Judge Gertner’s Take On FBI Top Echelon Informants

(1) bugsyThe understanding of the events surrounding the James Whitey Bulger saga must first start with the FBI. How was it that he became an asset of the FBI? We know he was made a Top Echelon Informant (TEI) by the Bureau. The question that is open and I’ve asked you to consider is what did the FBI offer TEIs to induce them to join with it.

In the Limone decision Judge Gertner  talked about the TEI program. This was necessary because she was dealing with the murder of Teddy Deegan on March 12, 1965. The FBI had prior knowledge a hit was planned on him from an electronic bug planted at the office of Raymond Patriarca the head of the Patriarca Crime Family in New England. She noted after Deegan was killed the FBI knew who did it which information was “confirmed by Top Echelon informant reports after its commission.”

She noted in addition to using electronic bugs the FBI developed the TEI program to go after the Mafia. She wrote it was “officially inaugurated by J. Edgar Hoover on June 21, 1961” citing footnote 21. That footnote reads: “Hoover described the program in a signed memorandum: “To insure that the Bureau meets its responsibilities in connection with the Criminal Intelligence Program, it is mandatory that the development of quality criminal informants be emphasized and the existing program be implemented and greatly expanded.” “

I’m not sure she is right there but for the time let’s go on. She pointed to three aspects of the program that were significant: “First, the informants . . . . would be able to provide high-level information on a major scale.  (The corollary – – apparently acceptable to the FBI – – was that these informants might well continue to commit serious crimes.) Second . . . [t]heir relationship with the FBI was supposed to be a lasting one, providing information on a continuing, long-rang basis. Third, the program was strictly confidential – – which not only meant that its existence would be kept secret from the general public and other divisions within the federal government, but also from state law enforcement agencies.”  She noted “special care [had to be taken] . . . so that the informants’ identities would not be disclosed”

Here again she pointed to footnote 28 a letter from Washington to the FBI SACs dated April 10, 1962, which said: “It is mandatory that our highly confidential informants and techniques are afforded complete protection at all times . . . . It is of paramount importance in preparing material which is disseminated to other agencies that meticulous care be taken to afford these informants maximum protection by appropriately paraphrasing the material contained therein.”  She added in the footnote that this policy was still ongoing as of 2007. She said she changed that policy and ordered that all the records relating to that case be turned over to defense counsel without redacting. This would expose the identity of the informants.

I’m not sure how wise that is turning over to Mafia lawyers the names of people working under an agreement of confidentiality. Perhaps because the information dealt with matters 40 years old that it caused no harm but it makes a bad precedent. It should serve as a warning to any TEIs that there is a potential for their true identities to be disclosed at some point.

You note Judge Gertner said the purpose of the TEI program was to get informants with high level information, develop a long-term relationship with them, and protect their identities. What she didn’t talk about was what the FBI would do for them in the relationship. She suggested the FBI accepted the fact that the TEIs may continue to commit crimes. They would have done that whether they had the relationship with the FBI or not.

So the question remains open, what was the FBI offering these top-level hoodlums in order to induce them to inform on their buddies and provide it with the valuable information it sought.   

 

15 thoughts on “Judge Gertner’s Take On FBI Top Echelon Informants

  1. William, We rage against the darkness, but remember it is always followed by dawn. Each one of your points underscores what is harshly evident; FBI Agent John Connolly really got railroaded in Florida !!! The reasons for this are numerous, complex, and mysterious. John will spend another Thanksgiving separated from a loving family and very many loyal friends ; including over 100 career FBI Agents who never forgot him and have continued to militate for his release. Meanwhile. many a scapegrace and scapegoating hypocrite will go … ” whistling pass the gravy ” … on this Thanksgiving Day.

    We have previously noted the power of words and the ” conceptual boxes” they create and thus hypnotically induce trance states in people ; and notably here, people in the jury box. Just read your own post just written that I here respond to. Adeptly you cast a Spell with your words. This is the Magic any serious writer is about when they rhythmically intone … The Great Electric … as Walt Whitman did sing out against the night in his own spellcasting for all who love truth to do !!!

    ” He said he was one of the gang ” is a powerfully hypnotic formulation presented by prosecutors to the jury in Boston and Florida. What I am wondering and hoping is that the ” one of the gang ” formulation works paradoxically in John’s favor when the full ten members of the Appeal Court decide his destiny in mid-February. Just US …and …JUSTICE ; what are the chances that the other seven Judges will throw out a unainamous decision now in the klieg lights that ” Three of the Gang !!! ” have their Professional egos and reputations now very publicly depending on?!? … Happy Thanksgiving W 🙂

  2. Matt – been a while since I wrote you but just wanted to thank you for being so thorough with this subject matter that I find so fascinating, and feel others do as well. You dissect the various angles angles and analyze the facts. Thanks and happy turkey day

  3. Matt: There is no doubt that many of these informants thought they were getting more protection than they were by giving information to the FBI. Some of them were paid money (e. g. Jackie Presser). Some were maneuvering to help the FBI so as to neutralize their criminal competitors. It is law enforcement’s job to sort through all of these motives and make appropriate use of the information provided–a very, very difficult task–sometimes done well and sometimes not.

    There is no question in my mind that the security measures used to conceal the identities of these informants from, in particular, others in law enforcement, were absolutely warranted. Actually, the identities of informants and especially TEs are closely held secrets even WITHIN the Bureau. My experience working with cops all over the country was that often cops knew each other’s informants’ identities and operated much more loosely with this information. Not so in the Bureau. I remember watching a retired Boston SA testify in a pretrial hearing in Miami regarding the murder of Richard Castucci (pinned (unfairly) on Connolly). The local prosecutor and judge clearly did not believe the agent’s testimony that very, very few in the office knew the identity of this informant and that the agent simply did not believe that Connolly would have known. They really didn’t get this difference (in acceptance of the need-to-know principle). It made perfect sense to me.

    1. Chris:

      I agree that it is utmost important to keep the identities of the TEIs secret. That was one of the three basic principles of the TE program. One thing though is Connolly was not good at doing that from what I understand. A friend of Connolly’s who worked for the FBI as a file clerk testified that he was concerned that everyone in the Boston office was talking about Whitey being an informant. He went to Connolly to tell him of his concern. Connolly told him not to worry about it and told him Flemmi was also an informant. I do think that is an outlier because from the little I know the identity of TEIs was supposed to remain as you suggest. That is why I suggest that what happened in Boston with Connolly protecting Whitey and Stevie could very well have happened in other FBI offices throughout the country but it is something we will never know because of the need for secrecy as to a TEI’s (or any informant’s) identity. That is also why leaving Connolly twisting in the wind as a rogue agent is a great wrong.

      By the way Castucci was not killed because he was an informant. His killing was because the Winter Hill Gang owed a ton of money to the NY Mob and Castucci was the one who carried the money to NYC for the mob. His contact was a guy named Jack who was a TEI for the NY FBI. Castucci came over and they gave him the money, told him to count it, then murdered him and threw his body in the trunk of his car. They kept the money and when the guys came up from NYC looking to collect they said they had already paid the money and whoever murdered Castucci had taken it. That was true because they did give him the money, murdered him, and took it back. The NYC guys left without being paid.

      The Boston jury found Connolly’s involvement in the Castucci murder was not proven. The government couldn’t prove he had knowledge of that Castucci was an informant or that he accessed any of the information Castucci was providing to his handler. How that becomes an issue in Miami is unclear to me, it never should have been let into the case in any manner.

      The worst thing about what happened in Boston was that two special agents, an ASAC named Fitzpatrick, and a supervisor named Morris disclosed to the Boston Globe the identity of a TEI. The latter then becomes a government witness and the former goes out an testifies and writes a book. At trial when Fitzpatric was being cross-examined about some of the things he wrote he explained that he had written a memoir; which I assumed meant not everything in it was to be taken as true but only as he remembered it.

      1. The Boston jury found under the RICO statute that the murder-related counts against Connolly were not proven ( the jury said three times that the charges that Connolly leaked information that led to Callahan’s, Castucci’s and Halloran’s death was “not proven.” Additionally, the Boston jury said three more times that JOhn Connolly was “Not Guilty” of leaking information that led to these men’s death under Obstruction of Justice charges. So six times in Boston the jury absolved Connolly of any involvement in anyone’s death. I’ve stated what the Florida jury did above. Not guilty on first degree murder and conspiracy to commit murder, and its 2008 “guilty” verdict, a true travesty, was reversed in May 2014.

    2. Correction: the murder of Richard Castucci was not “pinned” on John Connolly: John was acquitted of leaking any information that led to anyone’s murder, including Castucci’s, Halloran’s and Callahans. In fact, as it now stands, John Connolly has been convicted of one crime during his 22-23 years as an FBI agent: passing a case of wine with $2000 in it from Whitey to Agent John Morris. That’s it. 2. Fred the Fed Wyshak, Durham and other federal prosecutors unsuccessfully “tried to pin” murder-related charges on Connolly both under RICO and under Obstruction of Justice charges (a total of six counts, 3 under RICO, 3 under obstruction. The Feds failed on all counts. You can’t appreciate these facts reading the Black Mass or any of Howard Carr’s books. 3. In other words, John Connolly has been acquitted of all murder related charges brought in Boston. In Miami, he was acquitted of first degree murder and conspiracy to commit murder. In Miami, the federal-state prosecutors (lead counsel Wyshak) added a Murder by Gun charge after the end of the trial and the jury did convict him of that,, even though the trial judge improperly instructed the jury, the SOL had run, and the prosecution failed prove essential elements (i.e. that Connolly held (had possession of) the murder weapon at the murder scene) of that charge. Connolly was 1,500 miles away on Martha’s Vineyard when Martorano killed Callahan.) It took over five years for JOhn Connolly’s Murder by Gun conviction (of John Callahan) to be overturned (2-1) by a panel of the District Appellate Court. The full court will now consider the absurd charge in February 2015. 4. What Florida and the FEDs have done to John Connolly is evil. I blame overzealous Federal prosecutors. The same gang (team) of prosecutors who initially believed Flemmi on the H. Paul Rico case. Flemmi started saying bad things about Connolly and Rico after he was in Federal prison for seven years and in headlocks by federal prosecutors and on the verge of his own capital punishment trial. Flemmi told stories the FED prosecutors wanted to hear and thus escaped the death penalty. You would think prosecutors would not put on the witness stand a known perjurer. The Boston prosecutors put on Flemmi and Salemme who they knew had repeatedly perjured themselves.

      1. The Castucci murder and all kinds of other crap was allowed in by the Miami judge as “other crimes” evidence at the Callahan murder trial.

        1. Chris:

          That’s really unbelievable. Did Connolly’s counsel put in that he was found not responsible for that and the Callahan murder.

          1. I don’t believe that was allowed but I am not sure. Pretty sure that judge would have disallowed anything from the defense like that, the way things were going. Talked to some experienced state practitioners here and they told me most judges here would never have allowed any “other crimes” evidence of this nature in a trial of the worst killer or drug dealer.

          2. MIAMI: All the “charges” hurled at Connolly in Boston federal court by Wyshak-Durham’s prosecutorial team were re-hurled in Miami; the Miami judge allowed all the “accusations” and “mud” to come in. Connolly’s lawyer railed against all the mud slinging; after sentencing he said, “When the Court throws enough mud at someone, sadly some of it sticks.” 2. Whether the judge prevented it or not, Connolly’s lawyers did not, to my understanding, admit the acquittal information from Boston. 3. The jury was never told Connolly was “convicted” of the minor charges in Boston, either, nor that he was presently incarcerated by the Feds. He appeared each day in court in a business suit (his orange prison garb left outside.). 4. Connolly’s trial in Miami was a wholesale re-trial of his Boston trial plus: additional info was added from Flemmi, State Cops (Major Foley, I believe, etc). 5. Remember, according to David Boeri and others, Flemmi testified under oath in 2006 that John Connolly never did or said anything intending anyone be killed. (The exact quote I’ve posted before.) Two years later in Miami he was testifying for the first time that Connolly was “one of the gang”, knew what they were doing and sanctioned it. 7. Flemmi also testified for the first time in 2008 (13 years after his federal incarceration and nine years after he testified Connolly was a good cop) that Connolly was a bad cop who took $20,000 a year from the gang. The FEDs economic/accounting expert was laughed out of Court when she tried to prove Connolly lived in excess of his means; Apparently, I’ve heard, she pointed to the house in Lynnfield and said Connolly couldn’t afford it, but she forget to calculate that his wife, a working girl until her mid-thirties, contributed to the purchase. Together, they could easily afford it. The defense moved that that experts’ fatally flawed testimony be struck. The judge denied that motion. 8. The judge was rigged from the beginning to allow all the dirt, all the mud, all the allegations, whatever the Defense under Wyshak wanted, and defense counsel’s valiant objections and motions to exclude were denied or struck down. 10. Want to investigate something? Investigate the Miami judges and prosecutors, in addition to their co-conspirators and lead counsels, the FEDs (especially lead counsel Fred the Fed Wyshak who spent years orchestrating the sham, show trial in Miami.11. Finally remember this: Because Connolly’s lawyer Manuel Casiebelle raised the Statute of Limitations defense seven days too late, John Connolly was sentenced to 40 years in prison for a crime, Murder by Gun, he could not have possibly committed (impossible both physically (as he was on Cape Cod) and legally (as the SOL had run and essential elements of the crime were never proven.) and remember it took nearly six years for the Florida District Appeals court to reverse that egregious error. Still Florida won’t release him and has scheduled more appeals. An enormity of injustice, upon injustice and it seems the whole world (except the Miami Innocence Project and a few stout hearted stalwarts like long time FBI-lawyer-friends) is indifferent or watching in silence. 12. It shows, this travesty in Miami, how corrupt our criminal justice has become and is. It shows how overly zealous, intemperate, power-drunk willful federal prosecutors can manipulate state judicial systems. It shows grotesque abuses of constitutional fair trial and due process rights. Miami, Florida is teaching all of us a lesson in the magnitude of judicial-prosecutorial abuse.

        2. P.S. Based on the testimony I saw (former SA Richard Daley) in Miami and all I know about the Castucci murder, Connolly had nothing at all to do with it and in all likelihood did not even KNOW that Castucci was an informant when it mattered–meaning prior to Castucci’s demise.

          Wyshak & Co. were allowed to imply that Connolly WAS responsible, however, based primarily on Steve Flemmi’s and Martorano’s testimony that they “heard from Whitey that he got the information from Zip [Connolly].”

      2. William:

        The prosecutors tried to pin the Castucci murder on Connolly in Boston and also put it into evidence at the Florida trial. No one said they were successful. Read my reply on the Castucci case to Chris where his murder had nothing to do with the FBI. The prosecutors were sold a bill of bull by the gangsters. The case of wine contained $1000.

        Cris pointed out that when Flemmi testified before Wolf Wyshak argued in his appeal that he was totally unbelievable. Then as you note he turned around and used him against Connolly. That, in itself, tell much about the man’s ethics.

        1. Matt, I’ve thought about our posts and re-posts. It comes down to this, I think: You believe the Feds should have known these killers would continue to kill, maim and commit major violent crimes and so the Feds never should have used them. We both agree that there’s a difference between the FBI being criminally involved in murders and being negligent. 3. I look at it this way: Monsanto makes asbestos; the truck drivers take it to the plant; the union workers at the plant (plasterers, masons, millers, etc.) work with it. Neither Monsanto, the Teamsters nor Union Officials intended anyone be killed. Yet, they are all negligent in not being more vigilant, more knowledgeable about the deadly substance they were dealing with. In Boston, the civil trial, the Federal jury held the FBI civilly liable for the wrongful deaths of Castucci, Callahan, Halloran, etc. The Appeals court reversed that. Both the defense (the Feds) and plaintiffs (victims families) said John Connolly was rogue agent and he and he alone was responsible. The Feds sold their co-worker down the drain. The fact is all the FBI agents in Boston were following an established federal policy (to a lesser or greater degree.) The fact is in the Federal Civil trial, John Connolly was not represented by any counsel; he was scapegoated and framed; the Federal courts didn’t care whether he was represented or not and allowed all the dirt from both sides to come in on him unquestioned, unchallenged. Another sham. Of course, why wasn’t Connolly represented in the civil side? Because the Feds had bankrupted him and had him in prison in solitary confinement. The Federal courts were indifferent, at best, to protecting this persecuted, indigent persons’ rights and allowed his name to be dragged through the mud, defenseless.

          1. William:

            Happy Thanksgiving – hope you and the others have a fine day.

            You are right that we are much closer in our positions than some of our back and forth would indicate. The thrust of my comments are that the FBI as an entity is responsible for any so-called “corruption” that came about. It was not the individual agent, like Connolly, who was doing what the FBI wanted him to do. The FBI’s part in the bamboozlement was that it walked away from Connolly and let him twist in the wind. I still don’t think Connolly understands this betrayal since his ire goes up against the DOJ. It is difficult for any special agent (S/A) to understand that because the S/As are as devoted to the FBI as one would be to his religion. One would find great difficulty in believing one’s church betrayed him.
            The FBI should have gone to the wall in vigorously defending him. Rather than that they threw him to the wolves and washed their hands of him. It let the media and certain prosecutors grab the baton, run with it and tell the story from their malicious and uniformed point of view. It did this to keep its TEI program as closely hidden as it is.
            The FBI was “embarrassed” by it. Instead, as you have often noted, it should have come out openly and said something to the effect, “perhaps it did allow people to do things we did not approve and in retrospect should have realized they would be doing but look at how much we accomplished. Some innocent people may have been murdered by our TEIs but in the end we saved ten or a hundred times more by destroying the Mafia.” I don’t deny the program was extremely effective in leading to the destruction of the Mafia. It was so because agents like Connolly were “protecting” their high level criminals.
            My position is the TEI program is wrong since it made the FBI partners with top criminals. It is not that they did not achieve the result it set out to accomplish. Whether it could have achieved the same result doing it otherwise is something we can never know. I recognize it is not easy for me to say it was wrong when the results were so good; but I guess I learned at some time in my life from my teachers that the end does not justify the means.
            I’ve never said Connolly knew his TEIs were murdering people. (If I suggested it years ago which I don’t recall it was before I dug deeper into the case. I also suggested Black Mass was a good book before I studied the matter.) The closest one could come to saying he should have known was the Halloran murder because he knew Halloran was trying to broker a deal for himself to get out of a murder wrap and putting Whitey into the murder of Wheeler. But Halloran himself identified who shot him saying in a dying declaration that it was Jimmy Flynn. That would have made sense. Halloran had just given information a day or two before that led to a raid on Jimmy Flynn’s house.
            As far as the Castucci murder was concerned, I’ve said this since I first heard about it that it had nothing to do with Castucci being an FBI TEI but because the Winter Hill guys wanted to rip off the NY mob. So throwing Connolly into that was either deliberate maliciousness or woeful ignorance.
            The more I understand this the more I see Connolly was doing what the FBI directed him to do. That is why this week in my writings I want to stress the idea of the quid – what was the FBI was giving to its TE informants. John Connolly spelled it out, it was protection. Chris who writes here suggests that would not be necessary in many cases because TEIs would have varying motives for providing information. I agree with him. But even in those cases in order to keep the TE informant on the string and keep the faucet open he had to be protected.
            Understand what protection meant, it was to keep the TEI on the street so the information would flow. Chris suggested it was protection from other bad guys; that may be true but it had also to be protection from anyone who was endangering the source of information. You suggested it was to keep them from being jammed in for minor stuff; I suggest there was no way a handler could differentiate what was minor from major.
            The back and forth is good when we stick to the issues and take the time to understand the other position. It is important to get input from others who seek to add to my knowledge or see things through different lenses so that I can decide whether my position is right or needs to be modified. It is, as the blog says, a constant trek toward the truth.

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