Scores

  “That was not the deal, Peter,” Sipperly angrily snapped at Ginsberg.

  “It was, Carol. I was there. You weren’t, but your two FBI agents, Karst and Ready, were present.” He turned to Pomerantz. “Mark, I suggest you ask them what they remember.”

  “I already have,” Pomerantz answered, shooting a derisive glance at Sipperly.

  “If I may,” Weinberg jumped in, “Michael and Andrew are living on a fraction of their prior incomes in a strange city where they were required to start their lives over from scratch. Despite substantial profits being earned by Scores, they’ve used those profits to settle corporate debts. Since the club is worth a great deal more today than it was a year ago, I fail to understand your complaints. As I see it, they deserve your praise.” He handed papers to Pomerantz. “We’ve been sending Carol monthly statements accounting for all the Scores funds being expensed out in Florida.”

  Pomerantz looked over the monthly expense reports, then tossed the bundle to Sipperly. “I’ve never seen these before, have you?”

  Sipperly looked at the reports and turned very pale. “They look familiar; they’re probably buried in a pile on my desk.”

  In the end, our attorneys’ efforts resulted in few benefits. Pomerantz made it clear he disapproved of the forfeiture deal struck over Scores. “Of course your clients needed to retain complete control of the club while they were undercover. But after the fact of their cooperation became public and they left for Florida, it’s hard to understand why they were left in control.”

  “Maybe because they would never have gone undercover and there would have been no Scores case if that concession hadn’t been made by your office,” Ginsberg responded, the veins on his neck popping as he spoke. “Maybe because they were falsely promised a transfer of their sentencing from Florida to New York, a promise which your predecessor refused to honor. Maybe because they were promised a tiny amount of jail time, which you can no longer guarantee. Bottom line, you used our clients, hung them out to dry, and ensured their continuing cooperation by promising to leave them with the only asset you had under your control. Taking it away from them now would be immoral.”

  “You may be right, Peter,” Pomerantz answered contritely, “but shit happens, and you know that’s true.” Forfeiture rights in Scores would be transferred from New York to Delaware through Florida.

  But it was Pomerantz’s final point that would be the hardest to swallow. We were being asked to surrender into custody by August first.

  “Now who’s violating the plea agreements?” Weinberg angrily vented. “Your office promised our clients would remain free until their cooperation was complete here and in Florida; the Florida pleas are identical. Our clients didn’t expect to be incarcerated for years to come, and you want them to surrender in thirty days? Do you people intend to keep even one of your promises to these men?”

  Pomerantz frowned, shaking his head slowly. “I can’t disagree with you that this whole case is a mess. I’ve never seen successful undercover cooperators treated so shabbily. And I’m not ordering them to surrender. I’m urgently asking them to do so. And I’m certainly not declaring them in default of their plea agreements here in New York. But I can’t let them take any more money from Scores. If we get into a big fight over this, it will make their Florida sentencing ugly. They know they’re going to do some time in Club Fed, so let’s get it started and concentrate on getting them out as quickly as possible.”

  Following a final meeting with Hunt back in Orlando, as I was preparing to leave, she casually mentioned the upcoming surrender.

  I willed myself to be polite. “Let’s just hope things go as planned and we’re in and out quickly,” I said.

  “Well, I don’t know about that one,” Hunt returned with her broadest of smiles.

  “What does that mean?” I asked, trying to conceal my mounting hysteria.

  “Well,” Hunt shook her head, “I know you and Andrew are hoping it’s going to be a quick fix, six months or a year in jail, and then out. Ta-da! Trust me, that’s not going to happen.”

  “What do you mean? The Florida plea agreements have specific recommendations, and you agreed other districts and states could argue for even less time.”

  “That’s true, I did,” Judy said, “but I know this case and I know this judge. I was just trying to soften the blow on its way to you.”

  * * *

  AUGUST 1998

  Surrender Day. After being searched, fingerprinted, and cuffed, Andrew and I were ushered into separate cars, accompanied by a total of six federal marshals. The moment the motorcade entered the New Jersey Turnpike, it began to rain. It was the most torrential downpour I’d ever witnessed, and we were forced to pull over several times for lack of road vision. For the multi-hour trek, the rain never let up, never faltered.

  Sitting in the backseat, on the way to a WITSEC facility, I couldn’t help but think the gods were crying.

  CHAPTER FORTY

  Sentencing, Parts I and II

  NOVEMBER, 1998

  Our sentencing hearing in Florida was scheduled for November 13, 1998. Typically, cooperating witnesses are sentenced based on agreed-upon terms of incarceration and so the whole affair is usually mundane. After the crimes of the defendant and his cooperation are reviewed, the government confirms its recommendations and the judge imposes the recommended sentences.

  But somehow our judge, at the urging of Judy Hunt, decided to impose sentences upon us as scheduled, but to defer consideration of pending government motions for massive time reductions until all our cooperation was completed—probably years away. The prosecution would now immediately be seeking the most severe sentences possible, as if we weren’t cooperators at all, although it was legally committed to recommend maximum leniency at a later date when the reduction motions were heard. This procedure actually violated federal law, and the resultant publicity would be terribly prejudicial to us.

  We sat through a full day of motions for leniency from our side, opposition from Hunt, and denial of all relief by Judge Conway. Even sentence reduction motions granted by other judges in the same courthouse to other defendants in the same case were denied.

  Tired, weary, and beaten, I simply listened without reaction or emotion as Conway pronounced three-hundred-month prison sentences on both of us. Twenty-five years: an unprecedented sentence in American justice for extraordinary undercover nonviolent cooperators. Even Sammy “The Bull” Gravano, who never wore a wire, received only four and a half years behind bars after testifying against John Gotti, Sr., despite confessing to eighteen murders.

  We were sentenced to twenty-five years, and any reduction in that sentence was deferred until the various trials and legal actions were complete and our usefulness was officially ended, years in the future. In the meantime, all I could do was continue cooperating, and pray for eventual leniency from a justice system that had yet to show any.

  Just as Karst and Ready predicted, Mike Sergio and Willie Marshall, when confronted with the extent of their criminality captured on tape, quick-marched into the open arms of the prosecutors, voluntarily enlisting as witnesses to the extortion of Scores by the Gambinos.

  Although facing life imprisonment for a litany of crimes, both men were afforded extraordinary leniency in recognition of the dangers they now faced as witnesses against the mafia. Marshall received a nine-month term and was already home by the time I’d surrendered; and Mike Sergio, owing to a prior conviction, was serving out a twenty-two-month sentence.

  Between September 1998 and April 1999, the New York prosecutors amassed a universal plea from all defendants indicted in the Scores investigation. At a splashy news conference, the world learned that John A. Gotti, Jr., acting boss of the Gambino family, the largest crime family in the world, together with thirty-eight other members and associates of his and other families, were pleading guilty and heading off to jail.

  Hailed as a major victory for the federal government in the war on organized crime, the p
lea received massive national and international media coverage. As for me, I watched the spectacle from a prison cell, waiting endlessly for my cooperation to be presented and my sentence drastically reduced.

  During this same time period, the Atlanta case against the Gold Club began heating up. I was transported, as had become the norm, in body shackles reminiscent of Hannibal Lecter, through airports, onto commercial airliners, and into solitary confinement cells in county jails. Andrew and I testified for days on end before a sitting grand jury, recounting the tale told in the recordings with Kaplan, of his participation with the Gambino crime family in the extortion at Scores. Based on our testimony, and information from others who agreed to testify because of the damning undercover tapes, the Atlanta grand jury indicted a host of defendants.

  Unbeknownst to me at the time, it was the testimony of Gambino acting captain—now cooperator—Craig DePalma, before that same grand jury, that implicated Mikey Scars DiLeonardo, one of the most powerful mafia figures in the country, for his role in the shakedown. The indictment of Kaplan, the inclusion of Mikey Scars, and the anticipated testimony of several NBA superstars all raised national eyebrows.

  After the Florida criminal trial finally ended, I again began my active cooperation with Delaware. It had been Delaware’s insurance fund that quickly repaid every Heritage policyholder his or her total investment, ensuring that not one person had lost a dime in the whole sad and heartbreaking fraud. Each individual investor having been made whole, I was now cooperating to make Delaware—and other later contributing state funds through their association, NOGHLA—whole as well.

  Months of lonely waiting for the filing of sentence reduction motions turned into tedious years. A WITSEC facility is a maximum-security federal prison for witnesses—cushy by prison standards, sure, but “cushy by prison standards” is hardly a ringing endorsement. I sadly learned that a jail by any name is still a jail.

  As my cooperation had continued—in New York and Atlanta, and in criminal and civil forfeiture cases for Delaware—Hunt had stealthily maneuvered behind the scenes, resisting every effort to schedule our hearings.

  Finally, in mid-2001, a newly appointed Florida United States Attorney wrote to announce our hearings would be scheduled, and her district would be recommending the maximum reduction under the Florida plea agreement. Invitations were extended to prosecutors in New York and Atlanta to attend, and to submit their own independent recommendations for appropriate departures—which would certainly be “time served.”

  In that euphoric moment, after almost three years of incarceration, it seemed the time for redemption and reward had arrived. But when the government’s actual motions were received, authored and signed by Hunt, it was apparent we’d been betrayed yet again. Hunt’s motion was transparently designed to further pollute the judge against us, and to subtly lobby against granting the relief sought by her superiors. Hunt again raised the issue of “new crimes” committed while cooperating in New York, a fiction we’d agreed not to contest because we were left no choice.

  The hearing convened. With the exception of Judy Hunt, the government representatives from New York, Georgia, and Delaware more than lived up to their promises to emphatically urge maximum sentencing leniency.

  New York submitted an extensive letter of endorsement. It apprised the court of the cooperative risks undertaken, describing them as “incapable of being overstated,” noting the targets of the Scores investigation were dangerous career mobsters who “would not have hesitated to have killed [the cooperators] had it been discovered [they] were wearing body wires.” New York asserted that comparable cooperation had frequently resulted in reductions exceeding Florida’s recommendation from federal courts across the nation.

  FBI agent William Ready addressed the court. He summarized the successful capture of 110 recordings, over a year’s time, resulting in the indictment. He reserved special praise for me, telling the judge I’d worn the F-Bird wires, had taken most of the risks, had been patted down in searches for hidden recording devices on at least three occasions by armed gangsters, and would surely have been executed “on the spot,” but for my guile and bravery under what most others would find unimaginable stress and fear.

  The then chief of the New York Criminal Division, Alan Kaufman, one of the most respected, influential, and hard-nosed prosecutors in the country, rose in solid support of massive sentence reductions. He categorized our assistance as: “The most extraordinary cooperation law enforcement can hope for.” He explained that, for those who wear wires and enter WITSEC, their lives are “forever changed”; danger of retribution follows them into their new identities. And importantly, the ability of government to enlist future cooperation depends on judges honoring prosecutors’ promises.

  Arthur Leach, the Atlanta prosecutor leading the pending Gold Club case, advised Conway that his prosecution in Atlanta would not have been possible without the undercover recordings and our extensive testimony to the grand jury. He also stressed that our testimony in the upcoming trial merited great weight.

  The Insurance Department of Delaware, in a rare and impressive move, also appeared and rose to support maximum leniency. Few if any defendants ever achieve such recommendations from their “victim.”

  After hearing from me and our attorneys, the courtroom held its collective breath awaiting Conway’s ruling. She opened by agreeing our cooperation was extraordinary, but revealed for the first time she’d secretly set a limit for cooperation sentence reductions at one-third below the mandatory guidelines. Conway went on to lower the original sentences from three hundred months down to two hundred months (or sixteen-plus years).

  In so ruling, Conway ignored the unanimous chorus of governmental recommendations (seventy months or less), the original grid agreement she approved at our plea hearings (sixty-one months), the sentences she and other judges had imposed on other Heritage cooperators (one hundred and fifty months), and the national standard for rewarding extraordinary cooperators who wear wires against mobsters (70 to 90 percent reductions from guidelines).

  The courtroom erupted.

  Our attorneys first undertook to remind Conway she had, just a few months earlier, lowered the sentence of Patrick Smythe, a codefendant and chief financial officer of Heritage, to one hundred and fifty months from three hundred months—a 50 percent reduction. He’d done nothing more than testify about his own crimes, he’d not undertaken cooperation against the mob, wouldn’t be entering WITSEC—and his sentence reduction exceeded the just-announced “secret” limit of 33⅓ percent.

  Conway looked startled. She ruffled through her notes, turned several pages, and then declared, “Perhaps Mr. Smythe got more than he should have.”

  “Perhaps he got more than he should have?” Andrew furiously whispered to me. “She gave him that sentence.”

  When asked to explain how an ordinary cooperator like Smythe could receive a greater reduction than cooperators who risked their lives and faced a lifetime of retribution, Conway responded:

  “I understand that. But it’s the defendants, themselves, that put themselves into a position where they were able to give that kind of cooperation. Mr. Smythe, as far as I was advised, was never in a position to have done any of those things.”

  This logic was breathtaking in its absurdity. Because we “were in a position” to be extorted by the mafia and were willing to accept the government’s offer to risk our lives and cooperate in exchange for leniency, we were not entitled to the promised rewards. But Mr. Smythe, because he was not in a position to provide undercover cooperation and did not do so, would receive the greater reward.

  As the arguments grew heated, Conway refused to listen further. She announced there were no words that could ever convince her to alter her course and she would brook no additional debate.

  She exited the courtroom, slamming the door behind her. In the final analysis, we’d received no leniency credit from the Florida court for our New York cooperation, and may well have recei
ved a lesser sentence had we not cooperated in New York at all.

  No one knew what to say; the impossible had just happened. Kaufman joined us some twenty minutes later and shared that the Florida United States Attorney had authorized the drafting and filing of motions to reargue the sentences. He added the Attorney General’s Office in Washington was going to participate directly in the reargument—a highly unusual undertaking reserved for extraordinary cases involving national policy considerations. He did his best to reassure our group of near-hysterical defendants, family, and attorneys, and to urge us to keep hope alive.

  Before returning to the county jail in Orlando for more solitary confinement, Andrew and I agreed to meet with Art Leach. The Atlanta prosecutor, with a pending trial, opened the discussion: “If you two had been sentenced by any judge in my district, we’d be sharing dinner tonight in any restaurant of your choice. My god, you were responsible for the indictment, conviction, and incarceration of dozens of mob members and the head of one of the five families. That would have been enough to set you free in any court in the country except here. In over twenty years as a prosecutor, I’ve never seen a judge act less professionally or reasonably. I’m so sorry because I feel I’m part of a system that just let you down miserably.”

  We knew Art was concerned we would end our cooperation in anger. But we quelled his anxiety, agreeing to continue cooperating in Georgia. We were going to do the “right thing,” even in the face of betrayal.

  We did in fact return to Atlanta and testify in the Gold Club case. The Atlanta press labeled my testimony as “the most damaging,” and I was apprised that Kaplan reversed his plea to guilty after I testified and in the middle of the trial. Only Mikey Scars, and one other defendant, were later acquitted by the jury.