The opinion of the court was delivered by: Block, District Judge.
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.
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).
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.
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. ...