(CN) - An FBI informant was improperly convicted for driving Staten Island mobsters to set a house on fire because the trial court improperly excluded a recording of an agent assuring him he'd done nothing wrong, the 2nd Circuit ruled.
In January 2006, Volkan Mergen, a paid FBI informant operating inside mob families since, warned the agency that a crew on Staten Island was planning an arson.
Special Agent Anthony Zampogna, Mergen's then-supervisor, told him that he could not participate in the arson and that the FBI would do whatever was necessary to prevent it, even ending his role as an informant.
The FBI further instructed Mergen to call Special Agent Lauren Regucci, posing as his girlfriend, and say the code phrase "I'm running late" shortly before the arson was to occur.
But conversations Mergen recorded leading up to the arson show that he passed up opportunities to warn the FBI, according to the agency.
Indeed, after Mergen drove to the target, crewmember Joseph Young ran out of the car, firebombed the house, and together they drove away in the wee hours of Jan. 27, 2006.
Minutes later, Young left Mergen's car, and the informant called and alerted Agent Zampogna that "[t]hey" had committed the arson.
By the time firefighters put out the fire, the homeowner had suffered cardiac arrest.
Zampogna later testified that he and Agent Regucci were unaware the arson would occur.
On June 5, 2006, Mergen signed a cooperation agreement with the U.S. Attorney's Office in June in which he pleaded guilty to a Travel Act offense for buying gas for the arson in New Jersey.
The government, in return, handed Mergen a "substantial assistance" sentencing letter, and tolled the statute of limitations for several other prosecutions based on, among other things, his statements to the feds, his testimony, or leads he provided.
But when Mergen breached that contract months later by falsely denying knowledge about a $75 theft of three watches, the feds decided to without the sentencing letter and said he must also plead to a false statement charge.
When Mergen refused, the government charged him with the Travel Act offense, drug distribution, attempted robbery, firearm possession, and related conspiracies.
At trial, the feds used Mergen's own recordings and testimony from witnesses Mergen had ensnared, while Mergen, the sole defense witness, testified that prior to the arson, the FBI said that everything was "under control," and he feared being caught and killed by the mob.
After six days of trial, a jury convicted Mergen on all counts, and he was sentenced to 12 years in prison.
But the 2nd Circuit reversed the convictions and remanded the case for retrial Thursday, despite finding that Mergen failed to show that he was implicitly authorized to partake in the arson.
"[T]he district court erred by excluding, on hearsay and authentication grounds, a recording in which an FBI agent assured Mergen that he had done nothing wrong in connection with the underlying arson," U.S. Circuit Judge Dennis Jacobs wrote for a three-judge panel.
Jacobs added: "The jury heard only Agent Wright's testimony (originally solicited by the prosecution) that Agent Wright was of the consistent view that Mergen was criminally culpable; impeachment evidence that would have subverted that view was withheld from the factfinder. 'In a case ... that depends on whether the jury believes the word of the defendant versus the word of an FBI agent, exclusion of such impeachment evidence is not harmless error.'" (Parentheses in original).
The court also reversed Mergen's remaining convictions, holding that "the wording of Mergen's cooperation agreement did not toll the (expired) statute of limitations for those offenses." (Parentheses in original).