U.S. v. Scarpa

• Decision Date: 23 February 1990
• Docket Number: No. 303,D,303
• Citation: 897 F.2d 63
• Parties: UNITED STATES of America, Appellee, v. Gregory SCARPA, Jr., Defendant-Appellant. ocket 89-1101.
• Court: U.S. Court of Appeals — Second Circuit

Page 63

897 F.2d 63

UNITED STATES of America, Appellee, v. Gregory SCARPA, Jr., Defendant-Appellant.

No. 303, Docket 89-1101.

United States Court of Appeals, Second Circuit.

Argued Oct. 30, 1989.

Decided Feb. 23, 1990.

Joseph R. Benfante, New York City (Judd Burstein, New York City, of counsel), for defendant-appellant.

Jerome C. Roth, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Matthew E. Fishbein, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for appellee.

Before OAKES, Chief Judge, MINER and MAHONEY, Circuit Judges.

MINER, Circuit Judge:

Gregory Scarpa, Jr., appeals from a judgment of conviction entered on February 27, 1989, after a jury trial, in the United States District Court for the Eastern District of New York (Glasser, J.). Defendant was found guilty of conducting a racketeering enterprise in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Sec. 1962(c) (1988); engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848(a) (1982 & Supp. V 1987); conspiring to distribute marijuana in violation of 21 U.S.C. Sec. 846 (1982); distributing marijuana in violation of 21 U.S.C. Sec. 841(a)(1) (1982); and two counts of conspiring to commit extortion, and one count of extortion, in violation of 18 U.S.C. Sec. 1951 (1988).

Judge Glasser sentenced Scarpa to terms of imprisonment of twenty years on the RICO, continuing criminal enterprise, extortion and extortion conspiracy counts; five years on the conspiracy to distribute marijuana count; and five years on the distribution of marijuana count. Judge Glasser also sentenced Scarpa to a five year term of special probation on the distribution of marijuana count, and imposed a $350 special assessment covering all counts. All prison terms were concurrent.

Scarpa contends on appeal that the district court erred in refusing to suppress statements he made after his arrest to an agent of the Drug Enforcement Administration ("DEA"). See United States v. Scarpa, 701 F.Supp. 379 (E.D.N.Y.1988). He asserts also that the district court erred in refusing to permit discovery of tape For the reasons that follow, we affirm.

recordings made by law enforcement authorities using a hidden microphone, which the government contends, and the district court found, reveal neither incriminating nor exculpatory evidence relevant to his case.

BACKGROUND

Scarpa was named with eight co-defendants in an indictment filed on November 2, 1987, charging various crimes involving an organized marijuana distribution business, and the use of murder and extortion to advance their goals. Two superseding indictments were filed, one on December 14, 1987 and the second on January 27, 1988. In each indictment, Scarpa was named as the leader of the "Scarpa Crew," a marijuana and extortion enterprise in which each of his co-defendants worked in different capacities selling marijuana at the College of Staten Island and several other locations in Staten Island and Brooklyn. The indictments alleged also that Scarpa participated in the extortion and, in one instance, the murder of rival drug dealers.

The eight co-defendants were tried jointly and convicted of various narcotics and extortion offenses. United States v. Scarpa, No. CR-87-760(s) (E.D.N.Y. Sept. 14, 1988), appeal argued, No. 88-1392 (2d Cir. Oct. 30, 1989). Scarpa, however, fled the jurisdiction, became a fugitive, and was not apprehended until eight months later. He was tried separately, following his arrest by DEA agents at a motel in Lakewood, New Jersey on August 29, 1988.

The marijuana business was a substantial operation with an established hierarchy and net profits of $20,000 per week on gross sales averaging $10,000 per night. Several attorneys regularly represented Crew members, and Scarpa was in possession of their phone numbers when he was arrested. Co-defendants Kevin Granato, Mario Parlagreco and Nunzio DeCarlo, all of whom reported to Scarpa, worked with Crew members at various "spots" where marijuana was sold. Christopher Gaeta and Eric Leon, two cooperating witnesses who had sold drugs for the Scarpa Crew, testified that Scarpa had spoken with them directly, that he had acknowledged to them that he was the "boss" of the marijuana business, and that other co-defendants also had recognized Scarpa as such.

Gaeta testified to a meeting with Scarpa and Kevin Granato outside the Wimpy Boys Club, a social club in Brooklyn where Crew members congregated. He also met with Scarpa in a car, a luncheonette and Mike's Candy Store. Scarpa instructed Granato to give Gaeta a marijuana spot on Fifth Avenue in Brooklyn. Granato gave Gaeta the spot, and told him that Scarpa was the boss of the Crew and a "wise guy," which he understood to mean a member of the Mafia. Gaeta testified that after he began selling marijuana for the Crew, Scarpa told him to seek out non-Crew marijuana dealers from whom Crew members could exact payments using threats and violence.

Leon started as a dealer of marijuana at the College spot and eventually was made manager of the spot. He knew of Scarpa's involvement in the marijuana business from both Crew members and Scarpa himself. Granato and DeCarlo each told Leon that the Crew worked for Scarpa. According to DeCarlo, Scarpa was a "capo" in the Colombo Family, and the Crew therefore did not have to worry about its enemies. Granato also told Leon that Scarpa protected the Crew. Scarpa himself complimented Leon on the management of the College marijuana spot after Leon took over operations from DeCarlo.

Leon, however, later had trouble with Scarpa and the Crew when he ran up a large drug-related debt. After he was warned by Granato that Scarpa wanted the debt repaid, Leon met with Scarpa at the luncheonette and offered to pay off the debt by working at the College spot for free. Leon returned to work at the spot and paid off some of his debt. On February 20, 1986, however, he was told to go to Mike's Candy Store. Scarpa was there and greeted him, but soon left. Granato gave Leon a quarter and told him he had fifteen minutes to raise $17,000. Granato said that Scarpa told him not to let Leon leave Testimony of the cooperating witnesses was corroborated by testimony of police officers who had observed and arrested Crew workers at the College spot, as well as by evidence connecting Scarpa with the co-defendants. Videotapes and photographs showed Scarpa wearing a beeper and talking with various co-defendants outside the Wimpy Boys Club. The government also established that Scarpa had substantial income from an illicit source, although Scarpa contends that the source was gambling, not drugs.

the store until the money was paid. After a few minutes of taunts from Crew members, he was beaten with a baseball bat and required hospitalization for a broken arm and other injuries.

The jury also heard tape recordings made by a government agent of conversations with DeCarlo, who had pleaded guilty to bribery in violation of N.Y. Penal Law Sec. 200.00 (McKinney 1988). DeCarlo said on the tapes that he reported to Gregory Scarpa, and that his "bosses" were aware of the payments.

On appeal, Scarpa does not challenge the evidence of illegal activities on the part of his co-defendants, who have appealed their convictions separately. Rather, he asserts that two evidentiary rulings were erroneous. These rulings involved statements he made following his arrest, and tape recordings made of conversations inside the Wimpy Boys Club.

Scarpa further contends that the evidence against him was too weak for the asserted evidentiary errors to be deemed harmless, and that they therefore require reversal of his conviction and a new trial. We find, however, no error in the challenged evidentiary rulings, and therefore do not reach the question of harmless error. We note that Scarpa makes no claim that, absent error in the evidentiary rulings, the evidence was insufficient to support his conviction.

1. Scarpa's Statements to Agent Gilbride

Scarpa was arrested by agents of the Drug Enforcement Administration at a motel in Lakewood, New Jersey, at approximately 2:00 a.m. on August 29, 1988, after 45 minutes of negotiations during which Scarpa refused to leave his room. Upon arrest, DEA Special Agent John Gilbride advised Scarpa of his Miranda rights, but Scarpa interrupted him stating: "I understand my rights, you don't have to go on." Despite Scarpa's statement, Gilbride completed the advice of rights, and then asked Scarpa if he understood those rights. Scarpa said he did.

Gilbride put on a hat, pointed to the logo from the television show "America's Most Wanted," and asked if Scarpa had seen the show. Scarpa, who had been profiled on the show, laughed and said he had seen the show. Gilbride testified that, when asked if he had an attorney, Scarpa "stated that he didn't have a lawyer, that he was going to get a lawyer. But he didn't know the guy's name." Gilbride inquired further and asked Scarpa if he knew the lawyer's name. Scarpa replied that he "didn't know the guy's name but he's the guy that defended Billy Meli when he bit the cop's ear off." Gilbride testified that he did not ask Scarpa if he wanted to waive his right to remain silent, because he did not intend to interrogate him. At 3:00 a.m. Scarpa was taken to the Lakewood Township Jail, and there was no further conversation with Gilbride at that time.

The next morning, Gilbride and a Deputy United States Marshal took Scarpa to the federal courthouse in Camden, New Jersey. Sometime before or during the trip to the courthouse, Joseph Benfante, a lawyer who had been retained by Scarpa's family, telephoned the Assistant United States Attorney in charge of the Camden office and received assurances that Scarpa would not be questioned. Benfante and the AUSA discussed Scarpa's arraignment in New York and a stipulation waiving extradition proceedings. Benfante also spoke with the United States...