Informants May Get a Pass on Murder

Former FBI agents say violent crimes can be ignored because they are seen as a necessary evil of criminal investigation.

By Jeff Donn
Associated Press Writer

March 16, 2003

For decades in cities from coast to coast, FBI agents recruited killers and crime bosses as informants and then looked the other way as they continued to commit violent crimes.

When the practice first came to light in Boston -- unleashing an ongoing investigation that has already sent one agent to prison for obstruction of justice -- FBI officials in Washington portrayed it as an aberration.

But Associated Press interviews with nine former agents -- men with a combined 190
years of experience in more than 25 bureau offices from Los Angeles to Washington -- indicate that the practice was widespread during their years of service between the late 1950s and the 1990s.

The former agents, and two federal law enforcement officials who have worked closely with the bureau, said the practice sometimes emboldened informants, leading them to believe that they could get away with almost anything.

The degree to which the practice continues today is unclear; current FBI agents and
administrators are secretive about the bureau's work with informants. However, a senior FBI official indicated that bureau rules designed to prevent serious crimes by informants may not always be followed by agents in the field.

The nine former agents spoke -- on the record -- not to criticize the practice of
overlooking violent crimes by informants, but rather to defend it as a necessary evil of criminal investigation.

"The bureau has to encourage these guys to be themselves and do what they do," said Joseph O'Brien, a former FBI informant coordinator in New York City who retired in 1991. "If they stop just because they are working with the FBI, somebody's going to question them. If anything, I'd want them to become more active."

Gary Penrith, who retired in 1992 after a career that included serving as deputy assistant director of intelligence, added: "Every one of the good ones are outlaws."

The former agents said it makes sense to overlook an informant's involvement in robberies or beatings if the information being provided helps solve or prevent worse crimes. But sometimes, they added, even murders were ignored.

Several said they would never protect known killers, but others said it was defensible in some circumstances.

"You have to weigh the odds of whether killing one or two people is better than killing a whole planeload," said Wesley Swearingen, whose service as an agent from 1959 to 1977 included tours in Los Angeles and Chicago.

For example, he said, agents ignored the murder of a small-time mobster by an FBI
informant in Chicago in the 1960s because "the information that the FBI was getting was more important. Somebody in the mob is going to kill that person anyway."

William G. Hundley, a longtime U.S. Justice Department lawyer who retired as head of its organized crime section in 1968, said such understandings have sometimes allowed informants "to get away with murder, so to speak."

The bureau, concerned that the release of any information about the informant program could put informants in danger, keeps even the number of informants secret. Former agents say there are thousands.

The former agents interviewed were generally more forthcoming about their FBI
experiences than the bureau might like. Four have written books that sometimes diverge from the official line, and O'Brien resigned from the agency in a dispute over his book's contents.

However, the former agents remained faithful to the bureau's policy of protecting
informant identities, declining to name even those who had committed murder.

An AP review of court cases and published accounts identified 11 criminals who are
known to have killed while working with the agency, or to have been shielded by their bureau handlers from prosecution for murders committed before they were recruited.

Those 11, including three mobsters involved in the Boston scandal, are believed to have killed at least 52 people between the 1960s and the mid-'90s.

Previously, these cases had been reported as isolated incidents, but in light of the
interviews with former agents, they appear to be a part of a wider pattern.

Clifford Zimmerman, a Northwestern University law professor who studies informant
practices, says it is immoral, and perhaps illegal, for agents to shrug off violent crimes.

"They're doing their own little cost-benefit analysis and really not taking into account, in my opinion, the damage to society that these people are causing," he said. "Is a federal official entitled to make that decision -- that one person's life is more valuable than another's?"

Sometimes it amounts to that, former agents acknowledge.

"What it comes down to is: Who's got the best information?" said Robert Fitzpatrick,
assistant director of the Boston field office when he retired in 1986. Top-echelon
informants -- those well placed to provide valuable information in major mob
investigations -- "generally would be savable" even if they killed, he said.

Several former agents expressed sympathy for John Connolly, the former Boston agent sentenced in September to 10 years in prison for his role in protecting two organized crime kingpins, James "Whitey" Bulger and Stephen "The Rifleman" Flemmi. The two are accused in 18 murders, including 11 committed while they were serving as FBI informants.

Senior FBI officials have portrayed Connolly and several of his Boston colleagues as
rogue agents. However, as reported in July, the Associated Press found 26 memos
between the Boston field office and the FBI director's office, written between 1964 and '87, that prove headquarters knew and condoned much of what the Boston agents were doing.

Several of the former agents interviewed called Connolly a scapegoat.

The bureau's rules for handling informants specifically ban what Connolly did. The rules, in effect for 26 years, forbid informants from participating in violent crimes. Officially, informants are allowed only nonviolent crimes such as illegal gambling or drug dealing, and these only when authorized as necessary to keep the informants in a position to supply information.

Connolly is by no means the only agent who has bent or broken these rules, the retired agents said.

"I'd be the first to tell you that agents who were doing this [handling informants] every day pushed the envelope," said Dennis O'Callaghan, a former chief of the organized crime unit who retired from the bureau in 1991.

Current FBI officials in Washington acknowledge that the rules may not always be
followed today.

Joseph R. Lewis, a deputy assistant FBI director in charge of criminal investigations and intelligence, said he is "fairly confident" that most field agents follow the rules. However, he added in a recent interview at FBI headquarters that "it probably happens" that some agents shut their eyes to unauthorized crimes committed by valued informants.

Informants are vital to the bureau's work, Lewis said, adding: "They provide us with eyes and ears into matters we would ordinarily not be privy to."

Throughout its history, the bureau has relied on confidential informants to crack big cases: John Dillinger in the 1930s, New England mob boss Raymond L. S. Patriarca in the 1960s, spy Robert Hanssen in the 1990s. Today, the bureau is enlisting a new army of informants in the wake of the 2001 attacks on New York and Washington.

Many informants are paid for information. The former agents said the amounts range from less than $100 for minor tips to weekly payments of $1,000 or more to reliable,
well-placed sources.

Informants can be difficult to control, Lewis said. "The good ones are con artists, and
they're going to try to get something over on you."

Consider the case of Gregory Scarpa Sr. In the 1990s, while informing on the mob for
the FBI, he also participated in gang warfare for control of New York City's Colombo
crime family, killing as many as 13 rivals.

Senior FBI officials knew that Scarpa was suspected of murder but let him keep working as an informant, Lindley DeVecchio, Scarpa's bureau handler, later testified.

U.S. District Judge Edward Korman, who presided over a 1995 murder conspiracy trial
of Colombo family members, concluded that Scarpa apparently believed that "he could count on the bureau being on his side" in the gang war.

Scarpa subsequently admitted a role in three killings and pleaded guilty to murder in
1993. In prison, he died of AIDS contracted from a blood transfusion.

Murder provided Scarpa with a great cover for his work with the FBI, said Alan S.
Futerfas, a lawyer who defended some of the mobsters Scarpa informed on. "People
thought there was no way in the world that the FBI would let this guy run around killing people."

Most of those Scarpa had informed on were his gangland enemies. Informants commonly inform to eliminate rivals or settle grudges, the retired agents said. Just as the FBI uses them, they use the FBI, former agents said.

"Do agents know they're not telling them everything? Absolutely!" said O'Callaghan, the former head of the bureau's organized crime unit. He called it "a don't ask, don't tell situation."

Agents avoid asking -- and, if possible, avoid hearing -- anything that would incriminate their informants in violent crimes, several agents said.

"You don't really want to know" because if you don't know, you aren't breaking the rules, O'Brien said.

William Turner, who worked in five field offices before retiring in 1961, said he "kind of intimated" to his informants that they should keep their unauthorized crimes to themselves.

Occasionally, an informant might hint that he is planning a violent crime in order to get an agent's implicit permission, the former agents said.

"I wouldn't listen to it," said Joseph L. Schott, a former agent in New Jersey and Texas. "I didn't want to be involved. It just opened up a Pandora's box."

The retired agents defended these evasions as necessary to keep information flowing, but they expressed concern about the human cost when informants conclude that they can break the law with impunity.

Valuable informants "know if they are cooperating with us, they're not necessarily going to be targeted for prosecution," said Joe Griffin, a former administrator in the bureau's organized crime unit.

"Do they take advantage of that? Yes," Fitzpatrick said. "In their own minds, they see that as a rationale. They got a pass."

Turner added: "If I intimated to an informant that I didn't want to know about his own personal activity, for obvious reasons, that might be interpreted as a license to kill."

Michael Burnett may have thought that he had such a license. He was a convicted
swindler who agreed to become an FBI informant in 1984 after being arrested on
suspicion of possessing an illegal machine gun. Although he was suspected of killing five victims of his swindles, the FBI used him in a series of public corruption undercover investigations in Chicago and New York City. Information he provided helped send more than two dozen public officials to prison.

After being exposed as an informant, Burnett was given a life sentence for plotting the 1994 murder of a witness set to testify against him in a bank fraud case.

Lewis, the current deputy assistant director, said Burnett "did do things that we weren't aware of." He added: "If we knew that at the time, we probably would have locked him up for those crimes."

But Margaret Giordano, the assistant U.S. attorney who prosecuted the case, said FBI agents "absolutely did" know that Burnett was a murder suspect during his informer days.

She said that being a valuable informant had emboldened Burnett, making him think that "at any minute, regardless of what he was doing," the agency would protect him.

Lewis insisted that top bureau officials will not tolerate violent informants.

That's why field agents don't always tell Washington about them, Penrith said. "Do they always bring that to a supervisor? Hell, no, they don't," he said. And when he was supervising agents, he said, "I don't go and ask."

Sometimes, the retired agents said, agents protect their informants not only from their supervisors but from other law enforcement agencies. Agencies that suspect FBI
informants of crimes are asked not to look into them, the former agents said. O'Brien said the conversation might go something like this:

"I know you got to do your job, but if you just back off a little bit, I will share bureau information with you."

Usually, that's all it takes, he said.

In Boston, court records show, FBI agents actually warned gangster informants when state or city police were on their trail.

O'Brien said doing that is wrong -- but not unthinkable. For a valued source, he said, "there is a tendency to want to do that."