Summary
denying bail where defendant allegedly participated in murder of potential adverse witness
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CR 02-0307 (S-2) (NGG)
November 26, 2002
MEMORANDUM AND ORDER
On October 2, 2002, Magistrate Judge Steven M. Gold held a bail hearing for Defendant Paul Cantarella. Judge Gold found that Cantarella posed a danger to the community and issued an order of detention pending trial. Subsequently, the Government moved this Court for a permanent order of detention, while the Defense filed an application to vacate Judge Gold's order. After conducting a second bail hearing on November 22, 2002, this Court issued an order denying Defendant's motion for bail. I now supplement my decision of November 22, 2002 with the following findings of law and fact.
Discussion
The Bail Reform Act of 1984 directs this 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. See 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 empowers the Court to order the Defendant's detention pending trial. See 18 U.S.C. § 3142 (e). In making its bail determination, the Court is required to consider information regarding: (1) the nature and circumstances of the offenses charged; (2) the weight of the evidence; (3) the history and characteristics of the defendant; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the defendant's release. 18 U.S.C. § 3142 (g).
In the instant case, the Government objects to Defendant's pre-trial release on the ground that he poses a danger to society. It is the Government's burden to show by clear and convincing evidence that the Defendant poses such a danger and that this danger cannot be alleviated by any combination of bail conditions. See United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985).
The Government's proof with regard to dangerousness rests on seven allegations. The first four are contained in the indictment and allege the following violent acts: (1) a 1991 arson/arson conspiracy, (2) a 1994 kidnaping/robbery, (3) a 1995 kidnaping/robbery conspiracy and (4) a loansharking conspiracy which lasted from 1997 until September 2002.
The Government asserts that it will offer the testimony of at least four individuals, including one cooperating witness, who will establish that the Defendant was directly involved in an arson at a parking lot located in Manhattan.
The Government asserts it will offer the testimony of accomplice witnesses, law enforcement witnesses and the victim to establish that Defendant, together with others, kidnaped a Staten Island businessman, drove him to his home, forced him to deactivate the alarm system, and robbed him of several valuables. The alleged crime was intended both to rob the victim, who was very wealthy, and force him to seek protection from Richard Cantarella, the Defendant's father.
The Government asserts that it will offer evidence that the Defendant organized a kidnaping/robbery in which members of Defendant's "crew" broke into the home of a jewelry store owner with the intention of taking him to his store in order to loot it. The Government claims that upon entering the home, the perpetrators, acting at Defendant's direction, walked into the victim's bedroom with guns drawn, handcuffed both him and his wife, and searched the house for a safe and other valuables. All this occurred as the couple's teenage daughter lay sleeping in another room.
The Government asserts that it will offer evidence, including consensual recordings of the Defendant, which establishes Defendant's participation in loansharking activities.
In addition to these acts of violence, the Government makes three more allegations in the motion papers it filed on November 20, 2002. First, it alleges that Paul Cantarella assisted in the kidnaping and murder of Robert Perrino in 1992. (Government's Response Memorandum in Support of a Permanent Order of Detention ("Government's Response"), at 4.) Second, the Government alleges that Defendant and his father, Richard Cantarella, engaged in a violent business dispute with attendants at a parking garage in July 2001. (Government's Response, at 5.) Third, the Government claims that an unnamed cooperating witness has provided information showing that the Defendant and Richard Cantarella sought earlier this year to have Bekim Fiseku provide false testimony to exculpate Defendant as to the 1994 kidnaping/robbery. (Government's Response, at 6.)
The Government argues that the evidence I have just reviewed constitutes clear and convincing evidence that the Defendant at the present time poses a danger to the community. In response, the Defense argues that four of the aforementioned allegations involve conduct that occurred some seven to eleven years ago and are irrelevant to the determination of whether the Defendant currently poses a threat to society. (Memorandum of Law in Support of Defendant Paul Cantarella's Motion for Bail Pending Trial ("Def. Mem."), at 9.) Such an argument might bear weight if there were no allegations that Defendant had continued to engage in violent conduct since 1995. However, the indictment does allege additional acts of violence, namely a loansharking conspiracy which lasted from 1997 to September 2002. The Government's motion papers also allege that Defendant participated in a conspiracy to obstruct justice in 2002. Together, these allegations portray Defendant as a career criminal who has engaged in a consistent course of violent conduct since the early 1990's. Thus, to the extent I credit these allegations, they are relevant to my determination of the Defendant's current propensity for violence.
Defendant also objects to the relevance of his alleged participation in a kidnaping/robbery conspiracy in January 1995. (Def. Mem., at 3.) As a basis for this objection, the Defense stated that the Government did not claim that Paul Cantarella personally committed acts of violence in furtherance of the conspiracy, but rather was only involved in its planning. (Id.) Contrary to the Defense's assertions, this distinction militates in favor of pre-trial detention, not against it. The Defendant's alleged planning of the 1995 kidnaping/robbery conspiracy demonstrates that he has already been given an authority to organize acts of violence. Such power is not easily confined by a simple order placing Defendant under house arrest. Thus, I find that each of the Government's allegations, except for the violent business dispute, is relevant to the determination of Mr. Cantarella's dangerousness. Moreover, if credited as true, these allegations constitute a sufficient basis for finding that the Defendant poses a serious danger to the community and, for the reasons set out below, for denying the Defendant's bail application. See United States v. Agnello, 101 F. Supp.2d 108, 112 (E.D.N.Y. 2000) (finding that allegations of witness tampering warranted pretrial detention) (citing United States v. LaFontaine, 210 F.3d 125, 134 (2d Cir. 2000); United States v. Gotti, 794 F.2d 773 (2d Cir. 1986).
The Government's motion papers allege that Defendant and his father, Richard Cantarella, in July 2001 engaged in a violent business dispute with attendants at a parking garage. (Id. at 5-6.) After viewing an extremely brief video recording of that dispute, I find that it has absolutely no bearing whatsoever on Defendant's dangerousness to society. The dispute in question was entirely devoid of violence against any individual, but does show that the Defendant's father has a temper.
My finding that the Government's allegations, if credited, are sufficient to meet its burden of proof is heavily influenced by the allegations that relate to Defendant's interference with potential Government witnesses. The first of these allegations concerns the murder of Robert Perrino. (Government's Response, at 4.) Perrino was a Bonanno family associate who was a potential witness in an investigation initiated by the Manhattan District Attorney into the activities of Richard Cantarella and his associates. (Id.) The Government alleges that the Defendant on at least two occasions, once with the individual originally designated as the shooter, scouted out locations where Perrino could be abducted. (Id. at 5.) This conduct, the Government asserts, demonstrates the Defendant's willingness to engage in criminal activity for the purpose of silencing potential witnesses against his father.
The Government also claims that an unnamed cooperating witness has provided information showing that the Defendant and Richard Cantarella sought earlier this year to have Bekim Fiseku provide false testimony to exculpate Defendant as to the 1994 kidnaping/robbery of a Staten Island businessman. (Id. at 6-8.) Mr. Fiseku has entered a guilty plea for his part in the kidnaping and is now incarcerated in the Brooklyn MDC, the same facility that currently houses Mr. Cantarella. (Id. at 7.) The Defense notes that Mr. Cantarella and Mr. Fiseku are being housed in different sections of the MDC. However, it has not indicated that such living arrangements preclude the possibility of communication with or without the assistance of intermediaries. Rather, the Defense has merely noted that the Defendant denies this allegation.
Finally, I note that contrary to the Defense's assertions, Mr. Cantarella's alleged membership in an organized crime family, while not dispositive, is relevant to the Court's bail determination. See United States v. DiGiacomo, 746 F. Supp. 1176, 1182 (D. Mass. 1990); United States v. Defede, 7 F. Supp.2d 390, 392 n. 5 (S.D.N.Y. 1998); United States v. Tartare, 922 F.2d 880, 885 n. 6 (1st Cir. 1990).
Having determined the relevance of the above allegations, I now turn to evaluating the credibility of the Government's allegations. In this respect, I find that the Government's proffer, which is founded upon testimony by multiple witnesses as well as supporting evidence, is overwhelmingly credible. Indeed, when taken as a whole, the allegations constitute clear and convincing evidence that the Defendant has maintained a steady course of criminal conduct over the last decade.
I note that the Defense's motion papers provided no information as to how Mr. Cantarella, a Staten Island homeowner. has earned a living over the last decade. The failure to include such information in its papers, while unnecessary to my finding of dangerousness, certainly buttresses the credibility of the Government's allegations, and is not entirely offset by the Defense's last-minute representation at the November 22, 2002 bail hearing that Defendant has maintained legitimate employment at his father's parking lot business.
I further find that the allegations undermine any basis I might otherwise have for granting bail. The Defense claims that "strict conditions of home detention and electronic monitoring . . . more than adequately shield the community from any purported danger or threat of danger. (Def. Mem., at 2.) However, the Court of Appeals for the Second Circuit has explicitly held that home detention and electronic monitoring may be insufficient to protect the community against dangerous individuals. See United States v. Millan, 4 F.3d 1038, 1049 (2d Cir. 1993) ("Home detention and electronic monitoring at best elaborately replicate a detention facility without the confidence of security such a facility instills. If the government does not provide staff to monitor compliance extensively, protection of the community would be left largely to the word of [Defendants] that [they] will obey the conditions.") (citations and internal quotations omitted). Consistent with this principle many courts have denied bail to "dangerous" defendants despite the availability of home detention and electronic surveillance and notwithstanding the value of a defendant's proposed bail package. See United States v. Cinquemani, 100 F.3d 941 (2d Cir. 1996); United States v. Marra, 165 F. Supp.2d 478, 486 (W.D.N.Y. 2001); Agnello, 101 F. Supp.2d at 116; United States v. Masotto, 811 F. Supp. 878, 883 (E.D.N.Y. 1993); United States v. Gotti, 776 F. Supp. 666, 673 (E.D.N.Y. 1991).
The principle that controlled those cases is equally applicable to the case at bar. The Government alleges that Cantarella has participated in an arson conspiracy, a violent kidnaping/robbery, a kidnaping/robbery conspiracy, an extensive loansharking campaign, witness tampering, and the murder of a potential witness against his father. Moreover, credible evidence relating to the kidnaping/robbery conspiracy demonstrates that the Defendant has already risen to the level of planning acts of violence on behalf of his family. These allegations lead me to the conclusion that home detention and electronic surveillance would not adequately shield the community from the threat posed by the Defendant. I therefore affirm Magistrate Judge Gold's decision and order that Mr. Cantarella remain in detention pending trial.
SO ORDERED.