Opinion
No. 04 Cr. 690.
March 3, 2005
Michael G. McGovern, Joon H. Kim, Jennifer G. Rodgers, Assistant United States Attorneys, New York, NY, for the Government.
James Kousouros, Esq., Kew Gardens, New York, for Defendants.
Jeffrey Lichtman, Esq., Law Offices of Jeffrey Lichtman, New York, NY.
Marc Allan Fernich, Esq., Law Office of Marc Fernich, New York, NY.
Barry Levin, Esq., Garden City, NY.
Charles F. Carnesi, Esq., Garden City, NY.
MEMORANDUM OPINION ORDER
On July 21, 2004, a grand jury in the Southern District of New York returned an indictment charging the defendant Michael Yannotti ("Yannotti") with participating in a racketeering enterprise as well as a racketeering conspiracy. In connection with the alleged racketeering enterprise, the indictment charges Yannotti with four racketeering acts, consisting of loansharking, two separate attempted murders, and murder. Yannotti is seeking bail, and the government is seeking pretrial detention. On September 22, 2004, the magistrate judge denied Yannotti's initial bail application. Yannotti now appeals that order.
I review de novo the magistrate judge's decision to detain Yannotti. After reviewing the submissions of Yannotti's counsel and the government and hearing oral arguments, I now conclude that the government has demonstrated that no conditions of release will reasonably assure Yannotti's appearance and the safety of the community. Although Yannotti has presented a very substantial bail package, secured by fourteen homes of family members and friends with a total equity value of over 3.6 million dollars, and consents to home detention with electronic monitoring, I nonetheless find that Yannotti poses a risk of flight as well as a danger to the community.
See United States v. Leon, 766 F.2d 77, 80 (2d Cir. 1985).
See 9/3/04 Letter of Joseph R. Corozzo, former counsel to Yannotti ("Corozzo"), to the Court ("9/3/04 Yannotti Let."); 11/4/04 Letter of Corozzo to the Court; 2/2/05 Letter of James Kousouros, Counsel to Yannotti ("Kousouros"), to the Court ("2/2/05 Yannotti Let."); 2/18/05 Letter of Kousouros to the Court.
See 9/21/04 Letter of Assistant United States Attorney Jennifer G. Rodgers ("AUSA Rodgers") to Magistrate Judge Douglas F. Eaton ("9/21/04 Govt. Let."); 11/17/04 Letter of AUSA Rodgers to the Court; 2/11/05 Letter of AUSA Rodgers to the Court.
See Transcript of 12/7/04 Bail Hearing; Transcript of 3/1/05 Continuation of Bail Hearing ("3/1/05 Transcript").
Cf. United States v. Friedman, 837 F.2d 48, 49 (2d Cir. 1988) (holding that under the Bail Reform Act the government must demonstrate risk of flight "by a preponderance of the evidence").
Cf. 18 U.S.C. § 3142(f) ("The facts the judicial officer uses to support a finding . . . that no condition or combination of conditions will reasonably assure the safety of any other person and the community shall be supported by clear and convincing evidence.").
See 2/2/05 Yannotti Let. at 5.
See 9/3/04 Yannotti Let. at 1.
In regard to risk of flight, I base my decision on two factors. First, if convicted, Yannotti faces a potential sentence of life in prison without parole — a strong incentive to flee for a man who is only forty-one years old. Second, the evidence against Yannotti appears to be strong; the government has proffered that the evidence against Yannotti individually will include the testimony of at least five cooperating witnesses. Thus, I find that the government has demonstrated by a preponderance of the evidence that, despite the proposed bail conditions, Yannotti poses a substantial risk of flight.
See 3/1/05 Transcript at 12.
In regard to danger to the community, I note that Yannotti is charged with crimes of violence, including two attempted murders and a double homicide. Moreover, as noted above, the evidence against Yannotti appears to be strong. In addition to the pending charges, Yannotti's past criminal history further suggests that he is a danger to the community. In 1985, he was arrested for assault with intent to cause serious injury with a weapon and criminal possession of a weapon in the fourth degree. In 1987, he was arrested for criminal possession of a weapon in the third degree. In 1990, police found a loaded Uzi rifle and nearly 200 rounds of ammunition in the trunk of a car in which Yannotti was traveling. And in 2000, Yannotti was convicted of criminal possession of a weapon in the third degree, for which he was sentenced to one year in prison. Finally, I find that even under the proposed conditions of bail, there is a significant risk that Yannotti might attempt to intimidate or even silence potential witnesses, either directly or by means of his alleged connections with the Gambino Crime Family. Thus, I conclude that the government has shown by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community.
See 9/21/04 Govt. Let. at 8. In connection with these charges, Yannotti ultimately pled guilty to a misdemeanor for attempted resisting arrest. See id.
See id.
See id. at 7-8.
See id. at 7.
For these reasons, the decision of the magistrate judge is affirmed, and Yannotti is ordered detained pending trial.
SO ORDERED.