U.S. v. Ciccone, Docket No. 02-1472.

• Decision Date: 04 December 2002
• Docket Number: Docket No. 02-1472.,Docket No. 02-1521.
• Citation: 312 F.3d 535
• Parties: UNITED STATES of America, Appellee, v. Anthony CICCONE, also known as "Sonny"; Richard V. Gotti; Primo Cassarino; Jerome Brancato, also known as "Jerry"; Richard G. Gotti; Peter Piacenti, also known as "Pete 17"; Richard Bondi; Frank Scollo, also known as "Red," also known as "The little guy"; Vincent Nasso, also known as "Dr. Nasso"; Julius R. Nasso, also known as "Jules"; Anthony Pansini; Salvatore Cannata; Anna Eylenkrig; Thomas Lisi; Carmine Malara; Jerome Orsino, Jr., Defendants, Peter Gotti, Defendant-Appellant. United States Of America, Appellant, v. Peter Gotti, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

312 F.3d 535

UNITED STATES of America, Appellee, v. Anthony CICCONE, also known as "Sonny"; Richard V. Gotti; Primo Cassarino; Jerome Brancato, also known as "Jerry"; Richard G. Gotti; Peter Piacenti, also known as "Pete 17"; Richard Bondi; Frank Scollo, also known as "Red," also known as "The little guy"; Vincent Nasso, also known as "Dr. Nasso"; Julius R. Nasso, also known as "Jules"; Anthony Pansini; Salvatore Cannata; Anna Eylenkrig; Thomas Lisi; Carmine Malara; Jerome Orsino, Jr., Defendants, Peter Gotti, Defendant-Appellant.

United States Of America, Appellant, v. Peter Gotti, Defendant-Appellee.

Docket No. 02-1472.

Docket No. 02-1521.

United States Court of Appeals, Second Circuit.

Argued: October 4, 2002.

Decided: December 4, 2002.

Gerald L. Shargel, Law Offices of Gerald L. Shargel, New York, NY, (Marc Fernich, Sarita Kedia, Henry E. Mazurek, on the briefs), for Defendant-Appellant/Defendant-Appellee.

Andrew M. Genser, Assistant United States Attorney for the Eastern District of New York, Brooklyn, N.Y. (Emily Berger, Assistant United States Attorney, Peter A. Norling, Assistant United States Attorney, David C. James, Assistant United States Attorney, Katya Jestin, Assistant United States Attorney, and Roslynn R. Mauskopf, United States Attorney, on the briefs), for Appellee/Appellant.

Before CARDAMONE, MINER, and SOTOMAYOR, Circuit Judges.

MINER, Circuit Judge.

These interlocutory appeals arise out of the pretrial detention of defendant-appellant/defendant-appellee Peter Gotti at the Metropolitan Detention Center ("MDC") in Brooklyn, New York, shortly after he was arrested for allegedly engaging in various racketeering-related activities. In No. 02-1472, Gotti appeals from an order entered in the United States District Court for the Eastern District of New York (Block, J.) denying his motion to revoke a detention order entered by the Magistrate Judge that he be detained without bail pending trial, arguing that the offenses he was alleged to have committed in the grand jury's indictment were not "crimes of violence" as that term is defined in the Bail Reform Act of 1984, 18 U.S.C. § 3156(a)(4) ("BRA"). In No. 02-1521, the Government appeals from an order entered by Judge Block (1) declaring unconstitutional the mandatory administrative exhaustion requirement contained in the Prison Litigation Reform Act, 42 U.S.C. § 1997e ("PLRA"), as applied to Gotti; and (2) granting Gotti's motion to be released from administrative confinement and returned to the general prison population, Judge Block having found that Gotti's administrative confinement was unconstitutional "punishment" of a pretrial detainee.

For the reasons set forth below, we affirm the District Court's order in No. 02-1472, and dismiss as moot the appeal in No. 02-1521.

BACKGROUND

I. No. 02-1472 — Pretrial Detention Without Bail

On June 4, 2002, Peter Gotti was arrested along with sixteen other alleged members and associates of the Gambino Organized Crime Family named in a sixty-eight-count RICO indictment. The RICO enterprise was alleged to be the Gambino Crime Family, of which Gotti was alleged to be the defacto leader. The gravamen of the indictment returned by the grand jury was that the Gambino family members were involved in racketeering schemes involving labor unions and businesses operating at piers and terminals in Brooklyn and Staten Island, New York. The predicate acts alleged were, among other things, extortion, illegal gambling, money laundering, wire fraud, and witness tampering. Examples of predicate acts alleged in the indictment include: (1) using extortion to influence the election of executive officers within the highest levels of the International Longshoremen's Association ("ILA") union; (2) using extortion as part of a bid-rigging/kickback scheme involving various lucrative service contracts for the ILA's national health plan; (3) extorting monies from various waterfront businesses, employees, and relatives of prospective waterfront employees; (4) operating two large-scale illegal gambling businesses; (5) using extortion to collect debts owed by a loan-shark victim; (6) illegally laundering the proceeds, said to be tribute payments to Gotti and others, from the extortions and illegal gambling businesses charged in the indictment; and (7) tampering with grand jury witness testimony.

The particular charges laid out in the indictment against Gotti were racketeering, in violation of 18 U.S.C. §§ 1961(1), and 1961(5); racketeering conspiracy, in violation of 18 U.S.C. §§ 1962(d) and 1963; money laundering conspiracy, in violation of 18 U.S.C. § 1956(h); and money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(a)(1)(B)(i), and 1956(a)(2). The indictment also contained allegations that the extortion and illegal gambling activities summarized above were the source of the proceeds used in the money laundering transactions in which Gotti allegedly participated. Finally, while Gotti was not charged with having committed the extortions alleged in the indictment, the Government nevertheless alleged that he was either the Acting Boss or the actual Boss of the Gambino Crime Family and that, in this capacity, he was aware of and directed and supervised the entire RICO enterprise and, specifically, the extortions charged in the indictment.

On the same day that Gotti was arrested, the Government requested that he be detained without bail pending trial on the ground that he posed a danger to the community. A hearing on the Government's request was held before Magistrate Judge Pollak. At that hearing, the Government presented the expert testimony of an FBI Special Agent about Gotti's role within the Gambino Crime Family and made a proffer, corroborated with surveillance photographs and tape recordings, to demonstrate the strength of its criminal case against Gotti. The case presented by the Government in support of its application that Gotti be detained without bail was as follows: Gotti became the leader of the Gambino Crime family following the criminal convictions of his brother, John Gotti, and of his nephew (the latter's son), John Gotti, Jr. In that capacity, Gotti represented the family at meetings attended by the leaders of other organized crime families and at weddings and funerals of various organized crime figures. Under Gotti's leadership, members of the Gambino Crime Family used threats of force and violence to place a Gambino associate on the ILA Executive Council and to ensure that a lucrative ILA contract was awarded to a company partly owned by a Gambino associate. Secret payments of the proceeds from the extortionate activities charged in the indictment were said to have been made to Gotti.

The Government contended that, as the leader of the Gambino Crime Family, Gotti directed the activities of his codefendants and therefore was responsible for the extortions and the other crimes allegedly committed by them. Accordingly, the Government argued that Gotti posed a significant risk of danger to the community. In response to the case presented by the Government, Gotti's counsel asserted that Gotti was not the boss of an organized crime family and was not guilty of the charges set forth in the indictment. Gotti attacked the credibility of the Government's evidence, questioned the inferences that the Government sought to draw from that evidence, and accused the Government of unfairly targeting Gotti based solely on the fact that he was the brother of the late John Gotti.

In a June 10, 2002 unpublished, thirteen-page decision and order, the Magistrate Judge ordered Gotti detained pending trial without bail based on "clear and convincing evidence" presented by the Government that "there [were] no conditions or combination of conditions that [would] reasonably assure the safety of the community [were] he to be released on bail." In particular, the Magistrate Judge found that Gotti had been "charged with a crime of violence" and therefore could "be detained on grounds of dangerousness" because it was "clear from the indictment that Peter Gotti [was] charged with being the Acting Boss of the Gambino [C]rime [F]amily, responsible for controlling the activities of the racketeering enterprise, and conspiring with the members of the organization to engage in the various acts charged in the indictment." These acts were said to include extortion, "which by its very nature is considered to be an act of violence under the [BRA], in that threats of force and intimidation are used to collect monies and to force others to engage in acts in response to those threats."

Thus, according to the Magistrate Judge, while Gotti was not "named in the specific racketeering counts of extortion, he could nonetheless be held responsible for the acts of the members of his organization if the [G]overnment prove[d] that he [was] in fact the Acting Boss of the family." And the Magistrate Judge concluded that the Government had met its burden of proving that Gotti was in charge of the Gambino Crime Family by providing evidence of the type that this Court had found probative in other cases. The evidence presented in this case demonstrated that: (1) through statements of cooperating witnesses, Gotti held the leadership position; (2) Gotti met with members and associates of the Gambino family in a manner consistent with organized crime leadership; (3) there was a link between Gotti and the receipt of monies obtained through the collection of extortionate payments; (4) Gotti engaged in surreptitious attempts to contact the Gambino Crime Family's former boss, his incarcerated brother John Gotti; and (5) Gotti participated in meetings with, and served as arbiter of disputes between, other organized crime families.

Gotti subsequently filed a motion with the District Court requesting that the Magistrate Judge's detention order be revoked. As part of that motion, Gotti offered a bail package of approximately $4 million secured by...