United States District Court, Eastern District of New York
August 7, 2002
UNITED STATES OF AMERICA,
PETER GOTTI, ET. AL., DEFENDANTS.
The opinion of the court was delivered by: Block, District Judge.
MEMORANDUM & ORDER
Defendant Peter Gotti ("Gotti") moves, pursuant to 18 U.S.C. § 3145
(b), to revoke the June 10, 2002 detention order of Magistrate Judge
Cheryl L. Pollak.*fn1 Familiarity with that decision is presumed. The
indictment charges Gotti with racketeering, racketeering conspiracy,
money laundering conspiracy, and eight substantive counts of money
laundering. The government charges that extortion and illegal gambling
were the bases for the proceeds used in the money laundering
transactions. The government alleges that Peter Gotti is the Acting Boss
of the Gambino family.
I. Legal Standard
The Court's review of the Magistrate's detention order is de novo. See
United States v. Leon, 766 F.2d 77, 80 (2d Cir. 1985); United States v.
Agnello, 101 F. Supp.2d 108, 110 (E.D.N.Y. 2000).
Under the Bail Reform Act ("BRA"), the Court should detain a defendant
if "no condition or combination of conditions will reasonably assure the
appearance of the person as required and the safety of any other person in
the community." 18 U.S.C. § 3142 (e).*fn2 Here, the issue is
dangerousness, not flight. A finding of dangerousness must be supported
by "clear and convincing evidence." United States v. Ferranti, 66 F.3d 540,
542 (2d Cir. 1995).
The factors to be considered in determining dangerousness are: (1) the
nature and circumstances of the crimes charged, (2) the history and
characteristics of the defendants, (3) the seriousness of the danger
posed by the defendant's release; and (4) the evidence of the defendant's
guilt. See 18 U.S.C. § 3142 (g).
Title 18 U.S.C. § 3156 (a)(4) defines the term "crime of violence"
as "(A) an offense that has [as] an element of the offense the use,
attempted use, or threatened use of physical force against the person or
property of another; (B) any other offense that is a felony and that, by
its nature, involves a substantial risk that physical force against the
person or property
of another may be used in the course of committing the offense."
"[E]xtortion . . . [is a] crime of violence within the meaning of the
Bail Reform Act." Agnello, 101 F. Supp.2d at 110.
Danger to the community is not limited to violent crimes; it includes
crimes that would harm the community. See United States v. Millan,
4 F.3d 1038, 1047 (2d Cir. 1993) ("[T]he language referring to the safety
of the community refers to the danger that the defendant might engage in
criminal activity to the detriment of the community.") (quoting S.Rep.
No. 225, 1984 U.S.C.C.A.N. 3182, 3195); see also United States v.
Colombo, 777 F.2d 96, 100 (2d Cir. 1985) ("[W]here there is a strong
possibility that a person will commit additional crimes if released, the
need to protect the community becomes sufficiently compelling that
detention is, on balance, appropriate."); cf. Leon, 766 F.2d at 81 ("[I]t
is clear that the harm to society caused by narcotics trafficking is
encompassed within Congress's definition of `danger.'"). The defendant
need not have acted personally; he can be deemed dangerous if he directed
others to commit crimes. See Ferranti, 66 F.3d at 543 (quoting Colombo,
777 F.2d at 100).
II. Magistrate Judge Pollak's Decision
In a thorough, well-reasoned decision, Magistrate Judge Pollak rejected
Gotti's argument that he cannot be detained on grounds of dangerousness
because "he is not charged with a crime of violence." Order at 9.*fn3
Magistrate Judge Pollak concluded that
it is clear from the indictment that Peter Gotti is
charged with being the Acting Boss of the Gambino
crime family, responsible for controlling the
activities of the racketeering enterprise, and
conspiring with the members of the organization to
engage in the various acts charged in the indictment.
Included among these predicate acts are numerous acts
of extortion, which by its very nature is considered
to be an act of violence under the [BRA]. . . . As
such, while Peter Gotti may not be named in the
specific racketeering counts of extortion, he could
nonetheless be held responsible for the acts of the
members of his organization if the government proves
that he is in fact the Acting Boss of the family. The
fact that there may be virtually no evidence of
Gotti's direct participation in the charged crimes of
violence "is not surprising if one accepts the
determination made for the purposes of the bail
hearings that [Gotti] played a leadership role" in the
Order at 9-10 (quoting Colombo, 777 F.2d at 99) (other citations
omitted). Magistrate Judge Pollak found that "the government's detailed
proffer, coupled with the testimony of Agent Hagarty, the exhibits, and
the transcripts of recorded conversations, firmly establishes Peter
Gotti's position . . . [as] Acting Boss of the Gambino family[.]" Id. at
11. "Because of the authority inherent in that position," Magistrate
Judge Pollak concluded that Gotti "poses a danger for which there can be
no combination of conditions sufficient to prevent him from continuing in
that role even if placed under house arrest." Id. (citing United States
v. Orena, 986 F.2d 628, 632-33 (1993)). The Magistrate Judge reasoned
that "since there does not appear to be a dispute that the Acting Boss of
an organized crime family has substantial
power and authority to supervise the criminal activities of the family,
including acts of violence, the threat of Gotti's continued liberty stems
from his ability to continue to direct, plan, order, and supervise
criminal activity even if he himself may not be personally involved."
Id. at 12.
III. Present Motion
In his present motion, Gotti argues that "there is no case supporting
detention where the defendant is not actually charged in the act of
violence whether it be extortion or some other act of violence." Tr. of
Oral Argument, July 11, 2002, at 23. He contends that
the government [has] resort[ed] to the far flung
theory that, simply because Peter Gotti is charged in
a racketeering conspiracy which includes predicate
acts of extortion by others, Mr. Gotti is also charged
with crimes of violence. . . . This argument is
absurd. While Mr. Gotti is indeed charged in a
racketeering conspiracy, he cannot be held responsible
for the acts of others about which he had no knowledge
and in which he is not charged.
Gotti Letter, July 1, 2002, at 5 (internal citation omitted).
Under Second Circuit precedent concerning pretrial detention of
organized crime leaders, if a defendant is a leader of an organized crime
family the inference should be drawn that the defendant has knowledge of
the acts of his underlings and is accountable for their conduct. As
stated in Ferranti, "it is not necessary that the defendant himself
commit acts of physical violence as a condition precedent to a detention
order." Ferranti, 66 F.3d at 543 (quoting Colombo, 777 F.2d at 98)
(internal quotation marks omitted).
Here, as Magistrate Judge Pollak noted, the government presented
testimony, transcripts, surveillance records and photographs documenting
Gotti's position as Acting Boss. Indeed, Gotti does not seriously dispute
that he is the Acting Boss of the Gambino family. At oral argument the
Court afforded defense counsel an opportunity to proffer evidence as to
who was the Acting Boss, and counsel demurred:
THE COURT: Do you want to tell the Court who the
acting boss is?
MR. SHARGEL: I have no idea.
THE COURT: I'll let you make a record if you want to
produce evidence of that.
MR. SHARGEL: I understand that but . . . the fact is
. . . that under the Bail Reform Act . . . I don't
have to prove who did it. There is no Perry Mason
sub-section to the statute.
THE COURT: I'm not suggesting you do. I am just giving
you the opportunity if you choose to avail yourself of
MR. SHARGEL: I appreciate the opportunity and I'll
pass on to my next argument.
Tr. of Oral Arg., July 11, 2002, at 31 (citation omitted); see also
18 U.S.C. § 3142 (f) ("The [accused] shall be afforded an opportunity
to testify, to present witnesses, to cross-examine witnesses who appear
at the hearing, and to present information by proffer or otherwise.");
United States v. Mercedes, 254 F.3d 433
, 436 (2d Cir. 2001) ("[T]he
government retains the ultimate burden of persuasion by clear and
convincing evidence that the defendant presents a danger to the
In circumstances where the government has demonstrated that a defendant
is a leader of an organized crime family, the Second Circuit has
uniformly held that the defendant is dangerous because inherent in the
leadership position is the supervision of criminal activity that cannot
be curtailed by any condition or combination of conditions of release.
See Orena, 986 F.2d at 631-32 (reversing district court's pretrial
release of Acting Boss of Colombo Family); Colombo, 777 F.2d at
99-100 (reversing district court's pretrial release of Leader of Colombo
"crew"); Ferranti 66 F.3d at 543-44 (reversing pretrial release of
defendant who directed others to carry out crimes); see also United
States v. Bellomo, 944 F. Supp. 1160, 1166 (S.D.N.Y. 1996) (Acting Boss
of Genovese family detained); United States v. Defede, 7 F. Supp.2d 390,
396 (S.D.N.Y. 1998) (Acting Boss of Luchese family detained). The Court
views this spate of Second Circuit authority, which it is obliged to
follow, as being the pragmatic equivalent of a per se rule that where the
government establishes that a defendant is the leader or acting leader of
an organized crime family, the defendant must be detained.
Apparently recognizing that Second Circuit authority is uniformly
against him, Gotti cites to the First Circuit's decision in United States
v. Patriarca, 948 F.2d 789 (1st Cir. 1991), where the court upheld
pretrial release of a former leader of an organized crime family;
however, Gotti fails to note that in Patriarca, the government had
stipulated that the defendant no longer held his leadership position at
the time of the bail determination. See id. at 792.
The motion to revoke Magistrate Judge Pollak's detention order is