U.S. v. Gotti, Case No. 02-CR-606 (FB)(ASC).
Decision Date | 07 August 2002 |
Docket Number | Case No. 02-CR-606 (FB)(ASC). |
Citation | 219 F.Supp.2d 296 |
Parties | UNITED STATES of America, v. Peter GOTTI, et. al., Defendants. |
Court | U.S. District Court — Eastern District of New York |
Alan Vinegrad, United States Attorney for the Eastern District of New York, by Andrew Genser, Assistant United States Attorney, Brooklyn, NY, for the Government.
Gerald L. Shargel, Sarita Kedia, New York, NY, for the Defendant.
Defendant Peter Gotti ("Gotti") moves, pursuant to 18 U.S.C. § 3145(b), to revoke the June 10, 2002 detention order of Magistrate Judge Cheryl L. Pollak.1 Familiarity with that decision is presumed. The indictment charges Gotti with racketeering, racketeering conspiracy, money laundering conspiracy, and eight substantive counts of money laundering. The government charges that extortion and illegal gambling were the bases for the proceeds used in the money laundering transactions. The government alleges that Peter Gotti is the Acting Boss of the Gambino family.
The Court's review of the Magistrate's detention order is de novo. See United States v. Leon, 766 F.2d 77, 80 (2d Cir.1985); United States v. Agnello, 101 F.Supp.2d 108, 110 (E.D.N.Y.2000).
Under the Bail Reform Act ("BRA"), the Court should detain a defendant if "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person in the community." 18 U.S.C. § 3142(e).2 Here, the issue is dangerousness, not flight. A finding of dangerousness must be supported by "clear and convincing evidence." United States v. Ferranti, 66 F.3d 540, 542 (2d Cir.1995).
The factors to be considered in determining dangerousness are: (1) the nature and circumstances of the crimes charged, (2) the history and characteristics of the defendants, (3) the seriousness of the danger posed by the defendant's release; and (4) the evidence of the defendant's guilt. See 18 U.S.C. § 3142(g).
Title 18 U.S.C. § 3156(a)(4) defines the term "crime of violence" as "(A) an offense that has [as] an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another; (B) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." "[E]xtortion . . . [is a] crime of violence within the meaning of the Bail Reform Act." Agnello, 101 F.Supp.2d at 110.
Danger to the community is not limited to violent crimes; it includes crimes that would harm the community. See United States v. Millan, 4 F.3d 1038, 1047 (2d Cir.1993) () (quoting S.Rep. No. 225, 1984 U.S.C.C.A.N. 3182, 3195); see also United States v. Colombo, 777 F.2d 96, 100 (2d Cir.1985) (); cf. Leon, 766 F.2d at 81 (). The defendant need not have acted personally; he can be deemed dangerous if he directed others to commit crimes. See Ferranti, 66 F.3d at 543 (quoting Colombo, 777 F.2d at 100).
In a thorough, well-reasoned decision, Magistrate Judge Pollak rejected Gotti's argument that he cannot be detained on grounds of dangerousness because "he is not charged with a crime of violence." Order at 9.3 Magistrate Judge Pollak concluded that
it is clear from the indictment that Peter Gotti is charged with being the Acting Boss of the Gambino crime family, 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. Included among these predicate acts are numerous acts of extortion, which by its very nature is considered to be an act of violence under the [BRA] . . . . As such, while Peter Gotti may not be 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 government proves that he is in fact the Acting Boss of the family. The fact that there may be virtually no evidence of Gotti's direct participation in the charged crimes of violence "is not surprising if one accepts the determination made for the purposes of the bail hearings that [Gotti] played a leadership role" in the Gambino family.
Order at 9-10 (quoting Colombo, 777 F.2d at 99) (other citations omitted). Magistrate Judge Pollak found that Id. at 11. "Because of the authority inherent in that position," Magistrate Judge Pollak concluded that Gotti "poses a danger for which there can be no combination of conditions sufficient to prevent him from continuing in that role even if placed under house arrest." Id. (citing United States v. Orena, 986 F.2d 628, 632-33 (1993)). The Magistrate Judge reasoned that "since there does not appear to be a dispute that the Acting Boss of an organized crime family has substantial power and authority to supervise the criminal activities of the family, including acts of violence, the threat of Gotti's continued liberty stems from his ability to continue to direct, plan, order, and supervise criminal activity even if he himself may not be personally involved." Id. at 12.
In his present motion, Gotti argues that "there is no case supporting detention where the defendant is not actually charged in the act of violence whether it be extortion or some other act of violence." Tr. of Oral Argument, July 11, 2002, at 23. He contends that
the government [has] resort[ed] to the far flung theory that, simply because Peter Gotti is charged in a racketeering conspiracy which includes predicate acts of extortion by others, Mr. Gotti is also charged with crimes of violence. . . . This argument is absurd. While Mr. Gotti is indeed charged in a racketeering conspiracy, he cannot be held responsible for the acts of others about which he had no knowledge and in which he is not charged.
Gotti Letter, July 1, 2002, at 5 (internal citation omitted).
Under Second Circuit precedent concerning pretrial detention of organized crime leaders, if a defendant is a leader of an organized crime family the inference should be drawn that the defendant has knowledge of the acts of his underlings and is accountable for their conduct. As stated in Ferranti, "it is not necessary that the defendant himself commit acts of physical violence as a condition precedent to a detention order." Ferranti, 66 F.3d at 543 (quoting Colombo, 777 F.2d at 98) (internal quotation marks omitted).
Here, as Magistrate Judge Pollak noted, the government presented testimony, transcripts, surveillance records and photographs documenting Gotti's position as Acting Boss. Indeed, Gotti does not seriously dispute that he is the Acting Boss of the Gambino family. At oral argument the Court afforded defense counsel an opportunity to proffer evidence as to who was the Acting Boss, and counsel demurred:
Tr. of Oral Arg., July 11, 2002, at 31 (citation omitted); see also 18 U.S.C. § 3142(f) (); United States v. Mercedes, ...
To continue reading
Request your trial-
United States v. Ingram
...(D. N.J. 2007) (noting that "danger to the community does not only include physical harm or violent behavior"); United States v. Gotti , 219 F. Supp. 2d 296, 298 (E.D.N.Y. 2002) ("Danger to the community is not limited to violent crimes; it includes crimes that would harm the community."). ......
-
U.S. v. Gotti
...a four-page Opinion and Order granting the Government's motion and explaining its reasons for doing so. 18. In United States v. Gotti, 219 F.Supp.2d 296, 299-300 (E.D.N.Y.2002), a related proceeding in which the district court had upheld the pretrial detention of Peter Gotti, the district c......
-
United States v. Smith
...many property, drug, and sex offenses, each of which harmed the community, weigh heavily against him.4 See United States v. Gotti, 219 F. Supp. 2d 296, 298 (E.D.N.Y.) (noting that "danger" under § 3142 generally "includes crimes that would harm the community"), aff'd sub nom. United States ......
-
Pretrial release or detention
...defendant attended terrorist training camps but disavowed present connection to any terrorist organizations) United States v. Gotti, 219 F. Supp. 2d 296, 298 (E.D.N.Y. 2002) (danger is not limited to violent crimes, but “it includes crimes that would harm the community”; defendant may be ......
-
U.S. v. Gotti.
...District Court BAIL REFORM ACT U.S. v. Gotti, 219 F.Supp.2d 296 (E.D.N.Y. 2002). A defendant who had been indicted on multiple racketeering and money laundering charges was refused release from pretrial detention. The district court held that the defendant was a danger to the community beca......