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U.S. v. GOTTI

August 7, 2002

UNITED STATES OF AMERICA,
V.
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 Gambino family.

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. ...


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