Basciano v. Lindsay, 07-CV-421(NGG)(RML).

• Decision Date: 14 January 2008
• Docket Number: No. 07-CV-421(NGG)(RML).,07-CV-421(NGG)(RML).
• Citation: 530 F.Supp.2d 435
• Parties: Vincent BASCIANO, Petitioner, v. Cam LINDSAY, Warden of the Metropolitan Detention Center,<SMALL><SUP>1</SUP></SMALL> Respondent.
• Court: U.S. District Court — Eastern District of New York

530 F.Supp.2d 435

Vincent BASCIANO, Petitioner, v. Cam LINDSAY, Warden of the Metropolitan Detention Center,¹ Respondent.

No. 07-CV-421(NGG)(RML).

United States District Court, E.D. New York.

January 14, 2008.

Ying Stafford, Law Office of Ying Stafford, Ephraim Savitt, Stephanie Carvlin, New York, NY, James Kousouros, Kew Gardens, NY, for Petitioner.

Amy Busa, John David Buretta, Thomas Joseph Seigel, Winston Y. Chan, United States Attorneys Office, Eastern District of New York, Brooklyn, NY, for Respondent.

MEMORANDUM AND ORDER

GARAUFIS, District Judge.

Petitioner Vincent Basciano ("Basciano" or "Petitioner") is currently detained in the Metropolitan Detention Center ("MDC") in Brooklyn, where he awaits trial on charges for which he faces a possible death sentence. Basciano petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, in which he seeks an order lifting the Special Administrative Measures ("SAMs")² currently governing his confinement and releasing him from a Special Housing Unit ("SHU") back into the general prison population. (Petition for Writ of Habeas Corpus (Docket Entry # 1) ("Petition").) On January 31, 2007, this court referred the Petition to Magistrate Judge Robert M. Levy for a Report and Recommendation ("R & R"). (Docket Entry # 3.) On May 25, 2007, Judge Levy issued an R & R recommending that this court grant the petition only with respect to allowing Basciano contact visits with his attorneys but recommending that the court deny the petition in all other respects. (Docket Entry # 17.)

On June 5, 2007, Basciano timely filed objections to the R & R, and at a September 27, 2007 hearing, the court granted Basciano's newly appointed counsel leave to file additional papers to supplement the habeas petition. On October 24, 2007, Basciano filed an amended petition; on November 3, 2007, he filed an additional supplemental memorandum; on November 21, 2007, the Government filed its opposition; and on November 28, 2007, Basciano filed a reply. While Basciano requests an Order lifting the SAMs and releasing him from the SHU, he requests' in the alternative an evidentiary hearing to present witnesses who would purportedly controvert the Government's bases for subjecting Basciano to such restrictive conditions of confinement. In addition, since Judge Levy's R & R Basciano has been allowed contact visits with his attorneys, which thus renders this particular aspect of his habeas petition moot. Basciano now argues, however, that his conditions of confinement negatively affect the contact visits with his attorneys that he is currently allowed.

For the reasons set forth below, the court adopts the conclusions contained in Judge Levy's R & R and rejects the additional arguments Basciano has since set forth in favor of his petition. As a result, Basciano's petition for habeas corpus, or in the alternative to be granted an evidentiary hearing, is DENIED.

I. Background

Given the lengthy history of Basciano's two pending criminal cases before the court and the extent to which his current conditions of confinement are predicated upon evidence dating back to the earliest days of his confinement, it is necessary for the court to provide a thorough overview of this history as background for its decision.

A. Procedural History

Basciano was arrested on November 19, 2004 and charged by a Superseding Indictment with racketeering and gambling in Case No. 03-CR-929. (Docket Entry # 165 (November 18, 2004 Superseding Indictment).) The charges included conspiracy to murder and murder of Frank Santoro. (Id. at 17.) On May 9, 2006, a jury found Basciano guilty of racketeering conspiracy but deadlocked on the charges pertaining to the Santoro murder.³ At a July 2007 retrial that took place after Judge Levy issued his R & R, a jury again found Basciano guilty of racketeering and also found him guilty of all charges pertaining to the Santoro murder.⁴ I presided over both of these trials.

In the meantime, on January 26, 2005, the Government indicted Basciano under docket number 05-CR-060. (Docket Entry # 1, January 26, 2005 Indictment.) The Indictment charged Basciano with, inter alia, murder in aid of racketeering of Randolph Pizzolo and discussed information in the Government's possession suggesting that Basciano had solicited the murder of Assistant United States Attorney Greg Andres ("Andres"), who prosecuted the 03-CR-929 case. (Id.) The solicitation allegedly took place in late 2004 while Basciano was incarcerated pending trial on the 2003 indictment. (Id.) Basciano was formally charged with soliciting Andres's murder in a June 25, 2005 Superseding Indictment, in which he was also charged with conspiracy to murder Patrick DeFilippo, a member of the Bonanno crime family. (Docket Entry # 65 in 05-CR-060.) DeFilippo was tried with Basciano in the original trial in 03-CR-929.⁵

B. Conditions of Confinement Since November 2004 Arrest

Basciano's conditions of confinement have changed several times since his November 2004 arrest. After a brief initial stay in "reception" at the MDC, where he was not permitted any visitors or contact with other detainees, he was released into the general prison population in December 2004. United States v. Basciano, 369 F.Supp.2d 344, 346-47 (E.D.N.Y.2005) (Garaufis, J.) ("Basciano I"). In January 2005, Basciano was placed in the SHU at the MDC shortly before the indictment in Case No. 05-CR-060, which charged him with the Pizzolo murder and first set forth the Government's belief that he had conspired to murder Andres, was unsealed. Id. at 347.

Basciano remained in the SHU at the MDC until March 2005, when he was moved to Unit 10 South at the Metropolitan Correctional Center ("MCC") in Manhattan. The unit is considered the most secure housing unit available at any Bureau of Prisons ("BOP") facility in the New York City Metropolitan Area and is generally reserved for terrorism suspects and other inmates considered to be a danger to other inmates and/or prison guards. Id. While housed in Unit 10 South, Basciano's contact with visitors, including his attorneys, was sharply curtailed based on the Government's contention that the conditions were necessary to prevent Basciano from directing the affairs of the Bonanno crime family from prison, including ordering acts of violence. Id. Specifically, the Government argued that, in addition to his involvement in the plot to kill Andres, Basciano had ordered the Pizzolo murder from the MDC. Id. at 349.

This court granted Basciano's request to be released back into the general prison population, concluding that the Government had not "made a sufficient showing that Basciano was engaged in planning acts of violence while in pre-trial detention" and that there was nothing to distinguish Basciano from "the hundreds of individuals in pre-trial detention who are accused of having committed violent acts before they were detained." Id. at 351 (emphasis in original). Specifically, I concluded that "the facts currently before the court suggest that if Basciano ordered the Pizzolo murder, he did so before he entered MDC-Brooklyn" and that the allegation was thus insufficient to justify detention under the harsh conditions of the SHU. Id. at 352. Further, I concluded that "the tape recordings, standing alone, do not sufficiently substantiate the government's allegation that Basciano conspired to kill a federal prosecutor while in detention or at any other time." Id. I noted that "[t]he government may well possess other evidence concerning this purported, and as yet uncharged, conspiracy. If it does, however, it has not presented it to this court for consideration." Id.

In addition to finding the Government's evidence insufficient to warrant Basciano's continued detention in the SHU, I noted that the restrictions were hampering Basciano's efforts to fight the Government's efforts to seek the death penalty against him because "[a]s a practical matter, the security restrictions in place in the SHU make it much more difficult for Basciano to have productive meetings with his counsel" and "long periods of solitary confinement can have devastating effects on the mental well-being of a detainee." Id. at 352-53. Given these realities, the court held that the "nuclear option" of indefinite solitary confinement was inappropriate "until it is clear that less restrictive options have failed to constrain Basciano." Basciano was released into the general population pursuant to the court's May 5, 2005 Order. Id. at 353.

Basciano remained in general population at the MCC until July 28, 2006, when he was again transferred to the SHU. (Petition for Writ of Habeas Corpus ("Pet.Br.") at 4.). On August 28, 2006, the Government disclosed under seal that Basciano's transfer back to the SHU was the result of another inmate having informed the Government that Basciano had provided him with a handwritten list of five individuals that Basciano wanted murdered. (Id. at 9.) The list included myself, the lead prosecutor Greg Andres, and three cooperating witnesses who had testified against Basciano in his 2006 trial. (Id. Ex. I.) Basciano responded at the time that the list was intended to lift a spell that had been cast on him, and he stated that inmate Reginald White had corroborated Basciano's account when interviewed by a lieutenant at the MCC. In an interview with Government investigators shortly after the list was discovered, Basciano's wife, Angela Basciano, also corroborated the story about the mystical nature of the list. (Id. at 9-10.)

On September 21, 2006, the Government informed Basciano and his counsel that it had received authorization from the Attorney General to impose SAMs on Basciano. (Id. at 12-13.) Basciano was then transferred from the SHU at MCC to Unit 10 South, where he was again under extremely restrictive conditions of confinement. (Id. at 13.) Subsequent to Judge Levy's R & R, Basciano has been moved back to the MDC, where he is...