Limone v. United States

United States Court of Appeals
For the First Circuit

No. 08-1327

PETER J. LIMONE ET AL.,

Plaintiffs, Appellees,

v.

UNITED STATES OF AMERICA,

Defendant, Appellant.

____________________

No. 08-1328

EDWARD GRECO,

Plaintiff, Appellant,

v.

UNITED STATES OF AMERICA,

Defendant, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]

Before

Torruella, Selya and Tashima,* Circuit Judges.

*
Of the Ninth Circuit, sitting by designation.
 Joshua Waldman, Appellate Staff, Civil Division, United States
Department of Justice, with whom Gregory G. Katsas, Assistant
Attorney General, Michael J. Sullivan, United States Attorney, and
Michael S. Raab, Appellate Staff, Civil Division, United States
Department of Justice, were on brief, for the United States.
James R. Murray, Alex E. Hassid, Erin C. Wilcox, Christopher
J. Allen, and Dickstein Shapiro LLP on brief for Society of Former
Special Agents of the FBI, Inc., amicus curiae.
Michael Avery, with whom Juliane Balliro, Christine M.
Griffin, WolfBlock, LLP, Richard D. Bickelman, Catherine J. Savoie,
Ian H. Moss, Posternak, Blankstein & Lund, LLP, William T. Koski,
Koski & Kearns, LLP, Daniel R. Deutsch, John C. Foskett, Deutsch
Williams, Howard Friedman, Jennifer L. Bills, David Milton, Law
Offices of Howard Friedman, P.C., Victor J. Garo, Austin J.
McGuigan, Glenn E. Coe, Joseph B. Burns, Bridget Ciarlo, Rome
McGuigan, P.C., Michael Rachlis, Edwin L. Durham, and Rachlis
Durham Duff & Adler, LLC were on joint liability brief, for all
individual appellees.
Michael Avery, William T. Koski, Koski & Kearns, LLP, Juliane
Balliro, Christine M. Griffin, and WolfBlock, LLP on damages brief
for Limone and Tameleo appellees.
Austin J. McGuigan, Joseph B. Burns, Rome McGuigan, P.C., and
Victor J. Garo on damages brief for Salvati appellees.
Richard D. Bickelman, Catherine J. Savoie, Ian H. Moss,
Posternak, Blankstein & Lund, LLP, Daniel R. Deutsch, John C.
Foskett, and Deutsch Williams on brief for appellee Roberta Werner,
individually, as Executrix of the Estate of Louis Greco, and as
Administratrix of the Estate of Louis Greco, Jr.
Howard Friedman, with whom David Milton, Law Offices of Howard
Friedman, P.C., Michael Rachlis, Edward L. Durham, and Rachlis
Durham Duff & Adler, LLC, were on brief, for appellee and cross-
appellant Edward Greco.

August 27, 2009
 SELYA, Circuit Judge. The genesis of these appeals can

be traced to the gangland slaying of Edward "Teddy" Deegan, which

occurred in 1965 in Chelsea, Massachusetts. Initially, the murder

went unsolved. Two years later, agents of the Federal Bureau of

Investigation (FBI), intent on frying bigger fish, cultivated a

cooperating witness, Joseph Barboza, with tight ties to organized

crime. Barboza thereafter met with state authorities and

implicated several individuals in the Deegan slaying.

Based principally on Barboza's testimony, the

Commonwealth of Massachusetts secured indictments in 1967 and

convictions the following year. Among those convicted were Peter

Limone, Sr., Enrico Tameleo, Louis Greco, Sr., and Joseph Salvati

(collectively, the scapegoats). All of them received stiff

sentences.

Some three decades later, disturbing revelations cast

grave doubt upon the verdicts. In December of 2000, the FBI for

the first time disclosed that all along it had possessed reliable

intelligence undercutting Barboza's account of the murder and that

it had suppressed this intelligence. By the time that this

information came to light, Tameleo and Greco had died in prison,

Salvati had been paroled, and Limone was still behind bars. In due

course, the convictions of all four men were vacated and Limone was

released.

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 Salvati, Limone, and the representatives of the estates

of Tameleo and Greco, along with various family members

(collectively, the plaintiffs), brought suit against the United

States advancing claims under the Federal Tort Claims Act (FTCA),

28 U.S.C. §§ 1346(b), 2671-2680. Following a bench trial, the

district court found the government liable on a multitude of

theories and awarded over $100,000,000 in damages. The government

appeals, as does one of the plaintiffs.

The record evinces egregious governmental misconduct; the

FBI agents responsible for handling Barboza exhibited a callous

disregard for the scapegoats' rights. But it is our duty to

interpret and apply the law even-handedly, regardless of the

egregiousness of a defendant's misconduct. Fidelity to that duty

requires us to examine and resolve several vexing issues concerning

both liability and damages. After painstaking consideration of the

voluminous record, the parties' briefs, and the district court's

carefully crafted rescripts, we affirm the liability finding

(albeit on grounds that differ in one significant respect from

those relied upon by the district court).

The damage awards give us pause. Insofar as the awards

embody damages for wrongful incarceration, they are considerably

higher than any one of us, if sitting on the trial court bench,

would have ordered. We nonetheless affirm those awards. Our

proper function as appellate judges is not to second-guess the

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trial court but, rather, to apply a very deferential standard of

review. Adhering to that role, and testing the disputed awards

only to that extent, we conclude that the awards, though high, are

not so grossly disproportionate to the harm sustained as to either

shock our collective conscience or raise the specter of a

miscarriage of justice.

I. BACKGROUND

These appeals have a long factual and procedural history.

We rehearse that history only insofar as is necessary to place into

perspective the issues that we must decide. We direct the reader

who hungers for more detail to consult the district court's

capstone opinion in Limone v. United States (Limone IV), 497 F.

Supp. 2d 143 (D. Mass. 2007).

We bifurcate our account. First, we limn the unsavory

history of the Deegan murder and its aftermath. Then, we move to

the commencement and travel of the federal case. Because these

appeals follow findings made by a district court sitting without a

jury, we resolve factual conflicts in favor of the district court's

findings (to the extent that those findings are not clearly

erroneous). Jackson v. United States, 156 F.3d 230, 232-33 (1st

Cir. 1998).

A. The Murder and Its Aftermath.

On the night of March 12, 1965, Teddy Deegan's bullet-

ridden body was discovered in Chelsea, Massachusetts. Deegan had

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been shot six times, and the shots had been fired from three

different guns. Suspicion focused upon a group of men that

included Barboza, Jimmy Flemmi, Roy French, Joseph Martin, and

Ronald Cassesso, all of whom were linked to organized crime. The

group had been observed leaving a local gang hangout, the Ebb Tide

Lounge, earlier that evening and returning shortly after the murder

was committed. Eyewitnesses attested that they had seen blood

stains on French's clothing that night.

Despite local officers' suspicions, the trail went cold

within a matter of weeks. The police were unable to gather

sufficient evidence to prefer charges against anyone.

Some two years later, FBI agents H. Paul Rico and Dennis

Condon started cultivating Barboza, a known killer, in hopes of

"flipping" him; that is, developing him as a cooperating witness

against the Italian Mafia (La Cosa Nostra or LCN). At the time,

Barboza was facing up to 89 years of imprisonment on state

"habitual offender" charges. See Mass. Gen. Laws ch. 279, § 25.

Barboza indicated a willingness to deal but placed one immutable

condition on any information that he might provide: he would not

inculpate his close associate, Flemmi. The FBI tacitly accepted

that condition.

Throughout the spring of 1967, the agents used both

carrots and sticks in their efforts to mine information from

Barboza. Barboza was in state custody, and the agents plied him

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with promises of favorable recommendations and a slap-on-the-wrist

sentence. They also fabricated a story that La Cosa Nostra was

attempting, by influencing state prosecutors, to bring about

Barboza's lifetime confinement.

Barboza's cooperation was not a one-shot affair. Over

the course of several months of interrogation, he claimed to be

knowledgeable about many crimes. Pertinently, he mentioned the

Deegan murder (although in his conversations with the FBI agents he

was not forthcoming as to any details). That crime was primarily

a matter of state, not federal, interest. Accordingly,

Massachusetts law enforcement officers sought to interview Barboza.

On September 8, 1967, two Suffolk County detectives (John

Doyle and Frank Walsh) conversed with Barboza. Agents Rico and

Condon were present, but the detectives pulled the laboring oar.

Under questioning, Barboza finally provided his account of the

Deegan killing. According to that account, Limone hired Barboza to

murder Deegan because Deegan had robbed an LCN-affiliated

bookmaker. Barboza then requested permission to carry out the

"hit" from Tameleo, an LCN hierarch. After Tameleo's blessing had

been secured, Barboza and Greco formulated a plan.

According to Barboza, the mechanics of the plan were as

follows. French would accompany Deegan to the site of a

hypothetical burglary. Once there, French would turn on Deegan

and, assisted by Barboza, Salvati, Greco, Martin, and Cassesso,

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would kill both Deegan and another putative participant in the

burglary, Anthony Stathopoulos, Jr. Upon learning the details of

the plan, Limone approved it and agreed to pay an additional sum

because it involved a double murder.

During subsequent meetings with the detectives and the

agents, Barboza modified his account. This modified version, which

differed only at the margins and not at the core, formed the

predicate for the indictments and convictions that followed.

At the time that Barboza unveiled his account of Deegan's

murder, the FBI possessed powerful intelligence casting grave doubt

on the account's veracity. Because the strength of this

intelligence is of decretory significance here, we discuss it in

some detail.

In the early 1960s, the FBI ramped up its efforts to

extirpate organized crime in New England. Among other things, it

surreptitiously installed an illegal electronic "bug" at the

Providence, Rhode Island office of Raymond L. S. Patriarca, the

reputed head of La Cosa Nostra in the area. The bug was in place

from early 1962 through July 12, 1965. See United States v.

Taglianetti, 274 F. Supp. 220, 223 (D.R.I. 1967). FBI agents

transcribed the conversations that it recorded, reviewed those

transcripts, and sent summaries of important information to FBI

headquarters in Washington.

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 As a parallel measure, the FBI initiated the Top Echelon

Criminal Informant Program in 1961. The aim of that program was to

induce high-ranking organized crime figures to provide intelligence

on a continuing, long-term basis. See United States v. Flemmi, 225

F.3d 78, 81 (1st Cir. 2000).

In the weeks preceding and following Deegan's murder,

these two investigative tools yielded a golconda of information

about the killers. The Patriarca bug revealed that Barboza and

Flemmi had approached Patriarca and obtained his sanction for the

hit. Other information from both the bug and the FBI's then-

current crop of Top Echelon informants implicated five malefactors

(Barboza, Flemmi, French, Martin, and Cassesso) in the murder, but

not a single source other than Barboza so much as hinted that any

of the scapegoats were involved.

Despite possessing credible intelligence undermining

Barboza's tale, the FBI did not turn over this intelligence to

state authorities either at the time of the murder or during

Barboza's later debriefing. To make a bad situation worse, agents

Rico and Condon informed the state prosecutor, Norman Zalkind, that

Barboza's tale "checked out." Condon appeared as a witness at the

state-court trial and lent credence to Barboza's narrative by

emphasizing that he (Condon) always was concerned about the

"purity" of the testimony given by his informants.

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 On the strength of Barboza's false testimony, the jury

convicted the scapegoats on first-degree murder and murder-

conspiracy charges.1 The trial judge sentenced Limone, Tameleo,

and Greco to death, and sentenced Salvati to life imprisonment.

The scapegoats' appeals were unsuccessful, but the capital

sentences were commuted to life imprisonment after the United

States Supreme Court decided Furman v. Georgia, 408 U.S. 238

(1972).

Under Massachusetts law as it stood at the time, a state

prisoner convicted of first-degree murder could not be paroled

absent commutation by the governor. See Limone IV, 497 F. Supp. 2d

at 199 (describing parole process). The scapegoats filed numerous

petitions for commutation and parole over many years. Although

state authorities requested all relevant information, the FBI never

turned over the exculpatory information that reposed within its

files. On some occasions, the FBI went so far as to forward

information that harmed the scapegoats' chances for commutation or

parole. On other occasions, it took affirmative steps to deflect

possible challenges to the convictions.

Tameleo and Greco died in prison in 1985 and in 1995,

respectively. Salvati secured a commutation from the governor and

was released in 1997. Limone remained incarcerated.

1
French, Martin, and Cassesso also were convicted on charges
related to the murder. The legitimacy of those convictions is not
an issue here.

-10-
 In December of 2000, Special Assistant United States

Attorney John Durham, responding to a request lodged by Limone,

turned over five memoranda (which have come to be known as the

Durham documents). The Durham documents revealed much of the

exculpatory information that the FBI had kept in its organizational

bosom all along. Upon seeing this information, the Suffolk County

district attorney's office moved to vacate Limone's conviction.

The state trial court granted that motion on the ground that the

result of the trial in all likelihood would have been different had

the Durham documents been disclosed in a timeous manner. Salvati's

conviction was vacated on the same ground. Shortly thereafter,

state prosecutors filed notices of abandonment of prosecution

(nolle prosequi) for both Limone and Salvati based on a perceived

lack of evidence. The prosecutors later arranged for posthumous

vacatur of Tameleo's and Greco's convictions and issued similar

nolle prosequi notices in those cases.

B. The FTCA Action.

Following the release of the Durham documents, the

plaintiffs filed separate actions in the federal district court.

The plaintiffs' complaints adumbrated three types of causes of

action: (i) claims against the United States under the FTCA;

(ii) Bivens claims against Rico, Condon, and other FBI

supernumeraries, see Bivens v. Six Unknown Named Agents of FBN, 403

U.S. 388, 397 (1971); and (iii) claims against Walsh and other

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state actors pursuant to 42 U.S.C. § 1983. The cases were

consolidated.

The United States moved to dismiss on the ground that the

claims against it were barred by the discretionary function and

intentional tort exceptions to the FTCA. See 28 U.S.C. § 2680(a),

(h). The individual defendants moved to dismiss on qualified

immunity grounds. The district court denied these motions. See

Limone v. United States (Limone I), 271 F. Supp. 2d 345, 353-57 (D.

Mass. 2003) (rejecting discretionary function defense); id. at 365-

66 (rejecting qualified immunity defense); Limone v. United States

(Limone III), 336 F. Supp. 2d 18, 30-31 (D. Mass. 2004) (rejecting

intentional tort defense). On a limited interlocutory appeal, we

affirmed the denial of qualified immunity. Limone v. Condon

(Limone II), 372 F.3d 39, 50 (1st Cir. 2004). The plaintiffs later

dropped their claims against the individual defendants (federal and

state) and proceeded only on the FTCA claims.

Following a 22-day bench trial, the district court found

for the plaintiffs (including the family members) on their claims

of malicious prosecution, coercive civil conspiracy, intentional

infliction of emotional distress, negligence, negligent

supervision, and loss of consortium. The court awarded total

damages in excess of $100,000,000. These timely appeals ensued.

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II. ANALYSIS

On appeal, the government challenges the district court's

holdings on both liability and damages. Its argument on liability

makes three basic points: (i) that the district court lacked

subject matter jurisdiction over the plaintiffs' claims by reason

of the FTCA's discretionary function exception; (ii) that the court

lacked such jurisdiction because the plaintiffs' claims arose out

of intentional torts committed before Congress amended the FTCA to

permit the maintenance of such claims; and (iii) that the

plaintiffs adduced insufficient evidence to prove the elements of

any of the asserted torts.

In a secondary line of attack, the government assails the

district court's damages calculus, arguing that the court's rule-

of-thumb baseline of $1,000,000 per year for each year of wrongful

incarceration is unreasonable and resulted in a battery of

excessive awards. In a cross-appeal, the son of one of the

scapegoats contends that the district court erred in awarding him

the same damages as were awarded to the offspring of the other

scapegoats.

In the pages that follow, we address these arguments.

For ease in exposition we deal with the second and third prongs of

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the government's challenge to liability before addressing the first

prong.2

We start that discussion with what all the parties have

treated as the leading edge of the government's appeal: its

asseveration that the district court erred in finding the

government liable for malicious prosecution. While we conclude

that the government's asseveration has merit, that proves to be a

hollow victory. The next most bruited theory on which the district

court premised liability — its finding that the FBI is liable for

intentional infliction of emotional distress — withstands scrutiny.

As to that cause of action, we also reject the government's

insufficiency of the evidence and discretionary function defenses.

Finally, we uphold the damage awards in their entirety (a decision

that entails, among other things, defenestration of the cross-

appeal).

A. Malicious Prosecution.

Federal courts lack jurisdiction over tort actions

against the United States except insofar as the sovereign has

2
Because the discretionary function exception, when
applicable, deprives a court of subject matter jurisdiction, some
might think consideration of it logically antecedent to
consideration of the merits. But the answer to the discretionary
function inquiry depends in large measure on the nature of the
conduct at issue. See, e.g., Fothergill v. United States, 566 F.3d
248, 252-53 (1st Cir. 2009); Shansky v. United States, 164 F.3d
688, 690-91 (1st Cir. 1999). In an appellate court, after a full
trial on the merits, the discretionary function inquiry sometimes
is better performed at a later stage in the analysis. This is such
a case.

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consented to be sued. See Dynamic Image Techs., Inc. v. United

States, 221 F.3d 34, 39 (1st Cir. 2000). The FTCA represents a

general waiver of federal sovereign immunity for tortious acts and

omissions of federal employees. But that general waiver is subject

to a litany of exceptions.

At the time that the scapegoats were charged, prosecuted,

and convicted in state court, the FTCA's waiver provisions excluded

claims arising out of malicious prosecution. See Savage v. United

States, 322 F. Supp. 33, 35 (D. Minn. 1971) (quoting former section

2680(h)); Ira S. Bushey & Sons, Inc. v. United States, 276 F. Supp.

518, 526 (E.D.N.Y. 1967) (same). Congress dissolved the malicious

prosecution bar with respect to federal law enforcement officers in

1974, amending the FTCA to add what has come to be known as the law

enforcement proviso. See Pub. L. No. 93-253, § 2, 88 Stat. 50,

codified at 28 U.S.C. § 2680(h).

The government posits that the plaintiffs' malicious

prosecution claims arose before the enactment of the law

enforcement proviso and, therefore, the district court lacked

jurisdiction over those claims. The district court brushed aside

this argument, holding that the plaintiffs' malicious prosecution

claims did not arise until the scapegoats had received favorable

terminations of the criminal charges wrongfully brought against

them (an eventuality that did not occur until 2001 at the

earliest). See Limone IV, 497 F. Supp. 2d at 204; Limone III, 336

-15-
F. Supp. 2d at 30-37; see also Heck v. Humphrey, 512 U.S. 477, 489

(1994) (indicating that cause of action for malicious prosecution

does not accrue until favorable termination of the underlying

criminal proceeding has occurred).

The key to this riddle lies in language. The law

enforcement proviso applies only to covered actions (like malicious

prosecution) that "aris[e]" after its effective date. 28 U.S.C.

§ 2680(h). The plaintiffs and the district court equate the word

"arise" with the word "accrue," thereby bringing into play the Heck

analysis. The government, however, insists that the word "arise"

refers to the time when the prosecution itself occurred. Each view

has a patina of plausibility. The district court's analysis makes

the case for the plaintiffs, see Limone III, 336 F. Supp. 2d at 30-

37, and the government's reading of the statute finds some purchase

in the case law elsewhere, see, e.g., Liuzzo v. United States, 508

F. Supp. 923, 927-28 & n.2 (E.D. Mich. 1981).

This is a difficult question. Moreover, given the

passage of time, it is unlikely to recur. Courts should take pains

not to grapple needlessly with enigmatic questions. As we explain

below, it is unnecessary for us to answer the statutory

construction question posed by the parties in this case.3

3
We recognize that the question of when a cause of action for
malicious prosecution arises under the law enforcement proviso of
the FTCA is jurisdictional in nature. We have broad discretion,
however, to take issues in whatever order practicality may suggest,
see, e.g., Puerto Rico v. United States, 490 F.3d 50, 70 (1st Cir.

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 The FTCA looks to state law to flesh out the elements of

particular torts. See 28 U.S.C. § 1346(b)(1); Bolduc v. United

States, 402 F.3d 50, 56 (1st Cir. 2005). Here, both the allegedly

tortious conduct and the harm complained of occurred in

Massachusetts. Massachusetts law, therefore, supplies the beacon

by which we must steer.

To prevail on a malicious prosecution claim under

Massachusetts law, a suitor must prove that the defendant

(i) instituted criminal proceedings (ii) with malice and

(iii) without probable cause, and (iv) that the proceedings were

terminated in the accused's favor. Correllas v. Viveiros, 572

N.E.2d 7, 10 (Mass. 1991). Here, we can start and stop with the

first of these four elements.

In broad brush, an individual may be said to have

instituted criminal proceedings against another if he caused those

proceedings to be initiated. See Witham v. Gregory & Read Co., 137

N.E. 752, 752 (Mass. 1923); Mason v. Jacot, 127 N.E. 331, 333

(Mass. 1920); Tangney v. Sullivan, 39 N.E. 799, 799-800 (Mass.

1895). The paradigmatic example exists when a person formally

swears out a criminal complaint against another person. See, e.g.,

White v. Apsley Rubber Co., 80 N.E. 500, 501 (Mass. 1907). But

malicious prosecution is by no means restricted to this paradigm.

2007), and we exercise that discretion here.

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 If an individual induces another person (say, a police

officer or prosecutor) to lodge formal criminal charges, he may be

held to have instituted the criminal proceedings. See, e.g., Jones

v. Schein, 103 N.E. 57, 58 (Mass. 1913); Tangney, 39 N.E. at 800.

So, too, if an individual either exercises a peculiar degree of

control over the charging official or adamantly presses that

official to bring a criminal complaint, he may be held responsible

for the institution of the prosecution. See, e.g., Seelig v.

Harvard Coop. Soc'y, 246 N.E.2d 642, 646 (Mass. 1969); Conway v.

Smerling, 635 N.E.2d 268, 271 (Mass. App. Ct. 1994).

These taxonomies are of scant solace to the plaintiffs.

The FBI neither preferred charges against the scapegoats nor swore

out a complaint against them. Moreover, there is not a shred of

evidence that the FBI induced the state to pursue the murder case.

The agents' primary interest was in preserving the secrecy of their

own sources. They did not demand that state actors bring charges

against the scapegoats; indeed, there is no evidence that they so

much as suggested that such charges should be brought.

Finally, though the agents assisted Barboza in shoring up

his false tale when inconsistencies came to light, that subsequent

assistance does not support a conclusion that the FBI "encouraged"

state actors to institute the Deegan prosecution. See Correllas,

572 N.E.2d at 10. Equally as important, that evidence does not

support the district court's findings, Limone IV, 497 F. Supp. 2d

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at 210, that the FBI controlled state actors and that the Deegan

prosecution was the functional equivalent of a federal prosecution.

Those findings were clearly erroneous. See Benham v. Lenox Sav.

Bank, 292 F.3d 46, 48 (1st Cir. 2002).

The plaintiffs' best argument is at the margins. There

is case law in Massachusetts indicating that an individual who

transmits untruthful information to an official with power to

charge sometimes may be said to have instituted an ensuing criminal

proceeding brought by that official. See, e.g., Ziemba v.

Fo'cs'le, Inc., 475 N.E.2d 1223, 1226 (Mass. App. Ct. 1985);

Carroll v. Gillespie, 436 N.E.2d 431, 439 (Mass. App. Ct. 1982);

see also Petricca v. City of Gardner, 429 F. Supp. 2d 216, 225 (D.

Mass. 2006). This does not mean, however, that every provider of

false information, nor even every bad-faith provider of false

information, may be said to have instituted an ensuing criminal

proceeding.

The question of whether such an individual has instituted

a criminal proceeding depends on the circumstances. The

controlling precedent is the ruling of the Massachusetts Supreme

Judicial Court (SJC) in Correllas, 572 N.E.2d at 10. Under that

decision, an individual may not be held to have instituted criminal

proceedings if he merely provides false information to law

enforcement officials in response to these officials' queries

during an ongoing investigation. See id.; see also Councilman v.

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Alibris, Inc., 386 F. Supp. 2d 5, 9 (D. Mass. 2005). Instead, the

information provider must take some initiative; that is, he must

voluntarily reach out to law enforcement officials and cause them

to commence a new line of inquiry. See Councilman, 386 F. Supp. 2d

at 9.

The court below concluded that the United States was

responsible for instituting criminal proceedings against the

scapegoats on the theory that the FBI, through Barboza, had become

a bad-faith provider of false information. Limone IV, 497 F. Supp.

2d at 207-13. This conclusion rests principally on two

considerations. First, agents Rico and Condon recruited, vetted,

and delivered Barboza to state authorities. Id. at 206. Second,

they knew that Barboza was not being truthful when he implicated

the scapegoats, yet they assisted Barboza in making his tale more

believable and encouraged him to stand by that tale through

incentives such as protection, promises of leniency, and financial

rewards. Id. at 179-80, 211, 217-18.

The record leaves no doubt but that the agents conducted

themselves deplorably. But we cannot agree that they can be said

to have "instituted" the criminal proceedings that ensued against

the scapegoats. The turning point is the SJC's analysis in

Correllas.

The record in this case makes pellucid that, during

interrogations conducted exclusively by Rico and Condon, Barboza

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made only passing reference to the Deegan homicide. He neither

mentioned the scapegoats nor offered any specific details about the

murder or the murderers. For their part, the agents exhibited no

particular interest in those subjects.

This void remained until state authorities began to take

part in the questioning. Barboza first offered the account that

would form the basis of the prosecution during an interview

conducted chiefly by Doyle and Walsh (Suffolk County detectives) on

September 8, 1967.4 That questioning came about as part of a

larger state investigation into the Deegan murder. By the time of

the September 8 interview, state investigators had visited Barboza

on at least four occasions and had asked him point-blank for

information pertaining to the Deegan murder.5 Even though federal

agents were present during these audiences, it seems to have been

the detectives, not the FBI, who first brought up, and then kept

digging into, the Deegan murder. See supra note 4.

So viewed, the record compels the conclusion that Barboza

furnished the false information that led to the institution of the

4
The FBI report of this interview indicates that Doyle
conducted the interview. Moreover, the substance of that FBI
report consists only of a copy of Doyle's interview notes. That
general scenario is characteristic of the FBI reports of subsequent
interrogation sessions at which the detectives were present.
5
Although Barboza would make alterations to the fairy tale
that he narrated on September 8, these alterations too came about
during joint interview sessions led by state law enforcement
officers.

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prosecution while under questioning by state agents investigating

a state crime. There is no evidence that the FBI brought Barboza

and state authorities together specifically so that he would talk

on the Deegan murder; indeed, Barboza offered information to state

authorities on various matters, including another murder he would

later testify about, before he answered questions regarding Deegan.

Moreover, there is no evidence that the FBI knew that Barboza would

concoct the bogus story that emerged. See Limone IV, 497 F. Supp.

2d at 217 (finding that Barboza had pulled "the [scapegoats'] names

out of thin air"). Although there is evidence that the FBI helped

to shore up Barboza's credibility as matters moved along, the

prosecution by then already had been instituted.

There is one loose end. The SJC has left open the

possibility that an individual may be held liable for malicious

prosecution if he pursues a prosecution after it has become clear

to him that there is no probable cause to support it. See

Gutiérrez v. MBTA, 772 N.E.2d 552, 562 (Mass. 2002); see also

Mitchell v. City of Boston, 130 F. Supp. 2d 201, 215 (D. Mass.

2001) (quoting Restatement (Second) of Torts § 655 (1977)). Given

the SJC's holding in Correllas, however, it is evident that the

mere provision of false information cannot alone ground a malicious

continuation finding. More is required, such as an insistence that

the prosecution go forward even after it has become clear that

probable cause is lacking. See, e.g., Miller v. City of Boston,

-22-
297 F. Supp. 2d 361, 367 (D. Mass. 2003); Restatement (Second) of

Torts § 655 cmt. c (1977).

Here, there is no evidence that FBI agents urged state

authorities to continue the ill-starred prosecution. Patently, the

agents' primary interest was in Barboza, not in prosecuting the

scapegoats. The mere fact that the agents propped up the state's

case (e.g., by bolstering Barboza's credibility) does not make the

FBI a "continuer" of the prosecution any more than the defendant in

Correllas (who gratuitously offered false data to the authorities

subsequent to the initiation of prosecution).

To sum up, we hold that the FBI did not institute

criminal proceedings against the scapegoats. See Correllas, 572

N.E.2d at 10. Thus, the plaintiffs have failed to prove the first

element of the tort of malicious prosecution. Consequently, the

district court erred in holding the United States liable for that

tort. Nevertheless, this conclusion does not end our odyssey. The

district court also found the government liable on other theories.

Hence, we proceed to the most promising of those parallel theories

of liability.

B. Intentional Infliction of Emotional Distress.

Under Massachusetts law, an individual is liable for

intentional infliction of emotional distress when he, "by extreme

and outrageous conduct and without privilege, causes severe

emotional distress to another." Agis v. Howard Johnson Co., 355

-23-
N.E.2d 315, 318 (Mass. 1976).6 The court below found that the

FBI's extreme and outrageous misconduct had caused the plaintiffs

to suffer severe emotional distress and, thus, imposed liability.

Limone IV, 497 F. Supp. 2d at 227.

The government does not contest that the tort of

intentional infliction of emotional distress, unlike malicious

prosecution, was actionable under the FTCA before the passage of

the law enforcement proviso. Instead, it suggests that the

district court lacked subject matter jurisdiction over the

plaintiffs' intentional infliction claims because those claims

arise out of malicious prosecution (a tort that was barred by the

version of the FTCA in effect at the time of the convictions). As

a fallback, the United States questions the factual predicate

underlying the district court's analysis. We treat these arguments

sequentially.

1. Subject Matter Jurisdiction. As said, Congress did

not waive the federal government's immunity from actions arising

out of malicious prosecution until it enacted the law enforcement

proviso in 1974. The government hypothesizes that the plaintiffs'

6
Agis is the seminal Massachusetts case recognizing a cause
of action for intentional infliction of emotional distress in the
absence of an accompanying physical injury. Although the
scapegoats' convictions predate this decision, the United States
has not ascribed any relevance to this chronology. Thus, we deem
waived any contention that the government cannot be held liable
under the FTCA on a tort theory that was not firmly established in
the case law of the relevant state at the time of the tortious
acts.

-24-
intentional infliction claims arise out of a maliciously instigated

prosecution that occurred before the enactment of this proviso and,

therefore, the district court lacked competence to adjudicate those

claims. We do not accept that hypothesis.

Although courts (including this court) sometimes have

referred loosely to section 2680(h) as an "intentional torts"

exception to the general waiver contained in the FTCA, see, e.g.,

Rodríguez v. United States, 54 F.3d 41, 44 (1st Cir. 1995), the

provision only preserves the federal government's immunity with

respect to claims arising out of certain enumerated torts, see

Santiago-Ramírez v. Sec'y of Def., 984 F.2d 16, 20 (1st Cir. 1993);

Black v. Sheraton Corp., 564 F.2d 531, 539-40 (D.C. Cir. 1977).

Because intentional infliction of emotional distress never has been

on the roster of excluded torts listed in section 2680(h),

intentional infliction claims are not per se barred by that

provision. See Estate of Trentadue ex rel. Aguilar v. United

States, 397 F.3d 840, 854-55 (10th Cir. 2005); Sabow v. United

States, 93 F.3d 1445, 1457 (9th Cir. 1996); Truman v. United

States, 26 F.3d 592, 595 (5th Cir. 1994); Santiago-Ramírez, 984

F.2d at 20; Kohn v. United States, 680 F.2d 922, 926 (2d Cir.

1982); Gross v. United States, 676 F.2d 295, 304 (8th Cir. 1982).

Be that as it may, the reach of section 2680(h) is not

limited to specifically enumerated torts. Rather, that provision

deprives a district court of jurisdiction over a claim whenever the

-25-
claim is, or arises out of, a specifically enumerated tort. See,

e.g., Snow-Erlin v. United States, 470 F.3d 804, 808-09 (9th Cir.

2006) (holding particular claim arose out of false imprisonment);

O'Ferrell v. United States, 253 F.3d 1257, 1265-66 (11th Cir. 2001)

(holding particular claim arose out of slander). This framework

applies to claims for intentional infliction of emotional distress.

See, e.g., Metz v. United States, 788 F.2d 1528, 1534-35 (11th Cir.

1986).

The approach that we have outlined necessitates a fact-

sensitive, case-specific inquiry. In performing that tamisage,

substance trumps form; an inquiring court must look past the

nomenclature employed by the plaintiff and focus on the actual

nature of the plaintiff's grievance. See Jiménez-Nieves v. United

States, 682 F.2d 1, 6 (1st Cir. 1982). If that grievance rests on

proof of conduct that traditionally comprises an excepted tort,

section 2680(h) precludes suit. See, e.g., Snow-Erlin, 470 F.3d at

808-09; Truman, 26 F.3d at 595; Thomas-Lazear v. FBI, 851 F.2d

1202, 1207 (9th Cir. 1988).

On the other hand, if there is merely a loose connection,

a family resemblance, or even a partial overlap between the conduct

on which the asserted claim rests and that comprising an excepted

tort, the claim is not barred by section 2680(h). See Block v.

Neal, 460 U.S. 289, 298 (1983). It follows that when an element of

an excepted tort is missing from the factual scenario, the claim is

-26-
not pretermitted. See Estate of Trentadue, 397 F.3d at 855

(holding intentional infliction claim not barred by

misrepresentation exception because elements of misrepresentation,

including reliance and pecuniary loss, were not present); Truman,

26 F.3d at 596 (holding intentional infliction claim not barred by

assault or battery exceptions because elements of these latter

torts were not alleged); Jiménez-Nieves, 682 F.2d at 4-5 (holding

negligence claim not barred by misrepresentation exception because

reliance not present).

In the instant case, the plaintiffs failed to prove that

the FBI instituted criminal proceedings against the scapegoats, see

supra Part II(A), and thus failed to prove an essential element of

the tort of malicious prosecution. Furthermore, the conduct

undergirding the plaintiffs' claims for intentional infliction of

emotional distress is broader than that traditionally associated

with the tort of malicious prosecution in that it includes

malfeasance that postdates the scapegoats' convictions, such as

efforts by the FBI to cover up its misdeeds (a topic to which we

shall return). And, finally, the plaintiffs' intentional

infliction claims require proof not only that the FBI's conduct was

something akin to malicious, but also that it was extreme and

outrageous. Agis, 355 N.E.2d at 318. These are substantive

distinctions. See Foley v. Polaroid Corp., 508 N.E.2d 72, 82

(Mass. 1987).

-27-
 We conclude that the conduct underlying the plaintiffs'

claims for intentional infliction of emotional distress neither

comprises malicious prosecution nor arises out of malicious

prosecution in the requisite sense.7

The government labors to undercut this reasoning by

noting that the plaintiffs pleaded claims of malicious prosecution

arising out of essentially the same facts that supported their

intentional infliction claims. The plaintiffs' intentional

infliction claims, they suggest, are barred by this

characterization.

This suggestion is more cry than wool. The plaintiffs

had the right to plead alternative theories of liability, see Fed.

R. Civ. P. 8(d), and their exercise of that right did not debar

them from an independent review of each set of claims. See Dedham

Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1157-58

(1st Cir. 1989).

In a related vein, the government posits that because the

district court found that the same damages flowed from both the

alleged malicious prosecution and the alleged intentional

infliction of emotional distress, Limone IV, 497 F. Supp. 2d at 245

& n.208, the latter claims necessarily arise out of the former.

This is sophistry, pure and simple. The proper inquiry focuses

7
The district court's finding of malicious prosecution does
not require a different result. That finding was incorrect as a
matter of law, see supra Part II(A), and is entitled to no weight.

-28-
upon the actor's tortious conduct, not the plaintiff's damages.

See Truman, 26 F.3d at 595; Gross, 676 F.2d at 304; Black, 564 F.2d

at 540-41; see also Rayonier Inc. v. United States, 352 U.S. 315,

320 (1957) (warning against "read[ing] exemptions into the [FTCA]

beyond those provided by Congress").

To say more on this point would be supererogatory. We

hold that, section 2680(h) notwithstanding, the district court had

subject matter jurisdiction to adjudicate the claims for

intentional infliction of emotional distress.

2. The Merits. To make out a claim for intentional

infliction of emotional distress under Massachusetts law, a

claimant must prove:

(1) that the [defendant] intended to inflict
emotional distress or that he knew or should
have known that emotional distress was the
likely result of his conduct; (2) that the
conduct was extreme and outrageous, was beyond
all possible bounds of decency and was utterly
intolerable in a civilized community; (3) that
the actions of the defendant were the cause of
the plaintiff's distress; and (4) that the
emotional distress sustained by the plaintiff
was severe and of a nature that no reasonable
man could be expected to endure it.

Agis, 355 N.E.2d at 318-19 (citations and internal quotation marks

omitted). The court below determined that the plaintiffs had

proven these four elements by a preponderance of the evidence.

Limone IV, 497 F. Supp. 2d at 227. In the court's view, the FBI

had participated willingly in framing the scapegoats, and then

scrambled to cover up the frame job by obstructing the scapegoats'

-29-
efforts to clear their names. Id. The court found this conduct

"intentional," "outrageous," "beyond all bounds of decency," and to

have "no place in a civilized community." Id. The consequent

emotional distress was "so severe and of such a nature that no

reasonable person could be expected to endure it." Id.

The government raises a host of record-based challenges

to this series of findings. Because these appeals follow a bench

trial, we review the lower court's factfinding for clear error.

Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir.

1990); Fed. R. Civ. P. 52(a). Consonant with that standard, we

will not "upset findings of fact or conclusions drawn therefrom

unless, on the whole of the record, we form a strong, unyielding

belief that a mistake has been made." Cumpiano, 902 F.2d at 152.

As a threshold matter, the government questions whether

we should use an unadulterated standard of clear-error review. It

regards this standard as inapposite because the district court

relied principally upon documentary evidence in constructing its

findings and conclusions. We reject that argument out of hand.

In Anderson v. City of Bessemer City, the Supreme Court

considered whether, under Rule 52(a), an appellate tribunal may

review de novo findings of fact not bottomed on credibility

determinations. 470 U.S. 564, 573-74 (1985). The Court concluded

that the clearly erroneous standard loses none of its vigor "even

when the [lower] court's findings do not rest on credibility

-30-
determinations, but are based instead on physical or documentary

evidence or inferences from other facts." Id. at 574. The

application of clear-error review to findings drawn from a paper

record has long been the practice in this circuit. See, e.g.,

Reliance Steel Prods. Co. v. Nat'l Fire Ins. Co., 880 F.2d 575, 576

(1st Cir. 1989); Boroff v. Tully (In re Tully), 818 F.2d 106, 108-

09 (1st Cir. 1987). That is the practice to which we adhere today.

With the standard of review nailed down, we turn to the

government's multi-faceted critique of the trial court's

factfinding. To begin, the government takes umbrage with the

court's conclusion that the FBI's misconduct was extreme and

outrageous. But that conclusion seems rock-solid: it is premised

on the court's determination that FBI agents knowingly participated

in the events leading to the wrongful indictment, prosecution,

conviction, and continued incarceration of the scapegoats. Limone

IV, 497 F. Supp. 2d at 227. This determination rests on three

building blocks: that the FBI (i) knew Barboza was dissembling when

he implicated the scapegoats in Deegan's murder; (ii) assisted

Barboza in selling his lies to state authorities and encouraged him

to stick to them; and (iii) covered up its misdeeds post-conviction

by hindering the scapegoats' efforts to obtain relief. The

government challenges each of these building blocks.

As an initial matter, the district court's determination

that FBI agents knew that the scapegoats were strangers to the

-31-
Deegan slaying is not a necessary prerequisite to its finding of

extreme and outrageous conduct. The SJC has made pellucid that

such a finding may be grounded either on actual knowledge or on a

defendant's deliberate disregard of a substantial probability that

his actions will produce severe emotional distress. Simon v.

Solomon, 431 N.E.2d 556, 561-62 (Mass. 1982); see Restatement

(Second) of Torts § 46 cmt. i (1965). Thus, the FBI may not hide

behind an assertion that it remained (wilfully) blind to the

scapegoats' innocence. And though actual knowledge is not a

necessary finding, the district court's finding of actual knowledge

is obviously sufficient.

Moreover, that finding is unassailable. The record

contains adequate evidence from which a reasonable factfinder could

conclude — as did the district court — that the FBI knew that the

scapegoats were not involved in the slaying.

The district court painstakingly reviewed the

intelligence in the FBI's possession at the relevant time. See

Limone IV, 497 Supp. 2d at 172-77. In the days and months leading

up to Deegan's murder, the FBI learned from the Patriarca bug and

from its Top Echelon informants that Barboza and Flemmi — not

Limone or Tameleo — had requested permission to murder Deegan and

that Patriarca (the head of the LCN) had blessed the hit. On the

day following the murder, a highly reliable Top Echelon informant

told agent Rico that Flemmi had bragged about killing Deegan with

-32-
the help of French, Martin, Cassesso, and Barboza. This

enumeration of the participants in the murder was repeated and

confirmed through various informants and conversations picked up by

the Patriarca bug. Much of this information was catalogued in

memoranda, airtels, and correlator reports,8 a number of which were

either authored or initialed as read by Rico and Condon. Under

these circumstances, one would have to believe in the tooth fairy

to believe that the agents did not know the identities of the real

killers.

Relatedly, Barboza's accusation that Limone and Tameleo

had orchestrated the hit did not jibe with information that the FBI

had gleaned from the Patriarca bug. When requesting Patriarca's

permission to carry out the hit, Barboza and Flemmi made no mention

of any prior authorization given by Limone and Tameleo. And,

tellingly, the Patriarca bug showed that Limone, rather than

ordering the hit, had tried to warn Deegan that violence might be

in the offing. Rico and Condon turned a blind eye to these

contradictions.

There is other evidence as well. When Barboza first

spoke with Rico and Condon in March of 1967, he made it plain that

he would not incriminate Flemmi. The FBI had reliable intelligence

8
An airtel is an inter-office FBI communique sent between a
local field office and FBI headquarters. A correlator report is a
document that summarizes all the pertinent information possessed by
a field office concerning a particular person or subject.

-33-
linking Flemmi to the Deegan murder; Barboza's enumeration of a

cast of participants that did not include Flemmi, especially when

coupled with his avowed intent to shield Flemmi, surely should have

convinced the agents that they were not getting the whole story.

What is more, a local police officer had seen a balding

individual matching Flemmi's description in the back seat of

Martin's car at around the time of the killing. When Barboza

learned of the officer's observations, he suddenly "remembered"

that Salvati, whom he had previously placed in the back seat of

Martin's automobile, was wearing a bald wig. Given what the agents

knew, this convenient improvisation was a red flag that should have

triggered their suspicions.

Indeed, there is compelling reason to believe that FBI

agents assented to the omission of Flemmi's name in order to

further their own agenda. After all, the FBI formally targeted him

as a Top Echelon informant three days prior to Deegan's murder and

officially assigned him to Rico on the very day that Deegan was

killed. An FBI memorandum written in June of that year rated the

quality of Flemmi's information as good. Even after the FBI

dropped Flemmi from the ranks of its informants in September of

1965, it had a powerful incentive to keep him out of prison; his

brother, Stephen, became a Top Echelon informant around that time

and remained in that status for many years. See Flemmi, 225 F.3d

at 80-82.

-34-
 The FBI's willingness to accept Barboza's narrative at

face value is especially troubling because Barboza exhibited a

similar lack of consistency in his account of Greco's supposed

involvement in the crime. When law enforcement officers were

unable to corroborate Barboza's insistence that Greco was present

at the Ebb Tide and had left with the rest of the men that Barboza

had fingered, Barboza reversed his field and claimed to have

"remembered" that Greco joined the others at a later time.

From this and other information in the record, it is

transparently clear that the district court had a sturdy foundation

for its finding that the FBI knew at the time that Barboza's story

was riddled with inconsistencies. The court was entitled to view

that knowledge in light of a wealth of FBI intelligence indicating

that the scapegoats were not part of the band of miscreants who

carried out the murder plot. Although the evidence does not compel

the conclusion that the FBI knew that the scapegoats were

uninvolved, it is enough to ground a reasonable inference to that

effect.

The government likewise challenges the district court's

determination that the FBI aided Barboza in framing the scapegoats.

In this regard, the government argues that the FBI did no more than

gift-wrap Barboza and hand him over to state authorities (who then

made an independent decision to prosecute the scapegoats). The

-35-
record supports the district court's determination regarding the

FBI's culpability.

To be sure, there is no evidence that the FBI spoon-fed

the scapegoats' names to Barboza. For aught that appears, the

fictional tale sprang directly from the informant's brow. But

there is evidence that, once Barboza gave the scapegoats' names to

the Suffolk County detectives, the FBI assisted him in doctoring

his tale to make it seem more believable. For example, as we have

said, Barboza modified his initial version of the facts to

accommodate other information possessed by the authorities. The

district court concluded that Barboza made these alterations

because the FBI had made him aware of contradictory evidence in the

hands of state officials. Limone IV, 497 F. Supp. 2d at 179-80.9

There was also evidence tending to show that the FBI

helped to "sell" Barboza's tale both to state authorities and to

the jury. The prosecutor, Zalkind, testified that the FBI had told

him that Barboza's account "checked out." Agent Condon testified

at the murder trial, vouchsafing that he was careful not to impart

any information about the murder investigation to Barboza because

9
The government seizes upon a statement in the district
court's opinion suggesting that state officials may have shared in
the responsibility for showing Barboza their investigative files.
See Limone IV, 497 F. Supp. 2d at 180 ("Someone in law enforcement
had to have done so, either the FBI directly or state law
enforcement in the FBI's presence."). But the court's opinion,
fairly read, attributes primary responsibility for shoring up
Barboza's testimony to the FBI. See, e.g., id. at 179, 180.

-36-
he (Condon) always was concerned about assuring the "purity" of

testimony given by his informants. But the district court

rejected this testimony and supportably found that Condon knew at

the time that Barboza was spinning a yarn about the scapegoats'

involvement in the murder. Id. at 186.

Equally as important, the FBI interposed no disincentives

that might have deterred Barboza from standing by his bogus story.

The Bureau continued to coddle Barboza. Among other things, the

FBI pledged to bring Barboza's cooperation to the attention of

relevant authorities, extended protection to him and his family,

and promised to give him money and a fresh start on the other side

of the continent. The "habitual offender" charges that Barboza was

facing when he first began cooperating were dropped, and Barboza

received only a one-year sentence for his role in Deegan's murder.

The government attempts to absolve itself of

responsibility for the scapegoats' plight by piously asserting that

the FBI turned over all relevant information to state authorities.

In this regard, it points to three memoranda. The first is a

memorandum from the FBI director dated March 16, 1965, which

instructs the Boston office to disclose to local authorities

information pertaining to the Deegan murder to the extent that

divulgement is consistent with the complete security of the

Patriarca bug. A handwritten notation on that memorandum indicates

that full disclosure already had taken place. The second, a

-37-
memorandum authored by Rico on March 15, 1965, indicates that a Top

Echelon informant had told him that Flemmi, French, Martin,

Cassesso, and Barboza had murdered Deegan, and states that this

information had been transmitted to local authorities. The third

is a memorandum written on March 24 of the same year by the special

agent in charge of the FBI's Boston office; that memorandum

essentially replicates the Rico memorandum.

On their face, these memoranda bolster the government's

argument. But the memoranda do not exist in a vacuum. The district

court found that, to the extent the FBI did volunteer information

to state authorities in 1965, that information was general in nature

and already within the state's ken. See id. at 174-75 & n.73. This

finding was not clearly erroneous. The local police had Flemmi,

French, Martin, Cassesso, and Barboza in their sights from the

earliest stages of their investigation, and the three FBI memoranda,

whether read separately or in the ensemble, do not suggest that the

reliability of the FBI's sources was communicated to the state. To

the contrary, the director's memorandum instructed that the

Patriarca bug remain secret.

The gaps in the record are also telling. For instance,

there is absolutely no evidence indicating that the Boston-based FBI

agents, whatever instructions they may have received, actually

divulged any information to state officials at the time of the

killing in March 1965 or during Barboza's debriefing in 1967 and

-38-
1968. In fact the state prosecutor, Zalkind, testified in the

district court that he had not seen any of the FBI documents

containing exculpatory evidence when he forged ahead with the

prosecution. He also denied that this evidence had been

communicated to him in any other form. Given Zalkind's testimony,

we cannot set aside the district court's finding that the FBI agents

failed to provide relevant exculpatory information. See, e.g.,

United States v. Natanel, 938 F.2d 302, 313 (1st Cir. 1991)

(emphasizing that "the district court must be given wide rein to

assess the evidence and judge the credibility of witnesses").

The district court's finding that the FBI covered up its

perfidy by stonewalling the scapegoats' post-conviction efforts to

win their freedom is equally unimpugnable. The government argues

that the alleged coverup consisted of nothing more than a failure

to provide state officials with exculpatory materials and that such

a failure cannot ground a claim under the FTCA. See Bolduc, 402

F.3d at 59 (holding that negligent failure to disclose Brady

materials is not actionable); see also Brady v. Maryland, 373 U.S.

83, 87 (1963). This argument veers well wide of the mark. Here,

the government's post-conviction misconduct consisted of more than

failing to turn over exculpatory materials to state authorities; the

government took positive steps to ensure that the scapegoats

remained behind bars.

-39-
 For example, in mid-1970 Barboza, represented by new

counsel, signed a sworn affidavit in which he recanted certain

portions of his trial testimony relating to the scapegoats' guilt.

His lawyer then requested permission to have a lie detector test

administered. Shortly thereafter, two federal prosecutors visited

Barboza, who retracted his recantation. Despite the obvious

importance of these developments, the FBI agents failed either to

conduct an investigation into the recantation or to brief their

state counterparts about it.

Other examples abound. Among other things, the FBI told

state authorities who were considering petitions for commutation

and/or parole that Limone, Greco, and Salvati had continuing ties

to organized crime. The FBI even went so far as to have agents

visit the office of a parole board member to voice opposition to

Limone's petition for commutation. Moreover, the record makes

manifest that the court below regarded the Brady violation (that is,

the FBI's failure to disclose exculpatory information in a timely

manner) as "part of a broader scheme to put Barboza forward as a

witness no matter the cost, even if it meant framing the

plaintiffs." Limone IV, 497 F. Supp. 2d at 222. The government's

after-the-fact attempt to conceal what it had done became part of

the same scheme. Id. at 202.

The SJC has made it abundantly clear that claims for

intentional infliction of emotional distress may be founded on a

-40-
pattern of misconduct. See, e.g., Boyle v. Wenk, 392 N.E.2d 1053,

1055 (Mass. 1979). Thus, it was appropriate for the district court,

on a pattern of conduct theory, to weigh the significance of the

FBI's failure to provide state authorities with exculpatory

evidence. See, e.g., Burrell v. Adkins, No. 01-2679, 2007 WL

4699166, at *18 (W.D. La. Oct. 22, 2007).

The evidence supports the district court's finding that

a coverup occurred. Despite contemporaneous requests by state

officials for information bearing upon the scapegoats' petitions for

post-conviction relief, the FBI remained mute — and worse. That

recalcitrance is especially damning in the circumstances of this

case — a case in which the FBI's deliberate misconduct had placed

the scapegoats in harm's way. See Commonwealth v. Levesque, 766

N.E.2d 50, 56 (Mass. 2002) (explaining that "a duty to prevent harm

to others arises when one creates a dangerous situation, whether

that situation was created intentionally or negligently");

Restatement (Second) of Torts § 321 (1965) (similar).

To recapitulate, the district court supportably determined

that the FBI knew that the scapegoats were uninvolved in the Deegan

murder from the moment that Barboza implicated them. The FBI agents

nonetheless assisted Barboza in embellishing his apocryphal tale,

helped him to sell that tale to state authorities and the jury, and

covered up their perfidy by stonewalling the scapegoats' petitions

for post-conviction relief. The district court concluded that this

-41-
pattern of conduct was extreme and outrageous, Limone IV, 497 F.

Supp. 2d at 227, and we may upset that conclusion only if reasonable

minds would be compelled to reach the opposite conclusion, see

Jackson, 156 F.3d at 232-33; see also Boyle, 392 N.E.2d at 1056-57.

Applying that standard, the conclusion that the government indulged

in extreme and outrageous conduct must stand. See, e.g., Pitt v.

Dist. of Columbia, 491 F.3d 494, 506 (D.C. Cir. 2007); Wagenmann v.

Adams, 829 F.2d 196, 214 (1st Cir. 1987); Newton v. City of New

York, 566 F. Supp. 2d 256, 281 (S.D.N.Y. 2008); Harris v. Harvin,

No. 01-2292, 2005 WL 2461876, at *2 (Mass. Super. Ct. Aug. 4, 2005);

Sarvis v. Boston Safe Deposit & Trust Co., No. 94-1215, 1994 WL

879797, at *3 (Mass. Super. Ct. June 6, 1994).

We need not linger long over the finding of

intentionality. Limone IV, 497 F. Supp. 2d at 227. Common sense

suggests that the FBI's deliberate acts and omissions were likely

to lead to the wrongful conviction and incarceration of the

scapegoats (and, thus, the consequent emotional distress). That is

exactly what transpired. Accordingly, the district court had an

ample predicate from which to infer that the FBI knew that its

misconduct was likely to cause emotional distress. See, e.g.,

Wagenmann, 829 F.2d at 214.

In a variation on this theme, the government contends that

it cannot be held legally responsible for causing the emotional

distress that occurred here. All that the FBI did, it reasons, was

-42-
to hand a witness to state authorities, who then exercised their

independent discretion in bringing that witness before a grand jury

and a petit jury. In the government's view, the state's decision

to pursue the murder case and the trial jurors' decision to convict

are intervening acts that broke the causal chain.

Causation is a factbound issue and, as such, is normally

left to the trier. Peckham v. Cont'l Cas. Ins. Co., 895 F.2d 830,

837 (1st Cir. 1990); Mullins v. Pine Manor Coll., 449 N.E.2d 331,

338 (Mass. 1983). The causation inquiry has two components: proof

that the harm would not have occurred but for the defendant's

misconduct, see Glidden v. Maglio, 722 N.E.2d 971, 974-75 (Mass.

2000), and proof that the defendant was a proximate cause of the

harm, see Kent v. Commonwealth, 771 N.E.2d 770, 777 (Mass. 2002).

These two components may be thought of as causation in fact and

legal causation.

In this instance, the district court's causation-in-fact

analysis, Limone IV, 497 F. Supp. 2d at 227, is ironclad. Given the

aid and encouragement that the FBI afforded Barboza and its

exclusive possession of exculpatory evidence that probably would

have rescued the scapegoats from wrongful conviction, the finding

that the FBI's misconduct constituted a but-for cause of the

scapegoats' plight is fully sustainable. See Burke v. McDonald, 572

F.3d 51, 58 (1st Cir. 2009) (ruling that police officer could be

-43-
said to have "caused" plaintiff's confinement without bail if jury

found that he suppressed exonerating DNA evidence).

The second component of the causation inquiry requires

elaboration. Under Massachusetts law, proximate cause turns largely

on the foreseeability of the harm.10 See Wagenmann, 829 F.2d at

214; Kent, 771 N.E.2d at 777. Intervening acts of a third party

will not break the causal chain if those acts were reasonably

foreseeable. Copithorne v. Framingham Union Hosp., 520 N.E.2d 139,

142-43 (Mass. 1988); Gidwani v. Wasserman, 365 N.E.2d 827, 830-31

(Mass. 1977).

In the case at bar, the district court concluded that the

indictment, prosecution, conviction, and incarceration were all

reasonably foreseeable results of the FBI's misconduct. Limone IV,

497 F. Supp. 2d at 227. That conclusion strikes us as virtually

inescapable. The so-called "intervening acts" — notably, the

state's decision to prosecute and the jury's decision to convict —

were well within the realm of reasonable expectations once the

government took steps to prop up Barboza's credibility and conceal

exculpatory evidence. See Burke, 572 F.3d at 58-61.

10
The most recent draft restatement suggests that an
intentional tortfeasor should be deemed the legal cause of any harm
that he intends to inflict without reference to the foreseeability
of that harm. See Restatement (Third) of Torts: Liability for
Physical Harms § 33 (Proposed Final Draft No. 1, 2005). The SJC
has not spoken to this proposal and, given the foreseeability of
the harm flowing from the FBI's misconduct, we need not decide
whether section 33 applies here.

-44-
 This leaves the fourth and final element of the tort: that

the scapegoats suffered severe emotional distress. The government

does not challenge the district court's finding to this effect, nor

could it credibly do so. On this record, it is unarguable that the

wrongful indictment, prosecution, conviction, and incarceration

caused the victims severe emotional distress. Therefore, the

plaintiffs satisfied their burden of proving all the elements of

their claims for intentional infliction of emotional distress.11

C. The Discretionary Function Exception.

Regardless of the invulnerability of the district court's

findings on the elements of the intentional infliction claims, we

must address yet another issue bearing upon liability. The

government invokes the FTCA's discretionary function exception as a

further defense. It argues, in essence, that the conduct on which

11
In Massachusetts, a cause of action for intentional
infliction of emotional distress may succeed only if the defendant
has intentionally inflicted severe emotional distress "without
privilege." Agis, 355 N.E.2d at 318. The government did not
argue, either in the district court or in its briefs on appeal,
that its conduct was privileged. Consequently, its assertion of
privilege for the first time at oral argument in this court is too
little and too late. See United States v. Slade, 980 F.2d 27, 30
(1st Cir. 1992) ("It is a bedrock rule that when a party has not
presented an argument to the district court, she may not unveil it
in the court of appeals."); Anderson v. Beatrice Foods Co., 900
F.2d 388, 397 (1st Cir. 1990) (holding that an appellant's briefs
fix the scope of the issues appealed and that, therefore, an
appellant cannot breathe life into an omitted theory merely by
referring to it at oral argument); see also McCullen v. Coakley,
571 F.3d 167, 182 (1st Cir. 2009) (holding that theory advanced by
a member of the court at oral argument, but neither briefed nor
raised below, is waived).

-45-
the intentional infliction claims is based involves the performance

or failure to perform discretionary functions on the part of

government actors. See 28 U.S.C. § 2680(a); see also Irving v.

United States, 162 F.3d 154, 162 (1st Cir. 1998) (en banc).

We afford de novo review to a district court's

determination that the discretionary function exception does or does

not apply. Fothergill v. United States, 566 F.3d 248, 251 (1st Cir.

2009); Irving, 162 F.3d at 162. We start by identifying the

particular conduct giving rise to the claims at issue. See

Fothergill, 566 F.3d at 252-53; Muñiz-Rivera v. United States, 326

F.3d 8, 15 (1st Cir. 2003). Here, that conduct consists of

assisting Barboza to frame the scapegoats for a capital crime and

covering up the frame job by withholding exculpatory information

from state officials.

Having identified the conduct at issue, we move to a

binary inquiry designed to reveal whether Congress sought to shield

that conduct from liability. Bolduc, 402 F.3d at 60. This inquiry

seeks to ascertain, first, if the conduct "involves an element of

judgment or choice" for the actor. Berkovitz v. United States, 486

U.S. 531, 536 (1988). Then, so long as the conduct involved a

matter of judgment or choice — that is, so long as it was

discretionary in nature — the inquiry seeks to ascertain whether

that judgment or choice was susceptible to policy-related analysis.

Id. at 536-37.

-46-
 It is elementary that the discretionary function exception

does not immunize the government from liability for actions

proscribed by federal statute or regulation. Bolduc, 402 F.3d at

60. Nor does it shield conduct that transgresses the Constitution.

See Castro v. United States, 560 F.3d 381, 389 (5th Cir. 2009)

(collecting cases); Thames Shipyard & Repair Co. v. United States,

350 F.3d 247, 254-55 (1st Cir. 2003) (same). The district court

determined that the FBI's conduct in this case violated the

Constitution as well as Department of Justice guidelines. Limone

IV, 497 F. Supp. 2d at 203-04.

The government demurs. It insists that decisions

concerning the conduct and course of law enforcement investigations,

including decisions as to whether and how informants should be

employed, are generally discretionary. See, e.g., Kelly v. United

States, 924 F.2d 355, 362 (1st Cir. 1991); Pooler v. United States,

787 F.2d 868, 871 (3d Cir. 1986). Relatedly, the government argues

that it possessed discretion to withhold exculpatory information

from state prosecutors in order to protect the security of its

sources. See, e.g., Ga. Cas. & Sur. Co. v. United States, 823 F.2d

260, 262-63 (8th Cir. 1987); see also Taglianetti v. United States,

398 F.2d 558, 572 (1st Cir. 1968) (recognizing that government

possesses "substantial interest in preserving the secrecy of its

investigation"). Given these foundational propositions, the

government exhorts us to conclude that the conduct upon which the

-47-
plaintiffs' intentional infliction claims rests must perforce be

discretionary.

This exhortation operates at too high a level of

generality. Viewed from 50,000 feet, virtually any action can be

characterized as discretionary. But the discretionary function

exception requires that an inquiring court focus on the specific

conduct at issue. See Berkovitz, 486 U.S. at 546-47; Trevino v.

Gen. Dynamics Corp., 865 F.2d 1474, 1484 (5th Cir. 1989). Here,

when the FBI's conduct is examined in context, warts and all, any

illusion that the conduct was discretionary is quickly dispelled.

To use a phrase popularly attributed to Lawrence "Yogi"

Berra, much of this is déjà vu all over again.12 In Limone II, we

held that the plaintiffs' allegations that FBI agents had

participated in framing them and had withheld exculpatory evidence

to cover up their malefactions stated a clear violation of due

process. 372 F.3d at 44-50. The plaintiffs proved the substance of

these allegations. See Limone IV, 497 F. Supp. 2d at 227.

Consequently, the conduct was unconstitutional and, therefore, not

within the sweep of the discretionary function exception.13

12
But see Ralph Keyes, Nice Guys Finish Seventh; Phrases,
Spurious Sayings and Familiar Misquotations 152 (1992) (noting that
"although this [phrase] is commonly cited as a 'Berra-ism,' Yogi
Berra denies ever saying it").
13
In so holding, we do not view the FBI's constitutional
transgressions as corresponding to the plaintiffs' causes of action
— after all, the plaintiffs' claims are not Bivens claims — but
rather, as negating the discretionary function defense. See

-48-
 This holding ends our discussion of liability. We

conclude that the district court possessed subject matter

jurisdiction over the plaintiffs' claims for intentional infliction

of emotional distress and that the plaintiffs proved those claims.

Because the district court determined that the same damages flowed

from all of the torts alleged, we need not inquire whether the

plaintiffs also proved their claims of conspiracy, negligence,

and/or negligent supervision. Only questions pertaining to damages

remain.

D. Damages.

The district court made the damage awards listed in the

appendix to this opinion. These awards total $101,750,000. The

government argues that the court's approach was wrongheaded and that

the assessed damages are excessive. In a cross-appeal Greco's son,

Edward, contends that the court awarded him insufficient damages.

The weight of authority indicates that damage awards under

the FTCA are subject to clear-error review. See, e.g., Davis v.

United States, 375 F.3d 590, 591 (7th Cir. 2004); Lebron v. United

States, 279 F.3d 321, 325 (5th Cir. 2002); Duplan v. Harper, 188

F.3d 1195, 1202 (10th Cir. 1999); Whitley v. United States, 170 F.3d

1061, 1079 (11th Cir. 1999); Bartleson v. United States, 96 F.3d

1270, 1274 (9th Cir. 1996). This court has lent its voice to that

Bolduc, 402 F.3d at 56 ("Federal constitutional or statutory law
cannot function as the source of FTCA liability.").

-49-
chorus. See Soto v. United States, 11 F.3d 15, 18 (1st Cir. 1993).

But this description oversimplifies the matter. The standard of

review, at least insofar as it pertains to awards of non-economic

damages, is more nuanced. See Neyer v. United States, 845 F.2d 641,

644-45 (6th Cir. 1988).

In that context, the appropriate standard of review

actually has three facets. Raw findings of fact are reviewed for

clear error. Reilly v. United States, 863 F.2d 149, 166 (1st Cir.

1988). Claimed errors of law engender de novo review. Soto, 11

F.3d at 17. The third facet of the standard of review relates to

matters of judgment, which are reviewed for abuse of discretion.

See Davis, 375 F.3d at 592 (using language consistent with abuse of

discretion standard); Soto, 11 F.3d at 18 (similar).

These differentiated aspects of the standard of review are

designed to operate in a synchronized fashion. Thus, in an FTCA

case that involves non-economic damages, an appellate court reviews

facts found by the trial judge (such as the existence and nature of

the harm suffered) for clear error. See Doe v. United States, 976

F.2d 1071, 1083 (7th Cir. 1992); Reilly, 863 F.2d at 166. At the

same time, the court assays the reasonableness of the trial judge's

monetization of that harm — a classic example of a judgment call —

under an abuse of discretion standard. See Wilkinson v. United

States, 564 F.3d 927, 934 (8th Cir. 2009). Within that rubric, the

court evaluates the trial judge's assumptions as to purely legal

-50-
matters de novo. Cf. Rosario-Urdaz v. Rivera-Hernández, 350 F.3d

219, 221 (1st Cir. 2003) (explaining that, in the preliminary

injunction context, an error of law is a per se abuse of

discretion). We apply this nuanced standard of review in examining

the damage awards about which the government complains.

We cut directly to the chase. The district court's

findings of fact as to the existence, nature, and quantum of the

harm sustained by the scapegoats are not clearly erroneous — indeed,

those findings are largely uncontested on appeal. Our inquiry,

therefore, centers on the reasonableness of the awards. As

explained above, abuse of discretion review applies to that issue.

Under abuse of discretion review, an appellate court ought

not disturb an award of non-economic damages unless the award is

either grossly disproportionate to the proven injuries or trenches

upon a miscarriage of justice. See Wilkinson, 564 F.3d at 934;

Neyer, 845 F.2d at 644; see also Tobin v. Liberty Mut. Ins. Co., 553

F.3d 121, 144 (1st Cir. 2009) (discussing gross disproportionality

in remittitur context); doCanto v. Ametek, Inc., 328 N.E.2d 873, 880

(Mass. 1975) (similar). Though this standard is daunting, we have

the authority to reduce a judge's award of non-economic damages if

that award is so extravagant as to shock our collective conscience.

See, e.g., Delph v. Dr. Pepper Bottling Co. of Paragould, Inc., 130

F.3d 349, 357-58 (8th Cir. 1997); Trevino v. United States, 804 F.2d

1512, 1515 (9th Cir. 1986).

-51-
 We approach the awards at issue here mindful that, in an

FTCA case, both the nature of allowable damages and the measure of

those damages are drawn from state law. Davis, 375 F.3d at 591;

Lebron, 279 F.3d at 326 n.4. Under Massachusetts law, the proper

measure of damages is, within wide limits, committed to the sound

discretion of the trier of fact. See Bartley v. Phillips, 57 N.E.2d

26, 31 (Mass. 1944).

Broad discretion, however, is not to be confused with

unbounded discretion. The SJC, recognizing the difficulty of

placing a particular dollar value on emotional injuries, has

admonished courts to strive to identify a sum that "relate[s]

reasonably to the emotional distress suffered by the plaintiff."

Labonte v. Hutchins & Wheeler, 678 N.E.2d 853, 861 (Mass. 1997).

That sum should approximate the amount that reasonable persons would

consider just recompense for the emotional distress inflicted. Id.

at 861 n.16. Although the SJC has suggested that a comparison of

agnate awards sometimes may be useful, it has stressed the paramount

importance of case-specific facts. Id. at 861-62 & n.17.

With this framework in place, we turn to the particulars

of the parties' challenges.

1. The Government's Appeal. As a prelude to the

assessment of damages, the district court laboriously recounted the

details of the scapegoats' lives behind bars. See Limone IV, 497 F.

Supp. 2d at 235-41. The government has not contested the court's

-52-
narrative, and it is evident that the scapegoats suffered all the

hardships customarily associated with prolonged prison confinement.

These hardships were magnified by their knowledge that they had been

framed: all of them were forced to come to grips with the reality

that, innocence aside, they might live out their days in prison. To

make matters worse, three of the men — Limone, Tameleo, and Greco —

spent the first few years after the trial in the grim shadow of

death sentences. All told, Limone and Salvati spent 33 and 29

years, respectively, in prison; Tameleo and Greco died in custody

after 18 and 28 years, respectively.14

After considering the particular individuals'

circumstances and consulting damage awards in other wrongful

incarceration cases, the district court determined that $1,000,000

per year of immurement constituted the appropriate baseline for its

calculation of damages. See id. at 243-45. The government

maintains that this baseline is overly generous and results in

damages that are grossly disproportionate to awards in comparable

cases. In the government's view, the district court should have

limited its comparability survey to cases arising in Massachusetts

and, moreover, looked only to cases involving protracted periods of

incarceration. The government's theory seems to be that wrongful

14
Limone served the first seven years of his sentence and
Tameleo served the first five years of his sentence concurrent with
previously imposed sentences in unrelated cases. Thus, the
district court declined to award either of them damages for those
periods. See Limone IV, 497 F. Supp. 2d at 245.

-53-
incarceration gives rise to two distinct strains of emotional harm:

the initial jolt of wrongful imprisonment, and some (lesser) injury

based on the day-to-day loss of liberty. It asserts that the

district court did not appreciate this important distinction; that

the court did not use any congeners involving protracted periods of

incarceration; and that the court erred in not limiting its canvass

to Massachusetts inmates. We find the government's reasoning

unpersuasive.

To begin, the government uses faulty premises. On the one

hand, its assertion that the district court did not look to awards

related to lengthy periods of wrongful incarceration is incorrect as

a matter of fact. See, e.g., id. at 244 (discussing a 15-year

period of wrongful incarceration). On the other hand, its parochial

insistence that the lower court should have restricted any inquiry

to cases that arose within the borders of Massachusetts is incorrect

as a matter of law. Although we have said that helpful guidance may

be found in damage awards from "similar cases arising out of the

same context that are tried in the same locale," Gutiérrez-Rodríguez

v. Cartagena, 882 F.2d 553, 579 (1st Cir. 1989), that does not mean

that a court is prohibited from looking for guidance elsewhere. The

key is comparability: whether the counterpart cases involve

analogous facts, similar measures of damages, and are otherwise

fairly congruent. See, e.g., Morrow v. Greyhound Lines, Inc., 541

F.2d 713, 721-22 (8th Cir. 1976). On the whole, we are satisfied

-54-
that the district court did not abuse its discretion in looking to

other cases for comparison.

Warming to the attack, the government touts a string of

Massachusetts cases memorializing lesser awards. Without exception,

however, these cases involve settlements, not verdicts. See, e.g.,

Cowans v. City of Boston, No. 05-11574, 2006 WL 4286744 (D. Mass.

Aug. 4, 2006); Miller v. City of Boston, No. 03-10805, 2006 WL

4111728 (D. Mass. Mar. 9, 2006); Veláquez v. City of Chicopee, No.

03-30249, 2005 WL 3839494 (D. Mass. Oct. 14, 2005); Harding v. City

of Boston, No. 98-11801, 2000 WL 33223074 (D. Mass. Feb. 2000). But

it is unrealistic to assume that settlement values (which, by

definition, implicate compromise) equate to actual damages. See

Neyer, 845 F.2d at 644. This is a comparison of plums with

pomegranates. Thus, these cases do not undercut the district

court's baseline calculation.

The government also seeks to undermine the district

court's baseline by marshaling a series of legislative enactments

that impose ceilings on the liability of governmental entities for

wrongful incarcerations. See, e.g., 28 U.S.C. §§ 1495, 2513(e)

(limiting government's liability for wrongful incarceration of

federal prisoners to $50,000 per year, or to $100,000 per year in

capital cases); Mass. Gen. Laws ch. 258D, §§ 1, 5 (capping state's

liability at $500,000 per incident). But these statutes do not

purport to measure the harm actually inflicted by wrongful

-55-
incarceration; rather, each reflects a legislative choice to limit

the sovereign's liability. Congress could have imposed such a

ceiling on damages for wrongful incarceration under the FTCA but

chose instead to make the United States liable to the same extent as

a private party under local law. See 28 U.S.C. § 1346(b)(1). We

have neither the authority nor the inclination to veto this exercise

of legislative judgment.

We turn next to the government's plaint that the ratio of

emotional distress damages to years served should decrease over time

(that is, that the longer an individual is in a penitentiary, the

less he should receive in damages on an annualized basis). That is

an argument more appropriately made to the trier of fact. There is

no flat rule to that effect — nor should there be. In some

circumstances, it may be reasonable to conclude that the loss of

hope as time marches on warrants larger annualized amounts for

emotional injuries.

In short, the range of permissible ratios is wide. That

is understandable; dollars are at best a rough and awkward proxy for

time spent in the throes of wrongful incarceration. In the final

analysis, it is for the trier of fact to resolve the difficult

questions of quantification and monetization that lurk in the

penumbra of cases such as this. See Anderson v. Robinson, 497 F.2d

120, 121 (5th Cir. 1974) (noting that court of appeals possesses "no

yardstick with which to measure . . . abstractions").

-56-
 Let us be perfectly clear. There are limits to the trial

court's discretion in this respect, but those limits are commodious.

Langevine v. Dist. of Columbia, 106 F.3d 1018, 1024 (D.C. Cir.

1997). The lower court's decision to use a sliding scale,

decreasing over time, would be within the encincture of that

discretion. So, too, is its decision not to use such a sliding

scale.

This brings us to the damage awards themselves. We have

said before, and today reaffirm, that "there is no scientific

formula or measuring device which can be applied to place a precise

dollar value on matters such as restraint of freedom, fright,

anxiety, loss of face, or emotional scarring." Wagenmann, 829 F.2d

at 216.

The wisdom of that statement is evident here: placing a

dollar value on the emotional pain incident to wrongful

incarceration, the dreary sameness of life behind bars for years on

end, and the loss of freedom, relationships, and hope cries out for

approximation. Moreover, the difficulty inherent in monetization of

those injuries is itself a reason for deference to the front-line

judgment of the trial court. Cf. Langevine, 106 F.3d at 1024

(indicating that "[a] court must be especially hesitant to disturb

a jury's determination of damages in cases involving intangible and

non-economic injuries"); Wagenmann, 829 F.2d at 215 (similar).

-57-
Viewed through this prism, we cannot say that the district court's

choice of baseline was unreasonable.

We do not mean to imply that the methodology employed by

the district court in this case should be regarded as the norm, nor

do we suggest that it should be transplanted root and branch into

other factual scenarios. Were we sitting as trial judges, none of

us would have employed that same methodology. The $1,000,000 per

year baseline is extremely generous, and in cases involving non-

economic damages we have counseled that special attention must be

paid to the particular circumstances of each individual plaintiff.

See, e.g., Tobin, 553 F.3d at 144-45.

But we are not sitting as trial judges in this instance.

Our function is solely one of appellate review. In carrying out

that task, we are not at liberty to substitute our judgment for that

of the trial court. Rather, we must acknowledge the trial court's

superior coign of vantage.

Moreover, a district court, sitting without a jury,

possesses a variety of implements with which to work in monetizing

emotional injuries. Although particular tools must be selected and

deployed with a degree of circumspection, the valuation difficulties

posed by specific sets of facts also must be taken into account.

Given the extent of those difficulties here, the district court's

decision to reach into its armamentarium and select a per-year

-58-
baseline as the methodology of choice cannot be deemed an abuse of

discretion.

That leaves the naked claim of excessiveness (a claim that

encompasses the government's charge that $1,000,000 per year is

simply too rich).15 This question is not free from doubt. The

district court's awards are considerably more munificent than the

amounts that this court would have awarded in the first instance.

In our view, the awards approach the outermost boundary of what

might be thought conscionable. Cf. Baba-Ali v. State, 878 N.Y.S.2d

555, 568 n.7 (N.Y. Ct. Cl. 2009) (chronicling awards of lesser

amounts).

Still and all, the awards are by no means unprecedented,

and the "shock-the-conscience" test cannot be administered in a

vacuum. What is shocking under one set of facts may be acceptable

(even if only marginally so) under different circumstances. See

United States v. Santana, 6 F.3d 1, 6 (1st Cir. 1993).

We are frank to say that, here, the awards for wrongful

incarceration are high enough to be troubling. But when we take

into account the severe emotional trauma inflicted upon the

scapegoats, we cannot say with any firm conviction that those awards

15
The government has not specifically challenged the amounts
of the derivative awards (or, for that matter, the liability
findings) on the plaintiffs' claims for loss of consortium and the
like. Consequently, we eschew any discussion of those awards in
connection with the government's appeal. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (explaining that issues not
briefed or argued are deemed abandoned).

-59-
are grossly disproportionate to the injuries sustained. After all,

some cases involving analogous factual scenarios have resulted in

comparable damage awards. See, e.g., Thompson v. Connick, 553 F.3d

836, 865-66 (5th Cir. 2008) (upholding jury award of $14,000,000 for

18 years of wrongful incarceration), vacated on other grounds by ___

F.3d ___, ___ (5th Cir. 2009) (en banc) [No. 07-30443, slip op. at

1]; Newsome v. McCabe, 319 F.3d 301, 302-03 (7th Cir. 2003)

(involving award of $15,000,000 for 15 years of wrongful

incarceration); White v. McKinley, No. 05-203, 2009 WL 813001, at

*22 (W.D. Mo. Mar. 26, 2009) (upholding jury award of $14,000,000 in

compensatory damages for 5 ½ years of wrongful incarceration);

Sarsfield v. City of Marlborough, No. 03-10319, 2006 WL 2850359, at

*1 (D. Mass. Oct. 4, 2006) (reflecting judicial award of more than

$13,000,000 for 9 ½ years of wrongful incarceration). Consequently,

we conclude that the district court's awards must stand.

In concluding that the awards in this case fall short of

shocking the conscience, we think it important to make clear that

the $1,000,000 annuity selected by the district court as the

baseline for its calculation should not be understood as a carob

seed for measuring the harm caused by wrongful incarceration

generally. Applying a literal reading of the statement in Limone IV

that "wrongfully imprisoned plaintiffs were entitled to compensation

of at least $1 million per year of imprisonment," 497 F. Supp. 2d at

243 (emphasis supplied), one district court recently has treated the

-60-
$1,000,000 per year baseline as a floor for damages arising out of

wrongful incarceration. See Smith v. City of Oakland, 538 F. Supp.

2d 1217, 1242-43 (N.D. Cal. 2008) (citing Limone IV). We regard

that characterization as unfortunate. As we have emphasized, the

district court's awards are at the outer edge of the universe of

permissible awards and survive scrutiny, though barely, only because

of the deferential nature of the standard of review and the unique

circumstances of the case.

2. The Cross-Appeal. The district court awarded each

minor child of a scapegoat $200,000 for loss of consortium and

$50,000 in emotional distress damages. Limone IV, 497 F. Supp. 2d

at 249-50. Edward Greco, the surviving son of the late Louis Greco,

Sr., objects to his award on the ground that he suffered more from

his father's wrongful incarceration than did the other children.

The cross-appeal comes to us in the following procedural

posture. After the district court handed down its decision in

Limone IV and entered judgment, Edward filed a motion to alter the

judgment. See Fed. R. Civ. P. 59(e). The court denied that motion,

declaring that any additional hardship was attributable to the Greco

family's dysfunctionality — a condition that predated Louis Greco's

conviction. See Limone v. United States (Limone V), No. 02-10890

(D. Mass. Dec. 21, 2007) (unpublished order). We review the denial

of a motion to alter or amend a previously entered judgment for

-61-
abuse of discretion. Vasapolli v. Rostoff, 39 F.3d 27, 36 (1st Cir.

1994).

It is axiomatic that damage awards must be based on the

evidence presented. A corollary to this axiom is that a court

charged with making a damage award should take into account the

particular circumstances of each individual plaintiff. Gutiérrez-

Rodríguez, 882 F.2d at 579. This corollary holds true with respect

to damages for emotional distress and loss of consortium, both of

which by their very nature are difficult to monetize. See, e.g.,

Tobin, 553 F.3d at 144-45; Koster v. TWA, Inc., 181 F.3d 24, 35-36

(1st Cir. 1999); Smith v. Kmart Corp., 177 F.3d 19, 32-33 & n.5 (1st

Cir. 1999).

This does not mean, however, that different plaintiffs can

never be given identical damage awards in emotional distress or loss

of consortium cases. Identical damage awards at times are

warranted. See, e.g., Sutton v. Earles, 26 F.3d 903, 918 (9th Cir.

1994) (upholding identical annualized awards of non-economic damages

to five parents of deceased seamen).

The district court engaged in a thoughtful, detailed

analysis of the manner in which each scapegoat and each family

member was affected by the government's misconduct. See Limone IV,

497 F. Supp. 2d at 235-43. Within that analysis, the court

chronicled the deterioration of the Greco family. Id. at 241-43.

The court's rescript reveals that Edward was eleven years old when

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his father was sentenced. Around that time, his mother, Roberta,

began to drink heavily, and Edward became the primary caretaker for

his older brother. Roberta abused Edward physically and, when he

was thirteen, abandoned him without making provisions for his care.

Edward and his brother lived with extended family, but Edward was

thrown out when he was sixteen. He soon lost contact with his

brother (who eventually committed suicide).

The district court determined that Edward's plight, though

tragic, was attributable mainly to causes that predated his father's

imprisonment. Roberta had filed for divorce three years before

Greco's conviction, charging extreme cruelty. In response, Greco

attempted to strangle her. Indeed, the marital relationship was so

troubled that the district court rejected Roberta's claim for loss

of consortium (though it awarded her damages for intentional

infliction of emotional distress). Id. at 247, 250.

Based on this background, the district court concluded in

Limone V that the government's misconduct caused only a fraction of

the woes that befell Edward. The rest would have occurred in any

event because of the dysfunctional family environment.

Edward resists this conclusion, admonishing that a

defendant takes a plaintiff as it finds him. See Doty v. Sewall,

908 F.2d 1053, 1059 (1st Cir. 1990); Dulieu v. White & Sons, [1901]

2 K.B. 669, 679. That is true as far as it goes — but it does not

take Edward very far. A defendant may be held liable only for the

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damages that it actually causes. See W. Page Keeton, Prosser &

Keeton on Torts 292 (5th ed. 1984) (reiterating this principle in

regard to "eggshell-skull" plaintiffs).

Causation is generally a question of fact, committed

largely to the competence of the factfinder. See Peckham, 895 F.2d

at 837. Given the idiosyncratic circumstances surrounding Edward's

claim, we cannot say that the district court either clearly erred in

holding that the government's misconduct was not a but-for cause of

Edward's special hardships or abused its discretion in denying his

motion to alter the judgment.

III. CONCLUSION

We summarize succinctly. The district court handled this

matter with care and assiduous attention to detail. It took pains

to make specific findings and to explain its reasoning. While we

reject its finding that the government is liable for malicious

prosecution, we uphold the court's alternate finding that the

government is liable for intentional infliction of emotional

distress. We also uphold the district court's decision to reject

the government's invocation of the discretionary function defense.

Finally, we conclude that the district court used a permissible

methodology in computing damages and that the damage awards, though

high, are not so excessive as to warrant appellate intervention.

We need go no further. This case exemplifies a situation

in which the end did not justify the government's use of very

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unattractive means. In its zeal to accomplish a worthwhile objective

(stamping out organized crime), the FBI stooped too low. Its

misconduct was not only outrageous but also tortious. That

misconduct resulted in severe harm to the persons wrongfully

convicted and to their families. Under these unfortunate

circumstances, the large damage awards mark the last word of a sad

chapter in the annals of federal law enforcement.

Affirmed.

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 Appendix

The district court awarded damages as follows:

1. Estate of Louis Greco, Sr. — $28,000,000;

2. Peter Limone, Sr. — $26,000,000;

3. Joseph Salvati — $29,000,000;

4. Estate of Enrico Tameleo — $13,000,000;

5. Olympia Limone (wife of Peter Limone, Sr.) —

$1,050,000;

6. Marie Salvati (wife of Joseph Salvati) —

$1,050,000;

7. Estate of Giovannina Tameleo (deceased wife of

Enrico Tameleo) — $1,050,000;

8. Peter Limone, Jr. (son of Peter Limone, Sr.) —

$250,000;

9. Paul Limone (son of Peter Limone, Sr.) — $250,000;

10. Carolyn Limone Zenga (daughter of Peter Limone,

Sr.) — $250,000;

11. Janine Limone Arria (daughter of Peter Limone, Sr.)

— $250,000;

12. Maria Sidman (daughter of Joseph Salvati) —

$250,000;

13. Sharon Salvati (daughter of Joseph Salvati) —

$250,000;

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 14. Gail Orenberg (daughter of Joseph Salvati) —

$250,000;

15. Anthony Salvati (son of Joseph Salvati) — $250,000;

16. Edward Greco (son of Louis Greco, Sr.) — $250,000;

17. Estate of Louis Greco, Jr. (deceased son of Louis

Greco, Sr.) — $250,000;

18. Roberta Werner (ex-wife of Louis Greco, Sr.) —

$50,000;

19. Saverio Tameleo (son of Enrico Tameleo) — $50,000.16

16
The scapegoats received $1,000,000 for each year of
incarceration, less time served on unrelated concurrent sentences.
See supra note 14. The district court's derivative damage awards
were constructed as follows. The court awarded $50,000 to each
family member to compensate for the government's intentional
infliction of emotional distress upon innocent bystanders. Limone
IV, 497 F. Supp. 2d at 250. It also awarded $1,000,000 each to the
wives of the scapegoats other than Greco and $200,000 to each of
the scapegoats' minor children for loss of consortium. Id. at 248,
249.

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