United States v. Scarpa

155 F. Supp. 3d 234, 2016 WL 50763
CourtDistrict Court, E.D. New York
DecidedJanuary 4, 2016
Docket94-CR-1119 (ERK)
StatusPublished
Cited by3 cases

This text of 155 F. Supp. 3d 234 (United States v. Scarpa) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Scarpa, 155 F. Supp. 3d 234, 2016 WL 50763 (E.D.N.Y. 2016).

Opinion

MEMORANDUM & ORDER

Korman, United States District Judge:

On April 19, 1995, Timothy McVeigh detonated a bomb in front of the Alfred P. Murrah Federal Building in Oklahoma City, killing 168 people, including 19 children. The blast was the culmination of a plan hatched chiefly by McVeigh and a co-conspirator named Terry Nichols. Ultimately, the two men were tried and convicted of various crimes, including first-degree murder. McVeigh was executed. Nichols was sentenced to life in prison. While serving his sentence in the maximum-security prison in Florence, Colorado, Nichols informed the occupant of a nearby cell, Gregory Scarpa, Jr. (“Scarpa” or “the defendant”), that he had hidden an additional cache of explosive components before the bombing, which had been intended for use in another attack. Shortly thereafter, on March 3, 2005, Scarpa conveyed that information to an FBI special agent, who took no action based upon it. Nevertheless, less than a month later, this time -apparently pushed by a Congressman who had received information from persons acting on Scarpa’s behalf, the FBI conducted a consent search of Nichols’s former home and located and removed the explosives. Because the explosives had not been found earlier during a search undertaken in the aftermath of the bombing, the Associated Press reported that “[t]he extraordinary discovery, just three weeks from the 10th anniversary of the bombing of the federal building in Oklahoma City ... [was] likely to prove a new embarrassment to an FBI already burned by missteps in this case and the pre-Sept. 11 period.” FBI Finds Explosives in Home Where Terry Nichols Lived, USA TODAY (Apr. 1, 2005); see also id. (quoting Dan [236]*236Defenbaugh, the retired FBI agent who ran the Oklahoma City investigation, who was dismayed that his agency may have missed the evidence and stated, “When yon do a search warrant of that importance, you have to make sure it’s thorough.”); FBI at First Dismissed Tip on Nichols Explosives, NBC News (Apr. 14, 2005), http://www.nbcnews.com/id/7505601/ ns/us_news-erime_and_courts/t/fbi-first-dismissed-tipnichols-explosives/#.Vly-83ar S71. Indeed, “[t]his episode was serious enough to precipitate an investigation [by a congressional committee] to determine what else may have been missed or misan-alyzed in the original bombing probe.” Pet’r’s Mem. Supp. A.22 (Chairman’s Report, Oversight and Investigations Subcommittee of the House International Relations Committee), Mar. 26, 2009.

Scarpa, son of the infamous Colombo crime family enforcer Gregory Scarpa, Sr., has been designated to serve the remainder of his sentence at a state prison facility, where his prisoner “evaluations have exceeded expectations” and his adjustment “has been well above that of the typical maximum custody offender.” See Letter Attach., Feb. 27, 2015 (Status Update Report). Scarpa is suffering from Stage IV nasopharyngeal squamous cell cancer for which he has had multiple surgeries and has undergone chemotherapy and radiation treatments. See Fourth Addendum to Presentence Investigation Report 2, July 15, 2015, ECF No. 951. The relative five-year survival rate for a person with this type of cancer is thirty-eight percent.1 Scarpa’s incarceration results from his convictions, after a 1998 jury trial, for violating the Racketeer Influenced and Corrupt Organizations statute and for committing a series of related offenses. He was sentenced to 482 months in prison and is not projected to be released, even if he were to survive long enough to collect all available good time credit, until 2035. He would then be 84 years old.2

After his conviction was affirmed, United States v. Scarpa, 4 Fed.Appx. 115 (2d Cir.2001), Scarpa filed a pro se petition for a writ of habeas corpus. The- case was reassigned to me on October 11, 2006, and I appointed counsel for Scarpa on November 16 of that year. Scarpa ultimately made clear, through counsel, that he was “willing to forego” his habeas claims in order to focus on his petition for a “downward adjustment of his sentence” under Fed. R. Crim. P. 35(b) (“Rule 35(b)”) based on his “ongoing efforts to offer his substantial assistance.” Pet’r’s Mem. Supp. 4-5. According to his attorney, “at bottom, it really is about sentencing.... That’s the issue [ ] we were really pressing.” Hr’g Tr. 28, Aug. 5, 2010. Hearings on this and related issues were conducted on August 5, 2010, February 22, 2012, and November 20, 2012.3

BACKGROUND

In 1988, Scarpa was charged with a RICO conspiracy in violation of 18 U.S.C. § 1962(d) and related substantive offenses [237]*237for operating a drug trafficking enterprise as part of the Colombo organized crime family. He was convicted and sentenced by Judge Glasser to the statutory maximum of twenty years. Scarpa was then indicted again in 1995 for another violation of 18 U.S.C. § 1962(d), this time for yet another RICO conspiracy and for substantive offenses related to his operation of gambling, narcotics, and loan sharking businesses, as well as for tax fraud. Pet’r’s Mem. Supp. 1, 6. After a jury trial, he was found guilty of a single count of violating 18 U.S.C. § 1962(d) for conspiracy to commit murder and of financing extortionate extensions of credit, conspiracy to make those extensions, conducting an illegal gambling business, and conspiracy to defraud the United States in the collection of income taxes.

While awaiting trial on the second indictment, Scarpa was incarcerated at the Metropolitan Correctional Center in New York. During this time, he contacted the U.S. Attorney concerning information that he claimed to have obtained from a fellow prisoner, Ramzi Yousef, who had been indicted for his participation in the first World Trade Center bombing. Despite Scarpa’s purported cooperation with the federal authorities to obtain intelligence about Yousef over a period of almost a year, Hr’g Tr. 39, Aug. 5, 2010, the U.S Attorney determined that his assistance was part of “a scam” intended to send the government “on a variety of wild goose chases,” and refused to move for a reduction of his sentence, St’g Tr. 3.7:22-23,18:3, May 7, 1999. At sentencing for Scarpa’s 1998 convictions, Judge Raggi, without specifically finding that Scarpa had been engaged in a scam, determined that the U.S. Attorney had not acted in bad faith in refusing to move for a reduction based on the Yousef cooperation. St’g Tr. 37:21-38:1. She then sentenced Scarpa to a 482-month term of incarceration, to run consecutively to the previously imposed twenty-year sentence. See id. at 113:13-23. While she observed that Scarpa was not convicted of a murder in this case, she determined that his overall conduct and prior record were sufficiently serious so as to warrant the sentence she imposed. See id. at 64:1-2,110:7-12.

In 2005, Terry Nichols moved into a cell near Scarpa at the maximum-security prison in which he was then incarcerated. Pet’r’s Mem. Supp. 15, A.7 (Scarpa Aff. ¶ 9). Eventually, Scarpa persuaded Nichols to provide information about the cache of explosives that Nichols told him he had hidden in the house where he lived at the time of the Oklahoma City bombing.

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Related

Rosemond v. United States
378 F. Supp. 3d 169 (E.D. New York, 2019)
United States v. Scarpa
Second Circuit, 2017

Cite This Page — Counsel Stack

Bluebook (online)
155 F. Supp. 3d 234, 2016 WL 50763, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-scarpa-nyed-2016.