U.S. v. Accetturo

• Decision Date: 14 February 1986
• Docket Number: No. 85-5682,Nos. 85-5670,85-5681 and 85-5682,85-5680,No. 85-5681,No. 85-5680,No. 85-5670,85-5670,85-5681,85-5682,s. 85-5670
• Citation: 783 F.2d 382
• Parties: UNITED STATES of America, v. ACCETTURO, Anthony, Taccetta, Michael, Perna, Michael, Ricciardi, Thomas. Appeal of Anthony ACCETTURO, inAppeal of Michael TACCETTA, inAppeal of Michael PERNA, inAppeal of Thomas RICCIARDI, in
• Court: U.S. Court of Appeals — Third Circuit

Page 382

783 F.2d 382

54 USLW 2434

UNITED STATES of America, v. ACCETTURO, Anthony, Taccetta, Michael, Perna, Michael Ricciardi, Thomas Appeal of Anthony ACCETTURO, in No. 85-5670 Appeal of Michael TACCETTA, in No. 85-5680 Appeal of Michael PERNA, in No. 85-5681. Appeal of Thomas RICCIARDI, in No. 85-5682.

Nos. 85-5670, 85-5680, 85-5681 and 85-5682.

United States Court of Appeals, Third Circuit.

Argued Jan. 8, 1986.

Decided Feb. 14, 1986.

Thomas W. Greelish, U.S. Atty., D. of N.J., Michael A. Guadagno, Acting Atty. in Charge, Barbara Miller (argued), Sp. Atty., U.S. Dept. of Justice, Organized Crime Strike Force, Newark, N.J., for appellee.

Milton M. Ferrell, Jr. (argued), Miami, Fla., for appellant Anthony Accetturo.

Michael Critchley (argued), Critchley & Roche, Alan L. Zegas, West Orange, N.J., for appellant Michael Taccetta.

Raymond M. Brown (argued), Brown & Brown, P.A., Alan Dexter Bowman, Alan Dexter Bowman, P.A., Newark, N.J., for appellant Michael Perna.

Harvey Weissbard (argued), Weissbard & Wiewiorka, West Orange, N.J., for appellant Thomas Ricciardi.

Before WEIS, SLOVITER and STAPLETON, Circuit Judges.

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Appellants are the subjects of an indictment returned by a federal grand jury on August 19, 1985, charging them and 22 others with conspiring to violate the Racketeering Influence and Corrupt Organizations Act, 18 U.S.C. Sec. 1962(d), and with conducting a racketeering enterprise in violation of section 1962(c) of that Act. On August 21, appellant Anthony Accetturo appeared before a United States Magistrate in the Southern District of Florida, and appellants Michael Taccetta, Michael Perna and Thomas Ricciardi appeared before a United States Magistrate in New Jersey, at which time the United States moved for their pretrial detention pursuant to the Bail Reform Act of 1984, 18 U.S.C. Sec. 3141 et seq. The Magistrates held detention hearings and ruled in favor of appellants. ¹

On September 13, 1985, appellants were arraigned before the district court. The government again moved for their detention. The district court conducted separate, de novo hearings and, on October 18, 623 F.Supp. 746, rendered a decision in favor of detention of each appellant. The district court simultaneously stayed execution of its order until October 25, giving appellants an opportunity to file emergency motions for stays before this Court. We denied these motions on October 24.

Appellants now appeal the pretrial detention order of the district court. They challenge the procedures applied by the district court in the detention hearings, including its use of in camera evidence and its reliance on certain "overlapping evidence" produced at one appellant's hearing in its decision to detain other appellants. Appellants Accetturo, Taccetta and Ricciardi also challenge the constitutionality of the Bail Reform Act of 1984. We find two deficiencies in the proceedings below and remand these cases for reconsideration by the district court.

I.

Section 3142 of the Bail Reform Act of 1984 amended prior law by requiring the judicial officer to consider the "nature and seriousness of the danger to any person or the community that would be posed by the person's release" in determining the appropriateness of pretrial detention. 18 U.S.C. Sec. 3142(g). This

change in the law was said to reflect "the deep public concern ... about the growing problem of crimes committed by persons on release" and the recognition that

there is a small but identifiable group of particularly dangerous defendants as to whom neither the imposition of stringent release conditions nor the prospect of revocation of release can reasonably assure the safety of the community or other persons. It is with respect to this limited group of offenders that the courts must be given the power to deny release pending trial.

S.Rep. No. 225, 98th Cong., 1st Sess. 6-7, reprinted in 1984 Code Cong. & Ad.News 3182, 3188-89 (Senate Report)....

United States v. Leon, 766 F.2d 77, 80 (2d Cir.1985) (emphasis omitted).

Section 3142 authorizes a judicial officer, after a hearing, to order detention if he or she "finds that no condition or combination of conditions will reasonably assure the appearance of the [defendant] ... as required and the safety of any other person and the community." 18 U.S.C. Sec. 3142(e). If the judicial officer finds "probable cause to believe that the person committed" certain enumerated offenses "for which a maximum term of imprisonment of ten years or more is prescribed," the Act provides a "rebuttable presumption ... that no condition or combination of conditions will reasonably assure the appearance of the [defendant] as required and the safety of the community." Id.

Section 3142 further directs the judicial officer to hold a detention hearing at which the defendant has the right to counsel, and "shall be afforded an opportunity to testify, to present witnesses on his own behalf, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise." 18 U.S.C. Sec. 3142(f). Significantly, "the rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing." Id. The judicial officer may detain a defendant only if his finding that "no condition or combination of conditions will reasonably assure the safety of any other person and the community" is supported by "clear and convincing evidence." Id. Finally, the judicial officer must, in rendering his decision,

take into account the available information concerning--

(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;

(2) the weight of the evidence against the person;

(3) the history and characteristics of the person ...

(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.

18 U.S.C. Sec. 3142(g).

II.

At appellants' detention hearings, the government relied primarily on the testimony of Federal Bureau of Investigation Special Agent Dennis Marchalonis and on transcripts of intercepted conversations involving appellants. Accetturo's hearing took place on October 3, 1985. Marchalonis testified that a longtime associate of Accetturo, later ascertained to be Joseph Alonzo, had provided sworn testimony regarding the development of a "well-run ... criminal organization" headed by Accetturo. (Accetturo Exhibits at H5 [hereinafter AE]. Alonzo alleged that appellant, who lives in Florida, had trained Taccetta and sent him to run a New Jersey based criminal organization. Marchalonis further testified, relying on electronic surveillance, to Accetturo's control over the New Jersey Taccetta organization.

Marchalonis described, again based in part on Alonzo's information, the extortionate takeover by the Accetturo organization of Aron & Aron, Inc., a Florida business.

Marchalonis also testified to threats to two government witnesses allegedly made by Accetturo organization members. As evidence of the intimidation of one witness, the government offered a tape recording and transcript of an intercepted conversation concerning Accetturo's involvement in another extortionate takeover, this time of CVX, Inc., a California based corporation. This recording and transcript, along with affidavits regarding voice identifications, were offered to the court, and accepted by it, for in camera consideration on the ground that disclosure of them to appellants would jeopardize the witnesses heard on the tape. The government provided appellants with a summary of the contents of the in camera materials in its pre-hearing briefing. Marchalonis testified that codefendants under the control of Accetturo and Taccetta threatened the owner of CVX, Michael Esposito, and members of his family, and in fact beat Esposito in June, 1984. Marchalonis stated that as a result, Esposito, now incarcerated in New York for refusing to testify in an unrelated matter, was "in fear of his life." (Joint Appendix at 940 [hereinafter JA].

The second government witness was told by a person allegedly connected to the Accetturo organization that "the boys were looking for him and they wanted to talk to him." (AE13). According to Marchalonis, a second source corroborated this story, stating that the organization knew the witness was cooperating and would have to be "silenced". (AE15).

Taccetta's hearing took place on October 10, 11 and 15. The government offered the transcript of Accetturo's hearing to establish Taccetta's rise in the organization. Marchalonis testified that Taccetta was the New Jersey "underboss" for Accetturo. The government offered the same in camera information concerning the takeover of CVX, Inc. and the threats to Michael Esposito that it offered in Accetturo's hearing. Marchalonis testified further to the threat to the second government witness and to the extortionate takeover of Aron & Aron, Inc. Marchalonis also stated that government surveillance, witness testimony and tape recordings linked Taccetta to cocaine and marihuana distribution, and that government sources further inculpated Taccetta in counterfeit credit card use and extortion of gambling operatives.

Perna's hearing took place on October 4, 1985. The government offered intercepted conversations that included a March 12, 1983 "Santa Claus Suits" conversation, in which Perna allegedly said of the organization's loansharking debtors:

there are a lot of f___ stiffs in this f___ book! And they think we are suckers all the time! ... We're taking the Santa Claus suit ... off. There are a lot of guys who are gonna get hurt.

(Government Appendix at 93 [hereinafter GA]. Marchalonis further testified that a number of loansharking victims interviewed by police officers refused to admit they had borrowed money from the organization; when confronted with...