Judge keeps charges in Mob case
Says FBI role doesn't preclude prosecution of Bulger, Flemmi
By Shelley Murphy, Globe Staff, 9/16/1999
For decades, the FBI protected its prized informants, reputed South Boston
crime boss James J. ``Whitey'' Bulger and Stephen ``The Rifleman'' Flemmi, by
tipping them off to investigations and ignoring their crimes, but the two were
never promised they would not be prosecuted, a federal judge concluded
yesterday.
In a decision that threatened to derail a landmark racketeering case
against the region's top organized-crime figures, US District Judge Mark L.
Wolf refused to drop any charges against Flemmi, Bulger, reputed New England
Mafia boss Francis P. ``Cadillac Frank'' Salemme, and two associates or to
toss out a key piece of evidence -- a 1989 bugging of a Mafia induction
ceremony in Medford.
One of those associates is Winter Hill gangster and confessed hit man John
Martorano, who last week reached an agreement with prosecutors to testify
against the others if the case goes to trial. But Wolf indicated in his
decision that he may not let Martorano testify.
After 46 witnesses, 276 exhibits, and 80 days of testimony that stretched
over most of last year, Wolf was unswayed by Flemmi's central claim: that he
and Bulger had been promised immunity from prosecution for any crime short of
murder in exchange for information they fed the FBI on Mafia rivals.
In a 2-inch thick, 661-page decision, Wolf concluded that while the FBI had
broken its rules in handling Bulger and Flemmi, any agreement with the pair
did not rise to the level of a formal deal preventing their prosecution.
While Wolf did not dismiss any charges, he barred federal prosecutors from
using any evidence gathered against Bulger or Flemmi during a series of
buggings in the 1980s because the two had given the FBI information that it
used in applications for the bugs.
Still, any victory for prosecutors may be shortlived. Wolf said he plans to
hold more hearings on whether information from four buggings was presented to
the grand jury that handed down the racketeering indictment against Flemmi and
the others in January 1995. If it was, Wolf said he may throw out some or all
of the charges against Flemmi, 65.
``The bottom line is it's very good news for Mr. Flemmi,'' said his lawyer,
Kenneth J. Fishman. ``I certainly will be urging the court that there really
is no way for this indictment to survive as a result of the evidence that is
being excluded against Mr. Flemmi.''
Salemme's lawyer, Anthony Cardinale, said he will ask Wolf next week to
release Salemme on bail.
Cardinale said Salemme and reputed Mafia soldier Robert DeLuca had pushed
Flemmi to reveal that he was an FBI informant.
``It was important for us, and certainly for my client, for the world to
know that this wasn't sleuthing that was going on,'' Cardinale said. ``It was
nothing but outright rat-snitching, and it was accomplished by a guy who
professed to be one of [Salemme's] closest pals.''
US Attorney Donald K. Stern, whose office is prosecuting the case, issued a
statement saying he was ``pleased'' that Wolf denied a request by defense
attorneys to dismiss the indictment or suppress FBI tapes of the induction
ceremony.
``Needless to say, I am disappointed that the court is requiring that
further evidentiary hearings be held before it can make final rulings on
Flemmi's motions,'' Stern said.
Both Stern and Barry Mawn, special agent in charge of the FBI's Boston
office, said they are continuing to investigate allegations of FBI misconduct
that surfaced during the hearings before Wolf last year and were chronicled in
his decision.
Although Flemmi became an FBI informant in 1965, followed by Bulger a
decade later, Wolf wrote that the FBI ``played a pivotal role in forging a
formidable enduring partnership between Flemmi and Bulger. . . . The FBI made
Bulger and Flemmi, who were previously acquainted but not close, a perfect
match.''
Indeed, Flemmi has testified that he had stopped meeting with the FBI for a
few years when Bulger arranged for him to meet his handler, Special Agent John
Connolly, in 1976. At the time, both Flemmi and Bulger were reputed members of
Somerville's Winter Hill Gang.
They became a team, allegedly shaking down bookmakers and drug dealers
together, then rendezvousing with agents to provide information on the
criminal exploits of their Mafia rivals.
``The arrangement offered [Flemmi] an opportunity to use the FBI to disable
his enemies, enhance his safety, and with the competition diminished and the
protection of the FBI, make his own criminal activities more profitable,''
Wolf wrote.
There was ample evidence that Bulger and Flemmi were protected over the
years by many agents, said Wolf, citing the testimony of a parade of former
FBI agents, prosecutors, and underworld operatives.
Wolf said he was unable to rely on FBI records found in the informant files
of Bulger and Flemmi because there was ``substantial evidence that members of
the FBI engaged in improper if not illegal conduct'' and had a motive to
tailor, omit, or distort the records.
Therefore, Wolf said, he was drawing conclusions from some of the
testimony. Among his stunning findings: he believes that Connolly, who retired
in 1990, warned Bulger and Flemmi on the eve of their January 1995 indictment
so they could flee.
Bulger left and remains a fugitive. He recently was named to the FBI's Ten
Most Wanted list.
Wolf said Flemmi's testimony that it was former FBI Supervisor John Morris
who warned Bulger to flee just wasn't ``credible.''
In a statement read last night, Connolly said, ``I did not tip Bulger,
Flemmi, or anyone else with respect to the indictment returned by the grand
jury in 1995.''
While Connolly refused to testify at the hearings last year, citing his
Fifth Amendment right against self-incrimination, Morris was granted immunity
from prosecution.
Morris admitted pocketing $7,000 in payoffs from Bulger and Flemmi and said
Connolly had delivered two of the payments, each totaling $1,000. Connolly
denies that.
Morris also admitted to tipping off Bulger and Flemmi to an FBI
investigation of one of their associates, a Roxbury bookmaker, so they would
not be caught.
Morris also claimed that he sent word to Bulger and Flemmi through Connolly
that another Winter Hill Gang member, Brian Halloran, was cooperating with the
FBI and had implicated them in the 1981 murder of Tulsa millionaire Roger
Wheeler.
Halloran was murdered in 1982 and Morris said he suspected Bulger and
Flemmi were involved in the slaying.
Connolly denies ever warning Bulger and Flemmi that Halloran was
cooperating against them.
Wolf detailed numerous instances of FBI protection involving more than a
half-dozen current and former agents. Wolf said it was the FBI's way of
keeping on the street two informants who were providing critical information
against the Mafia.
But Wolf said Flemmi had no expectation that he had immunity from
prosecution, nor was the term immunity used in any conversations between him
and FBI agents.
``Rather, he expected that the FBI would overlook some of his criminal
activity, provide him information concerning any investigations that were
conducted, and warn him of any imminent charges against him of which it
learned,'' Wolf wrote. ``The FBI performed its part of the bargain.''
Wolf concluded that Flemmi and Bulger had been promised that information
they gave the FBI so it could get court approval to install listening devices
in Mafia hangouts would not be used against them.
In particular, Wolf ruled that prosecutors were barred from using any
evidence gathered from the following ``bugs'' to obtain the 1995 racketeering
indictment against Bulger and Flemmi:
-- The 1981 bugging of the North End headquarters of Patriarca family
underboss Gennaro ``Jerry'' Angiulo.
-- A 1984-85 bugging by the FBI and the US Drug Enforcement
Administration.
-- The 1986-1987 bugging of Vanessa's Italian Food Shop in the Prudential
Center by the FBI and State Police.
-- The infamous Mafia induction ceremony on Oct. 29, 1989.
Wolf said Flemmi had been ``expressly and implicitly promised'' that in
exchange for his help on the Angiulo bugging that led to the convictions of
the Boston mob hierarchy, none of the interceptions would be used against him.
When the FBI enlisted Bulger and Flemmi to visit Angiulo's headquarters on
Prince Street, Bulger voiced concern that they might be killed and both
informants worried that the FBI might learn about wrongdoing by Bulger and
Flemmi.
Those tapes reveal bragging by Angiulo's consigliere, Ilario Zannino, about
the murders of three Dorchester brothers and how Salemme and Flemmi had
participated in them. The current racketeering indictment charges Salemme and
Flemmi with those murders.
Flemmi was among a group of informants who gave the FBI details that led to
the bugging of 34 Guild St. in Medford in 1989, when four aspiring mobsters --
including his codefendant DeLuca -- took a blood oath to join the Patriarca
crime family.
Wolf also said the FBI ``recklessly disregarded the government's legal
obligation of candor to the court'' when applying, along with the DEA, to bug
Bulger's car and Quincy apartment in 1984 and 1985 and failing to disclose he
was an informant.
