The opinion of the court was delivered by: PETER K. LEISURE
Giuseppe Gambino ("Joseph Gambino") was arrested on December 1, 1988, and released after executing a $ 1,000,000 bail bond, dated December 16, 1988, which was co-signed by certain individuals, including his wife, Maria Gambino, and secured by certain parcels of real property. Joseph Gambino also executed an additional $ 2,000,000 appearance bond on May 17, 1989. Giovanni Gambino ("John Gambino") was arrested on January 4, 1990, and released the following day on a $ 2,000,000 personal recognizance bond, co-signed by his wife, Vittoria Gambino, and his eldest son, Tommy Gambino, and secured by certain real property.
On September 1, 1992, defendant Joseph Gambino failed to appear in court at a scheduled hearing in violation of his bail conditions. The Government also informed the Court at that hearing that John Gambino never appeared for his previously approved appointment with his heart doctor in Houston on August 31, 1992 and, therefore, also had violated his bail conditions. At that time, the Court granted the Government's application, issuing arrest warrants for these two defendants. On September 20, 1992, FBI agents arrested Joseph and John Gambino at a hotel residence in Fort Lauderdale, Florida.
Pursuant to Rule 46(e) of the Federal Rule of Criminal Procedure, the Government has now moved the Court for forfeiture and entry of judgment against Maria Gambino, in her capacity as surety for defendant Joseph Gambino, for the $ 1,000,000 bond posted for Joseph Gambino and secured by certain property located in Staten Island. The Government has also moved for forfeiture and entry of judgment against Vittoria and Tommy Gambino, in their capacities as sureties for defendant John Gambino, for the $ 2,000,000 bond and the properties posted as collateral for John Gambino by these sureties. In response to this motion, the sureties for the defendants argue that certain actions by the Government have relieved them of their obligations under the bonds for Joseph and John Gambino. More specifically, the key issue that must be resolved by the Court is whether the removal of the electronic bracelet monitoring devices from defendants constituted a significant change in the bail conditions and, if so, whether the sureties had notice of such occurrences. For the reasons stated below, the Government's motion for forfeiture and entry judgment as to these sureties is granted.
Following his arrest on December 1, 1988, Joseph Gambino was remanded by the Honorable Kathleen Roberts, United States Magistrate Judge, Southern District of New York. Magistrate Judge Roberts held a detention hearing and, on December 8, 1988, issued her final opinion detaining Joseph Gambino as a danger to the community, pursuant to 18 U.S.C. § 3142(e). Magistrate Judge Roberts made a specific finding that the Government had established that Joseph Gambino, through his high-ranking stature in a multi-faceted narcotics and racketeering criminal organization, had the ability to command the criminal acts of others and, thus, posed a danger to the community.
Subsequently, counsel for Joseph Gambino requested that Magistrate Judge Roberts modify her order to permit him to reside at the now-defunct Manhattan House Community Treatment Center ("Manhattan House"). Over the Government's objection, Magistrate Judge Roberts granted the motion on the basis of Joseph Gambino's need to prepare for trial and consult with his attorneys and, therefore, ordered the release of Joseph Gambino to Manhattan House with electronic bracelet monitoring and authorized the Government to install a pen register on his phone. Magistrate Judge Roberts also allowed Joseph Gambino to have weekly outside visits to his attorneys and directed him to execute a fully-secured $ 1,000,000 bond.
The Government appealed Magistrate Judge Robert's decision to the Honorable Milton Pollack, United States District Judge, Southern District of New York, sitting in Part I. Judge Pollack upheld the order, with the following modifications: (1) with respect to the outside visits to his attorneys, Joseph Gambino's attorneys were required to escort him to and from their offices; (2) phone calls were permitted only with family and attorneys; and (3) only visits from designated family members were permitted. Prior to the issuance of this order setting forth the new bail conditions, Maria Gambino and six other co-signers executed a $ 1,000,000 appearance bond secured by certain parcels of real property.
The bond specifically noted, "This bond is being Co-signed as of 12/16/88, even before the defendant's bail conditions are finalized, as per order of Judge Pollack." The bond simply contained standard terms and did not incorporate any special provisions.
After repeated complaints from defense counsel that the Manhattan House was unduly restricting their ability to prepare for trial with their client, the Government consented to house arrest for Joseph Gambino with electronic bracelet monitoring, a pen register and wiretap authorization, and notice of visits. In February 1989, Joseph Gambino sought additional easing of the house arrest conditions. In recognition of the court's concerns about the lengthy pre-trial delay, the Government agreed to permit Joseph Gambino to work at Fernandez Construction, and later at Ray's Pizza in Manhattan. A second $ 2,000,000 personal recognizance bond was later signed by Joseph Gambino on May 17, 1989 and secured by real property in Cherry Hill, New Jersey.
In September 1989, based on a new charge of witness tampering alleged in a superseding indictment against Joseph Gambino and based on surveillance of his activities, the Government sought to revoke Joseph Gambino's bail. The matter was referred to the Honorable Whitman Knapp, United States District Judge, Southern District of New York. Joseph Gambino was released on bail pending decision on the Government's bail revocation. After receiving affidavits from both sides and hearing argument on the issue, the Court found that willful violations had not been established and, thus, denied the Government's motion for remand. Subsequent to these proceedings, the Court issued orders which specifically listed approved visitors, locations, and activities permitted for Joseph Gambino.
Defendant John Gambino was arrested on January 4, 1990 and charged in a superseding indictment herein with narcotics and racketeering activities. At a detention hearing on January 5, 1990, the Government argued that John Gambino was a major organized crime figure and drug dealer who posed a significant danger to the community. However, in light of the previously unsuccessful efforts to detain Joseph Gambino, the Government consented to the release of John Gambino on strict bail conditions. On that same day, John Gambino was released on a $ 2,000,000 personal recognizance bond co-signed by Vittoria Gambino and Tommy Gambino, and secured by certain real property.
Certain conditions were specifically incorporated into the bond by reference and attached to the bond on a handwritten sheet. The bond was conditioned on house arrest, electronic bracelet monitoring, and the installation of a pen register on the phones in his home and at work. The terms of the release permitted John Gambino to work, visit his attorneys, attend religious services and medical appointments, and visit with pre-approved individuals at his home. In addition, John Gambino was required to submit a weekly schedule of his movements.
Removal of the Electronic Bracelet Monitoring
On July 7, 1992, the Government, in response to complaints by the Pretrial Services Agency ("Pretrial Services"), submitted a letter to the Court requesting permission to cease the electronic bracelet monitoring of both Joseph and John Gambino. In the letter, the Government noted that it had conducted a meeting with Pretrial Services concerning general problems with the electronic monitoring program. More specifically, the Government and Pretrial Services had concluded that the bracelet system was ineffective with respect to these defendants due to the frequent and lengthy "black-out" periods permitted to Joseph and John Gambino under the terms of their release, including visits to attorneys, physicians, employment, etc. The Government stated in the letter that its request was based on the fact that the electronic monitoring was "largely ineffective" and the numerous "on" and "off" transitions required by defendants' frequent approved visits placed an "enormous burden" on Pretrial Services. On July 8, 1992, this Court endorsed the Government's letter allowing removal of the bracelets.
Violation of Conditions of Bail
On August 24, 1992, the Grand Jury returned an eighth superseding indictment in the case. The new indictment added a new murder charge naming both Joseph and John Gambino, while dropping six predicate acts of murder and an obstruction of justice allegation against Joseph Gambino. Moreover, the new indictment also named John Gambino in the "continuing criminal enterprise" charge for the first time. The Court scheduled the arraignment in the new indictment for September 1, 1992. On August 31, 1992, the Government submitted a letter to the Court stating its intention to move to remand Joseph and John Gambino following arraignment on the superseding indictment. The letter noted that the Government had informed defense counsel of this intention during the previous week. In addition, the letter noted that John Gambino was to be in Houston on Monday, August 31, 1992, for an appointment with his heart doctor.
Joseph Gambino failed to appear in court on September 1, 1992. At that time, his attorney, Edward S. Panzer, Esq., informed the Court that he had spoken by telephone with a woman he believed to be Joseph Gambino's wife who told Mr. Panzer that she had last seen Joseph Gambino leaving for work early that morning. The Government also informed the Court that it had contacted John Gambino's heart doctor in Houston and learned that John Gambino had never appeared for his scheduled doctor's appointment. The Court then granted the Government's application and issued arrest warrants for these two defendants.
On September 20, 1992, FBI Agents arrested Joseph and John Gambino at a hotel residence in Fort Lauderdale, Florida. The Government has moved for forfeiture and entry of judgment against surety Maria Gambino with respect to the bail securing the release of defendant Joseph Gambino in the sum of $ 1,000,000