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Scarfo's high-tech case ends with plea
The FBI had fought a bid by the mob boss' son for details on the top-secret device used to monitor his computer.
By George Anastasia
Inquirer Staff Writer
NEWARK, N.J. - The son of jailed Philadelphia mob boss Nicodemo "Little Nicky" Scarfo pleaded guilty to a bookmaking charge here yesterday, quietly ending a run-of-the-mill underworld gambling case that had taken on national significance because of the top-secret technology the FBI used to gather evidence against him.
Throughout a two-year pretrial debate, authorities vigorously opposed defense lawyers' attempts to get detailed information about a computer monitoring device, a so-called keystroke recorder, that was used to break a coded computer file where the younger Scarfo allegedly stored gambling records. Prosecutors contended that to disclose how the technology worked would have jeopardized national security.
Nicodemo S. Scarfo, 36, entered the guilty plea during a brief hearing before U.S. District Judge Joel Pisano. Scarfo admitted supervising a gambling operation in North Jersey for about a year, beginning in the summer of 1998.
The FBI alleged Scarfo took over management of the bookmaking business - which the bureau said generated nearly $5 million in action annually - from a member of the Gambino crime family who had been sentenced to prison.
Under the terms of a plea bargain negotiated with federal prosecutors, a more serious conspiracy-to-commit-extortion charge will be dropped.
Scarfo faces a sentence of 27 to 33 months. He will remain free pending a sentencing hearing set for June.
The plea bargain ends more than two years of controversy over the tactics used by federal agents to gain access to an encrypted file in Scarfo's private computer.
Using a keystroke recorder - later described as a top-secret, classified device - FBI agents were able to obtain the code and password that allowed them to open the encrypted files and recover the gambling records.
Those records formed the basis for the case against the young mobster.
The device was placed somewhere on Scarfo's computer during a court-authorized break-in at a Belleville office where Scarfo was working in the spring of 1999, according to court documents.
How the device worked was never disclosed. And that issue became the focal point of pre-trial appeal motions aimed at having the evidence thrown out.
Defense lawyers argued that the keystroke recorder - which allowed the FBI to monitor each stroke Scarfo made on his computer keyboard - was in fact a form of wiretapping and could only be installed with a court- authorized wiretap order.
Prosecutors argued the wiretap laws did not apply. But citing national security concerns, they opposed defense motions seeking a detailed explanation of how the keystroke recorder worked.
After a series of motions and hearings, former trial judge Nicholas Politan rejected the defense arguments. In December, shortly before retiring, Politan ruled instead that the government could provide defense lawyers with a declassified explanation.
The case was then assigned to Pisano with a trial date of March 18.
Norris Gelman, one of Scarfo's two attorneys, said that the plea bargain announced yesterday removed any need to appeal Politan's decision.
"It was an appeal that we did not want to take because of national security issues," Gelman added.
Privacy-rights groups had been monitoring the case, contending that it was an example of high-tech Big Brotherism. Those groups say that the keystroke recorder is one of several new weapons in the government's cyber-surveillance arsenal, and that existing laws do not adequately cover the electronic privacy issues the new devices circumvent.
Assistant U.S. Attorney Ronald Wigler, the prosecutor in the case, said the plea agreement was a "fair and just" resolution of the case. Wigler said concerns over further appeals were not an issue in offering Scarfo a plea.
"We were confident we would have prevailed," he said of the government's position that the technology should not have been disclosed.
Scarfo has two prior convictions, one a racketeering charge related to the distribution of illegal video poker machines.
His father, Nicodemo D. Scarfo, is currently serving a combined 69-year sentence following convictions on conspiracy and racketeering charges.
The FBI had fought a bid by the mob boss' son for details on the top-secret device used to monitor his computer.
By George Anastasia
Inquirer Staff Writer
NEWARK, N.J. - The son of jailed Philadelphia mob boss Nicodemo "Little Nicky" Scarfo pleaded guilty to a bookmaking charge here yesterday, quietly ending a run-of-the-mill underworld gambling case that had taken on national significance because of the top-secret technology the FBI used to gather evidence against him.
Throughout a two-year pretrial debate, authorities vigorously opposed defense lawyers' attempts to get detailed information about a computer monitoring device, a so-called keystroke recorder, that was used to break a coded computer file where the younger Scarfo allegedly stored gambling records. Prosecutors contended that to disclose how the technology worked would have jeopardized national security.
Nicodemo S. Scarfo, 36, entered the guilty plea during a brief hearing before U.S. District Judge Joel Pisano. Scarfo admitted supervising a gambling operation in North Jersey for about a year, beginning in the summer of 1998.
The FBI alleged Scarfo took over management of the bookmaking business - which the bureau said generated nearly $5 million in action annually - from a member of the Gambino crime family who had been sentenced to prison.
Under the terms of a plea bargain negotiated with federal prosecutors, a more serious conspiracy-to-commit-extortion charge will be dropped.
Scarfo faces a sentence of 27 to 33 months. He will remain free pending a sentencing hearing set for June.
The plea bargain ends more than two years of controversy over the tactics used by federal agents to gain access to an encrypted file in Scarfo's private computer.
Using a keystroke recorder - later described as a top-secret, classified device - FBI agents were able to obtain the code and password that allowed them to open the encrypted files and recover the gambling records.
Those records formed the basis for the case against the young mobster.
The device was placed somewhere on Scarfo's computer during a court-authorized break-in at a Belleville office where Scarfo was working in the spring of 1999, according to court documents.
How the device worked was never disclosed. And that issue became the focal point of pre-trial appeal motions aimed at having the evidence thrown out.
Defense lawyers argued that the keystroke recorder - which allowed the FBI to monitor each stroke Scarfo made on his computer keyboard - was in fact a form of wiretapping and could only be installed with a court- authorized wiretap order.
Prosecutors argued the wiretap laws did not apply. But citing national security concerns, they opposed defense motions seeking a detailed explanation of how the keystroke recorder worked.
After a series of motions and hearings, former trial judge Nicholas Politan rejected the defense arguments. In December, shortly before retiring, Politan ruled instead that the government could provide defense lawyers with a declassified explanation.
The case was then assigned to Pisano with a trial date of March 18.
Norris Gelman, one of Scarfo's two attorneys, said that the plea bargain announced yesterday removed any need to appeal Politan's decision.
"It was an appeal that we did not want to take because of national security issues," Gelman added.
Privacy-rights groups had been monitoring the case, contending that it was an example of high-tech Big Brotherism. Those groups say that the keystroke recorder is one of several new weapons in the government's cyber-surveillance arsenal, and that existing laws do not adequately cover the electronic privacy issues the new devices circumvent.
Assistant U.S. Attorney Ronald Wigler, the prosecutor in the case, said the plea agreement was a "fair and just" resolution of the case. Wigler said concerns over further appeals were not an issue in offering Scarfo a plea.
"We were confident we would have prevailed," he said of the government's position that the technology should not have been disclosed.
Scarfo has two prior convictions, one a racketeering charge related to the distribution of illegal video poker machines.
His father, Nicodemo D. Scarfo, is currently serving a combined 69-year sentence following convictions on conspiracy and racketeering charges.