United States v. Bruno

• Decision Date: 27 February 2015
• Docket Number: No. 14–CR–556 WFK.,14–CR–556 WFK.
• Citation: 89 F.Supp.3d 425
• Parties: UNITED STATES of America, Plaintiff, v. Genarro BRUNO, Defendant.
• Court: U.S. District Court — Eastern District of New York

89 F.Supp.3d 425

UNITED STATES of America, Plaintiff
v.
Genarro BRUNO, Defendant.

No. 14–CR–556 WFK.

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

Signed Feb. 27, 2015.

89 F.Supp.3d 427

Dawn M. Cardi, Cardi & Edgar LLP, Richard Jasper, Law Offices of Richard Jasper, New York, NY, Kelley J. Sharkey, Attorney at Law, Michael Daniel Weil, Michael K. Schneider, Federal Defenders of New York, Inc., Brooklyn, NY, for Defendant.

M. Kristin Mace, Nadia Shihata, U.S. Attorney's Office Eastern District of New York, Brooklyn, NY, for Plaintiff.

ORDER

WILLIAM F. KUNTZ, II, District Judge.

On February 23, 2015, Defendant Genarro Bruno (“Defendant”) filed a motion for bond and for reconsideration of Magistrate Judge Go's detention order of November 14, 2014. For the reasons discussed below, Defendant's motion is DENIED.

FACTUAL BACKGROUND

On October 16, 2014, Defendant was indicted on fifteen counts in a sealed indictment filed with the Court. Dkt. 1 (“Indictment”). The indictment charges Defendant with:

(1) Racketeering Conspiracy in violation of 18 U.S.C. § 1962(d) ; 1963 and 3551 et seq.;

(2) Racketeering in violation of 18 U.S.C. § 1961(1) and (5) ; 18 U.S.C. § 1962(c), 1963, 2, and 3551 et seq.;

(3) Conspiracy to Import Marijuana in violation of 21 U.S.C. § 963 and 960(b)(1)(G) ; 18 U.S.C. § 3551 et seq.;

(4) Conspiracy to Distribute Marijuana in violation of 21 U.S.C. § 841(a) ; 21 U.S.C. § 846 and 841(b)(1)(A)(vii) ; 18 U.S.C. § 3551 et seq.;

(5) Using, Carrying and Possessing a Firearm in violation of 18 U.S.C. § 924(c)(1)(A)(i), 924(c)(1)(A)(ii), 924(c)(1)(A)(iii), 2 and 3551 et seq.;

(6) Causing Death Through Use of a Firearm in violation of 18 U.S.C. § 924(j)(1), 2 and 3551 et seq.;

(7) Murder in Aid of Racketeering in violation of 18 U.S.C. § 1959(a)(1), 2 and 3551 et seq.;

(8) Murder While Engaged in Narcotics Trafficking in violation of 21 U.S.C. § 848(e)(1)(A) ; 18 U.S.C. § 2 and 3551 et seq.

(9) Conspiracy to Murder While Engaged in Narcotics Trafficking in violation of 21 U.S.C. § 846 ; 18 U.S.C. § 3551 et seq.;

(10) Conspiracy to Prevent Testimony in violation of 18 U.S.C. § 1512(k) and 3551 et seq.;

(11) Attempt to Prevent Testimony in violation of 18 U.S.C. § 1512(b)(1), 2 and 3551 et seq.;

89 F.Supp.3d 428

(12) Conspiracy to Prevent Communication of Information to a Law Enforcement Officer in violation of 18 U.S.C. § 1512(k) and 3551 et seq.;

(13) Attempt to Prevent Communication of Information to a Law Enforcement Officer in violation of 18 U.S.C. § 1512(b)(3), 2 and 3551 et seq.;

(14) Conspiracy to Obstruct an Official Proceeding in violation of 18 U.S.C. § 1512(k) and 3551 et seq.; and

(15) Attempt to Obstruct an Official Proceeding in violation of 18 U.S.C. § 1512(c)(2), 2 and 3551 et seq.

Additionally, there are criminal forfeiture allegations as to Counts One and Two; Five and Six; Three, Four, Eight, and Nine; and Ten through Fifteen. Id.

Defendant is described in that indictment as an associate of the “Corozzo Faction within the Gambino organized crime family of La Cosa Nostra,” and as having been a “member of the ‘Young Guns' crew in the 1990s” before becoming an associate. Id. at 1, 7. The conduct for which Defendant was indicted is alleged to have occurred during various periods of time between 2000 and October 2014. Id at 7–23.

On November 14, 2014, following Defendant's transfer from the District of Nevada, Defendant was ordered detained by Magistrate Judge Go. Dkt. 10 (“Order of Detention”). Magistrate Go found that Defendant should be detained pending trial, and not granted bail, because there was “probable cause to believe that the [D]efendant has committed an offense for which a maximum terms of imprisonment of ten years or more is prescribed in 21 U.S.C. § 841,” “probable cause to believe that the [D]efendant has committed an offense under 18 U.S.C. § 924(c),” and that Defendant did not “rebut[ ] the presumption established by finding (1) that no condition or combination of conditions will reasonably assure the appearance of the defendant as required and the safety of the community.” Id. Magistrate Judge Go also noted that “[D]efendant presented no credible sureties to assure his appearance but leave is granted to reopen and present a bail package in the future.” Id. In her handwritten notes, Magistrate Judge Go further noted that there was no bail package presented and that the Defendant has a lengthy criminal history. Id.

In the intervening period, the Government and Defendant have begun discovery following this Court's entering a protective order on November 18, 2014. Dkt. 8 (“Protective Order”). In addition, the Government has indicated that it will not seek the death penalty and so no Curcio hearing has been or will be held in this matter. Dkt. 20 (“Letter Advising Court as to Death Penalty”), 21 (“Motion to Relieve Learned Counsel”).

LEGAL STANDARD

The Eighth Amendment to the Constitution states that “[e]xcessive bail shall not be required.” U.S. Const. amend. VIII. The Bail Reform Act (“Bail Act”), 18 U.S.C. § 3141 et seq., sets out the standard under which a defendant can be held without bail pursuant to a criminal indictment. It “requires a court to order the pre-trial release of a defendant on a personal recognizance bond ‘unless the [court] determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.’ ” United States v. Huzinec, 15–MJ–2043, 2015 WL 506422, at *2 (W.D.N.Y. Feb. 6, 2015) (Scott, M.J.) (internal citation omitted). Only if there is “no condition or combination or conditions [that] will reasonably assure the appearance of the [defendant] and the safety” of

89 F.Supp.3d 429

others should the Court order detention. United States v. Sabhnani, 493 F.3d 63, 75 (2d Cir.2007) (describing the legal standard under the Bail Act in the Second Circuit). There is, however, no statutory limit on the length of pre-trial detention under the Bail Act. See United States v. Lewis, 5 F.Supp.3d 515, 526 (S.D.N.Y.2014) (Hellerstein, J.) (citing United States v. Orena, 986 F.2d 628, 630 (2d Cir.1993) ).

The central inquiry to be performed by the Court is to determine whether the defendant is a flight risk or a danger to any other person or to the community at large. The Government must support a finding of dangerousness by clear and convincing evidence, see United States v. Ferranti, 66 F.3d 540, 542 (2d Cir.1995), and must support a finding of risk of flight by a preponderance of the evidence, see United States v. Jackson, 823 F.2d 4, 5 (2d Cir.1987). However, evidence may be supplied through proffers and hearsay information, and the Federal Rules of Evidence do not apply. See Ferranti, 66 F.3d at 542 ; Fed.R.Evid. 1101(d)(3). A defendant thus may be incarcerated pending trial without the many constitutional and evidentiary protections normally guaranteed to those who are to be punished pursuant to judicial proceedings. Indeed, because detention pending trial is considered “regulatory rather than punitive,” the decision to detain a defendant pending trial “does not require proof of a threat beyond a reasonable doubt, is not subject to Sixth Amendment jury guarantees, and does not provide for the defendant's right to confront and cross-examine witnesses.” United States v. Choudhry, 941 F.Supp.2d 347, 350 (E.D.N.Y.2013) (Kuntz, J.) (citing United States v. Gallo, 653 F.Supp. 320, 334 (E.D.N.Y.1986) (Weinstein, J.)). Nonetheless, mindful of the due process considerations attendant to any form of detention, “[t]he power to incarcerate before trial ‘must be exercised with circumspection. It may be invoked only when and to the extent justified by danger which the defendant's conduct presents.’ ” Id. (citing Gallo, 653 F.Supp. at 332 ).

The Bail Act provides a list of four factors for the Court to consider in making the determination as to whether a defendant is a flight risk or a danger to any person or to the community, stating in pertinent part:

(g) Factors to be considered. —The judicial officer shall, in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, take into account the available information concerning—

(1) the nature and circumstances of the offense charged, including whether the

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