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.