Book excerpt

Convictions

A Prosecutor's Battles Against Mafia Killers, Drug Kingpins, and Enron Thieves

John Kroger

Farrar, Straus and Giroux

Prologue
Sal “The Hammerhead” Cardaci was a small-time Brooklyn car thief. Back in the 1980s, his head was blown off by a .357 fired at point-blank range. Years later we dug up his bones in a Brooklyn basement, where they had been buried under a rough concrete slab. For the last six months those bones have been in my office, sitting on my desk in a cardboard box. Today they are in evidence, back in the jury room. I am a federal mafia prosecutor, and I am waiting for a verdict.
 My defendant is Gregory Scarpa, Jr., mafia capo and hitman. Before his arrest Scarpa controlled a big swath of working-class Brooklyn and Staten Island. Over the course of his career in organized crime he killed more than a dozen victims. Now he is charged with some forty federal crimes: racketeering, conspiracy, loansharking, illegal sports betting, numbers running, tax evasion. My indictment also charges Scarpa with five gruesome murders, the ones I believe we can prove beyond a reasonable doubt.
 For fifteen years Scarpa was a major target of the FBI. Today, on this crisp fall afternoon, he finally faces justice. Scarpa sits huddled at a long oak table with his three criminal defense lawyers. A few feet away I sit with my trial partner, veteran mob prosecutor Sung-Hee Suh. For the past six months Sung-Hee and I have worked eighteen hours a day, seven days a week, preparing and trying this case. Together we presented more than a thousand pieces of evidence, each one painstakingly gathered from homicide crime scenes, surveillance operations, wiretaps, garbage pulls, autopsies, and raids on mafia clubs and gambling dens. We also presented testimony from three of Scarpa’s underlings, all mafia hitmen, now in the witness protection program.*
 Late in the trial Scarpa took the stand and told the jury that the United States government had authorized his life of crime: that the FBI was corrupt, that he and his hitman father had been on the government informant payroll for years, and that he had worked as an FBI antiterrorism spy, complete with a miniature camera. When I cross-examined Scarpa, I ignored these stories completely, hoping the jury would conclude they were bizarre and irrelevant fantasies. Actually, many of Scarpa’s allegations were true.
 The trial lasted more than a month. Now the jury is out, deliberating. For a federal prosecutor like me, waiting for a jury to decide a case is the hardest part of the job. As an Assistant United States Attorney, or AUSA, I wield considerable power. I run investigations, authorize arrests, and shape my own trial strategy. Control is second nature. Once, however, the jury gets a case, my fate—and that of my defendants—is out of my hands. All I can do is wait.
 At 11:40 a.m., Jimmy, the court security officer, scuttles into the courtroom and hands a note to Eileen Levine, Judge Raggi’s courtroom deputy. Jimmy is not supposed to disclose the contents of the note to the attorneys, but he and I have a personal connection: he used to be an Army Ranger, and I was in the Marines. He looks over at me, our eyes make contact, and he silently mouths the word “verdict.” Jimmy and Eileen exit the courtroom by the back door, leading to Judge Raggi’s chambers. Two minutes later, just long enough for the judge to put on her black judicial robe, they both return. Jimmy bangs loudly on the courtroom’s solid oak door and calls out, “All rise.” Scarpa, the attorneys, and the courtroom spectators all get to their feet.
 Judge Reena Raggi sweeps into the courtroom. Tall and elegant, Raggi is known for her brains and her temper. Once she got so mad at one of my colleagues he fainted right in the courtroom. Not surprisingly, I tend to treat her gingerly, like a bomb that might explode at any minute. The lawyers approach the bench and stand respectfully at their podiums. Scarpa stays seated in his chair, watched closely by U.S. Marshals. The atmosphere, quite relaxed just a few minutes before, is now electric with tension. Eileen states for the court reporter: “Case on trial, United States versus Gregory Scarpa, Junior.”
 Judge Raggi silently reads the note from the jury. Then she looks up and says, in her controlled, precise patrician voice, “Good morning, ladies and gentlemen. In the case on trial, I have received a note from the jury, which I have marked court exhibit ten. It says: ‘Judge Raggi, we, the jury, have reached a verdict.’ I will bring them in and take the verdict from them.”
 Sung-Hee and I return to our seats at the long wooden counsel’s table directly in front of the jury box. My body is trembling slightly, from both nervousness and lack of sleep. This is my first big mafia trial, and after months of constant work and immense pressure, I am physically and spiritually exhausted. As the jury files in, only a few feet away, I try to judge their demeanor. Conventional trial lawyer wisdom says that if a jury makes eye contact with the defendant, it is bad for the government. Several jurors, I note, are looking right at Scarpa as they take their seats.
 In tense moments I tend to smile. I fight that inclination now. I look back over my shoulder into the courtroom gallery. It is packed with spectators: newspaper reporters, fellow prosecutors, defense attorneys, a few judges. This is the big case in the courthouse right now. I take off my glasses, place my palms flat on the tabletop, and look straight down, focused on nothing. With my glasses off, the world is a gray haze.
 I pray only when I’m in a tough bind. Now I silently beg, “God, please, let me have a guilty verdict.” My desire to win this case is driven by mixed motives. Scarpa is evil personified. The FBI and the Justice Department have worked for more than fifteen years to nail him. I am 100 percent certain he is guilty. The idea that he might escape—that we might get an unjust verdict—makes me sick to my stomach. At the same time, my will to win, like that of all prosecutors, is personal and selfish. Sung-Hee and I have staked our careers on this case. If we win, we will be heroes. If we lose, no one will ever trust us with a big case again.
 In television shows about cops and prosecutors, the dramatic moments are always loud: cops yelling at criminals; judges yelling at lawyers; the defendant’s family yelling at the cops. In the real world, drama walks more softly. I hear Judge Raggi talking to the jury. She is explaining the procedure by which it will deliver its verdict. I barely listen. I hear her words as if from a great distance or like a man submerged underwater. I do not refocus until I hear Judge Raggi’s voice change tone and she says, with great formality: “Madam Foreperson, I understand that you, the jury, have reached agreement on the verdict. Is that correct?”
 The foreperson stands. To protect the jury from mafia violence, the jurors’ identities and backgrounds have been kept secret from both Scarpa and us. As a result, I know virtually nothing about her. Now, however, this anonymous woman is the most important person in the courtroom. She looks at Raggi and replies, “Yes.”
 Raggi: “All right. I am going to be using the verdict form as a guide. Let me begin with Racketeering Act Number One. As to part ‘A,’ have you found the charge of murder not proved or proved?”
 The foreperson pauses, and I wait, listening for the simple words that mean success or failure, justice or defeat. I can hear the blood pounding in my ears. Will Scarpa go to jail for the rest of his life, or will he go home to murder again?
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federal prosecutors toil in obscurity. Most Americans know nothing about our work. None of us is on television, and none of us is a household name. If you ask the average American what an AUSA, or Assistant United States Attorney, does for a living, he will probably draw a complete blank. Even my own mother has a hard time getting it right. She always tells my relatives that I was a “district attorney,” the common title for state and local prosecutors who combat most street crime. To most AUSAs, who pride themselves on their unique role, fighting the country’s most dangerous criminals, that confusion is maddening.
 The fact that no one in America knows anything about federal prosecutors is troubling, for in the United States today few people possess more power. As early as 1940 Supreme Court Justice Robert Jackson remarked that a federal prosecutor has “more control over life, liberty and reputation than any other person in America.” Since Jackson’s day, that power has only increased. In the words of federal judge (and former AUSA) Gerald Lynch, “Congress has cast the federal prosecutor in the role of God.” Hyperbole? Certainly—but a revealing comment nevertheless.
 Federal prosecutors have not always had so much influence. Traditionally, crime was the responsibility of state and local governments. Federal criminal law was a sleepy and unimportant backwater. Starting in the 1950s, however, Congress passed a series of landmark crime bills that radically expanded the United States government’s role in combating crime. These bills gave federal prosecutors, for the first time in our nation’s history, the legal tools they needed to combat the nation’s most serious criminal threats: the mafia, corrupt corporate executives, gangs, and drug dealers. As a result, the federal government is now deeply involved in law enforcement in your community.
 During the exact same period, Congress, the Justice Department, and the federal courts quietly revolutionized law enforcement in a second, more subtle way. Back in the old days the federal government observed a strict division of labor: agents investigated crimes, and then prosecutors handled cases in court once those investigations were completed. Today that is no longer true. Disturbed by revelations of domestic political spying by J. Edgar Hoover’s FBI and believing, rightly or wrongly, that lawyers would respect civil liberties more carefully than would gumshoe agents, America’s lawmakers gradually shifted investigative power from law enforcement agencies like the FBI to federal prosecutors. As a result of this transfer of power, federal agents today cannot obtain a wiretap, a search warrant, an arrest warrant, an immunity order, or most subpoenas—the basic investigative tools required in every major case—without cooperation and prior approval from an AUSA. This gives AUSAs a virtual veto over most federal investigations. In some parts of the country federal prosecutors use this leverage lightly, and agents still run the show. But in most big cities and in all the most important federal cases AUSAs tell agents politely but firmly, “Investigate the case my way, or you won’t investigate at all.” As a result, AUSAs today are not just courtroom attorneys; they have become our nation’s chief criminal investigators.
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from 1997 to 2003 I served as an Assistant United States Attorney. I supervised dozens of covert investigations, using wiretaps, searches, stings, and surveillance to bring sophisticated criminals to bay. Once these investigations were finished and my defendants were under arrest, I battled some of the nation’s most talented defense lawyers in high-stakes jury trials.
 Most federal prosecutors specialize in one kind of crime or another. They prosecute gangs, or drugs, or fraud. I was never a specialist. I won a very big trial as a rookie, and from that moment on, the Department of Justice moved me from one major case to the next. I prosecuted mafia killers, drug kingpins, and crooked Enron executives. Along with a team of agents, cops, and fellow prosecutors, I helped clean up one of New York’s most dangerous neighborhoods. In September 2001 I worked briefly on the emergency response to the 9/11 terror attacks. As a result, I became an expert in almost every area of crime the Justice Department prosecutes.
 I am very proud of my work as an AUSA. I know that without my efforts, and those of thousands of prosecutors and agents like me, the world would be a more dangerous place. This book is not, however, a simple celebration of the Justice Department’s work. There is also a darker side.
 When I first reported for work as an AUSA, I felt totally lighthearted. What, I thought, could be more morally straightforward, more socially beneficial than prosecuting dangerous criminals? This view proved naive. Over the next few years, to my surprise, I learned that my job was an ethical obstacle course. Like most prosecutors, I tried very hard to do the right thing. Sometimes, however, I discovered that the way we fight criminals is counterproductive, encouraging crime instead of preventing it. I also learned that on occasion the best solution to a legal problem turns out to feel pretty awful. By 2003 I had become a very good prosecutor. I had also concluded, to my deep regret, that sometimes it is impossible to be both a great prosecutor and a good human being. Excerpted from Convictions by John Kroger. Copyright © 2008 by John Kroger. Published in April 2008 by Farrar, Straus and Giroux, LLC. All rights reserved. John  Kroger is a former federal prosecutor who served on the Justice Department’s Enron Task Force; he was also deputy policy director of Bill Clinton’s 1992 presidential campaign. He now teaches at Lewis and Clark Law School in Portland, Oregon.