The opinion of the court was delivered by: OWEN
Mr. Anthony Indelicato, whose term of confinement on a prior conviction comes to an end tomorrow, has moved for the establishment of bail in the above entitled case, U.S. v. Salerno, SSS 85 Cr. 139 (RO). The government opposes bail in this action, which is one and one-half weeks from trial, the trial is estimated to last eight to ten weeks (and perhaps more). The government urges me to deny bail on the ground that the totality of circumstances surrounding Indelicato overwhelming -- let alone by a fair preponderance of the evidence, which is the standard -- pose such a risk of flight that no combination of conditions can sufficiently guarantee defendant's presence throughout the trial.
While I am sympahtetic to Indelicato's wish to improve his situation upon completion of the sentence he presently is serving, I am constrained to conclude that the government has made more than sufficient showing to warrant the denial of bail during the trial of U.S. v. Salerno.
Place before me is undisputed evidence of Indelicato's lack of roots in the community, his substantial ability to secret himself from authorities, his awareness of how to do this through numerous false identifications which he has possessed in the past, his predisposition to ownership of firearms, and his obvious awareness of the workings of the criminal justice system by reason of a prior conviction. Equally important is the fact that Indelicato is charged with being a principal in this case, and with several murders on behalf of what is alleged to be the Commission of Organized Crime in the Greater New York area. These charges carry extremely heavy out limits of sentencing which I am permitted to consider is assessing what a defendant might or might not do when confronted with such sentence limits based on an indictment duly voted by a Grand Jury.
Given these factors, I find the motivation to flight here to be enormous, the ability to accomplish flight well known to Indelicato, and therefore the risk of some flight utterly unacceptable under these circumstances. Accordingly, I find that no combination of conditions will reasonable assure the defendant's appearance throughout the trial. I therefore am constrained to deny bail.
Joseph Bonanno, relying on such cases as In re Cueto, 443 F. Supp. 857 (S.D.N.Y. 1978), moves a second time for confinement under an order of civil contempt, for refusing to answer at a deposition certain questions already determined to have relevance and probative value for use at the forthcoming trial of United States v. Salerno, et al., SSS 85 Cr. 139 (RO).
Mr. Bonanno was confined for contempt on September 5, 1985, when, having been granted immunity, he refused to answer certain questions about subjects as to which he had already written in his autobiography or spoken about on the national television program "60 Minutes," or had been questioned about in a deposition ancillary to a grand jury proceeding. The prior day there had been a day-long evidentiary hearing at which Bonanno's claim that his health would not permit his testifying had been rejected by the Court. Thus, the next day, when Bonanno continued to assert health reasons for refusing to testify, he was adjudicated in contempt.
Thereafter, in March of 1986, Bonanno, contending merely that further confinement had no possibility to coerce the sought testimony, moved before me for release, which was denied in an opinion on April 7, 1986, see 632 F. Supp. 5291 (S.D.N.Y. 1986), familiarity with which is presumed.
Now, for the first time, Bonanno states that it would be contrary to his principles and his conscience to give testimony, and he adamantly asserts that he would never betray his conscience. A number of affidavits of family and clergy assert the affiants' belief in Mr. Bonanno's sincerity of belief and conscience.
However, there is a heavy burden on a contemnor to prove that "no realistic possibility exists that continued confinement might cause [him] to testify." In the Matter of Milton Parrish, 782 F.2d 325, 327-8 (2d Cir. 1986). Given the fact hat Mr. Bonanno authorized a full-length autobiography, appeared in connection to this on national television, and gave deposition testimony before a grand jury, I am unable to credit Bonanno's present assertion of principle now raised for the first time. The trial of U.S. v. Salerno, et al. starts in less than two weeks -- it be a lengthy trial -- and a trial subpoena has been served on Bonanno at the Federal Correctional Institution at Springfield Missouri. As I said once before, I am still of the view that continued confinement -- or this prospect -- may well persuade Bonanno to re-examine whether his refusal to testify still serves his interests. The motion to terminate his civil confinement accordingly is denied.
R. Owen, United States ...