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United States v. Scarpa

United States Court of Appeals, Second Circuit

June 22, 2017

UNITED STATES OF AMERICA, Appellant,
v.
GREGORY SCARPA, JR., Defendant-Appellee. [1]

          Argued: January 17, 2017

         The United States appeals from an order and second amended judgment of the United States District Court for the Eastern District of New York, Edward R. Korman, Judge, reducing by 120 months the 482-month term of imprisonment imposed on defendant Gregory Scarpa Jr. in an amended judgment in 1999 following his conviction of racketeering and other offenses. The district court ordered the reduction pursuant to Fed. R. Crim. P. 35(b) on the basis that Scarpa in 2005 provided substantial assistance to the government leading to the discovery of explosives components stored 10 years earlier in the then-home of Terry Lynn Nichols, a convicted coconspirator in the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City. The court reduced Scarpa's sentence without a motion by the government--and over its opposition--ruling principally that a government motion was not required because the court found (a) that Scarpa had rendered substantial assistance, (b) that a 2012 affidavit filed by the government at the request of the court erroneously stated, inter alia, that the 2005 search of the then-unoccupied former Nichols home was conducted pursuant to a search warrant rather than on the consent of a real estate agent, (c) that the government declined to provide detailed evidence as to the negative factors in the cost-benefit analysis that led it to refuse Scarpa's request for a sentence-reduction motion, and (d) that the government's statement in 2010 that Scarpa had a prior history of sham cooperation and attempts to pervert the criminal justice system was merely a post-hoc rationalization of its 2005 refusal to make a sentence-reduction motion.

         On appeal, the government contends principally that its decision not to move for a sentence reduction for Scarpa was justified by, inter alia, its consistent concerns about his prior sham proffer of cooperation, his other pre-2005 attempts to obstruct justice, and his 2005 polygraph examination indicating untruthfulness with respect to the Nichols matter, and that the court misapplied applicable legal standards in concluding that the requested sentence reduction could be granted to Scarpa in the absence of a motion by the government. We agree with the government's contentions.

         Order and second amended judgment reversed. The matter is remanded for reinstatement of the first amended judgment.

          AMY BUSA, Assistant United States Attorney, Brooklyn, New York (Robert L. Capers, United States Attorney for the Eastern District of New York, David C. James, Patricia E. Notopoulos, Assistant United States Attorneys, Brooklyn, New York, on the brief), for Appellant.

          GEORGIA J. HINDE, New York, New York, for Defendant-Appellee.

          Before: KATZMANN, Chief Judge, KEARSE and LIVINGSTON, Circuit Judges.

          KEARSE, Circuit Judge:

         The United States appeals from an order and second amended judgment of the United States District Court for the Eastern District of New York, Edward R. Korman, Judge, reducing by 120 months the 482-month term of imprisonment imposed on defendant Gregory Scarpa Jr. ("Scarpa") in an amended judgment in 1999 following his conviction of racketeering and other offenses. The district court ordered the reduction pursuant to Fed. R. Crim. P. 35(b) on the basis that Scarpa in 2005 provided substantial assistance to the government, leading to the discovery of a cache of explosives components stored 10 years earlier in the then-home of Terry Lynn Nichols, a convicted coconspirator in the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City. The court reduced Scarpa's sentence without a motion by the government--and over its opposition--ruling principally that a government motion was not required because the court found (a) that Scarpa had rendered substantial assistance, (b) that a 2012 affidavit prepared by the government at the request of the court erroneously stated, inter alia, that the 2005 search of the then-unoccupied former Nichols home was conducted pursuant to a search warrant rather than on the consent of a real estate agent, (c) that the government declined to provide detailed evidence as to the negative factors in the cost-benefit analysis that led it to refuse Scarpa's request for a sentence-reduction motion, and (d) that the government's statement in 2010 that Scarpa had a prior history of sham cooperation and attempts to pervert the criminal justice system was merely a post-hoc rationalization for its 2005 refusal to make a sentence-reduction motion. See United States v. Scarpa, 155 F.Supp.3d 234 (E.D.N.Y. 2016) ("Scarpa"). On appeal, the government contends principally that its 2005 decision not to move for a sentence reduction for Scarpa was consistently justified by, inter alia, its concerns about his mid-1990s sham proffer of cooperation and his other pre-2005 attempts to obstruct justice, as well as his 2005 polygraph responses indicating untruthfulness with respect to the Nichols matter, and that the district court misapplied the applicable legal standards in concluding that Scarpa could be granted a sentence reduction in the absence of a motion by the government. For the reasons that follow, we agree with the government's contentions. We accordingly reverse the district court's order and the second amended judgment, and remand for reinstatement of the first amended judgment.

         I. BACKGROUND

         Gregory Scarpa, a self-professed "made member" of the Colombo crime family, was first arrested on federal charges in 1988 and has been in custody ever since. Following a trial before Judge I. Leo Glasser, Scarpa was convicted on seven counts of a superseding indictment, including racketeering in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968, and narcotics trafficking offenses, in violation of 21 U.S.C. §§ 841(b)(1)(D) and 846. In February 1989 he was sentenced to 240 months' imprisonment. Other convictions would follow, leading to the judgment that was superseded by the decisions at issue on this appeal.

         A. Scarpa's 1999 Convictions and His First Attempt To Gain a Substantial-Assistance Benefit

         In 1995, while serving the 240-month sentence for his first set of convictions, Scarpa was charged with additional racketeering-related activity. In late 1998, a jury returned a verdict finding him guilty on all six counts of a superseding indictment, including extortionate extensions of credit, in violation of 18 U.S.C. § 893, and RICO conspiracy, in violation of 18 U.S.C. § 1962(d).

          Among the racketeering acts that the jury found proven were Scarpa's conspiracies to murder four individuals, including one murder attempt that Scarpa authorized while imprisoned and awaiting trial.

         In the meantime, while he awaited trial on the 1995 charges, Scarpa had been held at the Metropolitan Correctional Center in Manhattan and had occupied a cell adjacent to that of Ramzi Yousef, an avowed terrorist who was then awaiting trial for--and would later be convicted of--organizing the 1993 bombing of the World Trade Center. In 1996, Scarpa contacted the government and stated that he had valuable terrorism-related information that he had obtained from Yousef.

         In 1999, Scarpa, in connection with his sentencing on the 1995 charges, sought to have the government make a motion to the district court pursuant to § 5K1.1 of the (then-mandatory) Sentencing Guidelines ("Guidelines") for a reduced sentence on the ground that he had provided substantial assistance to the government in connection with terrorism plans of Yousef. The government opposed that request, describing in sealed affirmations its expenditure of significant resources in efforts over several months to follow up on Scarpa's information on Yousef, only to learn that Scarpa had actively misled the government and affirmatively compromised its efforts. The government concluded that in his purported attempt at cooperation, Scarpa, in collusion with Yousef, had perpetrated a scam.

         At the sentencing hearing in 1999, then-District Judge Reena Raggi, who had presided over Scarpa's 1998 trial, imposed prison terms at or near the top of the Guidelines ranges applicable to his various offenses, and ordered that several of the prison terms be served consecutively. In reaching its sentencing conclusions, the court observed that Scarpa had continued to engage in heinous crimes even from his jail cell (see Sentencing Transcript, May 7, 1999, at 108), and that he had repeatedly perjured himself at trial in a deliberate attempt to obstruct justice (see, e.g., id. at 109; id. at 90 (Scarpa "chose to take the stand and tell a story that . . . bordered on contempt of court")). The court imposed a total prison term of 482 months, to be served consecutively to the 240-month prison term previously imposed by Judge Glasser.

         The court declined Scarpa's request that the government be required to move for a § 5K1.1 reduction of his sentence, finding that there was no evidence that the government had refused to do so "invidiously" (id. at 35). The court found that Scarpa's purported assistance with respect to Yousef had yielded no positive results and had very little practical value (see id. at 12, 110); that the submissions indicated that the investigation undertaken by the government "involved tremendous expense and considerable inconvenience, not only to government agencies but also to various private entities" (id. at 12), making "a lot of people's lives . . . absolutely miserable" as a result of Scarpa's purported assistance (id. at 90); and that the government's refusal to make a § 5K1.1 motion was "in good faith" (id. at 110).

         B. Scarpa's Current Quest for a Substantial-Assistance Benefit

         After being sentenced in 1999, Scarpa was transferred to a maximum security prison in Colorado. From prison, he provided testimony to other district court judges in connection with crime family members' motions to overturn their convictions. However, his testimony was found to be problematic. In adjudicating a motion for reduction in sentence filed by another crime family member, Judge Weinstein of the Eastern District of New York, after hearing video testimony by Scarpa, found Scarpa "to be not credible." Orena v. United States, 299 F.Supp.2d 82, 84 (E.D.N.Y. 2004). Judge Sifton of the same district came to a similar conclusion in another case. See Russo v. United States, No. 03-cv-2059, slip op. at 56-57 (E.D.N.Y. Nov. 24, 2004).

         Soon thereafter, Scarpa embarked on his current quest for a substantial-assistance benefit. At the prison in Colorado, he propitiated another terrorist.

         1. Events in 2005

         In early 2005, Scarpa was housed near Nichols, who had been sentenced to 161 consecutive terms of life imprisonment for his role in the Oklahoma City bombing. In February 2005, Scarpa sought, through prison officials, to speak with law enforcement agents about information he had acquired from Nichols. After receiving no response, he contacted a team of private forensic investigators, Stephen Dresch and Angela Clemente, and told them he had learned from Nichols of the existence of a bomb that might be used for an act of terrorism in the near future. On March 1, Dresch, a Michigan resident, contacted the Detroit office of the Federal Bureau of Investigation ("FBI") and summarized the information he had received from Scarpa. See generally Scarpa, 155 F.Supp.3d at 237.

         On March 3, Scarpa was interviewed by FBI Special Agent J. Andrew Stearns. Shortly thereafter, Stearns returned with an FBI polygraph expert who conducted a polygraph examination of Scarpa. There was no immediate follow-up by the FBI because neither Stearns nor the polygraph expert believed Scarpa. According to Scarpa's fellow Colorado prisoner Emilio Bravo (a/k/a "Tito"), "Scarpa met with the FBI in early March 2005, but after he took a lie detector test, the FBI said he failed and told him never to call them again." (Declaration of Emilio Bravo dated March 26, 2013 ("Bravo Decl."), ¶ 3.) Scarpa's recollection was the same: In the polygraph examination, "one question was whether the notes I gave to Agent Stearns about Nichols' explosives were fabricated, and another question was whether I had ever lied to a corrections officer to get prison benefits. After I answered no to both questions, the [polygraph] agent accused me of lying, " and Stearns "told me that . . . I should never contact the government with any information again." (Declaration of Gregory Scarpa Jr. dated April 2, 2013 ("Scarpa Decl."), ¶¶ 11, 13; see also id. ¶ 9 (in Scarpa's initial interview with Stearns, "[i]t seemed Agent Stearns simply did not believe what I told him").)

         On March 10, Scarpa was interviewed by Dresch and Clemente. Dresch attempted to pass Scarpa's information to law enforcement authorities. When that failed, he contacted a congressman, who "pressed the FBI to take action on this tip." Scarpa, 155 F.Supp.3d at 238 (internal quotation marks omitted). FBI agents eventually searched Nichols's former home in Herington, Kansas, on March 31 and found a hidden cache of explosives components.

         In May, Scarpa's then-attorney Neil Checkman wrote to the United States Attorney's Office in the Eastern District of New York ("EDNY") to request that the government move pursuant to Rule 35(b) to reduce Scarpa's sentence based on his substantial assistance in the discovery of the Nichols explosives ...


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