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An appeal to begin in suits on informants
US argues families brought claims late
By Shelley Murphy, Globe Staff, 2/29/2004
For years the US Department of Justice claimed it didn't know that FBI informants James "Whitey" Bulger and Stephen "The Rifleman" Flemmi were getting away with murder while being protected by corrupt FBI agents.
It took the discovery of secret mob graves scattered from Dorchester to Quincy and deals with some of Boston's most prolific killers for prosecutors to finally gather enough evidence to charge Bulger and Flemmi with 19 murders between them and implicate two of their former handlers in some of the slayings.
Yet, now, that same Justice Department is urging a federal appeals court to dismiss lawsuits against the government filed by the families of two victims of Bulger and Flemmi, arguing that their claims were brought too late. Any "reasonable person," the Justice Department argues, should have known by the spring of 1998 -- two years before anyone was charged with the murders -- that FBI agents may have been involved in the slayings.
"It's a startling thing for the Justice Department to say," said Boston attorney Frank A. Libby Jr., who represents the family of Roger Wheeler, who was gunned down outside an Oklahoma country club in 1981 by a hit man working for Bulger and Flemmi. "This is an agency that for months had been denying wrongdoing and issuing reports clearing itself and now they're saying you should have known better."
The US Court of Appeals for the First Circuit is poised to hear arguments Tuesday on whether to uphold a federal judge's ruling last year that dismissed the $860 million suit filed by Wheeler's family, as well as the $50 million suit filed by the family of John McIntyre of Quincy, who vanished in November 1984 after talking to the FBI about Bulger's and Flemmi's criminal activities. His remains, along with those of two other victims, were found in an unmarked grave in Dorchester in January 2000.
The Wheeler and McIntyre cases are among 16 suits, totaling more than $1.4 billion, that have been filed against the United States by families of people murdered by Bulger and Flemmi and others extorted by the gangsters while they were serving as FBI informants.
The US attorney's office in Massachusetts chose not to represent the government in the lawsuits since local prosecutors from that office have been working with the victims' families while building the cases against Bulger and Flemmi. Justice Department lawyers from Washington have argued in briefs filed with the court that widespread publicity about hearings in US District Court in Boston in 1998 that partly exposed the FBI's corrupt relationship with Bulger and Flemmi should have alerted the McIntyre and Wheeler families back then that they had a legal claim against the government.
The Federal Tort Claims Act requires plaintiffs to file claims against the federal government within two years of being injured, or two years after the person knew or should have known that they had been injured.
Last March, US District Judge Reginald C. Lindsay sided with the government, ruling that the McIntyres, who filed their claim against the FBI in May 2000, were a month too late. The Wheelers, who filed their claim in May 2001, were a year too late, Lindsay said.
But New Hampshire attorney William E. Christie, who represents McIntyre's mother, Emily, and brother, Christopher, argued in his brief to the appeals court that the family was faced with a "barrage of rumors" about McIntyre's fate until his remains were recovered in January 2000 but couldn't file a suit based on "hunch, hint, suspicion or rumor."
McIntyre vanished on Nov. 30, 1984, six weeks after telling the FBI that Bulger and Flemmi were involved in an unsuccessful plot to ship guns to the Irish Republican Army aboard the Valhalla, a Gloucester fishing trawler.
The government, which long maintained that McIntyre was a fugitive, indicted him and some Bulger associates on federal gun running and drug charges in 1986. It wasn't until January 2000, when a Bulger deputy led investigators from the Massachusetts State Police and the US Drug Enforcement Administration to a Dorchester grave containing the remains of McIntyre and two other victims of Bulger and Flemmi, that the government acknowledged that he was dead and dismissed the case that had been pending against him for 14 years.
"Not once did any government agent ever inform the McIntyre family prior to April 1998 that there were `suspicions' that the FBI was involved in McIntyre's death," Christie wrote in his brief to the appeals court. "Indeed, the FBI fought mightily to prevent these disclosures from becoming public."
After Bulger and Flemmi were indicted on federal racketeering charges in January 1995 and Bulger fled, Flemmi publicly revealed that the pair were informants and claimed that the FBI had promised them immunity for their crimes -- short of murder -- in exchange for information on the Mafia. He also said they were protected by corrupt FBI agents.
The FBI conducted an internal investigation into Flemmi's allegations and in 1997 found no evidence to support a prosecution of any agents. But hearings held by US District Judge Mark L. Wolf throughout 1998 indicated otherwise. In September 1999, Wolf refused to dismiss the case against Flemmi, but also issued a scathing indictment of the FBI.
In his ruling, Wolf said questions remained about whether the FBI played any role in the murders of McIntyre and Wheeler, partly because the FBI delayed turning over documents until after relevant witnesses had testified.
After gaining the cooperation of former Bulger cohorts and discovering two more unmarked graves in Dorchester and Quincy in the fall of 2000, local federal prosecutors brought an avalanche of new charges against Bulger and Flemmi, who were indicted in September 2000 for killing 19 and 10 people, respectively, including McIntyre and Wheeler. Flemmi pleaded guilty to the charges and was sentenced last month to life in prison. Bulger has been a fugitive since January 1995.
It wasn't until last October, after Flemmi began cooperating with authorities, that retired FBI agent H. Paul Rico was charged in Oklahoma with helping Bulger and Flemmi orchestrate Wheeler's murder. Rico died in January after pleading not guilty to the charge.
Flemmi admitted that Wheeler, the millionaire chairman of Telex Corp. and owner of World Jai Alai, was gunned down on May 27, 1981 because he suspected that Bulger's gang was skimming profits from his company. Rico had retired from the FBI in 1975 and was working as head of security for World Jai Alai at the time of the slaying.
Wheeler's son, Lawrence, said he has "a general feeling of disgust" about the government's legal strategy in the civil case because the FBI had frustrated efforts by Tulsa police to solve his father's murder by withholding evidence for decades that its prized informants were suspects in the killing.
At one point, Lawrence Wheeler said, an FBI agent suggested to him that his mother might have been involved in his father's murder.
"I think the government's purpose is nothing more than to keep us in the dark so that we don't know the truth," Wheeler said in a telephone interview. "There's a lot that we should have known that we didn't know. But, here I am supposed to have known that the FBI was covering things up."
US Representative William D. Delahunt, a Quincy Democrat who participated in Congressional hearings investigating the FBI's relationship with Bulger and Flemmi, said the government's posture is ludicrous and offensive and is "shifting responsibility on the victim." Delahunt said the failure wasn't on the part of the families, but rather on the Justice Department and the FBI, which should have cooperated with local and state law enforcement authorities decades ago to solve the murders of McIntyre and Wheeler.
"If a reasonable person should have known, then where were the FBI supervisors and the attorney general?" Delahunt said. "And where's the apology for the pain and suffering these families have endured? It's outrageous."
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