the

breakthrough. He was a very significant figure not only in the fight

against organized crime, but in the establishment of the Witness

Protection Program. He was somewhat unique, Mr. Chairman.

Mr. BURTON. Judge, Judge, Judge, the guy murdered 26 people.

I can understand you working with him, putting him in the Witness Protection Program. But then he murdered another guy, and

maybe more than that, and you are out there defending him. You

got him into a prison on a 5-year sentence for a murder that was

a slam-dunk murder case and then he was out in about 3 or 4

years. And when he was in prison his attorney told us yesterday

he was making calls on a regular basis like he was at some country

club, he was smoking marijuana while he was in there. He had the

life of Riley. And he was out early. He killed this Mr. Wilson and

God only knows who else he might have killed. I can understand

working with these crudballs to get other crudballs higher up the

food chain. But he had murdered another person and you are out

there defending the guy.

Mr. Horn.

Mr. HORN. Thank you, Mr. Chairman. We have already had exhibit No. 18 and I just want to get moving. On December 20, committee staff interviewed Judge Harrington and, Judge, you told the

staff that you were not privy to the information that Barboza was

providing to Rico and Condon. But 3 days ago Judge Harrington

made the following statement to Boston reporter Dan Rea, that is

exhibit No. 18 that we showed already, and that is, ‘‘Barboza told

the Bureau, and I was informed of it, that all of the murders he

was involved in, and Barboza was reputed to be in over twenty

murders, he would not testify in those murders in which Jimmy

Flemmi was involved.’’ Judge, the Justice Department apparently

let you review some documents between December 20th and this

week, is that correct?

[Exhibit 18 follows:]

140

141

Judge HARRINGTON. I do not think they let me review it. They

are conducting I think a concurrent investigation and they questioned me about some of these matters that this committee is. And

during the course of the questioning they showed me certain documentation. One such documentation was my pros memo of 35 years

ago, which when I spoke with your staff I had no memory of. But

in answer to your question, I hope that pros memo is made public

because it shows one thing; that as far as the Federal Patriarca

case was concerned, there was an exhaustive enolization of the

statute, the corroborative evidence, and the credibility of Baron

with respect to that case. So I would hope that some day that pros

memo is made public.

Mr. HORN. Well, I can understand that. After December 20, did

you have any discussions with Justice personnel about any documents relating to Barboza more than what we know about?

Judge HARRINGTON. I do not know what you know. But they did

show me some informant reports that I was unaware of back in

1967, but not for the purpose of so-called prepping me for these

proceedings, but to undergo interrogation by them on the same

subject matter.

Mr. HORN. Now my understanding is that the statement that

was just part of exhibit No. 18, did you review the Patriarca tapes

and was there any information against Flemmi? What was the

statement on that, and were you aware of that?

Judge HARRINGTON. When I spoke with the FBI Task Force representative sometime in January I remember one log from the

Patriarca bug which showed that Baron-Barboza and James

Flemmi sought permission from Raymond Patriarca to kill Edward

Deegan. I did see that.

Mr. HORN. When Barboza was interviewed were Federal officials

always with him?

Judge HARRINGTON. When Baron was interviewed on the

Patriarca case those statements were taken by FBI agents. When

Baron was interviewed with respect to the State Deegan murder

case, those statements were taken by the District Attorney’s office.

Mr. HORN. Did you at that time have discussions with the Suffolk County District Attorney, I assume that is Garrett Byrne’s office that you are referring to, and——

Judge HARRINGTON. I am.

Mr. HORN. And regarding the information the FBI had developed

through informants and the secret Patriarca and the Angiulo listening devices regarding the Deegan murder. I think when you

were going through the confirmation process to become a Federal

judge you pointed to the development of Barboza as a cooperating

witness as one of your major professional triumphs. Were you always satisfied that Barboza was telling the truth?

Judge HARRINGTON. I was.

Mr. HORN. We have exhibits No. 20 and 21, Mr. Chairman, that

I would put into the record.

Mr. BURTON. Without objection.

[Exhibits 20 and 21 follow:]

142

143

144

145

146

147

148

149

150

Judge HARRINGTON. Could I make one response, sir, on your

question that I do not think I fully responded to. Just Tuesday of

this week in the Boston Herald Jack Zalkind, the District Attorney

who tried the Deegan murder case, stated: ‘‘I never spoke with Edward Harrington with respect to this matter.’’ Mr. BURTON. We will come back to you.

Mr. HORN. Just one question, if I might.

Mr. BURTON. OK. Sure.

Mr. HORN. How did you learn about Barboza’s statement that he

would not give any information about Vincent Flemmi? How did

you learn that?

Judge HARRINGTON. That was provided to me by the FBI agents

who spoke with Baron very early on. My statement and my opening statement is that I never had any information regarding informants, not that the FBI did not tell me something after Baron

had been turned as a witness.

Mr. BURTON. Thank you, Mr. Horn. Mr. Delahunt.

Mr. DELAHUNT. Thank you, Mr. Chairman. Judge Harrington, I

just asked a staff member to give you a memorandum, it is exhibit

No. 15. If you will just take a moment to review it. It is entitled

‘‘AirTel to the Director of the FBI from the SAC, the Special Agent

in Charge, in the Boston Office,’’ and it is the criminal intelligence

program of the Boston division.

[Exhibit 15 follows:]

151

152

153

Judge HARRINGTON. I have read it, sir.

Mr. DELAHUNT. The pertinent language there is, ‘‘Informants report that Ronald Cassesso, Romeo Martin, Vincent James Flemmi,

and Joseph Barboza, prominent local hoodlums, were responsible

for the killing. They accomplished this by having Roy French, another Boston hoodlum, set Deegan up in a proposed breaking-andentering in Chelsea, Massachusetts.’’ Again, this is dated March

19, 1965. It is your testimony—let me pose the question to you, you

never saw this memorandum?

Judge HARRINGTON. Never did. In fact, I just note the date was

March 19, 1965. At that time, I was a trial attorney with the Department of Justice here in Washington. I came to Boston as an assistant U.S. attorney approximately 10 days later. But to answer

your question, I never saw it.

Mr. DELAHUNT. But even during the course of your prosecution

of Patriarca and your efforts in terms of dealing with organized

crime?

Judge HARRINGTON. My memory is that I never saw this informant report.

Mr. DELAHUNT. In this case there is no reference to Joseph

Salvati, there is no reference to Peter Limone, there is no reference, and if someone could help me with those that were charged

with the Deegan murder, I think there are two other—Louie Greco

and Henry Tameleo, there is absolutely no reference to those four

individuals.

Judge HARRINGTON. Not in this informant report. But I do not

think, on review of the Supreme Judicial Court’s opinion in the

Deegan murder case, that anybody ever claimed that Peter Limone

and Henry Tameleo, major figures, had anything to do with the actual killing.

Mr. DELAHUNT. Right. Let me suggest to you that Special Agent

Dennis Condon testified in the State case on Deegan. You know

that Special Agent Rico and Dennis Condon worked together in

tandem over a long period of time.

Judge HARRINGTON. I do know that, yes, at least during this era.

I know later Mr. Rico teamed up with Mr. Robert Sheehan.

Mr. DELAHUNT. Right. In your opinion as a trial lawyer, as a

judge, as a former prosecutor, this particular memorandum one

would consider, in terms as it relates to Mr. Salvati, and I mention

him because he is present here today, this would be considered an

exculpatory report.

Judge HARRINGTON. I would concur.

Mr. DELAHUNT. And if you had knowledge of the existence of this

memorandum, you, as an officer of the court, as an attorney sanctioned to practice in Massachusetts, as a member of the Department of Justice, would have disclosed this to counsel for Mr.

Salvati. Is that a fair statement?

Judge HARRINGTON. I think I would have.

Mr. DELAHUNT. Because you would not have wanted to see an innocent man go to jail.

Judge HARRINGTON. There is no doubt about that.

Mr. DELAHUNT. You are aware that subsequently the former Director of the FBI for the past 6 or 7 years, Mr. Freeh acknowledged

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that what occurred to Mr. Salvati was an injustice after reviewing

all of the documents. Maybe you are not aware of that.

Judge HARRINGTON. I am not.

Mr. DELAHUNT. You also say in your opening statement that

throughout your tenure as a Federal prosecutor you never knew

the identity of any FBI informant.

Judge HARRINGTON. That is correct.

Mr. DELAHUNT. In retrospect, and, Mr. Harrington, I know

things look different in retrospect, I think we all look back and

maybe would have done some things different, this committee is interested in developing and crafting policy to ensure that justice is

done and that the guilty are prosecuted and are removed from society if they are dangerous to society and, at the same time, that the

innocent people are protected.

Judge HARRINGTON. I concur.

Mr. BURTON. The gentleman’s time has expired. We will come

back. We will have a second round.

Mr. Barr, I took most of your time before. Why don’t I yield to

you what time I had, and then we will go to Mrs. Morella.

Mr. BARR. OK. I will just take part of your time, Mr. Chairman,

because I know you probably have some additional questions also.

Early this morning, Judge, we played exhibit No. 18, which was

your statement to a TV reporter earlier this week that Barboza had

told the Bureau, and that you were informed of it, that all the murders he was involved in, and Barboza was reputed to be in over 20

murders, but that he would not testify in those murders in which

Jimmy Flemmi was involved. There was also information from the

microphone surveillance that Flemmi was involved in the Deegan

murder. Given the fact that the Government knew that Flemmi

was involved in the Deegan murders and that Barboza was saying

that he would not testify in any way that could implicate Flemmi,

what was the implication of Barboza’s statements? Is it not a clear

implication that he was going to lie, that he would not tell the

truth?

Judge HARRINGTON. Well, in review of the case called Commonwealth v. Limone that came down from the Superior Court in 2001,

Judge Hinkle in that case indicated that Baron testified in the

Deegan case that Flemmi was involved in the scheme. The fact

that Flemmi was not named as a defendant, there could have been

a lot of reasons, but I think that question should be propounded

of the District Attorney who made that judgment and not an assistant U.S. attorney who had nothing to do with the case.

Mr. BARR. You have testified that you stand by your statement

that you are always satisfied that Barboza was telling the truth.

And yet, you have to know that he was not.

Judge HARRINGTON. I do not know that.

Mr. BARR. Really?

Judge HARRINGTON. But with respect to the case that I was intimately involved in, I am convinced that he was telling the truth.

Mr. BARR. In that case maybe.

Judge HARRINGTON. In that case. With respect to the Deegan

case, I had no knowledge——

Mr. BARR. But you have testified under oath that you are satisfied that Barboza was always telling the truth.

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Judge HARRINGTON. In the cases that I was involved in. But even

now——

Mr. BARR. That was not the question that was just asked of you

before. I do not want to speak for Mr. Horn, but I do not think he

asked you if in the cases in which you were intimately involved

were you always satisfied that Barboza was telling the truth. Your

testimony and your confirmation and your answer to the question

that Mr. Horn propounded just a few moments ago was were you

always satisfied that Barboza was telling the truth, and you said,

yes. Yet it seems clear I think to anybody that he was not telling

the truth.

Judge HARRINGTON. I do not think that is true. I think if you review the testimony in the Deegan murder case, you will find out

one thing—that Baron did not stand alone. John Fitzgerald testified. Stats testified. Glavin testified. Baron was on the stand for

81⁄2 days. If I had to look at it just from a review of the Supreme

Judicial Court’s opinion, which I have done in the last 5 weeks, I

have learned more about the Deegan murder case in the last 5 or

6 weeks than I have known in the last 35 years, but he was on the

stand for 81⁄2 days and he was corroborated to some degree by

three other witnesses. So at this time, I am not prepared to say

that Baron lied in that case. But I was not involved in it and I did

not know the——

Mr. BARR. A man served 30 years for that murder that we all

know he did not commit. And we know that Barboza could have

testified and had testimony that could have cleared Mr. Salvati and

that he did not testify that Flemmi was responsible or implicated

or involved in that murder. How can you sit there and defend this

guy, Judge?

Judge HARRINGTON. I am not defending him.

Mr. BARR. You are saying that you still believe that he is a truthful man.

Judge HARRINGTON. All I am saying is that I think the question

would be better propounded to the individual who made the prosecutorial decision on what defendants to proceed, and not me.

Mr. BARR. When Barboza was interviewed, is it not true that

Federal officials were always with him?

Judge HARRINGTON. I cannot answer that question. But I will tell

you this, that I was never, I was never involved with any questioning of Joseph Barboza-Baron with respect to the Deegan murder

case.

Mr. BARR. I am asking is it not true that Federal agents were

always with him when he was interviewed?

Judge HARRINGTON. I cannot answer that. I do not know.

Mr. BARR. You do not know.

Judge HARRINGTON. I do not know.

Mr. BARR. Would that not be standard practice?

Judge HARRINGTON. I would think—now let me go back. I would

think since Baron had been turned by Federal agents that they at

least would have been there as introduction to the State District

Attorney’s representatives who would have taken his statement. I

would think so. I was not there, but I think that would be the approved practice.

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Mr. BURTON. Let me just say that we have limited time left before there is a vote on the floor. So if those members want to go

and come back, we will get right back to questioning. And Mr.

Barr, if you go vote, maybe you could come back and take the

Chair because I am going to stay here a few more minutes, and

then you can take the Chair when you get back and then go right

to Mrs. Morella and then to Mr. LaTourette. We have two votes I

understand.

Let me just ask you this question, Mr. Harrington. You said you

do not remember much about what happened 30 years ago. This information on the duration of the trial, the State trial, did you get

that from the Justice Department? Is that stuff you just reviewed

just recently?

Judge HARRINGTON. No. What I did since I met with your representatives, and I met with them fairly cold on December 20, I

have read all the cases regarding this, not only the Supreme Judicial Court’s case in the so-called Deegan murder case, and all the

motions for the new trial. So as I indicated, I am familiar with the

case now; 35 years ago I was not.

Mr. BURTON. You did not follow the case? It was a pretty famous

case.

Judge HARRINGTON. I followed it in the paper but I had my own

case.

Mr. BURTON. I understand. But I want to go back to this one

point and then we will recess.

Judge HARRINGTON. Sure.

Mr. BURTON. And that one point I want to go back to is you had

exculpatory evidence that you had heard. You heard Flemmi and

Barboza talking to Patriarca asking if they could murder Deegan.

You could have prosecuted him for murder on that case. You knew

that. I cannot believe that you say 5 months later you forgot that,

because you were after Patriarca, you were after him and you

heard two people talking about getting permission to murder

Deegan, and you are saying you forgot that. And if you had that

and you were following this case in the paper, you had to know you

had exculpatory information that you were keeping from that State

trial. And that really is almost——

Judge HARRINGTON. It is not exculpatory information, to tell you

the truth.

Mr. BURTON. Why wasn’t it exculpatory?

Judge HARRINGTON. Because it was consistent with my general

understanding of the prosecution that it was a sanctioned hit.

Mr. BURTON. Yes. But do you mean to tell me you do not think

the defense counsel for Mr. Salvati and others would not have been

able to make a stronger case if two people that were not on trial

were brought forward, Mr. Barboza and Mr. Flemmi?

Judge HARRINGTON. It was available to them. It was.

Mr. BURTON. Well even though it was available to them, they

may have been tied in with the mob themselves. Who knows? How

do you know it was available to them?

Judge HARRINGTON. Because under court order in the Patriarca

case the two defense counsel were provided access to the logs so

that they could move later for a motion to dismiss the Patriarca

case because it was tainted. That would have been the ground.

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Mr. BURTON. How do you know that everything was made available? Did you see it? How do you know?

Judge HARRINGTON. Because I participated in the trial. I think

the court allowed—I think the court, and I was so advised by the

FBI when I talked with them, that the trial court in the Patriarca

case made the logs available.

Mr. BURTON. Who told you that, Condon?

Judge HARRINGTON. No. The Task Force who I spoke with just

in the last several months.

Mr. BURTON. Oh, they told you that.

Judge HARRINGTON. They told me during the course of their inquiry.

Mr. BURTON. I see. Why was the Patriarca case different than

the Taglianetti case?

Judge HARRINGTON. In Taglianetti, the only thing that was made

available in Taglianetti was a certain segment of the so-called

Patriarca logs. They were made public. The Taglianetti case was

tried in Rhode Island. I had nothing to do with that. With respect

to the Patriarca case, since it was well known that the FBI had illegally bugged Patriarca’s office, in order for the defendants in the

Patriarca case to file a motion to dismiss or a motion to suppress,

they were allowed by the trial counsel in the Patriarca case to have

complete access to all the logs so that they could bring a motion

to dismiss or suppress. And they had it.

Mr. BURTON. Well, I think we need to find out if those logs were

made available to the defense counsel. If they were and it was not

brought up in the case, there has got to be something funny that

went on there, otherwise why would they not have brought that up.

And the other thing is there is still one issue that I do not think

is going to be resolved, and that is you had this information that

Barboza and Flemmi were involved in that hit, you had information that Patriarca gave his consent for the hit, and you were reading all about this in the paper and nothing was ever said by you

that might have helped keep these guys out of jail for 30 years.

Judge HARRINGTON. It was consistent. It showed it was a sanctioned hit.

Mr. BURTON. Yes, but you did not know that all these four people

were involved in the hit. You knew that Barboza was and you

knew that Flemmi was and that was never brought out in the

court. You knew that information and you knew Patriarca gave his

OK and you were trying to nail this guy to the wall. Why were

Patriarca and Flemmi not involved in the prosecution?

Judge HARRINGTON. That is the question that should be asked to

the District Attorney who was involved in the murder prosecution.

If I had known, if I had remembered the reference to Patriarca in

the Deegan murder case, I would have asked Garrett Byrne. But

I am saying that establishes that 5 months later that one reference

or two references in the logs I had completely forgotten. I would

have loved to have seen Patriarca charged with the murder case.

Mr. BURTON. Your whole purpose was to nail Patriarca to the

wall. And here you have him giving authority to kill somebody and

you are telling me that 5 months later you forgot that? I cannot

understand how you could forget that. Anyhow, we will talk about

that later.

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We stand in recess. We will be back in about 15 minutes.

[Recess.]

Mr. BURTON. We will reconvene the committee.

Mr. LaTourette, we will recognize you for questioning.

Mr. LATOURETTE. Thank you very much, Mr. Chairman. Mr.

Bybee, when we were chatting with Judge Harrington earlier and

he talked about a pros memo from 1967, and we can explore with

him later whether he read it from page to page or whether he was

just shown it and reviewed it, but anyway it appears that the Task

Force has shared this prosecution memo from 1967 with Judge

Harrington in the course of an investigation. Are you familiar with

that set of facts?

Mr. BYBEE. Yes, I am.

Mr. LATOURETTE. OK. Are you aware whether or not the Justice

Department Task Force investigating this issue has reviewed any

of the 10 other documents, deliberative memoranda that are being

withheld currently from this committee by the Department of Justice?

Mr. BYBEE. I cannot comment on matters that are under open investigation, Congressman.

Mr. LATOURETTE. OK. So you are not answering the question.

You are saying that you are prohibited somehow from answering

my question?

Mr. BYBEE. Well I think it would be inappropriate for me to comment on matters that are under open investigation by the Joint

Task Force.

Mr. BURTON. Excuse me. Would the gentleman yield just a moment?

Mr. LATOURETTE. Certainly.

Mr. BURTON. Now we have been trying to get these documents

for a long time and you are now hiding behind this is under investigation so we cannot see those documents. Is that what you are

saying?

Mr. BYBEE. No, Mr. Chairman, that is not what I am saying.

Mr. BURTON. Well we got one document yesterday.

Mr. BYBEE. Yes.

Mr. BURTON. Why did we see that?

Mr. BYBEE. Because the committee gave a demonstrable effort to

the administration for the need for that document.

Mr. BURTON. We did not ask for review of the document first. We

said we wanted to see the document and you let us see it. Now you

are saying the other nine documents that we subpoenaed we cannot get because it is under investigation.

Mr. BYBEE. No.

Mr. BURTON. They were all 10 subject to the investigation.

Mr. BYBEE. Mr. Chairman, I believe you have asked a different

question than what the Congressman asked me, at least I answered the question I thought he asked me. I will be happy to answer your question. With respect to the remaining nine documents,

Mr. Chairman, we will be happy, and we have indicated in repeated letters to the committee, the administration will be happy

to sit down with the committee and discuss your need and our interests in those documents. That process would be a very salutary

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process for both of us in trying to accommodate the needs of the

committee. And those are our instructions from the President.

Mr. BURTON. Well, we will have to talk to the President about

that. Because those documents we want to see, we do not want

your interpretation of them.

Go ahead, Mr. LaTourette.

Mr. LATOURETTE. Thank you. Mr. Bybee, that actually leads to

my next question. I understood your response about the Task

Force. But the executive privilege that the President claimed on

December 12th, he said he has decided to assert executive privilege

with respect to these documents and to instruct you ‘‘not to release

them or otherwise make them available to the Committee.’’ You are

aware of the Order of the President of the United States to the Department of Justice?

Mr. BYBEE. Yes, I am.

Mr. LATOURETTE. Well yesterday, as the chairman indicated, the

Justice Department shared with our staff 1 of those 10 documents.

And my question to you is, is it your understanding that the President of the United States has withdrawn his executive privilege

claim as to these 10 documents?

Mr. BYBEE. No, Congressman, the President has not withdrawn

his claim of executive privilege. In that same letter, Congressman,

the President also instructs us, consistent with separation of powers, to meet with the committee and to try to accommodate our mutual interests. And we have been prepared to meet with the committee to sit down and discuss what your needs are for these documents and see if we can work something out.

Mr. LATOURETTE. Mr. Bybee, I do not have any difficulty with

that and I favor meetings and I have met with representatives of

the Justice Department. I think meetings are great things. But I

am not one to parse words and I really am interested when the

President of the United States instructs you not to release them,

I understand you have not released them, but you are not to otherwise make them available to the committee, isn’t that what you did

last night?

Mr. BYBEE. Well, again, with respect to one document as to

which we felt that the committee had demonstrated its need, we

shared the document with the committee. It was not left in the

committee’s possession, it was shared with you last night.

Mr. LATOURETTE. And you believe that that activity does not otherwise make it available to the committee in contravention of the

President’s executive privilege claim?

Mr. BYBEE. That is the way that the Executive has historically

accommodated the committee.

Mr. LATOURETTE. OK. Now again in response to the chairman’s

question, Assistant Attorney General Bryant, who I think was with

us last week, states that ‘‘the Committee has now demonstrated a

particular and critical need for access to the Harrington memo and

that satisfies the constitutional standards.’’ Can you explain to us

what it is that we all did on the committee that all of a sudden

we are able to meet this high bar that we were not able to meet

a week ago?

Mr. BYBEE. It is a combination of different things, Congressman,

including the chairman’s letter to the Department of Justice this

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week that indicated the witness that was coming forward and demonstrated—I can pull the letter here—but there was language in

there that satisfied us that you had a particularized need for that

document. And we indicated to the committee that on that basis we

were willing to meet with you.

Mr. LATOURETTE. And the fact that Judge Harrington was going

to appear today, is that what distinguishes this memorandum from

the nine documents that we have requested?

Mr. BYBEE. Well, that would be a contributing factor. It would

not be the only factor.

Mr. LATOURETTE. Can you tell us what the other factors are so

we can try in this committee to satisfy whatever this high standard

is?

Mr. BYBEE. Congressman, we will be happy to meet with you and

talk with you about those remaining documents and about the interest of the committee in those.

Mr. LATOURETTE. Well, I have to tell you, Mr. Chairman, I would

hope that you would draft a letter to President Bush because in my

mind this says that they are not supposed to make the stuff available and they have now made some of the items available to us

based upon a showing that I cannot find a difference between the

showing that you might have made in this letter, it must have been

a great letter you wrote last week, because I do not see any difference between our needs this week and last week. And I think

what I expressed last week, in an unartful way, and I apologize for

being coarse in my language last week, but it occurs to me what

has occurred is that we do not have the President of the United

States making the decision, we have assistant attorneys at the Department of Justice figuring out when it is the U.S. Congress has

satisfied the requirements of the President of the United States.

I am at a total loss to figure out how that fits under any scheme

that is appropriate. And I would hope you would perhaps contact

President Bush and ask him to look into this matter for us. I thank

you for your courtesy.

Mr. BURTON. If the gentleman would yield the balance of his

time to me. Let me just say it was not until it became apparent

that Judge Harrington was going to be here and you folks at the

Justice Department had already shown Judge Harrington the document in question that you probably knew that we might find out

that you were showing witnesses before this committee information

that you would not share with the committee and that would have

been embarrassing as the dickens to you, wouldn’t it?

Mr. BYBEE. Mr. Chairman, the Joint Task Force is conducting an

investigation of the matters surrounding the handling of FBI informants in Boston.

Mr. BURTON. Right.

Mr. BYBEE. Judge Harrington evidently, I am not part of that

Task Force, is relevant to that investigation. They are talking with

him on their schedule.

Mr. BURTON. Well they went up and they gave Judge Harrington

access to the document that you gave to us last night.

Mr. BYBEE. Right. It was the—— Mr. BURTON. Now you do not think it would have been embarrassing for the committee to find out today that Judge Harrington

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reviewed these documents that you would not give to the committee because the President said that it should not be given to anybody because of the national interest, you do not think that would

have been embarrassing?

Mr. BYBEE. Mr. Chairman, in the course of the Joint Task Force

investigation, they showed Judge Harrington a document that he

had authored.

Mr. BURTON. Yes?

Mr. BYBEE. That is a responsible way for prosecutors to behave

in refreshing the recollection of people that they are interviewing.

Mr. BURTON. You guys just really get to me, I swear. It is funny.

[Laughter.]

You know, do you want me—you just tell me whether you want

me to do this or not because I am willing to do it—do you want

me to get all the Democrats in the House and about 30 Republicans

to move a contempt citation against the administration to force you

to give us these documents? Do you want me to do that?

Mr. BYBEE. No, Mr. Chairman.

Mr. BURTON. Well that is what we are going to do if you do not

give us the documents. I do not know what is wrong with you guys.

We are responsible for the oversight of the executive branch, all

areas of the executive branch. And you guys are not above congressional scrutiny. Now we have put an innocent man in jail, our Government, for 30 years for a crime he did not commit and you do

not want us to find out why. And I want you to know we want to

see those documents.

We subpoenaed documents 6 months ago and last night you

dumped several thousand pages of documents on my chief counsel’s

desk expecting us to go through those last night I suppose. Well we

did not have time, obviously. And you gave us this other document

to review yesterday and we did not have time to really scrutinize

that like we should. So we are going to and we will probably haul

you guys back up here again. And I do not know why you want to

go through this. Let us see the documents.

Now if there is something there that you think should be hidden

from the American people or the Congress, then you have got a

problem. I mean, an innocent man and possibly other innocent people across this country were put in jail. Now we found out that

there was a guy in Rhode Island that was put in jail for 18 years

by the Federal Government for a crime he did not commit. We

found out Mr. Salvati was put in jail for 30 years for a crime he

did not commit. There were other people that got the death penalty—the death penalty—which was commuted to life in prison for

crimes they did not commit. Now granted, those guys may have

been crudballs associated with the Mafia, but they did not kill

Deegan. They got the death penalty. We want to find out if there

are other people in this country that are incarcerated or have been

put to death by the Justice Department for crimes they did not

commit. And you guys are obstructing justice, in my opinion, by not

giving us those documents.

Now if you want to go through this week after week for the next

year, then you can do it. And if you want me to go to the floor of

the House and have to fight with my own party, a lot of the people

in my own party to get these documents, I am willing to do that

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as well. Now I do not think you want to do that. You guys are nuts.

In fact, if you have any doubt, ask these gentlemen right here if

I can get every Democrat to sign this. Ask them. And I will tell you

how many Republicans I can get to sign this thing to force this

issue to the floor.

Are you ready, Mr. Tierney?

Mr. TIERNEY. Thank you. I am not going to spend a lot of time

with you, sir, because I just think what happens is we get from the

Department a bunch of professional witnesses up here to stonewall

on what I think is a ridiculous claim of executive privilege that is

nonsense. I think the chairman has made it clear pretty much

where that is going and we will deal with that another time. But

we do have with us this morning Judge Harrington and I think we

will take this opportunity to continue to question him.

Judge, what is it about Barboza’s background that you shared

with the prosecuting attorney in the Clay Wilson case when you

went out there before the trial?

Judge HARRINGTON. With the prosecuting attorney?

Mr. TIERNEY. Right.

Judge HARRINGTON. I think, again, I think what I shared with

him what I testified to on my approximately 10 minutes on the

stand; namely, the extent of his cooperation with prosecuting authorities in their effort against organized crime.

Mr. TIERNEY. Did you tell him that he was implicated in some

20-odd other murders elsewhere?

Judge HARRINGTON. I do not know if I told him that but I think

it was understood that he was a hit man for the Mafia.

Mr. TIERNEY. And you would not have gone into detail with him

about all of the background you had on this individual knowing he

is prosecuting the guy for murder?

Judge HARRINGTON. Again I am drawing on my memory, but I

think it was understood that he was a professional killer. But it

was the judgment of the Department of Justice at that time that

more important than professional killers were those leaders of the

organization who could reach out and, if Baron was not around,

there would be other professional killers to carry out their contracts.

Mr. TIERNEY. You knew all the evidence that had been compiled

against Barboza in the Wilson case. You knew how strong a case

that was against him?

Judge HARRINGTON. I have to admit I knew he was involved in

killing Wilson. I think his defense was self-defense. I did not go

into the details of that murder case because my involvement as a

witness was very limited.

Mr. TIERNEY. So you are saying it would not have mattered to

you one way or the other. This guy had an incredibly strong case

by his own attorney’s account against him in a prosecution for involvement in this murder. Knowing that you are going out there

with a couple of FBI agents to testify, you do not think it is important as to whether or not your testimony might help him get off

from that charge or not, or was it in fact the purpose of going out

there to help him get off or get lighter treatment in that charge?

Judge HARRINGTON. Our job was not to get him off. Our job was

to fulfill our commitment on a singular witness, a person who

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opened up for Federal authorities, their assault on the underworld

for the first time in the history of American law enforcement.

Mr. TIERNEY. Regardless of the consequences?

Judge HARRINGTON. Regardless of the nature of Baron. If Baron

was not a serial hit man, if would not have been invaluable to prosecuting authorities.

Mr. BURTON. Will the gentleman yield briefly.

Mr. TIERNEY. I will yield to the chairman.

Mr. BURTON. Let me say, you say you thought it was selfdefense—— Judge HARRINGTON. No, I did not say—— Mr. BURTON. You say you thought it might be self-defense. He

was shot in the head, he was buried under a stump, and Barboza

allegedly made love to his wife right after the murder. I mean, this

guy is an animal. And you are out there and you said you were told

it might be self-defense. Bullet holes in his head, buried under a

stump, and his cellmate tells exactly where the guy is, exactly

where he is buried, how he was shot and killed, and what he was

wearing.

Judge HARRINGTON. I did not say I thought it was self-defense.

I said that his defense was self-defense.

Mr. BURTON. And you were out there defending him.

Judge HARRINGTON. I was. But, Mr. Chairman, with the authority of the Attorney General of the United States.

Mr. TIERNEY. So let me follow that for a second. The Attorney

General of the United States knows that this guy is a serial murderer, knows that he is on defense for a murder that more than

likely he committed because of all the circumstances the chairman

stated, and you are telling us he then instructs a member of the

Justice Department and two FBI agents to go and testify on behalf

of this individual?

Judge HARRINGTON. That is true.

Mr. TIERNEY. OK. And to your knowledge, did the Director of the

FBI also know that this was the scenario that was unraveling?

Judge HARRINGTON. I am sure he knew his two agents went out.

Mr. TIERNEY. Further, did the attorney for Barboza in that Clay

Wilson murder case give you any reason to believe that Barboza

might not have committed the crime other than this wild assertion

that it was self-defense?

Judge HARRINGTON. It was my understanding from talking with

the attorney that he was involved in the killing but his defense was

self-defense.

Mr. TIERNEY. You did not have any doubt the guy had murdered

him, had you? I mean, you knew the guy murdered Wilson.

Judge HARRINGTON. I knew he killed him. I did not want to

evaluate his defense.

Mr. TIERNEY. When you met with Barboza in California before

you talked to the prosecutor, before you talked to Mr. Miller, his

defense attorney, what transpired in that jail cell?

Judge HARRINGTON. Well, I have to reconstruct it. But in essence, I wanted to find out whether he was framed or was he involved in it.

Mr. TIERNEY. So he told you he was involved in it, he was guilty,

right?

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Judge HARRINGTON. No. He told me that it was self-defense.

Mr. TIERNEY. But then you became familiar with the circumstances of the case and you did not believe that for a second.

Judge HARRINGTON. It was irrelevant. I was out there—— Mr. TIERNEY. Please, Judge. You did not believe it. You are a

seasoned attorney at that time, you did not believe that at all,

right?

Judge HARRINGTON. Well, if forced to answer, I would say I

would have thought that he killed him.

Mr. TIERNEY. Now did you report that back to the Director of the

FBI, or your superiors, or John Mitchell, or anybody else that this

guy that you have me going out there to testify for is a cold-blooded

murderer and he is guilty of this one too?

Judge HARRINGTON. They all knew it. That is why he was important. He was a cold-blooded killer for the Mafia. That is why we

used him.

Mr. TIERNEY. When you were with Barboza in that jail cell prior

to his trial in the Clay Wilson case, did he tell you that if you and

the FBI guys or if the Government did not do something for him

in that trial he was going to rescind his testimony or recant his testimony in the Patriarca or other New England cases?

Judge HARRINGTON. He did not.

Mr. TIERNEY. Did you have that fear?

Judge HARRINGTON. No. But I will tell you this. I always knew

that it was a possibility for the reasons I said in my opening statement; namely, they tried to bribe him, he could not make a living

on the outside so he had to curry favor with the mob, and I think

that if he offered to recant falsely that it might keep him alive. But

it did not keep him alive too long. He paid the penalty for cooperating with the U.S. Government.

Mr. TIERNEY. Are we going to have another round, Mr. Chairman?

Mr. BURTON. We will have another round.

Mr. TIERNEY. Fine. I will stop here then.

Mr. BURTON. Mr. Horn, are you prepared or do you want to wait

a minute?

Mr. HORN. Thank you, Mr. Chairman. Let’s go into after the acquittals in the Rocco DeSeglio murder trial. After the acquittals

there, did you have any concerns regarding Barboza’s credibility?

Judge HARRINGTON. No. I think an evaluation of the DeSeglio

murder case at the time depended primarily on the technical

ground of venue. I think the jury was charged that the murder had

to have been completed in one county—and the information was

that Baron testified very strongly in the DeSeglio case—but it was

on a technicality that an acquittal was rendered because I think

the jury found that the killing had taken place in a county other

than Suffolk. That is my memory at this time, sir.

Mr. HORN. If so, were any steps taken to make sure Barboza’s

testimony was corroborated in the upcoming Teddy Deegan and

William Marfeo murder trials?

Judge HARRINGTON. With respect to the Federal Marfeo case, he

was corroborated. And although, again, I had nothing to do with

preparing him for trial in the Deegan murder case, from reading

the opinion in the Supreme Judicial Court’s opinion in the Deegan

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murder case three other individuals testified in support of Baron’s

testimony, namely, attorney John Fitzgerald, Stathopoulos, an individual who was there the night of the murder of Deegan, and another individual by the name of Glavin. So there was some—and

it just comes to mind, in the Boston Herald of Tuesday of this week

when the attorney who prosecuted the Deegan murder case said

that he had no conversations with me with respect to that matter,

he also said that it was his judgment that Baron was strongly corroborated in the Deegan murder case. That was his testimony

Tuesday of this week.

Mr. HORN. Since Barboza’s testimony resulted in the acquittal of

all of the defendants in the DeSeglio murder trial, did you have

any concerns on using Barboza as your principal witness at the

William Marfeo murder trial?

Judge HARRINGTON. Not at all because the Marfeo Federal trial

was a solid case. It was solid not only because Baron was corroborated, but there were references in the so-called Patriarca logs

which tended to corroborate him. We felt very, very strong on that

Federal case. And my prosecutive memo which was approved by

the Criminal Division of the Department of Justice proves that the

Department of Justice thought that Baron’s credibility in that case

was very strong.

Mr. HORN. Now, as I gather the history of it, the New England

Mafia, and others being the Deegan and DeSeglio murder trials,

Barboza was an unindicted co-conspirator whom they allegedly

tried to hire as the hit man to kill Marfeo. Unable to use the information obtained from illegal wiretaps of Patriarca’s headquarters

in Providence, the prosecutors had to rely on the testimony of

Barboza to obtain a conviction. Is that your recollection?

Judge HARRINGTON. That is true. That is true.

Mr. HORN. And there are quite a few here. You have got the

prosecution team along with yourself, Markum, Walter Barnes, and

Paul Rico and Dennis Condon were the two FBI agents largely responsible for convincing Barboza to testify in this case. On March

4, 1968, a jury found Patriarca, Tameleo, and Cassesso guilty and

a few days later they were each sentenced to 5 years in prison and

a $10,000 fine. You helped prosecute Patriarca, Henry Tameleo,

Ronald Cassesso for their involvement in the William Marfeo murder. Is that accurate?

Judge HARRINGTON. It is. It was a conspiracy to murder. The reason it was a Federal case is that, unlike the Deegan murder which

was carried out, the Marfeo case did not result in a murder of

Marfeo at that time. It was merely a conspiracy to travel interstate

to kill Marfeo and that is why it was tried in Federal court.

Mr. HORN. Barboza was not indicted for his involvement. What

deal was Barboza given in exchange for his testimony?

Judge HARRINGTON. Part of what he was granted was he was

named I think as an unindicted co-conspirator. He was not named

as a defendant. We made the promise that the extent of his cooperation would be brought to any sentencing authorities. We also

assumed the responsibility of after the termination of his testimony

that he would be relocated, provided a job, and obtain a new identity. And that process formed the basis for the Witness Protection

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Program which was later endorsed by the Congress of the United

States.

Mr. HORN. The Marfeo trial was really important, as our records

seem to show here. Raymond Patriarca was one of the highest

ranking Mafia bosses ever to be tried. The lead counsel in the case

said, ‘‘If we did not win, it would be all over.’’ And that was exhibit

No. 25, Mr. Chairman, to put in the record. If everything depended

on Barboza, you must have been very attentive to what was in the

Patriarca tapes and logs to make sure Barboza was telling the

truth; is that correct?

[Exhibit 25 follows:]

167

168

169

170

Judge HARRINGTON. It is correct, we were attentive to what was

in the logs. And he was I think the first of the Mafia leaders to

be convicted in the United States since I think Frank Nitti was

convicted in 1943.

Mr. HORN. Did you use any information obtained from the

Patriarca wiretap to help prepare for the Marfeo trial?

Judge HARRINGTON. We did not. That would have been tainted

evidence and that was one of the reasons we reviewed the 3-years

of logs of the Patriarca bug to ensure that we did not use anything

that would taint our case.

Mr. HORN. And I take it you did not get much testimony out of

Barboza, is that right? Because after the Deegan trial, the protective custody Witness Protection Program came about for Barboza.

Judge HARRINGTON. That is right. He indicated that he was willing to testify in three cases, one Federal and two State.

Mr. HORN. That is an interesting program the Witness Protection

Program. Was it created strictly for Barboza or was he the first one

in it?

Judge HARRINGTON. He was the first one and, as I indicated in

my opening statement, the experience gained in administering his

protection formed the basis for the Congress a year and a half later

to establish the program on a formal basis. And I still think the

program is in effect and is used quite successfully over the years.

Mr. HORN. Who defined the terms and the conditions of a person

in the program, let’s take Barboza, what was he supposed to get

out of this witness program?

Judge HARRINGTON. I think it was formulated by a unit within

the Organized Crime and Racketeering Section of the Criminal Division. At that time, I think it was, my memory is it was Mr. Jerry

Shur was in charge of the Witness Protection Program and maintained certain supervision of the members of the program throughout the United States.

Mr. HORN. Was Barboza’s going there to protect him from other

people in the Mafia, was that basically——

Judge HARRINGTON. We hoped that it would have. But it is obvious that later when Baron left prison he no longer was desirous of

being a member of the program and within 2 months he was assassinated by a Mafia hoodlum from Boston in retaliation for his testimony on behalf of the United States.

Mr. HORN. In the process, you all testified on behalf of Barboza’s

defense at the Clay Wilson murder trial, is that correct?

Judge HARRINGTON. That is correct, sir.

Mr. HORN. What was the situation there with Clay Wilson, had

he been involved or attempted to be using Barboza, or what?

Judge HARRINGTON. Would you please repeat the question.

Mr. HORN. Did the terms and conditions of the program really

require the Federal Government to assist and support Barboza in

his defense on any future crimes that he might commit?

Judge HARRINGTON. In October 1970, the Congress formulated or

established the Witness Protection Program. A few months prior

thereto was when it came to the Government’s attention that he

was involved in a killing. It was a time I think that the Government was desirous of doing all it could to assist Barboza in order

to protect the viability of the Witness Protection Program and, as

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I indicated previously, to send a signal to other potential accomplice witnesses that the Government would abide by its commitments.

Mr. HORN. Now you testified at the Clay Wilson murder trial, is

that correct?

Judge HARRINGTON. I did.

Mr. HORN. And what led you to that?

Judge HARRINGTON. It was a decision made by the Organized

Crime and Racketeering Section that we had to support the first

witness in the Witness Protection Program and one who had made

a singular contribution to the Government’s fight against organized

crime. It was a judgment made at the beginning of this effort

against organized crime. Whether 35 years later the same decision

would be made, I am not sure. But it was a unanimous decision

and a belief by all those who participated that it was in the best

interest of the United States.

Mr. HORN. You wrote a letter to the director of the parole board

for the Montana State Prison urging the board to consider parole

for Barboza. That is exhibit No. 26. Is it true that you wrote a letter?

[Exhibit 26 follows:]

172

173

174

Judge HARRINGTON. I have no memory that I wrote it, but I most

likely did. And not only did I write a letter in his behalf, but I was

assigned, even though I was in private practice, assigned by Attorney General Elliot Richardson to appear at the parole hearing

sometime in 1973.

Mr. HORN. In fact, you later testified on Barboza’s behalf before

the parole board, is that right? Exhibit No. 27.

[Exhibit 27 follows:]

175

176

Judge HARRINGTON. I did. The Attorney General, at that time

Mr. Richardson, asked me to come out of private practice because

I was aware of the Patriarca case and asked me to go to Butte, MT

to testify on his behalf.

Mr. BARR [presiding]. Does the gentleman have a final question

and then we will——

Mr. HORN. One final question. When was he moved to Santa

Rosa, CA?

Judge HARRINGTON. I remember that he finished his testimony

in the Deegan murder case sometime in the summer of 1968. I

think for some months he was sent to Fort Knox, KY, I would say

approximately 4 to 6 months, that is my best memory, and that

sometime in 1969 he was relocated by the Department of Justice

pursuant to the Witness Protection Program to Santa Rosa, CA.

Mr. HORN. I am just curious as a Californian why this nice little

town of orchards and blossoms and all that. He was put down in

the middle of it I take it, and here is a guy that has more than

20 murders. Whose great decision was that one?

Judge HARRINGTON. I think it was a joint decision by those—ultimately, I would think it was the head of the Organized Crime and

Racketeering Section of the Justice Department.

Mr. HORN. Thank you, Judge. We appreciate having you here.

Mr. BARR. Thank you. The gentleman from Massachusetts is recognized for 5 minutes.

Mr. DELAHUNT. Judge, I want to get back to that statement

about ‘‘throughout my tenure as a Federal prosecutor I never knew

the identity of an FBI informant.’’

Judge HARRINGTON. That is true.

Mr. DELAHUNT. And you also in your written statement indicated

it was also the policy of the FBI to protect the confidentiality of the

identity of informants to ensure their safety and thereby maintain

the FBI’s continued access to criminal intelligence. Why during

your entire tenure did you not know the identity of informants?

Judge HARRINGTON. Because I always considered myself a professional. I know this, that if any attorney for the Department of Justice or an assistant U.S. attorney ever asked an FBI agent the

identity of an informant, that not only would they not tell you but

they would lose confidence in you. Because in those days people

worked for the Government 3 or 4 years and then they would be

outside. So I would never ask and I was never told and I was not

interested.

Mr. DELAHUNT. Right. And that was the context of the time.

Judge HARRINGTON. Absolutely.

Mr. DELAHUNT. But we have learned a lot since, and I understand that. It was as if you were asking questions which should not

be asked.

Judge HARRINGTON. That is true.

Mr. DELAHUNT. As if the FBI implicitly did not trust you—I do

not mean you Ted Harrington, but you who were not part of that

particular agency.

Judge HARRINGTON. I think it is fundamental in order to have

a relationship with an informant, especially in the deadly world of

organized crime, that confidentiality of the identity has to be absoVerDate 11-MAY-2000 08:28 Jun 19, 2002 Jkt 000000 PO 00000 Frm 00184 Fmt 6601 Sfmt 6601 C:\DOCS\78662.TXT HGOVREF1 PsN: HGOVREF1
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lutely maintained and any breech thereof would have I think dire

consequences.

Mr. DELAHUNT. I would suggest that the time has come to reassess that. That those who benefit from their status as informants

and their status as accomplice witnesses, in the case of accomplice

witnesses it is revealed, but over the course of the past several decades, particularly in Boston, there has been misconduct, there have

been indictments of FBI agents. Because of the court order in the

decision and the opinion rendered by Judge Wolf, information was

revealed which I suggest is eroding the confidence not only of the

FBI, but of our system of justice. It is unfortunate.

We have members of the U.S. Senate describing a culture of concealment, a culture of arrogance within the agency. You heard the

Chairman today in his remarks directed to the Department of Justice. And this is not just peculiar to the Boston area. It really goes

I believe to the heart of our system. Because by that concealment,

and there is a series of reports filed here by Special Agent Rico

that clearly would have exculpated Joseph Salvati, that you never

had knowledge of and, according to press reports, neither did Assistant District Attorney Jack Zalkind have knowledge of, and I am

confident that if Mr. Zalkind had knowledge of it, if you had knowledge of it, the miscarriage of justice that occurred in that case

never would have occurred. He lost 30 years because of a culture,

because of an attitude. And, yes, I respect the need for confidentiality, I think it is really important. But it is about time that culture

change. It ought to be considered as a check and balance, if you

will. There is not a U.S. attorney that I am aware of that is not

an individual of appropriate ethics that would never risk the life

or the personal safety of an individual.

But there has to be oversight of the FBI and there is none today.

In fact, Judge Wolf, before the names of Bulger and Flemmi were

revealed, Judge Wolf, whom you served with and continue to serve

with, had to threaten the Deputy Attorney General of the United

States with contempt before they did it. That is wrong. That is

wrong. And Mr. Horn was asking the question of how Joe Barboza,

who was an animal, ended up in a community and committed another crime, committed a murder. I do not know if you are aware,

Ted, but two of the investigators in the homicide investigation of

Mr. Wilson are present here, yesterday they testified that they had

no idea that Joe Barboza was in their community. And here is

someone who was acknowledged by J. Edgar Hoover to be one of

the most vicious of criminals in the annals of criminal justice, and

he committed a murder there. I think we can presume that because

he pled guilty to it.

There has to be a policy, since it is this Congress that makes policy, there truly in my opinion has to be a hard look at the FBI as

an agency and its appropriate role and function in a democracy. I

understand in the early 1960’s Bobby Kennedy was there and there

was a zeal to get organized crime. It has been part of our history

of the ‘‘red scares,’’ if you will, the ‘‘blacklisting,’’ etc. But what

America is about, and I think you agree with this, sure, we are

about public safety, but we are about individual rights and not seeing injustices done. It has been painful to sit here over the past 4

or 5 months and see what has happened to people like Joe Salvati

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and his wife and his children and his family. It is painful. And here

we are today, the chairman of this committee has to threaten the

Department of Justice to get information. I will give you an opportunity to examine the exhibits in this case.

And let me ask Mr. Bybee, these are the redactions that we are

talking about. This is exhibit No. 15, March 19, 1965, Mr. Chairman. Someone thought it was necessary to redact the following— if the staff could provide Mr. Bybee, Mr. Harrington, if you could

provide him. What was so important, Mr. Bybee, if you know, to

redact the name of the Director of the FBI? Is that some state secret?

[Exhibit 15 follows:]

179

180

181

Mr. BYBEE. Congressman, the ‘‘F’’ next to that I understand indicates that that was an administrative designated file number and

that is what has been redacted from there is the file number.

Mr. DELAHUNT. God forbid if we should get those file numbers.

Mr. BYBEE. I understand, Congressman.

Mr. DELAHUNT. Now from the SAC Boston ‘‘P’’—is that another

administrative file number?

Mr. BYBEE. I do not know what the ‘‘P’’ would indicate.

Mr. DELAHUNT. Was that a national security interest that required the redaction of that name?

Mr. BYBEE. Well, the FBI when it provides these documents

there are certain things that we have to designate, some things are

for national security, some things are because we have confidential

informants, some—— Mr. DELAHUNT. Is it confidential the name of the FBI Director

and the name of the Boston Special Agent in Charge in March

1965?

Mr. BYBEE. Congressman, I have not seen this document in its

original form. Again, from the code that is on there, I believe that

would not disguise the name of the Director of the FBI J. Edgar

Hoover, but it would have been a file number.

Mr. DELAHUNT. I only point this out because it is absurd, isn’t

it. This is truly absurd. This gives credence to everything that

Chairman Burton has said, everything that Senator Grassley has

said, everything that a variety of Members of Congress have said.

This is about a culture of concealment. And when you operate in

this level of secrecy without any transparency whatsoever you become very susceptible to the miscarriages of justices that have occurred in this case. And here we have the prosecuting attorney

back in the 1960’s, sure, I know he is reflecting the attitude you

did not dare ask the FBI the name of an informant because they

would have believed that you were going to do something nefarious

with it. Times are changing and the FBI has to be held accountable

and that culture has to change.

This is totally unacceptable. We have a series of documents here

that are going on 40 years old that have no relevancy whatsoever

to any investigation that I am aware of that are redacted in a way

that just—imagine getting this document being a Member of Congress trying to make some decisions as to public policy. Again, the

Director of the FBI is redacted—this is exhibit No. 16, Mr. Chairman—and the SAC in Boston is again redacted. I mean, this could

not have happened in the Soviet Union. I bet they do better in

Iran. Look at that. Who made the decisions, Mr. Bybee, about the

redaction?

[Exhibit 16 follows:]

182

183

184

185

Mr. BYBEE. Congressman, now that I have a copy of the document, again the ‘‘F’’ next to the SAC Boston is a file number. It

is a routine redaction by the FBI.

Mr. DELAHUNT. OK. Let’s go up to the Director of the FBI, no

number there, no letter there.

Mr. BYBEE. I do not know whether the ‘‘F’’ up there indicates

that would be also part of a file number or not, I do not know. I

do not think that we would see any reason for us to hide the name

of the Director of the FBI.

Mr. DELAHUNT. Right.

Mr. BYBEE. The ‘‘M’’ down there indicates that it was irrelevant

to the request from the committee.

Mr. DELAHUNT. Irrelevant. You made the decision that it was irrelevant to the request of the committee?

Mr. BYBEE. Well—— Mr. DELAHUNT. Can I ask this, who makes these decisions as to

redactions?

Mr. BYBEE. Congressman, there is a—— Mr. DELAHUNT. Is there a special redaction room? [Laughter.]

Mr. BYBEE. No. There is a Civil Discovery Review Panel over at

the FBI that responds to all of these requests.

Mr. DELAHUNT. A what kind of panel?

Mr. BYBEE. There is a review panel, a Civil Discovery—— Mr. DELAHUNT. What are the names of the—— Mr. BYBEE. I do not have their names.

Mr. DELAHUNT. Can you provide the committee with the names

of those people?

Mr. BYBEE. I am not sure. I will see whether we can provide you

with those names.

Mr. DELAHUNT. Because that might violate some sense of national security too?

Mr. BYBEE. Well, Congressman, we are happy to respond on the

documents and try to get you the information that you need. But

we do not generally provide the names of attorneys or other employees of the Department or the FBI who are involved at a much

lower level.

Mr. DELAHUNT. Un-huh. Well I—— Mr. BARR. Would the gentleman yield?

Mr. DELAHUNT. I yield to the Chair.

Mr. BARR. Certainly, if the chairman asked you for those names,

you would have no problem furnishing them to the chairman.

Mr. BYBEE. Again, Congressman, if we are talking about providing you with the names of line attorneys, that is not something

that we ordinarily provide simply because we want our people to

be able to provide us with candid advice and not be subject to inquiry by Congress. We are happy to provide the

decisionmakers——

Mr. BARR. This is candid advice, what you just said, if routine

redactions require candid advice such as might require the invocation of executive privilege, where would it end, Mr. Bybee?

Mr. BYBEE. Well, Congressman, let me see if I can back up.

When the committee sends us a request for documents we have to

exercise some kind of judgment as to what is responsive to you and

what is not responsive to you. You do not want us dumping all of

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the files of the Department of Justice that are found in Boston.

That would bury all of us. It would not serve you, it would not

serve us, it would not serve any purpose to do so.

Mr. BARR. I do not believe, staff correct me, I do not believe that

was the request, that every document—— Mr. BYBEE. No. But what I am getting at, Congressman, is that

when we get a request from the committee we have to exercise

some kind of judgment as to what is responsive and if there are

matters that are not responsive—— Mr. BARR. Hold on just a second. I think all the gentleman from

Massachusetts is saying is if we then have a subsequent possible

argument over your, the Department’s judgment, we might like to

know who it was that made that judgment so we can get to the bottom of it. And you are saying even that information would be protected and would not be provided to the committee.

Mr. BYBEE. Well, again, we do not ordinarily make the—we can

make the decisionmakers, the ultimate policy decisionmakers at

the Department or the FBI available to talk with the committee.

But we generally do not make our line attorneys, whether that is

an assistant U.S. attorney, or it is an attorney in the Federal

program—— Mr. BARR. I do not think the gentleman from Massachusetts is

arguing with the general policy. We are saying that in a situation

where there is a specific request from the committee, the committee Chair and there is a potential disagreement, what is there that

is so secret or would do great injustice to the policies of the Department or its ability to carry out its legitimate functions by providing

the names that Mr. Delahunt is asking for?

Mr. BYBEE. Well, Mr. Chairman, if you want to make that request, I will certainly take it back to the Department. If you want

to challenge the information that has been omitted here, then

again we will be happy to discuss that with you—— Mr. BARR. Well, thank you very much. That is very big of you.

Mr. DELAHUNT. Reclaiming my time for a minute. It is interesting that we can challenge what we do not know. Because we do not

know obviously what information is redacted, do we? And that puts

the member of a committee that has oversight jurisdiction at a

somewhat disadvantage. Would you agree with that, Mr. Bybee.

Mr. BYBEE. Congressman Delahunt, that would be true of any

document that we did not provide to the committee.

Mr. DELAHUNT. Right.

Mr. BYBEE. Some judgment would have to be exercised as to any

document in our possession.

Mr. DELAHUNT. But then you make the statement that if the

committee or a member wishes to challenge the information that

is redacted, then proceed. That is similar in my mind to what two

families are experiencing in Massachusetts today. The family of

one McIntyre, I think his name is James or William, where it is

claimed, it is alleged that he was murdered as a result of the misconduct of the FBI providing information to Mr. Bulger and Mr.

Flemmi. The family, the estate then proceeds to file a civil suit

against the Government. The Government’s response is you should

have known about it, it was in the newspaper. Without any access

to the documents, without any access to any of the information. My

187

colleague from Massachusetts, Mr. Frank described that action as

representative not of a Department of Justice but a Department of

Litigation.

Recently, it was brought to my attention that another family is

experiencing the same response. They filed a claim but the claim

was too late because they should have known somehow without access to information that the deceased in their family, who was also

allegedly murdered because of information provided by FBI agents,

appeared in the newspaper. What is happening? Are you familiar

with those cases?

Mr. BYBEE. I am not, Congressman.

Mr. DELAHUNT. Well, I know myself and Mr. Meehan and Mr.

Frank sent a letter and we got no response.

I will yield.

Mr. BARR. I thank the gentleman from Massachusetts.

Judge Harrington, going back to the prosecution of Patriarca,

there has been discussion of the Marfeo case which was a Federal

case, as I understand it, because it involved a conspiracy to travel

across State lines to commit murder.

Judge HARRINGTON. That is correct.

Mr. BARR. In the Deegan prosecution, Barboza and Flemmi went

to Rhode Island to ask Patriarca’s permission to kill Deegan and

then they went back across State lines to kill Deegan in Massachusetts. Why was a Federal case against Patriarca not brought for

the Deegan murder?

Judge HARRINGTON. Because the object of the conspiracy, the

killing of Marfeo, was not completed at that time. He was killed

sometime later as a result of another conspiracy. The Patriarca

case and so-called Marfeo conspiracy was brought federally because

the object was not attained, therefore we tried that as a travel act

case in Massachusetts. Whereas in Deegan and in DeSeglio the

murder was accomplished, therefore at that time it had to be a

State prosecution.

Mr. BARR. So you are saying that according to the case law at

that time, if the object of a conspiracy which was a murder was actually carried out, the case could not be brought federally, but if

the object of the conspiracy was somehow frustrated or thwarted or

was not carried out that it could be. Are you saying that?

Judge HARRINGTON. No. What I am saying, sir, is that the

DeSeglio and Deegan cases involved murders, therefore they had to

be tried in State court.

Mr. BARR. But they also involved interstate travel in support of

a conspiracy to commit murder.

Judge HARRINGTON. I know, but you would not prosecute someone for conspiracy to commit murder where you could get 5 years

at that time when you could prosecute them for murder in the

State court. That is what was done. With respect to the Marfeo

case, that conspiracy was a conspiracy to travel interstate under

Title 18 United States Code 1952 to commit the murder which was

not accomplished at that time. Therefore, since there was no murder case that we had information on with regard to Willie Marfeo,

we proceeded under the travel act and the conspiracy to violate it.

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Mr. BARR. Was there any consideration given to prosecuting

Patriarca federally for the Deegan murder, the conspiracy relating

thereto?

Judge HARRINGTON. To prosecute Patriarca federally? No, there

was not because the Deegan murder case was developed and prosecuted by State authority, not by the Federal authority. It was a

murder case. The State had jurisdiction. The Federal Government

did not.

Mr. BARR. Well, the Federal Government could have on the conspiracy if nothing else, interstate travel in support of——

Judge HARRINGTON. But you would not have split the case if it

even had been considered. It was a murder case. Deegan was dead.

Garrett Byrne was going to prosecute it.

Mr. BARR. Who killed him?

Judge HARRINGTON. Who killed who?

Mr. BARR. Deegan.

Judge HARRINGTON. The jury found the seven defendants plus,

my understanding, that there were other people who were involved

in it who died prior to the prosecution.

Mr. BARR. Mr. Salvati did not kill him, right?

Judge HARRINGTON. I cannot make a judgment with regard to

that. I did not try the case. Why ask me that question? I had nothing to do with it. I have read the opinion and I know, as I said in

my statement——

Mr. BARR. As we sit here today, Mr. Salvati—would you stand

please, Mr. Salvati—who spent 30 years in jail for a crime he did

not commit, you are still not willing to say as you sit here today

that this man is innocent, you still think he might have been guilty

of that murder?

Judge HARRINGTON. Here is what I say. I am not accusing this

man. But I do not think I can make that opinion. But I say this.

If he is innocent, I sympathize with him. And if through any inadvertence that my conduct did to cause problems with him and his

wife and his family, I am immensely sorry. But I will tell you at

that time I considered myself conducting myself with competence

and with integrity and I thought I was making a great contribution

to the Government’s fight against organized crime.

Mr. BARR. Do you realize now that swept up, that zeal to prosecute mafioso, swept up an innocent man and caused him to spend

30 years in jail?

Judge HARRINGTON. If that is so, I am extremely sorry. But I was

not there. All I have done in the last 6 or 8 weeks, maybe 6 weeks,

read the opinions on that case. And I would say that because of

people like Dan Rea and other people who believe in his innocence,

there is no doubt that I have some doubt at this time, at least with

respect to Mr. Salvati. But I did nothing knowingly, willfully, or

even through inadvertence to cause him the injustice that at least

he believes and other people believe was rendered against him.

Mr. BARR. Thank you, Mr. Salvati. On December 20th of last

year you told our staff that you did not believe that any of the

Deegan defendants were innocent. Why did you reach that conclusion, and that includes Mr. Salvati?

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Judge HARRINGTON. Because I read the Supreme Judicial Court’s

opinion. I knew that Baron had been corroborated by three other

witnesses in part.

Mr. BARR. So you believed Barboza?

Judge HARRINGTON. Yes, I did. And in addition, I knew the background of the hit. I understood, without going into all the details

of why Deegan was killed and why his two associates, Hannan and

Delaney, were hog-tied and killed, there was one clear thing—it

was a sanctioned hit.

Mr. BARR. We can all agree that these were bad guys.

Judge HARRINGTON. I am not saying they were bad guys. I am

saying it was a sanctioned hit. And a sanctioned hit means two

things—it meant it was approved by Raymond Patriarca and

Henry Tameleo in Providence and it was concurred in by Gennaro

Angiulo and Peter Limone in Boston.

Mr. BARR. And we also know that Mr. Barboza had told the Government that he would never testify in a way that would result in

Mr. Flemmi, who was truly culpable, being found guilty.

Judge HARRINGTON. I understand that.

Mr. BARR. Well then how can you continue to this day to profess

such great confidence in Mr. Barboza and yet there is still doubt

in your mind that Mr. Salvati is innocent? I am trying to get at

what is there about Mr. Barboza that he has this hold on you all,

that even in his death you still——

Judge HARRINGTON. I am just saying that he was a strong witness, he carried a lot of baggage but he was corroborated, and the

fact that——

Mr. BARR. But you know he lied.

Judge HARRINGTON. I do not know that. I always believed, I always believed that Baron was telling the truth. Whether he lied,

now in retrospect I am not sure. But I believed firmly in his testimony.

Mr. BARR. But he told the Government on March 8, 1967 that

he was going to lie. He said I will give you information on murders

but I am not going to say anything that would put Flemmi in jail.

And yet then they testify later and put this man in jail. I mean,

if that is not a lie, Judge, what is?

Judge HARRINGTON. Well, the fact of the matter is, according to

Commonwealth v. Limone that the Superior Court rendered in the

year 2001, the judge in that case who reviewed the entire trial

transcript in the Deegan murder case, which I have never done,

testified that Baron testified—no, the judge cited in her opinion

that Baron testified that Flemmi was involved in the scheme to kill

Deegan. The fact that he was not indicted was a decision made by

the prosecutors.

Mr. BARR. By the Government.

Judge HARRINGTON. Not by the Government. By the State prosecutors.

Mr. BARR. That is the Government.

Judge HARRINGTON. Well it is not the Federal Government.

Mr. BARR. I did not say Federal Government. It is the Government. The Government made a decision not to prosecute him because they wanted to protect Barboza and they did not care whethVerDate 11-MAY-2000 08:28 Jun 19, 2002 Jkt 000000 PO 00000 Frm 00197 Fmt 6601 Sfmt 6601 C:\DOCS\78662.TXT HGOVREF1 PsN: HGOVREF1
190

er an innocent man went to jail in order to protect him in order

to go after these other folks.

Judge HARRINGTON. All I can say, Congressman, that decision

was not made by the Federal——

Mr. BARR. But you do agree that is an accurate statement?

Judge HARRINGTON. I agree that the Federal Government, the

U.S. Attorney’s Office did not make the decision whether to prosecute James Flemmi in the Deegan murder case.

Mr. BARR. The gentleman from Massachusetts.

Mr. TIERNEY. Thank you. Judge, in 1970 there came a point in

time where you became aware and I think others with the FBI and

the prosecutor’s office that attorney Bailey was representing Mr.

Barboza and there were indications that he was ready to recant his

testimony and that, in fact, he had signed an affidavit and there

was speculation that he was going to take a lie detector test. Do

you recall that period in time?

Judge HARRINGTON. I remember the time period. I remember

that what Baron advised me as to who Mr. Bailey was representing.

Mr. TIERNEY. And that was?

Judge HARRINGTON. He was representing Barboza and he was

representing other interests.

Mr. TIERNEY. Which were?

Judge HARRINGTON. The organization.

Mr. TIERNEY. And you found this out on a visit that you made

to Mr. Barboza while he was imprisoned at around that time?

Judge HARRINGTON. Joseph, according to my memorandum of

that date, Joseph Barboza requested that Walter Barnes, the head

of the Strike Force at that time, and Dennis Condon go down to

see him at Walpole. I accompanied Mr. Barnes.

Mr. TIERNEY. Why?

Judge HARRINGTON. Because we were requested to go down and

see him. He wanted to see us.

Mr. TIERNEY. Now you say that you have a memorandum of that

occasion?

Judge HARRINGTON. I have and it was attached to my opening

statement.

Mr. TIERNEY. Did you make any personal notes of that visit?

Judge HARRINGTON. Yes. As soon as I came back, Barnes and I

wrote a memorandum of our interview with Joseph Baron to James

Featherstone, Deputy Chief, Organized Crime and Racketeering

Section, and I indicate at the last paragraph that Garrett Byrne

was so advised.

Mr. TIERNEY. Now those documents were in your possession all

this time, or they have been given to you recently?

Judge HARRINGTON. I think it was given to me by, I think, by

members of the staff of this committee. I really had no, I do not

think I had, no memory of this. Like I did not have a memory of

my pros memo when I spoke with the staff, I do not know whether

I had a memory of this.

Mr. TIERNEY. Would that be the only document that you prepared as a result of that visit?

Judge HARRINGTON. Yes, it was.

191

Mr. TIERNEY. Now flashing back to the California Clay Wilson

scenario when you went out there and visited Mr. Barboza in jail

prior to that prosecution, did you file a report or any other written

documentation of that visit?

Judge HARRINGTON. I do not recall any but I am sure I reported

to my superiors at the Department of Justice that, in essence, it

was not a frame, Baron was——

Mr. TIERNEY. But you would have put that report in writing, is

that correct?

Judge HARRINGTON. I do not know whether I put it in writing

or—we were, in those days we were in constant communication

with Washington. Our superior, the Deputy Chief, Mr.

Featherstone, we talked to him three or four times a day. I do not

know whether I put it in writing or not.

Mr. TIERNEY. Well wouldn’t it be your general practice that when

you go on official business and you have an appointment with

somebody and do an interview that you would commit that to writing in some fashion, either file it in your office files or send it to

Washington, or both?

Judge HARRINGTON. I very well could have. But I just have no

memory of doing it. But I know that I reported to Featherstone the

result of my trip to see Baron in California.

Mr. TIERNEY. Was it your practice, Judge, at that time generally

to file that kind of report after meeting with somebody to interview?

Judge HARRINGTON. I suppose it would be.

Mr. TIERNEY. When you met with Mr. Barboza in Boston at the

time of the reported recantation, what transpired during that meeting?

Judge HARRINGTON. You mean at Walpole?

Mr. TIERNEY. That is correct.

Judge HARRINGTON. It is set forth in detail.

Mr. TIERNEY. But generally for us, if you would.

Judge HARRINGTON. Well, the main thing is that he said that he

was being paid by money funded by the mob to induce him to

change his testimony, that his testimony in the Deegan case was

truthful and that any recantation would have been perjurious.

Mr. TIERNEY. And what did anybody, either you or the others

from the Government side, say to him?

Judge HARRINGTON. My only memory of that entire interview is

contained therein. I would like to find out what I did say. But what

transpired on that meeting is fully reported in this memorandum.

Mr. TIERNEY. Which was prepared simultaneously with your return from that visit?

Judge HARRINGTON. As soon as I returned. In fact, it does show

there in the first paragraph that Baron requested in writing to

speak to Barnes and Special Agent Dennis Condon. My memory of

the interview with Baron on that date is contained in that memorandum.

Mr. TIERNEY. Did anybody tell him not to go forward with his lie

detector test and not to go forward with his affidavit or recantation?

192

Judge HARRINGTON. I did not, nor anybody in my presence. Because the only two who went down was, my memory, although he

asked for Condon, I accompanied Barnes down there.

Mr. TIERNEY. And the fact of the matter is that shortly after that

visit, however, Mr. Bailey was fired and there never was a recantation and there never was a lie detector test, as far as you know,

right?

Judge HARRINGTON. He had already signed his recantation.

Mr. TIERNEY. The affidavit.

Judge HARRINGTON. The affidavit.

Mr. TIERNEY. But after that visit that you made, Mr. Bailey was

fired and there was no further action on that. Is that correct?

Judge HARRINGTON. There were hearings on motions for new

trials.

Mr. TIERNEY. But no lie detector test?

Judge HARRINGTON. No lie detector test.

Mr. BURTON. Would the gentleman yield real quickly.

Judge, your memory is remarkable on most issues, except you

cannot remember that 5 month period when you were trying to get

Patriarca, you were trying to nail him and you heard that bugged

conversation where he gave his OK to murder Deegan. You have

forgotten that. But your memory is very, very good on all this other

stuff.

Judge HARRINGTON. Well, I will tell you this, as I indicated previously, I have spent the last 6 weeks refreshing my recollection

with respect to a matter that occurred 35 years ago because I wanted when I came down here, I was invited down and I was happy

to come, to provide you, Mr. Chairman, with as much information

as I had.

Mr. BURTON. I appreciate that. But it just seems strange to me

that when you were after the head of the mob and you heard him

give the OK to murder somebody that you would forget that in 5

months. But sometimes our memories do slip. And you being a

judge, I am sure that you have a lot on your mind.

One thing I want to followup on. Now Mr. Bailey, who you say

was representing the mob, I presume, or the organization in addition to——

Judge HARRINGTON. Well, Baron told me he was representing

Raymond Patriarca.

Mr. BURTON. OK. And you believed this man who killed 27 people? I am sure he would not lie to you.

Judge HARRINGTON. Well somebody was paying him the money.

Baron said he was receiving money as an inducement to recant.

Mr. BURTON. OK. So Mr. Bailey is about to have him take a lie

detector test, and then you go see Mr. Barboza without telling his

counsel, without telling the prosecuting attorney you are there

until after you have talked to him, and he immediately changes his

mind and does not take the lie detector test. Did you say anything

to him at all about that lie detector test?

Judge HARRINGTON. I did not.

Mr. BURTON. You did not. Was anybody else there besides the

two of you when you talked to him?

Judge HARRINGTON. Barnes and I were there and we said nothing with respect to the lie detector test.

193

Mr. BURTON. Barnes and you?

Judge HARRINGTON. Yes, Barnes and I.

Mr. BURTON. Who is Barnes?

Judge HARRINGTON. Barnes was the attorney in charge of the

Strike Force at that time.

Mr. BURTON. And he went with you when you went to see

Barboza?

Judge HARRINGTON. He was called—Baron asked him to come

down.

Mr. BURTON. So that when you went to the prison he was with

you?

Judge HARRINGTON. That is right. And we both prepared that

memorandum.

Mr. BURTON. I see. And the two of you never mentioned anything

about the lie detector test?

Judge HARRINGTON. Baron mentioned the lie detector test. He

said as soon as I do a lie detector test for Bailey, I will be killed.

And he said he would not do it because—well, it is contained right

in the paragraph.

Mr. BURTON. And you did not encourage him in any way?

Judge HARRINGTON. I did not.

Mr. BURTON. OK.

Mr. TIERNEY. Thank you, sir. Judge, where do our prosecutors in

the Government draw the line of where an informant’s value is outweighed by the potential harm that would be done by protecting

that witness in a particular situation?

Judge HARRINGTON. It is a judgment call. But you have to put

yourself back in the context of 35 years ago.

Mr. TIERNEY. Can I interrupt. Just policy-wise going forward, I

am really asking for your judgment on today’s situation. And knowing what you know now, if we were crafting policy or reviewing the

situation, what process should exist for reviewing those situations

where those kind of decisions must be made and how do we go

about making sure that any determination is done properly and

has appropriate scrutiny and review before a situation arises that

we might regret later?

Judge HARRINGTON. I think you would have to weigh two factors.

On the one hand, the quality of the intelligence. And on the other

hand, the type of criminal activity that the informant must, by definition, be engaged in.

Mr. TIERNEY. And who would you have making that determination?

Judge HARRINGTON. I think that the FBI should make that decision under rules propounded by the Congress of the United States,

as Mr. Delahunt so eloquently professed.

Mr. TIERNEY. Would you have anybody in the Justice Department other than the FBI reviewing the determination or overseeing

that, or would you leave it with the agency?

Judge HARRINGTON. I do not know, I am not an expert in that

area. But I think that in the investigation of crime and the cultivation of intelligence that is an investigative function and not a legal

decision. But I could be wrong.

Mr. TIERNEY. My curiosity on that is how do we find out or how

do we make sure that relationship between the informant and the

194

FBI agents who are supposedly working with them does not become so cozy that it creates a problem, and that if there is no other

person or entity reviewing what is going on we end up with a situation that we may well have—or it looks like we do have here—a

couple of rogue agents out there getting too close and causing us

all sorts of difficulty?

Judge HARRINGTON. Maybe you could have a unit in the Department of Justice, people who might review that type of decision.

Mr. TIERNEY. Hopefully, not the same one that reviews documents. But let me ask another question. How would you describe

your relationship with Baron or Barboza?

Judge HARRINGTON. I think I had a good relationship with him.

Mr. TIERNEY. What was your responsibility professionally with

respect to the Department and his activities?

Judge HARRINGTON. Well, I was involved with the prosecution of

the Federal case. I was kind of a liaison with the Marshal’s Office

and the District Attorney to ensure his protection and his transportation for purposes of trial. So I had a relationship with him.

Mr. TIERNEY. Did you have regular contact with him?

Judge HARRINGTON. Not regular. During that period of time he

was guarded by 16 marshals in a mansion on an isthmus or tangent out in Gloucester and periodically Paul Markum, Walter

Burns and I, who were the prosecutors on the Patriarca case,

would go up and speak to him about the testimony in the Federal

case.

Mr. TIERNEY. Would you say that you were closer to him than

the other gentlemen that you mentioned, Barnes and Markum?

Judge HARRINGTON. I think we were all close to him but I think

he liked me better. And I think the reason might be because Joseph Barboza came from New Bedford, MA, I came from Fall River,

MA, both of them are in southeastern Massachusetts, and we had

I think a little regional rapport.

Mr. TIERNEY. Did you have anything to do with his whereabouts,

his travels, or his eventual situation where he was imprisoned on

the Wilson murder and then eventually ended up on the street in

a relatively short period of time? What was your involvement with

him or with that process where he got sort of run through the system and out?

Judge HARRINGTON. I think that I testified in the Wilson murder

case, as I have testified here, about his extent of his cooperation.

I think I most likely was in contact with the Parole Board and I

know that I testified before the Parole Board.

Mr. TIERNEY. In California?

Judge HARRINGTON. He was transferred from California to Montana.

Mr. TIERNEY. Did you arrange for that transfer?

Judge HARRINGTON. I do not want to say yes or no. I have no

memory of what happened. But at that time, you have got to

realize—— Mr. TIERNEY. No, no, I understand that there were other

things—— Judge HARRINGTON. But I think, to tell you the truth, my best

memory is that the authorities in California wanted to get him out

of that area because of the risk that he would be assassinated in

195

prison because of his cooperation with the Government against the

organization.

Mr. TIERNEY. Is there any potential that he called you and he

asked you to help him go somewhere else?

Judge HARRINGTON. I have no memory of that.

Mr. TIERNEY. But it would have been the kind of relationship

that you had with him?

Judge HARRINGTON. I will tell you this, I do not recall contacting

the authorities in California to have him transferred to Montana.

I could have done it. It would have been standard practice if we

thought he was going to be killed in California. I just have no

memory of it.

Mr. TIERNEY. How did it end up that you ended up in Montana

testifying in front of the Parole Board?

Judge HARRINGTON. Because Elliot Richardson called me while I

was in private practice and asked me to go out there because I was

involved with Baron in the Patriarca case and had some connection

with him and knew his contribution to the Government in its fight

against organized crime.

Mr. TIERNEY. And Mr. Richardson’s position at that time?

Judge HARRINGTON. He was Attorney General of the United

States.

Mr. TIERNEY. And he personally called you and asked you to go

up there?

Judge HARRINGTON. I do not want to say that he personally did.

But I was advised that the Attorney General, and I must have got

some authority because I was not a member of the Department of

Justice, he reinstated me to be a Special Attorney for the purposes

of that trip.

Mr. TIERNEY. And then you went up there with the intention

that your testimony would be helpful to Mr. Barboza’s cause?

Judge HARRINGTON. Absolutely.

Mr. TIERNEY. And last, why would you suspect, as was reported

I guess in the Hartford Current by a gentleman named Edmund

Mahoney who wrote an article back on February 10th of this year,

‘‘When Barboza wrote his book, ’Barboza,’ it was billed as the nakedly brutal story of his life in crime and he dedicated it to Edward

Harrington with respect.’’

Judge HARRINGTON. What is your question?

Mr. TIERNEY. Did you have that great a relationship with the

man?

Judge HARRINGTON. He must have liked me.

Mr. TIERNEY. Thank you.

Mr. BURTON. You know, Barboza did like you. I am not sure I

would want to brag about that too much. He murdered at least 27

people even if he did come from your neck of the woods. And he

wrote you a nice letter saying, you know, I did not even have to

say one word to the parole board. Here is a guy that murdered Wilson while in the Witness Protection Program. You go out and testify on his behalf along with two FBI agents. The guy does not get

the death penalty, they plea bargain and he gets 5 years in prison,

goes to Montana, and his defense attorney says it was like a country club because he was calling him all the time, he was smoking

pot, and he was just living the life of Riley. And then he writes to

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you and says the parole board said this is the ‘‘fastest hearing in

the history of Montana’’ that I made parole, ‘‘I did not even say one

word.’’ Do you know, you did a great job. He really was your friend.

You did a great job for him.

Mr. Horn.

Mr. HORN. Thank you, Mr. Chairman. Judge Harrington, let me

go into just a couple of other exams. Prior to Condon’s testimony,

moving to that, was he restricted in any manner by the FBI or the

Department of Justice authorities regarding what information related to the Deegan murder you could reveal? The information is

in our records from the Patriarca tapes or either from FBI informants. Did you have a chance to look at that material?

Judge HARRINGTON. Is your question, did I have a chance to look

at the logs from the Patriarca bug? If that was your question, yes,

I did in preparation for my prosecution memo.

Mr. HORN. OK. And what did you think of Condon’s testimony?

Judge HARRINGTON. Think of what?

Mr. HORN. What did you think about the testimony of Condon?

Judge HARRINGTON. At the Deegan case, or in the Shore case?

Mr. HORN. This would be the Deegan trial. Condon testified

there and prior to his testimony in the Deegan murder case that

he received permission from the Department of Justice.

Judge HARRINGTON. I do not know whether he received permission. I assume that he did because that was the practice at that

time. I do not know what Condon testified to in the Deegan murder

case, so I cannot evaluate the quality of his testimony.

Mr. HORN. Were you involved in that decision as to whether

Condon would testify or not?

Judge HARRINGTON. I was not.

Mr. HORN. OK. Let me move then to, prior to that, was he restricted in any manner by the FBI or the Department of Justice authorities regarding what information related to the Deegan murder.

Could you reveal any of that for us?

Judge HARRINGTON. All I can say is that at that time, and I

think even today, when a Federal witness is asked to testify in a

State trial he testifies under explicit written authorization of the

Attorney General and must contain his testimony within the ambit

of that authority.

Mr. HORN. Now Mr. Condon then, did he use the Patriarca tapes

or were they using FBI informants?

Judge HARRINGTON. Again, I do not know what Mr. Condon testified to in the Deegan murder case. So I cannot answer your question, sir.

Mr. HORN. Prior to Condon testifying, did you review with him

the Deegan murder information that was obtained from the FBI’s

secret monitoring devices or from the FBI informants?

Judge HARRINGTON. I had absolutely—absolutely—no involvement in the Deegan murder case.

Mr. HORN. Did you perceive any ethical obligation to ensure that

all the information developed by you and other Federal sources indicated that some of the Deegan defendants, Mr. Salvati, or Greco,

Tameleo, and Limone, were innocent and were they provided to the

Suffolk County District Attorney’s office at the time of the Deegan

trial? If not, why not?

197

Judge HARRINGTON. I know, or I believe from reviewing the

record that no orders issued from the State court. And I had no involvement in it. So I gave no advice to anyone with regard to that

matter.

Mr. HORN. On another part of this interesting parade. Jimmy

Flemmi before the grand jury, did he ever testify before a grand

jury regarding the Deegan murder?

Judge HARRINGTON. Not that I know of.

Mr. HORN. Was he called before the grand jury to give him

cover?

Judge HARRINGTON. At the early stages, after Baron was turned

in March or early April 1967, James Flemmi and a fellow by the

name of Fabiano were brought in to speak with the FBI in an attempt to see if the FBI could turn them. My understanding is, I

did not talk with Flemmi, but my understanding from talking with

the Bureau agents is that he was unwilling to turn State’s evidence

and that he was put before the grand jury in a pro forma manner

so as to provide him with an excuse when he returned to prison.

Mr. BURTON. Would the gentleman yield real briefly. Was this a

Federal or State grand jury?

Judge HARRINGTON. Federal.

Mr. BURTON. Federal.

Mr. HORN. Did you put Jimmy Flemmi before the grand jury?

Judge HARRINGTON. I did.

Mr. HORN. And we have been told that he was brought before a

grand jury in order to give him cover, and that is what we are curious about.

Judge HARRINGTON. By the term ‘‘cover,’’ Congressman, it meant

that he would be able to advise his prison associates that he was

brought in to the U.S. Attorney’s Office because of his testimony

before a grand jury, where the real purpose was to talk with FBI

agents to see if they could turn him.

Mr. HORN. Let me mention Jack Zalkind, is that—— Judge HARRINGTON. Jack Zalkind.

Mr. HORN. Zalkind. He refused to cooperate with the committee

and was the prosecutor in the Deegan case. His assistant has

signed an affidavit that he had exculpatory evidence at the time of

the trial and that evidence was not turned over to the defense. Do

you know whether Zalkind had information that Jimmy Flemmi

was involved in the Deegan murder?

Judge HARRINGTON. I have no information. And as I indicated

previously, Jack Zalkind said in the Boston Herald Tuesday of this

week that he never discussed the Deegan murder case with me.

Mr. HORN. Was any information from the Patriarca logs discussed with him at all?

Judge HARRINGTON. I have no memory that anything on the

Patriarca logs were discussed with Zalkind because I never discussed that case with him. However, as I indicated previously, the

Patriarca logs were made available to two of the defense counsel

who subsequently defended the same defendants in the Deegan

murder case. So they were available.

Mr. HORN. Did Barboza tell Zalkind or any State law enforcement officials that he would not provide information against Jimmy

Flemmi?

198

Judge HARRINGTON. I do not know what he said to Zalkind or

State law enforcement officials.

Mr. HORN. Did you tell Zalkind or any State law enforcement officials that Barboza had said he would not provide information

against Jimmy Flemmi?

Judge HARRINGTON. I did not. I never talked with Zalkind about

the prosecution of this case.

Mr. HORN. That is fine. The first sentence of one document

reads: ‘‘The investigation is being initiated in connection with the

TECIP’’—perhaps you know that, Mr. Bybee, what is the TECIP?

Mr. BYBEE. I do not know what that is, Congressman.

Mr. HORN. Judge, was that a group within the Department of

Justice?

Judge HARRINGTON. What is it?

Mr. HORN. T-E-C-I-P. For short, probably TECIP.

Judge HARRINGTON. I do not recall the term at this time.

Mr. HORN. And the question was, ‘‘Investigation is being initiated in connection with TECIP,’’ this group, ‘‘to develop the subject

as a top echelon criminal informant. Therefore, subject is being

designated a target under this program.’’ The date of this document

is April 14, 1969. And I do not see an exhibit on this, counsel.

Mr. BURTON. Excuse me, Mr. Horn. We have about 4 or 5 minutes left on this vote. If you would like, we can come back and you

can wrap it up then. Would you like to do that?

Mr. HORN. OK. Fine.

Mr. BURTON. OK. We will try to wrap this up very shortly as

soon as this vote is over. We will be back very shortly. Thank you.

Judge HARRINGTON. Thank you.

[Recess.]

Mr. BURTON. The committee will reconvene.

I think we have covered everything we need to cover. So rather

than have you sit around, even though we have more questions for

the Justice Department, because of the lateness of the day, we will

adjourn this hearing and we will conduct further hearings down

the road.

Judge HARRINGTON. Mr. Chairman, I want to thank you and the

courtesy you have shown me.

Mr. BURTON. Thank you, Judge.

So we stand adjourned.

[Whereupon, at 2:10 p.m., the committee was adjourned, to reconvene at the call of the Chair.]

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(641)

JUSTICE DEPARTMENT MISCONDUCT IN BOSTON: ARE LEGISLATIVE SOLUTIONS REQUIRED?

WEDNESDAY, FEBRUARY 27, 2002

HOUSE OF REPRESENTATIVES,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

The committee met, pursuant to notice, at 10:42 a.m., in room

2154, Rayburn House Office Building, Hon. Dan Burton (chairman

of the committee) presiding.

Present: Representatives Burton, Barr, Morella, Shays,

LaTourette, Waxman, Norton, Cummings, Kucinich, Tierney, Turner, Watson, and Lynch.

Also present: Representatives Frank, Delahunt, and Meehan.

Staff present: Kevin Binger, staff director; James C. Wilson, chief

counsel; David A. Kass, deputy chief counsel; Mark Corallo, director of communications; Elizabeth Frigola, deputy communications

director; Chad Bungard and James J. Schumann, counsels; Robert

A. Briggs, chief clerk; Joshua E. Gillespie, deputy chief clerk; Robin

Butler, office manager; Nicholis Mutton, assistant to chief counsel;

Corrine Zaccagnini, systems administrator; Phil Barnett, minority

chief counsel; Michael Yeager, minority deputy chief counsel; Ellen

Rayner, minority chief clerk; and Jean Gosa, minority assistant

clerk.

Mr. BURTON. Good morning.

A quorum being present, the Committee on Government Reform

will come to order.

I ask unanimous consent that all Members’ and witnesses’ written and opening statements be included in the record, and without

objection, so ordered.

I ask unanimous consent that all articles, exhibits and extraneous or tabular material referred to be included in the record, and

without objection, so ordered.

I also ask consent that Representatives Frank, Delahunt and

Meehan, who are not members of the committee, be permitted to

participate in today’s hearing. Without objection, so ordered.

I ask unanimous consent that the statement by Professor Bennett L. Gershman be included in the record and without objection,

so ordered. He is one of the Nation’s leading experts on prosecutorial misconduct.

The committee invited Professor Gershman to testify today. Unfortunately, he is teaching abroad and cannot be here. In his statement, he refers to a recent study by the Chicago Tribune that docuVerDate 11-MAY-2000 08:28 Jun 19, 2002 Jkt 000000 PO 00000 Frm 00649 Fmt 6601 Sfmt 6601 C:\DOCS\78662.TXT HGOVREF1 PsN: HGOVREF1
642

mented some 300 homicide convictions that were reversed because

prosecutors suppressed exculpatory evidence. The landmark study

describes the connection between prosecutorial misconduct and

suppressing exculpatory evidence in the conviction and capital sentencing of scores of innocent defendants. I want to thank him for

his valuable contribution. I hope to get a chance to meet with him

at some future date.

[The prepared statement of Mr. Gershman follows:]

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Mr. BURTON. We are meeting again today to talk about FBI misconduct in Boston and possibly elsewhere. This is an investigation

we are very serious about. I think it is clear to everyone at this

point. We have held 4 days of hearings. We have heard testimony

about some things I think everyone finds pretty shocking.

A lot of people in this country, myself included, grew up revering

the FBI. I still believe there are a great many, in fact, the vast majority of FBI agents, are honest people, who are doing a good job

as well as the Justice Department. I think they are dedicated to

protecting the public and their reputation should not be stained by

the actions of a few people but it has been very sobering to hear

about some of these terrible abuses going on at an agency I have

always had on a pedestal.

It was a sad day 2 weeks ago when we had a former FBI agent

take the fifth amendment. When I was growing up, criminals took

the fifth amendment. I never thought we would see an FBI agent

before a congressional committee taking the fifth.

Last year, we heard about Joe Salvati for the first time. The FBI

had a prize mob witness, Joe ‘‘the Animal’’ Barboza. Joe ‘‘the Animal’’ Barboza testified against Joe Salvati and others. He implicated Salvati in a murder that happened in 1965. Mr. Salvati was

sent to prison for life and could have gotten the death penalty. Others went to prison for crimes they might not have been involved in.

Joe Barboza lied and the FBI knew he was lying. They had document after document in their possession showing who the real killers were and they never turned them over to the defense. Joe

Salvati had never been involved in organized crime. He had four

little children when he went to prison. When he was finally

cleared, after 30 years, his kids were all grown.

How could the FBI stand by and let this happen? Two weeks ago,

we held a hearing about Joe ‘‘the Animal’’ Barboza’s murder trial.

The Justice Department put Joe Barboza in the Witness Protection

Program. In fact, it was created for him. They put him in California and he committed another murder. He went on trial and the

FBI and the Justice Department went out to California and helped

him get a lighter sentence. The sentence was so light he was out

in less than 3 years for murder, premeditated.

A Justice Department lawyer and an FBI agent testified on

Barboza’s behalf during the trial. Their testimony was devastating

to the prosecutors. I can’t forget one of the statements we heard at

the hearing, ‘‘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.’’ So as

a result, they plea bargained.

This man who had already committed more than 20 murders, a

man who the FBI said was the most dangerous criminal known, a

man who murdered again after they put him in the Witness Protection Program and they helped him get a light sentence. He would

have gotten the death penalty according to the prosecutors who

thought they had an ironclad case. Because the FBI and the prosecutor in the case testified in his behalf, he got 5 years most of

which was suspended and he was out in about 21⁄2 to 3 years.

Joe ‘‘the Animal’’ Barboza, who had probably killed two dozen

people, was up for parole in 3 years and at the very first parole

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hearing, the Justice Department lawyer flew out and testified on

his behalf. That Justice Department lawyer is now a Federal judge

in Massachusetts. His name is Edward Harrington. He testified

here 2 weeks ago. We asked him why he did all this. His response

was they had just created the Witness Protection Program and

they wanted to send a message to people that if you went into the

program, the Justice Department would stand by you. I want you

to think about that.

They put him in the Witness Protection Program because he

turned in some of the mafiosi but then he murdered someone else

and after he murdered someone else, they said, we are going to

stand by you and went out and testified to get him a lighter sentence and keep him out of the electric chair. What kind of message

is that? If you go into the Witness Protection Program and you

murder somebody, we are going to stand by you? I think that is

outrageous.

We need to have a Witness Protection Program. The people who

go into that program are obviously criminals in many cases but I

think we have to lay down the law that if the Government pays

you money and protects you and you murder somebody, you are finished, period.

What we have looked at so far is just the tip of the iceberg. What

the FBI did in Boston was tragic. They had a group of mob informants committing murders with impunity. They tipped off killers so

they could flee before they were arrested. This is the FBI. They

interfered with local investigations of drug dealing and arms smuggling. Some FBI agents were getting payoffs. When people went to

the Justice Department with evidence about murders, some of

them ended up dead. In other words, the FBI was tipping off the

guys in the mafia there was somebody that was coming with evidence against them. They would tell the mafioso about it and they

would go out and kill them. So the FBI, in some cases, was

complicitous in these murders.

We are conducting this investigation because there are some

basic questions we want answered. How extensive were the

abuses? We need to find out the extent of what government officials

did and explain it to the American people. How high up the food

chain did this go? We know that memo after memo was sent to J.

Edgar Hoover. In fact, he asked for information twice a week. Did

he sign off on all these things that were done? It is hard for me

to believe he didn’t know. I am confident he did know. Breaking

the back of the mob was his No. 1 priority and all indications are

that he paid very close attention to these memos and what was

happening.

There are other cases where people were knowingly sent to prison for crimes they did not commit. We have an obligation to find

out who those people were, who was involved and if they were innocent, to get them out of jail. There may be people who were put

to death for crimes they did not commit. There may be a lot of people in jail still for crimes they did not commit. We need to find out

who they are, make sure justice is done, and bring to justice those

rogue FBI agents and Justice Department officials that were involved.

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Finally, are there legislative responses to this that we ought to

consider? That is the point of today’s hearing. What kind of legislation or action is called for? Do we need tougher penalties? Should

the statute of limitations be extended for prosecutorial misconduct?

As we have seen in Boston, corruption on the part of a government

official can go undetected for decades. Are there other types of legislation we ought to consider?

We have a distinguished panel of witnesses today. First, we have

Victor Garo. Victor was the attorney for Joe Salvati. He spent 25

years fighting to get Joe Salvati out of prison. He didn’t get paid

a penny but Victor wasn’t going to abandon Marie Salvati and her

four kids. His perseverance paid off and I am looking forward to

hearing what he has to say today.

We have a former Connecticut State’s Attorney, Austin

McGuigan. Mr. McGuigan was the chief prosecutor on Connecticut’s Statewide Organized Crime Task Force. He is going to testify

about a whole new part of the scandal we haven’t yet focused on,

the corruption of the World Jai Alai. The State of Connecticut was

investigating mob infiltration of the sport of Jai Alai in Bridgeport.

The State prosecutors were trying to get some cooperation from the

FBI in Boston and they could not get any help. As it turned out,

World Jai Alai was being infiltrated by Whitey Bulger and Steve

‘‘the Rifleman’’ Flemmi, the same thugs who were informants for

the FBI. In fact, one of those FBI agents, Paul Rico, retired and

went to work for the World Jai Alai. He is the same guy we had

here a couple of weeks ago who took the fifth amendment against

self incrimination.

There were a series of murders. The head of World Jai Alai was

murdered in Tulsa, OK. A member of the Winter Hill Gang went

to the FBI to offer them information. He was murdered. Connecticut prosecutors went down to Florida to interview another person

tied to World Jai Alai and the day they arrived, his dead body was

found. Who was tipping off the mob and causing all these murders?

That is one of the things we want to find out and want to thank

you for being here today.

We also have two distinguished law professors, Frederick Lawrence of Boston University and Stephen Duke of Yale. Mr. Lawrence used to work as a prosecutor for Rudy Giuliani in New York.

He has extensive experience in the area of prosecutorial misconduct. Mr. Duke is a distinguished professor at Yale Law School

and teaches a course entitled, ‘‘Freeing the Innocent.’’ We appreciate both of you being here with us today.

Mr. Waxman is not with us but we will turn to Mr. Tierney and

let him make his opening statement.

[The prepared statement of Hon. Dan Burton follows:]

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Mr. TIERNEY. Thank you.

Again, I applaud you for once again determining to pursue justice in these matters. I am going to ask that my formal remarks

be placed on the record and submitted if that is acceptable to the

committee.

Mr. BURTON. Without objection.

Mr. TIERNEY. I want to say briefly that we have had extensive

hearings, and the people in this room may know by now what the

chairman says about the testimony and conduct of the FBI is true

and is more than just a little bit disturbing to all of us. There apparently remains two things left to discuss. One is how do we make

sure that justice or as close to justice as can be done is achieved

with respect to Mr. Salvati and others badly treated by the FBI

and Federal authorities. The second thing is what do we do about

looking at the law or what has to be changed to make sure these

behaviors are preempted in the future? I think these two things

were ultimately at the heart of these hearings from the beginning.

I have had an opportunity to review the testimony submitted by

you gentlemen and I appreciate that. I have to tell you that I have

other committee meetings and out of no disrespect, I will be in and

out of this hearing. What you have provided in writing and what

I am sure I will be able to look at in the transcript will be extremely helpful to us. I appreciate that and all the comments you

make with respect to both of those issues, how we might try to afford some sort of justice to the people involved and how we might

try to make sure our laws more properly reflect what this country

is about and how we expect our law enforcement agencies to act

will be extremely useful to us all.

[The prepared statement of Hon. John F. Tierney follows:]

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Mr. BURTON. Mr. Shays.

Mr. SHAYS. As well, I want to thank you for holding these hearings. I consider these hearings some of the most important hearings Congress could have. I am very proud my chairman and this

committee is involved.

Twenty-eight years ago as a young, new State legislator, I met

this State’s attorney involved in an organized crime task force who

later became the chief State’s attorney for Connecticut and during

my time of getting to know and admire him, one of our witnesses,

Austin McGuigan, he told me about FBI agents who were working

for Jai Alai operations in Connecticut and how they were retiring

and then working for these organizations that were very much involved in organized crime, and that the FBI was working for organized crime.

I listened to it, I heard what he was saying but I thought there

had to be explanations that went beyond the implication that the

FBI was connected with organized crime. Then he told me that he

was losing some of his witnesses, that they were being murdered,

that these witnesses had sought protection from the FBI and other

law enforcement officials and that they were literally being eliminated and in some cases, being put in positions that were a keen

message to him and the work he was doing.

He basically described an FBI in New England that had become

very corrupt and dangerous. I thought there was some exaggeration to his expressions because as you will find he has a way of telling a story that will captivate you and then we had hearings earlier this year. I put them both together and Marie and Joseph

Salvati because both of them are the story and the fact that FBI

agents would be involved in sending an innocent man to prison

with a young family, and then when he was able to get out—people

worked to keep him there, even though he could have gotten out

and he wasn’t going to be found innocent. They were just going to

say he had been there long enough and they fought to keep an innocent man in prison which just blows your mind.

Having said that, this isn’t a hearing about Marie and Joseph

Salvati. As amazing as this is, about what happened to two precious Americans and how outrageous, this is an even bigger story.

It is a story of innocent people sent to jail, who died in prison, a

story of people trusting the criminal justice system and having it

basically turn against them.

I believe that ultimately this is a story that we are going to get

a handle on. One of the things that amazes me in a way is I know

the people in the FBI today want a clean force but they are not cooperating with this committee. So in a way the FBI and the crooks

in the FBI are still getting away with it. That is what is so astounding. I guess what it amounts to is are they going to win or

are the people going to win. I believe this is a hearing that will

move the ball forward and in the end, we will get at the story and

see the story fully told. I think we will see major reforms come

from it. Legislation is necessary.

Mr. BURTON. Let me say I appreciate your comments, Mr. Shays.

One of the things we are doing right now, and I know members

will be coming and going, is we are still running into the Justice

Department and the FBI not giving us documents relevant to our

660

investigation. This is a 30-year old case. So right now we are having our legal staff prepare a contempt citation on this issue. I don’t

really want to do that and I have told the Justice Department this

time and again but if they continue to be recalcitrant and we cannot get cooperation from them to get these documents, I hope everyone on this committee will assist me in getting the support we

need in the Congress to move this forward.

I think once the White House and the Justice Department realize

that we are going to go all the way to the mat with this thing, then

they will give us the documents. It is not in the national interest

to keep this under wraps. I will urge your support and I know you

are one of the guys I don’t think is concerned about controversy,

so I think I am going to have your help.

Mr. Delahunt.

Mr. DELAHUNT. Thank you, Mr. Chairman.

First, let me state that this past week myself and Congressman

LaTourette were in Boston conducting depositions. It would be remiss of me not to stress to you the excellent work and performance

of your staff, Jim Wilson, and on the Democratic side, Mike Yeager.

They put a lot of time and effort into that particular aspect of the

committee’s work and they were most helpful. I want to make that

a matter of record.

I also have had the opportunity to read the testimony of the witnesses here today. It is like an echo that rings with much truth.

I think clearly the tragedy of the Salvati family is as a result of

a failure to disclose information to counsel representing Mr. Salvati

and others. I think what we will hear today is the result of the failure to disclose information to other law enforcement agencies,

whether they be State or whether they be Federal.

You just made reference to the fact that you are prepared to go

forward with a citation for contempt. It was interesting to read the

decision just last night of Judge Wolf where he had to threaten

contempt of the Deputy Attorney General before information was

disclosed to him. If there is the need for any further evidence that

there exists within the FBI particularly, and I dare say the Department of Justice, a culture of concealment, we have overwhelming

evidence already. I think it is a question now of how do we encourage a new attitude, a willingness to provide information to State

and local law enforcement where terrible crimes have been committed so that we can bring the guilty to justice, and in the case of

the innocent, to provide information so that an injustice is not

done.

I think these hearings are probably the most significant hearings

I have participated in during my time in Congress because they go

to the very heart of American democracy which is the integrity of

the justice system. Unless the American people have confidence in

the integrity of that system, we put at risk not just the justice system, but our democracy.

With that, I yield back. Again, thank you for inviting me to participate.

Mr. BURTON. Thank you, Mr. Delahunt.

Mr. LaTourette, I understand you went up to Boston for our recent depositions?

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Mr. LATOURETTE. I did, Mr. Chairman. If you will permit me to

make some brief opening remarks?

I do want to commend Mr. Delahunt of the other side for his conducting those depositions in Boston and also our staff, Mr. Wilson,

for the outstanding preparation in the deposition of former FBI

Special Agent Dennis Condon over 2 days up in Boston.

I do want to thank you, Mr. Chairman, for the continuing conduct of these hearings. I share Mr. Delahunt’s observations. It is

a fine line, both he and I used to prosecute cases, I used to defend

cases. I don’t know if he was ever on the dark side but I was and

it is always a fine line. A prosecutor is different than a defense

lawyer. A prosecutor is charged with doing justice and that creates

an obligation. I think today’s hearing is going to point to some of

those abuses.

I would hope that the testimony that is developed doesn’t indict

or paint with a broad brush all prosecutors because my experience

is that there are many, many fine men and women in the prosecutorial field in this country who do their job and do it within the

bounds of not only the law but the ethical constraints of the bar.

I did want to make one comment about something that happened

in Boston. We had the opportunity, the Justice Department was

kind enough to send to us during the course of that deposition the

prosecution memorandum prepared by Judge Harrington that had

been billed by testimony that the Justice Department and the

President’s observation that national security was at risk if these

documents were released, I think it was about 20-plus pages. We

had the opportunity to review it and then it was taken back from

us by U.S. Marshals as is law in Boston.

I can tell you from reviewing the document, I am hard pressed

to determined what national security was endangered by our viewing that document or what national security would be endangered

by the release of that document to the public. I think it was a well

done memorandum by Judge Harrington. I think the only jeopardy

it put anybody in is that in pertinent part it clearly indicated the

FBI in Boston was aware of information through electronic surveillance information that indicated the people that participated in the

murder of Ted Deegan in 1965, that they knew in 1965 it was Mr.

Barboza and some of the others that have come to our attention in

the course of these hearings, not Mr. Salvati and others who were

eventually convicted, but other than that there was no national security compromised by that memorandum.

I know that you, Mr. Chairman, have been a champion in attempting to bring forward these documents. I want you to know

you have my assistance in that endeavor and I hope you continue

on that course.

Mr. BURTON. Thank you, Mr. LaTourette.

Let me say that it is not just the Salvati case that troubles me.

It is what may be beyond that. When we got that executive privilege document from the President saying it was not in the national

interest, what troubled me and still bothers me is there may be

other Salvatis out there who are still in prison or who may have

been worse, put to death. That may be something the Government

of the United States doesn’t want in the public forum but that is

something that needs to come out.

662

Ms. Watson.

Ms. WATSON. No thank you.

Mr. BURTON. Mr. Cummings. Nice seeing you.

Mr. CUMMINGS. It is good to see you, Mr. Chairman. It is good

to be here this morning.

First, I want to thank you and I really do appreciate your holding the series of hearings you have held. I think it draws attention

to some of the problems in our justice system. So often people complain about the justice system and their complaints fall on deaf

ears because they hear the words come forth ‘‘hear they go again.’’ The inquiry you have conducted, I must tell you, I applaud you.

In the case of Mr. Salvati, released FBI documents show that

agents not only concealed evidence that he was framed in order to

protect informants, but they also knew in advance about the murder plot and did nothing to stop it. I am outraged that the FBI not

only allowed Mr. Salvati to spend 30 years in prison, but were

partly responsible for him being their in the first place. Such an

injustice should never happen. A case like the one before us leaves

a very bad taste in anyone’s mouth and it is shocking to the conscience.

This committee has spent months investigating Justice Department and FBI misconduct in Boston. Today, we explore the need

for legislative changes in the laws governing misconduct on the

part of Federal prosecutors and law enforcement agents. I guess

you could say that we need to police the police. It is always difficult

and regrettable to recognize the need for oversight of our protective

agencies. The FBI and other law enforcement organizations are

charged with the enormous responsibility of protecting us. They

should not be the ones to harm us. It all comes down to trust. If

we cannot trust the very people who are supposed to protect us and

prevent crimes in our cities, then who can we trust? What parent

has not taught their child that in a crisis, they should seek the

help of a police officer? I definitely taught this lesson to my children.

Unfortunately, fear of police corruption may cause many parents

to teach their children a different lesson. Sadly, I feel that due to

this corruption, thousands of men and women are spending time in

prison for crimes they may not have committed. I suspect a number

staggering for minorities, especially among African Americans.

Mr. Chairman, I know the streets in my district and around the

Nation are tired of the injustices heaped upon them by this type

of law enforcement corruption. I want to be clear that I am not condemning all law enforcement officers and the FBI. Ninety-nine percent of law enforcement are honest, hardworking, good police officers. They are honorable and hardworking law enforcement officers

doing their job the best they can trying to keep our communities

safe, stop violence and keep drugs off the streets. But when there

are reports of corruption, especially of this magnitude, we lose faith

in law enforcement officers, including FBI agents.

After widely publicized disclosures of law enforcement abuses in

the Boston office of the FBI, former Attorney General Janet Reno

convened a task force to review the Department of Justice’s policy

in the use of information from confidential informants. On January

8, 2001, Attorney General Reno issued revised guidelines designed

663

to address many of the problems that arose in the Boston case.

Some of the revisions required the Department of Justice must conduct a high level, periodic review of long-term informants and that

Federal prosecutors must be told when an informant has committed a crime or is under investigation.

These proposals appear to be reasonable requirements but it is

my understanding that the committee has not evaluated the effectiveness of these guidelines as a means of preventing law enforcement and prosecutorial abuses such as those that occurred in Boston. Mr. Chairman, I would recommend that the committee fully

review the revised guidelines. I would also say engraved on the

front of the U.S. Supreme Court, the highest court in our land, are

the words ‘‘Justice for All.’’ Never before have those words meant

as much as they do now.

This committee needs to explore legislative options to make certain this sort of injustice does not occur again, thus ensuring true

justice for all.

Again, thank you for holding this hearing. I look forward to hearing from today’s witnesses who will offer additional insight into

possible legislative solutions.

[The prepared statement of Hon. Elijah E. Cummings follows:]

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Mr. BURTON. I can assure you, Mr. Cummings, we will be looking

at legislative proposals. Obviously that would have to go through

the Judiciary Committee but we have a couple of esteemed members of that committee with us and I am sure they will be very

helpful in getting things moved there.

We will now turn to our panel. Would you please rise so I may

swear you in?

[Witnesses sworn.]

Mr. BURTON. Since Mr. Garo has been with us before and we all

know him, I think we will start with Mr. Garo and then move right

down the line, Mr. Garo, Mr. McGuigan, Professor Lawrence and

Professor Duke.

Mr. Garo.

STATEMENT OF VICTOR GARO, ESQ., ATTORNEY FOR JOSEPH

SALVATI

Mr. GARO. Thank you, Mr. Chairman.

I wish to thank you once again for holding this hearing. It is a

story that has to be told and should be told.

I am very honored to be with this panel today. I have known all

of them for many years. Mr. McGuigan grew up in Medford with

me and I haven’t seen Austin for over 40 years. We are very proud

of him in Medford. Professor Duke has a reputation that is beyond

compare and he has been very helpful to me in many aspects of the

Salvati case. To my left is also a good friend, Professor Fred Lawrence, who to this day is still a consultant to me on the Joe Salvati

matter and has been a great help to us.

I always thought how do I begin when I address this honorable

committee on matters so serious and I don’t take it lightly, so I

would like to begin as follows, Mr. Chairman.

Life, liberty and the pursuit of happiness, famed words from our

Constitution but the Federal Government in Boston and to the FBI

these words meant nothing because it was the FBI who determined

who had life, who got liberty and who was able to pursue happiness. They alone made that decision. Now we know those who did

get life, liberty and the pursuit of happiness. They were serial killers. They were Joe ‘‘the Animal’’ Barboza, Steven ‘‘the Rifleman’’

Flemmi, James Whitey Bulger. They were allowed to pursue their

happiness with the protection of the FBI. Their pursuit of terror allegedly included killing of witnesses, killing respectable businessmen, raping young women in their neighborhood and killing

girlfriends as they tired of them, and the list goes on and on.

On the other hand, we have Joe Salvati. Joe Salvati, not a man

of power, position or means but yet a human being who was a husband, a father. He was denied and they were denied their American dream of life, liberty and the pursuit of happiness for circumstances that were beyond their control.

The Federal Government, as we have seen, has allowed Barboza

to kill again and again. I say to you, Mr. Chairman, under full oath

before this committee, there was more evidence that Barboza killed

more than one person while in the Federal Witness Protection Program and I say to you, Mr. Chairman, that under oath, the Government knew and had evidence of complicities of Joe Barboza killing

other people while in the Federal Witness Protection Program.

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We had a recent witness who stated that he believes to this day

that Joe Barboza told the truth, even though there is an incredible

volume of evidence showing it the other way. The Federal Government wants this committee and wants those people out there listening to this, and for those write about this, to believe that Joe

Barboza would kill 25 to 30 people, that he would maim them, disfigure them, stab them, but he would never lie because that is

where he drew the line. Not once in that testimony was there a

hint of maybe we didn’t believe him, maybe we shouldn’t have believed him but we did believe him.

The following questions beg answers. What was so important

from the information that Steven Flemmi was giving to the FBI in

the early 1960’s that warranted him to be so protected in the top

echelon informant program? What cases were brought? Who got indicted? What murders did the FBI prevent from all the intelligence

they received? We now know, Mr. Chairman, under your guidance,

that they knew Teddy Deegan was going to get killed and they

didn’t prevent that murder.

Mr. Salvati and his wife are here, Mr. Chairman and members

of the committee, because they wanted to show respect to the committee. They know how hard and how diligent the committee has

worked for well over a year. You have shown not only to us but

to the entire country that the little people have access to the government.

You all know I am not a hot shot lawyer. I come from a small

town. I am a one-man law office, born of a mother who was an orphan at age 3 and a father born into abject poverty. Joe, his wife

and four children, just ordinary citizens, had their lives taken away

from them.

I was always told by my parents that when people do something

good, you should tell them while they are alive and you have the

opportunity. Mr. Chairman, I would just like to make these statements. I want to thank the following members: Representative

Barr for the understanding and knowledge he showed in his questioning throughout these hearings; I want to thank Mr. LaTourette

for the zeal and tenacity that he has always shown in his questioning, even regarding how he felt about the testimony of the Justice

Department; I would like to also thank Representative Waxman for

his ability to gather support from the Democratic side so as to not

make this a partisan issue; I would like to thank Representative

Tierney for doing much legal research and his ability to ask the

tough questions; and I would also like to thank Representative

Delahunt, a former prosecutor who had the courage to stand up

and be counted when he didn’t have to. I respect you, Mr. Delahunt

for your willingness to spend your free home time to come to my

office and sit with me for hours upon hours to learn about this

case. I thank you highly.

Representative Shays, I thank you for your ability to grasp the

importance of this case and bringing it to the attention of the

chairman. I also wish to thank you personally for your kind and

gentle words that you have always spoken to my clients, Mr. and

Mrs. Salvati.

Mr. Chairman, if we were to look up the definition of what a

leader is, your picture has to be in the dictionary. You have shown

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to all that you are a man of great principle and that you believe

in what you fight for, even to the degree that you are willing to

take on the President of the United States. How much more does

our country need to know where a leader is willing to do that, even

in his own party. You have been an example to all of those, Mr.

Chairman, that want to do the right thing.

Last, I would like to make some comments about Mr. Jim Wilson. I cannot believe, Mr. Wilson, it has been over a year since we

started talking about this case. I have found Mr. Wilson to be a

man of great principle. I think he is a great example of dedication

and his staff has followed him and worked so closely with him. He

is a man I have known that never leaves a stone unturned, a man

who has tried to get to the bottom of this cesspool that we call the

Deegan murder case. His work ethic should be a shining example

of how our tax dollars are being spent and many don’t know what

a heavy heart he has had for these last couple of months for something personal in his life. All I can say, Mr. Wilson, you are a man

among men and I am proud and honored to call you my friend.

I am here to make some suggestions to this committee for appropriate legislation. As you know, our quest has always been to use

your power and wisdom to enact appropriate legislation so that another family will never have to endure the nightmare and hardships that this family has experienced. The time has come to prosecute the dishonest prosecutors, not those that work on a daily

basis and do the work they have taken a sacred oath to perform.

I, along with Mr. LaTourette, agree that most do but sadly some

don’t follow their sacred oath.

What I am going to suggest is not going to affect the honest prosecutors. It is only going to affect the dishonest prosecutors. My first

suggestion is that when there is an intentional withholding of exculpatory evidence from the defense in a criminal case, there

should be no statute of limitations defense for the parties who have

violated their oath. Suggestion two, when there has been an intentional withholding of exculpatory evidence from the defense in a

criminal case, there should be a mandatory minimum jail sentence.

The sentence might be that equal to under the statute if there was

a 10-year punishment, 10 years, or equal to what the defendant received as a sentence in the case. This is after the case has been

overturned and dismissed and the evidence is shown to be hidden

intentionally.

I was sent recently a document and I would like to quote from

it. It is ‘‘Federal Grand Jury Reform Bill and Bill of Rights’’ put

out by the National Association of Criminal Defense Lawyers. It

was sent to me by Mr. Kyle O’Dowd, a legislative director for the

National Association. I would like to read from page 3.

‘‘Indeed, as far back as 1990, what disciplinary action it had

taken in each of the ten cases in which Federal judges had made

written findings of prosecutorial misconduct. After a lengthy delay,

the panel was finally informed by the Office of Professional Responsibility that ‘No disciplinary action has been taken in any of the

ten cases.’ The subcommittee observed repeated findings of no misconduct and the Department’s failure to explain its disagreements

with findings of misconduct by the courts raises serious questions

regarding what it considers prosecutorial misconduct.’’

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Mr. BURTON. Mr. Garo, first of all, let me just say we really, really appreciate your testimony. Could we have the rest submitted for

the record and then we will get to any additional comments you

would like to make at the end of questioning?

Mr. GARO. Yes, sir.

Mr. BURTON. If you have a final comment or two you would like

to make real quickly, we can go ahead with that.

Mr. GARO. That I do.

I believe there is an epidemic here in the United States and that

is about the criminal cases that are being overturned on a daily

and weekly basis through DNA testing, overzealous prosecution

and hidden evidence. But what happens to those people who have

hidden that evidence? What happens to them? My evidence and research shows that since 1963 when Brady v. Maryland came down

from the Supreme Court of the United States, in over 40 years,

there has been less than a handful of prosecutions of thousands of

cases that have been overturned.

In conclusion, we all know what awesome power the government

has over our lives. It becomes even more evident when they are

trying to take away a person’s freedom or worse yet, their life. In

seeing the tragedy of the Deegan murder investigation and prosecution unfold, we are mindful that our justice system is not perfect.

When the justice system hurts one of us, it has a ripple effect

on all of us. We cannot allow the justice system to function as it

has in Boston for the last 40 years. You, the Congress, have the

right and the power to right this wrong.

Thank you.

[The prepared statement of Mr. Garo follows:]

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Mr. BURTON. Mr. Garo, I can assure you that your recommendations on legislative action will be closely scrutinized and there will

be some legislation put forth to the Judiciary Committee that will

deal with those issues.

Mr. McGuigan, I understand you are from Connecticut but you

grew up in Massachusetts, is that right?

Mr. MCGUIGAN. That is correct, Congressman.

Mr. BURTON. I just wanted to make sure because Mr. Shays

brought that to my attention.

Mr. MCGUIGAN. Mr. Shays has regretted my birth in Massachusetts for many years.

Mr. BURTON. Yes, I know. He is a real strong supporter of Connecticut but we will let that pass.

Mr. McGuigan, you can testify now.

STATEMENT OF AUSTIN MCGUIGAN, FORMER CONNECTICUT

CHIEF STATE’S ATTORNEY

Mr. MCGUIGAN. First of all, I would like to thank you and the

Members of Congress and counsel for the opportunity to be here

today. I would say just in passing that after the death of witnesses

in 1982, quite frankly, I never thought that I would be testifying

in Congress about the events that happened in the 1970’s and

1980’s, and the coverups that we perceived. I thought they had

done their job and they had won. To me, it is touching today that

I am here. Some people who worked so hard to uncover the truth

have long passed away and didn’t have an opportunity to see justice finally have an opportunity to come out.

It has been many years since the President’s Report on the Administration of Justice and Organized Crime which urged us to

conduct this great war in 1967, and we passed legislation for wiretapping and the RICO statutes and there was funding for organized crime units where Federal units were established in most of

the major cities in America. Local units were formed, many times

with Federal assistance. I will say at the beginning there were

promises that this war would be fought in a cooperative manner

between State and local prosecutors and the Federal Government,

but that promise never happened.

I would also comment that the war on the LCN, if viewed

through the rearview mirror, has resulted in a substantial reduction, if not destruction, of most of its business activities. There

were a great many convictions. I could say that the legalization of

gambling and other things may have deprived their revenue source

and cut out those groups to a great degree in and of itself, and

there has been a rise in all new organized crime units in the drug

trade, but I will leave that for another day.

I would point out there were tensions that were clear between

State and local prosecutors and investigators and the Federal Government from the very beginning. These tensions have been exacerbated over the years and I think it is something not for this committee to deal with today, but for Congress to think that what has

occurred over the last 30 years is the Federalization of the criminal

laws. Many criminal statutes which were the province of the District Attorney and the State’s Attorney and the Attorney General

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ing has been skewed to the Federal Government, with the idea that

somehow the Federal Government can provide better answers.

I think in looking at this case, we see that federalism did not

work, that federalism went astray, that the proper balance between

State and local prosecutors and Federal prosecutors was unhinged,

and the growing arrogance and power of the Federal Government’s

ability to prosecute denied State prosecutors the information they

were entitled to because they had the primary jurisdiction to prosecute these cases.

In Boston, the war we started on organized crime went amuck.

It is clear that major organized crime figures operating as informants or, better still, under the guise of informants, were permitted

to engage in racketeering activities with a wink, if not the tactic

approval, of Federal agents. Violent crimes, including murders by

so-called informants, were ignored at the whim of law enforcement

officers, and I think this is important, who were apparently accountable to no one in the name of intelligence gathering. I was a

foreign military intelligence special agent and I understand this.

State and local prosecutions of violent criminals were undermined

and investigations were betrayed.

Many, and I have heard this argument, have ascribed this behavior to overzealous agents using informants in the mistaken belief

that the end justified the means. In other words, they wanted convictions and tended to ignore exculpatory information. I would

point out that this explanation defies the logic of what occurred in

Boston, MA, and throughout New England. It oversimplifies a process where Federal officers betrayed the public trust out of more

than overzealousness. Some of these people have already pled

guilty to crimes involving corruption in their decisionmaking process.

Federal agents, while they were denying State and local requests

for information, were providing information to former FBI agents

who were employed by the very businesses that were under investigation. This is more incredible when one realizes that despite official requests by State and local officials, the same information provided to those agencies was denied to the agencies mandated by

law to prosecute. I am going to give you examples of this.

The Connecticut Statewide Organized Crime Task Force, and I

was the chief prosecutor from 1975 to 1978 and the assistant from

1973 to 1974, began in the fall of 1975 an investigation into the

opening of a Bridgeport Jai Alai gambling facility or ‘‘fronton.’’ We

uncovered in our investigation meetings between major New York

and New Jersey LCN figures and the President of Bridgeport Jai

Alai. We determined that a loan from the Central State Teamsters

Fund had funded the entire operation. We did not have the jurisdiction to investigate this case to the fullest. The meetings were occurring in New Jersey and New York; the loans were coming out

of Chicago.

We initiated a grand jury and then we conducted a license revocation hearing. Bridgeport was supposed to open in a couple

weeks. We revoked their license for connections to organized crime

figures. We attempted to turn over that information to the Federal

Government because frankly we thought the individuals involved

were LCN, one of whom supposedly had been implicated in the

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Hoffa murder, Tony Provenzano, we turned over that information

and frankly we seemed to get no interest from the Federal Government whatsoever.

We then conducted an investigation and we could not understand

why but in looking through the rearview mirror, why becomes

clear. We then conducted an investigation regarding World Jai

Alai. We were doing the licensing investigation to determine

whether or not they were suitable. They were going to open in

Hartford with its president, John B. Callahan, formerly of Boston,

MA. We requested information about Callahan from Federal law

enforcement agencies, official requests for a Statewide Organized

Crime Task Force background investigation. We wanted derogatory

information. We came up with a big zero. We had nothing on this

gentleman, no derogatory information.

World Jai Alai had, and we met a number of ex-FBI agents engaged in security. One of them who has testified before this committee, was the head of security and formerly worked in Boston on

organized crime involving the Winter Hill Gang. He was thoroughly familiar with this information. He had no derogatory information. It was Paul Rico.

Despite the lack of Federal help, literally on a whim we decided

to do a surveillance of John B. Callahan when he left the meeting

with us in Hartford. He said he was going to Miami. We followed

him to Boston. He went to Clarks Turn of the Century Cafe. We

watched him there. He said he was in Miami. We had no idea of

the people with whom he was meeting. We couldn’t identify any of

these people. We knew one thing: Callahan told us he was in

Miami. He called us the next day and said he was in Miami and

he was actually in a motel room in Boston.

We couldn’t figure out why, so I took a trip to Boston. With the

assistance of the Suffolk County Organized Crime Prosecution

Unit, Chief Prosecutor Tom Dwyer, when I brought up Callahan’s

name, he said, ‘‘organized crime connections, Winter Hill Gang.’’ I

almost fell on the floor since we had zero on this guy. He said, ‘‘we

did surveillances. He was a character witness in a shooting involving one Brian Halloran. We surveilled him and he had meetings

with the Winter Hill Gang, John Martorano, the Flemmis, Howie

Winter, and so forth.’’ He provided me with that information and

I was somewhat puzzled how this information was not available to

the FBI security people at World Jai Alai, who formerly worked in

Boston and had access to this information. They were seemingly

unable to develop this information until we scheduled a hearing for

Callahan on May 3, 1976. At that time, shortly before the meeting,

Callahan resigned because World Jai Alai’s security officer was

able to learn of our investigation.

Mr. DELAHUNT. Could you identify that security officer?

Mr. MCGUIGAN. That is H. Paul Rico.

Mr. DELAHUNT. The former FBI agent who took the fifth amendment a couple of weeks ago?

Mr. MCGUIGAN. That is correct. He then received the information, and I know not from whom. Someone told the World Jai Alai

people. They had him resign before we could secure his testimony

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poena for him and were unable to secure his testimony. They replaced him with his former partner and these people were licensed.

A correction in my written statement, on page 4, the second line,

it should read January 1976 not 1975. We did learn that the Federal Government was made aware that allegations concerning Callahan were made that he might be involved in loan sharking with

the Winter Hill Gang and James Martorano. This information was

provided to Mr. Rico who did not provide it to us. It was not provided to us and I do not know what Federal officials provided the

information or what officials provided it to Rico. All I know is we

were not given the information when we made official requests,

while the information was provided to others.

Not only did they fail to learn this, when they did learn it, they

didn’t disclose it to us. Until we surveilled Callahan, this information was not available to us. When they realized we had him, he

resigned.

We also learned that a Winter Hill Gang associate had been

made the head of the food and beverage concession at World Jai

Alai, Miami. The gentleman was identified by an FBI intelligence

report from Boston, as a Winter Hill known associate by the name

of Bryan McNeilly. How he got to be in this position given the fact

that FBI agents in Boston were running the security is best left for

somebody else to explain. We looked with sort of a jaundiced eye.

They were given a situation of keeping organized crime out and

from our perspective, organized crime in World Jai Alai were being

made to feel at home.

After the resignation of Callahan, World Jai Alai opened and we

started to conduct investigations involving player fixing in Jai Alai.

These were first revealed by an investigative reporter for the Hartford Courant, Ted Driscoll. We followed up on this information. He

was able to find this out. We had not been looking at it but we followed up and obtained a number of convictions in a game we had

been assured was unfixable, absolutely unfixable. They all confessed to fixing it.

Our jurisdiction did not allow us to conduct an investigation on

that outside our borders. To my knowledge, no national agency has

ever conducted an investigation regarding that, despite the fact

that the Winter Hill people who were attempting to infiltrate

World Jai Alai were involved in a major horse race fixing scandal

all over the northeast. Howie Winter and others were convicted of

that. I believe John Martorano was in that case but fled.

In 1980, Roger Wheeler was the president of World Jai Alai.

Roger Wheeler bought the company in 1978. Apparently he had

been offered the company for sale by Mr. Callahan in mid-1976.

This was strange since Callahan supposedly resigned in April 1976,

but far be it for me to understand the connections between Mr.

Callahan and who was really running World Jai Alai. Roger Wheeler bought it. He told our investigator, Inspector George Ryalls, that

he felt confident that he was OK because he had numerous FBI

agents who were there to ensure the integrity of the process.

He was licensed because there was absolutely no derogatory information about him and he seemed to be an outstanding businessman. He was killed in 1981 at the Southern Hills Country Club in

Tulsa. We immediately decided to open an investigation to see if

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there was a link between the allegations being made in the Courant of skimming in Jai Alai, the Winter Hill Gang and the killing

of Mr. Wheeler. There were law enforcement rumors that the Winter Hill Gang had conducted this murder. We were unable to confirm it.

In May 1982, Mr. Brian Halloran, who comes back as the person

involved in an assault where Callahan testified, was killed in south

Boston. We learned he was killed after being denied Federal witness protection. Mr. Halloran, and I cannot understand his logic,

had naively decided to provide firsthand information concerning

the Wheeler killing to the FBI in Boston. I would have questioned

his wisdom but I wasn’t involved. He implicated John B. Callahan,

John Martorano, Whitey Bulger and Steve Flemmi and other members of the Winter Hill Gang, and we have heard that he implicated possible law enforcement officers. I do not know that since

I do not have the report. We were not given this information.

Not surprisingly, the Federal authorities in Boston having firsthand information corroborated by the guys connected to Callahan

regarding these individuals, decided that Mr. Halloran’s testimony

or information was not credible. I believe the information has now

borne out to be true. Mr. Halloran was killed and when he was

being killed perhaps he was surprised his information wouldn’t

warrant witness protection. He was talking about the killing of the

president of Telex. You would think that would warrant witness

protection.

I must tell you we in Connecticut were not surprised he didn’t

get Federal witness protection. In fact, we firmly believed he had

somehow been burned by the people with whom he was talking.

That is what we believed.

Callahan was killed in Florida shortly thereafter. We had contacted the Dade County Strike Force to try to interview Callahan

on August 3, 1982. We flew down there and when we arrived, they

called us and told us his body had just been found at the Miami

Airport.

These murders remain unsolved and it seemed the coverup had

succeeded until a Winter Hill Gang member, Steve Flemmi, I believe, decided to claim that he had a free pass on the crime train

because of his status as an FBI informant. He claimed essentially,

they were allowing me to do this, so I get a free ride on the railroad.

Judge Wolf had the integrity and the perseverance to conduct

prolonged hearings to unravel this tangled web but I must say for

all he has done, the tangled web needs more unraveling, and I commend this committee for doing it. We dare not forget that the discovery of these massive crimes based on the tenacity of a few defense lawyers like Victor was more than somewhat fortuitous. No

one could have predicted that Steve Flemmi would have claimed a

free pass on the crime train. Had he been tipped off slightly earlier,

he would have fled like Mr. Bulger and never made the claim.

Therefore, reforms must be instituted to stop the cozy arrangements between informants and agents. They must be subject to

strict scrutiny and constant review. Contact between prior and current agents must be circumscribed, particularly when the agents

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vide a veneer of respectability for those businesses. When you are

investigating, I can tell you that you do not receive a warm reception from present agents because they believe your thought process

is wrong, having been guaranteed that all is well in the world of

Jai Alai. All was not well in the world of Jai Alai.

Information regarding State and local crimes must be presumptively provided to local prosecutors unless there are documented

reasons why such should not be done. I believe they should be submitted to a court, requiring the contrary conclusion on the basis of

what crimes we permit people to commit in this country and have

no one accountable for the decision to allow that to happen. In that

regard, I have a quote from Justice Brandeis from a 1928 wiretapping case: ‘‘If the Government becomes a lawbreaker, it breeds

contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the

criminal law the end justifies the means, to declare that the Government may commit crimes in order to secure the conviction of a

private criminal, would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.’’ I would

echo those comments of Judge Brandeis. This Congress should resolutely set its face against that pernicious doctrine.

[The prepared statement of Mr. McGuigan follows:]

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Mr. BURTON. We are going to do our best to do that. Let me ask

you one question. That is, these documents you alluded to, do you

believe they are in the control of the FBI at the present time?

Mr. MCGUIGAN. I am positive, they have to be.

Mr. BURTON. Those are documents we ought to see if we can get

as well. We ought to send another subpoena over there and beat

on that issue as well, which we will.

Mr. Duke and Mr. Lawrence, I am sorry to keep you waiting for

your testimony. We have a vote on the floor. I would urge the

Members to rush over there, vote and come right back because we

want to get to questioning as quickly as possible. We will be back

in about 10 or 15 minutes.

[Recess.]

Mr. BURTON. If we could get everybody reassembled, we will get

back to the hearing. There will be Members coming back in. I appreciate your tolerance and waiting for so long while we have to

run back and forth to vote. I do not think there will be any more

interruptions.

OK, our next witness according to my schedule here would be

Mr. Lawrence. Mr. Duke, we are saving the best for last. So, Mr.

Lawrence, do you want to proceed.

STATEMENT OF FREDERICK M. LAWRENCE, ESQ., BOSTON

UNIVERSITY LAW PROFESSOR

Mr. LAWRENCE. Thank you, Mr. Chairman. I am honored by the

opportunity to appear before this committee and testify this morning. I will be submitting an expanded version of my remarks this

morning and I would hope those could be incorporated into the

record.

Mr. BURTON. They shall be.

Mr. LAWRENCE. Mr. Chairman, Federal civil rights enforcement

and civil rights crimes, in particular, have been the key focus of my

career. During my 14 years at Boston University, and I would be

remiss if I did not briefly mention that we take Victor Garo as one

of our most distinguished alumni, I cannot take any personal credit

for this since Victor’s time at BU was a little before my time,

but——

Mr. BURTON. Excuse me, didn’t Bob Cousey go to Boston?

Mr. LAWRENCE. I am a New York Knicks fan myself, Mr. Chairman.

Mr. BURTON. I know, but I just thought I would point that out.

Mr. Garo, did you play basketball?

Mr. GARO. Yes, sir.

Mr. BURTON. Did you. Well, Cousey, I think, went to Boston University. He was one of my heroes because he was a shorter guy like

me. But, anyhow, go ahead.

Mr. LAWRENCE. I think he was at Boston College, actually.

Mr. BURTON. Oh, he went to Boston College?

Mr. GARO. Holy Cross.

Mr. BURTON. Oh, he went to Holy Cross. Well, excuse my ignorance. Go ahead, Mr. Lawrence.

Mr. LAWRENCE. I hope all of this does not come out of my time,

Mr. Chairman.

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For centuries, Mr. Chairman, societies have asked the question

first posed by the famous Roman writer Juvenal: ‘‘Who will guard

us from the guardians? Who will guard the guardians themselves?’’ I say as a former assistant U.S. attorney and I believe as a former

assistant U.S. attorney that the vast majority of people involved in

law enforcement are decent, committed, hard-working, dedicated,

and law-abiding public servants.

There is unfortunately, however, also no doubt that there are

those cases in which the public trust placed in law enforcement officials is abused to a serious degree. Many of these cases can be

handled or might be handled sufficiently as administrative matters

within a law enforcement agency, although, as Mr. Garo mentioned

earlier this morning, even the Department of Justice has had its

limitations on what it can achieve administratively. But there are

those cases that rise above the level that ought to be treated administratively and that constitute criminal violations of a victim’s

civil rights. Such cases call for the strongest possible response from

the Federal criminal justice system and the imposition of serious

criminal sanctions. It is these cases of criminal civil rights that I

discuss in my testimony.

I discuss a number of interrelated issues. First, the key role that

criminal sanctions have in fact played in Federal civil rights enforcement. Second, the particular problems that arise when criminal civil rights laws are applied to misconduct by law enforcement

officials. A suggested solution to these problems, in part, is to focus

on the mental state requirement for these civil rights crimes. And

finally, some particular concerns surrounding statutes of limitations.

Criminal sanctions have, in fact, always played a key role in Federal civil rights enforcement. When we think about Federal civil

rights statutes, it is typical today to think of the civil statutes primarily, sometimes exclusively, such as Section 1983 of Title 42.

But, in fact, the Reconstruction Era statutes themselves were replete with criminal provisions, going back to the Civil Rights Act

of 1866, the very first piece of legislation during the Reconstruction

Era. In fact, in many ways, if you look at the 1866 and 1870 statutes, they were largely criminal statutes, in part because civil enforcement was not seen to be a very viable option for newly freed

slaves or for Southern Unionists whose rights were being violated.

So, in fact, the criminal sanctions available in this area are of

long-standing. The enforcement story is a sadder story, particularly

in the period following 1873 or 1875, when the Federal Government largely lost interest in enforcing these laws and the Supreme

Court indeed struck down many aspects of them. But the laws remained on the books and in the 20th century criminal enforcement

of civil rights became much more current and much more used.

The application of these laws in the particular kind of area that

we are discussing today, namely, misconduct by law enforcement

officials, really did not start until the 1930’s and 1940’s. The celebrated, indeed notorious case of Screws v. United States, involving

a case of Claude Screws, a sheriff from Newton, GA, and two of his

colleagues, arrested and beat and left to die a man named Robert

Hall who was what we would today call a civil rights activist. They

would not necessarily have used that term at the time. But they

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beat Bobby Hall and they left him there to die and he did indeed

die. No action was taken in the State courts in Georgia, not so surprisingly, and a Federal criminal civil rights charge was brought

against Screws and his two co-defendants and that case was tried

to a jury and they were convicted. And if the story ended there, I

would be on to the next topic on my outline. Unfortunately, the

story did not end there.

The case went up to the Supreme Court and their convictions

were struck down. Their convictions were struck down for a number of reasons, but the one I wish to focus on was that the court

was concerned that the statute that would allow for punishment of

civil rights violations, and read almost as broadly as that, Section

242, violation of rights under color of law, was potentially vague,

did not specify what rights were involved. And that when you

talked about a specific right, the right to serve on a jury, the right

to vote, that was a specific right and there would be no vagueness

problem in such a statute. But where the right was a civil right

generally, indeed in Screws the rights were the rights that Mr.

Garo talked about earlier, life, liberty, the right not to be beaten

to death by law enforcement officers, one would not have thought

that right had to be enumerated, but the Supreme Court of the

United States said that indeed it did.

As a result, the court read the word ‘‘willfully’’ in that statute in

a very powerful and indeed very troublesome way, to require that

law enforcement officers to be criminally liable under Section 242

would have to have willfully violated a Constitutional right which

actually required in a ‘‘mens rea’’-like sense some specific Constitutional intent, some specific state of mind with respect to the Constitution. Lest this seemed too hyper-technical and not have an impact on the ground, the impact on the ground was felt immediately.

Screws and his two colleagues, co-defendants were retired. They

were acquitted.

The head of the Civil Rights Section, as it was then called, of the

Department of Justice said afterwards, ‘‘The judges’ charge, while

proper under the Screws case, was clearly very damaging. In short,

the burden that the Government now has under the general theme

of the Screws case in providing the necessary, willful intent in such

cases is going to continue to buildup very high hills to climb.’’ And

indeed it has. It has built up very high hills to climb.

As I suggest in greater length in my written testimony, what this

committee ought to play a role in being involved in is to look to

Congress, to the Judiciary Committee, to reconfigure the mental

state requirement and to look to a kind of what I call Constitutional negligence, Constitutional negligence in the sense that a law

enforcement officer has no business saying I did not realize that

was a civil right violation. If the court finds he should have known,

that ought to be sufficient.

Justice Wiley Rutledge said it in Screws better than I can. He

said, ‘‘If law enforcement officers do not know the victim’s basic

civil rights, they should, for they assume that duty when they assume their office. They know or should know when they pass the

limits of their authority. And when they enter such a domain in

dealing with citizen’s rights, they should do so at their peril.’’ That

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was good advice in 1945, it remains good advice in 2002. That is

a solution that Congress could play a significant part in.

Finally, statutes of limitations on civil rights crimes committed

by public officials must be interpreted in such a way that there is

adequate time for these miscarriages of justice to be investigated

and punished as Federal civil rights crimes violations. This is particularly true where the very gravamen of the crime involves withholding of documents, withholding of evidence, and a continued

cover-up. There should never be a problem of a statute of limitations running out when the wrong-doer himself is responsible for

the difficulty in bringing the charges.

The application of criminal civil rights sanctions to law enforcement officers is obviously a highly troublesome subject. Ordinarily,

Mr. Chairman, we would wish to give law enforcement the widest

possible berth in the performance of their vital functions. This is

particularly true now in a time of threat from terrorism both

abroad and as we found out so recently and so tragically here at

home. But I would say it is not in spite of the current climate that

law enforcement must be held to the highest standards, it is rather

precisely because of the current climate that law enforcement must

be held to these standards.

It was during World War II, certainly a time of threat abroad

and at home, that Justice Douglas in his opinion for the court in

Screws described it as, ‘‘This case involves a shocking and revolting

episode in law enforcement.’’ Could there be a better description,

Mr. Chairman, of the events surrounding the false imprisonment

of Joseph Salvati over three decades for a crime he did not commit?

The crime of the way in which Mr. Salvati was treated is a shocking and revolting episode in law enforcement.

The means by which Mr. Salvati came to be falsely imprisoned

and the surrounding events of the misconduct of law enforcement

in Boston and indeed in New England over this period have been

discussed by other witnesses and I know will continue to occupy

this committee, and I commend the committee for its attention. The

purpose of my testimony is to take this shocking and revolting episode in law enforcement as a point of departure to begin to provide

an answer to Juvenal’s question centuries ago. The guarding of the

guardians must begin with vigorous enforcement of this Nation’s

criminal civil rights laws.

[The prepared statement of Mr. Lawrence follows:]

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Mr. BURTON. Thank you very much. I certainly appreciate that

and we will try to take all of your recommendations and keep them

in mind when we draft legislation to try to correct these inequities.

Mr. Duke.

STATEMENT OF STEVEN DUKE, ESQ., YALE UNIVERSITY LAW

PROFESSOR

Mr. DUKE. Thank you, Mr. Chairman. I am tempted to use all

of my allotted time praising the committee and the work it is

doing. But rather than do that, I would just call your attention to

some extensive praise in my written remarks, and I would incorporate Mr. Garo’s earlier remarks, and simply say that I am very

honored to have a small part in your deliberations.

Before I go to my specific recommendations, I would like to respond briefly to your concern, Mr. Chairman, and the concern of

others about how extensive this kind of misconduct is, that is,

withholding of exculpatory evidence and allowing witnesses to testify falsely when the FBI knew that they were testifying falsely

and failing to turn that over. I do not know, to use Mr. Delahunt’s

expression, that there is a culture of concealment in the FBI. But

I do know, as I have indicated in my prepared remarks, that two

decades after the Boston thing the same thing happened in New

Jersey. The New Jersey FBI had a report which indicated who the

murderers were and it allowed its witnesses to testify to implicate

people that its own report said were innocent. And it continues to

conceal that fact.

As I am sure the committee has received many complaints from

strangers—— Mr. BURTON. Excuse me, Mr. Duke. I do not want to interrupt

your testimony, but I want to make sure that we know all the specifics about that case in New Jersey because we will be sending an

additional subpoena over to Justice to make sure that we get those

documents as well. So if there is anything that we do not have, be

sure to talk to Mr. Wilson at the conclusion of the hearing so we

get that information.

Mr. DUKE. Absolutely. Thank you very much.

With respect to my specific recommendations, we need to do

something to confine and regulate our bribery and extortion of

prosecution witnesses. At the present time, there appears to be no

legal limitation whatsoever on the deals that can be cut between

prosecutors and potential witnesses. We have the Joe Barboza case

where he essentially gets immunity from 20 or 30 murders. We

have Sammy Gravano, more recently, where he got immunity from

19 murders. We turn these people loose, we give them new identities, we give them phony Social Security numbers, and so forth,

and set them loose on the unsuspecting public. It seems to me we

need to take a hard look at whether we need to do that. Do we

need to turn serial killers loose on the public. Should there not be

some legislative limits on the kinds of deals that can be cut with

witnesses of this type.

I am first to confess I do not know exactly what the content of

such legislation should be. But there must be some room for legislation. As it now stands, the matter is totally lawless. The Tenth

Circuit Court of Appeals a couple of years ago said the prohibition

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against bribery of witnesses does not apply to the Federal Government. The statute prohibits bribery by whoever does it. The Tenth

Circuit said ‘‘whoever’’ does not include agents of the U.S. Government.

I think we also need to require corroboration from witnesses like

Joe Barboza. As of now there is no corroboration requirement

under Federal law. Anybody can get the death penalty on the testimony of Joe Barboza uncorroborated or anyone else.

I think, second, we need to make it a crime for a prosecutor to

willfully suppress evidence of innocence or evidence that contradicts the testimony of a witness offered by that prosecutor. The

criminal statute should make clear that is a continuous obligation;

the obligation to disclose exculpatory evidence does not end with

the prosecution, it is ongoing and forever. And a criminal statute

should make that clear.

Mr. Garo suggested that we extend the time limit on prosecuting

miscarriages of justice, and I endorse that. I think we also should

take a look at the Anti-Terrorism and Effective Death Penalty Act

of 1996 insofar as it imposes very strict time limits on collateral

attacks by people who have been convicted of crimes. The ability

of law enforcement and prosecutors to suppress and conceal evidence is a very powerful one, and as long as that remains in place,

as long as we have not effectively remedied that, there will be

cases in which the evidence of innocence comes long after the conviction. And that statute imposes some rather harsh limitations.

I think we should also create an independent review commission,

such as they have in Great Britain, that reviews claims of innocence by prisoners whose appeals have been exhausted. The commission has subpoena power and it has access to law enforcement

files. It has been a very successful venture in Great Britain.

Finally, I think we should eliminate absolute immunity of prosecutors. Under current law, a prosecutor can suborn perjury, can

fabricate evidence, can lie to the court and cannot be sued by the

victim of his dishonesty. He has absolute immunity. I do not think

that is defensible. I think that should be changed to a qualified immunity.

Thank you, Mr. Chairman.

[The prepared statement of Mr. Duke follows:]

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Mr. BURTON. Thank you, Mr. Duke.

We will start our questioning now. We have looked at this Boston

problem over a 35 year period and I am sure you all agree that it

is proper for us to focus on this. I would like for each one of you

to tell us, and I think you may have covered this, some of you, in

your testimony, what specific things you think we ought to do as

a Congress to correct these horrible atrocities that have taken

place. I think Mr. Garo said we should increase the statute of limitations on perjury. The thing I am after and I hope that we are

able to glean from you are the things that you feel are most important for us to do legislatively to make sure that our law enforcement agencies are stopped from doing this in the future.

Mr. GARO. Sure. The problem that I have always seen, Mr.

Chairman, in my over 37 years as an attorney is that there has always been a culture of hiding exculpatory evidence. And the playing field has never been level between the criminal defense bar and

prosecution. I agree with Mr. LaTourette as he said that many

prosecutors do the right thing and it is a tough business and it is

a tough job, and I agree with that. But there are some out there

that are just completely dishonest.

With increasing the statute of limitation time and, I had been

speaking, when I came here I had done my homework, I had spoken with an assistant U.S. attorney and others and I asked him,

I said can you tell me, I told him what I was going to suggest, do

you think those are good suggestions. He said absolutely. He said,

and this was so key, Mr. Chairman, listen to his words, he said to

me, ‘‘Victor, there is no incentive for the prosecutor to give over

these documents because they are never accountable for their actions.’’

Mr. BURTON. So you think there should be a reasonable statute

of limitations, No. 1. And No. 2, if they knowingly withhold exculpatory evidence, there ought to be some criminal——

Mr. GARO. There should be a mandatory minimum jail sentence,

minimum mandatory jail sentence.

Mr. BURTON. What kind of a sentence? How much?

Mr. GARO. Two ways, in my opinion. It could either be for the

crime for which the statute is, if it is a 10-year felony, then if the

cases are thrown out or overturned, he gets 10 years, or given the

same penalty that the defendant received. That is both for the

prosecutor and the law enforcement agencies that deal the same

way.

Mr. BURTON. OK. What about the period of time you are talking

about, the statute of limitations on this.

Mr. GARO. My opinion? I do not think there should be any statute of limitations, defense, whatsoever for anybody who is involved

in the intentional withholding of exculpatory evidence, especially in

first degree murder cases.

Mr. BURTON. OK. Any of the rest of you have a comment on that?

Mr. DUKE. My proposal is that there be a tolling of the statute

until the disclosure is made. So the statute——

Mr. BURTON. Explain to me what you mean by tolling.

Mr. DUKE. Well, in other words, the statute does not begin to run

until the revelation or the discovery of the exculpatory evidence.

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That is, once you find that the crime has occurred, then the criminal statute of 5 years begins to run.

Mr. BURTON. Oh, I see. So you are saying if there is exculpatory

evidence that they have withheld, once it has been discovered then

there is a 5-year statute of limitations.

Mr. DUKE. Yes.

Mr. BURTON. Instead of having it open-ended.

Mr. DUKE. Yes.

Mr. BURTON. Mr. McGuigan.

Mr. MCGUIGAN. I do not quite understand who is discovering it.

I do not understand. Are you saying that the prosecution has discovered it? I do not understand the concept because who is discovering the evidence. If the prosecutors are discovering the evidence

10 years after the case is closed, are you suggesting that the statute begins to run at that point?

Mr. DUKE. It begins to run when the victim of the disclosure has

the evidence. In Mr. Salvati’s case, that would have been a year or

two ago. Until that point, the statute would not run.

Mr. LAWRENCE. Mr. Chairman, the criminal law could profitably

borrow from the civil rights law in this respect. In a civil rights

claim under Section 1983 for malicious prosecution, the cause of action is not deemed to accrue until the wrongful conviction is invalidated. Not just the evidence is discovered, but the wrongful conviction is in fact invalidated.

Mr. DUKE. Right.

Mr. LAWRENCE. The criminal law could very profitably borrow

that and start the 5-year Federal statute of limitations running

from the time that a wrongful conviction is invalidated and not before.

Mr. BURTON. The Judiciary Committee, I am just kind of thinking, and maybe you could comment on this, Mr. Delahunt, I think

to have an open-ended statute of limitations they might frown upon

that. But if you are talking about from the point of discovery by

the defense counsel, in this case Mr. Garo, 5 years running after

that, that might be OK. We would have to define that very clearly.

Mr. Shays, do you have——

Mr. SHAYS. I do not mind if you want to make them a 10-minute

series of questions.

Mr. BURTON. OK. If a Federal prosecutor encourages witnesses

to lie, as in the case with Mr. Barboza where he was encouraged

to lie in exchange, or he himself commits perjury or withholds evidence, should that be considered a major failing, and what should

be done about it?

Mr. GARO. In the sub——

Mr. BURTON. In other words, we have an FBI agent, i.e., the ones

we have had before our committee, and they encourage false testimony and we are able to find out about that, what kind of penalty

should be applied and what should be done?

Mr. GARO. In my opinion, mandatory minimum jail sentence either equal to what the punishment is that was given for the case

that was overturned, or for what the punishment is for that statute.

Mr. LAWRENCE. Mr. Chairman, just to quibble a bit, I think if we

focus too much on the length of the sentence, we are going to be

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focusing on what turns out not to be the key piece here. The hard

thing in the Federal criminal civil rights area has not been what

exposure the defendant has, it is getting convictions because of various kinds of traps that are laid for unwary prosecutors. And I

would be concerned with just focusing on the sentence and then

having a mandatory minimum sentence that never gets put in

place because of all sorts of traps that fall in the way.

What I have in mind is that traditionally ‘‘willfully’’ in this area

has been thought of in a very strict term that makes it very hard

to convict law enforcement officials who say ‘‘I was trying to put

a case together but I did not ‘willfully’ in that sense try to violate

anyone’s civil rights’’ and I can imagine ‘‘I did not ‘willfully’ suborn

perjury. I was just trying to put a case together and work with a

witness.’’ So I think we are going to have to be very careful as to

how——

Mr. BURTON. And how would you do it?

Mr. LAWRENCE. I would say that the ‘‘willful’’ part refers only to

the underlying conduct, what would be a crime if it were not a public official. That is to say, anyone who tells someone else to lie, not

a matter of putting the case together, someone tells Barboza go

ahead and say that: that is perjury.

Mr. BURTON. Commit perjury.

Mr. LAWRENCE. That is perjury. And the only piece on top of that

for a public official is that he knew or should have known that this

was a violation of his duty, not that he willfully did that, that he

willfully violated someone’s rights or he was thinking in Constitutional terms.

Mr. BURTON. And what kind of penalty would you impose?

Mr. LAWRENCE. I think the truth is the penalties that exist

under 241 and 242 today are adequate, because my experience in

prosecuting—— Mr. BURTON. What are those penalties? I am not conversant with

that.

Mr. LAWRENCE. Where death results, and it is an intriguing

question here, if the death penalty were put in place because of

some prosecutor’s misconduct, then up to life imprisonment or

death, otherwise 10 years.

Mr. BURTON. Otherwise 10 years.

Mr. LAWRENCE. Yes.

Mr. DUKE. Mr. Chairman, I think a major problem we have overlooked in this discussion is who is going to prosecute the prosecutor. That is the major problem. You can call these things crimes all

you want; they do not prosecute themselves. How many prosecutors

have been prosecuted for suborning perjury in this country in the

last decade? I can tell you none federally, and probably not in the

last 30 years.

Mr. BURTON. What would you suggest be created to deal with

that problem?

Mr. DUKE. Maybe it is a dirty word, but I think we ought to

think about creating an independent prosecutor.

Mr. BURTON. Independent counsel.

Mr. DUKE. Independent counsel.

Mr. BURTON. Well I was not for doing away with the independent

counsel statute in the first place, so I would support that.

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Let me go to Mr. Delahunt. Mr. Delahunt, do you have some

questions?

Mr. DELAHUNT. Thank you, Mr. Chairman. This has been very

edifying testimony. And I think we are at the beginning stage of

really what should be a thoughtful, deliberative examination of

what we want to do in terms of addressing the obvious problem.

But let me address this to Mr. McGuigan. I think we have achieved

considerable progress in diagnosing the problem. And the consequences impact, as I said earlier, both the innocent defendant

but also the community is put at risk because information is not

forthcoming so that law enforcement other than, in this case, the

FBI can do its job. In other words, you have a situation where Joe

Salvati’s attorney at trial did not receive exculpatory information,

information that would have exonerated him, hopefully information

that never would have been presented even to a grand jury. In the

case that Mr. McGuigan speaks to, the case of Jai Alai, Mr.

McGuigan, as a State prosecutor, wanted to proceed, investigate,

and put bad people in jail out of the community.

So I guess what I see as the essence of the problem is how do

we encourage or compel disclosure in information sharing by, again

in this specific case, the FBI. Mr. McGuigan, you know that I

served in a similar role as you did in Massachusetts. I can tell you

of a case involving a homicide in my jurisdiction, and I am going

to ask the chairman to send an appropriate request for information

to my old office, where an individual was murdered, it is reported

to me subsequently, years later, that the FBI had information in

its possession prior to the homicide that the individual was at-risk,

was a target for what turned out to be a homicide. Subsequent to

the homicide itself, this particular informant of the FBI had information relative to who committed the homicide, the perpetrators.

It was never brought to our attention. Very similar, obviously with

different players, different facts, but it was an organized crime hit,

by the way.

Mr. MCGUIGAN. I have no doubt.

Mr. DELAHUNT. And you never had that information, neither did

I ever have that information. I just want to stress I think we understand that what we are doing here, in addition to protecting the

innocent, is protecting the public. Mr. McGuigan, do you see the

problem as one of compelling the Department of Justice and, specifically, the FBI to sharing information with Federal and State

law enforcement and incorporating mechanisms so that this information is just not disseminated in an irresponsible way, but in an

appropriate, responsible way to the Federal and State prosecutor

and other Federal agencies, by the way, that ought to know this

information to protect the American people and the people of the

neighborhoods whom you and I represented?

Mr. MCGUIGAN. Absolutely. That is absolutely correct. I said presumptively there has to be a law that mandates disclosure in the

absence of them providing an independent review board compelling

reasons why the information should not be disclosed. If you look at

the Salvati case, had they turned over the exculpatory information

in that case, they would have known that Mr. Barboza was a liar,

he would have never been in witness protection, other people would

be alive, his testimony would have never been believed, and that

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would have been the end of the matter. People are dead because

they refused to turn over the information.

Mr. DELAHUNT. Can you just imagine in your role as a former

chief prosecutor in the State of Connecticut putting an individual

in a Witness Protection Program, sending them across the country

knowing of the background, being aware that this particular individual was responsible for 20-plus homicides, without communicating that information to the local public safety officials?

Mr. MCGUIGAN. Absolutely incredible.

Mr. DELAHUNT. Unconscionable.

Mr. MCGUIGAN. Unconscionable. And it is the arrogance of Federal power which is accountable to no one and has received Federal

law after Federal law which has put them in a position where they

keep encroaching on State and local prosecutors and have no respect for the true function of the State’s attorney, the district attorney who is to prosecute those crimes and protect the people within

his jurisdiction.

Mr. DELAHUNT. Are you familiar with a recent report within the

last 2 years that was authored by a commission chaired by the

former Attorney General of the United States Edward Meese?

Mr. MCGUIGAN. I believe I am familiar with it.

Mr. DELAHUNT. And what it dealt with was the issue of Federalization of crimes that are traditionally prosecuted at the local

and State level.

Mr. MCGUIGAN. I am. I am a member of the American Prosecutors Research Institute.

Mr. DELAHUNT. Then you know exactly what I am speaking to.

And I think it is a fair statement to say that Mr. Meese would concur with what dialog we are having here today.

Mr. MCGUIGAN. In principle, he clearly agrees. Because this process has gone on for 30 years now, and it has gone on to the demise

of the citizens who are supposed to be protected by the local district

attorney.

Mr. DELAHUNT. Right. I just had staff circulate to you a memorandum to an individual by the name of Mr. DeLoach, it is dated

November 15, 1968, and it is from a J.H. Gale. If you could just

peruse it for a moment and as I describe it. It is an FBI internal

memorandum, dated, like I said, November 15, 1968. You were

speaking earlier about the concept of task forces.

Mr. MCGUIGAN. Correct.

Mr. DELAHUNT. I think this is so apropos because I would suggest that one aspect of the problem is articulated in this memorandum in terms of the reluctance to share information with other law

enforcement agencies.

Mr. MCGUIGAN. Absolutely.

Mr. DELAHUNT. And let me read this into the record. This is

1968. We wonder how we got here. How did we get here? Because

this senior level, I believe that Mr. DeLoach was the deputy directly reporting to Mr. Hoover, the Deputy Director of the FBI, and

I think the most pertinent sentence in this memorandum is, ‘‘Another principal objection is that the FBI’s accomplishments would

be submerged in the claiming of credit by the Task Force beyond

its actual contribution, and they will wind up grabbing the lion’s

share of favorable publicity.’’

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We have been in the business a long time, Mr. McGuigan. But

does this say it all? Let’s just really put it right out on the table.

Mr. MCGUIGAN. This describes exactly what the relationship is

with the FBI and the Federal Government in the investigation and

prosecution of cases in State and local government.

Mr. DELAHUNT. And that was the case in the 1960’s, in the

1970’s, in 1980’s—— Mr. MCGUIGAN. Never changes.

Mr. DELAHUNT. And possibly led to the miscarriage of justice not

just of Joseph Salvati, OK, but in the case of World Jai Alai.

Mr. MCGUIGAN. Absolutely. And quite frankly, as I said before,

the cozy relationship between agents and former agents, they have

a stronger affinity and affiliation with former agents and industries

under investigation than they do with the State people who are investigating the industry. You turn around and see the people whom

we are investigating, because they are retired Federal officers, getting the information we cannot get. Apparently, they trust them

but they do not trust us.

Mr. DELAHUNT. I will pose this question to the panel and anyone

is welcome to participate. But I would suspect that there are statutes, Federal statutes today that would prohibit and make it a violation of the U.S. Criminal Code the dissemination of investigative

material to anyone outside of that agency. And yet we hear Mr.

McGuigan say, and I think that his statement is certainly credible,

that after an agent retires and goes and does security work somewhere he has access to information that he or she has no right to

access.

Mr. Lawrence, are you familiar with any of the statutes that

would apply to the dissemination of information coming from the

FBI or any other Federal investigatory agency?

Mr. LAWRENCE. At the very least, it would run afoul of Department of Justice internal regulations. But I believe as well it would

violate Federal statutes. I think one of the concerns, and Professor

Duke alluded to this earlier, is we have to think not only in terms

of what laws are out there, but, systemically, who is going to enforce them. If the enforcement is going to come from the same people who are involved in the conduct, it is pretty obvious to see that

the foxes are not going to be prosecuting themselves.

One of the suggestions for using other statutes, the civil rights

area is only one, is that you have prosecutors with a particular

mandate outside of the mainstream. That is the theory of that approach.

Mr. DELAHUNT. Could I just have one more question as a followup?

Mr. BURTON. Sure.

Mr. DELAHUNT. Given that scenario that there possibly does exist

applicable Federal criminal statutes or that clearly department policy would prohibit that dissemination, can any of you point to a

particular instance of investigation or prosecution or some sort of

civil action or administrative action that would punish either a current agent for sending or a retired agent from receiving confidential information regarding investigations or prosecutions?

Mr. LAWRENCE. I know of no such case.

Mr. DELAHUNT. Professor Duke.

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Mr. DUKE. No.

Mr. DELAHUNT. I think this goes to support your premise.

Mr. BURTON. Yes. That is one of the things that I think you and

I and others on the committee ought to take a hard look at as far

as legislation. And I am glad you are on the Judiciary Committee,

you can help us over there.

Mr. Shays.

Mr. SHAYS. I am going to be here till the end and Mr. LaTourette

has another meeting, so I am happy to yield.

Mr. BURTON. The gentleman from Ohio.

Mr. LATOURETTE. Thank you, Mr. Chairman. I will not take a

tremendous amount of time because I have to do some Transportation and Infrastructure business. I appreciate Mr. Shays courtesy.

Mr. BURTON. Well do not forget Indiana.

Mr. LATOURETTE. Indiana is next to Ohio, so I am sure we will

take care of it.

Mr. McGuigan, I was interested in your observations. There is a

lot of criticism being levelled at Federal agents and Federal prosecutors. But I think the Congress is to blame for a lot of this Federalization. There was a push in the 1960’s to go get organized

crime. When I was prosecuting cases we had a war on drugs. So

a lot of us sit up here and we Federalize crimes that were historically under the venue of the local district attorney or prosecuting

agency. My own experience was that you would have the DEA

swoop into town and they would be interested in the big fish, the

guy from Colombia or down somewhere in the Caribbean, but did

not really care if he was selling rocks of crack cocaine to the kids

in your jurisdiction. And you have experienced the same sort of

thing. So while we rush to try and come up with more Federal legislation to deal with the problem of a few bad apples, I think we

need to take a look in the mirror and maybe quit Federalizing so

many crimes and leave law enforcement to local authorities where

it historically belongs.

When Mr. Delahunt talked to you about that memorandum, I

can remember I had one pretty high profile case and DEA, FBI,

ATF, they were all involved and they could not put their jackets

on fast enough when the TV cameras showed up. So you not only

have the tension between local and Federal, you have a budgetary

tension between the ATF, the DEA, and the FBI. Does that agree

with your experience?

Mr. MCGUIGAN. There is no question about that, the Federalization of the criminal laws. You look at something like the Economic

Espionage Act and you really have to ask yourself, what was somebody thinking when they decided to pass this. And they Federalized one more. They have had about 30 prosecutions in 5 years and

they devoted an incredible amount of resources. It does not seem

to bear logic. Expansions into gang crimes that were well-handled

by State prosecutors occurred and, quite frankly, cherry picking the

few cases that they want, leaving the local DA to prosecute all the

rest of the cases and undermining his funding abilities to get the

sufficient resources to handle it.

I think that we have come a long way from Henry Hyde’s remark

that Federal criminal jurisdiction is interstitial. It is now plenary

726

in the sense that Congress over the last 30 years has expanded it.

Even when the courts cut down on the scope of the mail fraud statute, we turned right around and expanded it all over again.

Mr. LATOURETTE. Right. I thank you for that. The other area

that I want to explore, and again sometimes when we Federalize

things we sort of rush to judgment, and from Professor Duke and

Professor Lawrence, Mr. Garo, and I think the chairman, I heard

mens rea standards that caused me some concern. I heard ‘‘knowingly,’’ I heard ‘‘willfully,’’ I heard ‘‘negligence.’’ Again, my observation and experience is most of the men and women who engage in

this work are good people. It is also my observation and experience

that although you have tragedies like the Salvati case, you also

have criminal defendants who play the system time and time and

time again. And I would hate to give them another arrow in their

quiver. I wish there was a way we could separate, either through

mens rea or something—I sort of put criminal defendants in two

categories. You have some where they are dead-bang losers and

they deserve whatever punishment they get, and then you have

some other cases where there are some questions, be it questionable eye witness testimony, be it scientific testimony, it could be a

confession that was coerced if that is a claim. But just one quick

story.

I had a guy that stood up in court 1 day, he was accused of and

convicted of killing five people, he is on Ohio’s death row, he stood

up during the sentencing phase and he said, ‘‘I killed these five

people. I have been commanded to kill ten thousand. So if you let

me out, I am going to kill nine thousand, nine hundred and ninetyfive more.’’ Twelve years later he is still going through the habeas

corpus system. In my view, he should have been taken out to the

apple tree and hung years and years and years ago.

And so I think before we enhance their rights and punish prosecutors, and I am really not in favor of this negligence thing because I think that really opens up—I do not disagree with you that

if they have set the bar on ‘‘willfully’’ so high that is too high a bar

to get over. But negligence I think really gives the criminal defendant, the dishonest criminal defendant a club over prosecution. I do

not know that we want to go there.

But I wish we could winnow out some of these cases and, sort

of like when they separate the wheat from the chaff, the nobrainers go over here, and the ones where DNA may clear it up 10

years from now or we may have a Salvati case 35 years that they

go over in this particular direction. I think they are not pretty simple but I think we could separate them, and I wish that we would.

But Professor Lawrence, maybe you could just spend a couple

minutes talking about the mens rea of this because, I understood

how you are using negligence, but it concerns me just a little bit

that we create a level that makes me a little uneasy.

Mr. LAWRENCE. I appreciate the question, Congressman. You

should always be careful asking a criminal law scholar to talk

about mens rea because we could spend the rest of the day on that.

I will be brief, but I think it is an important question.

In my view, what makes civil rights crimes different from other

crimes is that you can think of them as two tier crimes. There is

an aspect of the crime which would be criminal if any private perVerDate 11-MAY-2000 08:28 Jun 19, 2002 Jkt 000000 PO 00000 Frm 00734 Fmt 6601 Sfmt 6601 C:\DOCS\78662.TXT HGOVREF1 PsN: HGOVREF1
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son were engaged in it. In the case of police brutality, let’s say, the

first-tier crime would be that of assault. In the case of suborning

perjury in putting the case together for a prosecutor, it would be

any other kind of subornation of perjury. What makes it a civil

rights crime and creates Federal jurisdiction and also creates the

extra penalties that go with a civil rights crime then is the additional element of being done under color of law.

My suggestion is that all of the protections that mens rea properly gives to a case in terms of restricting punishment to people

who are consciously, willfully, knowingly violating the law should

apply to the first tier. Where I would not apply that is in the second tier, and that is precisely where the problems have come. So

I think in many ways you can get the best of both worlds by viewing them as two tier crimes.

Mr. LATOURETTE. I thank you very much.

Mr. Chairman, I yield back.

Mr. SHAYS [presiding]. I thank the gentleman. It is my turn to

ask some questions. I would like to say that eventually, Mr. Duke,

I am going to get to your eight recommendations, or whatever number they were, go through them and ask each of our witnesses what

they think, and then see what we would add to it.

But I would like to first start with Mr. McGuigan. Mr.

McGuigan, my recollection during the time that you worked for the

State and I was a State legislator and the interaction we had, your

job when you were on the Crime Task Force was to validate whether these new gaming facilities that were being set up, the dog

tracks and the Jai Alai frontons, that they were free of organized

crime. Is that correct?

Mr. MCGUIGAN. That was the mandate given to me by Governor

Grasso after they had already been cleared to open. But I opened

an organized crime investigation based on a parallel case. In other

words, the Task Force received the mandate after it had already

uncovered organized crime connections.

Mr. SHAYS. So, bottom line, these facilities and the owners were

allowed to move forward. You had reason to believe that they were

connected with organized crime. And, obviously, we in the State of

Connecticut wanted to be protected from a gaming facility connected to organized crime.

Mr. MCGUIGAN. We had a public hearing on it. And the finding

of the commission was they were connected to Buster Ardito, who

was a capo in the Genovese crime family. They had meetings with

him and Tony Provenzano, who was a capo in the DiCalvacanti

crime family in New Jersey. So we had meetings with organized

crime figures, including conversations with organized crime figures

in Bridgeport, and they revoked the license.

Mr. SHAYS. It was clear to you that the gaming facilities were

very much connected with organized crime and you were in the

process of looking at each one of these facilities, correct?

Mr. MCGUIGAN. Bridgeport was and we closed it before it opened.

It was ready to open in a week and a half. There were not that

many people in Connecticut who were dancing at the fact that their

grand opening seemed to disappear. There were not kudos, if you

want to know, for what happened.

728

Mr. SHAYS. How did you determine that there was organized

crime involved in the Bridgeport——

Mr. MCGUIGAN. I was doing an ancillary case in Bridgeport and

someone mentioned Kasue Street and I said let’s followup on the

lead. I did a couple of interviews and then said something is wrong.

We demanded to see their books. They had loans from Central

States Teamsters Pension Fund. I decided to fly out there to see

what it was all about. I then went down to New York and met with

city of New York and OCTA force people and convinced them that

we were on a legitimate investigation, and they gave me surveillance reports with Ardito and Provenzano.

Mr. SHAYS. Would you be working with the FBI out of New York

or out of Boston?

Mr. MCGUIGAN. We had received nothing from the FBI. I did not

initiate. They were done by Mort Dinistein. I had never received

anything from the FBI.

Mr. SHAYS. Now why did you go down to Fort Lauderdale?

Mr. MCGUIGAN. Because I suspected the gentleman.

Mr. SHAYS. And who was that you suspected?

Mr. MCGUIGAN. It was just a hunch.

Mr. SHAYS. OK. You went down there. And what did you find?

Mr. MCGUIGAN. I found that he told me—he had to have his

books ready and that when I got there——

Mr. SHAYS. Got where, in New York or Fort Lauderdale?

Mr. MCGUIGAN. Fort Lauderdale. I went to Fort Lauderdale and

he had no books. And when I analyzed his books, I realized that

he had $250,000 in cash collections on April 4th and he had a dispersement of the money with nothing to indicate to whom the

money had gone. Which convinced me that all was not right in the

Land of Oz.

Mr. SHAYS. Right. And did you see him with any organized crime

figures?

Mr. MCGUIGAN. Well, I actually went to a place called the Gold

Coast, which was Meyer Lansky’s hang-out, because I heard from

a Florida detective that he was associated with him. I met him

there with two organized crime figures, I believe it was Tuna Boy

Arcardo out of Chicago and Johnny Roselli. He was having dinner

with them and was somewhat surprised to see me drop in for dinner.

Mr. SHAYS. I do not think I would have wanted to fly back with

you from Fort Lauderdale back to New York.

Mr. MCGUIGAN. That was a hunch. It worked out and we closed

them down. We had public hearings, actually we were on television

all day in the State, and we closed them down.

Mr. SHAYS. Now this is a little off the picture but I would like

it just for the public record. If you have someone who owns the facilities involved in organized crime, why do we make an assumption that when they transfer the license they are going to transfer

it to someone who is not involved in organized crime?

Mr. MCGUIGAN. You should not make the assumption. You

should investigate equally, if not triply so, more diligently, because

it is highly unlikely that they just left the connection. This was not

a warm political environment. They were planning to spend the

729

revenue from opening these facilities and the facilities were not

opening.

Mr. SHAYS. OK. Courtesy of you. We had both Mr. and Mrs.

Salvati here a number of months ago at which time they told their

unbelievable story. And we also had a person who sat in the front

row two seats over named Paul Rico. And I tried to listen and

watch him at the same time to see how he would react. And when

he took the stand, and this time he did not take the fifth, he

showed no regret or concern. Now I made a comment to someone

that having listened to it he clearly knows now that Mr. Salvati

was innocent and he showed no remorse at all, almost contempt

that we would even suggest that he should show remorse.

How often did you interact with Mr. Rico, and what kinds of conversations would you have had with him?

Mr. MCGUIGAN. I only met him probably three times.

Mr. SHAYS. What was his position at the time?

Mr. MCGUIGAN. He was the Director of Security for World Jai

Alai. I presume his mandated function was to keep organized crime

out.

Mr. SHAYS. So he had retired from the FBI?

Mr. MCGUIGAN. Retired FBI, Boston Organized Crime Strike

Force, Winter Hill Gang investigator, moved to Florida, and then

became the Director of Security at World Jai Alai. I presume part

of his duties were to ensure that organized crime was kept out.

Mr. SHAYS. So you obviously began to have some suspicion about

him when he started to work for the Jai Alai fronton?

Mr. MCGUIGAN. I had none. I had no derogatory information on

Mr. Callahan and had no reason to believe that Mr. Rico was not

as he was represented to me, a prominent organized crime investigator in Boston. Why would I doubt his word at all?

Mr. SHAYS. OK. But when did you start to have some suspicions?

Mr. MCGUIGAN. I only became suspicious of Callahan and decided to follow him. Not any particular good reasons.

Mr. SHAYS. So once, as you testified earlier, you learned from

Boston law enforcement people that this man was clearly involved

in organized crime, it was obvious to anyone who——

Mr. MCGUIGAN. That was by accident. I went to meet Tom

Dwyer, the head of the Suffolk County investigation project. We

had come up empty on Callahan and we had been in Boston on

March 1st and did not know who was at Clarks Turn of the Century and I mentioned John Callahan, and he said he is connected

to the Winter Hill gang and I have got surveillances on him. That

was an accident.

Mr. SHAYS. So did you make the assumption that they were

doing their job and the FBI just was not aware of it, or did you

begin to suspect the FBI?

Mr. MCGUIGAN. Well, I then learned that Brian McNeely was the

head of beverage concessions at World Jai Alai that John Callahan

was a known associate of Winter Hill Gang members John

Martorano, I believe Stevie Flemmi, Whitey Bulger, Howie Winter,

Ron Costello, Brian Halloran. He had a collection where he was a

known associate. So I was a little concerned as to how he got to

be president of the company when the person in charge of the security is someone who worked on these people. It seemed to me to

730

be a confusing situation. I could not figure it out. I guess he was

not up to snuff with what was going on at Boston.

Mr. SHAYS. I just want to be clear as to who ‘‘he’’ is. ‘‘He’’ is Rico?

Mr. MCGUIGAN. Well, Mr. Rico was the head of security. I do not

know whether he—— Mr. SHAYS. I just want to know, when you were mentioning ‘‘he’’ you were referring to Mr. Rico? So now you begin to have obvious

suspicions about someone who worked for the FBI in the past. So

would you at this moment have said this guy was in the FBI, it

is kind of weird, strange, and you have suspicions about him, do

you then proceed to have suspicions about the FBI? You had suspicions about Rico. Then I want you to just tell me where did you

go from there. When did you begin to suspect that more FBI people

were involved?

Mr. MCGUIGAN. I realized that Mr. Rico had been given information regarding a potential loan-sharking transaction in January

1976. I sort of wondered why I did not have it. Since I was trying

to clear this guy for a parimutuel license, I thought maybe we

ought to have that. So I could not quite understand that either. So

I said, well, now if he knew that information, why did he not show

me that information and why did nobody else tell me that information? And then when I was going to have a hearing on Callahan— now Callahan resigned because Rico, and I do not know how he

learned that we were doing an investigation—we were planning to

ambush Callahan at a hearing in Hartford where his organized

crime connections would come up unbeknownst to him and see

what we could uncover. Callahan resigned. And as a commission

might put it, all was not well in the Land of Oz, let’s go on with

the licensing.

Mr. SHAYS. What I want to know though is, I want to know

something that, you are telling me something that I need to know

and I am following you to this point, but what I want to know is

you are in charge of law enforcement for the State of

Connecticut——

Mr. MCGUIGAN. At the time I was not. At that time I was the

chief prosecutor for the State Organized Crime Task Force. Later

on I became the chief prosecutor.

Mr. SHAYS. OK. But at that time you had a very important statewide function dealing with organized crime and you are suspecting

a former FBI agent, clearly suspecting, you believe somehow he is

connected in protecting an organized crime figure. Did you at that

moment, listen to the question, did you at that moment believe

that other FBI agents were involved, or just a former retiree?

Mr. MCGUIGAN. I did not know the logic of how this information

was not acted on. We were suspicious as to why it was not acted

on.

Mr. SHAYS. So you began to be suspicious that other FBI agents

should have been—well it seems obvious to you, but I am trying

to develop a record here and so that is why I am going through it

like I am going through it. I want to understand. In your mind,

this was just staring everybody in the face and it was so obvious

to you that a former FBI agent is protecting an organized crime figure that you began to, what, suspect the New England branch of

the FBI?

731

Mr. MCGUIGAN. No. I would say that I began to suspect that people were not working as hard as they should be in Miami World

Jai Alai. They seemed not to have been able to uncover this and

I was wondering what was going wrong. They were maybe having

a bad hair day, I don’t know. I do not know what it was but it was

troubling. Troubling is a good word. I was troubled.

Mr. SHAYS. OK. I just want to make sure you are not speaking

like Alan Greenspan where there is more meaning to the word

troubled. That is why I need to make sure that you are being—— Mr. MCGUIGAN. I admire the comparison, Mr. Chairman.

Mr. SHAYS. But it is our job to make sure you speak not in

tongues. So I want to be clear. Did you feel you could go to the

head of the FBI in New England and say this is crazy, you have

a former FBI agent who is basically shielding an organized crime

figure and I want to know what you guys are doing about it? Did

you feel you could do that? And did you do it?

Mr. MCGUIGAN. See, Callahan was gone from the company. Callahan was gone from the company, at least what we were told, and

we had no jurisdiction. They sold the company to somebody else.

I was unaware that Callahan had approached the new buyer so he

actually was not out of the company. And Callahan’s partner became the president of the company. And I was assured that he—— Mr. SHAYS. And that was Roger Wheeler?

Mr. MCGUIGAN. It was Richard Donovan who I was assured was

a Boy Scout.

Mr. SHAYS. Of course, you knew that not to be the case.

Mr. MCGUIGAN. Well, he is a Boy Scout. Just ask anybody in law

enforcement.

Mr. SHAYS. OK. So ultimately you do not license him, correct?

Mr. MCGUIGAN. He was licensed. I do not license anybody. The

Commission on Special Revenue decided to license Mr. Donovan.

Mr. SHAYS. OK. And he lasted for how long?

Mr. MCGUIGAN. He was licensed for I think 6 or 7 years. Then

Roger Wheeler bought the company in 1978.

Mr. SHAYS. OK. By then you are the chief State’s attorney?

Mr. MCGUIGAN. Well, probably just as he was buying I became

chief State’s attorney.

Mr. SHAYS. OK. So we do not have anyone killed yet. None of

your witnesses are killed.

Mr. MCGUIGAN. No. And we had a background investigation on

Wheeler, who assured my inspector, George Ryalls, that he was

safe because he had all these retired FBI agents in World Jai Alai

who were going to protect him from the mob and he did not have

any problems.

Mr. SHAYS. And by all, how many? One? Two? Three?

Mr. MCGUIGAN. I could not give you a count. There is a count

somewhere, but there were a number of them.

Mr. SHAYS. So it was Rico and a number of others?

Mr. MCGUIGAN. Yes. There were a number of retired agents who

were very experienced in this area.

Mr. SHAYS. But being candid and not like Alan Greenspan——

Mr. MCGUIGAN. Oh, he told my inspector that he was safe.

Mr. SHAYS. But by then though you did not know if he was safe

or not?

732

Mr. MCGUIGAN. The operation essentially was in Florida. If anybody wanted to do this case, they could have done the case. The

operation was in Florida. We were doing a Jai Alai player fixing

case in three frontons. He was in Florida, he felt safe. What am

I to say? But we then began a skimming investigation involving

World Jai Alai and the other Jai Alai frontons.

Mr. SHAYS. Let me just say to the gentleman, I am going to be

yielding you time but I am going to go about 5 more minutes.

But Mr. Wheeler ends up killed, assassinated really, at a golf

course. They did not pick a dark alley or when he came out of his

house. They went to a public place and he got murdered.

Mr. MCGUIGAN. Southern Hills. I understand they play the PGA

there and the U.S. Open. It is a very nice place. I have not been

there.

Mr. SHAYS. That is a pretty dramatic way to kill someone. It was

a high profile, it was probably sensational. What was your reaction

when you heard he was killed?

Mr. MCGUIGAN. I figured they were sending him a message,

sending everybody else a message. That is what I figured. It looked

to me like they were whacking him. So, you know.

Mr. SHAYS. But he was not a witness for you or anything else.

But did you start to get interested in the Jai Alai—— Mr. MCGUIGAN. I believe he called George Ryalls on the day before he was killed or the day he was killed.

Mr. SHAYS. George who?

Mr. MCGUIGAN. My inspector who had cleared his license. He

wanted to talk to him about how Jai Alai was running.

Mr. SHAYS. How what?

Mr. MCGUIGAN. How it was running and what was going on.

Mr. SHAYS. OK. And by then are you back into thoroughly investigating this fronton?

Mr. MCGUIGAN. Well, again, we have limited jurisdiction in Connecticut. So we assisted Tulsa and we certainly tried to get—— Mr. SHAYS. Did it raise an interest in who was going to run the

new facility and did you start to begin to wonder more?

Mr. MCGUIGAN. Absolutely. We found out that they were planning to sell the fronton before Wheeler to one Jack B. Cooper who

was a known associate of Meyer Lansky and apparently the security people had no problem with that. That might be troubling, but

what do I know? The next thing that happened is that they sold

the Hartford Jai Alai fronton, which meant that they did not have

to deal with me anymore.

Mr. SHAYS. OK. I am just trying to establish when you began to

have real questions about the FBI in Boston and when you began

to think that your witnesses were being killed before your very

eyes.

Mr. MCGUIGAN. Well, you know, whether they are my witnesses.

I think that Brian Halloran was a witness. He was not killed before my eyes, but he was killed before somebody’s eyes.

Mr. SHAYS. Was he someone that you were using as a witness?

Mr. MCGUIGAN. I knew Brian Halloran because he was actually

the guy who was tried in Boston in 1974 by Tom Dwyer for shooting an MTA guard. And Callahan was surveilled because he was

a defense witness. That was the first connection made to the WinVerDate 11-MAY-2000 08:28 Jun 19, 2002 Jkt 000000 PO 00000 Frm 00740 Fmt 6601 Sfmt 6601 C:\DOCS\78662.TXT HGOVREF1 PsN: HGOVREF1
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ter Hill Gang and to Callahan. So I knew who Halloran was because he had a rap sheet and he was a Winter Hill operator. I did

not know he had gone into a Federal safe house and had fingered

Callahan, Bulger, Flemmi, and John Martorano, who was a fugitive

in Florida, for the hit. I have heard that he fingered other people.

I do not know. We heard that from an informant, not from them

because they never told us.

Mr. SHAYS. Now Callahan was someone who was also killed

eventually, correct?

Mr. MCGUIGAN. Halloran was killed in May, and Callahan was

killed in August. Callahan was the last link to the case, at least

the last what we call non-mob link.

Mr. SHAYS. OK. Now you are referring to a case. What is that

case?

Mr. MCGUIGAN. Pardon?

Mr. SHAYS. What was the case? You said the last one linked to

the case.

Mr. MCGUIGAN. Well, the Wheeler case. Halloran tied to the

Wheeler case. Halloran is dead. He implicated Callahan in the conspiracy. OK? Callahan was the only non-mob guy implicated in the

conspiracy. So if you were picking what is going to happen, you

would say the next thing they are going to do is they are going to— I do not want to use the term but I will use it because it is easy— they are going to whack Callahan, that is what is going to happen.

Mr. SHAYS. Where did they kill him, and where were you?

Mr. MCGUIGAN. They killed him on August 2. I landed in Florida

on August 3. Our mission was that we would try to find Callahan

and interview him.

Mr. SHAYS. So the day before you were to fly there he was killed.

Mr. MCGUIGAN. He was found in a trunk in Miami Airport.

Mr. SHAYS. Where you landed.

Mr. MCGUIGAN. We landed in Miami Airport. They put him in

a trunk. They shot him in Fort Lauderdale and brought him over

to Miami.

Mr. SHAYS. Before giving the floor to Mr. Delahunt, I need to be

clear, and I want to say the record right now is not clear, as to

when you began to be uneasy about the New England FBI.

Mr. MCGUIGAN. Well, uneasy? I will tell you, when we heard

from an informant—— Mr. SHAYS. Let me ask you the question this way.

Mr. MCGUIGAN. When we heard from an informant that Halloran

had been——

Mr. SHAYS. Let me ask you the question this way. Did you trust

the FBI in a way that you could give them information and share

information and did you feel they would keep the information confidential, and did you feel they would cooperate with you? If the answer is no, when did you begin to feel no was the answer?

Mr. MCGUIGAN. Well, I want to say this. I deal with the FBI in

Connecticut on a constant basis. The agents who I deal with—I

have total confidence in them. I have had cooperating witnesses in

numerous cases where they have treated these people with nothing

but respect and conducted themselves in a totally honorable manner. So when I am talking about the FBI, it is not true that this

is a systemic problem. I deal with these people every day and I conVerDate 11-MAY-2000 08:28 Jun 19, 2002 Jkt 000000 PO 00000 Frm 00741 Fmt 6601 Sfmt 6601 C:\DOCS\78662.TXT HGOVREF1 PsN: HGOVREF1
734

sider them close friends and honorable people who do the right

thing above all else. But, talking about this case and the people involved in this case, I would not give them any information.

Mr. SHAYS. Would you have called the Boston FBI and given

them any information?

Mr. MCGUIGAN. For what?

Mr. SHAYS. Ask their cooperation.

Mr. MCGUIGAN. Mr. Halloran called the Boston FBI.

Mr. SHAYS. Yes?

Mr. MCGUIGAN. Well he ended up dead. That is, you know, I am

not calling.

Mr. SHAYS. And you think there is a connection? I just want the

record to show that.

Mr. MCGUIGAN. Well, he did. He called the FBI, he ended up in

a safe house, and the next thing you know he ended up on a street

gunned down. I do not know what happened. Maybe they can figure out what happened.

Mr. SHAYS. OK. I am going to ask one last question. I am sorry,

Mr. Delahunt.

Mr. MCGUIGAN. Somehow they must have found out about him.

Mr. SHAYS. Mr. Delahunt.

Mr. DELAHUNT. Let me just go for a few more minutes. Let me

see if I can rephrase. I think what Mr. Shays is looking for is some

context. Were you surprised when you initiated your efforts in

terms of the licensing investigation that you heard nothing from

the FBI but at some point in time heard from the Suffolk County

District Attorney’s Office that there was a problem with Callahan?

Mr. MCGUIGAN. Absolutely. This was shocking.

Mr. DELAHUNT. But this was the first indication that maybe, just

maybe some folks in the Boston office of the FBI were not being

fully forthcoming?

Mr. MCGUIGAN. Yes. I attributed it at the time to not being fully

forthcoming or perhaps not reading their reports.

Mr. DELAHUNT. Right. It was an oversight.

Mr. MCGUIGAN. When I found out that they had handed over reports—I do not know who handed them over to the retired agent— but reports out of their office were handed over to a retired agent

that I did not get, that got a little more than they just did read

them then.

Mr. DELAHUNT. You were annoyed at that point?

Mr. MCGUIGAN. That is annoying. That is annoying.

Mr. DELAHUNT. That was annoying.

Mr. MCGUIGAN. Yes. You begin to think that maybe they are not

really on your team.

Mr. DELAHUNT. You get a feel.

Mr. MCGUIGAN. Yes.

Mr. DELAHUNT. But then after those reports ended up—presumably the retired FBI agent was Mr. Rico?

Mr. MCGUIGAN. I believe that is so, yes.

Mr. DELAHUNT. Then you went from annoyed presumably to either really surprised or disturbed when in the course of your investigation as to whether a license should issue or not Callahan resigns.

Mr. MCGUIGAN. They tanked our investigation.

735

Mr. DELAHUNT. Did you smell something at that point in time?

Mr. MCGUIGAN. Well, I realized that our investigation had been

tanked. Who tanked it? I do not know.

Mr. DELAHUNT. You do not know who tanked it.

Mr. MCGUIGAN. I do not know.

Mr. DELAHUNT. But it did not pass the smell test, so to speak?

Mr. MCGUIGAN. No. It was disturbing. It did not look like everybody was playing on the same team. I do not know.

Mr. DELAHUNT. OK. And then later on, after the license is issued

to fronton, you develop information that someone is skimming.

Mr. MCGUIGAN. Actually, Ted Driscol originally developed that

and I started to look at it.

Mr. DELAHUNT. So then as a result of the efforts of an investigative reporter from the Hartford Courant, Mr. Driscol, you, in your

role as State’s attorney in charge of organized crime or State’s attorney period, say, hey, I better take a look at this. And that is

when you run across Callahan again.

Mr. MCGUIGAN. Callahan, player fixing, which came into that.

We moved forward on player fixing for quite a while and then

started to wonder if they were fixing the games, and if they were

fixing them in Connecticut, were they fixing them everywhere?

Mr. DELAHUNT. Right. But the time that had lapsed from when

the license had issued to when you initiated your skimming investigation was what, 6 months, 2 years, 4 years?

Mr. MCGUIGAN. Probably about 3 years. It took about 4 years.

Mr. DELAHUNT. It took about 3 to 4 years.

Mr. MCGUIGAN. Yes.

Mr. DELAHUNT. Let me ask this. Were you surprised that as a

result of your investigation and your desire to interview Mr. Callahan, and your conversation I guess a day or two prior to that or

at least a representative of your office with Mr. Wheeler, it must

have been profoundly disturbing when you go to Miami and hear

that Mr. Callahan has been whacked out.

Mr. MCGUIGAN. Yes. I was thinking that Miami was not the

town I wanted to be in.

Mr. DELAHUNT. Right. You did not want to establish deep roots

there.

Mr. MCGUIGAN. Yes. The District Attorney that was with me

said let’s hit the silk and go home.

Mr. DELAHUNT. But at that point in time, and again this is pursuing what Mr. Shays was, did you really start to wonder what

was going on? Did the smell become more putrid at that point in

time?

Mr. MCGUIGAN. Yes. I mean, it was troubling.

Mr. DELAHUNT. It was troubling.

Mr. MCGUIGAN. It was troubling.

Mr. DELAHUNT. Were you surprised later on, and this is recent,

to learn that Mr. Flemmi, who was an informant for Mr. Rico, had

put the contract out on Mr. Wheeler and that contract was executed, no pun intended, executed by Mr. Martorano? That has surfaced as a result of a case involved——

Mr. MCGUIGAN. I think Martorano pled to that, I am not sure.

Mr. DELAHUNT. He did. Right.

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Mr. MCGUIGAN. I was not surprised at all because we were told

by some informant that is what Halloran said. Of course, for some

reason the Organized Crime Strike Force in Boston and the FBI

found Halloran’s testimony to be incredible and they found him not

deserving to be in witness protection. And I must say, to me, it is

amazing Joe Barboza deserves to be in witness protection and a

guy who is fingering someone who murdered the president of the

Telex Corp.—a distinguished gentleman with no criminal connections whatsoever, a wonderful family man, living in Tulsa, a pillar

of his community—is killed, and in a State where he bought a gambling facility where there were all kinds of allegations of skimming

and player-fixing, in this case we do not want to believe somebody

who says I am a first-hand witness. We kick him out of witness

protection and he gets whacked in south Boston. And Joe Barboza,

well, let’s set him up in the Napa Valley.

Mr. DELAHUNT. And teach him how to be a cook.

Mr. MCGUIGAN. Yes, teach him how to be a cook.

Mr. DELAHUNT. Right. Let me ask you this. The decision to place

an individual, if you know, Mr. McGuigan, in the Witness Protection Program, let’s be specific, to the best of your knowledge in the

instant case of Brian Halloran, what Federal officials would be involved in making that decision?

Mr. MCGUIGAN. I would think the FBI would be the principal

people. I do not know if the Strike Force prosecutor has any input

or not, I do not know.

Mr. DELAHUNT. OK. Do you know, if you do know, who the FBI

officials would have been at that point in time?

Mr. MCGUIGAN. No, I do not know who they were. They did not

tell us they had him. They did not tell Tulsa, apparently, who had

a murder that they have got a first-hand witness.

Mr. DELAHUNT. Do you know who was the chief prosecutor at

that point in time?

Mr. MCGUIGAN. For the Organized Crime Strike Force?

Mr. DELAHUNT. For the Organized Crime Strike Force.

Mr. MCGUIGAN. I think it was Jeremiah O’Sullivan. I am not

really sure.

Mr. DELAHUNT. OK. That was an attorney by the name of Jeremiah O’Sullivan who would have been the head of the Organized

Crime Strike Force.

Mr. MCGUIGAN. Yes, I think it was.

Mr. DELAHUNT. What would be interesting I think, Mr. Chairman, is to ask Mr. O’Sullivan what his understanding was of the

rejection of Mr. Halloran.

You mentioned Tulsa. Now you said that you proffered whatever

assistance that you had at your disposal to Tulsa.

Mr. MCGUIGAN. Oh, absolutely. Absolutely.

Mr. DELAHUNT. Were they grateful for that?

Mr. MCGUIGAN. I believe that my inspector, George Ryalls, had

an excellent relationship with Mr. Huff, who was struggling mightily for many years. I do not think he ever gave up on this case. He

deserves a lot of credit because he never gave up on this case. And

all the doors were closed, or most of them were closed.

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Mr. DELAHUNT. Did you or your inspector ever hear from anyone

from Tulsa relative to the cooperation they were receiving, or lack

thereof, from the Boston office of the FBI?

Mr. MCGUIGAN. I know that—but I really better not say what

George Ryalls told me because you are testing my memory. I do not

have notes or anything. George was friendly with Mr. Huff, but Mr.

Huff did not seem like, you best ask him, he did not seem like they

were exactly leaning over backward to give him the information.

Mr. DELAHUNT. Like he really was not happy?

Mr. MCGUIGAN. Yes. That was my impression from Mr. Ryalls.

Mr. Ryalls has passed away. He passed away about a year and a

half ago. But he certainly felt that when this started to uncover

and given Judge Wolf’s hearings, he was a very happy investigator

because he had spent many years frustrated by what happened.

Mr. BURTON [presiding]. I want to yield to Mr. Shays, and if you

have more questions we will come back to you real quickly. But I

just wanted to ask one question. How far do you think Congress

should go with this investigation of FBI complicity in putting innocent people in jail? We know about Mr. Salvati, and we know about

some other people that went to jail with Mr. Salvati, we know

about a case I believe in New Jersey, and there is one I think in

Rhode Island. How far do you think Congress should go with this

investigation? I am asking all of you now.

Mr. MCGUIGAN. I think it is important that the record be clear

as to what occurred if abuses are going to be ended and we are

going to have a change. I think the agency today is not the agency

it was 5 years ago. I think there are tremendous changes. I know

that people I work with in Connecticut for the last 10 years, and

I am a private defense attorney now, are wonderful people. I have

no doubts.

Mr. BURTON. So you think the corruption level has decreased

dramatically in the last 5 years?

Mr. MCGUIGAN. Yes. But apparently from everything I read in

Boston it was a long fight. In other words, when people, one of the

problems—I did corruption cases mostly when I was a prosecutor,

that is really what I did. Corruption cases, by their very nature,

when you involve people in one corrupt act you own them forever.

You own them. And you can get them to do what you want again

once they commit the first corrupt act. That is why corruption has

to be rooted out.

Mr. BURTON. Mr. Shays.

Mr. SHAYS. I am not an attorney, so I do not always know the

answer to my question. I am going to ask the others of you a question later. But Mr. McGuigan, I still have some questions for you.

The interesting thing about this relationship is that, given you are

a witness, I get to ask the questions. It is the first time I have ever

gotten to ask you so many questions, Mr. McGuigan. But what I

am having trouble reckoning with is how you deal as a very powerful law enforcement official with another law enforcement agency

when someone like Mr. Salvati or Mr. Garo does not have that

same kind of clout.

In my simple mind, and I want you to tell me why my simple

mind just goes off the track here, if I was a U.S. attorney or ran

an organized crime task force and I began to see FBI agent retirees

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that are working for organized crime in my State, not thinking that

the Connecticut people are, but I would have wanted to go to the

Director in Boston and say do you know what the hell is going on?

Your people retire and then they work for organized crime. Now

there is a reason you either did it or you did not. And if you did,

I want to know. And if you did not do it, I want to know why because that will tell me a lot about how you were thinking this

through. So if you would respond to that question.

Mr. MCGUIGAN. I do not quite—— Mr. SHAYS. Do you want me to repeat the question?

Mr. MCGUIGAN. I do not understand the question.

Mr. SHAYS. Let me repeat again because I want you to understand.

Mr. MCGUIGAN. No. I think I heard it, I just do not understand.

Mr. SHAYS. No. I am going to repeat it again. And the reason I

am going to repeat it is it is not that difficult, frankly, unless you

are Alan Greenspan. What I am asking is you began to believe correctly that the retired FBI agents were working for organized

crime. That is true. You believed that.

Mr. MCGUIGAN. No. I did not say that. What I said is that they

were ignoring criminal connections or unexplainably not finding

criminal connections of employees, which was troubling.

Mr. SHAYS. Which was very troubling. That is an understatement, troubling. It is alarming. It is outrageous. It is all of those

things.

Mr. MCGUIGAN. Those are your terms. They were troubling to

me.

Mr. SHAYS. OK. And troubling to a point where you would feel

inclined to tell the Director in Boston or whatever his title is that

you have got a problem in Hartford and I have got a concern? Or,

troubling that—let’s take the Callahan circumstance. You basically

had the FBI in Boston not sharing with you information that everybody else seemed to know. Either they were idiots or they were

covering up. Those are your only two logical conclusions. And so I

am interested to know whether you went to the FBI Director in

Boston and said you have got a cover-up here or you have got a

bunch of idiots who do not know what everybody else in Boston

seems to know, that Callahan is involved in organized crime. I

want to know if you did that?

Mr. MCGUIGAN. No. And I do not think it would have been of any

avail whatsoever.

Mr. SHAYS. Why?

Mr. MCGUIGAN. Because it is just not the nature of the agency.

The agency offered no explanation to me, and I do not need to compel one as to why they provided information to other people and

not to us. The agency was negative on our case. We originally gave

them information regarding organized crime figures in Bridgeport

Jai Alai. They seemed to have no interest in that. And, quite frankly, they apparently did not think that there was infiltration of organized crime into Jai Alai, or they were not interested in it.

Mr. SHAYS. So I am going to conclude from that you basically believed it would have been pointless.

Mr. MCGUIGAN. It was pointless. And history has borne me out

on that. It was pointless.

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Mr. SHAYS. Well, it was pointless for a different reason. They

were corrupt.

Mr. MCGUIGAN. That is what I said, it was pointless.

Mr. SHAYS. That is how Alan Greenspan would have said it. Ted

Driscol was a reporter working for the Hartford Courant. Are you

aware of any efforts by any present or former FBI agents to cast

doubt on Driscol’s reporting?

Mr. MCGUIGAN. To what?

Mr. SHAYS. Ted Driscol was a reporter for the Hartford Courant

writing about some of these stories, a very fine reporter. Are you

aware of any efforts to cast doubt on Driscol’s reporting by any

present FBI agent or any former FBI agent?

Mr. MCGUIGAN. I believe former FBI agents. But I think the

committee will need to develop that.

Mr. SHAYS. And who are the former FBI agents?

Mr. MCGUIGAN. Our understanding is that some of the former

agents or one of the former agents may have said that Mr. Driscol

was a possible suspect in the Wheeler homicide—him being an investigative reporter—rather than the people he was associated

with. I am sure that is who would have done it, an investigative

reporter.

Mr. SHAYS. OK. Mr. Chairman, may I just—— Mr. MCGUIGAN. I do not know. I have never seen the report that

says that is true.

Mr. SHAYS. OK. Fair enough.

Gentlemen, you have all been very willing to listen to my questions. Mr. McGuigan, did you have something else you wanted to

say?

Mr. MCGUIGAN. Mr. Chairman, I have a 4:30 flight. I have a

meeting in Miami. May I be excused. I have been grilled by Brother Delahunt, Congressman Delahunt, Congressman Shays, and I

would hope that the other members of the panel would understand.

Mr. BURTON. I think that we are about to wrap up.

Mr. SHAYS. I have about five more questions. But he is free to

go.

Mr. BURTON. Do you have any more questions of Mr. McGuigan?

Mr. DELAHUNT. I have none other than be careful of that Miami

Airport, Mr. McGuigan.

Mr. BURTON. Do you have any more questions of Mr. McGuigan?

Mr. SHAYS. Let me go quickly through these. Mr. Duke was very

helpful in providing a number of recommendations.

Mr. BURTON. We will get you out of here in the next 5 or 10 minutes, is that all right? I will get you to the airport, promise. Do not

worry.

Mr. SHAYS. Mr. Duke, the first one was confine and regulate—

these are recommendations for reform. I just would like yes or no

or quick qualifications. The first one was confine and regulate the

bribery of witnesses. I think we are all agreed on that, correct?

The second was criminalize the suppression of exculpatory evidence. I think we have addressed that. But that has to be dealt

with, you all agree?

Mr. GARO. Yes.

Mr. LAWRENCE. Yes.

Mr. SHAYS. Mr. Lawrence, do you want to qualify anything?

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Mr. LAWRENCE. No.

Mr. SHAYS. OK. The third one was extend the time limitations

on prosecutions. I think you all agree on that, is that correct?

Mr. GARO. Agreed.

Mr. SHAYS. OK. Thank you. On four, reduce the harsh time limits on collateral attacks. I am not quite sure what that means. Mr.

Duke, real quick?

Mr. DUKE. The limitation is a prisoner cannot attack a conviction

after the time periods permitted under the Anti-Terrorism Act have

expired. And I suggested that you might want to take a look at

that and adjust those severe limitations.

Mr. SHAYS. Mr. McGuigan, do you agree with that? Do you agree

with that recommendation?

Mr. MCGUIGAN. No response.

Mr. SHAYS. Your mind is somewhere else here. Mr. Garo.

Mr. GARO. I do not have enough information about that, Congressman, so I really cannot answer that.

Mr. SHAYS. OK. Mr. Lawrence.

Mr. LAWRENCE. I really do not have an opinion on that, Congressman.

Mr. SHAYS. Pardon me?

Mr. LAWRENCE. I do not have an opinion on that, Congressman.

Mr. SHAYS. OK. Create an independent innocence review commission?

Mr. GARO. I think that is an interesting proposal. And the reason

for that is, I agree with Mr. McGuigan, who is going to prosecute

the prosecutors if they should be subjected to criminal prosecution?

Mr. BURTON. OK. But I think what we will do is if there is a

commission, and we will be looking at that, if there is a commission

appointed, one of the things we will ask them to make a possible

recommendation on is how you prosecute prosecutors who are corrupt.

And the last question?

Mr. SHAYS. Yes. Eliminate the absolute prosecutorial immunity,

is that what you are suggesting, Mr. Duke?

Mr. DUKE. Yes. That is the civil immunity for tort actions by victims of prosecutors. It is now absolute and I suggest that it be

changed to a qualified immunity.

Mr. SHAYS. Mr. Garo.

Mr. GARO. I think the Salvati case speaks reams of why that

should happen.

Mr. SHAYS. Mr. Lawrence.

Mr. LAWRENCE. I could support a movement to a qualified immunity.

Mr. SHAYS. And then just this last question. Is there any one

issue that you would recommend on top of this list? Mr. Lawrence.

Mr. LAWRENCE. I would not support an immediate change in the

immunity of the prosecutor—as a former prosecutor, I am concerned; I think it really has to be thought through. There would be

a spate of new suits against prosecutors which we are not going to

be able to dispose on motion and which are going to tie up huge

amounts of time.

Mr. BURTON. That is why we said that what we are thinking

about is possibly having some kind of a commission look into all

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of this and make a recommendation. I am sure that would be one

of the things they would discuss.

Anything else, Mr. Shays?

Mr. SHAYS. No. I just wanted to make sure that there is not one

key issue that you would add to this list. Mr. Lawrence.

Mr. LAWRENCE. No, I do not think so, Congressman.

Mr. SHAYS. Mr. Garo.

Mr. GARO. No.

Mr. SHAYS. Mr. McGuigan.

Mr. MCGUIGAN. No.

Mr. SHAYS. Mr. Duke. Thank you all very much. I thank the tolerance of the committee.

Mr. BURTON. Thank you, Mr. Shays. You have been very patient,

fellows, and I want to tell you you have really helped us a great

deal. Hopefully, we will get this thing resolved and things will be

better.

Do you need somebody to get you to the airport? Do you have a

way out there?

Mr. MCGUIGAN. I will get a cab.

Mr. BURTON. OK. You sure you are going to be all right?

Mr. MCGUIGAN. I will be all right. Thank you.

Mr. BURTON. All right. Thank you all very much.

Did you have any more questions?

Mr. DELAHUNT. Yes, but I can just make it a conversation. There

is no need—— Mr. BURTON. Well, why don’t we excuse Mr. McGuigan.

Mr. DELAHUNT. Yes, whoever has to go. Mr. McGuigan, good luck

and I hope to see you in Boston.

Mr. MCGUIGAN. Thank you, Congressman. Nice seeing you. I will

see you in Boston.

Mr. DELAHUNT. Good to see you, Austin.

Mr. BURTON. Do you have some more questions real quickly?

Mr. DELAHUNT. Yes. I think it was Mr. Duke who raised I think,

a problem that I do not know how to address. And that is, when

an informant is developed, what is an appropriate bargain, if you

will?

We need, we, meaning the Government, the prosecutor, need on

occasion informant information and sometimes informant testimony. But, for example, in the case of Salvati, with Barboza as a

witness, this is the bargain, he puts four innocent people in jail because of perjured testimony. His second case is a case against an

alleged ring leader or head of organized crime in Boston by the

name of Angiulo. He loses that case with his testimony. In the

third case three individuals are convicted and, as the chairman indicated, one being the head of organized crime in New England

area. He gets 21⁄2 years. Then he is relocated. Then the Federal

Government intervenes to secure a parole in a non-Federal case, a

State prosecution. It is as if there is a continuing obligation.

In the case that I referenced earlier in my own experience, here

I am a State prosecutor, I am investigating a murder case, and the

information that would have been critical to solving that particular

homicide was not disclosed to me because the FBI informant was

being protected because he was providing information to the FBI

on a ring that was receiving stolen property.

742

There has to be some sort of balance, some sort of consultation

with law enforcement, not just the district attorney’s office necessarily, but with an agency, one that probably already exists,

about whether the informant should receive what kind of a benefit.

How do you go about the measurement of an appropriate benefit?

You know, I always remember a major in the State Police telling

me that if all of the informants in Massachusetts, informants of

Federal, State, and local agencies, were arrested, we would see a

decline in the crime rate of approximately 90 percent if we just

went out and arrested our own informants. I am beginning to believe that was understated.

But there has to be some, and I would ask for you to reflect on,

what is the mechanism to determine whether it is an appropriate

benefit to the people, whether it be the people of a State, or the

people of the United States, in terms of the arrangements with an

informant. I believe, and I would be interested again in any observations or comments that you have, we, and I mean all of law enforcement, tend to rely too heavily on informants. They are not, in

my judgment, as necessary to the successful investigation and prosecution of those who would commit crimes against society as we

have concluded.

I think that could be a premise that has to be examined. We can

use immunity. We can use other investigative techniques. When we

sit down with these informants we can say, listen, you are going

to go to jail for 10 years rather than 15 years. Not that we are

going to put you out in Santa Rosa, not inform the community

there that you have killed 20-some-odd people, and teach you how

to be a cook.

What is the mechanism of how we achieve an appropriate, ethical bargain when we do rely on the informants? Do any of you have

any ideas? And if you do not, I would ask that you reflect on it.

Mr. GARO. Congressman, I am going to say something that I do

not think yet has been stated in all of our hearings and in all our

testimony and everything that has gone on for the past year in the

Salvati case and in the Deegan murder case. It is my opinion from

all of the evidence that I know, and I know a lot more than has

been brought out here, that Joe Barboza was extorting the FBI on

a regular basis. You heard Mr. McGuigan say that once that you

have committed an illegality, you have got them for life. Joe

Barboza was cunning enough to know that. And in my opinion, he

had them wrapped around his little finger. He got what he wanted

because they did not want him to recant his testimony.

Second of all, is that I think that what the Deegan murder case

and your entire investigation that you worked so hard and diligently on for over a year shows the following: That there are no

shortcuts to the truth. I believe that you will find out if you were

to investigate, like I have, that the FBI’s handling of investigations

is to go get an informant or a rat, do not go and have to do the

laborious investigations that your office had to conduct, that Mr.

LaTourette’s office had to conduct, and what Mr. McGuigan’s office

had to conduct. Because if we have informants, we cut down the

time.

Third, that the maximum sentences, minimum/maximum sentences that have been given, let’s say, for drug offenses, that has

743

created a whole new world of rats and informants. And in my opinion, it does the opposite of what it is supposed to do. In other

words, it makes people say I will say anything you want so that

I do not get a maximum/minimum penalty. And to try to get the

punishment to say that we are going to keep increasing the punishment, all it is going to do, and I agree with you, is it is just going

to proliferate the fact of informants getting more and more deals.

And finally, I do not care what anybody says, when you make a

deal with the devil, an informant mostly is, most of the time they

are devils. When you make that deal, it is etched in stone. So that,

you have a break on this one because you are informing. If you

break the law, you are going down. No second chances. No protecting them from murders. No protecting them from life

imprisonments. You are going down. If they enforce that type, Mr.

Congressman, I think that we will have a better system of enforcing the truth from informants.

Mr. DELAHUNT. Professor Duke.

Mr. DUKE. Yes. I think, ironically, one of the problems of our use

of informants is that informants have more to offer in the bargain

if they want to help convict innocent people. Because if you have

got a case against somebody, you do not need the informant. If you

do not have a case, you need the informant. That is an inherent

problem in the use of informants.

I think we should probably consider making the reward to the informant proportionate to his own criminality. I said earlier today

I was not sure that I would want to prohibit absolutely deals with

Barbozas and Gravanos. But I am inclined to think that probably

I would. If you let somebody go who has committed multiple dozens

of murders, what kind of a message are you sending to criminals?

What you are saying to them is it does not matter what crime you

commit, the worst possible crime imaginable, if we catch you, all

you have to do is flip and give us valuable testimony and you will

get away with your crime. That is the hole we have dug for ourselves.

I think if we had a corroboration requirement, one that had real

meat to it, real heft to it, we would make it less easy for informants to fabricate cases in order to cut a favorable deal because their

testimony would not be that worthwhile.

But I agree with you, it is an enormously difficult problem. I do

not know of a more difficult problem in the criminal justice system.

Mr. DELAHUNT. Mr. Lawrence.

Mr. LAWRENCE. Congressman, I think I would just add a small

cautionary note on this. I think when we talk about informants

that the watchword ought to be vigilance but not over-kill. There

is a proper use for informants in certain kinds of cases. There are

certain cases that arguably could not be made without informants.

So your suggestion that it be reconsidered is certainly I think a

productive idea. And the suggestions that Professor Duke and Mr.

Garo have made with respect to a corroboration rule I think I

would share, and certainly that there ought to be no future-looking

immunity. You know, Steven Flemmi had this idea of a free pass

on the crime train. Immunity with respect to past deals is one

thing; forward looking is certainly outrageous.

744

That said, within the context of informants and plea bargains as

well, vigilance but not over-kill.

Mr. DELAHUNT. Can I have another question, Mr. Chairman?

Mr. BURTON. Certainly.

Mr. DELAHUNT. I do not know if you have had a chance to review

the guidelines that were promulgated by the Department of Justice

in the initial aftermath of the Boston-Flemmi-Bulger situation. And

this goes to the issue of mechanisms to ensure compliance, enforcement, if you will. There is a lot of good concepts in terms of what

ought to happen and how the issues that we have been discussing

now for a year ought to be addressed. But nowhere in those guidelines is there a mechanism to ensure compliance by prosecutors or

by FBI or Federal agents. None whatsoever.

I dare say that if we went back and examined the policies that

were in effect at the time, whether they were Justice Department

or FBI policies, they were simply ignored and there was no compliance whatsoever and no consequences if you ignored them.

Now the Office of Professional Responsibility is talked about in

the course of your testimony. Myself and the former Chair of the

Judiciary Committee, Henry Hyde, requested and the GAO study,

I think that you referred to, Professor Duke, was the end product.

You know, it gets so confusing even for those of us who are experienced in the justice system as to whether there is an Office of Professional Responsibility for the FBI, is there an Office of Professional Responsibility for the DEA, is there an Inspector General for

the Department of Justice. To understand the system you need a

degree in engineering from MIT. It just gets so convoluted.

To be perfectly honest with you, even though there has been

some efforts made in terms of enhancing the authority and encouraging the Office of Professional Responsibility to monitor conduct

and to enforce the standards and practices and polices of all of the

Justice agencies, I do not think they even come close. It appears

to me it is a recipe for disaster if we believe the answer is doing

something with the Office of Professional Responsibility.

It is my own sense, and I am just giving you my opinions without

a lot of reflection, but the problem is so profound that we need radical surgery here. We have to come up with a new mechanism. I

do not know what it is. Your suggestion, Professor Duke, about an

Office of Independent Prosecutor, even though it makes me a little

nervous, but if it was only within the agency itself and maybe if

it reported only to the Attorney General. I do not know the answer.

But if you have any suggestions, I would like to hear them. And,

again, I ask for your reflection and consideration. You can communicate with the committee if you have any specific ideas.

Mr. DUKE. Well, I just agree entirely with your perception of the

role of the Office of Professional Responsibility. It seems to me, at

least in my experience with them, that their function is to paper

over and insulate further these agencies from criticism. And that

is all they do as far as I can tell. They create the appearance of

independent review when, in fact, it is anything but independent,

and in most cases it is not even review.

Mr. BURTON. Any other comments, gentlemen?

I think that is one of the things that you and I and other members ought to take a look at and try to come up with some, maybe

745

with some input from these gentlemen and others, come up with

some kind of a recommendation that we can turn into legislation.

But I am looking forward to working with you because you know

what the heck is going on.

Mr. DELAHUNT. Yes, sir.

Mr. BURTON. Mr. Shays, anything else?

Mr. SHAYS. Nothing further.

Mr. BURTON. Gentlemen, thank you very much for your patience.

We appreciate your being here.

We stand adjourned.

[Whereupon, at 2:10 p.m., the committee was adjourned, to reconvene at the call of the Chair.]

[The prepared statement of Hon. Wm. Lacy Clay and additional

information submitted for the hearing record follows:]

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750

751

752

753

754

755

756

757

758

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