To Cardinale this was proof that the FBI had at least one—and maybe two—informants participating in the meeting with the visiting Mafia figure from Las Vegas. Cardinale figured that either Kenny Guarino or “the Saint”—a nickname for Anthony St. Laurent—or both, were working as FBI informants. If either wiseguy was an informant, then the FBI had probably known beforehand the location of the meeting at the Hilton. And if that were true, the FBI had not had a valid basis for using a roving bug and had lied to a federal judge to win his permission for one.
Cardinale prepared new court papers and, tape in hand, argued to the judge sitting in the racketeering case, Mark L. Wolf, that a special hearing was warranted to look into possible FBI subterfuge. The documents related to the case were sealed, and the court sessions held to discuss Cardinale’s findings were closed to the public. Cardinale argued that to get another judge’s okay to use a roving bug FBI agents in 1991 had filed sworn affidavits saying they had no idea where Richichi was going to be when he came to Boston on Mafia business. Cardinale, urging the judge to listen to the tape himself to hear the background FBI voices, said, “The FBI knew a great deal more about the events of December 11, 1991, but wanted to protect their source.” The Boston FBI, suggested Cardinale, was possibly “involved in illegal conduct in an effort to conceal the activities of their high-level informants.”
Throughout the fall of 1996 the matter was pursued during court sessions that remained closed to the press and public. Cardinale and a team of prosecutors led by Fred Wyshak engaged in a legal shoving match, with Cardinale seeking to push the envelope while the government pushed back.
During this time Cardinale began to develop an even more ambitious game plan. He believed the subterfuge behind the FBI roving bug at the Hilton was not an isolated event. He felt that for years the FBI had bent and broken all kinds of rules to protect a coterie of informants. In particular he believed that the FBI was especially protective of Whitey Bulger. Cardinale had read the stories in the Boston Globe, and he’d heard all the talk on the street about Bulger and the FBI. He also believed that Bulger had escaped arrest because the FBI let him get away.
All the Bulger talk had gone on outside of court. But Bulger was a codefendant now, and to defend his client, Salemme, Cardinale was deciding to go after Whitey. He would employ the Hilton tape as a battering ram to knock down the wall of secrecy. Cardinale was going after the FBI.
“DEFENSE counsel seeks the disclosure of the identity of various individuals who may have served as government informants/operatives in connection with the investigation and/or prosecution of this case,” the lawyer began a motion filed on March 27, 1997. The papers were submitted under seal, and the discussions before Judge Wolf regarding the FBI and Bulger continued to unfold in secret. Cardinale claimed that all or part of the government’s evidence might be tainted by FBI misconduct, and to get to the heart of the matter the world needed to know about Bulger and the others.
In his motion Cardinale named Bulger and several other suspected informants, such as Guarino and St. Laurent, but not Stevie Flemmi. “I was just a little uncomfortable,” said Cardinale later. “Keep in mind, one of the last things you want to do in a situation like this—I mean this guy is a defendant in the case, and if you believe he’s been a rat essentially his whole life, one of the last things you want to do is to pull the trigger on the guy when you’re not ready, and the guy gets scared and rolls, and he hurts your client. I thought if the finger was pointed at Flemmi too early and he rolled, he could not only try to hurt Salemme but any number of people. It could have been a disaster.”
So for the time being Cardinale held back, partly out of caution and partly out of courtesy to his colleague, Ken Fishman, who was representing Flemmi. Besides, at the time the conventional wisdom still held that Flemmi was a stand-up guy. “The word on the street was about Bulger,” noted Cardinale. The Globe stories a decade before had been about Bulger and the FBI, not Flemmi. Bulger was the one who had evaded arrest in 1995, not Stevie. “You know, nobody had ever really said anything about Flemmi. Even among the Italians, I mean they always said, ‘Listen, Bulger is capable of anything,’ but Flemmi, they considered him almost one of them.”
Every step of the way Fred Wyshak and his fellow prosecutors fought Cardinale. They didn’t know exactly what horrors were hidden inside the FBI’s files, and they wanted Judge Wolf to keep his eye solely on the prosecution at hand. Wyshak had gone so far as to share with the judge—but not with the defense—an “extremely confidential” affidavit by Paul Coffey, the chief of the Organized Crime and Racketeering Section of the Justice Department. In it Coffey reported that as informants Bulger and Flemmi were never given specific authorization to commit crimes and that both were given periodic warnings that they were “not authorized to commit any criminal act absent specific authorization.” Ironically, Wyshak was forced to defend the FBI deal with Bulger for the sake of stopping Cardinale. The government, Wyshak insisted, did not have any formal but undisclosed deals with Bulger or Flemmi that would bar the present prosecution. The judge, argued Wyshak, should therefore ignore Cardinale’s “sweeping and nonspecific allegations.” Bulger and his relationship with the FBI was irrelevant, a distraction. Just as important, the court should not put the FBI in the harmful position of having to confirm or deny in public the names of the confidential informants so crucial to the bureau’s work.
But Wolf did not agree.
To the government’s dismay, on April 14, 1997, the judge decided that he wanted to learn more about Cardinale’s claims, at another closed hearing to start in two days. “The court has reviewed the defendant’s Motion to Disclose Confidential Informants and Suppress Electronic Surveillance conducted in this case,” wrote Wolf in a quick three-page ruling. “In this case, in which the defendants are charged, among other things with . . . conducting a racketeering enterprise, the fact that a codefendant was during the relevant period a confidential informant for the FBI would, if true, constitute exculpatory information to which his codefendants are entitled.” Wolf even ordered the government to bring along Paul Coffey and said that Coffey should be ready to talk about informants.
Between the lines in the ruling, Cardinale thought he detected a hint that his aggressive inquiry should not stop at Bulger but embrace Flemmi as well. “He says he wants the government to be prepared to answer questions as to whether ‘a’ defendant in the case—what impact that has if ‘a’ defendant is an informant. Now what happens is, I read from that that the judge, he was indicating that it is a defendant who is actually presently in the courtroom, not one who is on the lam, as Bulger was.”