Deal with the Devil

by Peter Lance

  That revelation prompted Simone to make an immediate report to Chris Favo about the meeting. “As soon as I saw Favo again,” remembers Simone, “I told him about the son. ‘I got it from the horse’s mouth,’ I said. He was down in Florida. I told him that we ought to notify the Precinct Detective’s Squad where he is.”15

  After briefing Favo, Simone thought nothing further of it. It was his job to connect with mob guys and get information, and he’d reported to Favo, his immediate FBI supervisor, about both encounters. Simone continued with his task force work, and as the summer and fall of 1993 passed, he prepared to retire.

  Facing Sixty Counts

  Then, in the course of filing a claim for a disability pension, Simone obtained copies of his Daily Activity Reports (DARs)—a day-by-day, hour-by-hour record of his movements during his tenure at the task force. As a result, he happened to have those reports with him on the morning of his arrest, when other records in his desk were seized by Bureau investigators. By the end of the day on December 8 he’d been handcuffed and charged with taking a bribe from Miciotta. With the tape off, it came down to the word of a decorated veteran cop versus that of a violent mobster with an interest in cooperating with the Feds. But Simone lost.

  Despite the fact that he agreed to talk to NYPD detectives and FBI agents for three hours after his arrest without a lawyer present, and despite the fact that he offered to take a polygraph—which the Feds declined—Detective Joe Simone was indicted. He was so forthcoming that what he told the agents filled twelve and a half pages of an FBI 302.16 But not a word in that lengthy memo incriminated him.

  During the debriefing, Simone patently denied passing any intel to Mafiosi. He dutifully noted that he had kept both Chris Favo and Lieutenant William Shannon, his NYPD supervisor, in the loop regarding his meetings with Phil Ciadella.

  “Initially they had sixty counts against me,” says Simone. “Everybody was trying to dump what went bad in the Colombo wars on me—like wires . . . giving up CIs. . . . Everything. They ended up coming down to four counts: two attempted alleged bribery and two attempted alleged conspiracies.”

  In the Daily News, however, Capeci and Robbins treated him so harshly that it was as though he’d already been convicted. The sub-headline on their aforementioned “Detective Stung” story read “Sold Information to Colombos: FBI.”17

  “The FBI learned of Simone’s turncoat role last May,” they reported, “from a Colombo soldier who agreed to wear a wire and later taped Simone and DeCostanza in several incriminating conversations.”18

  That piece never mentioned the fact that the tape was shut off during that meeting, or that there was no record of the alleged bribe encounter. Capeci and Robbins included no qualifiers. The word “alleged” was never used. The article noted that “DeCostanza (whose cooperation the Feds sought) won a dismissal of weapons charges arising from an arrest during the height of the Colombo war.” But there wasn’t even a suggestion that DeCostanza’s plea might have represented a payoff from the FBI for setting up the veteran detective. The story noted that Simone had now been suspended from the NYPD and released on a $50,000 personal-recognizance bond.

  Two days later, Capeci and Robbins weighed in with a story about Big Sal Miciotta, under a sixty-point headline reading “Mob Biggie Aids FBI Sting.”19 The piece, which repeated the story that Miciotta had been wired, noted that he had been “hustled into federal protection” for his role in the arrest of “the gang’s top-secret mole in FBI headquarters—a New York City police detective.”

  By April, however, new evidence emerged that should have produced a retraction from Capeci and Robbins. The FBI admitted that Miciotta had switched off his tape recorder just before his meeting with Simone, so there was no record of the alleged bribe the Daily News team had reported as fact.

  Undeterred, Capeci filed a story under the headline “Short FBI Tape May Aid ‘Rogue Cop’ Defense.”20

  “Ever since he was charged with selling his badge to the mob,” wrote Capeci, “Detective Joseph Simone has waged a fierce and desperate battle for his reputation, his job, his pension and his freedom. . . . And thanks to a screw-up in the FBI plan to trap the suspected rogue cop, the double agent defense may work for him.”

  The piece never mentioned Simone’s heretofore unblemished nineteen-year career, or the fact that it was his word versus that of Big Sal Miciotta, a violent Colombo killer who had mercilessly brutalized a young priest.21

  Miciotta was later dropped by the Feds from witness protection after he lied on the witness stand in the murder-racketeering trial of six other Colombo members. Meanwhile, as ham-handed as the Feds had been in their attempt to set up Simone on the bribery charge, they were even more inept in trying to frame him.

  Eight Agents Tail Detective Simone

  At trial, in the same Brooklyn courthouse where Vic Orena had been convicted, the government presented evidence alleging that Detective Joe Simone had used his desk phone at 26 Federal Plaza to signal Colombo members (Scarpa style), typing the code 6-6-6 into a beeper. They also alleged that a female FBI agent on a pay phone outside a Staten Island deli had overheard him attempting to contact a known mob associate.

  On the day of his arrest, the FBI had emptied Simone’s desk. As far as federal prosecutors knew, the detective had no records to support his defense. “But what they didn’t count on,” says Simone, “was that I had my DARs. . . . Every time they had me at work tipping off one of these made guys,” he says, “the DARs proved that either my tour of duty was over or I was on vacation.”

  When I first interviewed Simone, in 2004, he showed me the pink DARs that convinced a federal jury of the FBI frame-up.

  “One time they actually used my office phone to beep a wiseguy, claiming I was trying to tip him off with the 666, and it turned out that I was in Wildwood, New Jersey, at the time with my family. No way was I gonna drive all the way back to Federal Plaza, three and a half hours, dial some sixes, and then go back down to Wildwood.”

  At trial, FBI Special Agent Lynn Smith testified under oath that, on September 23, 1993, she was part of an eight-person FBI surveillance team following Simone. She alleged that they tracked him to the deli-superette on the corner of Arthur Kill Road and Elverton Avenue, and that she overheard him talking on a phone “located outside [the] door of the superette.” Asked by Simone’s defense lawyer John Patton if there was one phone or two, she replied, “One on the left and one on the right, on each side of the door.”22

  But Simone’s attorney established that only one phone was located on a side wall of that deli—not a pair of phones by the front door, as Smith alleged. “We had the deli owner,” says Simone, “who was prepared to testify that there had never been two phones where this agent said she’d been.”

  “Understand the significance of this,” says Angela Clemente, the forensic investigator whose lawsuit uncovered the newly released Scarpa files. “The FBI is so intent on nailing this poor cop that they put eight agents on him. A female agent testifies under oath to a phone that doesn’t exist so they can make it look like Joe is calling to tip off wiseguys. The truth is he used to stop at that deli before coming home to call his wife and ask if she wanted him to bring home cold cuts for dinner. But the Bureau goes to all this trouble to make it look like he’s caught up in some major leak to the Colombos.”23

  In another instance, Patton showed the jury a series of documents supplied by the FBI that purported to prove that Simone had taken that $1,500 bribe. But the lawyer, a veteran of defending cops, lined up the staple marks on the copies to demonstrate that one of the incriminating pages had been replaced by the Feds after Joe’s arrest.24

  Favo’s Role in the Simone Investigation

  One of Simone’s chief accusers at trial was his immediate superior in C-10, Special Agent Chris Favo. What the jury didn’t realize, at the time, was that for almost two years leading up to Simone’s arrest, Favo had suspected his immediate supervisor, Lin DeVecchio, as the source of the Colo
mbo war leaks. But he’d kept quiet about his suspicions until January 1994, a month after Simone’s arrest, when he came forward with agents Leadbetter and Tomlinson.

  As noted, in the months that followed, Favo poured out his concerns about the alleged tainted Scarpa-DeVecchio relationship in a series of FBI 302s.25 But none of that kept him from taking the stand against Joe Simone.

  “At the start of trial, I was worried,” recalls Simone. “Not because I was guilty, but because of the way the jury was made up. There were these twelve Nordic, blue-eyed, blond-haired people,” he said. “There wasn’t an Italian American among them except for an alternate. No blacks. No Hispanics. None of the people you think of as New Yorkers. And I’m sittin’ there scared shitless. I see these people starin’ at me—especially the foreman. He just stared me down during the whole trial.”

  The real turn in the proceedings came during a lunch break, when Simone’s brother John was reading—ironically—the Daily News. “There had been a huge DEA bust,” remembers Joe. “And my brother calls me over with the paper and says, ‘Do you know any of these guys?’ And I looked at it and it said that Lindley DeVecchio was in charge of this DEA task force. I’m thinking, that can’t be right. He’s Mr. Organized Crime. So I go up to John Patton and say, ‘This doesn’t make sense—DeVecchio’s supposed to be the top guy in the country on wiseguys. Why would he be working drugs?’”

  Neither Patton nor his client had any idea that by then, under FBI suspicion, DeVecchio had been moved over to the DEA position. The OPR investigation had commenced, but except for some rumors Simone had heard, no one outside the Bureau or the Justice Department knew that DeVecchio was a target of an FBI internal affairs probe.

  “So right after lunch, when Favo gets on the stand,” says Simone, “John Patton decides to play a hunch and he takes a shot. ‘Is it true,’ he asks, ‘that your supervisor DeVecchio is under investigation for corruption?’ Suddenly, you can hear a pin drop in the courtroom and Favo says, ‘I’m not allowed to disclose that at this time.’”

  “That was it,” says Simone. “Confirmation that something was wrong. John turned around and gave me the Groucho eyebrows. That’s how we discovered that Lin DeVecchio was the bad guy and I had been set up to take the heat off him.”

  But the Feds, who by then were well aware of DeVecchio’s alleged leaks to Scarpa, didn’t make it any easier on Simone’s lawyer. “We tried several times to get the phone records,” Patton recalled. “LUDS—records from Joe’s phone that we could compare against his DARs. And each time, mysteriously, for those particular weeks, the phone people told us they were missing.”26

  “Sal Miciotta was the personification of evil,” says Patton. “The guy had no moral center. And it was simply his word against Joe’s, without a shred of probative corroborating evidence. The fact that they even got an indictment was outrageous. These prosecutors ruined the life of a great cop, just to cover for a dirty agent.”

  And yet, in the end, after hearing all the evidence, the jury acquitted Joe Simone on all counts. “I cried like a baby,” he says, “and the foreman, who I was scared of, stood up and yelled out, ‘Not guilty!’”

  Double Jeopardy

  The New York Times covered the verdict in a prominent two-column story: “Detective Is Found Not Guilty of Selling Secrets to the Mafia.”27 Newsday did the same: “Cop Not Guilty of Fed Rap.”28 Simone’s hometown paper, the Staten Island Advance, gave him a banner headline: “Detective Acquitted of Mob Charges.”29 Later, they followed up with a piece headlined “Cop Puts His Life Back Together. Simone: ‘It Feels Good to Be Free.’”30

  But Jerry Capeci was absent from the Daily News coverage of the acquittal. That job was left to Greg B. Smith. In a short one-column piece headlined “Juries Show Little Respect for ‘Big Sal,’” Smith reported, “A Brooklyn federal jury took just two hours to declare Detective Joseph Simone innocent.”

  Even that vindication was buried in the third paragraph of a story that focused on the extraordinary efforts by the Feds to protect the murderer and priest-beater Salvatore Miciotta. Still, Smith quoted a juror who told him that “no one believed the Feds’ witnesses, including Miciotta, who claimed Simone had fed him secrets.”

  Jerry Capeci’s “Gang Land” column two weeks later was headlined “Cop Still Treading Hot Water.”31

  “He was acquitted of federal charges that he sold his badge to mobsters during the bloody Colombo war,” wrote Capeci, “but it may not yet be all over for Detective Joe Simone. . . . The Feds can’t simply call a ‘do over’ in Simone’s case. But they can—and are—pushing city cops to pick up the ball they dropped and prosecute Simone on departmental charges that would cost the 19-year veteran his pension. Despite the acquittal charges, Gang Land sources say FBI agent Chris Favo and assistant U.S. Attorneys Stanley Okula and Karen Popp firmly believe Simone was guilty as charged.” Quoting an unnamed cop, Capeci blamed the acquittal on “just a bad jury.”

  Once again, the reading public was in the dark. Because of the secretive nature of the OPR process, no one outside of the FBI and Justice Department knew that one of the charges DeVecchio would face was Chris Favo’s accusation that his boss had regularly leaked confidential FBI information to none other than Jerry Capeci. The only hint of Simone’s point of view in that “Gang Land” piece was a quote from his lawyer, John Patton: “‘We’re not afraid of a G.O. 15,’ Patton said, in a reference to the regulation that forces cops to answer all questions or be fired.”

  Sure enough, the NYPD’s internal affairs division went ahead and filed charges. “They essentially mirrored the federal indictment,” said Patton, who was confident of an acquittal, especially after several former FBI colleagues of Simone agreed to testify on his behalf. But the NYPD “indictment” included a charge that Simone had “wrongfully failed and neglected to report to this Department a bribe offer”—a reference to the piece of paper Joe had refused to touch, which Miciotta had described as an envelope full of cash. It didn’t seem to matter that there was no independent proof that the paper Miciotta had tried to hand Simone was “a bribe.”

  Again, the proceedings would hinge on the word of a decorated detective—who the hearing examiner admitted had been “handpicked” for the elite Colombo task force—versus the allegations of Big Sal, one of the very suspects he had investigated.

  Now, in the NYPD hearing, Chris Favo was determined not to get caught off guard. When asked if his immediate supervisor, DeVecchio, was under investigation for leaking information, Favo said that he had been “directed not to answer.”32

  This time, the hearing officer—who tried the case without a jury—came down with what Patton described as “a horrendous decision.” Despite the fact that it was part of Simone’s job description to meet with mobsters and elicit information for the OCID Task Force, Deputy NYPD Commissioner Rae Downes Koshetz decided that the paper offered to Joe had been a bribe and that he should have reported it to his police department superiors, even though he had told both Chris Favo and DeVecchio about the encounter.

  Further, Koshetz seemed to conclude that Simone’s “guilt” was also directly related to his association with Phil Ciadella, the high school football coach, whose uncle was in the mob.

  Joe had testified fondly that he enjoyed going over to Phil’s house because Ciadella’s elderly mother and father “would treat [him] like their own son.” He described them as “seventy-, eighty-year-old people that I had respect for.” Despite the fact that neither of those pensioners had a criminal record, Commissioner Koshetz righteously declared:

  Members of this Department are forbidden to associate with known criminals. Even if Ciadella was not on a data base, his connection to the mob was too close for comfort. Moreover, the Respondent’s claim that associating with such people is part and parcel of living and raising a family in certain parts of Staten Island, is unavailing; if a New York City police officer can not conduct his personal life without associating with mobsters or their close re
latives, he is expected to move elsewhere.

  “This astonishing decision, in which Detective Simone was found guilty and stripped of his pension, suggested one of two things,” said Patton. “Either the hearing officer was incredibly naïve with respect to the fact that Joe was working in an OC squad and expected to mix with wiseguys as part of his job, or she was doing the bidding of the Feds.”

  One hint of an answer to that question came when William J. Bratton, who was police commissioner at the time of Simone’s guilty verdict, put off signing the final papers that would have stripped Joe of his pension. Bratton, who later served as LAPD chief, eventually retired from the NYPD and was replaced by Howard Safir, then FDNY commissioner. The appointment was made by then Mayor Rudolph Giuliani.33

  No Mercy from a Veteran Fed

  Safir had spent thirty-five years with the federal government. He had been assistant DEA director before becoming chief of the U.S. Marshals’ WITSEC Program—a unit with intimate ties to the Southern and Eastern Districts that monitored many of the turncoat mobsters that the FBI’s New York Office sought to protect.

  “The day Howard Safir became police commissioner after Bratton left,” says Joe, “that morning at nine something, he signed the papers saying that I was through.”

  Ironically, Rae Downes Koshetz, the hearing examiner who seemed so clueless about the way an OCID cop like Simone got intelligence from the mob, ended up serving as co-counsel along with legendary defense lawyer Eddie Hayes in representing ex-detective Stephen Caracappa, one of the so-called Mafia Cops.34

  As a measure of the injustice in the Simone case, because Caracappa and ex-detective Lou Eppolito were charged and convicted after their NYPD retirements, they were allowed to collect their tax-free disability pensions even though they are serving life terms.35 But Simone, who was acquitted of federal charges, was arrested just hours before his pension would have vested, allowing the department to take it from him.