United States District Court, S.D. New York
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
J. PECK, United States Magistrate Judge.
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.
Beginnings As An FBI Informant
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.'"
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.)
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.)
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 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.)
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."
2008 Murder For Hire Plot and Barone's
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.
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.
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.)
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.)
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.)
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.)
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.)
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.)
Incarceration and Prosecution
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.)
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
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."
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.)
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.)
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.)
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. ¶¶
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 ...