United States v. Scarpa

861 F.3d 59, 2017 WL 2676241, 2017 U.S. App. LEXIS 11056
Court of Appeals for the Second Circuit·Decided June 22, 2017·No. Docket No. 16-303·Published·Cited by 3 cases

Opinion

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. Kor-man, Judge, reducing by 120 months the 482-month term of imprisonment imposed on defendant Gregory Scarpa Jr. (“Scar-pa”) 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 [61]*61at 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 [62]*62(“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 You-sef 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

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United States v. Scarpa, 861 F.3d 59, 2017 WL 2676241, 2017 U.S. App. LEXIS 11056 (2d Cir. 2017).

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