United States v. Gotti, 02 CR 743-07 (CM)

• Decision Date: 15 January 2020
• Docket Number: 02 CR 743-07 (CM)
• Citation: 433 F.Supp.3d 613
• Parties: UNITED STATES of America, v. Peter GOTTI, Defendant.
• Court: U.S. District Court — Southern District of New York

433 F.Supp.3d 613

UNITED STATES of America,

v.Peter GOTTI, Defendant.

02 CR 743-07 (CM)

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

Signed January 15, 2020

John Michael Hillebrecht, Department of Justice, Michael Gerard McGovern, Assistant United States Attorney, New York, NY, for United States of America.

Joseph DiBenedetto, Law Offices of Joseph R. Benfante, New York, NY, for Defendant.

DECISION AND ORDER DENYING MOTION FOR COMPASSIONATE RELEASE

McMahon, C.J.:

Peter Gotti was convicted of various federal crimes, including: racketeering; racketeering conspiracy; conspiracy to commit murder in aid of racketeering; and extortion. The Honorable Richard C. Casey sentenced Gotti to 300 months imprisonment, to be served consecutive to a 112-month sentence Gotti was then serving for convictions in the Eastern District of New York. See United States v. Gotti , 02 Cr. 606 (FB) (E.D.N.Y.). According to an estimate provided by the Bureau of Prisons ("BOP"), Gotti completed his Eastern District of New York sentence—and so began serving the sentence imposed in this case—in May or July 2010. He is presently serving his sentence at the Federal Medical Center at Butner, North Carolina. His current scheduled release date is May 5, 2032.

Before the Court is Gotti's motion for compassionate release, filed pursuant to 18 U.S.C. § 3582 and the First Step Act. The Government opposes the motion.

The Compassionate Release Statute

A court may not modify a term of imprisonment once it has been imposed except pursuant to statute. Until last December, a court could not modify a defendant's duly-imposed sentence on compassionate release grounds unless it received a motion from the Bureau of Prisons asking that the court consider such modification. 18 U.S.C.A. § 1B1.13. Reduction in Term of Imprisonment Under 18 U.S.C. § 3582(c)(1)(A) (Policy Statement) (Effective November 1, 2006; amended effective November 1, 2007; November 1, 2010; November 1, 2016; November 1, 2018).

In December 2018, as part of the First Step Act, Congress worked a change to that rule of long standing. A court may now consider a motion for compassionate release made by a defendant who has exhausted his administrative remedies by petitioning the Director of the BOP to make such a motion, assuming the Director fails to act on the inmate's request within thirty days:

[T]he court, ... upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment ...

18 U.S.C. § 3582(c)(1)(A) (emphasis added).

The court may modify a sentence on compassionate release grounds only:

after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that ... extraordinary and compelling reasons warrant such a reduction ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission....

The relevant Sentencing Commission policy statement is found in U.S.S.G. § 1B1.13. It provides that the Court may reduce the term of imprisonment only if three conditions are met:

(i) extraordinary and compelling reasons warrant the reduction, id. § 1B1.13(1)(A) ;

(ii) the defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g), id. § 1B1.13(2) ; and

(iii) "the reduction is consistent with this policy statement. id. § 1B1.13(3).

The Application Notes describe the circumstances under which "extraordinary and compelling reasons exist." Id. § 1B1.13 Application Note 1. One of those is the defendant's medical condition:

(A) Medical Condition of the Defendant.—

...

(ii) The defendant is—

(I) suffering from a serious physical or medical condition,

(II) suffering from a serious functional or cognitive impairment, or

(III) experiencing deteriorating physical or mental health because of the aging process, that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.

Id. § 1B1.13 Application Note 1(A).

According to a Program Statement issued by the BOP after passage of the First Step Act, a defendant may be considered for a reduced sentence based on a his/her medical condition only if s/he

(i) has an "incurable, progressive illness" or has "suffered a debilitating injury from which [he] will not recover;"

(ii) is "[c]ompletely disabled, meaning the [defendant] cannot carry on any self-care and is being totally confined to a bed or chair;’ " or

(iii) is "[c]apable of only limited self-care and ... confined to a bed or chair more than 50% of waking hours."

U.S. Department of Justice, Federal Bureau of Prisons, Program Statement, OPI OGC/LCI, Number 5050.50, January 17, 2019, Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g), at 5.

It is important to note that a defendant who meets all the criteria for compassionate release consideration listed above is not thereby automatically entitled to a sentence modification. He is simply eligible for a sentence modification. The court confronted with a compassionate release motion is still required to consider all the Section 3553(a) factors to the extent they are applicable, and may deny such a motion if, in its discretion, compassionate release is not warranted because Section 3553(a) factors override, in any particular case, what would otherwise be extraordinary and compelling circumstances.

Background Facts

From at least 1999 up to his conviction in 2002, Peter Gotti was the Acting Boss of the Gambino Crime Family of La Cosa Nostra (the "Gambino Family" or "Family"), one of the most powerful and violent organized crime organizations in New York. In the words of Judge Casey, the "vicious business of the Gambino family is to terrorize, extort, maim and murder in the pursuit of illegal profits." (Tr. Sent'g, Doc. No. 308, 23:7–9). During his tenure as Acting Boss, Gotti "stood atop this organization," "profited from the widespread illegal activities of the Gambino family," and exercised the "authority to decide life or death." (Id. 22:13–23:10.)

The evidence at trial showed how Gotti used his leadership of the Gambino Family to order the death of others and enrich himself. In 1999, Gotti ordered two Gambino Family subordinates, Eddie Garafola and Thomas Carbonara, to hunt down and kill Salvatore ("Sammy the Bull") Gravano, the former Underboss of the Family. Gotti sought to have Gravano murdered because Gravano had cooperated in the prosecution of numerous high-level Gambino Family members, including John Gotti, Sr., the defendant's brother and former Boss of the Family.

At the defendant's direction, Garafola and Carbonara took extensive steps to track down and kill Gravano. They created fake aliases, changed their physical appearances, and took two trips to the West Coast and Arizona, where Gravano was believed to be living. During the trips, Garafola and Carbonara purchased firearms, conducted surveillance, and photographed locations where Gravano might be found. They discussed specific ways to kill Gravano, including detonating a remote-control bomb and recruiting a Gambino Family marksman to shoot Gravano with a high-powered rifle. Ultimately, the plan to murder Gravano was aborted because Gravano was arrested and jailed in 2000 on drug charges.

The trial evidence showed that, after the plan was called off, Gotti was upset because he had spent approximately $70,000 on expenses that Garafola and Carbonara incurred when planning the murder.

The trial evidence also showed Gotti's role in extorting the construction industry. Gotti was a member of the Gambino Family's Ruling Panel and/or its Construction Panel, which oversaw the Family's criminal activities relating to labor unions and the construction industry. During that period, the Gambino Family extorted numerous construction companies and contractors by charging a "mob tax." If a contractor paid the Family cash and/or provided "no-show" jobs for Family members, the Family would use its criminal influence to prevent unions from objecting if the contractor hired non-union workers. If, on the other hand, a contractor or union member refused to go along with the shakedown, the Family would threaten strikes, work stoppages, or even violence. The trial evidence showed, among other things, that Gotti received $10,000 every month or every other month from a businessman at a construction company.

Gotti's Request to the BOP for Compassionate Release

On February 22, 2019, Gotti submitted an administrative request to the BOP, asking the bureau to file a motion for reduction of sentence on his behalf. In his request, he listed the various medical conditions he claimed to be suffering from:

(1) cardiomyopathy

with a severe eccentric mitral valve regurgitation ; (2) first degree left bundle branch block ; mild to moderate left ventricular global heart dysfunction with an ejection factor; (3) atrial fibrilation [sic]; (4) likely cancerous growth in at least one of [his] lungs; (5) hypertension cardiovascular disease ; (6) arterial hypertension ; (7) hypothyroidism ; (8) cardiac arrythmia [sic];(9)

congestive heart failure

; (10) chronic obstructive pulmonary disease ; (11) early stage renal insufficiency ; (12) gout; (13) osteoarthritis ; (14) gastric reflux; (15) bilateral glaucoma ; (16) rhematoid [sic] arthritis ; (17) hyper lipidemia, (18) enlarged prostate; (19) total blindness in left eye; (20) hearing loss; (21) anticoagulant therapy ; and (22) borderline anemia.

The form that Gotti filled out instructed him to circle one of three listed grounds for compassionate release: (1) Terminal Medical Condition; (2) Debilitated Medical Condition; and/or (3) Elderly with...