UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

PETER J. LIMONE, et al. )

)
Plaintiffs, )
)
v. ) Civil Action No. 02-10890 NG
)
UNITED STATES OF AMERICA, et al. ) Leave to file on ECF system
) granted on July 4, 2006
Defendants. )
____________________________________)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

UNITED STATES' MOTION FOR SUMMARY JUDGMENT

Introduction

The United States has moved for summary judgment in its favor in this case arising out

of the decision of the Commonwealth of Massachusetts to prosecute Peter Limone, Henry

Tameleo, Louis Greco and Joseph Salvati (collectively, the “plaintiffs”) for the murder of

Edward Deegan.

Plaintiffs’ claims against the United States are premised upon two theories. First, FBI

agents supposedly “participated in the creation of perjured testimony that falsely implicated the

plaintiffs.” See Docket No. 92, Plaintiffs’ “Opposition To the Government’s Motion To Dismiss

the Amended Complaint by the Limone and Tameleo Plaintiffs” at 4. Second, the FBI allegedly

failed to disclose exculpatory evidence and tried “to cover up the identity of the true killers of

Deegan.” Id. at 9. Discovery has failed to disclose competent evidence in support of either

theory.

The United States is entitled to summary judgment because (1) the plaintiffs cannot prove

as an essential element of the tort of malicious prosecution that this defendant initiated the

prosecution on the following grounds: the evidence is undisputed that officials of the
Commonwealth of Massachusetts initiated the prosecution and accordingly, the United States

cannot be held liable for malicious prosecution under Massachusetts law; (2) Massachusetts law

does not impose an independent duty upon a private party under analogous circumstances to

disclose allegedly exculpatory evidence to local prosecutors; (3) plaintiffs are precluded from

relitigating the issue of “failure to disclose exculpatory evidence” because they litigated and lost

the same issue in state court.

Background

Edward Deegan’s body was discovered in an alley in Chelsea, Massachusetts, at about 11

p.m. on March 12, 1965. Commonwealth v. French, 259 N.E.2d 198, 204 (Mass. 1970).1 There

were six gunshot wounds in the body. Id. at 204-205. Mr. Deegan had been shot with three

different weapons. Id. at 205. About 9:30 that evening, Anthony Stathopoulos stopped his car

on Fourth Street, Chelsea, opposite the entrance to the alley. Id. With him were Roy French and

Edward Deegan. Id. French and Deegan entered the alley. Id. A few seconds later,

Stathopoulos “heard a volley of shots.” Id. French reappeared, joined by another man with a

gun in his hand who, according to Stathopoulos, “looked like Greco.” Id. Stathopoulos heard a

voice say, “Get him too.” Id. Stathopoulos “took off.” Id.

A state grand jury indicted plaintiffs on October 25, 1967. The Deegan murder trial

commenced in the Superior Court of Suffolk County on May 27, 1968 and continued until July

27, 1968, a total of 50 days of trial. French, 259 N.E.2d at 204, n.2. On the first day of trial, Mr.

Barboza, aka Baron, pled guilty to two conspiracy indictments. Id. at 204. His trial testimony

1/
A volume of exhibits has been filed in support of the United States’ Motion For Summary
Judgment. References to the exhibits will be cited as “Ex. .”

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was “of major importance.” Id. at 205. He “had a long criminal record.” Id. The direct

examination of Barboza lasted two days and cross-examination nearly six and one-half days. Id.

On July 31, 1968, the Suffolk County jury found Roy French and Louis Greco guilty of

first-degree murder and found Peter Limone, Joseph Salvati, Roy Cassesso and Henry Tameleo

guilty as accessories to the murder. Id. Greco, Cassesso, Tameleo and Limone were sentenced

to death. Id. A complete summary of the evidence is contained in Commonwealth v. French,

357 Mass. 356, 259 N.E.2d 195 (1970).2

On appeal, the Supreme Judicial Court of Massachusetts found “[t]here was evidence

from which the jury could have concluded that Limone agreed to pay for the killing of Deegan

and Stathopoulos, Salvati participated in the planning of the murder and Greco was one of the

shooters.” Commonwealth v. Salvati, 420 Mass. 499, 650 N.E.2d 782, 783 (1995). The

Supreme Judicial Court concluded that “Baron’s [Barboza’s] testimony warranted the conclusion

that Tameleo was linked to the enterprise.” French, 259 N.E.2d at 223. The court found:

These witnesses (Baron, Stathopolous, Glavin and Mr. Fitzgerald)

were before the jury for long periods. The jury saw and heard
them. The jurors, when they retired to deliberate, were in a far
better position to appraise the witnesses and what was said than we
now are. They had heard full discussion of all imaginable
infirmities in the vital testimony of these witnesses. They were
warranted in believing the testimony.

French, 259 N.E.2d at 226.

2/
The death penalty judgments were later vacated, sub nom. Limone v. Massachusetts, 408 U.S.
936 (1972).

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Motions For New Trial

Plaintiffs filed motions for a new trial in state court and filed habeas corpus petitions in

federal court after their convictions.3 The habeas petitions were denied. A motion for new trial

was allowed “but only with respect to the alleged failure of the Commonwealth to disclose

before trial the existence of [a police report] (and the alleged existence of an informant) and the

significance, if any, of such failure.” Commonwealth v. Salvati, 650 N.E.2d 782, 783 (Mass.

1995).4

Plaintiffs argued in the Supreme Judicial Court of Massachusetts that the Suffolk County

prosecutor had suppressed a police report which contained statements made by an informant

concerning events the informant observed the night of the Deegan murder. Id. Plaintiffs argued

3/
Grieco v. Meachum, 533 F.2d 713 (1st Cir. 1976) cert. denied sub nom. Cassesso v. Meachum,
429 U.S. 858 (1976) (after exhausting state remedies, plaintiffs filed habeas corpus actions,
claiming 90 items of constitutional error in the Deegan murder trial, however, the First Circuit
found no constitutional error and affirmed the convictions). Limone’s first motion for a new trial
was denied in 1970 and affirmed on appeal. Commonwealth v. Cassesso, 276 N.E.2d 698 (Mass.
1971). Limone’s second motion for a new trial was denied in 1990 and affirmed on appeal.
Commonwealth v. Limone, 573 N.E. 2d 1 (Mass. 1991). Plaintiffs filed other motions for a new
trial that were denied; those rulings were affirmed on appeal. Commonwealth v. Salvati, 420
Mass. 499 (1995).
4/
Chelsea Police Lieutenant Thomas F. Evans testified during the Deegan murder trial that his
report was made available to the Suffolk County District Attorney’s Office prior to trial. (Ex. B).
His report states that he received the following information the night of the Deegan murder:

I received information from Capt. Renfrew that an informant of his

had contacted him and told him that French had received a call at
the Ebb Tide at 9 P.M. on 3-12-65 and after a short conversation
[French] had left the café with the following men: Joseph Barboza,
Ronald Cassesso, Vincent Flemi, Francis Imbruglia, Romeo
Martin, Nicky Femia and a man by the name of Freddi who is
about 40 years old and said to be a “Strongarm.” They are said to
have returned about 11 P.M. and Martin was alleged to have said
to French, “We nailed him.” (Ex. C).

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that Barboza had falsely implicated the plaintiffs and others instead of the true perpetrators of the

crime. Id. at 785. The Evans report had identified Joseph Barboza, Ronald Cassesso, Vincent

Flemmi, Francis Imbruglia, Romeo Martin, Nicky Femia “and a man by the name of Freddi who

is about 40 years old and said to be a ‘Strongarm’” as the Deegan murder suspects. The report

identified Jimmy Flemmi; it did not identify plaintiffs. Plaintiffs contended that the Suffolk

County prosecutor should have disclosed the police report because “the informant did not name

[Limone, Tameleo, Greco or Salvati] as being men who had left and returned to the Ebb Tide

with Baron.” Id. Plaintiffs asserted that the statements within the Evans report supported their

trial theory that Barboza had substituted Limone, Tameleo, Greco and Salvati for the real

murderers – Vincent Flemmi, Francis Imbruglia, Romeo Martin, Nicky Femia and “Freddi.”

The Supreme Judicial Court rejected plaintiffs’ argument, instead finding that the

information in the Evans report was cumulative of the evidence presented to the jury at trial:

For example, the police report indicates that the informant alleged that seven men
had left and returned to the Ebb Tide with Baron. During direct examination,
Baron independently named two of these seven men as being with him at the Ebb
Tide on the night of the murder and as being participants in the crime. However,
during cross-examination, Baron was specifically questioned about four other
men named by the informant in the police report. We conclude, therefore that the
information contained in the report was available to trial counsel and used by at
least one defendant to cross-examine Baron in order to impeach his credibility.
Thus the motion judge’s denial of the defendants’ motions based on alleged
Brady violations was not erroneous because the information in the police report
was merely cumulative evidence that did not materially aid the defendants on the
issue of guilt or punishment.

Id. at 785-786.

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 Summary of Relevant Deposition Testimony In This Case

Suffolk County Prosecutor Jack Zalkind5

Jack Zalkind, an Assistant District Attorney for Suffolk County, prosecuted plaintiffs for

the murder of Edward (Teddy) Deegan. Id. (7/28/05 dep.) at 134. The Deegan case was his first

murder prosecution and he knew it was going to be “high profile.” Id. at 51.

Before the Deegan murder trial, Zalkind had tried Barboza on a gun carrying charge and

breach of the peace. Id. at 12. Barboza went to jail for one year on the breach of the peace but

was acquitted on the gun carrying charge. Id. at 13, 18. Zalkind thought Barboza was “a bum.

He was a rat. I didn’t trust him. He was a bad guy. He was a murderer. He was a thief.” Id. at

32. “The cops hated Barboza.” Id. at 19. When asked to take the Deegan case, Zalkind told his

office he did not want to speak to Barboza until he put him before the grand jury because he was

afraid Barboza would recant:

I didn’t want Barboza later to say that I coached him into any of his testimony and
I wanted most of the evidence that was going to be presented at the trial to be
presented to the Grand Jury first so that no one could accuse me of coaching him
into testimony. Frankly speaking, that is exactly what happened.6

Before the Grand Jury convened, Zalkind met with Detective John Doyle, “every day” to

prepare the case. Id. at 55-56. John Doyle collected the data for the prosecution and Zalkind

relied upon Doyle to give him the information that was important. Id. at 73. Zalkind described

Doyle as a “seasoned cop.” Id. at 71. Doyle’s investigation was “independent.” Id. at 93.

Zalkind “wanted to know stuff that’s important to my case, and I assumed that the police would

5/
Ex. F contains the excerpts from Mr. Zalkind’s deposition testimony; he was deposed on July
28, 2005 and August 3, 2005.
6/
Id. at 53.

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give me anything that they thought would be important to my case.” Id. at 131. Approximately

ten police officers were assigned to the office of the Suffolk County District Attorney. Id. at 22.

Any police officer that was available helped Doyle prepare the Deegan case. Id. at 54. The

Suffolk County District Attorney’s office spent three months investigating the case. Id. at 90.

As Zalkind testified: “we checked it out thoroughly.” Id.

Zalkind testified: “as the case was being prepared John [Doyle] would tell me what was

developing . . . he had Barboza’s story.” Id. at 57. “Our job from the time that he got the story

until it went to the Grand Jury was to get as much corroboration as we could.” Id. Zalkind had

the police look for verification and check for corroboration. “I had them look at police records.

I had them talk to witnesses.” Id. at 91.

Zalkind knew that Barboza was with Jimmy Flemmi at the Ebbtide the night of the

murder. Id. at 171. Barboza told Zalkind that his friends, including Flemmi, “didn’t leave [the

restaurant] with me.” Id. When Zalkind got the Deegan case, it had been investigated and “it

was determined that these people, that Nicky Femia was not involved and neither was Vinnie

[James] Flemmi.” Id. at 200. Zalkind said: “We did everything possible to determine they

weren’t there,” recalling, “I asked the cops . . . and they said there was nothing to indicate that

Nicky was there nor Flemmi was there.” Id. at 200-201. Zalkind is sure that he said to Doyle,

“check out these guys” [the people with Barboza at the Ebbtide] “and see if there was anything

that would indicate that they were [at the murder scene] and not someone else. And they came

back negative.” Id. at 107.

Zalkind was the “only one” who prepared the Commonwealth’s witnesses for trial. Id. at

140. In preparing Barboza for his trial testimony, Zalkind met with him “four or five times a

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week, depending. Sometimes it might be – I would say from three to six times. Safely three to

five times a week.” Id. at 96. Each visit was “[f]our or five hours maybe, depending.” Id.

Zalkind believed that Barboza’s description of the Deegan murder was corroborated during trial

by the testimony of Roy French. Id. at 124. Barboza told Zalkind that French shot Deegan and

French took the stand and confessed that he shot Deegan.

Zalkind questioned Barboza about the possible involvement of Jimmy Flemmi in the

murder and he “absolutely denied it.” Id. at 97. Barboza satisfied Zalkind that Jimmy Flemmi

wasn’t there. Id. at 99. Zalkind believed Barboza: “there was nothing that he told me that didn’t

check out.” Id. at 120. Zalkind testified: “There was no reason for me to believe at the time that

Joe Barboza had not given me the people that he said he did that were there and there was no

reason for me at the time to believe that the people that were friends of his were in on the crime.

Simple as that.” Id. at 103.

When asked if he had any first-hand knowledge of Paul Rico or Dennis Condon

preparing Barboza for testimony in the Deegan trial, Zalkind responded: “[a]bsolutely not.” Id.

at 96. Zalkind testified: “Did I ever ask them about evidence or any problems I had or shaping

or anything like that? I don’t remember ever doing that.” Id. at 62-63. FBI agents Rico and

Condon did not prepare the case with Zalkind. Id. at 66. Rico and Condon did not direct

Zalkind’s case. Id. at 69. They “didn’t suggest witnesses to me. They didn’t suggest testimony

to me. I never conferred with them about strategy.” Id. They “weren’t preparing the case with

me.” Id. at 66. “They had no role in prosecuting. I was the prosecutor.” Id. at 67. Zalkind

testified: “When this case was over, I was satisfied that the information I had been given was

true information.” Id. at 133.

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Attorney Ronald J. Chisholm7

Ronald J. Chisholm represented Ronald Cassesso during the Deegan trial. Id. at 28.

Prior to trial, Cassesso told Mr. Chisholm about his involvement in the Deegan murder. Id. at

51. Mr. Chisholm recalled that at the time of the Deegan murder trial, Barboza was quoted in the

newspapers stating: “I’m going to get my enemies and protect my friends.” Id. at 43. Mr.

Chisholm said that the Deegan defense counsel “all knew this was a frame against some of the

defendants anyway.” Id. at 54. Cassesso told Chisholm “who was involved” in the murder and

“who was not involved.” Id. at 57. Cassesso told Chisholm that Barboza, “Vincent Flemmi,

French, Freddie somebody, Romeo somebody” were involved in the Deegan murder. Id. at 57.

The transcript of the Deegan trial revealed that Mr. Chisholm cross-examined Barboza about

being in the company of Femia, Imbruglia and [Vincent] Flemmi the night of the Deegan

murder. Id. at 103-104.

William L. Moore8

The night Deegan was murdered, William Moore was a police officer in Chelsea,

Massachusetts. Id. at 5. Officer Moore knew Deegan – Deegan was a friend of his brother and

“well known to all the police officers” in Chelsea. Id. at 62. The Chelsea police had information

that “Deegan was breaking into all the wise guys’ homes and stealing money and jewelry and

stuff.” Id. at 15-16.

7/
Ex. G, deposition testimony of Ronald J. Chisholm, deposed on August 30, 2005 and
November 3, 2005.
8/
Ex. H, deposition testimony of William L. Moore, deposed in Concord, New Hampshire on
August 23, 2005.

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 Officer Moore saw Deegan’s body after the murder and investigated his death together

with Lieutenant Thomas Evans. Id. at 9. Captain Robert Renfrew of the Chelsea Police

Department told Officer Moore the night of the murder that Renfrew had received information

from a source at the Ebb Tide, a nightclub in Revere, that Barboza, French, Martin, Flemmi were

together at the Ebb Tide before the murder. Id.at 10-13. Officer Moore testified that Jimmy

Flemmi was one of the “primary suspects” for the murder. Id. at 28. Officer Moore knew

Jimmy Flemmi as “Barboza’s buddy.” Id. at 18.

Honorable Edward F. Harrington9

Judge Harrington testified that FBI agents Dennis Condon and Paul Rico turned Joseph

Barboza into the first of the major accomplice witnesses in the organized crime area. Id. at 120.

They developed the federal Marfeo/Patriarca case which Judge Harrington handled when he was

a federal prosecutor. Id. Barboza was the first organized crime figure to turn state’s evidence in

the New England area of the country. Id. at 92. Some months later, after the indictment in the

Marfeo/Patriarca case, the FBI agents turned Barboza over to the Suffolk County authorities who

developed his testimony for the Commonwealth’s prosecution of the Deegan murder. Id.

Judge Harrington’s understanding of the Deegan case was that it was developed by John

Doyle and Jack Zalkind, and that the FBI agents, because they originally “turned” Barboza as a

witness, introduced him to the Masschusetts authorities. Id. at 86. Judge Harrington recalled

that the role of the federal government in the Deegan murder prosecution was limited to the

protection and transportation of Barboza, who was the “original witness in the Witness

Protection Program.” Id. at 44. Judge Harrington testified: “[f]ederal authorities and the United

9/
Ex. I, deposition testimony of the Honorable Edward F. Harrington, November 3, 2005.

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States’ Attorney’s Office had no connection whatsoever with the prosecution of the Deegan

case.” Id. at 119. “[W]ith respect to the prosecution itself, the determination to go forward on

the Deegan case, the selection of defendants and the development of evidence, that was entirely

within the purview of the State authorities.” Id. at 35-36.

FBI Agent Dennis H. Condon10

Dennis Condon went to work for the FBI in 1951 and retired in 1977. (11/2/05 dep. at

10.) He was assigned to the Boston office in 1952. Id. at 15. He worked with Paul Rico from

1967 until Rico left Boston for Florida in 1970. Id. at 35. Condon first met Jimmy Flemmi

when he arrested him sometime in the early 1960s. Id. at 33-34. When asked if he had ever had

conversations with Jimmy Flemmi about becoming an informant for the FBI, he responded:

“[a]bsolutely not.” Id. at 37.

Condon first met Barboza on March 8, 1967. Id. at 79-80. Barboza said that he would

not “furnish any information that would allow Jimmy Flemmi to fry.” Id. at 54. Condon

understood Barboza’s statement to mean that Barboza was not going to discuss any crimes in

which Jimmy Flemmi was involved. Id. at 55.

Condon did not assist in preparing Barboza to testify before the Suffolk County grand

jury regarding the Deegan murder. Id. at 133. He had nothing to do with Barboza’s grand jury

testimony. Id. He visited Barboza a number of times before the Deegan murder trial but the

purpose of those visits was to check on Barboza’s physical “well-being.” Id. at 134.11 During

10/
Ex. J, excerpts from the depositions of Dennis H. Condon. He was deposed on November 2,
2005 and November 4, 2005.
11/
Barboza had been promised protection by the federal government as a result of his testimony
in the federal Marfeo trial. See Ex. I, testimony of Judge Harrington at 11.

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his visits with Barboza, Condon did not “go over” Barboza’s trial testimony. Id. at 136. He did

not review with Barboza the latter’s version of how the Deegan murder happened because “the

Deegan case was a Suffolk County case. Detective Frank Walsh and eventual Deputy

Superintendent John Doyle were probably deeply involved in the case which was their

jurisdiction at the time.” Id. at 135. The basic investigation of the Deegan murder “was

conducted by Suffolk County authorities.” Id. at 196.

Condon was a witness at the Deegan murder trial. (11/4/04 dep. at 263). He testified that

during his meetings with Barboza prior to trial, he did not show Barboza any reports or papers

concerning the death of Deegan, nor did he tell Barboza any of the facts or circumstances

surrounding Deegan’s death. Id. at 272-275.

Attorney Joseph J. Balliro12

Attorney Joseph J. Balliro, Sr., defended Henry Tameleo in the Deegan murder trial. He

testified that in the summer of 1967 he had a conversation with Jimmy Flemmi concerning the

Deegan murder case. Flemmi told him that Barboza had planned the Deegan killing and that he,

Flemmi, had participated.13 Attorney Joseph Balliro, Sr. further attested that Jimmy Flemmi

“was very, very very concerned with the fact that Barboza might turn on him anyway for any

reason because he didn’t trust Barboza.” Id. at 113.

12/
Ex. K, testimony of Attorney Joseph J. Balliro, Sr., deposed October 19, 2005.
13/
Ex. K, deposition testimony at 70-71; 109.

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 The Summary Judgment Standard

Summary judgment is appropriate when:

...the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.

Fed. R. Civ. P. 56 ( c). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary

judgment should be "properly regarded not as a disfavored procedural shortcut, but, rather, as an

integral part of the Federal Rules as a whole." Celotex Corp. v. Catrett, 477 U.S. 317, 327

(1986).

As the moving party, the United States bears the initial responsibility of identifying those

portions of the pleadings, depositions, answers to interrogatories and admissions on file which

demonstrate the absence of a genuine issue of material fact or show an absence of evidence to

support plaintiffs' case. Id. at 323. When ruling on a motion for summary judgment, a court

must view the record in the light most favorable to the non-moving party. Liberty Lobby, 477

U.S. at 15. But it need not credit “conclusory allegations, improbable inferences, and

unsupported speculation.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.

1990).

After discovery, if the nonmoving party “has failed to make a sufficient showing on an

essential element of [its] case with respect to which [it] has the burden of proof,” then summary

judgment is appropriate. Celotex, 477 U.S. at 323. The Supreme Court has stated that "[r]ule 56

must be construed with due regard not only for the rights of persons asserting claims and

defenses that are adequately based in fact to have those claims and defenses tried [to the

factfinder] but also for the rights of persons opposing such claims and defenses to demonstrate in

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the manner provided by the Rule, prior to trial, that the claims and defenses have no factual

basis." Id. at 327 Summary judgment exists to “pierce the boiler-plate of the pleadings,”14 and

“determine whether a trial actually is necessary.”15

The Federal Tort Claim Act

The United States can be sued only to the extent that it has waived sovereign immunity.

Bolduc v. United States, 402 F.3d 50 (1st Cir. 2005). The Federal Tort Claims Act (FTCA) was

enacted as “a limited waiver of sovereign immunity." Id. at 55. “Congress was careful to except

from the Act’s broad waiver of immunity certain important classes of tort claims.” United States

v. Varig Airlines, 467 U.S. 797, 808 (1984); Shuman v. United States, 765 F.2d 283, 288 (1st Cir.

1985). If a claim falls within any of the exceptions or exclusions to the FTCA, the court lacks

subject matter jurisdiction and the case must be dismissed. Dalehite v. United States, 346 U.S.

15, 24 (1953). Further, the FTCA waives sovereign immunity only "under circumstances where

the United States, if a private person, would be liable to the claimant in accordance with the law

of the place where the act or omission occurred" and provides for liability "in the same manner

and to the same extent as a private individual under like circumstances." 28 U.S.C. §§ 1346(b),

2674. Clemente v. United States, 567 F.2d 1140, 1149 (1st Cir. 1977) ("[E]ven where specific

behavior of federal employees is required by federal statute, liability to the beneficiaries of that

statute may not be founded on the Federal Tort Claims Act if state law recognizes no comparable

private liability.")

14/
Wynne v. Tufts Univ. Sch. Of Med., 976 F.2d 791, 794 (1st Cir. 1992).
15/
Vega-Rodriguez v. P.R. Tel. Co., 110 F.3d 174, 178 (1st Cir. 1997).

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I. Plaintiffs’ Claim For Malicious Prosecution Fails As A Matter Of Law.

A. The United States cannot be held liable under the law of Massachusetts
because the FBI did not initiate the prosecution.

To prevail on a malicious prosecution claim in Massachusetts, a plaintiff has the burden

of proving four elements: (1) that the defendant initiated criminal proceedings against the

plaintiff; (2) the proceeding ended in the plaintiff's favor; (3) that there was no probable cause to

initiate the criminal charge; (4) that the defendant “acted maliciously.” Miller v. City of Boston,

297 F. Supp. 2d 361, 366 (D. Mass. 2003). With respect to the institution of criminal

proceedings, the defendant must do more than simply provide information that leads to the

prosecution: "the defendant must have, in some sense, initiated the prosecution." Correllas v.

Viveiros, 572 N.E.2d 7, 10 (Mass. 1991) (emphasis added).

The critical inquiry is whether the FBI initiated the prosecution. In Limone v. United

States, 271 F. Supp. 2d 345, 357 (D. Mass. 2003), this Court asked: “if the federal officers did

not ‘initiate’ the prosecution, who did?” The answer is that Assistant District Attorney Jack

Zalkind, a Suffolk County prosecutor, initiated the state court prosecution, based upon the

investigation conducted by a state employee, Detective John Doyle. As a matter of law, on this

record, it cannot be said that FBI agents Rico or Condon “initiated” the prosecution of Limone,

Tameleo, Greco or Salvati for the Deegan murder, nor can it be said that Rico or Condon took

“an active part in continuing or procuring the continuation of criminal proceedings initiated . . .

by another.” Restatement (Second) of Torts §655 (1976).

The Deegan murder case was, simply, a prosecution initiated and pursued by the Suffolk

County District Attorney’s Office. That office conducted its own investigation, prepared

Barboza for trial, and Assistant District Attorney Zalkind, upon his own evaluation, made the

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decision to prosecute. Although the FBI proffered Barboza to Suffolk County authorities, and

sat in on several meetings with Barboza, there is nothing in the extensive record of this case that

supports the theory that FBI employees “initiated” the Deegan murder prosecution. To the

contrary, Zalkind, after the police in his office conducted a “thorough” three-month

investigation, initiated the prosecution. Consequently, plaintiffs' malicious prosecution claim

necessarily fails.

No evidence in this record shows that the FBI made accusations against the plaintiffs or

their decedents. The FBI turned Barboza over to state authorities who independently developed

his testimony for the prosecution of the Deegan murder. See Ex. I, testimony of the Honorable

Edward F. Harrington, November 3, 2005, at 120.

If innocent individuals were framed during the Deegan murder trial, the record supports

the inference that it was because Barboza, a critical witness, decided to frame them. The

affidavit of defense attorney Joseph Balliro, Sr., reporting his conversation with Jimmy Flemmi

before the Deegan trial, stated that Jimmy Flemmi told Attorney Balliro that Barboza “framed”

Limone, Greco and Salvati because they “disrespected him.” If Barboza lied, it was his lie, not

the lie of the FBI.16

Even assuming, however, that the FBI provided a witness who made false claims, its

actions cannot consitute malicious prosecution. Under Massachusetts law, “if a citizen registers

with the police an apprehension that a crime has been committed and leaves the matter to the

16/
Barboza testified that he (a) gave partial information about the Deegan murder to FBI agents
on March 29, 1967; (b) was indicted in April, 1967; (c) was in custody in isolation in May, 1967;
and (d) started to talk to the district attorney’s representative in July, “when deals were being
made.” He told the Deegan murder story “in pieces” and did not reveal the full story he told at
trial until September 8, 1967, before the state grand jury. French, 259 N.E.2d at 214, n. 26.

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judgment and responsibility of the public officers, that citizen, though having started the chain of

events that lead to legal process, cannot be charged with malicious prosecution." Grant v. John

Hancock Mutual, Life Insurance, 183 F. Supp. 2d 344, 369 (D. Mass. 2002) (quoting Conway v.

Smerling, 635 N.E.2d 268 (1994)). There is no evidence that the FBI registered “an

apprehension” about the Deegan murder. However, even if it had, the record establishes

unequivocally that Massachusetts officials exercised independent judgment in bringing charges

after a complete investigation.

Negron-Rivera v. Rivera-Claudio, 204 F.3d 287 (1st Cir. 2000) is instructive. There, the

First Circuit, applying Puerto Rican law, reversed a jury finding of malicious prosecution on the

ground that plaintiff had not established that the defendant had initiated and instigated the

criminal action in issue. In so doing, the First Circuit found that “[furnishing] information to a

prosecuting attorney does not by itself constitute an instigation, since generally in those cases the

efficient cause of the initiation of the prosecution has been the initiative and decision of the

prosecuting attorney, in the exercise of his discretion, after having carried out the corresponding

investigation.” Id. at 290 (citation omitted). The same reasoning applies here because the record

in this case reflects precisely that the Deegan murder prosecution was the result of the initiative

and decision of the Assistant District Attorney Zalkind.

The First Circuit noted in Negron that it would be “conceivable,” in a “different case,”

that “a defendant could ‘instigate’ an otherwise independent prosecution by knowingly

misleading the authorities through the provision of incorrect or incomplete information.” Id.,

n.1. The record in this case is barren of evidence that Rico or Condon knowingly furnished false

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information, or deliberately withheld material information, in order to indirectly instigate the

Deegan prosecution or otherwise.

In Correllas v. Viveiros, 572 N.E.2d 7 (Mass. 1991), decided under Massachusetts law, is

controlling authority. There, a bank teller brought a malicious prosecution claim against her co-

worker, an assistant teller, after the assistant teller confessed to stealing money and told the

police that the bank teller conceived and participated in the plan to steal the money. The bank

teller, charged with larceny, was eventually acquitted. Despite the information provided by the

assistant teller to authorities, the court dismissed the malicious prosecution against her because

she did not institute the criminal proceedings against the bank teller. Correllas, 521 N.E.2d at

10. As explained in Correllas, the "mere transmission of information to a police officer, who

using his or her independent judgment, then pursues the matter and institutes criminal

proceedings, has never been held sufficient to support an action for malicious prosecution." Id.

(emphasis added).17 The record in this case mandates the same result as in Correllas.

Plaintiffs, as a matter of law, cannot meet the burden of proving that the FBI “initiated”

the Deegan murder prosecution. FBI agents Condon and Rico had no first-hand knowledge of the

identities of the individuals who committed the murder of Deegan. Massachusetts law does not

17/
The Restatement (Second) of Torts § 653 comment g (1977) would not find liability based
upon the FBI’s proffer of Barboza to the Suffolk County District Attorney’s Office:

When a private person gives to a prosecuting officer information that he believes to be

true, and the officer in the exercise of his uncontrolled discretion initiates criminal
proceedings based upon that information, the informer is not liable under the rule stated
in this Section [the malicious prosecution rule] even though the information proves to be
false and his belief was one that a reasonable man would not entertain. The exercise of
the officer's discretion makes the initiation of the prosecution his own and protects from
liability the person whose information or accusation has led the officer to initiate the
proceedings.

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impose liability for malicious prosecution based on a private individual’s failure to disclose

information obtained from third parties. Moreover, the record establishes that to the extent

informants provided Rico or Condon with information about the murder, that information was

shared with the state authorities investigating the murder. More significantly, it is undisputed

that state investigators knew of Jimmy Flemmi’s involvement in the murder as related in the

Evans report. Accordingly, liability cannot be imposed for malicious prosecution based on

plaintiffs’ hypothesis that the FBI withheld the name of Jimmy Flemmi either because he was an

informant or because the FBI wanted to protect the use of his brother, Stephen Flemmi, as an

informant.

Furthermore, there is no causal link between the FBI’s informant “knowledge” that

Flemmi was involved in the murder and Zalkind’s initiation of the prosecution because Zalkind

knew that Barboza was with Jimmy Flemmi the night of the murder. Zalkind testified that he

was “sure” he said to Doyle “check out these guys” [the people with Barboza at the Ebbtide]

“and see if there was anything that would indicate that they were [at the murder scene] and not

someone else. And they came back negative.” (7/28/05 dep. at 107). When Zalkind questioned

Barboza about the possible involvement of Jimmy Flemmi in the murder, he “absolutely denied

it.” Id. at 97. Zalkind had no reason to believe that what Barboza “was telling me wasn’t the

truth.” Id. at 120.

“The chain of causation is broken if the filing of the information by the attorney at the

state Attorney General’s office was free of pressure or influence exerted by the police officers or

knowing misstatements made by the officers to the Attorney General’s office.” Senra v.

Cunningham, 9 F.3d 168, 174 (1st Cir. 1993). Nothing in this record supports the conclusion that

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the FBI pressured Zalkind in any way whatsoever to initiate the Deegan prosecution. Zalkind

undeniably had the information available to him that Flemmi was with Barboza the night of the

murder. Zalkind asked Barboza about Jimmy Flemmi’s involvement and Barboza satisfied

Zalkind that Jimmy Flemmi was not at the murder scene. Id. at 99. Zalkind exercised his

independent judgment to prosecute.

Accordingly, the United States is entitled to summary judgment because, based on the

facts and the law, plaintiffs cannot establish a critical element of malicious prosecution on which

they bear the burden of proof.

B. Because a private individual would not be liable under the law of

Massachusetts for failing to disclose “exculpatory evidence” liability cannot
be imposed upon the United States.

The Limone plaintiffs alleged that “Rico, Condon, Handley, and other agents of the FBI,

Walsh [City of Boston police officer] and Renfrew [City of Chelsea police officer] failed to

disclose information exculpatory to Limone, Tameleo and Greco in their possession to the

attorneys prosecuting the Deegan murder case and representing the government in post-

conviction proceedings.” Limone Amended Complaint, ¶ 24. “Agents and employees of the

United States Department of Justice and the FBI did not disclose the said exculpatory

information until on or about December 19, 2000.” Id. The Limone plaintiffs defined

“exculpatory evidence” as the information which “cover[ed] up the identity of the true killers of

Deegan.” Id. ¶ 26. Plaintiffs’ allegation that the FBI agents failed to disclose “exculpatory

evidence” to the prosecutor who tried the Deegan case fails as a matter of law and fact.

To the extent that plaintiffs purport to base their claim on an independent tort, failure to

disclose exculpatory evidence, it fails as a matter of law because Massachusetts does not appear

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to recognize this tort. Under the FTCA, liability can only be imposed where a private individual

would be liable under analogous circumstances. 28 U.S.C. §§ 1346(b), 2674. “Under the

FTCA, the relevant inquiry is not whether state law might assign a duty to a private person in the

same or similar circumstances, but, rather, whether state law would impose liability on a private

person in the same or similar circumstances.” Bolduc v. United States, 402 F.3d 50, 58 (1st Cir.

2005). (Emphasis added.) Thus, plaintiffs are not free to create an unprecedented extension of

tort liability.

The plaintiffs in Bolduc alleged that the United States was liable for their convictions

because FBI agents failed to disclose exculpatory evidence to federal prosecutors. Bolduc is

instructive on two points. First, as the court explained, liability under the FTCA cannot be

premised upon the rule of Brady v. Maryland, 373 U.S. 83 (1963), because neither federal,

constitutional nor statutory law can function as the source of liability under the Federal Tort

Claims Act. Second, even analyzing the claim under the “wide net” cast by Wisconsin law (“[i]n

Wisconsin, everyone has a duty of care to the whole world,” id. at 57) and even assuming

negligence, causation and harm, the First Circuit concluded that Wisconsin law would preclude

liability under the circumstances of that case. Here, the only comparable state law claim in

Massachusetts would be a claim for malicious prosecution, which fails because plaintiffs cannot

prove that agents of the FBI “initiated” the prosecution.

While plaintiffs “failure to disclose” theory fails as a matter of law, it fails as a matter of

fact as well. Plaintiffs have alleged that an informant advised the FBI of the identity of the “true

killers of Deegan” when he told the FBI, the day after Deegan was murdered, that the murder

“had been committed by French, Cassesso, Martin, Barboza and Flemmi.” Id. ¶16. However,

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the same FBI reports upon which plaintiffs rely for the information as to the “true killers of

Deegan” state that the information was shared with local police officers. Plaintiffs admit as

much in their complaints: “Rico claimed in the said memorandum that FBI Agent Donald V.

Shannon had transmitted the information contained therein to Renfrew, then a captain in the

Chelsea Police Department.” (Limone Amended Complaint, ¶ 17). “Rico provided information

on or about March 15, 1965, to Captain Robert Renfrew (“Renfrew”), formerly of the Chelsea

P.D., that James Flemmi, Barboza, French, Martin and Cassessa were responsible for the Deegan

murder. Rico documented this information in an official FBI Memorandum dated March 15,

1965.” (Salvati Complaint, ¶ 58).18

The record supports the conclusion that the FBI’s informant information was

disseminated because the “true killers” identified by the FBI informant are the same individuals

who appear in the Evans police report. An FBI airtel, dated March 19, 1965 stated: “It should be

noted that this information was furnished to the Chelsea PD and it has been established by the

Chelsea Police that Roy French, Barboza, Flemmi, Cassessa, and Martin were all together at the

Ebb Tide night club in Revere, Mass. and they all left at approximately 9 o’clock and returned

45 minutes later. It should be noted that the killing took place at approximately 9:30 p.m.,

Friday, 3/12/65.”19 An FBI report dated March 15, 1965 stated: “This information has been

disseminated by SA Donald V. Shannon to Capt. Robert Renfrew (NA) of the Chelsea, Mass.

18/
William Moore, Chelesa police officer testified that the night of the Deegan murder, the
Chelsea Police had identified French, Martin, Imbruglia, Jimmy Flemmi and Barboza as the
primary suspects. Ex. H at 28.
19/
Ex. N, LIM011-1252 - LIM011-1254. (Emphasis added.)

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P.D.”20 Indeed, for the last 30 years plaintiffs have argued in state court that the “true killers” of

Deegan were the persons named in the Evans report.

C. Plaintiffs are barred by collateral estoppel from relitigating issues based

upon the alleged failure to disclose exculpatory evidence.

The doctrine of collateral estoppel bars plaintiffs’ claim that “exculpatory evidence” was

withheld. Johnson v. Mahoney, 424 F.3d 83 (1st Cir. 2005) is dispositive of this issue. Johnson

was convicted of murder in the Massachusetts juvenile court. He appealed unsuccessfully to the

Massachusetts Supreme Judicial Court. Five years after his conviction, the District Attorney

nolle prossed his conviction in light of new evidence exonerating him and he was released.

Johnson brought suit in federal court against Boston police officers, arguing that they had

violated his constitutional rights by withholding allegedly exculpatory evidence – police reports

summarizing the statements made by Johnson and his mother to the police at the time of the

murder in which they said Johnson was at home when the murder occurred.

The district court granted the police officers’ motions for summary judgment and the

First Circuit affirmed, finding that the withheld reports did not prejudice Johnson, but also

finding that the doctrine of collateral estoppel barred Johnson’s claims because he was

attempting to re-litigate issues decided against him by the Supreme Judicial Court of

Massachusetts. Id. at 93. In the Supreme Judicial Court, Johnson had argued that he was

prejudiced by the failure to disclose the report containing his statements. The Supreme Judicial

Court dismissed those arguments because Johnson had suffered no prejudice. The First Circuit

found that the prejudice assessed in state court was “exactly the kind of prejudice that constitutes

20/
Ex. M, LIM010-0987 - LIM010-0988. (Emphasis added.)

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a necessary element of a constitutional violation under Brady” and concluded that the state court

had adjudicated the issue and decided it adversely to Johnson. Id. at 95.

Plaintiffs filed motions for a new trial in state court, alleging that Barboza perjured

himself to protect his friend Flemmi, and further alleging a failure on the part of the Suffolk

County District Attorney’s Office to disclose the “exculpatory evidence” of the information

contained in the police reports of Lieutenant Thomas Evans. In Commonwealth v. Salvati, 650

N.E. 2d 782 (Mass. 1995), the Supreme Judicial Court of Massachusetts rejected the motions for

new trial that Limone, Greco and Salvati filed on the theory that Barboza “implicated certain

individuals, including the defendants, instead of the true perpetrators of the crimes.” Id. at 785.

Plaintiffs contended that the Commonwealth had suppressed the Evans report before trial. The

report contained statements made by an informant concerning events observed by the informant

on the night of Deegan's murder. They argued that the denial of their motions for a new trial was

erroneous because the Commonwealth “suppressed” this police report in violation of their due

process rights under the Fourteenth Amendment to the United States Constitution and in

violation of Brady v. Maryland, 373 U.S. 83 (1963). Salvati also argued that the denial was

erroneous because the Commonwealth failed to provide the defendants with the informant's

identity and the contents of the informant's statement before trial as required by Roviaro v.

United States, 353 U.S. 53 (1957).

The Supreme Judicial Court of Massachusetts affirmed the denial of plaintiffs’ motions

for a new trial, stating, “any failure of the prosecution to disclose the report does not require that

we grant a new trial” because the “information in the report is cumulative of the evidence

presented at trial.” Commonwealth v. Salvati, 650 N.E.2d 782 (Mass. 1995). It denied Salvati’s

-24-
claim based on Rovario because the informant’s information “did not materially aid any of the

defendants on the issue of guilt or punishment.” Id. at 786. It held that “[a] defendant seeking a

new trial must establish that the evidence . . . casts real doubt on the justice of the conviction.”

Id. The information within the Evans report did not cast “doubt on the justice of the conviction.”

In this Court, plaintiffs are attempting to re-litigate issues that were litigated and lost in

state court. For example, the Salvati complaint alleges: “members of the aforementioned law

enforcement agencies had in their possession documented evidence exculpating Mr. Salvati, yet

they knowingly refused to provide such information to prosecuting authorities and officials

charged with considering Mr. Salvati’s post-trial motions and petitions for commutation of his

sentence.”21 Doyle and Zalkind, however, had the information that plaintiffs consider to be

“exculpatory,” i.e., that Jimmy Flemmi was involved in the murder, was with Barboza at the

Ebbtide, left the Ebbtide with Barboza and returned with him after Deegan was killed.

As in Johnson v. Mahoney, plaintiffs have litigated and lost in state court their claim that

law enforcement agents failed to disclose the existence of the “true killers of Deegan.” Because

these issues were adjudicated and decided adversely to plaintiffs by the Supreme Judicial Court

of Massachusetts,22 plaintiffs are precluded from relitigating the same theories here.

21/
Salvati Complaint, ¶ 3; see also Limone Complaint, ¶ 24; Amended Complaint of Roberta
Werner, ¶ 3.
22/
See Commonwealth v. Salvati, 650 N.E.2d 782 (Mass. 1995) (rejecting motions for new trial
brought by Limone, Greco and Salvati based upon suppression of Evans report, rejecting
plaintiffs’ claims based upon Brady v. Maryland, and rejecting Salvati’s claim that the identity of
the police informant should have been disclosed); Commonwealth v. Cassesso, 276 N.E.2d 698
(Mass. 1991) (rejecting Limone’s motion for new trial based upon Barboza’s recantation and the
affidavit of a Boston police officer, William W. Stuart, who was told by an informant on March
14, 1965 that Barboza, French, “Stats,” Chico Amico, Chiampa, Romeo Martin and Cassesso
participated in the Deegan murder); Greco v.Workman, 481 F.Supp. 481 (D. Mass. 1979)

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II. A Cause of Action For Malicious Prosecution Did Not Survive the Deaths of Louis
Greco and Henry Tameleo.

Both Louis Greco and Henry Tameleo died before commencement of this case. In 1850

the Supreme Court of Massachusetts held that an action for malicious prosecution "does not by

law survive in this commonwealth." Nettleton v. Dinehart, 59 Mass. 543 (1850). Today,

survival of actions "is largely the creature of statute" because all personal actions abated at

common law with the death of a party. See E.S. Parks Shellac Co. v. Jones, 163 N.E. 883, 884

(Mass. 1928). Massachusetts' survival statute enumerates the tort actions which have been

permitted to survive:

(2) Actions of tort (a) for assault, battery, imprisonment or other

damage to the person; (b) for consequential damages arising out of
injury to the person and consisting of expenses incurred by a
husband, wife, parent or guardian for medical, nursing, hospital or
surgical services in connection with or on account of such injury;
(c) for goods taken or carried away or converted; or (d) for damage
to real or personal property . . . ." Mass. G.L.A. chapter 228 § 1.

A Massachusetts treatise entitled: Newhall’s Settlement of Estates And Fiduciary Law In

Massachusetts, by Thomas H. Belknap, § 9.8 (Vol.1, 5th ed. 1994) (Ex. P) states as black letter

law: “[t]he following actions have been held not to survive: for breach of promise to marry,

unless special damages are alleged; for libel or slander; for malicious prosecution . . . .”

(emphasis added.) The complaints of Roberta Werner, her son Edward Greco, and the complaint

of Saverio Tameleo, to the extent they attempt to maintain a cause of action in their individual

capacities for the malicious prosecution of Louis Greco or Henry Tameleo, must be dismissed.

(rejecting habeas corpus petition of Louis Greco, rejecting the claim that polygraph evidence
exonerated him, refusing to consider the evidence that Barboza recanted his testimony and
describing the motions for new trial filed by Greco in state court which had been denied).

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IV. Plaintiff's remaining claims fail because they are premised upon the tort of
malicious prosecution which is not actionable.

Plaintiffs have alleged loss of consortium and conspiracy claims which are derivative of

their claims for malicious prosecution. In Suarez v. Belli, 1997 WL 39918 *4 (Mass. Super. Ct.

1997), the Court stated it was “not aware of any authority that would permit loss of consortium

damages for . . . the malicious prosecution claim." “As a general rule, a claim for loss of

consortium by one spouse requires proof of a tortious act that caused personal injury to the other

spouse.” Armstrong v. Lamy, 938 F. Supp. 1018, 1046 (D. Mass. 1996). There is no legal

authority for the proposition that a loss of consortium claim is an independent tort to be pursued

separately from plaintiffs’ claims of malicious prosecution. As a matter of law, plaintiffs’

consortium claims must be dismissed.

“Conspiracy in and of itself is not a civil wrong.” 15A C.J.S. Conspiracy § 8 (2002).

There is no independent or separate and distinct tort cause of action for civil conspiracy; the

gravamen or gist of the action is not the conspiracy itself, but the underlying wrong or tort

which, absent the conspiracy, would give rise to a cause of action. Id.

To establish a claim for civil conspiracy under Massachusetts law, the plaintiff must

show "a combination of two or more persons acting in concert to commit an unlawful act, or to

commit a lawful act by unlawful means, the principal element of which is an agreement between

the parties to inflict a wrong against or injury upon another." Therrien v. Hamilton, 849 F. Supp.

110, 115 (D. Mass. 1994). Plaintiffs have produced no evidence during discovery suggesting

that employees of the FBI had an express or implied agreement to commit an unlawful act or a

lawful act by unlawful means. Plaintiffs' claim for civil conspiracy fails because the claim of

malicious prosecution underlying the alleged conspiracy is defective, as shown above.

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 Additionally, civil conspiracy may involve "concerted action, whereby liability is

imposed on one individual for the tort of another." Grant v. John Hancock Mutual Life

Insurance Co., 183 F. Supp.2d 344, 363 (D. Mass. 2002). The United States can only be held

liable for the acts of federal employees, 28 U.S.C. § 1346(b), and therefore liability cannot be

imposed based on the conduct of a state prosecutor, state police or Joseph Barboza. Because the

underlying torts upon which plaintiffs' conspiracy claims are based fail, plaintiffs' conspiracy

claims fail as well.

Plaintiffs’ claims of intentional infliction of emotional distress fail as a matter of law.

Salvati’s complaint, for example, alleges that the "willful and wanton" conduct of the FBI "in

conspiring to intentionally frame Joseph Salvati for the Deegan murder was extreme and

outrageous; beyond all possible bounds of decency; and was utterly intolerable in a civilized

society." Complaint, ¶ 171. There is no evidence that the FBI shared any active role in the

prosecution of the plaintiffs. There is no evidence the FBI told Barboza to lie. There is no

evidence that the FBI suborned perjury or manufactured any evidence used to prosecute the

plaintiffs. The record therefore contains no evidence that could fulfill the element of “extreme

and outrageous” conduct sufficient to impose liability for intentional infliction of emotional

distress. See Heinrich v. Sweet, 49 F. Supp. 2d 27, 38-39 (D. Mass. 1999) (holding that plaintiffs

could not base a claim for intentional infliction of emotional distress on challenged conduct that

occurred three decades prior to plaintiffs' injuries).

-28-
 Conclusion

On the record of this case, it cannot be found that agents of the FBI initiated the

prosecution of Limone, Tameleo, Greco and Salvati, or failed to disclose “exculpatory

evidence.” Nor is there any evidence that FBI agents suborned perjury or told Barboza to lie. In

addition, the doctrine of collateral estoppel precludes plaintiffs from re-litigating issues that have

been adjudicated adversely to them in state court. Because plaintiffs’ claims for malicious

prosecution fail as a matter of law, the United States respectfully requests that summary

judgment be entered for the United States.

Dated: June 1, 2006

Respectfully submitted,

PETER D. KEISLER
Assistant Attorney General

PHYLLIS J. PYLES
Director, Torts Branch

/s/ Mary M. Leach

MARY McELROY LEACH
Assistant Director, Torts Branch
U.S. Department of Justice
Benjamin Franklin Station
P.O. Box 888
Washington, D.C. 20044
(202) 616-4256
(202) 616-5200 (fax)

Attorneys for the United States

-29-
 CERTIFICATE OF SERVICE

I hereby certify that on July 4, 2006, I reserved upon the following counsel a true and
correct copy of the United States’ Statement of Material Facts As To Which There Is No
Genuine Issue and its Memorandum of Points and Authorities in Support of its Motion For
Summary Judgment by ECF filing and by first-class mail (where indicated), postage prepaid, to:

William T. Koski, Esquire E. Peter Mullane, Esquire

Koski & Kearns, LLP Mullane, Michel & McInnes
One Bowdoin Square, Suite 300 132 Mount Auburn Street
Boston, MA 02114 Boston, MA 02138-5736

Juliane Balliro, Esquire Edward J. Lonergan, Esquire

Christine Marie Griffin, Esquire 101 Merrimac Street
Wolf, Block, Schorr & Solis-Cohen, LLP Suite 800
One Boston Place Boston, MA 02114-9601
Boston, MA 02108

Michael Avery, Esquire Victor J. Garo, Esquire

Suffolk University Law School
120 Tremont Street
Boston, MA 02108
Daniel R. Deutsch, Esquire
Deutsch, Williams, Brooks,
DeRensis & Holland, P.C.
99 Summer Street, 13th Floor
Boston, MA 02110-1213
10 High Street, Suite 14
Medford, MA 02155
Austin J. McGuigan, Esquire
Glenn E. Coe, Esquire
Joseph B. Burns, Esquire
Rome & McGuigan, P.C.
One State Street, 13th Floor
Hartford, Connecticut 06103-3101

Howard Friedman, Esquire Richard D. Bickelman, Esquire

Jennifer L. Bills, Esquire Posternak, Blankstein & Lund, LLP
Law Offices of Howard Friedman, P.C. 800 Boylston Street
90 Canal Street, 5th Floor Prudential Tower
Boston, MA 02114-2022 Boston, Massachusetts 02199-8004

Michael Rachlis, Esquire John Cavicchi, Esquire

Edwin L. Durham, Esquire 25 Barnes Avenue
Rachlis, Durham, Duff & Adler East Boston, MA 02128
542 South Dearborn Street, Suite 1310
Chicago, IL 60605

By Mail:
John Morris
4270 Armadillo Trail
Niceville, FL 32578 /s/ Mary M. Leach

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