Betrayal: Whitey Bulger and the FBI Agent Who Fought to Bring Him Down (30 page)

“And in the ranking of informants as being the most sensitive, where would Top Echelon informants be?”

“To the best of my recollection the highest level.”

“And the reason for that is that a Top Echelon informant is providing information about managerial decisions being made by LCN?”

“This is true.”

“And the Top Echelon informant, the TE, would actually be sitting in or could be sitting in with the board of directors of organized crime?”

“True.”

“And the TE would be in a position to gain the information that he learned at those meetings and provide that to agents of the FBI?”

“True.”

“And Bulger was a Top Echelon informant?”

“Yes, he was.”

Gordon stopped there and stared across the courtroom toward me in the examination box. I could feel Judge Lindsay leaning forward a bit, as if sensing a crucial point was coming. My anxiety was palpable, my heart beating so hard and fast I thought the judge might be about to ask me if I was all right as he had for John McIntyre’s mother on numerous occasions.

“Mr. Fitzpatrick, was Mr. Bulger kept open as an informant?”

“To the best of my knowledge, yes.”

“And when you went to Boston, Mr. Sarhatt sat down with you?”

“Right. Mr. McKinnon told me I was walking into a buzz saw.”

“And did you ask him what the buzz saw was?”

“You don’t ask the assistant director of the FBI what the buzz saw is.”

“You just walk?”

“I just listened.”

“And then when you got to the Boston office, did Mr. Sarhatt explain what the buzz saw was?”

“Yes, he did.”

“And what did he tell you?”

“Well, ASAC Larry Sarhatt told me that there was a fight between the Massachusetts State Police and the FBI agents Morris and Connolly, as I recall; and there were accusations flying back and forth to the extent that Morris and Connolly were undermining the state police investigation at Lancaster Street.”

“And they were undermining the investigation by leaking information to informants?”

“That’s what MSP said, yes.”

“And at the time that you came to the Boston office, were you asked to conduct any investigation as to whether or not it was correct that Morris and Connolly were leaking information to the informants?”

“Well, at some period thereafter I was asked by Mr. Sarhatt to go out and interview the informant, to actually assess the informant Bulger.”

“And why were you selected to assess Bulger?”

“Well, Larry knew I had a background in psychology, that I taught profiling at the FBI Academy, and I had a particular expertise in certain personality traits of the criminal and so forth. He wanted me to use that advantage. He wanted an objective assessment in terms of Mr. Bulger’s suitability and his continuance as an FBI informant.”

I believe it was during this period when the judge wanted to know how come no one else in the FBI could see the danger in keeping Bulger open as an informant. He cited the fact that the FBI offices in Miami and Oklahoma along with outside law enforcement offices all saw the problem with Bulger as an FBI informant; everyone, it seemed, did except the FBI leadership. In my mind I took this as a harbinger of what was to come regarding Judge Lindsay’s reaction to the entire Bulger situation.

“And when you say ‘suitability,’ you mean along the lines set forth in the guidelines?” Gordon resumed.

“Suitability may not have been the word he used exactly, but it entailed what he wanted.”

“And prior to that meeting with Mr. Bulger did you have any discussions with Mr. Connolly about Mr. Bulger as an informant?”

“No—not about Bulger. I had discussions with Mr. Morris,” I corrected for the record.

“Okay. And what discussions did you have with Mr. Morris?”

“I recall in a briefing prior to going out to Bulger that there was a statement where Bulger and Flemmi were heads of the WHO, the Winter Hill Organization. And I remember chiding Morris, saying, well, how can you have, you know, the head of the Winter Hill Gang as an informant?” I said, coming to the heart of the matter. The attention in the courtroom became even more riveted upon me.

“And do you recall anything else that Mr. Morris said back to you?”

“Well, afterwards we had quite a discussion, and I told him I was going to close Mr. Bulger. And he kind of snickered. And I said, well, what’s that about? And he said, ‘You can’t close him.’ I said, ‘What do you mean I can’t close him?’ And we had a bit of an argument, if you will. And I said, ‘I can close him if I want.’ To which he replied, ‘No, you can’t.’ That it just wasn’t going to happen. And that made me a little angry, to be honest with you.”

Judge Lindsay could no longer restrain himself, taking the unusual step to intervene in his own proceedings. I noticed him scratching his bald pate, which looked shiny under the courtroom’s bright lighting, a clear indication he was a bit flummoxed by what he’d just heard.

“May I ask a question?” he politely requested, not waiting for an answer before posing his question to me. “When you had the discussion with Mr. Morris about having leaders of a criminal enterprise as informants, what in your mind was the problem with that?”

I was, of course, more than happy to respond.

“Your Honor, if Bulger is the leader of the Winter Hill Organization, we would, in effect, be sponsoring the Winter Hill Organization. Because he would be privy to information, as we discussed, you know, during this trial and so forth. But my concern is that you cannot have the head of a group as an informant.”

“And is that true even if you’re using the head of the group to investigate another group?”

“Well, that makes it a little bit complex, and that certainly could have been part of the issue in trying to close Bulger. You could argue that point.”

“I don’t want to argue. I’m just asking.”

The judge seemed to be trying to understand how the FBI could keep Bulger open as a TE when he was the titular head of the Irish OC gang. This flew in the face of FBI rules and regulations as stated in the FBI manual. Especially since my testimony revealed I also headed up investigations of “nontraditional” organized crime, which included the prosecution of Bulger for his crimes. I could see the frustration as the good judge rubbed his scalp again, struggling to sort out the contradictions of allowing Bulger to continue his association in the face of facts that would argue against it. I recounted my own frustration at having to deal with this problem ever since I had arrived at Boston. My protestations against Bulger always fell on deaf ears. Finally, I felt like the judge would be able to make sense of something that had eluded so many over the years and, for his part, Gordon just continued carrying the ball Judge Lindsay had handed him.

“To follow up on the point that the Court asked,” he said, resuming his questioning of me, “one of the problems is that Bulger as an informant, as the head of one group, could be providing information to the FBI for his benefit to cause harm to that other group?”

“Well, he was allegedly providing information on the Angiulos and La Cosa Nostra.”

“And the Angiulos and the Winter Hill Organization were competing actually in the same criminal areas, were they not?”

“I would not say the same, but they certainly had the same interest, criminality and grabbing the different operations around the city, yes.”

“And if the Angiulos were in jail and couldn’t operate their business criminal enterprise, Mr. Bulger would be better able to operate his?”

I tried not to smile. “That’s right.”

By the end of this day I felt that the truth had finally come out. How could anyone listening to the testimony not conclude that keeping Bulger as an FBI informant went against all the rules and regulations the FBI had set for itself? And as the third day of testimony dawned, I was beginning to feel more confident that, at last, the fight I’d waged for so long was not in vain.

31

BOSTON, 2006

THE THIRD DAY, JUNE 14, 2006

“During the course of the interview with Bulger,” Mr. Gordon began, “did you make any mental note at the time that your recommendation was to close Bulger?”

“Well, as far as notes, when I got back to my place, I did make notes. I jotted down a bunch of observations. About his personality, his character, so forth, about the whole incident; and made mention of Mr. Morris in my notes, you know, with his attitude and so forth. And that was part of my memo to Mr. Sarhatt.”

“And did you write up a formal assessment?”

“Yes, I did.”

“And approximately how many pages was that formal assessment to the best of your recollection?”

“I believe two pages.”

“And who was it directed to?”

“SAC Boston from me. The title was Bulger, his symbol number, actually, and the facts.”

“And your recommendation?”

“My recommendation was that he be closed.”

“Would that memo go in Mr. Bulger’s informant file?”

“It should have.”

“Have you seen it at all since the time you wrote it?”

“Not that I recall.”

“And if I represented that it was not in Mr. Bulger’s informant file and has not been produced in this litigation, would that surprise you?”

“Yes.”

“When you made the recommendation to close Bulger, did Connolly oppose that?”

“Oh, yes.”

“And how was that opposition expressed?”

“Well, it wasn’t expressed openly at first. It was more cloaked. Like Mr. Morris’s snicker, if you will. There were those kinds of references. But when I called headquarters and I talked to Sean McWeeney, who was in charge of the Organized Crime section, I made it clear that I didn’t think he should be continued.

“Mr. McWeeney started telling me how valuable Mr. Bulger was, in a nice way,” I continued, “and really didn’t deter me from expressing my view. Obviously, I expressed my view to Mr. Sarhatt and also to Mr. Morris, and Morris defended Bulger, just like everyone else, it seemed to me. Now, I must say that shortly thereafter we had an inspection, and that means that the inspectors from headquarters come in and inspect the whole division. This problem would have been an issue, particularly with Mr. Sarhatt. That would have been handled at an FBIHQ level, headquarters level. Now, I was not privy to that discussion or whatever they did, but after they left, Bulger was continued as an informant.”

At this point, once more Judge Lindsay’s exasperation was clear. His gaze was riveted upon me, as if we were the only two people in the courtroom.

“I just want to make sure I understand your testimony,” he started, agitated, rubbing his bald scalp again. “When you say you talked to Sean McWeeney at headquarters, you’re talking about somebody in Washington.”

“Yes, Your Honor.”

“He was the person who was in charge of the Organized Crime…”

“Section,” I completed.

“—section. So is he the boss of the people in Boston?”

“Technically, Your Honor, he’s the person that could rule on informants.”

“And Mr. McWeeney told you that Mr. Bulger was very valuable?”

“Yes, Your Honor.

“Okay.”

This was a pivotal point in my testimony, as I could see that the judge’s frustration had been replaced by a keen understanding that FBIHQ was a willing and able accomplice in allowing Bulger to continue as an informant. Then Mr. Gordon took the baton and continued on the same line of questioning.

“And during that discussion Mr. McWeeney indicated to you that Bulger had provided valuable information with regard to Title III surveillance with regard to LCN?

“This is true.”

“And that there was a need to continue getting this information from Mr. Bulger?”

“Mr. McWeeney discussed generally about how valuable both he and Stephen Flemmi were within the investigation.”

“And the continued investigation of the LCN?”

“True.”

“And that these informants were sufficiently valuable that they should remain open?”

“True.”

“Despite your recommendation that they be closed?”

“True.”

Judge Lindsay looked as if he’d taken as much as he could. He looked more angry than curious and I recall him actually shaking his head in disbelief.

“Who said that?” he asked me, not bothering to apologize for intervening. His hands were clenched before him, not rubbing his scalp this time.

“I’m sorry, Your Honor?”

“The question Mr. Gordon asked you about someone at headquarters saying that Mr. Bulger should be kept open, who was that?”

“That would be Sean McWeeney. McWeeney was vouching about him as an informant and how valuable he was.”

And here it was again that the judge was starting to grasp the role FBIHQ had played in keeping Bulger open as an informant, drastically raising the stakes since that meant this was no longer confined to a “local issue.” The truth was finally emerging, if not winning out. By comparison, Mr. Gordon’s resuming this line of questioning seemed anticlimactic. I remember looking up at the bench as he posed his next question and feeling the McIntyre family had won their case then and there.

“And were you also concerned with leaks that if the handler has information, such as Mr. Connolly, that that could potentially be passed on to the informant? Is that one of the concerns that you had?”

“Of course,” I replied to Mr. Gordon, my eyes darting to Judge Lindsay to follow his reaction.

“Do you recall testifying in the Salemme case—Charles, 134, line 18 [before Judge Wolf]—that you were against using Bulger and Flemmi in certain areas of your investigation?”

“Well, around the Wheeler investigation, certainly.”

“And your recollection is that some of the information may be getting out and we had leaks inside?”

“True.”

“And the leaks inside had to do with the Wheeler investigation?”

“Yes.”

“And I think you testified, ‘In other words, we’d be giving out more information than we’re getting.’”

“Yes.”

“And you testified that what you meant by that is these people have access to information on a confidential basis. Do you remember that?”

“Yes.”