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Barone v. United States

United States District Court, S.D. New York

February 6, 2017

JOSEPH S. BARONE, Plaintiff,
UNITED STATES OF AMERICA, SPECIAL AGENTS MICHAEL GAETA, GREGORY MICELI and MICHAEL TROMBETTA in their official capacities as agents of the Federal Bureau of Investigation and in their individual capacities, Defendants.

          OPINION & ORDER

          ANDREW J. PECK, United States Magistrate Judge.

         Plaintiff Joseph Barone brought this Bivens action against defendants arising out of his alleged malicious prosecution in connection with a murder for hire plot. Presently before the Court is defendants' summary judgment motion. (Dkt. No. 114.) The parties have consented to decision of the motion by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 122.) For the reasons set forth below, defendants' motion is GRANTED.


         Barone's Beginnings As An FBI Informant

         Barone spent his childhood in Westchester County, New York, with his "father, Joseph A. Barone, Sr., [who] was a made member of the Genovese crime family." (Dkt. No. 128: Barone Aff. ¶¶ 3, 7.) Through his father, Barone made numerous contacts within the Italian mafia or La Cosa Nostra ("LCN") and "was generally thought to be associated with the LCN" as a young man. (Barone Aff. ¶ 7.) "In those days, " Barone states, he "occasionally participated in illegitimate or illegal enterprises, primarily in the nature of financial schemes, such as insurance scams and 'loan sharking.'" (Id.)

         In 1991, Barone was indicted in the Southern District of New York on weapons and extortion charges. (Barone Aff. ¶ 8; Dkt. No. 120: Def. Rule 56.1 Stmt. ¶ 1; Dkt. No. 129: Barone Rule 56.1 Stmt. ¶ 1.) Barone met FBI Special Agent Vincent Presutti while incarcerated on the 1991 charges. (Barone Aff. ¶ 8; Def. & Barone Rule 56.1 Stmts. ¶ 2.) Agent Presutti convinced Barone to work for the FBI as a "'cooperating witness'" ("CW")-an FBI designation for someone "who had agreed to provide testimony in a court case and who might gather evidence against a target in anticipation of testifying against that target in the future"-and was officially "'opened'" as a CW in early 1993. (Barone Aff. ¶ 8; Def. & Barone Rule 56.1 Stmts. ¶¶ 3-5.) Barone was released from prison on January 20, 1995 and informed Agent Presutti that he would continue to provide information to the FBI; however, because Barone's testimony against other targets was no longer needed, "he was converted from a CW to a" confidential informant ("CI"), which, in contrast to a CW, designates an individual who has not agreed to provide testimony. (Dkt. No. 119: Tinio Aff. Ex. C: Barone: Trial Transcript ("Tr.") 566; Def. & Barone Rule 56.1 Stmts. ¶¶ 4, 9-10.)

         From 1993 until his retirement in October 2008, Agent Presutti served as Barone's FBI handler-"the agent assigned to regularly interact with the human source." (Barone Aff. ¶ 9; Def. & Barone Rule 56.1 Stmts. ¶¶ 6-7.) Barone states that, "[d]uring that period, all of my contact with the FBI was through Presutti. Even on occasions where I met or spoke to other law enforcement agents, these contacts were always at Presutti's direction and with his personal participation." (Barone Aff. ¶ 9.) If Barone provided Agent Presutti with "positive information, " i.e., information regarding potential criminal activity, Agent Presutti would memorialize that information in a Form 302 or similar document. (Tinio Aff. Ex. D: Presutti Dep. at 92-93; Def. & Barone Rule 56.1 Stmts. ¶ 12.) On October 31, 2008, Agent Presutti retired and Agent Michael Trombetta, formerly Barone's alternate handler, became Barone's primary handler. (Def. & Barone Rule 56.1 Stmts. ¶¶ 26-27.)

         On December 30, 1999, Barone informed Agent Presutti about a potential murder for hire plot; Agent Presutti detailed that information in a Form 302 dated January 5, 2000. (Tinio Aff. Ex. G: 1/5/2000 Form 302; Barone Aff. ¶¶ 21-22; Def. & Barone Rule 56.1 Stmts. ¶¶ 14-15.) The Form 302 states that a man named Tony Piliero[1] told Barone that he wanted to kill his (Piliero's) business partner and another man in Connecticut, Douglas Agnessanto, who was Piliero's employee. (1/5/2000 Form 302; Barone Aff. ¶ 21.) Piliero allegedly maintained a life insurance policy on Agnessanto, and suggested to Barone that they could collect the policy proceeds if Agnessanto were killed. (Barone Aff. ¶ 21.) Barone, however, "was uncertain about the sincerity of [Piliero's] request, so [Barone] told [Piliero] to have fifty thousand dollars ($50, 000.00) available after which [Barone] would introduce [Piliero] to someone who would fulfill [Piliero's] request." (1/5/2000 Form 302; see also Def. & Barone Rule 56.1 Stmts. ¶ 16.) Barone advised Agent Presutti that, "should [Piliero] contact him again with regard to this request, particularly as it relates to paying the money, [Barone] would contact" Agent Presutti. (1/5/2000 Form 302; see also Def. & Barone Rule 56.1 Stmts. ¶ 17.) After speaking with Agent Presutti, Barone had further conversations with Piliero and determined that Piliero was not sincere about committing the murders, which he told Presutti. (Barone Aff. ¶ 23.)

         Barone states that he discussed the plot with Piliero and, specifically, the request for $50, 000, "without any guidance from the FBI." (Barone Aff. ¶ 21.) Agent Presutti did not arrest Barone "for engaging in this conversation or initiating additional steps, nor did he admonish [Barone] for doing so." (Barone Aff. ¶ 22.) "Presumably, " Barone states, "that is because, even as early as 1999, I was authorized and encouraged by the FBI to act like an LCN-associate, and to do and say things that LCN associates do, including having potentially very serious-sounding 'criminal conversations' about setting up a murder-for-hire." (Id.)

         The 2008 Murder For Hire Plot and Barone's Arrest

         In the summer of 2008, Piliero and Barone once again discussed Agnessanto's life insurance policy; as in 1999, Barone told Piliero that he could "'look into'" having Agnessanto killed for a portion of the policy proceeds. (Dkt. No. 128: Barone Aff. ¶ 25; Dkt. Nos. 120 & 129: Def. & Barone Rule 56.1 Stmts. ¶¶ 36-37.) "In October or November of 2008, Piliero gave [Barone] a post-it note listing Agnessanto's personal information, including his phone number, address, and Social Security number." (Def. & Barone Rule 56.1 Stmts. ¶ 38.)

         Barone claims that by 2008 he "had formed relationships with higher level organized crime figures in whom the FBI were more keenly interested, " and, to maintain his appearance as a "'wise guy, '" he maintained ties "among lower level figures and street criminals" including an individual named Michael Cooks. (Barone Aff. ¶ 25.) In fall 2008, Barone told Cooks about the murder plot, provided him directions to Agnessanto's house, and paid him $1, 000 "to surveil . . . a location for a possible hit" on Agnessanto. (Barone Aff. ¶ 26; Def. & Barone Rule 56.1 Stmts. ¶¶ 39-40.) Cooks traveled to Agnessanto's home and videotaped the area. (Def. & Barone Rule 56.1 Stmts. ¶ 41; Dkt. No. 119: Tinio Aff. Ex. C: Barone: Tr. 753.) Cooks and Barone watched the tape together, discussed what Agnessanto's home looked like, the layout of the area, and "went over the various scenarios about how the murder could be carried out." (Def. & Barone Rule 56.1 Stmts. ¶ 41; Barone: Tr. 753-54.) They agreed that the murder "had to look like a robbery" because if "Agnessanto were murdered while his family was being robbed, the insurance company would be less suspicious." (Def. & Barone Rule 56.1 Stmts. ¶ 41; Barone: Tr. 754.) If the hit succeeded, Piliero and Barone agreed to split the insurance proceeds. (Barone: Tr. 755.) Not long thereafter, "[i]n December 2008, Piliero called [Barone] and told him that the insurance policy was going to expire in February 2009." (Def. & Barone Rule 56.1 Stmts. ¶ 42.)

         Unbeknownst to Barone, Cooks was working as a CI with the New York City Police Department. (Def. & Barone Rule 56.1 Stmts. ¶ 29.) In late 2008, Cooks told his handler, NYPD Detective Angel Melendez, that Barone had approached him about the murder for hire. (Def. & Barone Rule 56.1 Stmts. ¶¶ 30-31.) In early January 2009, Det. Melendez arranged a meeting with the NYPD's Organized Crime Information Division and FBI Agent Michael Gaeta at which Cooks described the murder plot. (Dkt. No. 116: Melendez Aff. ¶¶ 8-10; Def. & Barone Rule 56.1 Stmts. ¶ 32; Tinio Aff. Ex. J: Gaeta Dep. at 72.) Agent Gaeta, the Supervisory Special Agent of "the Genovese organized crime squad, " assigned FBI Agent Gregorio Miceli to investigate. (Gaeta Dep. at 27, 74.) Agent Miceli met with Cooks who agreed "to become a confidential human source" for the FBI and testify against Barone. (Tinio Aff. Ex. E: Miceli Dep. at 45, 55; see Def. & Barone Rule 56.1 Stmts. ¶ 51.)

         At some point thereafter, Agents Gaeta and Miceli obtained a background check report that stated Barone was "an active informant for the FBI" and listed Agent Trombetta as his handling agent. (Dkt. No. 130: Weissman Aff. Ex. 2: Gaeta Dep. at 84-86.) Agent Gaeta reviewed Barone's FBI "source file" and concluded that Barone was not authorized to engage in a murder for hire conspiracy. (Tinio Aff. Ex. J: Gaeta Dep. at 179-81.) Agent Gaeta also called Agent Trombetta "to advise him that his current informant was now under investigation"; Agent Trombetta confirmed that Barone did not have the authority to plot the murder. (Id. at 87, 90, 181.)

         On January 7, 2009, Cooks made a recorded phone call to Barone during which they discussed the murder for hire plot. (Def. & Barone Rule 56.1 Stmts. ¶ 52.) Barone emphasized that the insurance policy was about to expire in February and "if it don't happen within the next week or two . . . that's a hundred large gone, forget about it." (Tinio Aff. Ex. L: 1/7/09 Telecon. Tr. at 2.) Barone reassured Cooks that: "I got 50 already right, already for you right now. When it's done and I know it's the right way I get the, I get the thing in the paper or whatever the next day, that's it, I got 50 you come and get it." (1/7/09 Telecon. Tr. at 4; Def. & Barone Rule 56.1 Stmts. ¶ 53.) Cooks reiterated that they would "make it look like . . . the home invasion" to which Barone responded, "[y]es, yes, that's the way I want it, yup, " and stated that he could possibly get Cooks a gun. (1/7/09 Telecon. Tr. at 5-6; Def. & Barone Rule 56.1 Stmts. ¶ 55.) Barone admitted "that at the time of this conversation, he did have over $50, 000 in cash ready at his home." (Def. & Barone Rule 56.1 Stmts. ¶ 54.)

         On January 9, 2009, Cooks recorded an in-person meeting with Barone involving further discussions about the murder. (Def. & Barone Rule 56.1 Stmts. ¶ 56; Tinio Aff. Ex. M: 1/9/09 Mtg. Tr.) Barone told Cooks that he needed "to know within this day" whether Cooks' contact would kill Agnessanto because "I gotta make the move on it . . . I thought we had a few months more to work on it, this guy [i.e., Piliero] told me February is the deadline, if I don't do it in January, this guy ain't gonna get paid and then everybody's out of their money." (1/9/09 Tr. at 6.) If Cooks could not arrange the murder, Barone said he had "another friend" who wanted the job. (1/9/09 Tr. at 4.) Barone stated that he was trying to get a revolver but cautioned Cooks that "[i]t's only gonna have six shots so make 'em count." (1/9/09 Tr. at 18, 23; Def. & Barone Rule 56.1 Stmts. ¶ 59.) "At the time of this meeting, [Barone] did have a six-shot revolver in his home." (Def. & Barone Rule 56.1 Stmts. ¶ 60.)

         After this meeting, the FBI became concerned that "Barone was attempting to imminently engage the cooperating witness [Cooks] in a murder-for-hire plot, " and Agent Gaeta believed "[a]t that point it was clear the threat was very imminent." (Tinio Aff. Ex. N: 4/22/10 Conf. Tr. at 5; Def. & Barone Rule 56.1 Stmts. ¶ 61.) Agent Gaeta contacted "the chief of the organized crime unit for the Southern District of New York, " Assistant U.S. Attorney Richard Daddario, "to obtain verbal authorization to arrest" Barone, which he received. (4/22/10 Conf. Tr. at 5; Def. & Barone Rule 56.1 Stmts. ¶¶ 62-63.)

         Barone was arrested later that day, January 9, 2009. (Def. & Barone Rule 56.1 Stmts. ¶ 64.) FBI agents searched Barone's home and recovered $50, 000 in cash, two guns, a bulletproof vest, and a "'Hitman's Handbook.'" United States v. Barone, 721 F.Supp.2d 261, 266-67 (S.D.N.Y. 2010); Def. & Barone Rule 56.1 Stmts. ¶ 67. Prior to his arrest, Barone never told Agents Presutti or Trombetta about his renewed discussions with Piliero and Cooks regarding the murder for hire plot, despite having reported his initial conversation with Piliero in 1999. (Def. & Barone Rule 56.1 Stmts. ¶ 43.)

         Barone's Incarceration and Prosecution

         After his arrest, Barone agreed to cooperate with the FBI, and participated in two proffer sessions on January 12 and January 26, 2009 with his defense attorney, the FBI and AUSA Miriam Rocah. (Dkt. No. 119: Tinio Aff. Exs. S & DD; Dkt. Nos. 120 & 129: Def. & Barone Rule 56.1 Stmts. ¶¶ 75-76, 85.) Barone agreed "to make monitored calls and recordings and to have a GPS device installed on his vehicle"; in particular, Barone would attempt to "creat[e] consensual recordings with Piliero, who had not yet been arrested or charged." (Def. & Barone Rule 56.1 Stmts. ¶¶ 79, 83.) "The FBI closed [Barone] as a CI and opened him as a CW with a higher level (Tier 1, not Tier 2) of authority to participate in otherwise illegal activity, given that [Barone] was now expected to attempt to obtain evidence regarding a crime of violence (the murder for hire plot)." (Def. & Barone Rule 56.1 Stmts. ¶ 86.) The filings and transcripts in Barone's criminal case were sealed to protect his safety. (Def. & Barone Rule 56.1 Stmts. ¶¶ 78, 82, 87-88; Tinio Aff. Ex. HH: 2/9/09 Conf. Tr. at 32.)

         Barone was released from prison pending trial in late January 2009, and on January 30, 2009 was arraigned before Judge Buchwald, who imposed several bail conditions. (Def. & Barone Rule 56.1 Stmts. ¶¶ 87, 89.) While on bail, Barone recorded a meeting with Piliero during which they discussed the murder for hire plot. (Def. & Barone Rule 56.1 Stmts. ¶ 90.) On February 9, 2009, however, Barone was re-arrested and presented before Judge Buchwald for a bail revocation proceeding. (Def. & Barone Rule 56.1 Stmts. ¶ 91.) Prosecutors Kenneth Polite and Miriam Rocah alleged that Barone had attempted to extort his girlfriend over the proceeds of a house sale, and failed to use his government-monitored cell phone and vehicle. (Def. & Barone Rule 56.1 Stmts. ¶ 92; 2/9/09 Conf. Tr. at 5, 8-9, 12.) AUSA Rocah stated that Barone's actions "solidified for us, frankly, that he is not a reliable cooperator, someone that we can trust not to do things without our knowledge." (2/9/09 Conf. Tr. at 7; Def. & Barone Rule 56.1 Stmts. ¶ 93.) Judge Buchwald revoked Barone's bail and ordered him detained. (Def. & Barone Rule 56.1 Stmts. ¶ 94; 2/9/09 Conf. Tr. at 31.)

         Barone claims that he never "materially violated [his] bail conditions." (Dkt. No. 128: Barone Aff. ¶ 34.) Rather, following his arrest, Barone states that Agents Gaeta and Miceli asked him to "'prove [him]self'" by making a recorded phone call to Pat Lombardo, a "notoriously violent gangster associated with the Gambino family." (Barone Aff. ¶ 31.) Barone "told Gaeta and Miceli that, if [he] attempted to discuss criminal activity over the telephone, Lombardo would immediately suspect [Barone] was working with law enforcement, [and he] would be 'outed' as an informant . . . ." (Id.) Barone nonetheless "reluctantly agreed to place the call, though, in reality, [he] did not [believe he had] a real choice." (Id.) The call backfired; Lombardo stated that he knew Barone had been "'pinched'" and "knew the call was being monitored." (Barone Aff. ¶ 32.) Barone's federal defender called AUSA Rocah to express his concern for Barone's safety, which Barone alleges angered Agents Gaeta and Miceli. (Barone Aff. ¶ 33.) Barone replaced his assigned counsel with private counsel, George Santangelo, "a well-known criminal defense lawyer who regularly handled Italian organized crime cases." (Barone Aff. ¶ 34.) Barone believes that Agents "Gaeta and Miceli decided immediately to punish [Barone] for hiring a so-called 'mob lawyer' by claiming [he] violated [his] bail conditions." (Id.)

         Barone was detained in general population at the Metropolitan Detention Center ("MDC") in Brooklyn until late April 2009. (Def. & Barone Rule 56.1 Stmts. ¶ 95; Barone Aff. ¶ 35.) On April 30, 2009, Piliero was arrested for his role in the murder plot based on a criminal complaint drafted by AUSA Polite and sworn out by Agent Miceli. (Def. & Barone Rule 56.1 Stmts. ¶¶ 96-97.) Agent Miceli provided some of the information that AUSA Polite used to draft the Piliero complaint, but testified that "[w]hat [Polite] chose to put in the complaint was not [Miceli's] decision." (Dkt. No. 130: Weissman Aff. Ex. 3: Miceli Dep. at 167-68.) The complaint referred to Barone only as "CC-1, " "a co-conspirator not named as a defendant herein, " but did state that "[o]n January 9, 2009, law enforcement agents arrested CC-1 outside his home in Westchester, New York." (Tinio Aff. Ex. JJ: 4/29/09 USA v. Piliero Complaint ¶¶ 2, 5; Def. & Barone Rule 56.1 Stmts. ¶¶ 99-100.)

         That same day, April 30, 2009, the FBI press office received a call from someone at a local newspaper "who figured out CC-1 is Barone and is going to 'out' him." (Tinio Aff. Ex. KK at 2; Weissman Aff. Ex. 6: Rocah Dep. at 141; Def. & Barone Rule 56.1 Stmts. ¶ 101.) On May 1, 2009, an article was published online describing the murder plot and outing Barone as an FBI informant:

The friend Piliero hired [to commit the murder] was arrested by law enforcement officials Jan. 9 at his home in Westchester County, before any hit could be carried out, according to the criminal complaint. Shortly after his arrest, the friend Piliero is accused of hiring began cooperating with FBI agents. . . .
The friend was not identified in the criminal complaint, but is described as a longtime friend of Piliero's.
But according to court records, Joseph S. Barone, 47, was arrested by agents Jan. 9 on a charge of murder for hire. The case against him is still pending in federal court in Manhattan, with several of his proceedings sealed by a judge.
Piliero's lawyer, Michael Santangelo, yesterday acknowledged only that Piliero knew Barone but would not discuss their relationship.
FBI Agent James Margolin, a spokesman for the bureau, declined to comment on Barone's status.

(Tinio Aff. Ex. LL: 5/1/09 Article at 1-2; see also Def. & Barone Rule 56.1 Stmts. ¶¶ 102-05.) A May 14, 2009 memo from the Federal Bureau of Prisons ("BOP") states that on May 1, 2009, the FBI notified the BOP about the news article, and the "information was provided to the [BOP] Office of Special Investigations, MDC, Brooklyn . . . for review." (Tinio Aff. Ex. NN: 5/14/09 BOP Memo at 1.) The memo further states that Barone "was placed in the Special Housing Unit ["SHU"] in the status of Administrative Detention, pending a threat assessment." (Id.) The SHU is separated from general population, but is not solitary confinement. (Def. & Barone Rule 56.1 Stmts. ¶ 112.) "BOP policy defines administrative detention as a non-punitive status in which restricted conditions of confinement are required only to ensure the safety of inmates or others, and is used when the continued presence of the inmate within the general population would pose a serious threat" to the inmate or others. (Dkt. No. 118: Colvin Aff. ¶ 7.)

         "BOP officials within the relevant facility are responsible for making the final decision as to whether and how a possible threat to an inmate should be addressed, which could include assigning the inmate to a different or segregated housing unit to separate the inmate from the potential threat." (Def. & Barone Rule 56.1 Stmts. ¶ 111.) BOP Special Agent Beverly Brown assigned Stephen Rivera, a BOP Special Investigative Services technician, to conduct the threat assessment. (Dkt. No. 117: Brown Aff. ¶¶ 1, 3, 9.) Brown "recall[s] that BOP executive staff at the MDC Brooklyn ultimately decided to place [Barone] in the SHU as a result of the threat assessment, " and "do[es] not recall any involvement by outside law enforcement officers in the decision . . . ." (Brown Aff. ¶¶ 11-12.)

         On October 29, 2009, Barone attended an MDC protective custody hearing and claimed that his relocation to the SHU was a ploy by the prosecution "to put pressure on [him] to testify." (Tinio Aff. Ex. OO: 10/29/09 Report at 2.) The hearing officer found that Barone had been placed in the SHU "for his protection." (Id. at 3; see also Def. & Barone Rule 56.1 Stmts. ΒΆΒΆ 114-15.) Although Barone claimed that he was "suffering" in the SHU (10/29/09 Report at 2), he rejected a December 2009 government offer to move him to general population in ...

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