The opinion of the court was delivered by: WALKER
The government has moved pursuant to the Bail Reform Act of 1984, 18 U.S.C. section 3142(f)(1)(A), "in a case . . . that involves . . . a crime of violence" for pretrial detention of defendants Anthony Salerno and Vincent Cafaro, who, with thirteen other defendants, are named in indictment 86 Cr. 245 (MJL) filed on March 20, 1986, and unsealed on March 21, 1986. The government concedes that neither defendant poses a risk of flight but urges strenuously that no condition of bail or combination of conditions will assure the safety of the community or of any person and that therefore pretrial detention is mandated under 18 U.S.C. section 3142(e). For the reasons set forth below, this court finds that the government has established by clear and convincing evidence that both defendants pose a present danger to the community and that no condition or combination of conditions of release will reasonably assure the safety of any other person and the community.
On March 21, 1986, both defendants appeared for the first time before this court, sitting in Part I. Both defendants moved for a 5-day continuance as provided in 18 U.S.C. section 3142(f), and this court set the hearing for March 26, 1986. The hearing was held on March 26 and 27, 1986.
The information received from both sides was by way of proffer as permitted by United States v. Martir, 782 F.2d 1141 (2d Cir. 1986).
The 88-page indictment charges that the fifteen defendants were leaders, members, and associates of the "Genovese Organized Crime Family of La Cosa Nostra (The Genovese Family)," that the Genovese Family was an "enterprise" as defined in 18 U.S.C. section 1961(4), and that the purposes of the enterprise included the unlawful infiltration in New York City of legitimate businesses in the concrete construction, food manufacturing, and food distribution industries, exercise of control over unions in these and other industries, operation of illegal gambling businesses, loansharking, murder and conspiracies to murder those who would threaten the enterprise, engendering fear of the enterprise through violence and concealment of the existence of the enterprise from law enforcement authority.
The indictment charges that the means and methods of the enterprise included the maintenance of a hierarchical "organized criminal group" operating in New York and other states. The enterprise operated through "crews" made up of "members" and "associates" and led by a Captain, or "Capo. " In charge of the several "crews" and their "capos" was an overall "Boss" and, at times, an "Underboss." When a "Boss" was incapacitated or imprisoned, one of the "Capos" in the Genovese Family served as "Acting Boss." The "Bosses" and "Capos" supervised and protected the criminal activities of the enterprise's members and associates. The indictment charges that Anthony Salerno is the present "Boss" of the Genovese Family and has served in the past as its "Acting Boss" and "Consigliere" and that Vincent Cafaro is a "Capo" in the Genovese Family.
The indictment delineates the roles of all defendants in the Genovese Family hierarchy and in its criminal racketeering activities of bid-rigging in the concrete construction industry, extortion, loansharking, labor racketeering, gambling, and the use of violence. The defendants are charged both with conspiracy to participate in the above racketeering enterprise and actual participation in the enterprise in violation of 18 U.S.C. section 1962. The indictment further charges sixteen counts of mail fraud, under 18 U.S.C. sections 1341 and 1342, in connection with the bid-rigging scheme in the concrete construction industry whereby the enterprise rigged subcontract bids valued variously in the range of $3,000,000 to $ 13,000,000 in major building projects in New York City. The indictment further alleges an 18 U.S.C. section 1343 wire fraud count relating to the election and control of Roy L. Williams as President of the Teamsters International; a conspiracy to extort payments from a food distributor, Marathon enterprises, seven extortion counts relating to Marathon's distribution arrangements with legitimate retailers, and a conspiracy to extort payments from one Anthony Giordano, all in violation of 18 U.S.C. sections 1951 and 1952; one count of illegal numbers in violation of 18 U.S.C. section 1955 and one count of illegal bookmaking, both in violation of 18 U.S.C. section 1955.
A principal thrust of the indictment is that the power and effectiveness of the Genovese Family to carry out its criminal activities depends on its ability and willingness to use violence and its reputation for violence. Violence is alleged as a method and means of the racketeering enterprise and the specific racketeering acts alleged include not only the foregoing extortion counts, but two murder conspiracies as well.
The government's proffer in support of detention consisted of the prospective testimony of two witnesses who had previously testified in organized crime trials, James Fratianno and Angelo Lonardo, evidence from a search conducted at the apartment at 115th Street and First Avenue, the full-time residence of Cafaro and the in-town residence of Salerno, as well as excerpts from electronic surveillance in two locations in Manhattan from which Genovese Family business was conducted -- the Palma Boys Social Club and the Social Club at 2244 First Avenue -- and one location in a trailer in Edgewater, New Jersey.
The proffers related primarily to conspiracies to murder, and labor, loansharking, and gambling violence.
The government proffered that Fratianno would testify, as he had in a previous trial, that in 1976 he attended a meeting in a back room of a store in which members of Genovese Family including Salerno were present. Those assembled decided to murder John Spencer Ullo, a person engaged in loansharking for the Genovese Family. There was a vote taken and, Fratianno testified that "Gigante said 'I vote to hit,' Tieri said 'Hit,' Salerno said 'Hit,' and it went around the table in a unanimous fashion." The "contract" was not carried out when Ullo got wind of the plan in California and was himself able to kill the hitman. The government proffered that it would corroborate Ullo's role in the Genovese Family, that Ullo feared certain individuals in the family and took steps to protect himself once he learned that the individual in California was out to kill him. T. 13-15. The trial at which Fratianno testified resulted in the conviction of Tieri.
The government proffered that according to another prospective witness, Angelo Lonardo, Salerno and the Genovese Family issued a "contract" in 1980 to kill John Simone who was also known as Johnny Keyes. The "contract" arose out of the murder of Angelo Bruno, the former head of the LCN family in Philadelphia. Salerno contacted one John Tronolone and asked him to pass out the word that there was a "contract" on the life of Johnny Keyes and others. While in Florida, Tronolone told Lonardo that if Keyes shows up then the "contract" should be fulfilled. Lonardo at the time was the head of the Cleveland LCN family that reported to the Genovese Family in New York and Tronolone was its "consigliere" who, in effect reported to two bosses, Salerno and Lonardo. Johnny "Keyes" Simone asked Tronolone for his assistance in settling the matter. However, Tronolone lied to Keyes in saying that he would try to settle his dispute with Salerno. Tronolone told Lonardo that instead he would go to New York to see Salerno to set Keyes up. After speaking to Salerno, Tronolone told Lonardo that he would now tell Keyes to travel to New York and that everything was okay. Keyes went to New York to see Salerno and was killed with three bullets in the head. Later Tronolone explained to Lonardo that he had set Keyes up. T. 16-18.
Lonardo will also testify that two individuals, John Nardi and Danny Green in the Cleveland LCN were killed in 1977. Prior to the murders, Lonardo and Jack Licavoli of the Cleveland Family came to New York to explain the problem to Salerno and Philip Lombardo, alias Benny Squint, who was at that time the "Boss" of the Genovese Family. Licavoli and Lonardo asked Salerno and Lombardo to request Castellano to carry out the "contract" on Green and Nardi if they appeared in New York to meet with him. Both Salerno and Lombardo approved the "contract" and agreed to do so. Before the "contract" could be fulfilled in New York, Nardi and Green were killed elsewhere in car bombing incidents. T. 18-24.
In another murder conspiracy, one Milton Parness requested permission of Salerno to kill Anthony Giordano, a debtor to Parness' extortion operations. Parness is overheard on surveillance in January 1985 telling an associate that Salerno responded to Parness' inquiry "Do we kill him and get it over with?" by replying "If you want to kill him, we will kill him." T. 24-29.
In addition to witness testimony indicating that Salerno is presently the Genovese Family "Boss," the government proffered an intercept of Salerno in 1984 on an occasion when Salerno describes how he would deal with someone who owes money to him. Salerno says that if the person asks him who he is, he will say: "Who am I? I'm the f///--g boss." T. 30.
In an intercept in February, 1984, Vincent Cafaro, his son Thomas Cafaro, and a third individual are overheard discussing an Uzi machine gun in their possession at 2244 First Avenue. Cafaro says he knows about these sorts of weapons because "I got the same thing upstairs." T. 31-32. In February, 1985, a search executed in the 115th Street apartment shared by Salerno and Cafaro yielded a.25 caliber automatic weapon together with an empty clip and seven live rounds of ammunition. Cafaro admitted at the time that the weapon was his. T. 33.
In early 1984, a conversation between Salerno, Christopher Fennari and Vincent Cafaro was intercepted relating to who was to take control of a local carpenters' union. Salerno explains to Cafaro a prior incident with the carpenters: "We sent a couple of kids after the carpenters. This is a good two years ago. They gave them a beating." T. 34.
In another conversation in early 1984, Cafaro is told by another person that his son was involved in a bar fight and later told a woman and a man in the bar, if asked about the fight, to "mind their own business." Afterwards, the person received a phone call from somebody claiming to know "Fish," Cafaro's alias, and wanting to know why his son spoke to his daughter that way. Upset at this unauthorized use of his name, Cafaro tells the man to tell the phone caller: "Just say: 'Fish' said if you ever mention this name again or this guy's name again, he is going to come over here personally and break your f///--g legs." T. 34-36.
Loansharking and Extortion Violence
In January 1984, Cafaro's son Thomas explains to his father that an associate, "Crazy Tom", was asking another person for $2,500 owed to him. When Thomas Cafaro states that Crazy Tom started yelling at the kid, Vincent Cafaro interjected "Why didn't he give him a f///--g beating?" Later in the conversation, Cafaro, referring to the debt, says that to collect the money he should tell him "I will break your f///--g ass. Give me my money. If you ain't got my money in a week, I am going to break your f///--g ass, that's all." He later tells his son that he better tell Crazy Tom that this fellow better not come by the club because he would then have to get Crazy Tom to "break the f///--g kid's head." T. 37-39.
In another conversation in early 1984, Vincent Cafaro speaks to an associate about a debt owed to him by one, Ralph. Cafaro states "I was going to give him a f///--g beating like when Richie was here. If I had him, I'm going to break his mother f///--g legs." Later on in a conversation, Cafaro relates "I had an incident with him; going down there, threaten the f///--g, knock his f///--g brains in. We got to prove it, I threatened to get the money." His associate replies "You had to get $500 a week. It was his job, he gives you the first couple of payments. After that, what happens? He cries." T. 40.
In a conversation in early 1984 between Cafaro and one "Pete," Cafaro states that he told Frankie Salerno to "get a hold of this kid [that owes him money] and bring him to me. He wants to be a wise guy. He told the guy he wants to bet from a thousand to $2500 and he thinks he ain't going to pay? I'll knock his f///--g brains in." Later on, Pete tells Cafaro: "I put up with him Fish. I came and I gave him a beating." Cafaro replies: "Good he deserves it." Pete says: "I gave him a beating. He was all full of blood. His f///--g face was all marked. Every f///--g shot I gave ...