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May 13, 1986

UNITED STATES OF AMERICA, against JOHN GOTTI, et al., Defendants.

The opinion of the court was delivered by: NICKERSON


NICKERSON, District Judge

 The indictment in this case names ten defendants. One died; another pled guilty and then fled before sentence; and a third, never arraigned, is also a fugitive. Five of the remaining seven, namely, John Gotti, John Carneglia, Eugene Gotti, Anthony Rampino, and Nicholas Corrozzo, were released on bail. The government now seeks to revoke the bail of the two Gotti's and Carneglia and to change the conditions of Rampino's release.

 The indictment has two counts. The first charges that defendants, comprising the leadership of a part of the "Gambino Crime Family," and constituting an "enterprise" within the meaning of 18 U.S.C. § 1961(4), conspired, in violation of 18 U.S.C. § 1962(d), to associate together in the enterprise and to conduct the affairs of the enterprise through "a pattern of racketeering activity" consisting of theft, the conduct of illegal gambling business, extortion, robbery, trafficking in contraband cigarettes, and acts and threats involving murder and robbery.

 The second count charges that defendants, in violation of 18 U.S.C. § 1962(c), conducted the affairs of the enterprise through a "pattern of racketeering activity." The count alleges fifteen racketeering acts, in at least two of which each defendant participated.

 By memorandum and order dated January 3, 1986, 625 F. Supp. 1387, this court denied, except to the extent stated, defendants' motions prior to trial. Familiarity with that memorandum and order is assumed. The court then held hearings to determine, among other things, the extent to which alleged co-conspirator statements of defendant Wilfred Johnson and of one William Battista were inadmissible at trial on the ground that both had been informants for the Federal Bureau of Investigation (FBI). By memorandum and order dated March 31, 1986 the court ruled that their activities as informants did not require the court to suppress such of their statements as were otherwise admissible under the Federal Rules of Evidence.

 On April 7, 1986 the court commenced the process of jury selection. By order dated April 28, 1986 the court suspended that process and set August 18, 1986 as the date for recommencement of jury selection. The government then moved to revoke the release of John and Eugene Gotti, Carneglia, and Rampino. The court held hearings on the motion. After the hearings the government withdrew the application to detain Rampino but asked to have his conditions of release changed.

 On the government's recommendation the court had released on bail on March 28, 1985 the two Gotti's and Carneglia, each on a $1,000,000 personal recognizance bond secured by certain property, and Rampino on a $500,000 personal recognizance bond secured by a surety bond.

 Each of the bonds included, as required by 18 U.S.C. § 3142(c)(1), a condition that the defendant "not commit a Federal, State, or local crime during that period of release." Under 18 U.S.C. § 3148(a) a person who has violated a condition of his release is subject, among other things, to its revocation and an order of detention. By the relevant terms of 18 U.S.C. § 3148(b) the court "shall" order revocation and detention if, after a hearing, the court finds there is "probable cause to believe the person has committed a Federal, State or local crime while on release" and finds there are no conditions that will assure that he will not "pose a danger to the safety of any other person or the community" or that he is unlikely to abide by such conditions. The subsection also provides, in pertinent part, that if there is "probable cause" to believe that while on release the person has committed a felony, a "rebuttable presumption" arises that no condition will assure he will not pose such a danger.

 The Senate Report, explaining the purpose of this presumption, states that because the commission of a serious crime by a released person is "plainly indicative" of his inability to abide by the law and of the danger he poses to other persons and the community, the commission of a felony during release "generally" should result in revocation of release. S. Rep. No. 225, 98th Cong., 1st Sess. 37-39, reprinted in 1984 U.S. Code Cong. & Ad. News 3182, 3217-19.

 In addition, 18 U.S.C. § 3142(c) provides that the court "may at any time amend [its] order to impose additional or different conditions of release." At least one court has interpreted this subsection to permit the court to revoke bail and order detention where the acts showing dangerousness occurred after the defendant's first appearance before a judicial officer. United States v. Resek, 602 F. Supp. 1126, 1129-30 (S.D.N.Y. 1985) (Keenan, J.).

 Aside from these statutory provisions, the court has inherent power to impose pretrial detention whenever substantial evidence indicates that a released defendant would improperly influence, intimidate or injure witnesses or jurors. United States v. Melendez-Carrion, Nos. 85-1431, 85-1432, 85-1443, 85-1444, 85-1451, 85-1452, 85- 1453, 86-1010, 86-1011, 86-1012, 86-1031, slip op. at 3057-58 (2d Cir. May 2, 1986); United States v. Payden, 768 F.2d 487, 490 (2d Cir. 1985).


 At the hearing the government presented the testimony of twelve witnesses, offered documentary evidence, and made proffers of other evidence. Defendants offered certain documentary evidence. The court summarizes the testimony of the witnesses as follows:

 1. Remo Franceschini

 Lieutenant Remo Franceschini, the New York City police officer commanding the Queens County District Attorney's squad, testified that he had dealt with two informants who, after John Gotti's release on bail, provided information that he was involved in an illegal gambling enterprise and in loansharking and was the boss of a crew in Queens and especially in Ozone Park. After Paul Castellano, the reputed "boss" of the "Gambino Crime Family," was assassinated on December 16, 1985, the informants provided information that John Gotti was the new boss of the Family and was "making moves to solidify his position" by meeting with other organized crime figures throughout the metropolitan area.

 According to Franceschini he knew one of the informants for ten years and the other for seven, they had provided reliable information resulting in arrests, search warrants, and recovery of stolen property, and their information had been corroborated by independent means such as surveillances.

 2. John Gurnee

 New York City Police Department Detective John Gurnee had for some sixteen years been assigned to gather information on organized crime and for the past eight years particularly on the Gambino Crime Family, using surveillances and informants. He described the hierarchy of the Gambino Crime Family to be the boss, underboss, consigliere, capos, lieutenants, soldiers and associates. He said that as of November 1985 Paul Castellano was the boss, Aniello Dellacroce the underboss, and Joseph N. Gallo the consigliere. Defendant John Gotti was then a capo, the defendant Eugene Gotti was a soldier who answered to John Gotti.

 After Dellacroce died on December 2, 1985 and Castellano was assassinated on December 16, 1985 Gurnee received information that there would be a "get together" of the Gambino Family on Christmas Eve at the Ravenite Social Club, 247 Mulberry Street, New York, where Dellacroce had previously conducted his activities. Gurnee surveilled the club and identified many people who he had information were involved in organized crime, including John Gotti, Eugene Gotti, and Rampino.

 According to Gurnee, John Gotti was treated with a respect greater than that accorded him in the past. Many bypassed others and went directly up to him and kissed him. He was treated in much the way as Dellacroce had been in the past.

 Gurnee also saw John Gotti and one Frank DeCicco walking alone outside the club engaged in conversation, evidently to get out of the hearing of others.

 On April 13, 1986 someone assassinated DeCicco. Gurnee surveilled the area of the wake, and saw some two hundred people including John Gotti, Rampino, Carneglia, and Eugene Gotti. When John Gotti came out of the funeral home from time to time he was accorded even more respect than he had received on December 24, 1985. He was the only one Gurnee saw kissed. On one occasion John Gotti was taken to the side of the building away from the crowd and held a private conversation with Joseph Denti, a capo or a soldier in the Lucchese Crime Family, and Joe Armone, a "made man" in the Gambino Crime Family.

 Gurnee, on the hundreds of times he surveilled John Gotti, occasionally in the morning but mostly in the afternoon and evening, never saw him at Arc Plumbing, his ostensible employer, or at a location where he appeared to be employed or working. Gurnee always saw John Gotti chauffeured when he traveled in the black four-door Mercedes Benz he had been using for four to six weeks. He had several different chauffeurs. Gurnee had also seen John Gotti chauffeured in Cadillacs, Lincolns and other cars.

 3. James M. Kossler

 James M. Kossler, for more than five years the coordinating supervisor of the FBI for the Organized Crime Squads in the New York area, testified that Special Agent Bruce Mouw had advised Kossler that five different informants provided information that John Gotti was continuing to engage in criminal activity. One of the five said that Eugene Gotti and John Carneglia continued to engage in criminal activity.

 The first informant had been such for over thirteen years. His information had resulted in the recovery of more than $1,000,000 worth of stolen property, had been used to obtain numerous search warrants and electronic surveillance orders, and had been corroborated by the results of the searches and electronic surveillances. The informant reported on all five Cosa Nostra families in the New York area, and told the FBI that, following the death of Paul Castellano, John Gotti was named boss of the Gambino Family, Frank DeCicco underboss, and Joseph N. Gallo consigliere.

 The second informant had been a source of the FBI for some two years and was a close associate of the Gambino Family. His information had led to several search warrants and orders for electronic surveillances and had been corroborated by the results. The informant reported on numerous occasions since December 1985 that John Gotti was the boss of the Gambino Family. This source also stated that Eugene Gotti and Carneglia were then engaged in heroin trafficking.

 The third informant, a close associate of the Gambino Family who furnished reports on all five Cosa Nostra families, had provided the FBI with information that had been used over three years to obtain more than ten electronic surveillance orders. His information was corroborated by the results. He too advised that John Gotti had become boss of the Gambino Family.

 The fourth informant, an FBI source for over three years, had provided information that led to search warrants, orders for electronic surveillance, and twelve arrests, and had resulted in the recovery of more than $500,000 in cash and narcotics. The informant learned in conversations with members of the Gambino Family that John Gotti had become boss of that Family.

 The fifth FBI informant had been such for approximately three years. His information had been used to obtain one search warrant and one order for electronic surveillance. He also said John Gotti had become boss of the Gambino Family.

 Special Agent Kossler also testified that the FBI had conducted surveillance on February 25, 1986 at 1628 Bath Avenue, Brooklyn, known as a social club run by Frank DeCicco. According to the surveillance log the agents observed John Gotti and Eugene Gotti there while Frank DeCicco was present. Also present were Joey Watts, a close associate of the Gambino Family, Joey Scopo, the son of Ralph Scopo, a member of the Colombo Family, and Joe Corrao and Robert DeBernardo, members of the Gambino Family.

 The FBI also conducted surveillance and took photographs at Gargiulo's Restaurant, West 15th Street, Coney Island, on January 17, 1986. According to the agents John Gotti arrived at 12:55 P.M. with Frank DeCicco. Also present were Robert DiBernardo, mentioned above, and John Riggi, boss of the DeCavalcante Family in New Jersey, and Vincent Rotundo, its underboss.

 4. Kenneth McCabe

 Kenneth McCabe, formerly in the New York City Police Department assigned for seventeen years to the Kings County District Attorney's Squad, has been since early December 1985 a criminal investigator with the United States Attorney's Office in the Southern District of New York. He has previously been qualified and testified in federal courts concerning the structure and membership of organized crime in New York and the identities and rank of various persons in organized crime.

 On December 3, 1985, the day after the death of Aniello Dellacroce, McCabe conducted surveillance in the vicinity of the Ravenite Social Club on Mulberry Street. He saw John Gotti, Frank DeCicco and Joseph Watts in conversation a few doors from the club. When they saw McCabe they broke off their discussion. Near the social club was a 1985 Lincoln registered to Arc Plumbing and used by John Gotti.

 McCabe testified that as of December 3, 1985 John Gotti and Frank DeCicco were capos in the Gambino Crime Family and Watts was an associate.

 Later than same evening McCabe saw John Gotti at the Andrea Doria Social Club, 140 Mulberry Street, run by Joseph Corrao, a capo in the Gambino Crime Family. Also present were Corrao, Frank DeCicco, Joseph Watts, August Sclafani and Frank Low. The latter two were associates of the Gambino Crime Family.

 On the next day, December 4, 1985, McCabe conducted surveillance at the wake of Aniello Dellacroce. Present were, among others, John Gotti, Carneglia, Rampino, Frank DeCicco, Eugene Gotti, and other members of the Gambino Crime Family.

 After the assassination of Castellano in mid-December 1985 McCabe surveilled 1468 86th Street in Brooklyn, the Veterans and Friends Social Club, a place frequented by members and associates of the Gambino Crime Family, including Castellano while he was alive and Frank DeCicco. Although McCabe had conducted surveillance of this club hundreds of times in the past, he saw John Gotti there for the first and only time on December 22, 1985. Also present were Joseph Messina, acting boss of the Bonanno Crime Family, as well as Joseph Armone, Salvatore Auriello, Frank DeCicco, James Failla, and Angelo Ruggierio, all capos in the Gambino Crime Family. Rampino was also present.

 There appeared to be a meeting in progress at the club. There were separate small meetings outside in the street, sometimes between John Gotti and Frank DeCicco, on occasion joined by Joseph Armone. Messina and Failla were often outside in conversation with various persons. Some people went back and forth between the nearby Thomasso's Restaurant and the club. McCabe concluded that this was to forestall the possibility that the conversations would be overheard through eavesdropping devices or otherwise.

 McCabe conducted surveillance of the Ravenite Social Club on January 23, 1986. He saw John Gotti there at 8:40 P.M. Present also were Frank DeCicco and others identified as associated with the Gambino Crime Family.

 McCabe also conducted surveillance at the wake of DeCicco in mid-April 1986 at the Scarpacci Funeral Home in Brooklyn. In attendance, among others, were John Gotti, Rampino, Carneglia, Eugene Gotti, and Bobby Boriello, sometimes a chauffeur for John Gotti. At the wake John Gotti received considerably more respect than he had when observed previously by McCabe. As he entered and left ...

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