Limone v. United States , 579 F.3d 79 ( 2009 )

United States Court of Appeals
For the First Circuit
No. 08-1327
PETER J. LIMONE ET AL.,
Plaintiffs, Appellees,
v.
UNITED STATES OF AMERICA,
Defendant, Appellant.
____________________
No. 08-1328
EDWARD GRECO,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Torruella, Selya and Tashima,* Circuit Judges.
*
Of the Ninth Circuit, sitting by designation.
Joshua Waldman, Appellate Staff, Civil Division, United States
Department of Justice, with whom Gregory G. Katsas, Assistant
Attorney General, Michael J. Sullivan, United States Attorney, and
Michael S. Raab, Appellate Staff, Civil Division, United States
Department of Justice, were on brief, for the United States.
James R. Murray, Alex E. Hassid, Erin C. Wilcox, Christopher
J. Allen, and Dickstein Shapiro LLP on brief for Society of Former
Special Agents of the FBI, Inc., amicus curiae.
Michael Avery, with whom Juliane Balliro, Christine M.
Griffin, WolfBlock, LLP, Richard D. Bickelman, Catherine J. Savoie,
Ian H. Moss, Posternak, Blankstein & Lund, LLP, William T. Koski,
Koski & Kearns, LLP, Daniel R. Deutsch, John C. Foskett, Deutsch
Williams, Howard Friedman, Jennifer L. Bills, David Milton, Law
Offices of Howard Friedman, P.C., Victor J. Garo, Austin J.
McGuigan, Glenn E. Coe, Joseph B. Burns, Bridget Ciarlo, Rome
McGuigan, P.C., Michael Rachlis, Edwin L. Durham, and Rachlis
Durham Duff & Adler, LLC were on joint liability brief, for all
individual appellees.
Michael Avery, William T. Koski, Koski & Kearns, LLP, Juliane
Balliro, Christine M. Griffin, and WolfBlock, LLP on damages brief
for Limone and Tameleo appellees.
Austin J. McGuigan, Joseph B. Burns, Rome McGuigan, P.C., and
Victor J. Garo on damages brief for Salvati appellees.
Richard D. Bickelman, Catherine J. Savoie, Ian H. Moss,
Posternak, Blankstein & Lund, LLP, Daniel R. Deutsch, John C.
Foskett, and Deutsch Williams on brief for appellee Roberta Werner,
individually, as Executrix of the Estate of Louis Greco, and as
Administratrix of the Estate of Louis Greco, Jr.
Howard Friedman, with whom David Milton, Law Offices of Howard
Friedman, P.C., Michael Rachlis, Edward L. Durham, and Rachlis
Durham Duff & Adler, LLC, were on brief, for appellee and cross-
appellant Edward Greco.
August 27, 2009
SELYA, Circuit Judge. The genesis of these appeals can
be traced to the gangland slaying of Edward "Teddy" Deegan, which
occurred in 1965 in Chelsea, Massachusetts. Initially, the murder
went unsolved. Two years later, agents of the Federal Bureau of
Investigation (FBI), intent on frying bigger fish, cultivated a
cooperating witness, Joseph Barboza, with tight ties to organized
crime. Barboza thereafter met with state authorities and
implicated several individuals in the Deegan slaying.
Based principally on Barboza's testimony, the
Commonwealth of Massachusetts secured indictments in 1967 and
convictions the following year. Among those convicted were Peter
Limone, Sr., Enrico Tameleo, Louis Greco, Sr., and Joseph Salvati
(collectively, the scapegoats). All of them received stiff
sentences.
Some three decades later, disturbing revelations cast
grave doubt upon the verdicts. In December of 2000, the FBI for
the first time disclosed that all along it had possessed reliable
intelligence undercutting Barboza's account of the murder and that
it had suppressed this intelligence. By the time that this
information came to light, Tameleo and Greco had died in prison,
Salvati had been paroled, and Limone was still behind bars. In due
course, the convictions of all four men were vacated and Limone was
released.
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Salvati, Limone, and the representatives of the estates
of Tameleo and Greco, along with various family members
(collectively, the plaintiffs), brought suit against the United
States advancing claims under the Federal Tort Claims Act (FTCA),
28 U.S.C. §§ 1346(b), 2671-2680. Following a bench trial, the
district court found the government liable on a multitude of
theories and awarded over $100,000,000 in damages. The government
appeals, as does one of the plaintiffs.
The record evinces egregious governmental misconduct; the
FBI agents responsible for handling Barboza exhibited a callous
disregard for the scapegoats' rights. But it is our duty to
interpret and apply the law even-handedly, regardless of the
egregiousness of a defendant's misconduct. Fidelity to that duty
requires us to examine and resolve several vexing issues concerning
both liability and damages. After painstaking consideration of the
voluminous record, the parties' briefs, and the district court's
carefully crafted rescripts, we affirm the liability finding
(albeit on grounds that differ in one significant respect from
those relied upon by the district court).
The damage awards give us pause. Insofar as the awards
embody damages for wrongful incarceration, they are considerably
higher than any one of us, if sitting on the trial court bench,
would have ordered. We nonetheless affirm those awards. Our
proper function as appellate judges is not to second-guess the
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trial court but, rather, to apply a very deferential standard of
review. Adhering to that role, and testing the disputed awards
only to that extent, we conclude that the awards, though high, are
not so grossly disproportionate to the harm sustained as to either
shock our collective conscience or raise the specter of a
miscarriage of justice.
I. BACKGROUND
These appeals have a long factual and procedural history.
We rehearse that history only insofar as is necessary to place into
perspective the issues that we must decide. We direct the reader
who hungers for more detail to consult the district court's
capstone opinion in Limone v. United States (Limone IV), 497 F.
Supp. 2d 143 (D. Mass. 2007).
We bifurcate our account. First, we limn the unsavory
history of the Deegan murder and its aftermath. Then, we move to
the commencement and travel of the federal case. Because these
appeals follow findings made by a district court sitting without a
jury, we resolve factual conflicts in favor of the district court's
findings (to the extent that those findings are not clearly
erroneous). Jackson v. United States, 156 F.3d 230, 232-33 (1st
Cir. 1998).
A. The Murder and Its Aftermath.
On the night of March 12, 1965, Teddy Deegan's bullet-
ridden body was discovered in Chelsea, Massachusetts. Deegan had
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been shot six times, and the shots had been fired from three
different guns. Suspicion focused upon a group of men that
included Barboza, Jimmy Flemmi, Roy French, Joseph Martin, and
Ronald Cassesso, all of whom were linked to organized crime. The
group had been observed leaving a local gang hangout, the Ebb Tide
Lounge, earlier that evening and returning shortly after the murder
was committed. Eyewitnesses attested that they had seen blood
stains on French's clothing that night.
Despite local officers' suspicions, the trail went cold
within a matter of weeks. The police were unable to gather
sufficient evidence to prefer charges against anyone.
Some two years later, FBI agents H. Paul Rico and Dennis
Condon started cultivating Barboza, a known killer, in hopes of
"flipping" him; that is, developing him as a cooperating witness
against the Italian Mafia (La Cosa Nostra or LCN). At the time,
Barboza was facing up to 89 years of imprisonment on state
"habitual offender" charges. See Mass. Gen. Laws ch. 279, § 25.
Barboza indicated a willingness to deal but placed one immutable
condition on any information that he might provide: he would not
inculpate his close associate, Flemmi. The FBI tacitly accepted
that condition.
Throughout the spring of 1967, the agents used both
carrots and sticks in their efforts to mine information from
Barboza. Barboza was in state custody, and the agents plied him
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with promises of favorable recommendations and a slap-on-the-wrist
sentence. They also fabricated a story that La Cosa Nostra was
attempting, by influencing state prosecutors, to bring about
Barboza's lifetime confinement.
Barboza's cooperation was not a one-shot affair. Over
the course of several months of interrogation, he claimed to be
knowledgeable about many crimes. Pertinently, he mentioned the
Deegan murder (although in his conversations with the FBI agents he
was not forthcoming as to any details). That crime was primarily
a matter of state, not federal, interest. Accordingly,
Massachusetts law enforcement officers sought to interview Barboza.
On September 8, 1967, two Suffolk County detectives (John
Doyle and Frank Walsh) conversed with Barboza. Agents Rico and
Condon were present, but the detectives pulled the laboring oar.
Under questioning, Barboza finally provided his account of the
Deegan killing. According to that account, Limone hired Barboza to
murder Deegan because Deegan had robbed an LCN-affiliated
bookmaker. Barboza then requested permission to carry out the
"hit" from Tameleo, an LCN hierarch. After Tameleo's blessing had
been secured, Barboza and Greco formulated a plan.
According to Barboza, the mechanics of the plan were as
follows. French would accompany Deegan to the site of a
hypothetical burglary. Once there, French would turn on Deegan
and, assisted by Barboza, Salvati, Greco, Martin, and Cassesso,
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would kill both Deegan and another putative participant in the
burglary, Anthony Stathopoulos, Jr. Upon learning the details of
the plan, Limone approved it and agreed to pay an additional sum
because it involved a double murder.
During subsequent meetings with the detectives and the
agents, Barboza modified his account. This modified version, which
differed only at the margins and not at the core, formed the
predicate for the indictments and convictions that followed.
At the time that Barboza unveiled his account of Deegan's
murder, the FBI possessed powerful intelligence casting grave doubt
on the account's veracity. Because the strength of this
intelligence is of decretory significance here, we discuss it in
some detail.
In the early 1960s, the FBI ramped up its efforts to
extirpate organized crime in New England. Among other things, it
surreptitiously installed an illegal electronic "bug" at the
Providence, Rhode Island office of Raymond L. S. Patriarca, the
reputed head of La Cosa Nostra in the area. The bug was in place
from early 1962 through July 12, 1965. See United States v.
Taglianetti, 274 F. Supp. 220, 223 (D.R.I. 1967). FBI agents
transcribed the conversations that it recorded, reviewed those
transcripts, and sent summaries of important information to FBI
headquarters in Washington.
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As a parallel measure, the FBI initiated the Top Echelon
Criminal Informant Program in 1961. The aim of that program was to
induce high-ranking organized crime figures to provide intelligence
on a continuing, long-term basis. See United States v. Flemmi, 225
F.3d 78, 81 (1st Cir. 2000).
In the weeks preceding and following Deegan's murder,
these two investigative tools yielded a golconda of information
about the killers. The Patriarca bug revealed that Barboza and
Flemmi had approached Patriarca and obtained his sanction for the
hit. Other information from both the bug and the FBI's then-
current crop of Top Echelon informants implicated five malefactors
(Barboza, Flemmi, French, Martin, and Cassesso) in the murder, but
not a single source other than Barboza so much as hinted that any
of the scapegoats were involved.
Despite possessing credible intelligence undermining
Barboza's tale, the FBI did not turn over this intelligence to
state authorities either at the time of the murder or during
Barboza's later debriefing. To make a bad situation worse, agents
Rico and Condon informed the state prosecutor, Norman Zalkind, that
Barboza's tale "checked out." Condon appeared as a witness at the
state-court trial and lent credence to Barboza's narrative by
emphasizing that he (Condon) always was concerned about the
"purity" of the testimony given by his informants.
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On the strength of Barboza's false testimony, the jury
convicted the scapegoats on first-degree murder and murder-
conspiracy charges.1 The trial judge sentenced Limone, Tameleo,
and Greco to death, and sentenced Salvati to life imprisonment.
The scapegoats' appeals were unsuccessful, but the capital
sentences were commuted to life imprisonment after the United
States Supreme Court decided Furman v. Georgia, 408 U.S. 238(1972).
Under Massachusetts law as it stood at the time, a state
prisoner convicted of first-degree murder could not be paroled
absent commutation by the governor. See Limone IV, 497 F. Supp. 2d
at 199 (describing parole process). The scapegoats filed numerous
petitions for commutation and parole over many years. Although
state authorities requested all relevant information, the FBI never
turned over the exculpatory information that reposed within its
files. On some occasions, the FBI went so far as to forward
information that harmed the scapegoats' chances for commutation or
parole. On other occasions, it took affirmative steps to deflect
possible challenges to the convictions.
Tameleo and Greco died in prison in 1985 and in 1995,
respectively. Salvati secured a commutation from the governor and
was released in 1997. Limone remained incarcerated.
1
French, Martin, and Cassesso also were convicted on charges
related to the murder. The legitimacy of those convictions is not
an issue here.
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In December of 2000, Special Assistant United States
Attorney John Durham, responding to a request lodged by Limone,
turned over five memoranda (which have come to be known as the
Durham documents). The Durham documents revealed much of the
exculpatory information that the FBI had kept in its organizational
bosom all along. Upon seeing this information, the Suffolk County
district attorney's office moved to vacate Limone's conviction.
The state trial court granted that motion on the ground that the
result of the trial in all likelihood would have been different had
the Durham documents been disclosed in a timeous manner. Salvati's
conviction was vacated on the same ground. Shortly thereafter,
state prosecutors filed notices of abandonment of prosecution
(nolle prosequi) for both Limone and Salvati based on a perceived
lack of evidence. The prosecutors later arranged for posthumous
vacatur of Tameleo's and Greco's convictions and issued similar
nolle prosequi notices in those cases.
B. The FTCA Action.
Following the release of the Durham documents, the
plaintiffs filed separate actions in the federal district court.
The plaintiffs' complaints adumbrated three types of causes of
action: (i) claims against the United States under the FTCA;
(ii) Bivens claims against Rico, Condon, and other FBI
supernumeraries, see Bivens v. Six Unknown Named Agents of FBN, 403
U.S. 388, 397 (1971); and (iii) claims against Walsh and other
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state actors pursuant to 42 U.S.C. § 1983. The cases were
consolidated.
The United States moved to dismiss on the ground that the
claims against it were barred by the discretionary function and
intentional tort exceptions to the FTCA. See 28 U.S.C. § 2680(a),
(h). The individual defendants moved to dismiss on qualified
immunity grounds. The district court denied these motions. See
Limone v. United States (Limone I), 271 F. Supp. 2d 345, 353-57 (D.
Mass. 2003) (rejecting discretionary function defense); id. at 365-
66 (rejecting qualified immunity defense); Limone v. United States
(Limone III), 336 F. Supp. 2d 18, 30-31 (D. Mass. 2004) (rejecting
intentional tort defense). On a limited interlocutory appeal, we
affirmed the denial of qualified immunity. Limone v. Condon
(Limone II), 372 F.3d 39, 50 (1st Cir. 2004). The plaintiffs later
dropped their claims against the individual defendants (federal and
state) and proceeded only on the FTCA claims.
Following a 22-day bench trial, the district court found
for the plaintiffs (including the family members) on their claims
of malicious prosecution, coercive civil conspiracy, intentional
infliction of emotional distress, negligence, negligent
supervision, and loss of consortium. The court awarded total
damages in excess of $100,000,000. These timely appeals ensued.
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II. ANALYSIS
On appeal, the government challenges the district court's
holdings on both liability and damages. Its argument on liability
makes three basic points: (i) that the district court lacked
subject matter jurisdiction over the plaintiffs' claims by reason
of the FTCA's discretionary function exception; (ii) that the court
lacked such jurisdiction because the plaintiffs' claims arose out
of intentional torts committed before Congress amended the FTCA to
permit the maintenance of such claims; and (iii) that the
plaintiffs adduced insufficient evidence to prove the elements of
any of the asserted torts.
In a secondary line of attack, the government assails the
district court's damages calculus, arguing that the court's rule-
of-thumb baseline of $1,000,000 per year for each year of wrongful
incarceration is unreasonable and resulted in a battery of
excessive awards. In a cross-appeal, the son of one of the
scapegoats contends that the district court erred in awarding him
the same damages as were awarded to the offspring of the other
scapegoats.
In the pages that follow, we address these arguments.
For ease in exposition we deal with the second and third prongs of
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the government's challenge to liability before addressing the first
prong.2
We start that discussion with what all the parties have
treated as the leading edge of the government's appeal: its
asseveration that the district court erred in finding the
government liable for malicious prosecution. While we conclude
that the government's asseveration has merit, that proves to be a
hollow victory. The next most bruited theory on which the district
court premised liability — its finding that the FBI is liable for
intentional infliction of emotional distress — withstands scrutiny.
As to that cause of action, we also reject the government's
insufficiency of the evidence and discretionary function defenses.
Finally, we uphold the damage awards in their entirety (a decision
that entails, among other things, defenestration of the cross-
appeal).
A. Malicious Prosecution.
Federal courts lack jurisdiction over tort actions
against the United States except insofar as the sovereign has
2
Because the discretionary function exception, when
applicable, deprives a court of subject matter jurisdiction, some
might think consideration of it logically antecedent to
consideration of the merits. But the answer to the discretionary
function inquiry depends in large measure on the nature of the
conduct at issue. See, e.g., Fothergill v. United States, 566 F.3d
248, 252-53 (1st Cir. 2009); Shansky v. United States, 164 F.3d
688, 690-91 (1st Cir. 1999). In an appellate court, after a full
trial on the merits, the discretionary function inquiry sometimes
is better performed at a later stage in the analysis. This is such
a case.
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consented to be sued. See Dynamic Image Techs., Inc. v. United
States, 221 F.3d 34, 39 (1st Cir. 2000). The FTCA represents a
general waiver of federal sovereign immunity for tortious acts and
omissions of federal employees. But that general waiver is subject
to a litany of exceptions.
At the time that the scapegoats were charged, prosecuted,
and convicted in state court, the FTCA's waiver provisions excluded
claims arising out of malicious prosecution. See Savage v. United
States, 322 F. Supp. 33, 35 (D. Minn. 1971) (quoting former section
2680(h)); Ira S. Bushey & Sons, Inc. v. United States, 276 F. Supp.
518, 526 (E.D.N.Y. 1967) (same). Congress dissolved the malicious
prosecution bar with respect to federal law enforcement officers in
1974, amending the FTCA to add what has come to be known as the law
enforcement proviso. See Pub. L. No. 93-253, § 2, 88 Stat. 50,
codified at 28 U.S.C. § 2680(h).
The government posits that the plaintiffs' malicious
prosecution claims arose before the enactment of the law
enforcement proviso and, therefore, the district court lacked
jurisdiction over those claims. The district court brushed aside
this argument, holding that the plaintiffs' malicious prosecution
claims did not arise until the scapegoats had received favorable
terminations of the criminal charges wrongfully brought against
them (an eventuality that did not occur until 2001 at the
earliest). See Limone IV, 497 F. Supp. 2d at 204; Limone III, 336
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F. Supp. 2d at 30-37; see also Heck v. Humphrey, 512 U.S. 477, 489
(1994) (indicating that cause of action for malicious prosecution
does not accrue until favorable termination of the underlying
criminal proceeding has occurred).
The key to this riddle lies in language. The law
enforcement proviso applies only to covered actions (like malicious
prosecution) that "aris[e]" after its effective date. 28 U.S.C.
§ 2680(h). The plaintiffs and the district court equate the word
"arise" with the word "accrue," thereby bringing into play the Heck
analysis. The government, however, insists that the word "arise"
refers to the time when the prosecution itself occurred. Each view
has a patina of plausibility. The district court's analysis makes
the case for the plaintiffs, see Limone III, 336 F. Supp. 2d at 30-
37, and the government's reading of the statute finds some purchase
in the case law elsewhere, see, e.g., Liuzzo v. United States, 508
F. Supp. 923, 927-28 & n.2 (E.D. Mich. 1981).
This is a difficult question. Moreover, given the
passage of time, it is unlikely to recur. Courts should take pains
not to grapple needlessly with enigmatic questions. As we explain
below, it is unnecessary for us to answer the statutory
construction question posed by the parties in this case.3
3
We recognize that the question of when a cause of action for
malicious prosecution arises under the law enforcement proviso of
the FTCA is jurisdictional in nature. We have broad discretion,
however, to take issues in whatever order practicality may suggest,
see, e.g., Puerto Rico v. United States, 490 F.3d 50, 70 (1st Cir.
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The FTCA looks to state law to flesh out the elements of
particular torts. See 28 U.S.C. § 1346(b)(1); Bolduc v. United
States, 402 F.3d 50, 56 (1st Cir. 2005). Here, both the allegedly
tortious conduct and the harm complained of occurred in
Massachusetts. Massachusetts law, therefore, supplies the beacon
by which we must steer.
To prevail on a malicious prosecution claim under
Massachusetts law, a suitor must prove that the defendant
(i) instituted criminal proceedings (ii) with malice and
(iii) without probable cause, and (iv) that the proceedings were
terminated in the accused's favor. Correllas v. Viveiros, 572
N.E.2d 7, 10 (Mass. 1991). Here, we can start and stop with the
first of these four elements.
In broad brush, an individual may be said to have
instituted criminal proceedings against another if he caused those
proceedings to be initiated. See Witham v. Gregory & Read Co., 137
N.E. 752, 752 (Mass. 1923); Mason v. Jacot, 127 N.E. 331, 333
(Mass. 1920); Tangney v. Sullivan, 39 N.E. 799, 799-800 (Mass.
1895). The paradigmatic example exists when a person formally
swears out a criminal complaint against another person. See, e.g.,
White v. Apsley Rubber Co., 80 N.E. 500, 501 (Mass. 1907). But
malicious prosecution is by no means restricted to this paradigm.
2007), and we exercise that discretion here.
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If an individual induces another person (say, a police
officer or prosecutor) to lodge formal criminal charges, he may be
held to have instituted the criminal proceedings. See, e.g., Jones
v. Schein, 103 N.E. 57, 58 (Mass. 1913); Tangney, 39 N.E. at 800.
So, too, if an individual either exercises a peculiar degree of
control over the charging official or adamantly presses that
official to bring a criminal complaint, he may be held responsible
for the institution of the prosecution. See, e.g., Seelig v.
Harvard Coop. Soc'y, 246 N.E.2d 642, 646 (Mass. 1969); Conway v.
Smerling, 635 N.E.2d 268, 271 (Mass. App. Ct. 1994).
These taxonomies are of scant solace to the plaintiffs.
The FBI neither preferred charges against the scapegoats nor swore
out a complaint against them. Moreover, there is not a shred of
evidence that the FBI induced the state to pursue the murder case.
The agents' primary interest was in preserving the secrecy of their
own sources. They did not demand that state actors bring charges
against the scapegoats; indeed, there is no evidence that they so
much as suggested that such charges should be brought.
Finally, though the agents assisted Barboza in shoring up
his false tale when inconsistencies came to light, that subsequent
assistance does not support a conclusion that the FBI "encouraged"
state actors to institute the Deegan prosecution. See Correllas,
572 N.E.2d at 10. Equally as important, that evidence does not
support the district court's findings, Limone IV, 497 F. Supp. 2d
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at 210, that the FBI controlled state actors and that the Deegan
prosecution was the functional equivalent of a federal prosecution.
Those findings were clearly erroneous. See Benham v. Lenox Sav.
Bank, 292 F.3d 46, 48 (1st Cir. 2002).
The plaintiffs' best argument is at the margins. There
is case law in Massachusetts indicating that an individual who
transmits untruthful information to an official with power to
charge sometimes may be said to have instituted an ensuing criminal
proceeding brought by that official. See, e.g., Ziemba v.
Fo'cs'le, Inc., 475 N.E.2d 1223, 1226 (Mass. App. Ct. 1985);
Carroll v. Gillespie, 436 N.E.2d 431, 439 (Mass. App. Ct. 1982);
see also Petricca v. City of Gardner, 429 F. Supp. 2d 216, 225 (D.
Mass. 2006). This does not mean, however, that every provider of
false information, nor even every bad-faith provider of false
information, may be said to have instituted an ensuing criminal
proceeding.
The question of whether such an individual has instituted
a criminal proceeding depends on the circumstances. The
controlling precedent is the ruling of the Massachusetts Supreme
Judicial Court (SJC) in Correllas, 572 N.E.2d at 10. Under that
decision, an individual may not be held to have instituted criminal
proceedings if he merely provides false information to law
enforcement officials in response to these officials' queries
during an ongoing investigation. See id.; see also Councilman v.
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Alibris, Inc., 386 F. Supp. 2d 5, 9 (D. Mass. 2005). Instead, the
information provider must take some initiative; that is, he must
voluntarily reach out to law enforcement officials and cause them
to commence a new line of inquiry. See Councilman, 386 F. Supp. 2d
at 9.
The court below concluded that the United States was
responsible for instituting criminal proceedings against the
scapegoats on the theory that the FBI, through Barboza, had become
a bad-faith provider of false information. Limone IV, 497 F. Supp.
2d at 207-13. This conclusion rests principally on two
considerations. First, agents Rico and Condon recruited, vetted,
and delivered Barboza to state authorities. Id. at 206. Second,
they knew that Barboza was not being truthful when he implicated
the scapegoats, yet they assisted Barboza in making his tale more
believable and encouraged him to stand by that tale through
incentives such as protection, promises of leniency, and financial
rewards. Id. at 179-80, 211, 217-18.
The record leaves no doubt but that the agents conducted
themselves deplorably. But we cannot agree that they can be said
to have "instituted" the criminal proceedings that ensued against
the scapegoats. The turning point is the SJC's analysis in
Correllas.
The record in this case makes pellucid that, during
interrogations conducted exclusively by Rico and Condon, Barboza
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made only passing reference to the Deegan homicide. He neither
mentioned the scapegoats nor offered any specific details about the
murder or the murderers. For their part, the agents exhibited no
particular interest in those subjects.
This void remained until state authorities began to take
part in the questioning. Barboza first offered the account that
would form the basis of the prosecution during an interview
conducted chiefly by Doyle and Walsh (Suffolk County detectives) on
September 8, 1967.4 That questioning came about as part of a
larger state investigation into the Deegan murder. By the time of
the September 8 interview, state investigators had visited Barboza
on at least four occasions and had asked him point-blank for
information pertaining to the Deegan murder.5 Even though federal
agents were present during these audiences, it seems to have been
the detectives, not the FBI, who first brought up, and then kept
digging into, the Deegan murder. See supra note 4.
So viewed, the record compels the conclusion that Barboza
furnished the false information that led to the institution of the
4
The FBI report of this interview indicates that Doyle
conducted the interview. Moreover, the substance of that FBI
report consists only of a copy of Doyle's interview notes. That
general scenario is characteristic of the FBI reports of subsequent
interrogation sessions at which the detectives were present.
5
Although Barboza would make alterations to the fairy tale
that he narrated on September 8, these alterations too came about
during joint interview sessions led by state law enforcement
officers.
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prosecution while under questioning by state agents investigating
a state crime. There is no evidence that the FBI brought Barboza
and state authorities together specifically so that he would talk
on the Deegan murder; indeed, Barboza offered information to state
authorities on various matters, including another murder he would
later testify about, before he answered questions regarding Deegan.
Moreover, there is no evidence that the FBI knew that Barboza would
concoct the bogus story that emerged. See Limone IV, 497 F. Supp.
2d at 217 (finding that Barboza had pulled "the [scapegoats'] names
out of thin air"). Although there is evidence that the FBI helped
to shore up Barboza's credibility as matters moved along, the
prosecution by then already had been instituted.
There is one loose end. The SJC has left open the
possibility that an individual may be held liable for malicious
prosecution if he pursues a prosecution after it has become clear
to him that there is no probable cause to support it. See
Gutiérrez v. MBTA, 772 N.E.2d 552, 562 (Mass. 2002); see also
Mitchell v. City of Boston, 130 F. Supp. 2d 201, 215 (D. Mass.
2001) (quoting Restatement (Second) of Torts § 655 (1977)). Given
the SJC's holding in Correllas, however, it is evident that the
mere provision of false information cannot alone ground a malicious
continuation finding. More is required, such as an insistence that
the prosecution go forward even after it has become clear that
probable cause is lacking. See, e.g., Miller v. City of Boston,
-22-
297 F. Supp. 2d 361, 367 (D. Mass. 2003); Restatement (Second) of
Torts § 655 cmt. c (1977).
Here, there is no evidence that FBI agents urged state
authorities to continue the ill-starred prosecution. Patently, the
agents' primary interest was in Barboza, not in prosecuting the
scapegoats. The mere fact that the agents propped up the state's
case (e.g., by bolstering Barboza's credibility) does not make the
FBI a "continuer" of the prosecution any more than the defendant in
Correllas (who gratuitously offered false data to the authorities
subsequent to the initiation of prosecution).
To sum up, we hold that the FBI did not institute
criminal proceedings against the scapegoats. See Correllas, 572
N.E.2d at 10. Thus, the plaintiffs have failed to prove the first
element of the tort of malicious prosecution. Consequently, the
district court erred in holding the United States liable for that
tort. Nevertheless, this conclusion does not end our odyssey. The
district court also found the government liable on other theories.
Hence, we proceed to the most promising of those parallel theories
of liability.
B. Intentional Infliction of Emotional Distress.
Under Massachusetts law, an individual is liable for
intentional infliction of emotional distress when he, "by extreme
and outrageous conduct and without privilege, causes severe
emotional distress to another." Agis v. Howard Johnson Co., 355
-23-
N.E.2d 315, 318 (Mass. 1976).6 The court below found that the
FBI's extreme and outrageous misconduct had caused the plaintiffs
to suffer severe emotional distress and, thus, imposed liability.
Limone IV, 497 F. Supp. 2d at 227.
The government does not contest that the tort of
intentional infliction of emotional distress, unlike malicious
prosecution, was actionable under the FTCA before the passage of
the law enforcement proviso. Instead, it suggests that the
district court lacked subject matter jurisdiction over the
plaintiffs' intentional infliction claims because those claims
arise out of malicious prosecution (a tort that was barred by the
version of the FTCA in effect at the time of the convictions). As
a fallback, the United States questions the factual predicate
underlying the district court's analysis. We treat these arguments
sequentially.
1. Subject Matter Jurisdiction. As said, Congress did
not waive the federal government's immunity from actions arising
out of malicious prosecution until it enacted the law enforcement
proviso in 1974. The government hypothesizes that the plaintiffs'
6
Agis is the seminal Massachusetts case recognizing a cause
of action for intentional infliction of emotional distress in the
absence of an accompanying physical injury. Although the
scapegoats' convictions predate this decision, the United States
has not ascribed any relevance to this chronology. Thus, we deem
waived any contention that the government cannot be held liable
under the FTCA on a tort theory that was not firmly established in
the case law of the relevant state at the time of the tortious
acts.
-24-
intentional infliction claims arise out of a maliciously instigated
prosecution that occurred before the enactment of this proviso and,
therefore, the district court lacked competence to adjudicate those
claims. We do not accept that hypothesis.
Although courts (including this court) sometimes have
referred loosely to section 2680(h) as an "intentional torts"
exception to the general waiver contained in the FTCA, see, e.g.,
Rodríguez v. United States, 54 F.3d 41, 44 (1st Cir. 1995), the
provision only preserves the federal government's immunity with
respect to claims arising out of certain enumerated torts, see
Santiago-Ramírez v. Sec'y of Def., 984 F.2d 16, 20 (1st Cir. 1993);
Black v. Sheraton Corp., 564 F.2d 531, 539-40 (D.C. Cir. 1977).
Because intentional infliction of emotional distress never has been
on the roster of excluded torts listed in section 2680(h),
intentional infliction claims are not per se barred by that
provision. See Estate of Trentadue ex rel. Aguilar v. United
States, 397 F.3d 840, 854-55 (10th Cir. 2005); Sabow v. United
States, 93 F.3d 1445, 1457 (9th Cir. 1996); Truman v. United
States, 26 F.3d 592, 595 (5th Cir. 1994); Santiago-Ramírez, 984
F.2d at 20; Kohn v. United States, 680 F.2d 922, 926 (2d Cir.
1982); Gross v. United States, 676 F.2d 295, 304 (8th Cir. 1982).
Be that as it may, the reach of section 2680(h) is not
limited to specifically enumerated torts. Rather, that provision
deprives a district court of jurisdiction over a claim whenever the
-25-
claim is, or arises out of, a specifically enumerated tort. See,
e.g., Snow-Erlin v. United States, 470 F.3d 804, 808-09 (9th Cir.
2006) (holding particular claim arose out of false imprisonment);
O'Ferrell v. United States, 253 F.3d 1257, 1265-66 (11th Cir. 2001)
(holding particular claim arose out of slander). This framework
applies to claims for intentional infliction of emotional distress.
See, e.g., Metz v. United States, 788 F.2d 1528, 1534-35 (11th Cir.
1986).
The approach that we have outlined necessitates a fact-
sensitive, case-specific inquiry. In performing that tamisage,
substance trumps form; an inquiring court must look past the
nomenclature employed by the plaintiff and focus on the actual
nature of the plaintiff's grievance. See Jiménez-Nieves v. United
States, 682 F.2d 1, 6 (1st Cir. 1982). If that grievance rests on
proof of conduct that traditionally comprises an excepted tort,
section 2680(h) precludes suit. See, e.g., Snow-Erlin, 470 F.3d at
808-09; Truman, 26 F.3d at 595; Thomas-Lazear v. FBI, 851 F.2d
1202, 1207 (9th Cir. 1988).
On the other hand, if there is merely a loose connection,
a family resemblance, or even a partial overlap between the conduct
on which the asserted claim rests and that comprising an excepted
tort, the claim is not barred by section 2680(h). See Block v.
Neal, 460 U.S. 289, 298 (1983). It follows that when an element of
an excepted tort is missing from the factual scenario, the claim is
-26-
not pretermitted. See Estate of Trentadue, 397 F.3d at 855(holding intentional infliction claim not barred by
misrepresentation exception because elements of misrepresentation,
including reliance and pecuniary loss, were not present); Truman,
26 F.3d at 596 (holding intentional infliction claim not barred by
assault or battery exceptions because elements of these latter
torts were not alleged); Jiménez-Nieves, 682 F.2d at 4-5 (holding
negligence claim not barred by misrepresentation exception because
reliance not present).
In the instant case, the plaintiffs failed to prove that
the FBI instituted criminal proceedings against the scapegoats, see
supra Part II(A), and thus failed to prove an essential element of
the tort of malicious prosecution. Furthermore, the conduct
undergirding the plaintiffs' claims for intentional infliction of
emotional distress is broader than that traditionally associated
with the tort of malicious prosecution in that it includes
malfeasance that postdates the scapegoats' convictions, such as
efforts by the FBI to cover up its misdeeds (a topic to which we
shall return). And, finally, the plaintiffs' intentional
infliction claims require proof not only that the FBI's conduct was
something akin to malicious, but also that it was extreme and
outrageous. Agis, 355 N.E.2d at 318. These are substantive
distinctions. See Foley v. Polaroid Corp., 508 N.E.2d 72, 82
(Mass. 1987).
-27-
We conclude that the conduct underlying the plaintiffs'
claims for intentional infliction of emotional distress neither
comprises malicious prosecution nor arises out of malicious
prosecution in the requisite sense.7
The government labors to undercut this reasoning by
noting that the plaintiffs pleaded claims of malicious prosecution
arising out of essentially the same facts that supported their
intentional infliction claims. The plaintiffs' intentional
infliction claims, they suggest, are barred by this
characterization.
This suggestion is more cry than wool. The plaintiffs
had the right to plead alternative theories of liability, see Fed.
R. Civ. P. 8(d), and their exercise of that right did not debar
them from an independent review of each set of claims. See Dedham
Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1157-58
(1st Cir. 1989).
In a related vein, the government posits that because the
district court found that the same damages flowed from both the
alleged malicious prosecution and the alleged intentional
infliction of emotional distress, Limone IV, 497 F. Supp. 2d at 245
& n.208, the latter claims necessarily arise out of the former.
This is sophistry, pure and simple. The proper inquiry focuses
7
The district court's finding of malicious prosecution does
not require a different result. That finding was incorrect as a
matter of law, see supra Part II(A), and is entitled to no weight.
-28-
upon the actor's tortious conduct, not the plaintiff's damages.
See Truman, 26 F.3d at 595; Gross, 676 F.2d at 304; Black, 564 F.2d
at 540-41; see also Rayonier Inc. v. United States, 352 U.S. 315,
320 (1957) (warning against "read[ing] exemptions into the [FTCA]
beyond those provided by Congress").
To say more on this point would be supererogatory. We
hold that, section 2680(h) notwithstanding, the district court had
subject matter jurisdiction to adjudicate the claims for
intentional infliction of emotional distress.
2. The Merits. To make out a claim for intentional
infliction of emotional distress under Massachusetts law, a
claimant must prove:
(1) that the [defendant] intended to inflict
emotional distress or that he knew or should
have known that emotional distress was the
likely result of his conduct; (2) that the
conduct was extreme and outrageous, was beyond
all possible bounds of decency and was utterly
intolerable in a civilized community; (3) that
the actions of the defendant were the cause of
the plaintiff's distress; and (4) that the
emotional distress sustained by the plaintiff
was severe and of a nature that no reasonable
man could be expected to endure it.
Agis, 355 N.E.2d at 318-19 (citations and internal quotation marks
omitted). The court below determined that the plaintiffs had
proven these four elements by a preponderance of the evidence.
Limone IV, 497 F. Supp. 2d at 227. In the court's view, the FBI
had participated willingly in framing the scapegoats, and then
scrambled to cover up the frame job by obstructing the scapegoats'
-29-
efforts to clear their names. Id. The court found this conduct
"intentional," "outrageous," "beyond all bounds of decency," and to
have "no place in a civilized community." Id. The consequent
emotional distress was "so severe and of such a nature that no
reasonable person could be expected to endure it." Id.The government raises a host of record-based challenges
to this series of findings. Because these appeals follow a bench
trial, we review the lower court's factfinding for clear error.
Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir.
1990); Fed. R. Civ. P. 52(a). Consonant with that standard, we
will not "upset findings of fact or conclusions drawn therefrom
unless, on the whole of the record, we form a strong, unyielding
belief that a mistake has been made." Cumpiano, 902 F.2d at 152.
As a threshold matter, the government questions whether
we should use an unadulterated standard of clear-error review. It
regards this standard as inapposite because the district court
relied principally upon documentary evidence in constructing its
findings and conclusions. We reject that argument out of hand.
In Anderson v. City of Bessemer City, the Supreme Court
considered whether, under Rule 52(a), an appellate tribunal may
review de novo findings of fact not bottomed on credibility
determinations. 470 U.S. 564, 573-74 (1985). The Court concluded
that the clearly erroneous standard loses none of its vigor "even
when the [lower] court's findings do not rest on credibility
-30-
determinations, but are based instead on physical or documentary
evidence or inferences from other facts." Id. at 574. The
application of clear-error review to findings drawn from a paper
record has long been the practice in this circuit. See, e.g.,
Reliance Steel Prods. Co. v. Nat'l Fire Ins. Co., 880 F.2d 575, 576
(1st Cir. 1989); Boroff v. Tully (In re Tully), 818 F.2d 106, 108-
09 (1st Cir. 1987). That is the practice to which we adhere today.
With the standard of review nailed down, we turn to the
government's multi-faceted critique of the trial court's
factfinding. To begin, the government takes umbrage with the
court's conclusion that the FBI's misconduct was extreme and
outrageous. But that conclusion seems rock-solid: it is premised
on the court's determination that FBI agents knowingly participated
in the events leading to the wrongful indictment, prosecution,
conviction, and continued incarceration of the scapegoats. Limone
IV, 497 F. Supp. 2d at 227. This determination rests on three
building blocks: that the FBI (i) knew Barboza was dissembling when
he implicated the scapegoats in Deegan's murder; (ii) assisted
Barboza in selling his lies to state authorities and encouraged him
to stick to them; and (iii) covered up its misdeeds post-conviction
by hindering the scapegoats' efforts to obtain relief. The
government challenges each of these building blocks.
As an initial matter, the district court's determination
that FBI agents knew that the scapegoats were strangers to the
-31-
Deegan slaying is not a necessary prerequisite to its finding of
extreme and outrageous conduct. The SJC has made pellucid that
such a finding may be grounded either on actual knowledge or on a
defendant's deliberate disregard of a substantial probability that
his actions will produce severe emotional distress. Simon v.
Solomon, 431 N.E.2d 556, 561-62 (Mass. 1982); see Restatement
(Second) of Torts § 46 cmt. i (1965). Thus, the FBI may not hide
behind an assertion that it remained (wilfully) blind to the
scapegoats' innocence. And though actual knowledge is not a
necessary finding, the district court's finding of actual knowledge
is obviously sufficient.
Moreover, that finding is unassailable. The record
contains adequate evidence from which a reasonable factfinder could
conclude — as did the district court — that the FBI knew that the
scapegoats were not involved in the slaying.
The district court painstakingly reviewed the
intelligence in the FBI's possession at the relevant time. See
Limone IV, 497 Supp. 2d at 172-77. In the days and months leading
up to Deegan's murder, the FBI learned from the Patriarca bug and
from its Top Echelon informants that Barboza and Flemmi — not
Limone or Tameleo — had requested permission to murder Deegan and
that Patriarca (the head of the LCN) had blessed the hit. On the
day following the murder, a highly reliable Top Echelon informant
told agent Rico that Flemmi had bragged about killing Deegan with
-32-
the help of French, Martin, Cassesso, and Barboza. This
enumeration of the participants in the murder was repeated and
confirmed through various informants and conversations picked up by
the Patriarca bug. Much of this information was catalogued in
memoranda, airtels, and correlator reports,8 a number of which were
either authored or initialed as read by Rico and Condon. Under
these circumstances, one would have to believe in the tooth fairy
to believe that the agents did not know the identities of the real
killers.
Relatedly, Barboza's accusation that Limone and Tameleo
had orchestrated the hit did not jibe with information that the FBI
had gleaned from the Patriarca bug. When requesting Patriarca's
permission to carry out the hit, Barboza and Flemmi made no mention
of any prior authorization given by Limone and Tameleo. And,
tellingly, the Patriarca bug showed that Limone, rather than
ordering the hit, had tried to warn Deegan that violence might be
in the offing. Rico and Condon turned a blind eye to these
contradictions.
There is other evidence as well. When Barboza first
spoke with Rico and Condon in March of 1967, he made it plain that
he would not incriminate Flemmi. The FBI had reliable intelligence
8
An airtel is an inter-office FBI communique sent between a
local field office and FBI headquarters. A correlator report is a
document that summarizes all the pertinent information possessed by
a field office concerning a particular person or subject.
-33-
linking Flemmi to the Deegan murder; Barboza's enumeration of a
cast of participants that did not include Flemmi, especially when
coupled with his avowed intent to shield Flemmi, surely should have
convinced the agents that they were not getting the whole story.
What is more, a local police officer had seen a balding
individual matching Flemmi's description in the back seat of
Martin's car at around the time of the killing. When Barboza
learned of the officer's observations, he suddenly "remembered"
that Salvati, whom he had previously placed in the back seat of
Martin's automobile, was wearing a bald wig. Given what the agents
knew, this convenient improvisation was a red flag that should have
triggered their suspicions.
Indeed, there is compelling reason to believe that FBI
agents assented to the omission of Flemmi's name in order to
further their own agenda. After all, the FBI formally targeted him
as a Top Echelon informant three days prior to Deegan's murder and
officially assigned him to Rico on the very day that Deegan was
killed. An FBI memorandum written in June of that year rated the
quality of Flemmi's information as good. Even after the FBI
dropped Flemmi from the ranks of its informants in September of
1965, it had a powerful incentive to keep him out of prison; his
brother, Stephen, became a Top Echelon informant around that time
and remained in that status for many years. See Flemmi, 225 F.3d
at 80-82.
-34-
The FBI's willingness to accept Barboza's narrative at
face value is especially troubling because Barboza exhibited a
similar lack of consistency in his account of Greco's supposed
involvement in the crime. When law enforcement officers were
unable to corroborate Barboza's insistence that Greco was present
at the Ebb Tide and had left with the rest of the men that Barboza
had fingered, Barboza reversed his field and claimed to have
"remembered" that Greco joined the others at a later time.
From this and other information in the record, it is
transparently clear that the district court had a sturdy foundation
for its finding that the FBI knew at the time that Barboza's story
was riddled with inconsistencies. The court was entitled to view
that knowledge in light of a wealth of FBI intelligence indicating
that the scapegoats were not part of the band of miscreants who
carried out the murder plot. Although the evidence does not compel
the conclusion that the FBI knew that the scapegoats were
uninvolved, it is enough to ground a reasonable inference to that
effect.
The government likewise challenges the district court's
determination that the FBI aided Barboza in framing the scapegoats.
In this regard, the government argues that the FBI did no more than
gift-wrap Barboza and hand him over to state authorities (who then
made an independent decision to prosecute the scapegoats). The
-35-
record supports the district court's determination regarding the
FBI's culpability.
To be sure, there is no evidence that the FBI spoon-fed
the scapegoats' names to Barboza. For aught that appears, the
fictional tale sprang directly from the informant's brow. But
there is evidence that, once Barboza gave the scapegoats' names to
the Suffolk County detectives, the FBI assisted him in doctoring
his tale to make it seem more believable. For example, as we have
said, Barboza modified his initial version of the facts to
accommodate other information possessed by the authorities. The
district court concluded that Barboza made these alterations
because the FBI had made him aware of contradictory evidence in the
hands of state officials. Limone IV, 497 F. Supp. 2d at 179-80.9
There was also evidence tending to show that the FBI
helped to "sell" Barboza's tale both to state authorities and to
the jury. The prosecutor, Zalkind, testified that the FBI had told
him that Barboza's account "checked out." Agent Condon testified
at the murder trial, vouchsafing that he was careful not to impart
any information about the murder investigation to Barboza because
9
The government seizes upon a statement in the district
court's opinion suggesting that state officials may have shared in
the responsibility for showing Barboza their investigative files.
See Limone IV, 497 F. Supp. 2d at 180 ("Someone in law enforcement
had to have done so, either the FBI directly or state law
enforcement in the FBI's presence."). But the court's opinion,
fairly read, attributes primary responsibility for shoring up
Barboza's testimony to the FBI. See, e.g., id. at 179, 180.
-36-
he (Condon) always was concerned about assuring the "purity" of
testimony given by his informants. But the district court
rejected this testimony and supportably found that Condon knew at
the time that Barboza was spinning a yarn about the scapegoats'
involvement in the murder. Id. at 186.
Equally as important, the FBI interposed no disincentives
that might have deterred Barboza from standing by his bogus story.
The Bureau continued to coddle Barboza. Among other things, the
FBI pledged to bring Barboza's cooperation to the attention of
relevant authorities, extended protection to him and his family,
and promised to give him money and a fresh start on the other side
of the continent. The "habitual offender" charges that Barboza was
facing when he first began cooperating were dropped, and Barboza
received only a one-year sentence for his role in Deegan's murder.
The government attempts to absolve itself of
responsibility for the scapegoats' plight by piously asserting that
the FBI turned over all relevant information to state authorities.
In this regard, it points to three memoranda. The first is a
memorandum from the FBI director dated March 16, 1965, which
instructs the Boston office to disclose to local authorities
information pertaining to the Deegan murder to the extent that
divulgement is consistent with the complete security of the
Patriarca bug. A handwritten notation on that memorandum indicates
that full disclosure already had taken place. The second, a
-37-
memorandum authored by Rico on March 15, 1965, indicates that a Top
Echelon informant had told him that Flemmi, French, Martin,
Cassesso, and Barboza had murdered Deegan, and states that this
information had been transmitted to local authorities. The third
is a memorandum written on March 24 of the same year by the special
agent in charge of the FBI's Boston office; that memorandum
essentially replicates the Rico memorandum.
On their face, these memoranda bolster the government's
argument. But the memoranda do not exist in a vacuum. The district
court found that, to the extent the FBI did volunteer information
to state authorities in 1965, that information was general in nature
and already within the state's ken. See id. at 174-75 & n.73. This
finding was not clearly erroneous. The local police had Flemmi,
French, Martin, Cassesso, and Barboza in their sights from the
earliest stages of their investigation, and the three FBI memoranda,
whether read separately or in the ensemble, do not suggest that the
reliability of the FBI's sources was communicated to the state. To
the contrary, the director's memorandum instructed that the
Patriarca bug remain secret.
The gaps in the record are also telling. For instance,
there is absolutely no evidence indicating that the Boston-based FBI
agents, whatever instructions they may have received, actually
divulged any information to state officials at the time of the
killing in March 1965 or during Barboza's debriefing in 1967 and
-38-
1968. In fact the state prosecutor, Zalkind, testified in the
district court that he had not seen any of the FBI documents
containing exculpatory evidence when he forged ahead with the
prosecution. He also denied that this evidence had been
communicated to him in any other form. Given Zalkind's testimony,
we cannot set aside the district court's finding that the FBI agents
failed to provide relevant exculpatory information. See, e.g.,
United States v. Natanel, 938 F.2d 302, 313 (1st Cir. 1991)
(emphasizing that "the district court must be given wide rein to
assess the evidence and judge the credibility of witnesses").
The district court's finding that the FBI covered up its
perfidy by stonewalling the scapegoats' post-conviction efforts to
win their freedom is equally unimpugnable. The government argues
that the alleged coverup consisted of nothing more than a failure
to provide state officials with exculpatory materials and that such
a failure cannot ground a claim under the FTCA. See Bolduc, 402
F.3d at 59 (holding that negligent failure to disclose Brady
materials is not actionable); see also Brady v. Maryland, 373 U.S.
83, 87 (1963). This argument veers well wide of the mark. Here,
the government's post-conviction misconduct consisted of more than
failing to turn over exculpatory materials to state authorities; the
government took positive steps to ensure that the scapegoats
remained behind bars.
-39-
For example, in mid-1970 Barboza, represented by new
counsel, signed a sworn affidavit in which he recanted certain
portions of his trial testimony relating to the scapegoats' guilt.
His lawyer then requested permission to have a lie detector test
administered. Shortly thereafter, two federal prosecutors visited
Barboza, who retracted his recantation. Despite the obvious
importance of these developments, the FBI agents failed either to
conduct an investigation into the recantation or to brief their
state counterparts about it.
Other examples abound. Among other things, the FBI told
state authorities who were considering petitions for commutation
and/or parole that Limone, Greco, and Salvati had continuing ties
to organized crime. The FBI even went so far as to have agents
visit the office of a parole board member to voice opposition to
Limone's petition for commutation. Moreover, the record makes
manifest that the court below regarded the Brady violation (that is,
the FBI's failure to disclose exculpatory information in a timely
manner) as "part of a broader scheme to put Barboza forward as a
witness no matter the cost, even if it meant framing the
plaintiffs." Limone IV, 497 F. Supp. 2d at 222. The government's
after-the-fact attempt to conceal what it had done became part of
the same scheme. Id. at 202.
The SJC has made it abundantly clear that claims for
intentional infliction of emotional distress may be founded on a
-40-
pattern of misconduct. See, e.g., Boyle v. Wenk, 392 N.E.2d 1053,
1055 (Mass. 1979). Thus, it was appropriate for the district court,
on a pattern of conduct theory, to weigh the significance of the
FBI's failure to provide state authorities with exculpatory
evidence. See, e.g., Burrell v. Adkins, No. 01-2679, 2007 WL
4699166, at *18 (W.D. La. Oct. 22, 2007).
The evidence supports the district court's finding that
a coverup occurred. Despite contemporaneous requests by state
officials for information bearing upon the scapegoats' petitions for
post-conviction relief, the FBI remained mute — and worse. That
recalcitrance is especially damning in the circumstances of this
case — a case in which the FBI's deliberate misconduct had placed
the scapegoats in harm's way. See Commonwealth v. Levesque, 766
N.E.2d 50, 56 (Mass. 2002) (explaining that "a duty to prevent harm
to others arises when one creates a dangerous situation, whether
that situation was created intentionally or negligently");
Restatement (Second) of Torts § 321 (1965) (similar).
To recapitulate, the district court supportably determined
that the FBI knew that the scapegoats were uninvolved in the Deegan
murder from the moment that Barboza implicated them. The FBI agents
nonetheless assisted Barboza in embellishing his apocryphal tale,
helped him to sell that tale to state authorities and the jury, and
covered up their perfidy by stonewalling the scapegoats' petitions
for post-conviction relief. The district court concluded that this
-41-
pattern of conduct was extreme and outrageous, Limone IV, 497 F.
Supp. 2d at 227, and we may upset that conclusion only if reasonable
minds would be compelled to reach the opposite conclusion, see
Jackson, 156 F.3d at 232-33; see also Boyle, 392 N.E.2d at 1056-57.
Applying that standard, the conclusion that the government indulged
in extreme and outrageous conduct must stand. See, e.g., Pitt v.
Dist. of Columbia, 491 F.3d 494, 506 (D.C. Cir. 2007); Wagenmann v.
Adams, 829 F.2d 196, 214 (1st Cir. 1987); Newton v. City of New
York, 566 F. Supp. 2d 256, 281 (S.D.N.Y. 2008); Harris v. Harvin,
No. 01-2292, 2005 WL 2461876, at *2 (Mass. Super. Ct. Aug. 4, 2005);
Sarvis v. Boston Safe Deposit & Trust Co., No. 94-1215, 1994 WL
879797, at *3 (Mass. Super. Ct. June 6, 1994).
We need not linger long over the finding of
intentionality. Limone IV, 497 F. Supp. 2d at 227. Common sense
suggests that the FBI's deliberate acts and omissions were likely
to lead to the wrongful conviction and incarceration of the
scapegoats (and, thus, the consequent emotional distress). That is
exactly what transpired. Accordingly, the district court had an
ample predicate from which to infer that the FBI knew that its
misconduct was likely to cause emotional distress. See, e.g.,
Wagenmann, 829 F.2d at 214.
In a variation on this theme, the government contends that
it cannot be held legally responsible for causing the emotional
distress that occurred here. All that the FBI did, it reasons, was
-42-
to hand a witness to state authorities, who then exercised their
independent discretion in bringing that witness before a grand jury
and a petit jury. In the government's view, the state's decision
to pursue the murder case and the trial jurors' decision to convict
are intervening acts that broke the causal chain.
Causation is a factbound issue and, as such, is normally
left to the trier. Peckham v. Cont'l Cas. Ins. Co., 895 F.2d 830,
837 (1st Cir. 1990); Mullins v. Pine Manor Coll., 449 N.E.2d 331,
338 (Mass. 1983). The causation inquiry has two components: proof
that the harm would not have occurred but for the defendant's
misconduct, see Glidden v. Maglio, 722 N.E.2d 971, 974-75 (Mass.
2000), and proof that the defendant was a proximate cause of the
harm, see Kent v. Commonwealth, 771 N.E.2d 770, 777 (Mass. 2002).
These two components may be thought of as causation in fact and
legal causation.
In this instance, the district court's causation-in-fact
analysis, Limone IV, 497 F. Supp. 2d at 227, is ironclad. Given the
aid and encouragement that the FBI afforded Barboza and its
exclusive possession of exculpatory evidence that probably would
have rescued the scapegoats from wrongful conviction, the finding
that the FBI's misconduct constituted a but-for cause of the
scapegoats' plight is fully sustainable. See Burke v. McDonald, 572
F.3d 51, 58 (1st Cir. 2009) (ruling that police officer could be
-43-
said to have "caused" plaintiff's confinement without bail if jury
found that he suppressed exonerating DNA evidence).
The second component of the causation inquiry requires
elaboration. Under Massachusetts law, proximate cause turns largely
on the foreseeability of the harm.10 See Wagenmann, 829 F.2d at
214; Kent, 771 N.E.2d at 777. Intervening acts of a third party
will not break the causal chain if those acts were reasonably
foreseeable. Copithorne v. Framingham Union Hosp., 520 N.E.2d 139,
142-43 (Mass. 1988); Gidwani v. Wasserman, 365 N.E.2d 827, 830-31
(Mass. 1977).
In the case at bar, the district court concluded that the
indictment, prosecution, conviction, and incarceration were all
reasonably foreseeable results of the FBI's misconduct. Limone IV,
497 F. Supp. 2d at 227. That conclusion strikes us as virtually
inescapable. The so-called "intervening acts" — notably, the
state's decision to prosecute and the jury's decision to convict —
were well within the realm of reasonable expectations once the
government took steps to prop up Barboza's credibility and conceal
exculpatory evidence. See Burke, 572 F.3d at 58-61.
10
The most recent draft restatement suggests that an
intentional tortfeasor should be deemed the legal cause of any harm
that he intends to inflict without reference to the foreseeability
of that harm. See Restatement (Third) of Torts: Liability for
Physical Harms § 33 (Proposed Final Draft No. 1, 2005). The SJC
has not spoken to this proposal and, given the foreseeability of
the harm flowing from the FBI's misconduct, we need not decide
whether section 33 applies here.
-44-
This leaves the fourth and final element of the tort: that
the scapegoats suffered severe emotional distress. The government
does not challenge the district court's finding to this effect, nor
could it credibly do so. On this record, it is unarguable that the
wrongful indictment, prosecution, conviction, and incarceration
caused the victims severe emotional distress. Therefore, the
plaintiffs satisfied their burden of proving all the elements of
their claims for intentional infliction of emotional distress.11
C. The Discretionary Function Exception.
Regardless of the invulnerability of the district court's
findings on the elements of the intentional infliction claims, we
must address yet another issue bearing upon liability. The
government invokes the FTCA's discretionary function exception as a
further defense. It argues, in essence, that the conduct on which
11
In Massachusetts, a cause of action for intentional
infliction of emotional distress may succeed only if the defendant
has intentionally inflicted severe emotional distress "without
privilege." Agis, 355 N.E.2d at 318. The government did not
argue, either in the district court or in its briefs on appeal,
that its conduct was privileged. Consequently, its assertion of
privilege for the first time at oral argument in this court is too
little and too late. See United States v. Slade, 980 F.2d 27, 30
(1st Cir. 1992) ("It is a bedrock rule that when a party has not
presented an argument to the district court, she may not unveil it
in the court of appeals."); Anderson v. Beatrice Foods Co., 900
F.2d 388, 397 (1st Cir. 1990) (holding that an appellant's briefs
fix the scope of the issues appealed and that, therefore, an
appellant cannot breathe life into an omitted theory merely by
referring to it at oral argument); see also McCullen v. Coakley,
571 F.3d 167, 182 (1st Cir. 2009) (holding that theory advanced by
a member of the court at oral argument, but neither briefed nor
raised below, is waived).
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the intentional infliction claims is based involves the performance
or failure to perform discretionary functions on the part of
government actors. See 28 U.S.C. § 2680(a); see also Irving v.
United States, 162 F.3d 154, 162 (1st Cir. 1998) (en banc).
We afford de novo review to a district court's
determination that the discretionary function exception does or does
not apply. Fothergill v. United States, 566 F.3d 248, 251 (1st Cir.
2009); Irving, 162 F.3d at 162. We start by identifying the
particular conduct giving rise to the claims at issue. See
Fothergill, 566 F.3d at 252-53; Muñiz-Rivera v. United States, 326
F.3d 8, 15 (1st Cir. 2003). Here, that conduct consists of
assisting Barboza to frame the scapegoats for a capital crime and
covering up the frame job by withholding exculpatory information
from state officials.
Having identified the conduct at issue, we move to a
binary inquiry designed to reveal whether Congress sought to shield
that conduct from liability. Bolduc, 402 F.3d at 60. This inquiry
seeks to ascertain, first, if the conduct "involves an element of
judgment or choice" for the actor. Berkovitz v. United States, 486
U.S. 531, 536 (1988). Then, so long as the conduct involved a
matter of judgment or choice — that is, so long as it was
discretionary in nature — the inquiry seeks to ascertain whether
that judgment or choice was susceptible to policy-related analysis.
Id. at 536-37.
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It is elementary that the discretionary function exception
does not immunize the government from liability for actions
proscribed by federal statute or regulation. Bolduc, 402 F.3d at
60. Nor does it shield conduct that transgresses the Constitution.
See Castro v. United States, 560 F.3d 381, 389 (5th Cir. 2009)
(collecting cases); Thames Shipyard & Repair Co. v. United States,
350 F.3d 247, 254-55 (1st Cir. 2003) (same). The district court
determined that the FBI's conduct in this case violated the
Constitution as well as Department of Justice guidelines. Limone
IV, 497 F. Supp. 2d at 203-04.
The government demurs. It insists that decisions
concerning the conduct and course of law enforcement investigations,
including decisions as to whether and how informants should be
employed, are generally discretionary. See, e.g., Kelly v. United
States, 924 F.2d 355, 362 (1st Cir. 1991); Pooler v. United States,
787 F.2d 868, 871 (3d Cir. 1986). Relatedly, the government argues
that it possessed discretion to withhold exculpatory information
from state prosecutors in order to protect the security of its
sources. See, e.g., Ga. Cas. & Sur. Co. v. United States, 823 F.2d
260, 262-63 (8th Cir. 1987); see also Taglianetti v. United States,
398 F.2d 558, 572 (1st Cir. 1968) (recognizing that government
possesses "substantial interest in preserving the secrecy of its
investigation"). Given these foundational propositions, the
government exhorts us to conclude that the conduct upon which the
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plaintiffs' intentional infliction claims rests must perforce be
discretionary.
This exhortation operates at too high a level of
generality. Viewed from 50,000 feet, virtually any action can be
characterized as discretionary. But the discretionary function
exception requires that an inquiring court focus on the specific
conduct at issue. See Berkovitz, 486 U.S. at 546-47; Trevino v.
Gen. Dynamics Corp., 865 F.2d 1474, 1484 (5th Cir. 1989). Here,
when the FBI's conduct is examined in context, warts and all, any
illusion that the conduct was discretionary is quickly dispelled.
To use a phrase popularly attributed to Lawrence "Yogi"
Berra, much of this is déjà vu all over again.12 In Limone II, we
held that the plaintiffs' allegations that FBI agents had
participated in framing them and had withheld exculpatory evidence
to cover up their malefactions stated a clear violation of due
process. 372 F.3d at 44-50. The plaintiffs proved the substance of
these allegations. See Limone IV, 497 F. Supp. 2d at 227.
Consequently, the conduct was unconstitutional and, therefore, not
within the sweep of the discretionary function exception.13
12
But see Ralph Keyes, Nice Guys Finish Seventh; Phrases,
Spurious Sayings and Familiar Misquotations 152 (1992) (noting that
"although this [phrase] is commonly cited as a 'Berra-ism,' Yogi
Berra denies ever saying it").
13
In so holding, we do not view the FBI's constitutional
transgressions as corresponding to the plaintiffs' causes of action
— after all, the plaintiffs' claims are not Bivens claims — but
rather, as negating the discretionary function defense. See
-48-
This holding ends our discussion of liability. We
conclude that the district court possessed subject matter
jurisdiction over the plaintiffs' claims for intentional infliction
of emotional distress and that the plaintiffs proved those claims.
Because the district court determined that the same damages flowed
from all of the torts alleged, we need not inquire whether the
plaintiffs also proved their claims of conspiracy, negligence,
and/or negligent supervision. Only questions pertaining to damages
remain.
D. Damages.
The district court made the damage awards listed in the
appendix to this opinion. These awards total $101,750,000. The
government argues that the court's approach was wrongheaded and that
the assessed damages are excessive. In a cross-appeal Greco's son,
Edward, contends that the court awarded him insufficient damages.
The weight of authority indicates that damage awards under
the FTCA are subject to clear-error review. See, e.g., Davis v.
United States, 375 F.3d 590, 591 (7th Cir. 2004); Lebron v. United
States, 279 F.3d 321, 325 (5th Cir. 2002); Duplan v. Harper, 188
F.3d 1195, 1202 (10th Cir. 1999); Whitley v. United States, 170 F.3d
1061, 1079 (11th Cir. 1999); Bartleson v. United States, 96 F.3d
1270, 1274 (9th Cir. 1996). This court has lent its voice to that
Bolduc, 402 F.3d at 56 ("Federal constitutional or statutory law
cannot function as the source of FTCA liability.").
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chorus. See Soto v. United States, 11 F.3d 15, 18 (1st Cir. 1993).
But this description oversimplifies the matter. The standard of
review, at least insofar as it pertains to awards of non-economic
damages, is more nuanced. See Neyer v. United States, 845 F.2d 641,
644-45 (6th Cir. 1988).
In that context, the appropriate standard of review
actually has three facets. Raw findings of fact are reviewed for
clear error. Reilly v. United States, 863 F.2d 149, 166 (1st Cir.
1988). Claimed errors of law engender de novo review. Soto, 11
F.3d at 17. The third facet of the standard of review relates to
matters of judgment, which are reviewed for abuse of discretion.
See Davis, 375 F.3d at 592 (using language consistent with abuse of
discretion standard); Soto, 11 F.3d at 18 (similar).
These differentiated aspects of the standard of review are
designed to operate in a synchronized fashion. Thus, in an FTCA
case that involves non-economic damages, an appellate court reviews
facts found by the trial judge (such as the existence and nature of
the harm suffered) for clear error. See Doe v. United States, 976
F.2d 1071, 1083 (7th Cir. 1992); Reilly, 863 F.2d at 166. At the
same time, the court assays the reasonableness of the trial judge's
monetization of that harm — a classic example of a judgment call —
under an abuse of discretion standard. See Wilkinson v. United
States, 564 F.3d 927, 934 (8th Cir. 2009). Within that rubric, the
court evaluates the trial judge's assumptions as to purely legal
-50-
matters de novo. Cf. Rosario-Urdaz v. Rivera-Hernández, 350 F.3d
219, 221 (1st Cir. 2003) (explaining that, in the preliminary
injunction context, an error of law is a per se abuse of
discretion). We apply this nuanced standard of review in examining
the damage awards about which the government complains.
We cut directly to the chase. The district court's
findings of fact as to the existence, nature, and quantum of the
harm sustained by the scapegoats are not clearly erroneous — indeed,
those findings are largely uncontested on appeal. Our inquiry,
therefore, centers on the reasonableness of the awards. As
explained above, abuse of discretion review applies to that issue.
Under abuse of discretion review, an appellate court ought
not disturb an award of non-economic damages unless the award is
either grossly disproportionate to the proven injuries or trenches
upon a miscarriage of justice. See Wilkinson, 564 F.3d at 934;
Neyer, 845 F.2d at 644; see also Tobin v. Liberty Mut. Ins. Co., 553
F.3d 121, 144 (1st Cir. 2009) (discussing gross disproportionality
in remittitur context); doCanto v. Ametek, Inc., 328 N.E.2d 873, 880
(Mass. 1975) (similar). Though this standard is daunting, we have
the authority to reduce a judge's award of non-economic damages if
that award is so extravagant as to shock our collective conscience.
See, e.g., Delph v. Dr. Pepper Bottling Co. of Paragould, Inc., 130
F.3d 349, 357-58 (8th Cir. 1997); Trevino v. United States, 804 F.2d
1512, 1515 (9th Cir. 1986).
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We approach the awards at issue here mindful that, in an
FTCA case, both the nature of allowable damages and the measure of
those damages are drawn from state law. Davis, 375 F.3d at 591;
Lebron, 279 F.3d at 326 n.4. Under Massachusetts law, the proper
measure of damages is, within wide limits, committed to the sound
discretion of the trier of fact. See Bartley v. Phillips, 57 N.E.2d
26, 31 (Mass. 1944).
Broad discretion, however, is not to be confused with
unbounded discretion. The SJC, recognizing the difficulty of
placing a particular dollar value on emotional injuries, has
admonished courts to strive to identify a sum that "relate[s]
reasonably to the emotional distress suffered by the plaintiff."
Labonte v. Hutchins & Wheeler, 678 N.E.2d 853, 861 (Mass. 1997).
That sum should approximate the amount that reasonable persons would
consider just recompense for the emotional distress inflicted. Id.at 861 n.16. Although the SJC has suggested that a comparison of
agnate awards sometimes may be useful, it has stressed the paramount
importance of case-specific facts. Id. at 861-62 & n.17.
With this framework in place, we turn to the particulars
of the parties' challenges.
1. The Government's Appeal. As a prelude to the
assessment of damages, the district court laboriously recounted the
details of the scapegoats' lives behind bars. See Limone IV, 497 F.
Supp. 2d at 235-41. The government has not contested the court's
-52-
narrative, and it is evident that the scapegoats suffered all the
hardships customarily associated with prolonged prison confinement.
These hardships were magnified by their knowledge that they had been
framed: all of them were forced to come to grips with the reality
that, innocence aside, they might live out their days in prison. To
make matters worse, three of the men — Limone, Tameleo, and Greco —
spent the first few years after the trial in the grim shadow of
death sentences. All told, Limone and Salvati spent 33 and 29
years, respectively, in prison; Tameleo and Greco died in custody
after 18 and 28 years, respectively.14
After considering the particular individuals'
circumstances and consulting damage awards in other wrongful
incarceration cases, the district court determined that $1,000,000
per year of immurement constituted the appropriate baseline for its
calculation of damages. See id. at 243-45. The government
maintains that this baseline is overly generous and results in
damages that are grossly disproportionate to awards in comparable
cases. In the government's view, the district court should have
limited its comparability survey to cases arising in Massachusetts
and, moreover, looked only to cases involving protracted periods of
incarceration. The government's theory seems to be that wrongful
14
Limone served the first seven years of his sentence and
Tameleo served the first five years of his sentence concurrent with
previously imposed sentences in unrelated cases. Thus, the
district court declined to award either of them damages for those
periods. See Limone IV, 497 F. Supp. 2d at 245.
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incarceration gives rise to two distinct strains of emotional harm:
the initial jolt of wrongful imprisonment, and some (lesser) injury
based on the day-to-day loss of liberty. It asserts that the
district court did not appreciate this important distinction; that
the court did not use any congeners involving protracted periods of
incarceration; and that the court erred in not limiting its canvass
to Massachusetts inmates. We find the government's reasoning
unpersuasive.
To begin, the government uses faulty premises. On the one
hand, its assertion that the district court did not look to awards
related to lengthy periods of wrongful incarceration is incorrect as
a matter of fact. See, e.g., id. at 244 (discussing a 15-year
period of wrongful incarceration). On the other hand, its parochial
insistence that the lower court should have restricted any inquiry
to cases that arose within the borders of Massachusetts is incorrect
as a matter of law. Although we have said that helpful guidance may
be found in damage awards from "similar cases arising out of the
same context that are tried in the same locale," Gutiérrez-Rodríguez
v. Cartagena, 882 F.2d 553, 579 (1st Cir. 1989), that does not mean
that a court is prohibited from looking for guidance elsewhere. The
key is comparability: whether the counterpart cases involve
analogous facts, similar measures of damages, and are otherwise
fairly congruent. See, e.g., Morrow v. Greyhound Lines, Inc., 541
F.2d 713, 721-22 (8th Cir. 1976). On the whole, we are satisfied
-54-
that the district court did not abuse its discretion in looking to
other cases for comparison.
Warming to the attack, the government touts a string of
Massachusetts cases memorializing lesser awards. Without exception,
however, these cases involve settlements, not verdicts. See, e.g.,
Cowans v. City of Boston, No. 05-11574, 2006 WL 4286744 (D. Mass.
Aug. 4, 2006); Miller v. City of Boston, No. 03-10805, 2006 WL
4111728 (D. Mass. Mar. 9, 2006); Veláquez v. City of Chicopee, No.
03-30249, 2005 WL 3839494 (D. Mass. Oct. 14, 2005); Harding v. City
of Boston, No. 98-11801, 2000 WL 33223074 (D. Mass. Feb. 2000). But
it is unrealistic to assume that settlement values (which, by
definition, implicate compromise) equate to actual damages. See
Neyer, 845 F.2d at 644. This is a comparison of plums with
pomegranates. Thus, these cases do not undercut the district
court's baseline calculation.
The government also seeks to undermine the district
court's baseline by marshaling a series of legislative enactments
that impose ceilings on the liability of governmental entities for
wrongful incarcerations. See, e.g., 28 U.S.C. §§ 1495, 2513(e)
(limiting government's liability for wrongful incarceration of
federal prisoners to $50,000 per year, or to $100,000 per year in
capital cases); Mass. Gen. Laws ch. 258D, §§ 1, 5 (capping state's
liability at $500,000 per incident). But these statutes do not
purport to measure the harm actually inflicted by wrongful
-55-
incarceration; rather, each reflects a legislative choice to limit
the sovereign's liability. Congress could have imposed such a
ceiling on damages for wrongful incarceration under the FTCA but
chose instead to make the United States liable to the same extent as
a private party under local law. See 28 U.S.C. § 1346(b)(1). We
have neither the authority nor the inclination to veto this exercise
of legislative judgment.
We turn next to the government's plaint that the ratio of
emotional distress damages to years served should decrease over time
(that is, that the longer an individual is in a penitentiary, the
less he should receive in damages on an annualized basis). That is
an argument more appropriately made to the trier of fact. There is
no flat rule to that effect — nor should there be. In some
circumstances, it may be reasonable to conclude that the loss of
hope as time marches on warrants larger annualized amounts for
emotional injuries.
In short, the range of permissible ratios is wide. That
is understandable; dollars are at best a rough and awkward proxy for
time spent in the throes of wrongful incarceration. In the final
analysis, it is for the trier of fact to resolve the difficult
questions of quantification and monetization that lurk in the
penumbra of cases such as this. See Anderson v. Robinson, 497 F.2d
120, 121 (5th Cir. 1974) (noting that court of appeals possesses "no
yardstick with which to measure . . . abstractions").
-56-
Let us be perfectly clear. There are limits to the trial
court's discretion in this respect, but those limits are commodious.
Langevine v. Dist. of Columbia, 106 F.3d 1018, 1024 (D.C. Cir.
1997). The lower court's decision to use a sliding scale,
decreasing over time, would be within the encincture of that
discretion. So, too, is its decision not to use such a sliding
scale.
This brings us to the damage awards themselves. We have
said before, and today reaffirm, that "there is no scientific
formula or measuring device which can be applied to place a precise
dollar value on matters such as restraint of freedom, fright,
anxiety, loss of face, or emotional scarring." Wagenmann, 829 F.2d
at 216.
The wisdom of that statement is evident here: placing a
dollar value on the emotional pain incident to wrongful
incarceration, the dreary sameness of life behind bars for years on
end, and the loss of freedom, relationships, and hope cries out for
approximation. Moreover, the difficulty inherent in monetization of
those injuries is itself a reason for deference to the front-line
judgment of the trial court. Cf. Langevine, 106 F.3d at 1024(indicating that "[a] court must be especially hesitant to disturb
a jury's determination of damages in cases involving intangible and
non-economic injuries"); Wagenmann, 829 F.2d at 215 (similar).
-57-
Viewed through this prism, we cannot say that the district court's
choice of baseline was unreasonable.
We do not mean to imply that the methodology employed by
the district court in this case should be regarded as the norm, nor
do we suggest that it should be transplanted root and branch into
other factual scenarios. Were we sitting as trial judges, none of
us would have employed that same methodology. The $1,000,000 per
year baseline is extremely generous, and in cases involving non-
economic damages we have counseled that special attention must be
paid to the particular circumstances of each individual plaintiff.
See, e.g., Tobin, 553 F.3d at 144-45.
But we are not sitting as trial judges in this instance.
Our function is solely one of appellate review. In carrying out
that task, we are not at liberty to substitute our judgment for that
of the trial court. Rather, we must acknowledge the trial court's
superior coign of vantage.
Moreover, a district court, sitting without a jury,
possesses a variety of implements with which to work in monetizing
emotional injuries. Although particular tools must be selected and
deployed with a degree of circumspection, the valuation difficulties
posed by specific sets of facts also must be taken into account.
Given the extent of those difficulties here, the district court's
decision to reach into its armamentarium and select a per-year
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baseline as the methodology of choice cannot be deemed an abuse of
discretion.
That leaves the naked claim of excessiveness (a claim that
encompasses the government's charge that $1,000,000 per year is
simply too rich).15 This question is not free from doubt. The
district court's awards are considerably more munificent than the
amounts that this court would have awarded in the first instance.
In our view, the awards approach the outermost boundary of what
might be thought conscionable. Cf. Baba-Ali v. State, 878 N.Y.S.2d
555, 568 n.7 (N.Y. Ct. Cl. 2009) (chronicling awards of lesser
amounts).
Still and all, the awards are by no means unprecedented,
and the "shock-the-conscience" test cannot be administered in a
vacuum. What is shocking under one set of facts may be acceptable
(even if only marginally so) under different circumstances. See
United States v. Santana, 6 F.3d 1, 6 (1st Cir. 1993).
We are frank to say that, here, the awards for wrongful
incarceration are high enough to be troubling. But when we take
into account the severe emotional trauma inflicted upon the
scapegoats, we cannot say with any firm conviction that those awards
15
The government has not specifically challenged the amounts
of the derivative awards (or, for that matter, the liability
findings) on the plaintiffs' claims for loss of consortium and the
like. Consequently, we eschew any discussion of those awards in
connection with the government's appeal. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (explaining that issues not
briefed or argued are deemed abandoned).
-59-
are grossly disproportionate to the injuries sustained. After all,
some cases involving analogous factual scenarios have resulted in
comparable damage awards. See, e.g., Thompson v. Connick, 553 F.3d
836, 865-66 (5th Cir. 2008) (upholding jury award of $14,000,000 for
18 years of wrongful incarceration), vacated on other grounds by ___
F.3d ___, ___ (5th Cir. 2009) (en banc) [No. 07-30443, slip op. at
1]; Newsome v. McCabe, 319 F.3d 301, 302-03 (7th Cir. 2003)
(involving award of $15,000,000 for 15 years of wrongful
incarceration); White v. McKinley, No. 05-203, 2009 WL 813001, at
*22 (W.D. Mo. Mar. 26, 2009) (upholding jury award of $14,000,000 in
compensatory damages for 5 ½ years of wrongful incarceration);
Sarsfield v. City of Marlborough, No. 03-10319, 2006 WL 2850359, at
*1 (D. Mass. Oct. 4, 2006) (reflecting judicial award of more than
$13,000,000 for 9 ½ years of wrongful incarceration). Consequently,
we conclude that the district court's awards must stand.
In concluding that the awards in this case fall short of
shocking the conscience, we think it important to make clear that
the $1,000,000 annuity selected by the district court as the
baseline for its calculation should not be understood as a carob
seed for measuring the harm caused by wrongful incarceration
generally. Applying a literal reading of the statement in Limone IV
that "wrongfully imprisoned plaintiffs were entitled to compensation
of at least $1 million per year of imprisonment," 497 F. Supp. 2d at
243 (emphasis supplied), one district court recently has treated the
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$1,000,000 per year baseline as a floor for damages arising out of
wrongful incarceration. See Smith v. City of Oakland, 538 F. Supp.
2d 1217, 1242-43 (N.D. Cal. 2008) (citing Limone IV). We regard
that characterization as unfortunate. As we have emphasized, the
district court's awards are at the outer edge of the universe of
permissible awards and survive scrutiny, though barely, only because
of the deferential nature of the standard of review and the unique
circumstances of the case.
2. The Cross-Appeal. The district court awarded each
minor child of a scapegoat $200,000 for loss of consortium and
$50,000 in emotional distress damages. Limone IV, 497 F. Supp. 2d
at 249-50. Edward Greco, the surviving son of the late Louis Greco,
Sr., objects to his award on the ground that he suffered more from
his father's wrongful incarceration than did the other children.
The cross-appeal comes to us in the following procedural
posture. After the district court handed down its decision in
Limone IV and entered judgment, Edward filed a motion to alter the
judgment. See Fed. R. Civ. P. 59(e). The court denied that motion,
declaring that any additional hardship was attributable to the Greco
family's dysfunctionality — a condition that predated Louis Greco's
conviction. See Limone v. United States (Limone V), No. 02-10890
(D. Mass. Dec. 21, 2007) (unpublished order). We review the denial
of a motion to alter or amend a previously entered judgment for
-61-
abuse of discretion. Vasapolli v. Rostoff, 39 F.3d 27, 36 (1st Cir.
1994).
It is axiomatic that damage awards must be based on the
evidence presented. A corollary to this axiom is that a court
charged with making a damage award should take into account the
particular circumstances of each individual plaintiff. Gutiérrez-
Rodríguez, 882 F.2d at 579. This corollary holds true with respect
to damages for emotional distress and loss of consortium, both of
which by their very nature are difficult to monetize. See, e.g.,
Tobin, 553 F.3d at 144-45; Koster v. TWA, Inc., 181 F.3d 24, 35-36
(1st Cir. 1999); Smith v. Kmart Corp., 177 F.3d 19, 32-33 & n.5 (1st
Cir. 1999).
This does not mean, however, that different plaintiffs can
never be given identical damage awards in emotional distress or loss
of consortium cases. Identical damage awards at times are
warranted. See, e.g., Sutton v. Earles, 26 F.3d 903, 918 (9th Cir.
1994) (upholding identical annualized awards of non-economic damages
to five parents of deceased seamen).
The district court engaged in a thoughtful, detailed
analysis of the manner in which each scapegoat and each family
member was affected by the government's misconduct. See Limone IV,
497 F. Supp. 2d at 235-43. Within that analysis, the court
chronicled the deterioration of the Greco family. Id. at 241-43.
The court's rescript reveals that Edward was eleven years old when
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his father was sentenced. Around that time, his mother, Roberta,
began to drink heavily, and Edward became the primary caretaker for
his older brother. Roberta abused Edward physically and, when he
was thirteen, abandoned him without making provisions for his care.
Edward and his brother lived with extended family, but Edward was
thrown out when he was sixteen. He soon lost contact with his
brother (who eventually committed suicide).
The district court determined that Edward's plight, though
tragic, was attributable mainly to causes that predated his father's
imprisonment. Roberta had filed for divorce three years before
Greco's conviction, charging extreme cruelty. In response, Greco
attempted to strangle her. Indeed, the marital relationship was so
troubled that the district court rejected Roberta's claim for loss
of consortium (though it awarded her damages for intentional
infliction of emotional distress). Id. at 247, 250.
Based on this background, the district court concluded in
Limone V that the government's misconduct caused only a fraction of
the woes that befell Edward. The rest would have occurred in any
event because of the dysfunctional family environment.
Edward resists this conclusion, admonishing that a
defendant takes a plaintiff as it finds him. See Doty v. Sewall,
908 F.2d 1053, 1059 (1st Cir. 1990); Dulieu v. White & Sons, [1901]
2 K.B. 669, 679. That is true as far as it goes — but it does not
take Edward very far. A defendant may be held liable only for the
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damages that it actually causes. See W. Page Keeton, Prosser &
Keeton on Torts 292 (5th ed. 1984) (reiterating this principle in
regard to "eggshell-skull" plaintiffs).
Causation is generally a question of fact, committed
largely to the competence of the factfinder. See Peckham, 895 F.2d
at 837. Given the idiosyncratic circumstances surrounding Edward's
claim, we cannot say that the district court either clearly erred in
holding that the government's misconduct was not a but-for cause of
Edward's special hardships or abused its discretion in denying his
motion to alter the judgment.
III. CONCLUSION
We summarize succinctly. The district court handled this
matter with care and assiduous attention to detail. It took pains
to make specific findings and to explain its reasoning. While we
reject its finding that the government is liable for malicious
prosecution, we uphold the court's alternate finding that the
government is liable for intentional infliction of emotional
distress. We also uphold the district court's decision to reject
the government's invocation of the discretionary function defense.
Finally, we conclude that the district court used a permissible
methodology in computing damages and that the damage awards, though
high, are not so excessive as to warrant appellate intervention.
We need go no further. This case exemplifies a situation
in which the end did not justify the government's use of very
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unattractive means. In its zeal to accomplish a worthwhile objective
(stamping out organized crime), the FBI stooped too low. Its
misconduct was not only outrageous but also tortious. That
misconduct resulted in severe harm to the persons wrongfully
convicted and to their families. Under these unfortunate
circumstances, the large damage awards mark the last word of a sad
chapter in the annals of federal law enforcement.
Affirmed.
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Appendix
The district court awarded damages as follows:
1. Estate of Louis Greco, Sr. — $28,000,000;
2. Peter Limone, Sr. — $26,000,000;
3. Joseph Salvati — $29,000,000;
4. Estate of Enrico Tameleo — $13,000,000;
5. Olympia Limone (wife of Peter Limone, Sr.) —
$1,050,000;
6. Marie Salvati (wife of Joseph Salvati) —
$1,050,000;
7. Estate of Giovannina Tameleo (deceased wife of
Enrico Tameleo) — $1,050,000;
8. Peter Limone, Jr. (son of Peter Limone, Sr.) —
$250,000;
9. Paul Limone (son of Peter Limone, Sr.) — $250,000;
10. Carolyn Limone Zenga (daughter of Peter Limone,
Sr.) — $250,000;
11. Janine Limone Arria (daughter of Peter Limone, Sr.)
— $250,000;
12. Maria Sidman (daughter of Joseph Salvati) —
$250,000;
13. Sharon Salvati (daughter of Joseph Salvati) —
$250,000;
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14. Gail Orenberg (daughter of Joseph Salvati) —
$250,000;
15. Anthony Salvati (son of Joseph Salvati) — $250,000;
16. Edward Greco (son of Louis Greco, Sr.) — $250,000;
17. Estate of Louis Greco, Jr. (deceased son of Louis
Greco, Sr.) — $250,000;
18. Roberta Werner (ex-wife of Louis Greco, Sr.) —
$50,000;
19. Saverio Tameleo (son of Enrico Tameleo) — $50,000.16
16
The scapegoats received $1,000,000 for each year of
incarceration, less time served on unrelated concurrent sentences.
See supra note 14. The district court's derivative damage awards
were constructed as follows. The court awarded $50,000 to each
family member to compensate for the government's intentional
infliction of emotional distress upon innocent bystanders. Limone
IV, 497 F. Supp. 2d at 250. It also awarded $1,000,000 each to the
wives of the scapegoats other than Greco and $200,000 to each of
the scapegoats' minor children for loss of consortium. Id. at 248,
249.
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