Deal with the Devil

by Peter Lance

  During my research for Triple Cross, I sent a series of questions to Fitzgerald relating to his 1999 affirmation, but through his spokesman in Chicago he declined to respond. Then, beginning in October 2007, after Triple Cross was published in hardcover, Fitzgerald sent the first of four letters to my publisher, HarperCollins, totaling thirty-two pages, in which he claimed that I had defamed him in the book.*

  He not only demanded that we cease publication of the hardcover edition, but also that we kill the planned trade paperback edition.46 HarperCollins denied Fitzgerald’s claim, but we undertook a twenty-month review of my research during which Triple Cross was entirely re-vetted.

  Declaring the book “an important work of investigative journalism,” HarperCollins published the trade paperback in June 2009. The new edition included twenty-six additional pages, in which most of Fitzgerald’s allegations were published verbatim. His detailed assertions with respect to the 1999 sealed affirmation and John Napoli’s disclosures are contained in that edition and reproduced in the endnotes of this book.47

  The Significance of the “Hoax and Scam” Allegation

  For Larry Silverman, Greg Jr.’s lawyer at the time, the suppression of “the Scarpa materials” represented a massive counterterrorism setback. “I believe that if the Feds had played this out correctly,” says Silverman, “they would have had [an] Italian Mafia mole being accepted as somebody who these terrorists could rely on. By doing that the FBI would have been in a position to have identified and even followed members of the Yousef cell.”48

  “There’s little doubt that if the FBI had fully utilized this intelligence that was coming out of Ramzi Yousef through Scarpa Jr., they could have connected major dots on al-Qaeda’s strength in the summer of 1996,” says Lieutenant Colonel Anthony Shaffer, the Bronze Star winner who started investigating al-Qaeda for the U.S. Special Operations Command in late 1999. “As we found, Yousef and the Blind Sheikh’s cell in New York were directly connected to bin Laden and the al-Qaeda leadership.”49

  The decision by federal prosecutors and senior FBI officials to write off “the Scarpa materials” would have far-reaching counterterrorism ramifications in the years to come. As the clocked ticked down on Yousef’s “planes as missiles” plot, it would now be carried out by his uncle Khalid Sheikh Mohammed, who had twice eluded the FBI—first in Islamabad, Pakistan, in February 2005, and a year later in Doha, Qatar.

  Chapter 39

  JUNIOR’S SECOND STING

  On May 20, 1996, while Greg Scarpa Jr. was still at work betraying Ramzi Yousef for the FBI, Lin DeVecchio took the stand in a hearing before Judge Jack B. Weinstein to determine whether Vic Orena Sr. should get a new trial.

  “On advice of counsel . . . I cannot answer your questions because of my Fifth Amendment privilege,” DeVecchio said.1

  But Orena’s lawyer Gerry Shargel kept questioning him. “Did there ever come a time when you met a man named Gregory Scarpa?” he asked.

  “My answer is the same as the previous one,” said the supervisory special agent.

  After two more questions, Judge Weinstein stepped in, asking DeVecchio if his answers would be the same for the rest of the examination. When he replied, “Yes, Your Honor,” Shargel tried to press on, but Weinstein halted the questioning.

  “I don’t want to make a circus of this,” he said. “Nothing is to be gained by your asking him . . . one hundred questions or so forcing him publicly to reiterate his constitutional privilege.”2 So Shargel asked the judge to “draw the adverse inference from DeVecchio’s taking the Fifth Amendment that he did leak information and that it affected the outcome of Orena’s trial.”3

  A few days later, Weinstein ordered the Feds to release more than one hundred pages of FBI 209s and other files detailing the FBI’s secret relationship with “34.”4 And by November, Weinstein made it clear that he would grant Shargel’s “adverse inference” motion if DeVecchio didn’t step out from behind the Fifth Amendment.

  By December, the Justice Department announced that it would consider granting Lin immunity a second time.5 In late January 1997, under growing pressure, DeVecchio’s attorney Doug Grover promised, “If he gets immunity, he’ll tell the truth.”6

  “How many times have you heard that a former FBI agent took the Fifth Amendment?” asks Larry Silverman. “The government was forced to grant him immunity—otherwise he wouldn’t testify.”7

  A month later, Judge Charles P. Sifton, who was then chief judge in the EDNY,8 threw out the murder convictions of Anthony and Jo Jo Russo and Joseph Monteleone for the pastry shop murders of John Minerva and Michael Imbergamo.9 Noting that the Feds had failed to disclose Greg Scarpa Sr.’s pattern of blaming others in his FBI reports for murders he himself had committed, Judge Sifton strongly criticized the relationship between “34” and his handler, Lin DeVecchio, calling it

  a highly reprehensible trading of information between a law enforcement official and a criminal. . . . Scarpa emerges as sinister and violent and at the same time manipulative and deceptive with everyone including DeVecchio. DeVecchio emerges as arrogant, stupid or easily manipulated but, at the same time, caught up in the complex and difficult task of trying to make the best use of Scarpa’s information to bring the war to a close.10

  Now, on February 28, 1997, after finally getting immunity a second time—and after his lawyer promised he’d tell the truth—Lin DeVecchio took the stand and Gerry Shargel finally got a chance to question him about his alleged “unholy alliance” with Greg Scarpa Sr. Asked if he was Scarpa’s “law enforcement source,” DeVecchio snapped, “That’s nonsense. That’s absolutely incorrect.”11 Then, insisting that William Doran, his boss in the FBI’s New York Office, “was well aware the informant committed acts of violence,” Lin seemed to get amnesia.

  In response to more than fifty questions from Shargel, he responded, “I don’t recall,” or words to that effect.12

  “Lin had promised to tell the truth if he got immunity a second time,” says Andrew Orena, “and now he was dodging Gerry Shargel’s pointed questions. Most of us watching this in the courtroom were amazed.”13 Among the spectators were a number of FBI agents, two federal judges, and Allie Boy Persico, whose release was due in part to Greg Scarpa Sr.’s dying declaration.14

  On March 10, Judge Weinstein issued a 101-page “judgment, memorandum and order” denying Vic Orena’s petition for a new trial. In the opinion Weinstein acknowledged that:

  Scarpa was well-paid by the F.B.I. for his information. What is possible, but not self evident, is that DeVecchio also “paid” Scarpa by passing along information, creating a two-way street for communication that was dangerous and un-authorized. Did DeVecchio do this? Was he so captivated by Scarpa as to have reversed their roles? Defendants emphatically answer “yes” to both questions.15

  But as to Orena’s allegations that key exculpatory “Brady material” was withheld from the defense at the time of Vic Orena’s trial—evidence of the allegedly corrupt relationship between Scarpa and his control agent—Weinstein reached this conclusion:

  There was . . . no “suppression” of evidence of this naked fact of informer status. The court concludes that defendants knew, or should have known, that Scarpa was likely to have been an informant. There is no “suppression” where defendant or his attorney “either knew, or should have known, of the essential facts permitting him to take advantage of [that] evidence.”16

  “It’s an absolutely astonishing conclusion,” says Flora Edwards. “Judge Weinstein decided that defendants like Vic Orena Sr. were somehow supposed to have known about this ultra-secret Top Echelon informant relationship that was known to only a handful of people in the FBI.”17

  Weinstein then crystallized the defense’s principal theory for the appeal and rejected it:

  Even accepting these assumptions, and acknowledging the Scarpa-DeVecchio connection’s troubling coziness, does not warrant the further inferences that Scarpa had a license to kill bestowed upon him by DeVecchio, t
hat he committed the Ocera murder, that he initiated and fueled a faux Colombo War to consolidate his power, and that he did all this with DeVecchio’s authorization and assistance. Even if all the information defendants have presented in their “record” were found to be subject to Brady—and it is not . . . the sum of it would still be insufficient to support so fantastic a theory.18

  Just eighteen days after Charles P. Sifton, chief judge of the Eastern District, had considered the same suppression of evidence of the Scarpa-DeVecchio scandal sufficient grounds to throw out the murder convictions of the Russos and Monteleone, Jack Weinstein interpreted it from the government’s point of view—and denied Vic Orena a new trial.

  Four Decades in the Supermax

  Eighteen months later, in September 1998, Greg Scarpa Jr. came to trial. He arrived hoping that, after he’d risked his life ratting out al-Qaeda terrorists, the Feds might grant him a portion of the consideration they’d shown his father for more than three decades.19 But Judge Reena Raggi, a former EDNY prosecutor who presided at his trial, was unsympathetic. After allowing less than an hour of testimony from Greg Jr. about the Yousef initiative, Raggi accepted the government’s argument that Scarpa’s undercover work for the Bureau was insignificant and more likely “part of a scam.”20

  Reena Raggi was no stranger to the Scarpa family. In fact, twelve years earlier as an AUSA in the Eastern District, she signed the indictment of Junior’s father in the Secret Service’s credit card case—the very case in which Lin DeVecchio had intervened with Judge I. Leo Glasser to urge leniency for Scarpa Sr.21

  Testifying under a grant of immunity, Lin took the stand at Junior’s trial and denied any wrongdoing in his dealings with Greg Jr.’s father.22

  Although the younger Scarpa was acquitted at trial of five murders, the jury was persuaded that he was guilty of loan sharking, bookmaking, and tax fraud. During the trial, Greg Jr. renounced his life in the Mafia, doing exactly what Judge Weinstein had asked his father to do at the time of his sentencing. “I’m washing my hands of everything,” he testified. “I don’t want to do nothing with nothing. I don’t want to know nobody.”

  He argued that he’d been in prison during the 1990s war and hadn’t received a penny from his old man since 1989.23 Greg Jr. also tried in vain to call John Napoli as a witness, to help the jury understand what he risked in ratting out Ramzi Yousef.24

  But Judge Raggi seemed unmoved by Junior’s undercover work for the FBI. Accepting the government’s “scam” theory, she threw the book at him, sentencing him to forty years in the same prison that housed Yousef and Murad: the Supermax in Florence, Colorado.

  “The double standard shown to my brother, considering what he did with those terrorists, was beyond belief,” Greg’s younger brother Frank told me in an interview. “If you look at the record of what our father did and how Greg Jr. in every instance was executing his orders, the fact that he tried to help his country against Yousef and the others and got forty years in return shows you how the Feds just wanted to bury the DeVecchio scandal with my brother. They were much more concerned with saving those war cases than getting to the truth.”25

  Greg Jr. wasn’t heard from again publicly until January 2004, when Flora Edwards managed to convince Judge Weinstein to grant Vic Orena Sr. a second hearing for a new trial.26 Testifying via video link from ADX Florence, Greg Jr. reiterated what he’d sworn to in affidavits in 1999 and 2002.

  Junior, who kept the books for his father, testified that DeVecchio was paid more than $100,000 over the years in return for his inside help, rewarded with vacations to places like Aspen, and treated to call girls in a Staten Island hotel.27 He testified that he’d watched FBI surveillance videos of the Wimpy Boys club, which were provided to his father by DeVecchio. He swore that Lin had acted as “a lookout” on one of the bank robberies by the Bypass crew.28 He insisted that his father had killed Tommy Ocera. And he reaffirmed that his brother Joey had planted the bag of guns under Vic Orena Sr.’s girlfriend’s deck while his father and DeVecchio waited in nearby cars.29

  In a filing prior to trial, Assistant U.S. Attorney Patricia Notopoulos wrote that Junior’s allegations “suggest[ed] recent fabrication.”30

  After the hearing on January 7, 2004, Judge Weinstein seemed to agree. In keeping with his refusal to show any mercy to the elder Orena, he issued a brief decision declaring that “the court finds this witness [Gregory Scarpa Jr.] to be not credible.”31

  Weinstein, who had presided over Vic Sr.’s trial—in which the conviction rested in part on the highly questionable testimony of low-level Colombo wannabes Michael Maffatore and Harry Bonfiglio—did not accept the notion that Greg Jr. might be speaking the truth. Despite the astonishing evidence the younger Scarpa had produced from the Ramzi Yousef sting—most of which was self-authenticating—Weinstein simply did not believe Junior’s testimony about his father’s dealings with DeVecchio.

  Informing on a Homegrown Terrorist

  Then, a year later, an extraordinary event occurred inside the Supermax that once again underscored the younger Scarpa’s credibility. Confined to a seven-by-twelve-foot cell in the prison known as the “Alcatraz of the Rockies,”32 Greg Jr. was locked down in solitary. At some point in 2005 he found himself in a hardened cell adjacent to that of Terry Nichols, the disgruntled army veteran convicted with Timothy McVeigh of planting the bomb on April 19, 1995, that killed 168 people at the Federal Building in Oklahoma City.

  The Murrah Federal Building after the 1995 bombing

  Communicating with Nichols via the pipes connected to the back-to-back sinks in their cells,33 Greg Jr. learned chilling details about a cache of nitro-methane-based high explosives that the FBI had somehow missed during a search of Nichols’s former home in Herington, Kansas.

  Nichols told Scarpa Jr. that these explosives lay buried in a crawl space beneath the house and the convicted bomber was fearful that unknown persons might find them and use them on the upcoming tenth anniversary of the Murrah Building blast in April.34 According to Nichols, the binary explosives were buried with an ammunition can under a pile of rocks beneath the house, which the Bureau had supposedly searched following his arrest ten years earlier. He then pinpointed for Greg Jr. the precise location and gave a detailed description of the Kinestik explosives, which could be detonated with blasting caps.

  Terry Nichols and his former home in Herington, Kansas

  In Triple Cross I detailed how the word from Nichols to Scarpa Jr. was passed to forensic investigator Angela Clemente and how the FBI initially refused to take action. At that point Valerie Caproni had risen to become the Bureau’s general counsel—the top lawyer at the Hoover Building in Washington. A polygraph specialist was eventually sent to the Supermax and reportedly concluded that Scarpa Jr. had failed a lie detector test.35 After learning details of the “test” that suggested that it hadn’t been properly administered, I contacted John Solomon, who was then chief of the Associated Press’s Washington bureau. Following the intervention of two members of Congress, Representative Dana Rohrabacher, a California Republican, and Representative William Delahunt, a Massachusetts Democrat, the FBI reluctantly conducted a search of Nichols’s old house.

  The result: In precisely the same part of the crawl space in boxes described precisely by Greg Scarpa Jr., the special agents found the Kinestiks.

  Two days after the search Solomon reported:

  WASHINGTON (AP) The FBI is facing the possibility it made an embarrassing oversight in the Oklahoma City bombing case a decade ago after new information led agents to explosive materials hidden in Terry Nichols’ former home, which they had searched several times before. FBI officials said the material was found Thursday night and Friday in a crawl space of the house in Herington, Kan. They believe agents failed to check that space during the numerous searches of the property during the original investigation of Nichols and Timothy McVeigh. “The information so far indicates the items have been there since prior to the Oklahoma City bombing,” Agent
Gary Johnson said in a telephone interview from Oklahoma City.36

  In a follow-up story on April 14, 2005, the AP’s Mark Sherman reported, “While the FBI found no evidence supporting the idea that an attack is in the works for Tuesday’s 10th anniversary [of the Oklahoma City bombing], the information that explosives had been hidden in Nichols’ former home in Herington, Kansas, turned out to be true.”37

  In that story, Sherman confirmed that “the tip came from imprisoned mobster Gregory Scarpa Jr., 53, a law enforcement source said this week.”

  “Clearly the FBI—particularly Valerie Caproni, the general counsel—had every interest in discrediting Gregory Scarpa Jr.,” said Clemente, who first supplied me with Scarpa Jr.’s trove of intel from Yousef back in 2004. “Caproni was privy to Scarpa’s intel about Yousef. She thought he would be buried forever and they would throw away the key and now, here he was in March of 2005 tipping the FBI to another major embarrassment connected to a massive act of terror.”38

  It was the second time Greg Scarpa Jr. had given compelling and credible intelligence to the government in an effort to interdict possible acts of terror—a development that obviously supported his credibility. I had told much of his story in my 2004 book Cover Up. Now, in the fall of 2005, after Angela Clemente provided Congressman Delahunt with additional intelligence on the Scarpa-DeVecchio relationship, Delahunt’s office contacted the Brooklyn DA.

  The Other Top Echelon Scandal

  Delahunt made the referral because he knew only too well about problems related to a potentially compromised FBI agent. In the mid-1970s, when he was serving as the district attorney of Norfolk County, near Boston, Delahunt’s own office had been stonewalled in an almost identical pattern to the Scarpa-DeVecchio case. At the center of that case was James “Whitey” Bulger, the bloodthirsty head of the notorious Winter Hill Gang, who had evaded arrest for years due to his own status as a Top Echelon informant for the FBI.