Thurgood Marshall U.S. Courthouse at 40 Foley Square
Thurgood Marshall U.S. Courthouse at 40 Foley Square (Bjoertvedt/Wikimedia)

A government-paid mob informant who long snitched on the Gambino and Bonanno crime families but reneged on a deal to tip off the FBI to an arson is entitled to a new trial because of errors by a trial judge.

The U.S. Court of Appeals for the Second Circuit said the trial judge, Eastern District Judge Nicholas Garaufis (See Profile), erred in refusing to admit a recording where an FBI agent assured the mole that he had done nothing wrong. It also said the lower court was wrong on a statute of limitations ruling.

Consequently, Volkan Mergen is entitled to a new trial on a Travel Act count as well as drug, attempted robbery, firearm possession and other offenses.

Mergen, according to the court’s decision in United States v. Mergen, 12-2873-cr, had long been a paid FBI informant, and a particularly productive one at that.

“Mergen’s efforts [since becoming an informant in 2001] included wearing a wire while working with members of the Gambino and Bonanno crime families,” the circuit said in an opinion by Judge Dennis Jacobs (See Profile). “Mergen’s service was fruitful; he sometimes submitted so many recordings to the FBI that the agency could not keep pace.”

In 2006, Mergen warned the FBI that a group affiliated with the Bonanno family was planning an arson.

Records show that the FBI agent supervising Mergen told the informant not to participate and that the agency would do whatever necessary to prevent the arson. Regardless, Mergen failed to alert the FBI to the firebombing, and actually played a role in the crime, according to the decision.

After the arson, the Eastern District U.S. Attorney’s office approached Mergen with a deal: In return for cooperating, he would be allowed to plead guilty to a violation of the Travel Act—namely, that he had traveled to New Jersey to pickup gasoline for the arson. Mergen waived indictment and pleaded guilty to a Travel Act offense carrying a maximum penalty of five years’ imprisonment.

The deal imploded, however, when Mergen falsely denied at a subsequent debriefing session that he had knowledge of the theft of three stolen fake watches worth a total of about $75.

A standoff ensued, with the government insisting that Mergen plead guilty to an additional charge and Mergen refusing and moving to withdraw his plea to the Travel Act violation.

Ultimately, the government cut off Mergen’s monthly stipend and filed a superseding indictment accusing him of conspiracy to commit robbery, attempted robbery, firearm possession during an attempted robbery, conspiracy to distribute cocaine and marijuana and distribution of those drugs. He was convicted at a jury trial of those charges, plus the Travel Act offense.

On appeal, the Second Circuit said Garaufis erred in barring Mergen from introducing a recorded conversation between the informant and his FBI handler in which the agent assured him that he had not done anything wrong the night of the arson.

“Looked at one way, Mergen was traveling to advance an arson by racketeers and keeping the FBI in the dark to preserve his informant role (and meal ticket),” Jacobs wrote in an opinion joined by Chief Judge Robert Katzmann (See Profile) and Southern District Judge Kevin Duffy (See Profile), sitting by designation. “Looked at another way, he was doing his best to stay alive in dangerous company on a dangerous mission. The prosecution’s theory was that Mergen went rogue and violated the unambiguous orders of his FBI handlers.”

Jacobs said the tape recording should have been admitted as impeachment evidence.

Additionally, the court agreed with Mergen that the tolling provisions in his cooperation agreement did not apply to the drug, robbery, firearm and conspiracy counts. It suggested the cooperation agreement was largely unintelligible.

“Resolving ambiguities in favor of Mergen, we cannot conclude that the statute of limitations was tolled for offenses that the government learned about from persons Mergen helped convict,” Jacobs wrote. “The government drafted the convoluted and ambiguous tolling provision in Mergen’s cooperation agreement, and such ambiguity must be resolved in favor of Mergen.”

Andrew Frisch of Manhattan argued the appeal for Mergen on Sept. 12. Assistant U.S. Attorney Evan Norris represented the government.