United States v. Mergen

• Decision Date: 21 August 2014
• Docket Number: No. 12–2873–cr.,12–2873–cr.
• Citation: 764 F.3d 199
• Court: U.S. Court of Appeals — Second Circuit
• Parties: UNITED STATES of America, Appellee, v. Volkan MERGEN, Defendant–Appellant.

764 F.3d 199

UNITED STATES of America, Appellee,

v.Volkan MERGEN, Defendant–Appellant.

No. 12–2873–cr.

United States Court of Appeals, Second Circuit.

Argued: Sept. 12, 2013.

Decided: Aug. 21, 2014.

Andrew J. Frisch (Jeremy B. Sporn, on the brief), The Law Offices of Andrew J. Frisch, New York, N.Y., for Defendant–Appellant.

Evan M. Norris (Emily Berger & John J. Dennehy, on the brief), for Loretta E. Lynch, United States Attorney, Eastern District of New York, for Appellee.

Before: KATZMANN, Chief Judge, JACOBS, Circuit Judge, and DUFFY, District Judge.^*

DENNIS JACOBS, Circuit Judge:

Volkan Mergen appeals from a judgment of conviction entered in the United States District Court for the Eastern District of New York (Garaufis, J.). Mergen had been for years a paid FBI informant operating inside mob families. In 2006, he participated with mob members in an arson without giving the FBI a pre-arranged signal that would have allowed the agency to abort the crime. (The government suspected that Mergen feared his status as a paid informant would end if the FBI, forewarned, intervened.) On June 5, 2006, Mergen entered into a cooperation agreement with the United States Attorney's Office, by which he would plead guilty to a Travel Act offense in connection with the arson (he bought gas in New Jersey to avoid surveillance on Staten Island) in exchange for a substantial-assistance letter. One provision of the agreement tolled the statute of limitations for prosecutions resulting from Mergen's breach and “premised upon, among other things,” Mergen's statements to the government, or his testimony, or leads derived therefrom. When Mergen breached that agreement by falsely disclaiming knowledge about a theft of three cheap watches, the government demanded that Mergen also plead to making a false statement; Mergen refused; and two superseding indictments were filed, charging him with the Travel Act offense as well as various criminal acts (drug distribution, attempted robbery, firearm possession, and related conspiracies) that the government learned about from persons who had been convicted based on Mergen's cooperation. Mergen was not charged with making any false statement.

Mergen brings this appeal from his conviction on all counts.

We reject Mergen's sufficiency challenge to the Travel Act conviction, but nevertheless vacate that conviction because the district court erred when it excluded, on hearsay and authentication grounds, a recording in which an FBI agent assured Mergen that he had done nothing wrong in connection with the underlying arson. As to Mergen's remaining convictions (for drug distribution, attempted robbery, firearm possession, and related conspiracies), we reverse because the wording of Mergen's cooperation agreement did not toll the (expired) statute of limitations for those offenses.

The facts recited in this opinion are taken from the trial record. Because the jury found Mergen guilty, we view the evidence “in the light most favorable to the government.” United States v. Geibel, 369 F.3d 682, 689 (2d Cir.2004).

I

In May 2001, Mergen contacted FBI Special Agent George Wright and agreed to become a paid FBI informant. Mergen's efforts over the next half-decade included wearing a wire while working with members of the Gambino and Bonanno crime families. Mergen's service was fruitful: he sometimes submitted so many recordings to the FBI that the agency could not keep pace.

In January 2005, Mergen began associating with a crew on Staten Island affiliated with the Bonanno family. The crew was led by Michael Maggio and also included Joseph Young and John Tufarelli. Mergen made hundreds of recordings of their conversations.

The following year, on January 24, 2006, Mergen warned the FBI that the crew was planning an arson that night. FBI Special Agent Anthony Zampogna, Mergen's then-supervisor, told Mergen that he was not authorized to participate in the arson and that the FBI would do whatever was necessary to prevent it—even if it meant ending Mergen's role as an informant. The FBI laid preparations near the target and gave Mergen a code phrase to use if the arson was imminent; he was to call and alert Special Agent Lauren Regucci, who would pose on the phone as Mergen's girlfriend, and tell her: “I'm running late.” The arson, however, was postponed when Mergen was able to distract Young. Nor did it happen the next day: Mergen told Agent Zampogna that Young was ill.

The arson was eventually committed in the early hours of January 27, 2006. Maggio told Mergen about the plan the prior afternoon; but although Mergen spoke with and met Agent Zampogna later that day, there is no evidence beyond Mergen's own testimony that Mergen took these opportunities to warn the FBI. Mergen did, however, record the conversations leading up to the arson, and later turned over those recordings to the FBI.

Mergen's recordings document the time-line of the arson and were used by the prosecution to demonstrate that Mergen passed up opportunities to give warning. At 9 PM on January 26, Young said “let's go to my house ..., pick up the gas cans in my garage, go take care of this kid.” See App. 108–09; Gov't App. 118. Over the next six hours, Mergen, Young, and Maggio planned and executed the operation. Mergen, in the presence of Young and Maggio, phoned several girlfriends, but did not call Agent Regucci to deliver the coded warning. Around 1 AM, Mergen, Young, and Maggio went to Young's home to pick up a propane bomb and gas canisters. Mergen suggested that they get gasoline from New Jersey, a useful precaution (he explained to the others) because, after the arson, law enforcement would review camera tapes from gas stations in Staten Island. The three drove to New Jersey, bought gasoline, and then returned to Staten Island to eat. At the diner, Mergen saw police officers enter, but did not alert them. At about 2 AM, Mergen told (another) girlfriend that he would be busy for the next half hour or so. Shortly before 3 AM, the crew went to the target house in separate cars. Mergen, who drove Young, parked near the target; Young ran out, firebombed the house, and ran back; all three drove away. Minutes after the house was set afire, Young left Mergen's car. At that juncture, Mergen called Agent Zampogna and told him that “[t]hey” had committed the arson.

Agent Zampogna testified that he and Agent Regucci were unaware the arson would occur and therefore did not prepare. The fire department put out the fire, but not before the owner of the house suffered cardiac arrest and had to be revived at the hospital.

II

After the arson, the United States Attorney's Office approached Mergen about a possible deal. On June 5, 2006, Mergen signed a cooperation agreement; he agreed to plead guilty to a Travel Action violation ( i.e., the trip to New Jersey to get gasoline for the arson), in return for a § 5K1.1 “substantial assistance” sentencing letter. The statutory maximum sentence for a Travel Act offense is five years' imprisonment. See18 U.S.C. § 1952(a)(3)(A).

That same day, Mergen waived indictment and pled guilty. His plea allocution recited that he “traveled with others by car ... to obtain gasoline to be used to set fire to a house.... In Staten Island, we drove to a house and one of the individuals set fire to the house using the gasoline. At the time of these events, I was cooperating with the government but I did not have authorization to set fire to a house or to obtain gasoline for that purpose.” Gov't App. 26.

The deal unraveled when, in a debriefing session months later, Mergen falsely denied knowledge regarding theft of three stolen fake watches worth about $75 in the aggregate. The government told Mergen he now had to plead guilty to an additional charge of false statement; Mergen refused; and the government decided to withhold a § 5K1.1 motion after all.¹ Mergen successfully moved to withdraw his plea, and refused to sign any new agreement without a § 5K1.1 commitment.

The standoff continued. Naturally, the government stopped paying Mergen his monthly stipend. Then, on September 24, 2009, the government filed a superseding indictment charging five additional counts: conspiracy to commit robbery, attempted robbery, firearm possession during the attempted robbery, conspiracy to distribute cocaine and marijuana, and actual distribution of cocaine and marijuana. A second (substantively identical) superseding indictment was filed on April 7, 2010.

The government gathered evidence of Mergen's participation in these crimes from the (obliging) targets Mergen had helped convict. At Mergen's trial, Tufarelli (a member of the Maggio crew) testified that he and Mergen began dealing marijuana in Staten Island in about early 2002; and that, after about a year of that business, he convinced Mergen to join him in selling cocaine, an enterprise that lasted until “early 2004 to 2005 maybe.” App. 201–03.

Tufarelli and Daryl Rosenblatt (another criminal associate brought down by Mergen) testified that, in August 2002, Mergen plotted to rob a check cashing operation run out of a Staten Island gas station parking lot; that, in preparation, Mergen supplied the other two with firearms, and enlisted as getaway driver; but that the attempt was frustrated when the target became suspicious.

Normally, the five-year statute of limitations would have barred prosecutions for offenses occurring before September 24, 2004. See18 U.S.C. § 3282(a). The government, however, relied on the tolling provision of the cooperation agreement, which, by the government's reading, allowed it to commence any prosecution not time-barred as of the date of the agreement's signing, i.e., June 5, 2006. Mergen moved to dismiss the additional charges as time-barred; the district court agreed with the government's reading and concluded that Mergen had waived the statute of limitations.

At the ensuing trial, the government used Mergen's own recordings and testimony from...