Boston Herald

Feds appeal ruling tossing racketeering case evidence

ANDREA ESTES
Oct 16, 1999

Federal prosecutors yesterday appealed Judge Mark Wolf's epic ruling throwing out some evidence in the government's racketeering case against three alleged mobsters.

United States Attorney Donald Stern filed notice that prosecutors will challenge the 661-page decision handed down Sept. 15 in the case against reputed New England Mafia boss Francis "Cadillac Frank" Salemme, 65, Stephen "The Rifleman" Flemmi, 65, and Robert DeLuca, 54. But Stern said filing the notice doesn't necessarily mean the government will ultimately appeal. Prosecutors had until Oct. 15 to file notice or lose their right to appeal.

Though Wolf's decision actually decided few of the key outstanding issues, some findings could have profound consequences for the government's case. Wolf ruled Flemmi, who for years worked as a double agent for the Winter Hill crime gang and the FBI - had a limited immunity deal that can't be broken. As a result, he ruled, any evidence gleaned from electronic bugs that Flemmi and his cohort, fugitive Mob boss James "Whitey" Bulger, 70, helped investigators plant can't be used against them.

Wolf wants more hearings to determine how much of the government's case against Flemmi may have stemmed from information he helped the FBI collect. Any such evidence must be thrown out - even if it means the entire case is scrapped, he wrote.

In a written statement, Stern said, "The U.S. Attorney's office filed a notice of appeal from Judge Wolf's September 15, 1999 decision suppressing certain electronic surveillance and any evidence derived from it, based upon the finding that the defendant Flemmi had an enforceable promise of use and derivative use immunity. "The notice was filed within the required 30 days to preserve our ability to pursue an appeal. However, we are still consulting with the Solicitor General, who is required to authorize any appeal, and no final decision has yet been made." Stern wouldn't elaborate.

Wolf's ruling also has implications for John Martorano, 58, the self-confessed Winter Hill hitman who has agreed to turn against his former friends. Wolf said he may not let Martorano go ahead with plans to admit 20 murders in exchange for testifying against Flemmi, Bulger and others.

The judge said he was concerned prosecutors may have persuaded Martorano to switch sides using information illegally obtained from Flemmi and Bulger.