a private facility. Kavallines Affidavit, at P 2.
If the company fails to receive a signal from the defendant and is unable to verify that there has been a technical malfunction, the private company contacts a Pretrial Services Officer. The officer then attempts to contact the defendant's home by telephone. If the defendant answers the telephone and circumstances indicate there is an equipment malfunction, then the officer must travel to the house to make repairs or provide new equipment. If the defendant does not respond to the telephone call or there is a busy signal, the officer must report to the home to see if the defendant is there. If it is determined that the defendant is not home, law enforcement agents are contacted so that the search for the individual can begin and an arrest warrant can be sought. Kavallines Affidavit, at PP 2, 3.
According to Pretrial Officer Kavallines, the system "has not proven an effective means of preventing flight" due to several systemic flaws. Kavallines Affidavit, at P 6. First, the system is subject to frequent technical malfunctions and "false alarms" caused by, inter alia, defendants straying to remote areas of the home, battery failure, or a malfunction in the telephone line, including a busy signal. Id. at P 2. Most alerts to the Pretrial Services turn out to be false alarms. Id. at P 3. Thus, both the private monitoring company and Pretrial Services take certain steps when the alarm is triggered, such as calling the defendant's home by telephone, to try to determine if there has been a false alarm. Id. at P 3. These false alarms cause confusion within the monitoring system and delay in the response time.
Second, as noted earlier, the bracelet does not have a radar or scanning device that allows law enforcement to trace the defendant's precise location, but rather simply provides notification that the defendant may have left the house without prior approval and allows law enforcement to travel to the defendant's house to ascertain the situation. However, the various steps taken when an alarm is triggered -- i.e. receiving the alarm, ascertaining if it is a false alarm, notifying Pretrial Services, and then travelling to the defendant's house -- provide the defendant with a significant "headstart" if such defendant has indeed fled. Officer Kavallines stated in his affidavit that "it is fair to say that a defendant outfitted with an electronic bracelet who decides to flee will usually obtain a sufficient headstart to have reached an airport before law enforcement agents can begin the search for that defendant." Kavallines Affidavit, at P 3.
The third, and perhaps most significant flaw, is that many defendants placed on electronic monitoring are also entitled to lengthy "black-out" periods under the terms of their release. During these periods, the bracelet is turned "off" and the defendant is free to travel to work, restaurants, lawyers' offices, doctors, religious ceremonies, etc. Thus, if these "black out" periods are lengthy, the defendant can simply flee during a long "black out" period and further augment the headstart inherent in the bracelet monitoring, as described above.
Kavallines Affidavit, at P 4.
It was primarily this problem with "black out" periods that led the Government to request the removal of the electronic bracelets as to defendants Joseph and John Gambino in the summer of 1992. In a letter to the Court, dated July 7, 1992, the Government informed the Court that the electronic bracelets were ineffective and requested that the Court order their discontinuance. After first recognizing there were many problems with the electronic monitoring program in general, the Government noted that, given the bail conditions of Joseph and John Gambino, the bracelet monitoring was particularly ineffective and burdensome to the Government in the instant case. Under the bail conditions, Joseph and John Gambino were permitted to travel to work, their lawyer's offices, restaurants, doctors, health clubs, religious ceremonies, and even haircut appointments, after providing the Government with an advance schedule of their planned activities.
Thus, the bracelet would be "off" for extended periods of time each day to allow the defendants to engage in these scheduled activities and, as a result, was ineffective in preventing flight. Moreover, the Government also noted in the letter to the Court that the numerous "on" and "off" transitions required by these frequent visits were a burden to the Pretrial Service officers. Based upon these representations, the Court endorsed the letter requesting the discontinuance of the electronic monitoring.
The Court finds that, where the release conditions of Joseph and John Gambino permitted the electronic bracelets to be off for extended periods each day (usually over eight hours), the removal of such bracelets clearly did not significantly increase the risk of flight. The inability of the electronic bracelets to prevent flight in the instant case is perhaps best illustrated by the circumstances which led to flight by these two defendants. According to his counsel, prior to Joseph Gambino's failure to appear at the September 1st hearing, he was last seen leaving for work, which would have been a lengthy "off" period under electronic monitoring. Similarly, at the time John Gambino fled, he was allegedly travelling to visit a physician in Texas and, therefore, his entire multi-day trip would have been an "off" period under electronic monitoring. These facts provide a clear illustration as to why the bracelets were considered ineffective in preventing flight given the bail conditions in the instant case.
Moreover, despite the removal of the bracelet, the Government left all of the other bail conditions in place including receiving advance daily schedules from both Joseph and John Gambino and approving all movement by them outside the home. Thus, any significance as to the removal of the bracelets is further minimized by the existence of the other stringent bail conditions that remained in effect. The Court emphasizes that it is not ruling that, in every case, the removal of the electronic bracelets would not constitute a significant increase in the risk of flight. Instead, the Court holds that under the specific circumstances of the instant case, which include lengthy "black out" periods, as well as stringent reporting requirements aside from the bracelet monitoring, the removal of the electronic bracelets did not significantly increase the risk of flight such that failure to notify the sureties of this modification discharged them of their obligation on the bonds.
In addition to the claim regarding the removal of the electronic bracelet, Maria Gambino, surety for defendant Joseph Gambino, also argues that the Government's failure to notify her of the scheduled arraignment on the superseding indictment, or to notify her of the Government's intention to seek detention of Joseph Gambino at the arraignment, discharged her obligation under the bond. These two contentions raised by Maria Gambino do not concern situations where the terms of the bond were actually violated in any way, but rather simply relate to notification of the surety as to scheduled court appearances by the defendant, as well as the subject matter of that appearance. However, there was no requirement in Joseph Gambino's bond that the Government notify the sureties of such events. Therefore, the Government argues that surety Maria Gambino cannot argue that there has even been a technical violation of the bond agreement. See generally United States v. Egan, 394 F.2d at 266 (where the express conditions of the bond stated that the defendants would have to make court appearances as directed by the court "there is nothing in the bonds which call for notice to the surety if any such order or direction is issued, nor was there any enlargement of the limits of the bail").
The Eleventh Circuit's decision in United States v. Craft, 763 F.2d 402, 404-05 (11th Cir. 1985) provides strong support for the position that, where the bond does not require notice to the surety of defendant's scheduled court appearances, the notice rule of Egan and Robinson is simply not triggered. In Craft, the defendant fled just prior to a hearing which would address the government's motion to modify the terms of bond and to place the defendant in custody. Id. at 403-04. As a result of the flight, the terms of the bond were never modified. Instead, the Government subsequently moved for judgment on the forfeited bond. The surety, citing Egan and Robinson, argued that its bond obligation should be discharged due to the Government's failure to notify it of the hearing where the court would be considering changing the terms of bond and placing the principal defendant in custody. Id. at 404-05. In rejecting this argument and upholding the forfeiture, the Eleventh Circuit noted that the general rule is that where the bond is silent "the surety generally is not entitled to special, separate notice of the principal's required appearances." Id. at 404. After reviewing the Egan and Robinson decisions, the Eleventh Circuit held that the general rule not requiring notification of such appearances is still applicable even where the hearing involves a motion to change the terms of the bond and that the limited exception to the general rule established in Egan and Robinson did not dictate a contrary result under those circumstances.
The Court finds the reasoning in Craft to be persuasive in the instant case. However, even assuming that the Eleventh Circuit's analysis is incorrect and the Robinson and Egan rule applies to the scheduling of the arraignment in the instant case, this Court finds that the new indictment against Joseph Gambino did not significantly increase the risk of flight such that notice was required. The eighth superseding indictment simply dropped six murders against Joseph Gambino and added one new murder. Under both the seventh and eighth superseding indictments, Joseph Gambino faced mandatory life imprisonment. Thus, the Court finds that the superseding indictment did not significantly increase defendant Joseph Gambino's risk of flight. See United States v. Casey, 671 F.2d at 977 (holding that a superseding indictment did not significantly increase the risk of flight where the indictment simply added new drug charges "to a multicount indictment which already included more serious narcotics violations"). Under such circumstances, notice to Maria Gambino of the arraignment on the superseding indictment is not required.
III. Notice Requirement
Finally, even assuming that the removal of the electronic bracelets was a significant increase in the risk of flight that required notice to the sureties, the Court finds that notice to the sureties can be inferred from the facts in this case. As the Court noted in Robinson, the Government has a duty "to notify the surety when its risk has been significantly increased and the surety is not likely to be aware of this fact." 453 F. Supp. at 3 (emphasis added). Courts do not require the Government to show that the sureties' had direct knowledge of the modification; rather, notice to the sureties can be reasonably inferred by the Court. See United States v. Egan, 394 F.2d at 267 (affirming the district court's finding that surety had notice by "drawing the fairly obvious inference" from the circumstances); United States v. Robinson, 453 F. Supp. at 4 (knowledge was reasonably inferred from the circumstances that the surety had notice of the increased bond).
The Court finds that the surety's knowledge of the removal of the bracelet can reasonably inferred in the instant case. First, the sureties in the instant case are immediate members of the defendants' family -- the wife, Vittoria, and the eldest son, Tommy, of defendant John Gambino, as well as the wife, Maria, of defendant Joseph Gambino. Second, the electronic bracelet had been strapped to the respective defendants' ankle and the absence of such bracelets would be readily apparent to immediate family members.
Moreover, as the Government has noted, John Gambino was not subjected to electronic bracelet monitoring for almost eight months prior to his flight. See Kavallines Affidavit, at P 7. Similarly, with respect to Joseph Gambino, a two-month period elapsed between the removal of the electronic bracelets and Joseph Gambino's flight. Given the lengthy period of time that elapsed between removal of the bracelets and the flight of both defendants, the Court can reasonably infer that the sureties, as immediate family members of the defendants, "were likely to be aware" that the respective defendants were no longer wearing an electronic bracelet strapped to their ankle.
This is a fairly obvious inference and there is no requirement that the Government provide direct evidence of actual knowledge by the sureties.
The same reasonable inference of notice can be drawn with respect to the Government's intention to arraign Joseph Gambino on a superseding indictment and to move to remand him at the September 1st hearing. Since Joseph Gambino knew of these developments prior to flight, it can be inferred that Maria Gambino, as Joseph Gambino's spouse, was "likely to be aware" of the hearing and its subject matter. As the Second Circuit has noted, "'judges are not required to exhibit a naivete from which ordinary citizens are free.'" United States v. Cicale, 691 F.2d 95, 105 (2d Cir. 1982) (quoting United States v. Stanchich, 550 F.2d 1294, 1300 (2d Cir. 1977)), cert. denied, 460 U.S. 1082 (1983).
For the reasons stated above, the Government's motion for forfeiture and entry of judgment against sureties Vittoria Gambino and Tommy Gambino in the sum of $ 2,000,000, and against Maria Gambino in the sum of $ 1,000,000, hereby is granted. The stay of entry of judgment against Maria Gambino hereby is lifted.
Dated: December 8, 1992
New York, New York
Peter K. Leisure