US v. DiGiacomo, Crim. No. 90-10065-Wf.

• Citation: 746 F. Supp. 1176
• Decision Date: 03 August 1990
• Docket Number: Crim. No. 90-10065-Wf.
• Parties: UNITED STATES of America v. Biagio DIGIACOMO, Vincent C. Gioacchini, a/k/a Dee Dee Antonio L. Spagnolo, a/k/a Anthony, a/k/a Spucky.
• Court: U.S. District Court — District of Massachusetts

746 F. Supp. 1176

UNITED STATES of America v. Biagio DIGIACOMO, Vincent C. Gioacchini, a/k/a Dee Dee Antonio L. Spagnolo, a/k/a Anthony, a/k/a Spucky.

Crim. No. 90-10065-Wf.

United States District Court, D. Massachusetts.

July 5, 1990.

Supplemental Order August 3, 1990.

COPYRIGHT MATERIAL OMITTED

Ernest DiNisco, R. Bradford Bailey, U.S. Atty's. Office, Dist. of Mass., Boston, Mass., for the U.S.

Richard M. Egbert, Boston, Mass., for DiGiacomo.

Joseph J. Bulliro, Boston, Mass., for Spagnolo.

MEMORANDUM AND ORDER

WOLF, District Judge.

I. SUMMARY

This case arises from an impressive undercover operation conducted by the Federal Bureau of Investigation ("FBI") from 1983 to 1987, and from the apparently unprecedented electronic surveillance of a La Cosa Nostra ("LCN") or Mafia induction ceremony on October 29, 1989. The evidence preliminarily indicates that the defendant Biagio DiGiacomo is a "Capo Regime," or "Captain," in the alleged Patriarca family of the LCN. It appears that the defendant Anthony "Spucky" Spagnolo is a "Soldier" in that family.

In February, 1987 DiGiacomo and Spagnolo were informed by the FBI that for several years their criminal conversations and conduct with undercover Special Agent Vincent delaMontaigne had been surreptitiously tape-recorded. This disclosure was made in an unsuccessful effort to obtain their cooperation in the investigation of other, presumably more important, LCN figures.

Over 3 years later, on March 26, 1990, DiGiacomo, Spagnolo, and their co-defendant Vincent Gioacchini were arrested on the charges in this case. On the same day several of their alleged superiors in the Patriarca family were arrested in another case now pending in this District. United States v. Patriarca, et al., Cr. No. 89-28-MA (the "Patriarca case"). Also on the same day, 10 other alleged members of the Patriarca family were arrested in the District of Connecticut. United States v. Bianco, et al., Cr. No. H-90-18(AHN) (the "Bianco case").

In contrast to certain defendants in the Patriarca and Bianco cases, neither DiGiacomo nor Spagnolo is alleged to have committed a murder or conspired to have committed a murder.¹ Although each case is unique, 8 of the 10 defendants in the Bianco case, including alleged "Underboss" Nicholas Bianco (who would be superior to DiGiacomo) and alleged Capo Matthew Guglielmetti, have been released pending trial.²

On April 6, 1990, the magistrate ordered DiGiacomo and Spagnolo detained, finding that no combination of conditions of release would reasonably assure their appearance or the safety of the community. In reaching her decision regarding detention, the magistrate relied substantially on information contained in the April 2, 1990 Affidavit of FBI Special Agent Joseph P. Hannigan, Jr. and related testimony.

DiGiacomo and Spagnolo requested that this court review the matter of their detention.³ This review, however, was delayed in part because although the undercover operation had been completed for over three years, the government had not prepared even preliminary transcripts of the tape recordings relating to Hannigan's affidavit or other relevant transcripts. Preliminary transcripts of the recordings relating to the Hannigan affidavit were produced on June 8, 1990. Additional transcripts were made available to the defendants on June 22, 1990.

After receiving memoranda of law from the parties, from June 25 to June 29, 1990, the court conducted further evidentiary hearings concerning the detention of DiGiacomo and Spagnolo. In view of the overlap in some of the charges and evidence, it was agreed that a joint hearing would be appropriate, with the understanding that the court would analyze the evidence with regard to each defendant individually. The evidence now before this court includes all of the testimony and other evidence presented to the magistrate, additional testimony of Special Agents Hannigan and delaMontaigne, the testimony of Anthony Spagnolo's brother Vincent, various transcripts of tape-recorded conversations, and other documents.

The court has independently reviewed the foregoing evidence. For the reasons described in this opinion, the court concludes that with regard to each defendant the government has not satisfied its burden of proving that no combination of conditions will reasonably assure the appearance of the defendant, the safety of any person, or the safety to the community. Rather, the court concludes that there are a combination of conditions which will provide the required reasonable assurances. These conditions include, but are not limited to, requiring that each defendant remain at home subject to electronic monitoring and permitting them to meet or communicate only with their attorneys, members of their families, and a small number of close friends not associated with the Mafia.

The reasons for this decision are many. They are described in detail below. At the outset, however, it should be noted that the government has failed to prove that either DiGiacomo or Spagnolo is likely to flee if released in part because each of them for three years knew there was substantial evidence of the likely charges against them and did not attempt to flee before indictment.

Similarly, the government has failed to prove that the conditions to be imposed by the court will not reasonably assure the safety of any person or the community in part because of its conduct in the three years prior to the return of the indictment in this case. More specifically, while the court understands that some time after the conclusion of an undercover phase of an investigation is necessary to conduct related overt investigation and to prepare a case for indictment, it is evident that the government was not greatly concerned by the risk of flight or danger presented by DiGiacomo or Spagnolo after they were informed in February, 1987 of the undercover operation. Since February, 1987, the defendants have not been under surveillance. In addition, as the problem with producing the preliminary transcripts, among other things, suggests, the government did not in those three years feel an urgent need to secure the indictment and seek the pretrial incarceration of DiGiacomo and Spagnolo. Rather, it appears that the extraordinary event of the electronically surveilled induction ceremony triggered the indictments of these defendants' alleged LCN superiors and precipitated the prosecution of DiGiacomo and Spagnolo as well.

The court's view that the government has not proven that the pretrial detention of DiGiacomo and Spagnolo is warranted is reinforced by its perception of the defendants as calculating individuals. As described below, it appears that the defendants have long known the government had substantial evidence of their membership in the Mafia and of their involvement in many of the crimes for which they are now charged. It has also been foreseeable that conviction on such charges would probably result in meaningful terms of incarceration for each of them. This is a risk the defendants apparently decided to accept by not fleeing in the past three years. As the court stated in the course of the detention hearings, however, in view of defendants' dismal history of being successfully investigated by the FBI, it should also now be foreseeable that if they attempt to violate the conditions of their release they will again be caught and, if ultimately convicted, they will be subject to substantially enhanced penalties. It should be particularly evident that any direct or indirect effort by DiGiacomo or Spagnolo to attempt to obstruct justice or intimidate a witness while on release will not only result in the revocation of bail, but also substantially increase their sentences if they are convicted in this case. The court expects that at this point DiGiacomo and Spagnolo will recognize that the risk of a further serious sentence is unnecessary and unacceptable.

II. THE APPLICABLE LEGAL STANDARDS

It is necessary to consider the pretrial detention of DiGiacomo and Spagnolo because this is a case in which each is charged with both crimes of violence and offenses for which a maximum term of imprisonment of ten years or more is prescribed by the Controlled Substances Act. 18 U.S.C. § 3142(f)(1)(A) and (C).

With regard to the risk of flight as a basis for detention, the government must prove by a preponderance of the evidence that no combination of conditions will reasonably assure each defendant's appearance at future court proceedings. United States v. Vortis, 785 F.2d 327, 328-29 (D.C. Cir.), cert. denied, 479 U.S. 841, 107 S.Ct. 148, 93 L.Ed.2d 89 (1986).

With regard to danger, however, there is a heightened standard of proof because of "the importance of the interests of the defendant which are implicated in a pretrial detention hearing." S.Rep. No. 225, 98th Cong., 2d Sess. 22, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3205. Thus, clear and convincing evidence is required to establish the facts relied upon to support a finding that no combination of conditions will reasonably assure the safety of any other person or the community. 18 U.S.C. § 3142(f).

In addition, as Judge Robert Keeton has recently observed:

Congress ... chose to use the term "danger" which by its nature is a risk concept. By using this term, Congress did not declare that the community is entitled to assurances of freedom from all harm, and a court cannot detain arrestees on the mere apprehension of danger of harm. Rather, the court's inquiry must focus on whether by conditions of release the community can reasonably be assured of its safety. See United States v. Orta, 760 F.2d 887, 892 (8th Cir.1985) (en banc).

United States v. Phillips, 732 F.Supp. 255, 266 (D.Mass.1990) (emphasis in original).

Generally, when reviewing a magistrate's order regarding pretrial detention, it is the duty of the district court to "undertake an independent review of the case." United States v....