US v. Gregory Scarpa, Jr., (2nd Cir, 6/22/17), Federal Sentencing Issue, REVERSAL on Substantial Assistance Granted by Sentencing Judge

June 30th, 2017
Elizabeth Franklin-Best

I’m highlighting this case because it’s unusual, and also involves the high profile case of the Timothy McVeigh terrorist attack in Oklahoma City. Also, Scarpa is a “made member” of the Colombo crime family. Here, the government appealed the judgment of District Court Judge Edward R. Koman after he reduced Scarpa’s sentence by 10 years based on a pro se 35(b) motion that claimed Scarpa 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 (the co-conspirator in the 1995 bombing of the Alfred P. Murrah Federal Building). The judge reduced the sentence without the government’s filing a motion asking it to do so, and over its opposition for these reasons:

1) its finding that Scarpa rendered substantial assistance,

2) that a 2012 affidavit filed by the government erroneously stated that the 2005   search of the Nichols’ house was conducted pursuant to a search warrant, and not     due to the consent of a real estate agent,

3) the government declined to provide evidence as to the negative factors in the cost-benefit analysis that led it to refuse Scarpa’s request for the 35(b) motion,

4) 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 the 35(b) motion.

The government opposed the reduction and appealed to the Second Circuit arguing that its decision not to move for a sentence reduction was justified because of its concerns about a prior sham proffer of cooperation, other pre-2005 attempts to obstruct justice, and a 2005 polygraph indicating untruthfulness as to the Nichols’ matter, and that the court misapplied the applicable legal standards in concluding the judge could reduce the sentence in the absence of a motion by the government.

This case reads like a movie-script. Scarpa was initially arrested in 1988 on RICO charges.  He was tried, convicted, and sentenced to 20 years in prison. While in prison, he continued to do naughty things and he was again tried for conspiracies involving the murders of four people, including one murder attempt that Scarpa authorized while imprisoned and awaiting trial. While waiting for his trial on the 1995 charges, he was held in a cell adjacent to Ramzi Yousef, the organizer of the 1993 bombing of the World Trade Center.  Scarpa contacted the government and said he had valuable terrorism-related information that he obtained from Yousef.  In 1999, Scarpa moved for a 35(b) sentence reduction motion based on this information.  The government concluded that Yousef and Scarpa had colluded to perpetrate a scam on the government.  After his trial, the judge then sentenced Scarpa to a term of 482 months to be served consecutively to the 20-year term he was already serving (so, roughly a 60-year total term of imprisonment).  After this, he was sentenced to the Supermax Prison in Florence, Colorado where he made friends with yet another terrorist!

Scarpa again contacted the government and said he had important information to give them.  He met with FBI agents and took a polygraph.  He flunked the polygraph and the FBI didn’t believe him.  Scarpa then contacted a congressman with information about Nichols’ house, and the congressman leaned on the FBI to do something about it.  They searched Nichols’s house and found a hidden cache of explosives components.  Then Scarpa’s lawyer tried to get the government to file a 35(b) motion. They declined to do so. They essentially believed that Scarpa was a bullshit artist, and they didn’t want to deal with him.  After this there were protracted legal proceedings between Scarpa’s lawyer and the government about getting the sentence reduction.  Fast forward, and on January 4, 2016, the district court judge granted the motion!

The judge basically found that Scarpa helped the government find the cache of explosives and that the government’s refusal to file the 35(b) was arbitrary and irrational.

The Second Circuit found the district court exceeded its authority.  The Court found that a lower court cannot override the government’s refusal to make a 35(b) motion on the basis of the court’s own balancing of the costs and benefits of making the motion.  In doing so in this case, the court imposed unwarranted constraints on the Executive Branch:

            “In sum, when the U.S. Attorney has refused to make a Rule 35(b) motion for reasons that are not invidious or unrelated to a legitimate government concern, it is not the office of the court to weigh the equities or reassess the facts underlying the government’s exercise of its discretion.”

So, the short of it is that, absent clearly improper considerations on the part of the government, interests of federalism constrain the power of the judiciary to oversee the government’s decision to file motions for sentence reduction on behalf of defendants.  Important information to know.  The Court sent the matter back to the district court to re-impose the earlier sentence.

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