United States v. Rivera, 16–CR–323–002

• Decision Date: 07 December 2017
• Docket Number: 16–CR–323–002,16–CR–323–005,16–CR–323–004
• Citation: 281 F.Supp.3d 269
• Parties: UNITED STATES of America v. Tyshawn RIVERA, Defendant. United States of America v. Malik Folks, Defendant. United States of America v. Dylan Cruz, Defendant.
• Court: U.S. District Court — Eastern District of New York

281 F.Supp.3d 269

UNITED STATES of America

v.Tyshawn RIVERA, Defendant.

United States of America

v.Malik Folks, Defendant.

United States of America

v.Dylan Cruz, Defendant.

16–CR–323–002

16–CR–323–005

16–CR–323–004

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

Signed December 7, 2017

Andrey Spektor, andrey.spektor@usdoj.gov, David N. Gopstein, david.gopstein@usdoj.gov, United States Attorney's Office, 271, Cadman Plaza East, Brooklyn, NY 11201, 718-254-6475, for The United States of America.

Peter Quijano, 40 Fulton Street, Floor 23, New York, NY 10038, 212–686–0666, peter@qandelaw.com, for Tyshawn Rivera.

Michael H. Gold, 350 Fifth Avenue, 6800, New York, NY 10118, 212–868–0699, for Malik Folks.

Jeremy Schneider, Rothman, Schneider, Soloway & Stern, 100 Lafayette Street, Suite 501, New York, NY 10013, 212–571–5500, jschneider@rssslaw.com, for Dylan Cruz

Statement of Reasons Pursuant to 18 U.S.C. § 3553(2)

Jack B. Weinstein, Senior United States District Judge:

Table of Contents

I. Introduction ...271

II. Facts ...273

a. Events Leading to Arrest ...273

b. Tyshawn Rivera's Contact with the Victims' Brother....273

c. Gang Affiliation ...274

d. Arrest of Defendants ...274

i. Tyshawn Rivera....274

ii. Malik Folks ...274

iii. Dylan Cruz ...274

e. Guilty Pleas....274

f. Sentencing....275

g. Victim Impact Statement ...275

h. Cypress Hills Houses ...275

i. Jump in Crime and Poverty....275

ii. Cypress Hills Houses Today ...276

iii. Gangs as a Source of Crime in New York ...276

iv. NYPD and FBI Enforcement Strategy ...276

v. A City Wide Focus on Gangs and Public Housing ...278

III. Mandatory Minimum and Criminal History....279

IV. Law ...280

a. Incapacitation....280

i. Incapacitation and Incarceration in the United States....280

ii. Incarceration Philosophy Abroad and Proposed for the United States ...281

iii. Evolving Constitutional Framework ...281iv. Incapacitation From a Utilitarian Perspective....282

b. Alternatives to Incarceration in EDNY and Elsewhere ...284

c. Gang Programming and Prosecution in New York ...285

d. Mandatory Minimums ...286

V. 18 U.S.C. § 3553(a) Considerations ...287

a. Tyshawn Rivera ...287

b. Malik Folks ...288

c. Dylan Cruz ...288

VI. Conclusion ...289

I. Introduction

On his twentieth birthday, Malik Folks, along with Tyshawn Rivera and Dylan Cruz, broke into an apartment in Brooklyn, occupied by young children and adults. They terrorized and robbed the family at gunpoint.

Defendants—all adolescents—were gang-members, typically from impoverished and broken families.

They present the court with a number of troubling sentencing issues: (1) the need to prevent future acts of violence by gang members who, because of their home environment, and past affiliations, may be unable to escape the strictures of gang control; (2) the requirement that a sentencing court consider a defendant's age, potential for rehabilitation, and culpability when crafting a sentence; (3) the limited ability of the justice system to provide the necessary structured environment and programming to prevent recidivism, and properly assist those defendants attempting to overcome poverty, gang allegiances, and a traumatic upbringing; and (4) limited judicial discretion when sentencing pursuant to mandatory minimum statutes.

Statutorily mandated incapacitory sentences are usually unnecessary to increase public safety, or prevent recidivism; they place a tremendous financial burden on society through excessive incarceration. See United States v. Dossie , 851 F.Supp.2d 478, 478 (E.D.N.Y. 2012) ("[T]oo many ... defendants ... ‘lose their claim to a future’—to borrow a phrase from Attorney General Eric H. Holder, Jr.—because lengthy mandatory prison terms sweep reasonable, innovative, and promising alternatives to incarceration off the table at sentencing.").

The comparatively lengthy sentences in this case are made necessary by mandatory minimums, but also by the finding that the available alternatives to incarceration or diversion programs are either insufficient or unavailable for violent defendants, like the present ones who have been trapped in a gang culture, and condemned to a life of poverty and probable crime.

New York City currently has a record low homicide rate, not seen since the 1960's, and is the second lowest among major American cities. Anthony DeStefano, NYC homicide stats comparable to ‘60s; other crimes down as well , Newsday, Jan. 3, 2017 ("New York City finished 2016 tied for its second lowest number of homicides in the modern era of record keeping, driving the city's rate for each 100,000 residents to the lowest level among major U.S. cities except San Diego.").

Praise is due to New York City's police department as well as federal agencies for their concerted efforts to target high crime areas, such as New York City Housing Authority ("NYCHA") complexes, which are often hubs for gang and criminal activity. See United States Attorney's Office, EDNY, Crips Gang Member Indicted For 2014 Murder , Mar. 7, 2017 (available at https://www.justice.gov/usao-edny/pr/crips-gang-member-indicted-2014-murder) ("The indictment is the result of a long-term investigation initiated by the FBI, the NYPD, and the [United States] Attorney's Office in 2015 in response to gang-related violence in and around Cypress [Hills NYCHA Houses]. The investigation has resulted in charges against 21 defendants for drug trafficking, illegal weapons possession, robbery, and murder.").

Long term extensive investigations, while successful in snaring organized criminals, and credited by many for reducing the city-wide crime rate, have recently come under criticism for taking too wide a sweep in labeling and criminalizing anyone associated or "conspiring" with a gang. One investigation from 2016 culminated with a raid and prosecution described below:

In total, some 700 officers from an array of local and federal agencies, as well as helicopters and armored vehicles, swarmed the Eastchester Gardens projects and other public housing buildings in this section of the Bronx in the early hours of April 27. Officers from the NYPD gang squad, as well as the Drug Enforcement Administration, Immigration and Customs Enforcement, and the Bureau of Alcohol, Tobacco, Firearms, and Explosives, were targeting two rival gangs. Eighty-eight people were arrested in the blitz, which also led to new, federal charges against several people who were already serving time. In two separate indictments, the defendants, identified by their names and a variety of street names, were charged with racketeering conspiracy, narcotics conspiracy, narcotics distribution, and firearms offenses.

... "They're casting far too broad a net," said Babe Howell, a criminal law professor who in 2013 obtained details about 28,000 individuals on an internal NYPD "gang list. " "It's a world where there's not enough crime, and there are too many prosecutors and too many resources in law enforcement."

Alice Speri, In New York Gang Sweeps, Prosecutors Use Conspiracy Laws to Score Easy Convictions , The Intercept, Jul. 12, 2016 ("Last month, the Mayor's Office of Criminal Justice announced it would allocate $32 million "in targeted investments that will provide district attorneys with tools to combat the leading drivers of violent crime in each borough."); Edwin Martinez, Hispanic Leaders Wary of NY Senate Anti–Gang Bill , May 9, 2017 ("The Senate passed the ‘Criminal Street Gang Enforcement and Prevention Act’ by 48 votes to 13, to criminalize belonging to a gang, [and] increase penalties for gang-related crimes.").

The Assistant United States Attorney's comments in the instant case reflect common prosecutorial views when dealing with a defendant as a gang member:

I know in the submission, Mr. Rivera commented that, you know, he's been identified as a gang member but he wasn't ever actually formally brought into the gang and that may be true under these circumstances, however, Your Honor, it's really a distinction without a difference because Mr. Rivera committed this crime with fellow gang members, he was closely associated with gang members, he committed crimes, you know, as a co-conspirator with other gang members and certainly, the victims, when he referenced his guys having seen one of the family members in the neighborhood, they heard loud and clear that the threat was extended across the gang of which he was affiliated. So, he had—the family member to him, according to the submissions, was, in fact, a leader of the local Crip set in the Cypress Hill Houses. So the authority with which he was speaking as far as the victims heard it and his association with his co-conspirators is gang-based. So, I think the fear of misconduct in the future is very real.

Hr'g Tr. 23:14–24:7, Oct. 4, 2017 (emphasis added).

In the present case neither Mr. Rivera, nor his compatriots, were prosecuted under the Criminal Street Gangs Act, 18 U.S.C. § 521(b), which allows for a sentence enhancement of up to ten years, or to a criminal RICO conspiracy pursuant to 18 U.S.C. § 1961. United States v. Lawrence , 254 F.Supp.3d 441, 455 (E.D.N.Y. 2017) ("The Guidelines do not consider gang membership as a factor in sentencing, except for defendants who are sentenced under 18 U.S.C. § 521... where the Guidelines provide for an upward departure.").

Court practice, and the guidelines, fail to provide sentencing alternatives for gang or violent offenders. See Infra IV.b. (in the last five years in the Eastern District of New York only 7.4% of participants in alternatives to incarceration programs are defendants charged with violent offenses).

More court sentencing alternatives and community programming, in addition to the NYPD's targeted policing, are necessary to discourage gang violence, as well as to assist defendants attempting to escape their environs after a conviction or sentence. Lengthy mandatory minimums, and the penological theory of incapacitation continue to be justified by a lack of sentencing alternatives for society's "unredeemables." See e.g. NYU Center on the...