Deal With the Devil: The FBI's Secret Thirty-Year Relationship With a Mafia Killer

by Peter Lance

  Meanwhile, none of the investigators from the NYPD or the FBI took Scarpa’s prints. In his later testimony, Favo said that at the time there had been no reason to suspect Scarpa.20

  The pictures taken by law enforcement investigators were lost sometime before the spring of 1995,21 and shell casings found at the scene by the NYPD, which might have been used to identify the guns used by the shooters, mysteriously disappeared from police custody.22

  The Shooting Triggers the War

  Immediately after that shooting, in meetings with various crew members—including Larry Mazza, Carmine Sessa, and Joseph Ambrosino—Greg Scarpa used the incident to justify retaliation against “the Orena faction.”23 Scarpa and Little Linda were the only witnesses to the incident; the identifications of DeMartino and Ianacci, a.k.a. “Frankie Notch,” came later, secondhand, through Carmine Sessa, who claimed that one of his associates saw the pair switching vehicles in front of a club five blocks away.24

  As Scarpa’s surrogate during the war, Sessa helped to sell the shootout story to other family members, later testifying, “Everybody was mad that they broke the truce and they came after us and it was time for us to retaliate.”25 From that point on, according to Sessa, Scarpa decided to attack the “Orena faction.”26

  Given “34’s” capacity for treachery, the disappearance of forensic evidence, and the fact that Scarpa and his daughter seemed to be the sole witnesses willing to discuss the “attack,” Newman’s theory—that the shootout was a kind of “Reichstag fire”27 fabricated to justify the shooting war—carries considerable weight.

  “Would Gregory Scarpa Sr. have created such an event, with guns firing around his daughter and grandson?” asks Andrew Orena. “If he controlled the situation, he would have. If the so-called members of Billy Cutolo’s crew were really his own guys, and they fired in a controlled pattern so as not to hit Greg or his family, it’s absolutely within the realm of possibility when you consider that so far this war was going nowhere. My father [Vic Orena] was entirely playing defense. The Commission was keeping the peace, and Greg needed something big and loud to set things off.”28

  Funeral in an Empty Church

  A week after Scarpa’s death, Jerry Capeci, who FBI agents suggested benefited over the years from a close relationship with DeVecchio, wasn’t particularly kind to Lin’s Top Echelon source. “At the end Greg Scarpa went to his grave unrespected,” Capeci wrote in his “Gang Land” column.29

  Noting that Scarpa had been “a made man for four decades,” Capeci nonetheless commented that “not a single confederate” came to pay his respects at Scarpa’s funeral, which was held at St. Bernadette’s Roman Catholic Church in Bensonhurst. According to Capeci, the funeral procession consisted of only a hearse and four cars, a sparse congregation limited to Scarpa’s immediate family and a few neighbors.

  Scarpa Sr. was laid to rest in what Capeci described as a “polished golden oak coffin.” He quoted the priest, Father Eugene Cole, as reminding the attendees that “none of us live as his own master and none of us dies as his own master.” Humbling words over the coffin of the man who had ruled so mercilessly over the streets of Bensonhurst.

  “34” Worth More Than a Thousand Special Agents

  On the other hand, at least one agent loyal to Lin DeVecchio seemed to regard “34” as something of a mythic hero. In DeVecchio’s memoir he quotes Special Agent Pat Marshal, who worked on the Mafia Commission case.

  Those who accused Lin DeVecchio of being used by Greg Scarpa are people who have no understanding of what Greg Scarpa did for us at the risk of his own life. They lack this understanding either because they are ignorant, arrogant, blind, evil, or all of the above, and that includes some very FNGs in way over their heads way too soon. A thousand of them aren’t worth a hair on the head of “34,” TE Greg Scarpa.30

  “Think about that statement for a minute,” says James Whalen, a retired agent from the New York Office, “and you get some sense of the skewed priorities that existed within the Organized Crime Section of the NYO during this period. Here is a veteran agent insisting that a Mafia killer who took more than fifty lives is worth more than a thousand young agents. What does that tell you?”31

  Chapter 35

  BURNING A GOOD COP

  After Allie Boy Persico’s acquittal in August, the next big setback for Valerie Caproni and the Eastern District Feds prosecuting the war cases came in December, when a jury found Wild Bill Cutolo and six other Colombo wiseguys not guilty of murder and racketeering charges. “It’s my best Christmas ever,” Cutolo said as he left the court a free man.1

  On October 24, as the trial was under way, veteran Daily News investigative reporter Greg B. Smith broke the story of the FBI’s OPR internal affairs investigation of Lin DeVecchio. Under the headline “G-Man, Fed Atty Eyed in Mob Leaks,” Smith reported that the probe included not just DeVecchio but a possible assistant U.S. attorney in the EDNY who might have passed on sensitive information.2 The piece quoted the Cutolo trial judge, Eugene Nickerson, who seemed to support full disclosure:

  “It is best the truth come out,”3 he said, admitting that the allegations were “relevant to the question at the end . . . whether I should dismiss the case.” Smith also quoted defense attorney Alan Futerfas, who (with partner Ellen Resnick) had first discovered the Scarpa-DeVecchio relationship: “Scarpa was knowingly used by the government to further its attempt to create fratricidal warfare,” Futerfas said. It was the first public disclosure of the theory Futerfas and Resnick would later argue in multiple war cases: that “34” was acting not just as a source for the Bureau but as an agent provocateur who took advantage of FBI intelligence to wreak havoc within the crime family.4

  Later, New Yorker writer Fredric Dannen characterized that defense as the “‘comrades in arms’ theory of the war.”5

  On October 30, in a bylined story shared with Jerry Capeci, Smith reported that “DeVecchio is under criminal investigation for allegedly leaking secrets to Scarpa. The probe threatens to unravel at least five convictions and one ongoing trial.”6

  In a column on the day of Cutolo’s acquittal Jerry Capeci wrote that after more than a year in jail “Wild Bill is probably planning a wild Christmas party today.”7

  While that piece seemed at least somewhat sympathetic to Cutolo’s point of view, for most of the year Capeci had been merciless in covering another scandal out of 26 Federal Plaza that seemed designed by the Feds to explain the leaks now threatening so many war prosecutions. A year before Cutolo’s acquittal, Detective Joe Simone, who with his partner had been responsible for a third of the collars during the conflict, was shocked to learn that he was the target of FBI charges that he’d sold his badge to the Colombos.

  “Detective Stung by Feds”

  On December 8, 1993, Simone, who had hurt his back in the line of duty, was due to retire with a “three quarters” tax-free pension—the holy grail for cops and firefighters in the City of New York.* But early that morning, a line of police and FBI vehicles pulled up outside the modest house in Staten Island where he’d lived for thirteen years with his wife, Eileen, a nurse, and their five children. Within hours, Simone was under arrest for bribery, accused by agents from his own NYPD-FBI task force of leaking intel to Colombo wiseguys.

  The next day, rather than celebrating at a retirement party, Simone saw his name smeared across tabloids.8 “Detective Stung by Feds” read the banner headline over the Daily News piece by Capeci and Tom Robbins—a reporter who would later play a key role in demolishing DeVecchio’s murder prosecution.

  Former Detective Joe Simone, 2004

  (Peter Lance)

  “Detective Joseph Simone, who worked on the NYPD-FBI Organized Crime Task Force for seven years, was charged with selling information to the Orena faction of the warring Colombo family for two years, earning at least $2,000,” Capeci and Robbins reported in the article that ran December 9, 1993.9 Overnight, Joseph Simone went from a hero in his Staten Island community to a tabloid d
isgrace. “The roof caved in on my life,” Simone told me. “I never saw it coming.”10

  But precisely how Simone became the object of the FBI investigation, and the way it was conducted, raises serious questions about whether Simone was set up to take the fall for Lin DeVecchio—particularly since the government’s principal source for the accusation was Salvatore “Big Sal” Miciotta,11 a notorious Colombo soldier who admitted to his involvement in four murders and was later thrown out of WITSEC, the witness protection program.

  For years, Simone had been active with his sons in Little League and the football program at Tottenville High School on Staten Island. Occasionally he visited the home of the school’s coach, Phil Ciadella, whose uncle Alfonso “Chips” DeCostanza was a Colombo capo.

  “We had locked him up for guns during the war,” remembers Joe. “He used to inform for us. I’d go over there once in a while ‘cause Phil’s mother cooked old-style Italian.12 So one day I go to Phil’s mother’s house and who’s there but Big Sal and Bobo Malpeso, two Colombo capos.” As noted earlier, Malpeso’s son James had been shot by the “Persico faction” during the war.

  Simone told me he was “shocked” to see the two captains. “I didn’t expect them to be there,” he said. “I just went there to pick up plays.”

  In any case, Simone says that the three-hundred-fifty-pound Miciotta and Malpeso started talking to him as if they thought he might be willing to sell them information. “Bobo tried to pass me a piece of paper, but I didn’t touch it,” recalls Simone. “I couldn’t tell you to this day if it was a shopping list or an envelope.” Simone, who’d lived by street rules since his days as a kid in Gravesend, Brooklyn, knew a setup when he saw one.

  “I told ’em, ‘You guys are probably wired. I don’t want any part of you.’” At that point, according to Simone, Malpeso stripped down to his pants to show he wasn’t wearing a recording device. But as Joe left, he confronted Phil Ciadella. “I told him, ‘You got some fuckin’ pair of balls puttin’ me in a situation like this,’” Simone remembers. “Not long after that, I informed Favo and DeVecchio of what had happened.”

  Simone believes it was after his meeting with Favo that the Feds decided to set him up formally. In July 1993 he was called back to the same house by Coach Ciadella. As court records show, in the interim Miciotta had agreed to inform for the Bureau. Two agents later claimed that Big Sal approached them, but there was suspiciously no paperwork on file indicating that he’d made the offer.13

  Further, Miciotta alleged that, during their first meeting, the “paper” Bobo Malpeso offered Simone contained $1,500 in bribe money. Big Sal insisted that Simone took it, but the Feds needed corroboration, so a second meeting was arranged.

  This time, Miciotta was carrying a tape recorder. A transcript of his conversation with Chips DeCostanza before Simone arrived suggests that Miciotta didn’t believe he could corrupt the veteran cop.14 As the tape begins, Miciotta wonders aloud to DeCostanza whether he might get “help” from Simone because he’d gotten “pinched again.”

  Miciotta: I need a little information. I wanna find out what the fuck they’re gonna do with this case here. . . . You know, I’d do the right thing. I’ll take care of him.

  Decostanza: He don’t want nothin’.

  Miciotta: I’m glad to give him a couple o’ dollars.

  Deconstanza: You don’t have to give him nothin’.

  Moments later, in a reference to the flowers Wild Bill Cutolo had sent to Simone’s mother, Big Sal says:

  Miciotta: Billy’s the guy who burned him out, he sent him flowers. . . . In other words, he reached out for the guy; the guy didn’t respond.

  It was an acknowledgment by Miciotta that Joe wasn’t a man who could be bought. Then, for unknown reasons, just before Simone arrived, Miciotta shut off the tape recorder.

  During the meeting, according to Simone, Miciotta confessed that his son was “on the lam down in Florida.” The younger Miciotta was wanted by the NYPD’s Sixth Precinct for attacking a young aspiring priest, but it was his father who had broken the seminarian’s arm.

  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.”