Opinion
No. 02 CR 606 (ILG)
June 10, 2002
MEMORANDUM AND ORDER
On June 4, 2002, defendant Peter Gotti and sixteen other alleged members and associates of the Gambino Organized Crime Family (the "Gambino family") were arrested and arraigned on various charges contained in a 68 count indictment, including labor racketeering charges, racketeering conspiracy charges, extortion, illegal gambling, money laundering, wire-fraud, and witness tampering. According to the government's submission to this Court, dated June 4, 2002, the case stems from an investigation into the Gambino family's corrupt influence over labor unions and businesses operating at piers in Brooklyn and Staten Island (the "waterfront"). The investigation has revealed that the Gambino family corruptly influenced the selection of executive positions within the highest levels of the International Longshoremen's Association, AFL-CIO (the "ILA"), engaged in a bid-rigging/kickback scheme involving various lucrative service contracts for the ILA's national health plan ("MILA"), extorted monies from various businesses, including the owners of a shipping terminal, a trucking company, individual longshoremen and their relatives, an individual in the film industry, and others, operated two large-scale gambling businesses, used extortionate means to collect debts owed by a loan-shark victim, engaged in money laundering and tampered with grand jury witness testimony.
The defendant, Peter Gotti, is charged in the indictment with racketeering, in violation of Title 18, United States Code, Section 1961(1) and 1961(5), with racketeering, conspiracy, in violation of Title 18, United States Code, Section 1956, and with eight substantive counts of money laundering, in violation of Title 18, United States Code, Sections 1956(a)(1)(A)(i), 1956(a)(B)(i), and 2. The government alleges that defendant Peter Gotti, brother of former Gambino family Boss, John Gotti, is now the Acting Boss, if not the actual Boss, of the Gambino family. As such, the government alleges that Peter Gotti is not only aware of, but controls and supervises the various illegal activities of the Gambino family. The government opposes Mr. Gotti's release on bail, seeking detention on the ground that he poses a danger to the community.
The government specifically charges that extortion and illegal gambling were the bases for the proceeds used in the money laundering transactions.
On June 7, 2002, this Court held a detention hearing on the issue of the danger posed by Mr. Gotti's release, as required by the Bail Reform Act, 18 U.S.C. § 3142(f)(1)(A). At the hearing, the government presented the testimony of Special Agent Gregory J. Hagarty of the Federal Bureau of Investigation ("FBI"), who had been previously qualified as an expert witness, and who testified as to the organization, history, and background of organized crime, the structure and activities of the Gambino family, and the role of Peter Gotti within the Gambino family. The government also proffered additional information regarding the evidence supporting the current charges against Mr. Gotti in this case and the strength of the government's evidence generally. The government's proffer and Special Agent Hagarty's testimony were corroborated by numerous instances of surveillance and various photographs of Mr. Gotti seen together with other high level members of the Gambino family, as well as tapes and transcripts of conversations of various members of the Gambino family regarding their criminal activities.
It is clear in the Second Circuit that, in seeking detention, the government may proceed by way of proffer, United States v. Ferranti, 66 F.3d 540, 542 (2d Cir. 1995) (citing United States v. Salerno, 481 U.S. 739, 743 (1987)), and that apart from affording the defendant an opportunity to cross-examine any witnesses who appear at the hearing, to testify in his own behalf, and to offer by way of proffer any information relevant to the issues, the court is not required to hold a full-blown evidentiary hearing prior to issuing an order of detention. United States v. Defede, 7 F. Supp.2d 390, 393 (S.D.N.Y. 1998) (noting that "`Congress did not want detention hearings to resemble mini-trials'") (quoting United States v. Martir, 782 F.2d 1141, 1145 (2d Cir. 1986)).
THE GOVERNMENT'S CASE
The government's proffer and the testimony of Agent Hagarty described in broad strokes the history and background of the Gambino family and its involvement over the years in various criminal activities designed to generate money for its members, including gambling, loansharking, labor racketeering and extortion, and the use and threat of violence to further these criminal activities. According to Agent Hagarty, the FBI has obtained evidence during the course of its investigation demonstrating the Gambino family's role in various extortion schemes, involving, among others, the steel and concrete industry, the garment center industry. construction companies, the waterfront, trade unions, waste disposal companies, nightclubs and adult entertainment businesses, and other local businesses. Agent Hagarty also testified generally about the Gambino family's resort to jury tampering in the case of John Gotti, and the use of violence and murder to prevent the testimony of witnesses who the family viewed as a threat.
According to the agent's testimony, the Gambino family is controlled by a "Boss," who supervises and controls the various criminal activities of the family and who collects a tribute or a portion of the illegal proceeds from his subordinates. There is also an Underboss and a Consigliere, who assist the Boss of the family, under which there are the Captains or Capos, soldiers, made members, and finally, associates of the family. Agent Hagarty testified that John Gotti, brother of the defendant Peter Gotti, was the Boss of the Gambino family until his conviction in 1992 on various RICO charges. John Gotti's son, John A. Gotti (commonly referred to as "John Gotti, Jr."), then became boss of the family until his arrest and conviction in 1999. According to various confidential sources and cooperating witnesses, corroborated by wiretaps and other information, Peter Gotti has long been a made member and Captain of the Gambino crime family, who participated in an oversight committee formed in 1994 to assist John Gotti, Jr. in running the operations of the family. The government asserts that it will present the testimony of four cooperating witnesses, including former members of organized crime, who will testify that since 1999, Peter Gotti has been "Acting Boss" of the family, and most recently, the FBI has obtained information that he may now have declared himself to be "the Boss" of the Gambino family.
The government's evidence also shows that historically, Peter Gotti has been directly involved in criminal activities and has been seen engaging in the type of activity common for leadership figures in the organized crime community. Among other things, Agent Hagarty indicated that the FBI had received confidential source information that in 1995, after John Gotti's arrest, Peter Gotti attempted to use an attorney to contact the jailed boss of the family through unmonitored phone calls. He also allegedly took over loansharking collections for his brother Gene Gotti, following Gene Gotti's incarceration on heroin trafficking charges. In the early 1990s, Peter Gotti was also reportedly involved in various extortion schemes, including one involving the carting industry. He is also alleged to have been the Gambino family representative sent to resolve a number of disputes with the other organized crime families, including a debt collection problem with the Bonano Crime Family and a dispute with the Luchese Crime Family over the shake-down of a bar owner. In 1995, Peter Gotti is alleged to have acted as the representative of the Gambino family in a meeting with the Luchese family regarding the division of the Long Island carting industry, and in January 2001, he reportedly attended a meeting of the Commission — a group composed of leaders from each of the organized crime families. At that Commission meeting, it was agreed that each family could add two additional made members into their respective families each year, in addition to replacing any members who had passed away during the year. Co-defendant Richard G. Gotti became a made member of the Gambino family shortly after that Commission meeting.
The importance of Peter Gotti's role in the family and his status as a highly placed member of the organization is corroborated by numerous photographs of Peter Gotti at various weddings, wakes, and funerals of organized crime family members or associates. According to the testimony of Agent Hagarty, it is a matter of tradition and respect that the bosses attend weddings and funerals of crime family members. Included among the photographs introduced during the hearing and identified by Agent Hagarty were surveillance photographs taken of Peter Gotti at the wake of Frank D'Cicco, Underboss of the Gambino family who was allegedly murdered by the Luchese family, at the wake of Phillip Rastelli, former boss of the Bonano family, at the wake of Mario Traina, captain of the Gambino family, and at the wedding of the son of a Gambino member. In many of these photographs, Peter Gotti is seen accompanied by other made members of the Gambino family, many of whom, according to Agent Hagarty, are either currently incarcerated or have been killed. In addition to these photographs, Agent Hagarty testified that Peter Gotti has been surveilled by the FBI on countless occasions at the Ravenite and the Bergen Hunt Fish Club, which were the headquarters of the Gambino family in the late 1980s and 1990s.
With respect to the specific evidence implicating Peter Gotti in the charges in this case, the government has proffered that it will establish that the Gambino crime family not only used threats of force and violence as part of a scheme to ultimately place a Gambino associate into a high level position on the Executive Council of the ILA, but that the defendants charged in this case also resorted to threats of force, violence, and fear against certain MILA officials to ensure that a lucrative pharmaceuticals service contract would be awarded to a company partly owned by a Gambino associate. The government also intends to prove that the defendants used extortion to control jobs and work rules on the waterfront and extorted thousands of dollars from the owner of the Howland Hook Container Terminal, as well as from other businesses.
The government's evidence, obtained through surveillance and tape-recorded conversations of other members of the family, shows that secret payments of the criminal proceeds received from these extortionate activities were made to Peter Gotti during regular monthly meetings between Gotti and co-defendant Jerome Brancato in co-defendant Frank Scollo's car. Specifically, the government represents that it is prepared to prove that co-defendant Frank Scollo, a high-ranking union official and associate of the Gambino family, would collect monies on a regular basis from various waterfront businesses, and on the following Tuesday, Brancato would drive to a particular corner in Howard Beach where Peter Gotti would wait to be picked up promptly at 10:40 a.m. The two would drive a few blocks, during which time the government asserts that the monies collected through extortion would be passed surreptitiously to Peter Gotti, after which Gotti and Brancato would park the car and go for a "walk-talk" to avoid audio surveillance by the FBI. To corroborate this information obtained from physical surveillance of the subjects, the government presented excerpts from a number of tape-recorded conversations between various alleged co-conspirators, which the government interpret as conversations relating to and confirming these deliveries of monies to Peter Gotti.
Moreover, according to the government's evidence, in April 2001, following the arrest of Jerome Brancato, Primo Cassarino, another conspirator, began to make the deliveries, but the money was no longer delivered directly to Gotti. Rather, Cassarino would deliver the payments to one of the other defendants, Richard V. Gotti or his son, Richard G. Gotti. When Richard G. Gotti was stopped in November 2001, following a delivery and searched by the FBI, he was discovered to be in possession of a large quantity of cash, again confirming the government's charge that money was being delivered to Peter Gotti.
Based on this evidence, the government has charged Peter Gotti in the indictment not only with money laundering, but because of the source of the funds and the means by which they were obtained, he has also been charged with racketeering and racketeering conspiracy charges. The government contends that as the leader of the organization, directing its activities, Peter Gotti is equally responsible for the extortionate activities of his co-defendants and poses a significant risk of danger to the community.
THE BAIL REFORM ACT
Under the Bail Reform Act, a defendant may be ordered detained pending trial in a case involving "a crime of violence," if, after a hearing, the court determines that "the government has established the defendant's dangerousness by clear and convincing evidence," and there is "no condition or combination of conditions [that] will reasonably assure . . . the safety . . . of the community." United States v. Ferranti, 66 F.3d 540, 542 (2d Cir. 1995); 18 U.S.C. § 3142 (e), (f)(1)(A). Among the factors to be considered are the nature of the crimes charged and the circumstances surrounding those charges, the history and characteristics of the defendant, the seriousness of the danger posed by release of the defendant, and the strength of the evidence of defendant's guilt. 18 U.S.C. § 3142 (g).
In this case, the defendant argues that because he has only been charged in the indictment with money laundering, which is not a crime of violence, this provision of the Bail Reform Act is not triggered. and reasonable bail should be set because the defendant, as a lifelong member of the community with strong family ties, does not pose a risk of flight. Defendant further contends that because the government has failed to present any evidence tying him directly to a single act of violence, detention on grounds of danger to the community is not warranted.
A crime of violence is defined in the Bail Reform Act as "(A) an offense that has [as] an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another; (B) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 3156 (a)(4). The Second Circuit has clearly held that "[l]eaders of criminal gangs who direct the commission of violent crimes by others can be detained prior to trial under the circumstances prescribed in the Act." United States v. Colombo, 777 F.2d 96, 98 (2d Cir. 1985). Moreover, the defendant need not be shown to have personally engaged in acts of physical violence before being found to be a danger to the community. Id.: United States v. Defede, 7 F. Supp.2d at 395 (holding that the "threat inherent in [defendant's] continued liberty need not stem directly from the threat of violent acts by him"). As the court inUnited States v. Bellomo noted, "the leader of a criminal enterprise with the ability to order members of that enterprise to engage in criminal actions may be a danger to the community despite the lack of evidence that he directly participated in many, if any, of the charged crimes." 944 F. Supp. 1160, 1166 (S.D.N.Y. 1996) (citing United States v. Orena, 986 F.2d 628, 632 (2d Cir. 1993)). The courts have also made it clear that "the dangerousness of the defendant [is not] determined solely by looking at the acts charged in the indictment. There is no requirement of a nexus between the charged conduct and the basis of a court's conclusion that a defendant is a serious danger to the community. . . . This Court therefore may look beyond the charged conduct to assess the degree of danger that the defendant poses." Id. at 1166; accord United States v. Defede, 7 F. Supp.2d at 395 (holding that the threat to the community "need [not] arise from the charged offenses").
DISCUSSION
Turning first to defendant's argument that he is not charged with a crime of violence and therefore cannot be detained on grounds of dangerousness, 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 Bail Reform Act, in that threats of force and intimidation are used to collect monies and to force others to engage in acts in response to those threats. See United States v. Defede, 7 F. Supp.2d at 396 (noting that "[t]he offense, extortion, is a crime of violence both because it is so defined by statute and because its completion often involves the threat of physical harm"). 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 purposes of the bail hearings that [Gotti] played a leadership role" in the Gambino family. United States v. Colombo, 777 F.2d at 99.
Here, the government has proffered evidence, which has not been controverted, that Peter Gotti is the Acting Boss, if not the Boss, of the Gambino crime family, and as such poses a serious danger to the community. The government's evidence includes; (1) the statements of several cooperating witnesses that Peter Gotti is the Acting Boss of the family; (2) the fact that he has been observed on numerous occasions meeting with various members and associates of the Gambino family in a manner common for leadership figures in organized crime; (3) the circumstantial evidence linking Gotti to the receipt of monies obtained through the collection of extortion payments and the evidence that this was a routine practice of the various co-defendants to collect such monies for delivery to Peter Gotti; (4) his role on the committee advising John Gotti, Jr. in the day-to-day operations of the family; (5) his surreptitious attempts to contact former Boss, John Gotti, following John Gotti's incarceration; and (6) his participation in Commission meetings and as arbiter of disputes with the other crime families. These are all factors which the courts have considered in finding that a defendant is an Acting Boss of a crime family. See, e.g., United States v. Defede, 7 F. Supp.2d at 395. 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 within the Gambino crime family. Moreover, while this Court is not "free to detain a defendant by arbitrarily crediting an unpersuasive government proffer over an unsubstantiated proffer of denial by the defendant" id. at 394, this Court finds that, contrary to the defendant's assertions, the government has a strong case against Peter Gotti.
Apart from attacking generally the credibility of the confidential sources and cooperating witnesses and questioning the inferences to be drawn from the government's evidence, defendant has presented through counsel's arguments only unsubstantiated denials as to the charges, the existence of the family, and Peter Gotti's role in the family. He argues that he is being unfairly branded by his name and his status as a brother of John Gotti. However, there is more than just a familial relationship that has been shown by the government in this case; the evidence clearly and convincingly establishes that by his own actions, Peter Gotti has earned the title of Acting Boss of the Gambino family and because of the authority inherent in that position, he 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. See United States v. Orena, 986 F.2d at 632-36 (rejecting the argument that stringent conditions of release, including house arrest, electronic surveillance, and monitoring by pretrial services, would suffice to protect the public, noting "[t]hese conditions would at best `elaborately replicate a detention facility without the confidence of security such a facility instills'") (quoting United States v. Gotti, 776 F. Supp. 666, 672 (E.D.N.Y. 1991)). "[I]t is well established that persons who hold [Peter Gotti's] status routinely engage in conduct that is a menace to public safety. The argument thus is based not on the status, but on the inference that a person in [Gotti's] position is quite likely to engage in dangerous conduct — just as one reasonably could infer that one holding the position of major league baseball pitcher is entirely likely to hurl a small white object in the direction of home plate." United States v. Defede, 7 F. Supp.2d at 391 n. 4. Since there does not appear to be a dispute that the Acting Boss of an organized crime family has substantial power and the 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.
Accordingly, this Court finds that for purposes of determining bail in this case, the government has established by clear and convincing evidence that Peter Gotti is the Acting Boss of the Gambino family, who controls, among other things, the use of violence and threats of violence by others to engage in extortion, and that there are no conditions or combination of conditions that will adequately and reasonably ensure the safety of the community.
Mr. Gotti argues that the lengthy period of pretrial incarceration in this case violates his right to due process and justifies a decision to release him on bail. Although this Court has designated this as a complex case based on the government's representation that there are numerous wiretaps and other evidence, and it is clear that "[t]he length of a defendant's pretrial detention may, of course, be challenged under the due process clause," United States v. Orena, 986 F.2d at 630, as the court in United States v. Colombo, noted, "[a]t this stage of the proceedings, this determination, both as a statutory and constitutional matter, is premature." 777 F.2d at 100. Thus, while defendant is always free to raise this issue at a later date, this Court declines at this early stage of the proceedings to address the issue of whether a delay in the trial warrants Peter Gotti's release.
CONCLUSION
In summary, based on all of the evidence before this Court and for the reasons set forth in United States v. Defede, 7 F. Supp.2d 390, United States v. Bellomo, 944 F. Supp. 1160, United States v. Colombo, 777 F.2d 96, United States v. Orena, 986 F.2d 628, and on the record, this Court orders the defendant Peter Gotti detained pending trial based on the Court's finding, on clear and convincing evidence, that there are no conditions or combination of conditions that will reasonably assure the safety of the community were he to be released on bail.