November 12, 2014

New York Law Journal / Written by: Harvey M. Stone, Richard H. Dolan

This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Judge Frederic Block held that a widow's claims linking two FBI agents to an informant's murder of her husband could not withstand summary judgment motions. Judge Arthur D. Spatt ordered the forfeiture of a house used by a husband and wife in criminally mistreating their servants. And Judge Raymond J. Dearie declined to dismiss a prisoner's claims that he was assaulted by corrections officers and denied timely medical treatment.

FTCA, 'Bivens'

In Grancio v. DeVecchio, 06 CV 0069 (EDNY, July 24, 2008), Judge Block granted defendants' motions for summary judgment in a suit alleging that two FBI agents, and therefore the United States, were responsible for a murder committed by informant Gregory Scarpa.

In January 1992 Nicholas Grancio was murdered by Scarpa, a member of the Colombo organized crime family and FBI informant. In 2006 the victim's widow, who is also the representative of his estate, brought this action claiming that Lindley DeVecchio and Christopher Favo, both FBI agents when Grancio was killed, had conspired with Scarpa to bring about the murder. Plaintiff asserted federal constitutional claims against the agents under Bivens and tort claims against the United States under the Federal Tort Claims Act (FTCA).

Scarpa began providing information to the FBI in the 1960s. Between 1980 and the 1992 murder, Agent DeVecchio 'handled' Scarpa. Agent Favo worked under DeVecchio's supervision. Plaintiff alleged that DeVecchio improperly passed confidential information to Scarpa, enabling the informant, a member of the Persico faction of the Colombo family, to carry out hits on members of the rival Orena faction.

Grancio was a reputed capo of the Orena faction. On Jan. 7, 1992, he was under surveillance by two New York City Detectives working with a task force in response to a tip that Grancio's rivals planned to kill him. At one point the detectives left their post. About an hour and 45 minutes later, Scarpa and two associates, Mazza and DelMasto, murdered Grancio as he sat in his car.

Plaintiff alleged that Scarpa had spotted the surveillance and called DeVecchio to have it removed before the murder, which DeVecchio instructed Favo to do.

Though conceding that the detectives left at Favo's request, the FBI agents denied that this was part of a murder conspiracy. By affidavit, DeVecchio stated that he never instructed anyone to end the surveillance and indeed Scarpa never asked him to end it. Agent Favo corroborated these assertions, and explained that he had called the two detectives away to attend a task force meeting. Favo added that neither detective had told him that Grancio was under surveillance to prevent his murder.

In 1993 Scarpa pleaded guilty to the murder; a year later Mazza and DelMasto pleaded to assisting in the murder. After an internal FBI investigation into the relationship between Scarpa and DeVecchio, the authorities declined to prosecute DeVecchio. In 2006 the Brooklyn District Attorney prosecuted DeVecchio on charges of aiding Scarpa in four murders other than Grancio's. At trial, the state's chief witness changed her story and the charges were dropped.

Allegations of an improper relationship between Scarpa and DeVecchio emerged when the head of the Orena faction of the Colombo family collaterally challenged his conviction for the murder of Thomas Ocera by trying to place the blame on Scarpa and DeVecchio. Called as a defense witness in that case, Mazza testified on Jan. 7, 2004 that he had seen Scarpa make several calls on a cell phone before Grancio's murder. Mazza also testified that he and his accomplices did not know at the time that Grancio was under surveillance. On cross-examination, he made clear that they were surprised to come across Grancio that day and that the phone calls by Scarpa took place before Grancio arrived.

Judge Block held, first, that the court had subject matter jurisdiction over the FTCA claims. The FTCA was the exclusive remedy for the tort claims against the United States here because DeVecchio and Favo were undisputedly acting within the scope of their employment. Plaintiff had two years after accrual to file her claim with the appropriate federal agency. Plaintiff filed her administrative claim on Jan. 6, 2006. The government made much of the 'widespread publicity' that purportedly should have put a 'reasonable person on inquiry notice' that the FBI agents played a role in Grancio's 1992 murder. As Judge Block noted, however, prior to Mazza's testimony on Jan. 7, 2004, the media publicity about the relationship between Scarpa and DeVecchio was 'too generalized' to link the murder to De- Vecchio.

The court also rejected the government's argument that plaintiff had failed to exhaust her administrative remedies. Slip op. 18-20.

With respect to all of her claims, plaintiff's fatal problem was her lack of evidence that the FBI agents terminated the surveillance on her husband in response to a request from Scarpa. Most problematic was Mazza's testimony that, from the moment he and his accomplices saw Grancio till the moment he was killed, 'there was no time to make any phone calls.' To overcome Mazza's testimony, plaintiff offered two 'textbook examples of inadmissible hearsay' made in private interviews. Slip op. 22. She also offered an affidavit from Mazza 'establishing, at best, that Scarpa called DeVecchio on the day of Grancio's murder.' Slip op. 23. But it did not suggest that Mazza was prepared to recant his sworn testimony that no calls were made between the fortuitous discovery of Grancio and his murder. Under these circumstances, Judge Block saw no reason for further discovery. Slip op. 25-26.

Forfeiture, Enforced Labor

In United States v. Sabhnani, 07 CR 429 (EDNY, July 19, 2008), Judge Spatt granted the government's motion for forfeiture of defendants' entire house following their conviction for forced labor, peonage and document servitude.

Varsha and Mahender Sabhnani were convicted of bringing two servants to the United States illegally, keeping them in slave-like conditions and abusing them. The jury that convicted them determined that forfeiture of defendants' home was appropriate. Defendants contended that forfeiture violated the Excessive Fines Clause of the Eighth Amendment. Mahender also argued that forfeiture of his entire interest in the home was not appropriate because his office was annexed to the house.

The government sought forfeiture of property used to commit or facilitate the offenses of which defendants were found guilty. Pointing to a number of factors, Judge Spatt saw no violation of the Excessive Fines Clause. Defendants' crimes involved harboring illegal aliens and forcing them to perform domestic labor, and Vashna's causing serious bodily injury to the victims. Defendants, moreover, fit into the class of persons for whom the forfeiture statutes were designed, and the court had imposed sentences and a fine below the statutory maximum. Finally, the trial testimony revealed truly grave harm and horrors encountered by the victims, including being 'starved, tortured, cut and beaten over the course of years.' Slip op. 13.

Rejecting Mahender's contention that he played a passive role in the crimes, Judge Spatt noted that both Mahender and Varsha met the victims at the airport, and that Mehender had done nothing to stop the abuse even though he saw one of the victims eating food from the trash, sleeping in the bathroom and being punished by Varsha.

Similarly, Judge Spatt found no basis to exclude Mahender's office from the forfeiture. First, the annexed office was not separate from the home; instead, it was part of the property, entered through a door from the kitchen. Second, the office was used to facilitate the crimes. The victims cleaned the bathroom and washed the floor in the office, brought beverages in and out of the office and appeared there bloody, bruised and undernourished and in tattered clothes.

Negligent Denial Of Medical Care to Prisoner

In Lopez v. Zenk, 06 CV 4601 (EDNY, Aug. 8, 2008), Judge Dearie denied the government's motion to dismiss (a) a prisoner's Bivens claims of excessive force and denial of timely medical treatment, in violation of his Fifth and Eighth amendment rights; and (b) FTCA claims relating to the alleged assault and negligent denial of medical treatment. Plaintiff claimed that he was beaten by corrections officers at the Metropolitan Detention Center and was not taken for medical treatment until the next day. There was no basis to dismiss the Bivens claims against the defendant corrections officers. The court did dismiss the Bivens claims against Warden Zenk because there were no allegations about Zenk's personal involvement in the constitutional violations. Under Bivens, the doctrine of respondeat superior does not apply.

As to the FTCA claims against the United States, a plaintiff must prove subject matter jurisdiction by a preponderance of the evidence, properly present his claims to the appropriate federal agency, and 'have them 'finally denied' in writing before commencing an action for money damages in federal court.' Slip op. 4. An FTCA claim must also be specific enough to make it possible for the government to expedite fair settlements of claims. Here, the government claimed that plaintiff did not make any reference to deficient medical treatment in his August 2005 submission to the agency and thus the claim was insufficient to advise the Bureau of Prisons that he was alleging negligent denial of medical care or to allow the government to investigate.

Judge Dearie found that plaintiff's August 2005 form satisfied the notice requirements of the FTCA, because it enabled the government agency to investigate and a thorough investigation should have uncovered any noteworthy delay in securing medical treatment. In addition, the alleged severity of plaintiff's injuries and the fact that he was assaulted in the evening and not admitted to the hospital until the next day should have alerted the government to a claim based on negligent denial of medical care.

Judge Dearie also found that plaintiff's three administrative tort claims, taken together, notified the Bureau of Prisons of sufficient facts to enable it to investigate plaintiff's claim. The court pointed to numerous decisions outside the Second Circuit considering multiple claims together as one claim. Judge Dearie concluded:

It is no stretch to expect that a reasonable investigation of plaintiff's August 2005 claim should have led the BOP to the existing paperwork associated with his January 2005 claim, which, after all, stemmed from the same event and clearly premised his claim upon the allegation that he was 'not afforded medical attention that night.' Slip op. 10.

Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.

[This article is reprinted with permission from the September 12, 2008, issue of the New York Law Journal. Copyright © 2008 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]