By Patricia Nealon, Globe Staff, 6/26/1997

Gangster turned informant Stephen J. ``The Rifleman'' Flemmi asserted yesterday that an FBI contact assured him and his criminal partner, James J. ``Whitey'' Bulger, they could continue to commit crimes -- short of murder -- without fear of prosecution.

Flemmi also said he was tipped off to the exact date when he, Bulger and four others would be indicted so he could take off.

SIDEBAR Read an excerpt of Flemmi's sworn affidavit

The explosive claim was contained in a three-page affidavit filed yesterday in US District Court. It was the latest in a series of disclosures that began earlier this month with the official acknowledgement that Bulger and Flemmi had worked for decades as FBI informants.

In a terse, two-sentence statement, Barry W. Mawn, the head of the Boston office of the FBI, pointed out that the allegations were being made ``by an individual who is a codefendant in a pending federal racketeering case.'' Still, Mawn said, the agency would follow policy and investigate Flemmi's assertion.

The FBI's Office of Professional Responsibility, based in Washington, is already investigating agents' handling of informants like Bulger and Flemmi.

Flemmi, who ran the Winter Hill Gang with Bulger, described secret meetings at the Lexington home of FBI agent John Morris, who ran the bureau's organized crime squad here. At the meetings, Flemmi says, he and Bulger were all but given carte blanche to break the law.

``Mr. Morris told Mr. Bulger and I that we could do anything we wanted so long as we didn't `clip anyone,' '' Flemmi's affidavit said.

Morris has since retired from the FBI and could not be reached for comment.

Flemmi said he relied on those assurances during his time as an informant, which he said continued until his arrest on extortion and racketeering charges in January 1995. That contradicts the FBI's previous contention that Flemmi was terminated as an informant in December 1990.

There was talk of terminating him as an informant in 1988 after Boston Globe Spotlight stories, quoting sources, first reported Bulger's role, but he was kept on.

His claim that he was authorized to commit crimes, however, is contradicted by an affidavit filed in April by a high-ranking Justice Department official. In that document, Paul E. Coffey, chief of the department's Organized Crime and Racketeering Section, said Flemmi and Bulger were warned periodically that they were not authorized to commit any crimes without specific permission -- something Coffey said they never received.

But Flemmi's contentions are backed, at least in part, by a January 1995 report by the chief division counsel of the Boston office of the FBI. It concluded that Flemmi's handlers had at least tacitly authorized his participation in illegal gambling and ``La Cosa Nostra'' policy-making.

Flemmi's assertions, if true, could open another front for defense lawyers attacking the racketeering charges against him, Bulger, New England Mafia boss Francis P. ``Cadillac Frank'' Salemme and three others.

If the defense can show that the alleged racketeering conspiracy between the Winter Hill Gang and the local Mafia was in fact orchestrated by the FBI, the racketeering charges could be challenged.

``If someone is authorized to commit a criminal act, then they can't be a bona fide co-conspirator,'' John W. Mitchell, Salemme's lawyer, said outside the courtroom. In a case where many documents still remain secret, Mitchell and co-counsel Anthony M. Cardinale said they were confining their remarks to what is in the public record.

``They're charging that there was an enterprise, that these gentlemen worked together to make the enterprise run,'' said Mitchell. ``If it turned out that wasn't the case, that these people were actually acting as government agents, then that would affect whether the enterprise would be deemed to exist.''

Defense lawyers are already challenging wiretap evidence -- including conversations of Bulger and Flemmi and a 1989 Mafia induction ceremony in Medford -- on grounds that the judge who authorized the bugging should have been told that informants like Flemmi and Bulger were available.

Flemmi's assertion that he was alerted before charges were brought against him would confirm long-held suspicions that he and other codefendants were given head starts.

Though Flemmi did not get away, Salemme remained a fugitive until his capture in Florida seven months later. Bulger is still at large.

US District Judge Mark L. Wolf said Flemmi's affidavit raises the possibility that the charges could be challenged on two grounds: that the racketeering enterprise alleged in the indictment didn't exist, or that the government entrapped the defendants.

While agreeing that the defense is entitled to information showing Bulger and Flemmi ``lacked intent to commit crimes,'' prosecutor Fred M. Wyshak Jr. chastised Kenneth J. Fishman, Flemmi's lawyer, for the blind reference to Flemmi's having been alerted to the upcoming indictment.

Flemmi's affidavit says he was specifically informed of the precise date of the indictment ``so that I could flee if I chose to do so.'' It does not say who tipped him off.

``I want to know why they don't say who it was that tipped him off,'' said Wyshak. ``To me, that's obstruction of justice. And the Department of Justice has a duty to investigate criminal activity.''

In a prepared statement later, the US attorney's office said it reported Flemmi's allegations to the FBI in Washington -- just as it had when Salemme's lawyers alleged misconduct by agents earlier this year.

Flemmi's affidavit was made public during hearings to determine what information defense attorneys are entitled to before hearings in August on suppressing wiretap evidence. The defense has also said it plans to ask that criminal charges be dismissed, possibly citing government misconduct.

Flemmi has already received documents from his FBI file. But so far, the government has not agreed to turn over the ``administrative'' portion of his file -- something Fishman argued for again yesterday.

``Clearly the government's position is going to be that there was a rogue agent out there who had an illicit relationship with Mr. Flemmi,'' said Fishman. ``That's exactly why we need this material.''

This story ran on page A1 of the Boston Globe on 6/26/1997.
© Copyright 1997 Globe Newspaper Company.