The opinion of the court was delivered by: KAPLAN
LEWIS A. KAPLAN, District Judge.
The indictment in this case charges that Joseph Defede is a made member and, since late 1993 or early 1994, the acting boss of the Luchese organized crime family. Defede is charged with conspiring to conduct the affairs of the Luchese family, an alleged RICO enterprise, through a pattern of racketeering activity, with conspiracy to extort money and property from businesses in New York's garment center, and with five substantive extortion counts. Defede now seeks review, pursuant to 18 U.S.C. § 3145, of Magistrate Judge Peck's order that he be detained pending trial on the basis of Judge Peck's determinations that the defendant is charged with a crime of violence and, by clear and convincing evidence, that no condition or combination of conditions will reasonably assure the safety of other persons and of the community. Although Defede characterizes his application as an appeal, the Court treats the application as a motion to revoke or amend the order pursuant to 18 U.S.C. § 3145(b). In considering the application, the Court determines the matter de novo.1
The government's proffer before Judge Peck, which was clarified and expanded somewhat before the undersigned, in broadest outlines is as follows: The Luchese family is an organized crime family engaged in a large variety of illegal activities including, significantly for purposes of this case, long standing extortion from persons and entities doing business in the garment center. The family is headed by a "boss," who supervises its criminal activities and receives a cut of the illegal proceeds of his subordinates. The boss thus oversees and shares in the proceeds of the alleged extortion of garment center firms. During the period relevant to this application, the Luchese boss was Vic Amuso, who for some time has been serving a lengthy sentence in federal custody. In late 1993 or early 1994, Defede, a member of the family, allegedly was made the "acting" or "street" boss and began reporting to and receiving instructions from Amuso in frequent prison visits.
It is undisputed that the defendant is charged with a crime of violence and is subject to pretrial detention on an appropriate showing.
The government conceded before Judge Peck that Defede poses no flight risk. The only disputed question is whether the government established by clear and convincing evidence "that no condition or combination of conditions will reasonably assure the . . . safety of any other person and the community . . . ."
There is ample basis for concluding that no condition or combination of conditions would adequately assure the public safety if Defede in fact is the acting head of the Luchese family, as the government's proffer as to the role of the head of the family and as to the family's activities is uncontroverted. Both the Second Circuit and this Court have detailed the risk that the continued liberty of such a person poses and the adequacy of that risk as a basis for pretrial detention.
The pivotal issue therefore is whether there is sufficient basis for the Court to find that Defede is the acting boss to justify the necessary conclusion as to danger to public safety, an issue rendered all the more important by the government's concession that there is insufficient basis for pretrial detention of Defede unless it has shown by clear and convincing evidence that he is the acting boss of the Luchese family.
The Sufficiency of the Government's Showing
Defede's counsel denies that Defede is the acting boss of the Luchese family, although Defede presented no sworn proof. The government's proffer as to Defede's position as acting boss includes principally these elements:
First, it has indicated that Alphonse D'Arco, a former acting boss of the Luchese family who began cooperating with the government in or about 1991 and who testified for the government in Bellomo among other cases, will testify that he was present when Defede became a made member of the Luchese family upon the sponsorship of Vic Amuso.
D'Arco will testify further that, as acting boss of the Luchese family, he was in charge of all its criminal activities, including extortion of the garment center, the construction industry, the garbage industry, gambling, loansharking and Kennedy airport, and that Defede was engaged in gambling and loansharking during D'Arco's tenure.
Second, a number of as yet unidentified confidential sources, including at least one made member of the Luchese family, are said to have identified Defede as the acting boss or as holding a comparable leadership position during the relevant period.
At least one confidential source is said to have informed the FBI that Defede effectively served as the go-between, reporting to and receiving advice or instructions from Vic Amuso since the latter has been incarcerated.
Bureau of Prisons records confirm that Defede was a frequent visitor to Amuso. Amuso and Defede made efforts to avoid having their conversations during Defede's visits overheard.
Nevertheless, the government on one occasion succeeded in obtaining a poor quality recording which appears to support the view that Amuso and Defede discussed Luchese family criminal business.
Third, there is circumstantial evidence linking Defede to collection of extortion payments from garment center businesses on a specific occasion in July 1996. The government's proffer, undisputed in this respect, established that it was a routine practice for extortion payments to be delivered to defendant Schlacter who in turn handed the money over to a representative of the Luchese boss. On July 25, 1996, a man named Vuolo, who on another occasion was present while Schlacter was seen counting money on his desk,
met with Schlacter in his office. The sound of crinkling paper was heard. Vuolo then remarked, "Skinny, huh!" He then was observed closing a large envelope approximately 11 by 14 inches and said to Schlacter, "A quarter to two, I'll be in the back." Schlacter responded, "Fourth floor." Vuolo replied, "Yeah."
Agents later observed Vuolo enter 1400 Broadway carrying a large yellow envelope similar to the envelope he closed in Schlacter's office.
Shortly thereafter, Schlacter left his office, walked to 1400 Broadway, entered the building, and was observed on the fourth and later the tenth floors.
Twenty seven minutes after Schlacter arrived, Defede entered 1400 Broadway and appeared to walk toward the same tenth floor premises to which Schlacter had gone.
Eight minutes later, Vuolo was observed in the building lobby without the yellow envelope.
A short time later, Defede exited 1400 Broadway with a large thick yellow envelope.
Schlacter left moments later.
On the following morning, Schlacter was overheard speaking to a man named Schwartz. During the conversation, Schlacter protested that someone had said that he had been cheating. Schlacter continued, "I said Joe, I'm here a long time." Schwartz interjected, "You're one of them." Schlacter responded, "If anybody thought I cheated them before I'd be dead."
Fourth, there is considerable evidence that law enforcement officers observed Defede meeting with various members and associates of the Luchese family in a manner common ...