The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
The government has appealed a release order issued by Magistrate Judge Jeremiah J. McCarthy on March 31, 2011. The government seeks detention asserting that defendant Rico Venditti poses a danger to the community. Vendetti opposes detention and argues that the conditions of his release are sufficient to ensure the safety of the community.
On May 6, 2011, this Court heard argument on the government's appeal. Following argument, the Court ordered that Vendetti be detained pending issuance of this Decision and Order. For the reasons stated, the motion to revoke Magistrate Judge McCarthy's release order is granted and Vendetti is ordered detained pending trial.
Defendant Vendetti was initially charged by criminal complaint with transportation of stolen goods in interstate commerce in violation of 18 U.S.C. § 2314 and being a member of a racketeering enterprise in violation of 18 U.S.C. § 1962(c) and (d). The complaint alleged that Vendetti was the leader of a ring of shoplifters and burglars who stole merchandise that Vendetti then sold over the internet via various eBay accounts. The complaint charged that the ring grossed between $42,000 and $60,000 per month.
In addition to the shoplifting ring, the complaint alleged that in June 2010, Vendetti solicited co-defendant Arlene Combs to recruit her boyfriend, co-defendant Terry Stewart, and others, and arrange to burglarize "an old man in Medina" named Homer Marciniak. Marciniak had a comic book collection valued at $40,000 to $100,000. Combs did so and on July 5, 2010, Stewart and others broke into Mr. Marciniak's home in the middle of the night to obtain the comic book collection. The intruders found Marciniak at home, tied him up and beat him. They threatened to harm him if he did not reveal the location of the comic books. Ultimately, the comic books were discovered and taken, along with a substantial amount of cash and three pistols. Marciniak later escaped and was treated at a nearby hospital. Within 24 hours of the burglary, he died of a heart attack that the government contends was brought on by the stress of the robbery.
When Vendetti was arraigned, the government the moved for detention asserting that he was a danger to the community. Following a hearing on November 8, 2010, Magistrate Judge McCarthy denied the detention motion and ordered Vendetti released on various conditions articulated in the record, including surrender of his passport, surrender of any firearms, and a prohibition of travel outside the District. That release order was not appealed.
On November 24, 2010, a two-count indictment was filed against defendant Vendetti and three others: Arlene Combs, Terry Stewart and Dayon Shaver. Count 1charged all four defendants with engaging in a conspiracy to transport stolen merchandise in interstate commerce, and Count 2 charged Vendetti, Combs and Stewart with transportation of stolen merchandise in interstate commerce. The indictment did not include allegations relating to racketeering or the Marciniak robbery.
After indictment, the government moved to reopen the detention proceedings based upon new evidence indicating that Vendetti had attempted to engage in witness tampering. (See Dkt. No. 23). Magistrate Judge McCarthy held a hearing on that motion on February 7, 2011. One witness, James Larkins, testified. Larkins stated that in the spring of 2010, Vendetti offered him $5,000 to steal a collection of comic books from a home in Medina "by whatever means necessary" which Larkins interpreted to include burglary. Larkins considered the offer and visited the home but ultimately decided against it. Thereafter, in the fall of 2010, Vendetti contacted Larkins and asked him to provide a false affidavit to his (Vendetti's) attorney stating that Vendetti had asked Larkins to purchase rather than steal the comic books. This occurred shortly before Vendetti was arrested on the criminal complaint. Around the same time, Vendetti also told Larkins that Stewart had given a written statement implicating him (Vendetti) in the Marciniak robbery, and Vendetti asked Larkins to persuade Stewart to change his statement. Larkins did not do so, nor did he ever provide a false affidavit to Vendetti's attorney.
On February 22, 2011, Magistrate Judge McCarthy issued a written decision granting the government's motion to reopen the detention proceedings but denying its request to detain Vendetti. Magistrate Judge McCarthy found Larkins' testimony credible, but found that detention was unnecessary. Despite his belief that Venditti mayhave attempted to obstruct justice in the past, the Magistrate Judge found that there was no serious risk that Venditti would do so again in the future. (See Dkt. No. 48). The government did not appeal that ruling.
On March 30, 2011, a superseding indictment was filed. In addition to the charges in the original indictment, the superseding indictment alleged that Vendetti: had engaged in racketeering and racketeering conspiracy; had committed violent crimes in aid of racketeering (murder and assault); and had engaged in two counts of witness tampering. The racketeering-related counts alleged that Vendetti and others comprised an enterprise whose activities included transporting stolen merchandise in interstate commerce, witness tampering, and engaging in the robbery and murder of Homer Marciniak. Upon arraignment, the government again moved to detain Vendetti. The motion was denied. While noting that circumstances had changed given the new indictment and increased penalties, the Magistrate Judge determined that Vendetti posed no greater danger or flight risk than before the superseding indictment. He noted that Vendetti had been fully compliant with the conditions of his release and ordered those conditions to continue. (See Dkt. 66, at 26-27).
Under 18 U.S.C. § 3142(f)(1)(A), the government may move for pretrial detention of a defendant where the case involves a crime of violence. If a defendant is ordered released by a magistrate judge, the government may, under 18 U.S.C. § 3145(a)(1), move for revocation of the release order before the district court. Upon such motion,the district court must perform a de novo review of the magistrate judge's release order. United States v. Leon, 766 F.2d 77, 80 (2d Cir. 1985) (finding that a district court should "not simply defer to the judgment of the magistrate, but reach its own independent conclusion"). When making its de novo review, the district court may rely on the record of the proceedings before ...