AMENDED MEMORANDUM OPINION
LEWIS A. KAPLAN, District Judge.
Defendant Liborio Bellomo is charged in six counts of a sixty-count indictment that accuses various alleged members and associates of the Genovese organized crime family with participating in a variety of criminal activities. The indictment charges that Bellomo was and is the acting boss of the Genovese family and one of the persons responsible for, among other things, resolving disputes among the five organized crime families in New York City.
Bellomo is charged in both racketeering counts of the indictment and is alleged to have participated in three predicate acts of racketeering -- murder and/or murder conspiracy, extortion and labor racketeering. He is charged in substantive counts with murder and conspiracy to murder in aid of racketeering, as well as extortion. If convicted of the murder charge, Bellomo faces a mandatory term of life imprisonment. The extortion charge carries a maximum term of twenty years imprisonment.
Bellomo initially consented to the entry of a detention order, pursuant to 18 U.S.C. § 3142(e)-(f), by the Magistrate Judge subject to his right later to seek release pending trial. The matter now is before the Court on Bellomo's (a) application for review, pursuant to 18 U.S.C. § 3145(b), of the detention order, and (b) motion to dismiss the indictment, hold unspecified government officers in contempt and for a gag order, all on the basis that a photograph of Bellomo, obtained by the government six years ago pursuant to a grand jury subpoena, appeared in the press.
The government is entitled to detain Bellomo if it establishes "that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community . . ." 18 U.S.C. § 3142(e). The factors to be considered in making such a determination include the nature and circumstances of the offense, the weight of the evidence against the defendant, the history and characteristics of the defendant, and the nature and seriousness of the danger to any person or the community that would be posed by the defendant's release. The burden of proof is a preponderance of the evidence, except that a finding adverse to the defendant on the safety to other persons and community branch of the standard must rest on clear and convincing evidence. Id. § 3142(f); United States v. Martir, 782 F.2d 1141, 1146 (2d Cir. 1986). The Court, moreover, has broad discretion with respect to the manner in which it obtains information bearing on the relevant factors. Martir, 782 F.2d at 1145. It may permit the government to proceed, as it has done here, by proffer rather than presenting live testimony. See United States v. Ferranti, 66 F.3d 540, 542 (2d Cir. 1995); Martir, 782 F.2d at 1145. In considering Bellomo's application, the Court determines the matter de novo. United States v. Leon, 766 F.2d 77, 80 (2d Cir. 1985).
The Court finds by clear and convincing evidence that Bellomo is a serious risk of flight, that his release would pose a substantial danger to the community, and that no condition or combination of conditions would assure his appearance or adequately protect the community in the event of his release.
Nature and Seriousness of Offenses
Bellomo faces mandatory life imprisonment if convicted on the murder charge. He faces a maximum sentence of twenty years on each of the extortion charges.
Bellomo, who is 39 years old, has great incentive to flee prosecution due to the possibility that he will spend the remainder of his life in prison. The fact that Bellomo is accused of murder and extortion is a factor to be considered in determining whether he is a serious danger to the community.
Weight of the Evidence
While defendant's counsel argues that the government's evidence is meager, the Court finds otherwise. According to the government's proffer, which the Court credits for these purposes, a cooperating witness will describe Bellomo's role in directing, approving and/or sanctioning the murder of Ralph DeSimone, who was killed because it was brought to the attention of Bellomo and others that his behavior suggested that he was an informant.
There is strong evidence as well of Bellomo's participation in the alleged extortion of a company known as Enviro Express and in labor racketeering. The government's proffer indicates that a cooperating witness will testify to the extortion and that the government will offer documents showing monthly "consulting" payments to a company said to have been controlled by Bellomo. The Court is advised also that testimony of cooperating witnesses and court-authorized interceptions of oral communications will show that Bellomo was involved in seeking to retain control of Local 46 of the Mason Tenders District Council of Greater New York, control that would enable the Genovese family to receive unlawful labor payments. The Court credits these representations.
Bellomo argues that the government's case on the murder charge is weak. He relies chiefly on reports of two polygraph examiners, who state in substance that they believe that Bellomo was truthful in denying, under polygraph examination, involvement in the DeSimone murder. The Court is unpersuaded.
The polygraph evidence is properly considered on this application, despite its long established inadmissibility in criminal trials,
because the rules of evidence do not apply in detention hearings under the Bail Reform Act. 18 U.S.C. § 3142(f). It is important, however, to be clear as to its relevance.
The issue now before the Court is whether there is a risk that Bellomo will flee the jurisdiction or endanger others before the trial can be held, not whether he is guilty or innocent of the charges in the indictment. The polygraph results therefore are relevant only to the extent they bear on whether Bellomo has an incentive to flee or poses a threat to the community.
Questionable Admissibility Makes Polygraph Evidence a Weak Counter to a Strong Government Case