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United States District Court, S.D. New York

January 3, 2005.

JOHN A. GOTTI, et al., Defendants.

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


On July 21, 2004, a grand jury in the Southern District of New York indicted John A. Gotti, Jr. ("Gotti") on a number of charges, including racketeering, three murder conspiracies and attempted murders, extortion, loansharking, and securities fraud.*fn1 The government alleges that Gotti committed these acts while occupying a leadership position in a criminal organization known as the Gambino Organized Crime Family of La Casa Nostra ("Gambino Crime Family"). At the time the indictment was returned, Gotti was completing a sentence on a previous conviction for racketeering activities.*fn2 But for these new charges, he would have been released from custody on September 7, 2004.*fn3 Gotti is seeking bail with respect to the instant charges and the government is seeking pretrial detention. I referred the bail application to the magistrate judge, who denied bail. Gotti now appeals that order.


  On October 5, 2004, following a detention hearing, Magistrate Judge Frank Maas ordered Gotti detained pending trial. Judge Maas did not find that Gotti presented a risk of flight, but did find that Gotti has been charged with a crime of violence and posed a danger to the community.*fn4 Specifically, Judge Maas found that "somebody who [is] a member . . . of the Gambino crime family presents a threat to community safety, even . . . if that person [is] not out there wielding a weapon himself."*fn5 Based on that finding he posed the following question: "[H]as Mr. Gotti renounced any continuing role in that crime family such that he presents no continuing threat to the community's safety . . .?"*fn6 He then answered that question as follows: "I don't think I'm able to say that Mr. Gotti has renounced such a role, even a diminished role, and it seems to me therefore the Government has sustained its burden of showing that Mr. Gotti is a player in the Gambino crime family."*fn7 Finally, the court addressed what it considered the "bottom line": "[I]f Mr. Gotti has not renounced his role, is the bail package sufficient to ensure community safety?"*fn8 The court then held that the bail package does not "do enough to ensure community safety" given that the court credited the charge that the defendant "inflicted a beating and perhaps worse on somebody simply because they [sic] besmirched his father's name."*fn9 In appealing that order Gotti argues that the Magistrate Judge applied the wrong legal standard and that there are conditions that can assure the safety of the community.


  The United States Constitution requires that "[e]xcessive bail shall not be required."*fn10 The Bail Reform Act ("BRA")*fn11 provides that if the court determines that release on an appearance bond is not sufficient, the court shall order pretrial release "subject to the least restrictive further condition, or combination of conditions, that [the court] determines will reasonably assure the appearance of the person as required and the safety of any other person and the community. . . ."*fn12 The BRA further provides, however, that a court may order a defendant detained pending trial if he has been charged with a crime of violence and if the court finds, by clear and convincing evidence, that "no condition or combination of conditions will reasonably assure . . . the safety of any other person and the community."*fn13 A district judge must undertake a de novo review of a magistrate judge's decision to release or detain a defendant.*fn14 In deciding whether there are conditions of release that will reasonably assure the appearance of the person and the safety of the community, the court should consider the following factors:

(1) The nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including —
(A) the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release. . . .*fn15
Although in certain cases a rebuttable presumption arises that "no condition or combination of conditions will reasonably assure the safety of any other person and the community,"*fn16 this is not such a case.*fn17 Accordingly, there is no presumption in favor of detention. The final section of the BRA states: "Nothing in this section shall be construed as modifying or limiting the presumption of innocence."*fn18

  When considering an application for pretrial detention, the court must first determine whether the government has established "by a preponderance of the evidence . . . that the defendant . . . presents a risk of flight."*fn19 Here, the government has not argued that the defendant poses a risk of flight, given the bail conditions that he has proposed. Because it is undisputed that Gotti is charged with committing a crime of violence,*fn20 the only remaining question is whether this Court finds that the government has demonstrated, by "clear and convincing evidence," that "no condition or combination of conditions will reasonably assure the safety of any other person and the community."*fn21 Finally, a court should always "bear in mind that it is only a `limited group of offenders' who should be denied bail pending trial."*fn22


  As noted earlier, the defense begins its appeal by arguing that the Magistrate Judge applied the wrong legal standard. While this may be so, it is irrelevant to this Court's determination. The question before this Court is not whether Gotti must prove that he has renounced his membership in the Gambino Crime Family, or whether the government must prove that he is still in a leadership position within that organization. Moreover, both parties agree that there is not and cannot be a per se rule that requires detention whenever a defendant is accused of being a member of, or even a leader in, an organized crime family.*fn23 Rather, the question now before this Court is whether the government has shown, by clear and convincing evidence, that Gotti is a danger to the community such that there is no condition or combination of conditions that will reasonably assure the safety of any other person and the community if he is released on bail.*fn24 To answer this question I turn to the factors set forth in the BRA.

  A. The Nature and Circumstances of the Offenses Charged

  As noted earlier, Gotti is charged with crimes of violence including racketeering, racketeering conspiracy, mail, wire and securities fraud and extortion.*fn25 The predicate racketeering acts, some of which are also charged as substantive offenses, include, inter alia, attempted murders and murder conspiracies. One of those attempted murders was ordered for the sole purpose of silencing a vocal critic of the racketeering enterprise. The indictment further charges that Gotti has held a leadership position in the Gambino Crime Family for more than fifteen years.*fn26

  B. The Weight of the Evidence

  The evidence supporting these charges is strong in that no fewer than ten cooperators will testify to either the specific acts charged or Gotti's leadership role in the crime organization, or both.*fn27 The cooperator testimony will be corroborated, in part, by video surveillance showing Gotti's affiliation with known members of the Gambino Crime Family, audiotapes of his conversations with members and associates of the Gambino Crime Family, physical evidence of documents revealing his intimate association with members of the organization and weapons seized from a storage facility used by Gotti,*fn28 including one gun which he admitted owning, and his guilty plea to a previous indictment charging him with a leadership role in the Gambino Crime Family.*fn29 If convicted of these crimes, Gotti could face twenty-five to thirty years in custody.*fn30

  C. The History and Characteristics of the Defendant

  As set forth earlier, the BRA spells out a number of defendant characteristics, only some of which are relevant here. Those of special relevance are defendant's criminal history and past conduct. I have already noted that defendant has a prior racketeering conviction, obtained via defendant's guilty plea, wherein he admitted a leadership role in a racketeering enterprise, which the indictment charged as the Gambino Crime Family. Of greater interest, however, is the phrase "past conduct." In his earlier case, Gotti was originally ordered detained based on danger to the community by Magistrate Judge Mark Fox, and by then-District Judge Barrington Parker.*fn31 Nevertheless, he was eventually released on bail by Judge Parker, who concluded that the length of pretrial detention, which he expected to be seventeen months, would violate Gotti's right to due process.*fn32 Gotti was released on very stringent conditions, not unlike those his lawyers propose now. The defense argues, here, that because the government cannot show that Gotti engaged in any violence during his release on bail, he is no more of a threat to the community now than he was when he was released. Indeed, the defense believes that this argument is dispositive. While I do not agree that it is dispositive, it certainly makes this bail application a closer call than it might otherwise be. One court trusted Gotti not to endanger the community during pretrial release, and there is no proof that he violated that trust. It is therefore imperative that this Court assess whether the circumstances now demand pretrial detention despite his previous release on bail without incident.

  On the one hand, Gotti's ability to engage in dangerous conduct is diminished since his previous pretrial release in 1998. Gotti has been incarcerated since October, 1999 — in other words, for more than five years. There is no proof that he has run the Gambino Crime Family from his jail cell or ordered any subordinate to engage in any violence. Indeed, the government surreptitiously tape recorded many of his prison visits during those years, both with counsel and with other visitors.*fn33 Those tapes reveal a man with very ambivalent feelings about his past life. While the government argues that he might have been aware, to some extent, that he was the subject of eavesdropping,*fn34 I do not credit this argument. A review of the transcripts of these intercepts reveals that Gotti has expressed a real distaste for his past life and associations and a desire to move away from that past and toward a new future outside of organized crime.*fn35

  On the other hand, the government argues that events since his pretrial release on bail establish that he remains a danger to the community. The government bases this conclusion on: (1) the charges in the pending indictment, of which Judge Parker was unaware at the time Gotti was released; (2) Gotti's alleged breach of the terms of his release on the basis of information provided by DiLeonardo, that Gotti sent him messages regarding extortion victims through John Ruggiero, an organized crime associate, and through co-defendants or their counsel with whom Gotti met at co-defendant meetings; (3) a conversation with John Ruggiero while Gotti was serving his sentence, in which he instructed Ruggiero to encourage a witness to change his testimony before a grand jury; and (4) an alleged attempt to intimidate DiLeonardo by meeting with DiLeonardo's then sixteen-year-old son.

  I have reviewed each of these allegations with care. I am not persuaded that Gotti's meeting with DiLeonardo's son was in any way an effort to intimidate a government witness. Nor am I convinced that Gotti's conversation with Ruggiero was an attempt to obstruct justice by influencing the grand jury testimony of a witness. Finally, there is no credible proof that Gotti violated his bail conditions by sending messages, or if messages were indeed sent, the government does not proffer that these messages resulted in harm or threatened harm to anyone.*fn36

  Nonetheless, the government's first point is crucial. The information regarding this defendant's danger to the community is far stronger than the information presented to Judge Parker years ago.*fn37 By the defendant's own admission he was, at one time, a leader of a racketeering enterprise.*fn38 It is that same enterprise that is now charged with violent acts, many of which occurred at the time that he was its leader. His taped conversations while in custody also contain admissions of his former role.*fn39 Even a former leader would have the ability and the contacts to engage in violence if he thought it was in his self interest. In addition, the evidence against him is now ten times greater than it was at the time Judge Parker made his bail decision*fn40 — if only because there are ten cooperators prepared to testify against Gotti.*fn41 According to Gotti himself, DiLeonardo was a close associate and even a friend.*fn42 Such a man is surely in a position to testify as to what the defendant did and what he said at the time of the events alleged in this indictment. The fact that this man and nine others are now prepared to testify against Gotti in regard to at least three attempted murders, none of which were before Judge Parker, is in itself clear and convincing evidence that this defendant is a danger to the community.*fn43

  D. The Nature and Seriousness of the Danger Posed by Gotti's Release

  The final factor, the nature and seriousness of the danger to any person that would be posed by Gotti's release is, by definition, speculative. This factor essentially directs the court to predict, based on an assessment of the charges against the defendant, and the defendant's history and characteristics, whether he would pose a harm to the community at large or to any specific individuals. This is clearly a subjective determination. Based on all of the evidence in this record, I conclude that if Gotti were released, even on stringent conditions, there is a real risk that he might attempt to persuade potential witnesses, either through threats or promises, not to testify against him or to testify in a benign manner. I base this conclusion on credible proof that both this defendant and the organization in which he allegedly had a leadership role have engaged in such conduct in the past.

  The government has offered proof that Gotti ordered the attempted murder of Curtis Sliwa merely because he criticized the Gotti family.*fn44 If he would take such steps to silence a critic, it must be presumed that he would take the same steps to silence a witness. The government has also proffered evidence that Gotti discussed the need to kill members of Salvatore Gravano's crew because they "could not be trusted,"*fn45 and discussed the need to kill Joseph Watts, whom he suspected of being a cooperator.*fn46 In addition, in 1998, "source information" told the government that Gotti had been overheard in his jail cell "`discussing his desire to kill one of his co-defendants.'"*fn47 Finally, members of the Gambino Crime Family have previously engaged in efforts to intimidate witnesses.*fn48 Given the allegation of Gotti's long time leadership role in the Gambino Crime Family, it is surely relevant that members of that family have not hesitated to engage in witness tampering when they deemed it necessary.


  Based on the totality of the circumstances, I find that there is clear and convincing evidence that Gotti poses a danger to those who would testify against him or to those who thwart his will. While he may no longer be a leader of an organized crime family, or the head of any crew, he may well maintain sufficient connections to convince others who were once loyal to him to act at his behest. This is too great a risk to incur. For these reasons, the decision of the magistrate judge is affirmed, and Gotti is ordered detained pending trial.


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