The opinion of the court was delivered by: Garaufis, United States District Judge
Stefan Cicale ("Defendant" or "Cicale") has been detained pending trial since May 11, 2006. On July 16, 2006, Defendant Cicale moved before Magistrate Judge Ramon Reyes for release pending trial upon a bail package of properties owned by Cicale's family, conditioned on a nightly curfew at his parents' home, and pretrial supervision. (Cicale Mem. Supp. Mot., dated July 20, 2006 at 4.) The Government opposed this motion, contending that Cicale is a danger to the community and that he presents a flight risk. (Gov't Mem. Opp. Mot., July 28, 2006 ("Gov't Mem.") at 4-7.) On July 28, 2006, Magistrate Judge Reyes ordered Cicale released on bail. (Transcript of Bail Application ("July 28, 2006 Tr."), dated July 28, 2006 at 25.) Magistrate Judge Reyes' order was appealed to this court. On August 2, 2006, oral argument was heard on this motion, at which I ruled from the bench, reversing Judge Reyes and denying bail. (Transcript of the Hearing ("Tr.") at 45-46.) In this Memorandum and Order, I shall set forth my reasoning in greater detail as to why this court is compelled to deny Cicale's release under the Bail Reform Act of 1984.
Cicale, who is thirty years old, was indicted on May 11, 2006 in a multi-defendant indictment alleging Cicale's involvement in illegal activities with other defendants who are members of the Bonanno organized crime family ("OCF"). Specifically, Cicale is charged as an accessory after the fact to the murder of Robert McKelvey, by dismembering and burning McKelvey's body shortly after McKelvey was strangled, stabbed, then drowned. (Indictment ¶¶ 39-40; Gov't Mem. at 2; Tr. at 3-4.) Cicale also faces two counts of loansharking with a co-defendant, John Tufarelli, who is charged with racketeering activities in furtherance of the Bonanno OCF. (Indictment ¶¶ 57-60; Gov't Mem. at 3; Tr. at 4-5.) In addition, the Government has proffered that Cicale has engaged in the following: (a) uncharged loansharking activity with multiple members of the Bonanno OCF; (b) collecting tribute payments for admitted Bonanno solider Michael Maggio and co-defendant Gino Galestro, an alleged member of the Bonanno OCF; (c) involvement in the shooting at the house of a person who assaulted an associate of the Bonanno OCF; (d) illegal possession of a handgun; (e) burglarizing homes in connection with his business as a home renovation contractor; and (f) selling prescription narcotics. (Gov't Mem. at 3-4.)
On July 28, 2006, a bail hearing was conducted before Magistrate Judge Reyes. After oral argument, Judge Reyes pronounced the decision of release "a very close call," the government having produced some evidence of dangerousness and of risk of flight, but erred "on the side of releasing him with serious stringent conditions." (July 28, 2006 Tr., at 25.)
The Government appealed Judge Reyes' ruling to this court, which heard oral argument on August 2, 2006. After a hearing, I determined that the Government showed by clear and convincing evidence that Cicale is a danger to the community, and that no set of conditions could prevent his danger to the community upon release. At that time I informed the parties that I would issue a written decision to explain my ruling. (Tr. at 45-46.)
The Bail Reform Act of 1984 ("BRA") has been interpreted to provide that "[a] district judge must undertake a de novo review of a magistrate judge's decision to release or detain a defendant." United States v. Gotti, 358 F. Supp. 2d 280, 282 (S.D.N.Y. 2005). Thus, this court "should not simply defer to the judgment of the magistrate, but reach its own independent conclusion." United States v. Leon, 766 F.2d 77, 80 (2d Cir. 1985).
The BRA directs the court to impose the least restrictive bail conditions necessary to protect the safety of the community and reasonably assure the defendant's appearance at trial. 18 U.S.C. § 3142(c)(1)(B). However, where there is no condition or combination of conditions that would assure adequate pretrial supervision, the Act directs the court to order the defendant's detention pending trial. 18 U.S.C. § 3142(e). A finding of risk of flight must be supported by a preponderance of the evidence, United States v. Jackson, 823 F.3d 4, 5 (2d Cir. 1987), while a finding of dangerousness must be supported by clear and convincing evidence. United States v. Ferranti, 66 F.3d 540, 542 (2d Cir. 1995). Cicale is presumed innocent, and it is only a "limited group of offenders" who should be denied bail pending trial. United States v. Gotti, 358 F. Supp. 2d 280, 283 (S.D.N.Y. 2005) (quoting United States v. Shakur, 817 F.2d 189, 195 (2d Cir. 1987)).
The government argues that detention is warranted because it has shown that Cicale is a flight risk and a danger to the community. I find that the Government has not shown by a preponderance of the evidence that Cicale is a flight risk. The Government correctly refers this court to the fact that Cicale faces a substantial prison sentence if he is convicted of the crimes alleged in the indictment, and, as shall be discussed infra, Cicale has no clear means of legitimate employment. However, it is uncontested that Cicale is a U.S. citizen who has lived in the same general area for his entire life, that he has traveled very little outside of New York, and that his entire family lives in the area. (Tr. at 36-37.) His family is also willing to place substantial assets at stake to assure Cicale's presence in court, which factors in favor of release on the question of flight risk, but not for dangerousness. See Ferranti, 66 F.3d at 543-44 (finding that substantial bond that safeguards against flight does not necessarily deter danger to the community). On balance, I find it unlikely that Cicale would flee, despite the substantial sentence that may await him if he were convicted.
B. Dangerousness to the Community
Turning now to whether Cicale presents a danger to the community, I must consider the following factors in deciding whether there are conditions of release that will reasonably assure the safety of the community: (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence; (2) the weight of the evidence against the person; (3) the history and characteristics of the person; and (4) the nature and ...