U.S. v. Ferranti

• Decision Date: 26 September 1995
• Docket Number: D,No. 1914,1914
• Citation: 66 F.3d 540
• Parties: UNITED STATES of America, Appellant, v. Jack FERRANTI, also known as 1-95 cr-119-01, Defendant-Appellee. ocket 95-1172.
• Court: U.S. Court of Appeals — Second Circuit

Page 540

66 F.3d 540

UNITED STATES of America, Appellant, v. Jack FERRANTI, also known as 1-95 cr-119-01, Defendant-Appellee.

No. 1914, Docket 95-1172.

United States Court of Appeals Second Circuit.

Argued April 19, 1995.

Decided Sept. 26, 1995.

Lauren J. Resnick, Brooklyn, NY, Assistant United States Attorney, Eastern District of New York (Zachary W. Carter, United States Attorney, Julie E. Katzman, Assistant United States Attorney, on the brief) for appellant.

Susan C. Wolfe, Hoffman & Pollok, New York City, for defendant-appellee.

Before MESKILL, ALTIMARI, and CALABRESI, Circuit Judges.

ALTIMARI, Circuit Judge:

The government appeals the March 23, 1995 order of the United States District Court for the Eastern District of New York (Weinstein, J.), granting the release of petitioner-appellee Jack Ferranti ("Jack Ferranti" or "Ferranti"). Following oral argument on April 19, 1995, we reversed the district court without comment. We now explain our decision.

Ferranti was arrested on February 27, 1995. He stood accused of conspiracy to commit arson, arson resulting in death, witness tampering and mail fraud. The district court referred all pre-trial detention matters to United States Magistrate Judge Roanne L. Mann, who conducted a hearing on Ferranti's application to be released on bail pending trial. Based on the government's proffers, documentary evidence, and five hours of testimony by FBI Special Agent Cindy Peil, the magistrate judge concluded that Ferranti and his two co-defendants were a danger to the community. Finding no conditions that could assure the safety of the community, she denied the application for bail. Judge Weinstein reversed the magistrate judge's denial of bail to Ferranti, although he affirmed her decision to deny bail to Jack Ferranti's brother, Mario Ferranti. The government appealed.

At the hearing before the magistrate judge, the government proffered evidence that Ferranti purposefully started a fire in a building in Maspeth, Queens at about 11:00 p.m. on a week night, when most of the building's residents were at home. New York City firefighter Lieutenant Thomas A. Williams was killed in the blaze. The government established that Ferranti, who owned a clothing boutique located on the building's first floor, had a motive for the arson. Ferranti admitted lying to the police about his whereabouts on the night of the arson. Further, a grand jury found probable cause to believe that Ferranti tampered with a witness whose testimony would bear on the arson charge.

In addition to the arson, the government offered proof that Ferranti carried a fully loaded, albeit possibly disabled, .22 caliber revolver. At the time the bail determination was made, an indictment was pending in the Southern District of New York charging Ferranti, a convicted felon, with unlawful possession of that weapon.

The government also contended that Ferranti directed Mario Ferranti and others to intimidate tenants in the numerous buildings that he owned. Specifically, the government intended to show that Mario Ferranti used a large dog to physically evict tenants at his brother's behest. Ferranti also directed his brother and others to intimidate a mortgagee, Robert Cohen ("Cohen"). Ferranti fell behind on mortgage payments and Cohen threatened to foreclose. Shortly thereafter, Cohen was menaced and then shot in the neck at his home by unidentified men. He promptly sold the mortgages back to Ferranti at a loss.

Worse still, Jack Ferranti allegedly ordered Mario Ferranti to terrorize and kill Bruce Bailey, a tenants' rights activist. Bailey was found murdered, his body dismembered. Mario Ferranti allegedly claimed credit for mutilating the corpse. The government's proffer also included evidence of the attempted murder of an alleged criminal associate, Patrick Donnelly ("Donnelly"). After Donnelly allegedly withdrew from a bank robbery conspiracy in 1985, Ferranti shot him several times. Donnelly and other witnesses identified Jack Ferranti as the shooter. The magistrate judge did not rely heavily on this evidence, however, finding it weaker than the government's other proof.

Discussion

A district court may order pretrial detention where it finds that "no condition or combination of conditions will reasonably assure ... the safety ... of the community...." 18 U.S.C. Sec. 3142(e). To order detention, the district court must find, after a hearing, that the government has established the defendant's dangerousness by clear and convincing evidence. See 18 U.S.C. Sec. 3142(f). The rules of evidence do not apply in a detention hearing. See id. Further, the government may proceed by proffer. See, e.g., United States v. Salerno, 481 U.S. 739, 743, 107 S.Ct. 2095, 2099, 95 L.Ed.2d 697 (1987) (government relied on lengthy proffer derived from electronic surveillance and anticipated testimony for pretrial detention hearing); cf. 18 U.S.C. Sec. 3142(f) (allowing detainees to proceed by proffer).

We review for clear error the historical facts upon which a district court relies in determining whether a defendant poses a risk to the community. United States v. Melendez-Carrion, 790 F.2d 984, 994 (2d Cir.1986). Our scope of review is slightly broader with respect to the "ultimate determination" that a defendant does, or does not, present a risk to the citizenry. See id; see also United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir.1991). The determination that a package of bail conditions will protect the public from a purportedly dangerous defendant, see id. at 89; United States v. Orena, 986 F.2d 628, 632 (2d Cir.1993), is a mixed question of law and fact which we review for clear error, cf. United States v. Shakur, 817 F.2d 189, 196 (2d Cir.) (whether bail package will assure presence at trial is mixed question of law and fact reviewed for clear error), cert. denied, 484 U.S. 840, 108 S.Ct. 128, 98 L.Ed.2d 85 (1987).

In this case, Judge Weinstein agreed that the government's proffer and the evidence put on at the hearing established by clear and convincing evidence that Mario Ferranti was a danger to the community. However, Judge Weinstein concluded that the proffer and proof with respect to Jack Ferranti was "equivocal." According to Judge Weinstein, the government had not made "that strong a case on the basis of the full record that [he had] studied." Accordingly, the bail package created by the district court contained no special conditions to assure the community's safety, except a court order forbidding both defendants from tampering with witnesses or obstructing the evidence.

We conclude that the district court clearly erred. By proffer and through five hours of testimony, the government established by clear and convincing evidence that Jack Ferranti was a danger to the community. A grand jury found probable cause to believe Ferranti was involved in the Maspeth arson that put at risk numerous tenants and killed a firefighter. Ferranti's own conduct suggested his complicity: he lied when asked his whereabouts on the night of the fire, and, as the grand jury found, he tampered with a witness who would have testified in connection with the arson.

Further, a grand jury in the Southern District indicted Ferranti, a convicted felon, on a charge of possessing a firearm. Moreover, Ferranti possessed that gun in a public place. We agree with the magistrate judge that Ferranti's assertion that the weapon was disabled does not detract from the effect it...