Department of Justice Office of Inspector General Special Report 2005

The Federal Bureau of Investigation's Compliance
with the Attorney General's Investigative Guidelines
(Redacted)

Special Report
September 2005
Office of the Inspector General

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Chapter Three: The Attorney General's Guidelines
Regarding the Use of Confidential Informants

The case of informant Gregory Scarpa, Sr. is an example of how an informant's unauthorized illegal activity can compromise criminal prosecutions. As described in the following case study, the FBI's informant relationship with Scarpa, a "capo" of a New York organized crime family, became controversial in several significant federal prosecutions in the 1990s. According to testimony presented in these cases, Scarpa's FBI handler ignored unauthorized criminal activity by Scarpa; revealed confidential law enforcement information to him, including the FBI's planned surveillance of a mob hangout; and helped Scarpa's son avoid arrest.

Confidential Informant Case Study 2
FBI Informant Gregory Scarpa, Sr. and his FBI Handler,
R. Lindley DeVecchio

Gregory Scarpa, Sr., who was involved in organized crime for most of his life, served as an FBI confidential informant at various times from 1980 until the early 1990s. His relationship with the FBI and, in particular, with his sole handler, R. Lindley DeVecchio, factored in a number of major prosecutions against New York members of La Cosa Nostra (LCN) in the 1990s. In some cases, Scarpa's status as an FBI informant was known during trial; in another, it was not revealed until post-conviction motions were filed and Scarpa had died.

Victor Orena and Pasquale Amato. In two separate federal trials in 1992 and 1993, juries found Victor J. Orena, the "acting boss" of the Colombo Family, and Pasquale Amato guilty of racketeering, conspiracy, and firearms charges. The events leading to the convictions of Orena and Amato stemmed from the "Colombo Wars," a power struggle between two Colombo factions, the Persicos and the Orenas that lasted from the fall of 1991 through the spring of 1992. At Orena's trial, DeVecchio, who headed the Colombo LCN squad in the FBI's New York Field Office, testified as an expert witness about the nature and structure of organized crime. Both defendants were sentenced to life in prison, and the Second Circuit affirmed both convictions and sentences.

Years after their convictions and following exhaustion of all appeals, Orena and Amato filed motions for dismissal of their indictments or for new trials alleging a violation of the government's disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963). Their motions were based upon DeVecchio's "questionable ethics and judgments" as revealed in proceedings in another case. After learning that Scarpa was a long-time FBI informant, Orena and Amato contended that it was not they, but DeVecchio, who conspired with Scarpa to instigate the Mafia war and caused the killing of their partner and loan shark, Thomas Ocera, one of the murders for which Orena and Amato were convicted.

The trial court denied the post-trial motions. Orena v. United States, 956 F. Supp. 1071 (E.D.N.Y. 1997). However, the court closely examined the relationship between DeVecchio and Scarpa, who rose to the position of a "capo" or captain in the Colombo family. According to the trial court, in the 1970s and perhaps as early as the 1960s, Scarpa had been regularly in touch with an FBI agent. The relationship was broken off until DeVecchio succeeded in renewing Scarpa's informant status in December 1980. DeVecchio acted as Scarpa's sole FBI handler from that time until Scarpa was finally terminated as an FBI informant after the Colombo Wars were over in 1992, despite an FBI protocol which required informants to be handled by two agents at a time.

As a "top echelon" informant, Scarpa initially provided the FBI with information pertaining to organizational activity and personnel movements within the Colombo Family. After the Colombo Wars commenced in late 1991, he provided detailed reports of perpetrators and strategic planning of the opposing factions.

The court found that DeVecchio reciprocated by passing along unauthorized information to Scarpa. For example, evidence was presented indicating that DeVecchio warned Scarpa of his pending arrest on federal credit card fraud charges and may have intervened with the sentencing judge to request lenient treatment. There also was suspicion that in 1987 DeVecchio leaked to Scarpa information that the Wimpy Boys Social Club, a favorite Colombo gathering place, was subject to court-ordered electronic surveillance; that he tipped off Scarpa to the planned DEA arrest of his son, Gregory Scarpa Jr., and others in connection with the criminal activity at the social club; and that, as a result of the warning, Gregory Scarpa, Jr. became a fugitive. With respect to the Confidential Informant Guidelines, the court also found that:

         ·            On March 3, 1992, Scarpa was closed as an informant after the ASAC of the Criminal Division of the New York FBI Division, Donald North, "found credible allegations that Scarpa was involved in planning violent criminal activity." In informal conversations with North, DeVecchio was allegedly "adamant" that Scarpa was not involved in violent activity. In early April 1992, DeVecchio initiated the process of having Scarpa re-opened, and the FBI granted authority to re-open Scarpa on April 8, 1992, pending completion of a suitability inquiry. On April 22, 1992, DeVecchio notified FBI Headquarters that such an inquiry had been conducted and that Scarpa was deemed suitable.

         ·            During the summer of 1992, Special Agent Christopher Favo, who was working with DeVecchio during the investigation, became strongly suspicious of DeVecchio. Believing that DeVecchio was engaged in misconduct and fearing that he might disrupt current investigations, Favo began to withhold information from DeVecchio pertaining to Scarpa. Other subordinates of DeVecchio's suspected that Scarpa was a murderer, but none of them reported their suspicions about Scarpa or DeVecchio to superiors or to the United States Attorney despite the fact that the Informant Guidelines required agents to report any knowledge of an informant committing violent crimes.

         ·            Scarpa was arrested by the New York City Police in August 1992 on a firearms charge. Shortly thereafter, a federal indictment charging Scarpa with the commission of the three murders, among other crimes, was handed down. Scarpa was released on bail under strict house confinement as one of the conditions of release because of failing health. In late December 1992, his bail was revoked because of his involvement in a shooting. Scarpa was sentenced to ten years in prison in December 1993 after pleading guilty to two counts of murder.

         ·            In January 1994, Favo and other agents approached ASAC North to report their concerns about DeVecchio's relationship with Scarpa. Consistent with FBI policy, North immediately submitted a report to the FBI's Office of Professional Responsibility (OPR). OPR determined that DeVecchio was appropriately a subject of investigation. In September 1996, the Public Integrity Section determined that prosecution of DeVecchio was not warranted, and the OPR investigation was closed. DeVecchio retired from the FBI in October 1996. Scarpa died in a federal prison in June 1994.

In its ruling on Orena's and Amato's motions for dismissal of their indictments or new trials, the district court held that (1) the defendants either knew or should have known that a member of the organized crime family to which they belonged had acted as an informant, so the government's failure to disclose that fact did not warrant a new trial; (2) evidence that a government agent had leaked information to an informant and that a second government agent had concerns regarding the relationship between the first agent and the informant was not material to the Government's charges, so the Government's failure to disclose did not warrant relief under Brady; and (3) newly discovered evidence did not warrant a new trial.

On the issue of leaking information to an informant and the relationship between DeVecchio and Scarpa, the district court observed that while the CI Guidelines provide guidance on "sanctioning criminal conduct on the part of informants where necessary 'to establish and maintain credibility or cover with persons associated with criminal activity under investigation,'" the "line between the value of an informer and the unreasonable risks of encouraging serious criminal activity requires judgment of senior supervisors with sound ethical compasses; people in the field are often not in a position to provide the necessary direction." Orena v. United States, 956 F. Supp. 1071, 1102 (E.D.N.Y. 1997). The court noted that, according to the Attorney General Guidelines, the FBI does exercise control at the supervisory level in Washington and locally. In the case of Scarpa, however, "these administrative controls failed to work because DeVecchio was not properly supervised locally and because . . . he failed to inform his supervisors in Washington of the probability that Scarpa was engaged in violence." Id. at 1103.

Victor Orena, Jr., John Orena, Thomas Petrizzo, et al. In June 1995, a jury acquitted seven reputed associates of the Orena wing of the Colombo family of conspiring to murder members of the rival Persico faction of the family. Scarpa's status as an FBI informant became a pivotal issue during the trial. Fellow FBI agents testified that they had become suspicious of DeVecchio and were particularly concerned that he had fed confidential information to Scarpa which helped him to evade arrest.

Anthony Russo, Joseph Russo and Joseph Monteleone. Scarpa's relationship with the FBI generated post-trial motions in another case following the conviction of LCN defendants on murder and conspiracy to murder charges. In that case, in March 1997, the trial judge granted a motion for a new trial to Anthony Russo, Joseph Russo, and Joseph Monteleone, finding that the Government had improperly failed to disclose evidence bearing on Scarpa's credibility. The Court of Appeals reversed that portion of the district court's order that granted a new trial, rejecting the trial court's conclusion that evidence that Scarpa lied to the FBI about his involvement in certain other murders gave rise to an inference that he lied to his co-conspirators about the murders in question.