Mafia in our midst: Who protects the public from protected witnesses?

The Federal Witness Protection Program is designed to ensure government witnesses, who are mostly career criminals, remain safe before, during and after their testimony.

From that standpoint, its track record is perfect. No active participant ever has been harmed or killed, according to the U.S. Marshals Service, which oversees and manages the program.

But is the public protected from protected witnesses?

Associates of Arizona businessman Frank Capri would tell you no.

Capri made deals with developers across the country who had no clue he once was Frank Gioia Jr., a “made man” in the New York Mafia, a Republic investigation shows. 

Gioia’s past as a soldier in the notorious Lucchese crime family was erased when he agreed to turn state’s evidence in 1994 as part of a deal with federal prosecutors.

The government enrolled him in the Federal Witness Protection Program. It gave him a new name, Social Security number and background, which helped him begin a new life as a real-estate developer and restaurateur.

An investigation by The Arizona Republic found Capri used his government-provided identity to negotiate deals to build Toby Keith’s I Love This Bar and Grill restaurants throughout the United States, take tens of millions of dollars from mall owners and developers and then walk away.

Gioia helped put more than 70 mobsters behind bars and closed several unsolved murders, including the 1977 shooting of a New York City police officer. But the anonymity created through the Witness Protection Program allowed him to launch damaging new business ventures.

The FBI and the U.S. Department of Justice denied turning a blind eye to potential criminal conduct.

MAFIA IN OUR MIDST: 
PART 1 - A mob soldier turned Phoenix businessman 
PART 2 - Inside the life of a 'made man'
PART 3 - Who protects the public from protected witnesses?

"The Department of Justice remains committed to holding accountable those who conduct criminal activity and threaten the rule of law," Nora Scheland of the FBI National Press Office said in a statement.

Officials with both agencies declined to respond to a detailed list of questions about the Gioia case.

Scheland said the FBI and the DOJ could neither confirm nor deny "the existence of any ongoing investigations."

In the name of security, authorities don’t provide details about mobsters, cartel members, terrorists and other criminals who are relocated in cities and towns across America.

Secrecy is critical to a program that trades new identities in exchange for information and courtroom testimony.

Authorities don’t make information available about protected witnesses who reoffend, committing murder, rapes, robberies or fraud.

The program is so secret that top federal, state and local law-enforcement officials also are not briefed on the status of witnesses moving into their jurisdictions.

Nor are they told when witnesses leave the program.

“They are treated like anyone else,” Arizona U.S. Marshal David Gonzales said. “It is no different from someone who did the crime — and did the time — when they come out of prison.”

Inmates, however, are released with arrest and court records that follow them wherever they go, unlike criminals moving into witness protection, whose slates are wiped clean.

The usual parole and probation programs to monitor criminals coming out of prison don’t apply to people relocated through the witness protection. Stone-cold killers can voluntarily stop participating in the program and walk away with new Social Security numbers and backgrounds.

That means the public — creditors, landlords, clients, business associates, neighbors, friends, lovers — are unable to learn the truth about a witness’ past.

Former U.S. attorney: Witness safety comes first

The Witness Protection Program is about keeping witnesses safe, said David Kelley, a former U.S. attorney for the southern district of New York who prosecuted Mafia cases using Gioia’s testimony.

He said the Marshals Service is primarily concerned about security, not about the risk a criminal might pose down the road.

“The Witness Protection Program is not intended to be their watchdog,” Kelley said. “(Marshals) are not their parole officers. They are not their probation officers … The decision to put somebody in the program by the Marshals Service is not whether they are going to be repeat offenders so much as can they keep them safe.”

Kelley, who would not speak about Gioia’s case specifically, said it is impossible to underestimate the benefits of the program and its impact on law enforcement. He said the program has given prosecutors an invaluable tool.

“Some of the biggest cases in the country as it relates to organized crime have been successful because of cooperating witnesses,” he said. “If you can’t guarantee their protection, you are not going to have cooperating witnesses ... If you place all the good that is done by cooperators against the bad, the scales are going to tip in favor of the benefit they served in getting some (criminals) off the street.”

Prosecutors used Gioia to build cases and get convictions against bosses, capos, soldiers and associates in the Lucchese and Gambino Mafia families.

Former FBI Director James Comey is among those who oversaw cases built from Gioia’s information and testimony.

Gioia’s reward? A life sentence reduced to about six years. A new name and address. A new life.

And that’s where authorities would like Gioia’s story to end: Third-generation mobster from Little Italy turns government witness, gives up the goods on other wise guys, testifies against them and lives out his days in suburban obscurity. A businessman. An American justice success story.

Except that’s not how the story always goes in the Witness Protection Program. And that’s certainly not how it ended for Gioia.

Frank Gioia: New life as Phoenix businessman

Capri or his companies have been ordered to pay $65 million in court judgments, according to the latest material obtained from legal documents and media accounts. 

In litigation, Capri is accused of orchestrating the failure of Toby Keith restaurants as part of a scheme to steal money meant for construction. He or his companies are accused of taking millions in up-front fees in exchange for signing long-term leases that weren’t honored. Developers who did business with Capri accuse him in civil lawsuits of racketeering and fraud.

READ MORE:
Frank Gioia Jr.'s Mafia associates and their crimes, fates
The Five Families of New York: How the Mafia divides the city
Frank Gioia Jr.: Years of crime, a newidentity and allegations of fraud
What exactly happened at Toby Keith’s?

Capri declined interview requests and did not respond to a detailed list of questions sent to him through his girlfriend and his attorney about his personal history, the Mafia and his businesses.

"He doesn't have any reply," Capri's girlfriend, Tawny Costa, said after attempts to reach him by phone and email.

Capri, Boomtown Entertainment LLC or related entities opened 20 Toby Keith’s I Love This Bar and Grill restaurants from 2009 to 2015. It closed 19 of them in about 18 months starting in 2014, sometimes only months after opening.

One restaurant remains open, in Foxborough, Massachusetts. Boomtown transferred the restaurant to a holding company at the address at one of Capri’s lawyers.  

Capri’s company also announced deals to build 20 more restaurants in cities from California to Florida that it left unfinished or never started.

Toby Keith had no ownership interest in the restaurants; the country singer only collected money on naming rights. He did not respond to interview requests.

Developers, landlords and contractors in 18 states, including Arizona, California, Florida, Ohio and New York, have obtained 36 judgments against Capri and his companies ranging from $2,200 to $10.5 million.

The Republic pieced together Capri’s real identity through court and business records, background searches and interviews with past associates, defense lawyers, former prosecutors, organized-crime researchers and private investigators.

People who had interacted with Gioia in New York identified him from pictures of Capri.

Mafia expert Jerry Capeci, who documents organized crime activities on his Gangland News website, wrote extensively about Gioia’s case in the 1990s and early 2000s.

In a June 2001 article, “New Career for Lucchese Turncoat,” Capeci said Gioia landed a side job while he was in the protection program conducting FBI training sessions on organized crime.

Gioia and his main FBI handlers showed slides and surveillance photos at his first seminar and “are preparing for a return to the lecture circuit later this year,” Capeci wrote.

Local authorities: Not informed of witnesses

The Witness Protection Program operates in secrecy. Participants are not allowed to acknowledge it. Federal officials are barred from discussing it in all but the most general terms.

About 20,000 witnesses and their family members have entered the program since it officially launched in 1970.

There is one hard-and-fast rule, but it can prove tough to follow: Once in the program, you cannot have any contact with your past life. Not with family, not with friends, not with associates.

The U.S. Marshals Service manages all aspects of the program, from protecting witnesses to relocating them and then overseeing them in their new lives. But even local U.S. Marshals offices are provided limited information about witness relocation, which is managed by a special unit out of Washington, D.C.

Gonzales said he could neither confirm nor deny Gioia’s involvement in the Witness Protection Program. He would not discuss Capri.

Gonzales said participation in the program is voluntary. He said people can choose to leave on their own or they can be kicked out for not following rules.

“It depends on the individual,” Gonzales said. “Some people stay for the rest of their lives.”

Former Arizona U.S. Attorney Paul Charlton said he had no knowledge of Gioia and no input in his relocation.

Despite being in office when Gioia moved to Arizona, Charlton said he was not informed about the former mobster’s past activities nor his new identity.

That wasn’t from a lack of oversight. It was by design.

Even though he was the state’s top federal law-enforcement officer, Charlton said his office was not given details about anyone in the program coming into his jurisdiction.

“That is all handled out of Washington,” Charlton said, adding that the tight security helps protect witnesses. “It is a rigorous, demanding program.”

Federal law makes it a crime for authorities to discuss the relocation of a protected witness.

“The area of relocation should be known only to the (United States Marshals Service), and must not be made known to the case attorney or agent, or their staffs,” the law states. “The witness should be instructed to keep secret the area of his/her relocation and all associated matters.”

Charlton praised the program’s benefits, saying it has provided law enforcement the means to go after criminal syndicates. He said testimony from insiders is critical, and they wouldn’t have any incentive to talk if they weren’t going to be protected.

“Swans don’t swim in sewers,” Charlton said. “The folks who run the program know who they’re dealing with.”

Former prosecutor Kelley made a similar analogy.

“When you talk about a cooperating witness, what we often see prosecutors say in their summations is, you know, if you want to hear about what is going on in the sewer, you don’t speak to the angels,” he said. “You speak to the frogs in the sewer.”

Kelley said the likelihood of a witness to reoffend is an issue to be dealt with separately from enrollment in the program.

In other words, he said, judges should give dangerous suspects longer prison sentences before they are relocated in witness protection.

“Once he’s going to be on the outside,” Kelley said, “the question is, does he need to be in the program for his safety?”

Program creator: How witness protection works

About 95 percent of the people in the program are former criminals, according to retired U.S. Department of Justice attorney Gerald Shur, who created the Witness Protection Program and co-authored the book, “WITSEC: Inside the Federal Witness Protection Program.”

WITSEC is an acronym for the Witness Security Program, which is how law-enforcement officers and lawyers refer to the program.

Shur defended the program in a recent interview, saying “very few — a small, small number” of criminals return to a life of crime once they are enrolled in the program.

Or, as he put it: “They are not getting out of bed at 2 a.m. to do some evil deed.”

The program’s recidivism rate is about 18 percent, which Shur said is low “when you compare it to normal parole rates.”

Witness protection operates on two tiers, starting with seven protective-custody units located within federal prisons that house criminal witnesses serving sentences. The second tier involves relocation.

The locations of the prisons are redacted from current government audits, but records show the first facilities were established in Arizona, Minneapolis, New Jersey, New York and Pennsylvania. 

“Contrary to what you might read … the program is tightly controlled,” said Shur, who oversaw the Intelligence and Special Services Unit of the Organized Crime and Racketeering Section of the U.S. Department of Justice in the 1960s.

Shur said he built the program to help prosecute Mafia cases, although today it is used to protect witnesses in terrorism, white-collar fraud and other organized-crime cases.

Shur said before people are admitted into the program, their backgrounds are verified by federal agents. They are interviewed extensively, and some are required to take lie-detector tests. There are psychological tests and threat assessments to determine the level of danger posed to witnesses.

In exchange for entering the program, participants get protection, a new identity, a residence in a new city, employment training and help in finding a job. They also get financial assistance, which lasts anywhere from six months to two years.

The program has safeguards to ensure criminals don’t break laws, Shur said. If protected witnesses are convicted of crimes, they can be locked up in the specialized protective units.

Shur said he occasionally gets calls from judges concerned about what will happen if a protected witness is sentenced to prison. “We can offer to put them in special prisons, if you want them incarcerated,” he said.

Attorney: ‘They covered up his crimes for him’

Gioia’s deal with the FBI in 1995 required him to come clean about his criminal activity. But two years later, Gioia admitted withholding information on crimes, including a half-dozen murders committed by the brother of his ex-fiancee, the mother of his son.

New York defense attorney Ephraim Savitt, a former federal prosecutor, said the government “abdicated its responsibility” by putting Gioia in the Federal Witness Protection Program. He said Gioia should have been disqualified for withholding information from federal authorities in 1997.

“His cooperation agreement should have been torn up,” said Savitt, who spent years as a federal prosecutor in the Eastern District of Manhattan. “Instead, they covered up his crimes for him.”

Savitt represented Lucchese soldier Michael “Baldy” Spinelli, who was convicted of attempted murder in 1998 based on Gioia’s testimony. Gioia said while they were in prison together, Spinelli confided his role in shooting the sister of a former Lucchese captain to keep him from testifying.

Savitt said federal prosecutors didn’t disclose the breach of Gioia’s cooperation agreement until 2000, two years after Spinelli’s conviction. He said the government colluded with Gioia to keep quiet because the disclosure could have been used to impeach his credibility in trials.

“That’s a major breach of the cooperation agreement,” Savitt said.

The government chose to look the other away when it came to Gioia’s violations because prosecutors needed him to “put away more bad guys,” Savitt said.

As a prosecutor and a defense attorney, Savitt said he has worked both sides of the Witness Protection Program. He said the program is “the lifeblood of government witnesses” and gives criminals one of the only incentives to testify against their own organizations.

But, he said, it’s vital to recognize that prosecutors are cutting deals with criminals. Savitt said that’s why it is important to adhere to and enforce federal standards.

He said it’s not surprising Gioia’s name has resurfaced amid accusations of wrongdoing.

“He gamed the system,” Savitt said. “When people find out they can break the rules, they’ll do it again.”

When people enter the Witness Protection Program, no rule keeps them there, Savitt said.

“Once they leave, they are on their own,” he said, adding that criminals such as Gioia are released into unsuspecting communities. “He isn’t some nice professional. Gioia was a cold-blooded killer, a liar … He was a despicable figure.”

‘Sammy Bull’: Another Mafia killer’s history in Arizona

Gioia is not the first Mafia turncoat to end up in Arizona through the Witness Protection Program. He’s also not the first to be accused of wrongdoing.

Gambino family hit man Salvatore “Sammy Bull” Gravano came to the Phoenix area in the early 1990s after turning on mob boss John Gotti.

Gravano admitted to taking part in 19 murders and dozens of other crimes, including extortion and money laundering. In exchange for his testimony against Gotti and dozens of others, FBI agents and judges rewarded him with only five years in prison.

Gravano got a new identity as Phoenix-area businessman "Jimmy Moran,” a new home in Tempe and a new life as the owner of a construction company. But his transition from mobster to mole did not produce a model citizen. Gravano instead became the director of a drug syndicate who peddled his product with the help of a suburban white-supremacist gang.

Gravano’s 1991 plea agreement warned he would be subject to prosecution for all past crimes if he engaged in future illegal activities.

No matter. Gravano withdrew from the Witness Protection Program but continued working with the FBI even as he became godfather to an Arizona drug ring. He provided cash to buy Ecstasy, took 50 cents for each pill sold and mentored the leaders on how to dodge the police and expand the business.

In a 2002 interview with The Republic, Gravano said despite a $1 million Mafia bounty on his head, he quit the Witness Protection Program because he could not abide by restrictions on contact with his wife and their two children.

Gravano said he had planned to stay legitimate but got involved with drugs to protect his son, Gerard, whom he discovered was dealing Ecstasy and using his name for leverage on the street.

READ MORE: Salvatore Gravano, aka Sammy the Bull, living fearlessly in Arizona

“I tried to talk them away from drugs,” Gravano said in the interview. “They convinced me that they'll just make X amount of dollars and they'll quit."

Gravano said he was never able to speak freely with his own father and was afraid of losing the closeness with Gerard if he wasn't supportive. Although he shunned cocaine and heroin, Gravano said he didn’t have issues with soft drugs such as marijuana and Ecstasy.

In a 2000 crackdown, Gravano, his wife, Debra, his two children, Gerard, 24, and Karen, 27, and Karen's live-in boyfriend, David Seabrook, 32, were among the 36 people arrested.

Gravano pleaded guilty a year later to financing and operating a ring that distributed as many as 30,000 tablets of the designer drug per week. Authorities said Gravano employed a white-supremacist youth gang known alternately as the Devil Dogs, White Power and Hitler's Youth to peddle his product. The gang had terrorized minorities in the East Valley, and numerous members were jailed.

In 2002, Gravano was sentenced to 20 years in a federal prison. He was released Sept. 18.

New identities, more crimes: Cases raise questions

Gravano and Gioia are not the only men whose cases raise troubling questions about whether the Witness Protection Program puts the public in jeopardy.

The program for decades has been plagued with reports of witnesses committing crimes using their new identities, including murder.

Take the case of Joseph Calco, a Bonanno family associate whom Gioia helped put away in 1999 on racketeering and murder charges.

In 2001, he agreed to flip and become a government witness, court records and media accounts show. He testified in federal court that he executed a man on orders from acting Bonanno boss Anthony Spero.

In exchange for Calco’s testimony, federal prosecutors agreed to dismiss most of the charges against him and reduce his sentence. He was enrolled in the Witness Protection Program and in 2007 was released from prison with a new identity.

Using the name Joseph Milano, he went into the restaurant business, opening a pizzeria on Florida’s Palm Coast called Goombas.

Milano was out of the mob, but the mob wasn’t out of him. In 2009, Milano got angry at a customer who complained about his order, vaulted the counter and beat the man with a gun.

He was sentenced in 2010 to 10 years in state prison as a felon in possession of a firearm, then got an additional three years for assault with a deadly weapon. His saga didn’t end there.

The Daytona Beach News-Journal reported that during an interview with a reporter after his arrest, Milano revealed his true identity and admitted leaving the Witness Protection Program.

Milano later sued the paper for libel, claiming it called him a hit man and for suggesting he had been in the Witness Protection Program.

The case went to trial in 2014 and a jury deliberated for 90 minutes before dismissing Milano’s claims, the News-Journal reported.

Audits, investigations: Problems date back years

The U.S. Marshals Service recently came under fire from the Department of Justice for its inability to monitor sex offenders admitted into the program.

A 2015 audit by the Office of the Inspector General concluded the Marshals Service “has not taken sufficient steps to mitigate the threat posed by program participants, including sex offenders who commit crimes after being terminated from the program.”

The audit said the Marshals Service did not definitively know the number of sex offenders enrolled in the program. Auditors identified 58 sex offenders who were previously or currently enrolled and found at least 10 of them were convicted of sex offenses while in the program and 38 were convicted after leaving the program. The remaining 10 were convicted before enrolling in the program.

An inspector general’s audit in 2013 found the Marshals Service inadequately monitored “known or suspected terrorists enrolled in the program.” It cited failures in sharing “essential information” with federal agents, including the Terrorist Screening Center and the FBI.

A compensation fund created by Congress in 1984 provides $50,000 to the estate of any person killed by a protected witness. The fund, however, provides nothing to victims of other crimes, including fraud.

More than two decades ago, Pittsburgh Post-Gazette reporter Bill Moushey wrote a series of scathing articles about the Witness Protection Program and detailed 20 murders committed by protected witnesses.

Among those murderers were Marion Pruett and James Red Dog.

Pruett, who went on a cross-country killing spree in 1981, was a twice-convicted bank robber serving time in an Atlanta prison when he turned state’s evidence and agreed to testify about the murder of his cellmate.

Two years after he was relocated to Albuquerque through the Witness Protection Program, Pruett beat his wife to death with a hammer, chopped her up and burned the pieces in the desert. He killed five more people and robbed a series of banks before he was caught.

Moushey reported that Pruett later confessed he had murdered the cellmate and framed another inmate so Pruett could get in the Witness Protection Program.

Red Dog also agreed to testify against inmates in Illinois in exchange for protection. Four years after he was relocated to Delaware, he nearly decapitated a man with a hunting knife, then abducted the man’s mother and raped her repeatedly.

Moushey, who is a professor of journalism at Point Park University in Pittsburgh, said he came away from the project believing that up to 40 percent of the criminals enrolled in the Witness Protection Program didn’t belong there.

He said many cases go the same way as Gioia’s, with criminals withholding details about crimes until it serves them — or “ratting out” only certain people. And there is little authorities are willing to do.

He said the Department of Justice in the 1990s was more concerned about shoring up leaks and making sure information about the program, particularly any problems, weren’t made public.

“It’s only gotten worse since then,” he said.

PART 1 | PART 2 | PART 3