 |
U.S. Department of Justice United States Attorney Eastern District of New York |
|
| TJS:TM:KJ | One Pierrepont Plaza | |
| F.#2004R02423 | Brooklyn, New York 11201 | |
| Mailing Address: | 147 Pierrepont Street | |
| Brooklyn, New York 11201 | ||
| April 5, 2005 | ||
| UNDER SEAL | ||
The Honorable Robert M. Levy
United States Magistrate Judge
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201
Re: United States v. Dominick Cirillo,
et al.
Criminal Docket No. 05 212 (SLT)
Dear Judge Levy:
The government moves for pre-trial detention of all
four defendants charged in this case, each of whom is a high-
ranking member of the Genovese Organized Crime Family of La Cosa
Nostra (the “Genovese family”).1 Dominick Cirillo is currently
the acting boss of the Genovese family, while Lawrence Dentico
and John Barbato are captains who sit on the ruling committee of
the Genovese family, known as the “Westside crew.” Anthony
Antico is a long-time member and powerful captain in the Genovese
family.
The defendants will be arraigned before the Court
today
on an indictment charging each with racketeering and racketeering
conspiracy based on six predicate acts of extortion, extortion
conspiracy, loansharking conspiracy, murder conspiracy and
witness tampering. Additionally, Antico is charged with a
substantive count of witness tampering. The racketeering and
racketeering conspiracy charges each carry maximum terms of
imprisonment of 20 years. The witness tampering charge carries a
10 year maximum term of imprisonment.
1. We file this application under seal pending unsealing of the
indictment. Once the defendants are arrested, we will make an
application to unseal the indictment and this letter, and will
serve this memorandum upon counsel for the defendants.
As set forth more fully below, each defendant poses
a
significant danger to the community as well as a risk of flight
that can only be addressed through pre-trial detention because
“no condition or combination of conditions will reasonably assure
the appearance of the person as required and the safety of any
other person and the community.”
See 18 U.S.C. § 3142(e).
I.
The Defendants are Powerful Organized Crime Leaders
Charged with Crimes of Violence
This indictment is the culmination of a multi-year
investigation into the defendants and New York organized crime,
involving the development of an unprecedented number of
cooperating witnesses, many of whom were formerly made members of
the mafia, hundreds of hours of consensual recordings made by a
cooperating witness and law enforcement surveillances dating back
to at least the 1980s. The government proffers the following
facts about the defendants in support of its motion for pre-trial
detention.2
A. The Defendants
Each defendant has been a made member of the
Genovese
family for decades. Further, each defendant has attained the
position of captain within the family. In a hierarchical
organization such as the Genovese family, each defendant presides
over soldiers and associates and can order them to engage in a
panoply of crimes. In addition, since approximately the early
1990s, Cirillo, Dentico and Barbato have each effectively held
administration-level positions as members of the elite “Westside
crew.”
The Westside crew is comprised of captains who
report
directly to Vincent “Chin” Gigante, the jailed official boss of
the Genovese family. Members of the Westside crew serve as
intermediaries between Gigante and the rest of the Genovese
family and represent the Genovese family administration at
meetings with other families in La Cosa Nostra. Additionally,
since the early 1990s, Cirillo and Dentico have each
_________________
2 See United States v. LaFontaine, 210 F.3d 125, 130-31 (2d
Cir. 2000) (government entitled to proceed by proffer in
detention hearings);
United States v. Ferranti, 66 F.3d 540, 542
(2d Cir. 1995) (same).
2
intermittently held the position of acting boss or
street boss of
the Genovese family. Currently, Cirillo holds that position.3
The membership and respective positions of each of
the
defendants within the Genovese family will be overwhelmingly
established at trial by a number of cooperating witnesses.
Multiple formerly high-ranking members of the Bonnano Organized
Crime Family of La Cosa Nostra (the “Bonnano family”), a former
captain in the Gambino Organized Crime Family of La Cosa Nostra
(the “Gambino family”), several former members, including a
captain, from the DeCalvacante Organized Crime Family of La Cosa
Nostra (the “DeCalvacante family”), a former Genovese soldier,
and Genovese associates are all expected to testify at trial.
These once powerful members of the mafia will present
unassailable evidence, including first-hand accounts of personal,
formal organized crime introductions to each defendant charged.
Further, the testimony of these cooperating
witnesses
will be corroborated by hours of recorded conversations where
members of the Genovese family discuss the defendants and the
Westside crew. This powerful evidence will be corroborated in
turn by many law enforcement surveillances establishing the
association of each defendant with organized crime and with each
other.
In sum, the evidence in this case establishing the
defendants’ membership and respective ranks within the Genovese
family is beyond question.
B.
The Charges
In addition to holding a powerful position in
organized
crime, each defendant is charged with crimes of violence. All
four defendants are charged with racketeering and racketeering
conspiracy (counts one and two) and each defendant is charged in
violent predicate acts, as follows: Cirillo is charged with
__________________
3
Historically, the Genovese family has gone to
extreme
measures to insulate the leadership of the family from law
enforcement interdiction. In that vein, since the famed
“windows” prosecution in the early 1990s, the Genovese family has
shifted powerful family members in and out of acting
administration-level positions with some regularity in order to
engender confusion. One constant, however, is the role of the
Westside crew in coordinating criminal matters between Gigante
and the Genovese family as well as other families in La Cosa
Nostra.
3
extortion and extortion conspiracy (racketeering
acts one, three
and five) and loansharking conspiracy (racketeering act three);
Dentico is charged with extortion and extortion conspiracy
(racketeering acts one, two and five) and murder conspiracy
(racketeering act four); Barbato is charged with extortion and
extortion conspiracy (racketeering act one) and murder conspiracy
(racketeering act four); and, Antico is charged with extortion
and extortion conspiracy (racketeering act five) and witness
tampering (racketeering act six and count three).
II.
Legal Standard
A. The Bail Reform Act
Under the Bail Reform Act, 18 U.S.C. §§ 3141 et
seq
.,federal courts must order a defendant’s pre-trial detention upon
determining that “no condition or combination of conditions would
reasonably assure the appearance of the person as required and
the safety of any other person and the community[.]” 18 U.S.C. §
3142(e). A finding of dangerousness must be supported by clear
and convincing evidence. See United States v. Rodriguez, 950
F.2d 85, 88 (2d Cir. 1991); United States v. Chimurenga, 760 F.2d
400, 405 (2d Cir. 1985). A finding of risk of flight must be
supported by a preponderance of the evidence. See Chimurenga,
760 F.2d at 405.
The Bail Reform Act lists the following four
factors as
relevant to the determination of whether detention is
appropriate: (1) the nature and circumstances of the crimes
charged, (2) the history and characteristics of the defendant,
(3) the seriousness of the danger posed by the
defendant’s
release, and (4) the evidence of the defendant’s guilt. See 18
U.S.C. § 3142(g).
Title 18, United States Code, Section 3156(a)(4)
defines the term “crime of violence” 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.”
Further, the legislative history indicates that
danger
to the community is not limited to violent crimes, but to any
crimes that would harm the community.
See Senate Report at 3195-
96 (“language referring to safety of the community refers to the
danger that the defendant might engage in criminal
activity to
4
the detriment of the community . . . . The
Committee intends that
the concern about safety be given a broader construction than
merely danger of harm involving physical violence.”) (emphasis
added).
B.
Organized Crime Defendants
In keeping with this congressional purpose,
pre-trial
detention is warranted where defendants, charged with violent
crimes, are leaders or high-ranking members of a criminal
organization the activities of which routinely include violence
and threats of violence. See United States v. Colombo, 777 F.2d
96, 99 (2d Cir. 1985); United States v. Bellomo, 944 F. Supp.
1160, 1166 (S.D.N.Y. 1996).
Indeed, courts in the Second Circuit have
recognized
that when organized crime depends on the type of extortionate
conduct charged in this case, the risk of continued extortionate
conduct is substantial and justifies detention. For example, in
United States v. Salerno, 631 F. Supp. 1364, 1375 (S.D.N.Y.
1986),
order vacated, 794 F.2d 64 (2d Cir.),
order reinstated,
829 F.2d 345 (2d Cir. 1987), in detaining two leaders of the
Genovese family pending trial, the court observed that:
The activities of a criminal organization
such as the Genovese Family do not cease with
the arrest of its principals and their
release on even the most stringent of bail
conditions. The illegal businesses, in place
for many years, require constant attention
and protection, or they will fail. Under
these circumstances, this court recognizes a
strong incentive on the part of its
leadership to continue business as usual.
When business as usual involves threats,
beatings, and murder, the present danger such
people pose in the community is self evident.
Similarly, in
Colombo, 777 F.2d at 99, a captain of a
crew in the Colombo Organized Crime Family of La Cosa Nostra (the
“Colombo family”) was ordered detained because the operation of
that organization posed a “risk to the public” and a “danger to
the community” by its “consistent pattern of orchestrating a
series of violent criminal operations.”
In
United States v. Defede, 7 F. Supp. 2d 390, 391
(S.D.N.Y. 1998), the defendant, Joseph Defede, was
charged with
extortion and extortion conspiracy. The district court ordered
Defede’s pre-trial detention, finding that the government had
5
shown by clear and convincing evidence that Defede
was the acting
boss of the Luchese crime family rendering him a danger to public
safety, stating:
The acting boss of the Luchese family
supervises all of its far-flung criminal
activities, including acts of violence.
Defede’s continued liberty therefore
presents a substantial danger to the public.
Id. at 395.
Recently, in
United States v. Gotti, 219 F. Supp. 2d
296 (E.D.N.Y. 2002),
aff’d sub nom. United States v. Ciccone, 312
F.3d 535 (2d Cir. 2002), the Second Circuit affirmed the pre-
trial detention of Peter Gotti, based on the government’s proof
that Gotti was the acting boss of the Gambino family. In
Gotti,
the Second Circuit endorsed the reasoning below that, even though
Gotti was not charged in specific predicate acts of violence, his
position at the helm of a violent organization, which he
supervised and controlled, justified pre-trial detention. Id. at
542-43.
C.
Witness Tampering
Additionally, the Second Circuit has addressed the
issue of pre-trial detention in assuring the safety of the
community against a defendant who has engaged in obstruction. In
United States v. LaFontaine, 210 F.3d 125, 2000 WL 373949, *8-9
(2d Cir. Apr. 12, 2000), the district court revoked the
defendant’s bail based on evidence that LaFontaine had sought to
influence witnesses while released on bond. The defendant
appealed, arguing that in the context of a non-violent, white-
collar case, elaborate release conditions, including home
detention, electronic monitoring, phone tap and relocation to a
different state would assure the safety of the community.
Id. at
*8. The Second Circuit upheld the lower court’s revocation of
bail. The court ruled that “we have held that a record of
violence or dangerousness [in the sense of violence or threats
aimed against witnesses] is not necessary to support pre-trial
detention.”
Id. (citing
Ferranti, 66 F.3d at 543 and
United
States v. Rodriguez, 950 F.2d 85, 89 (2d Cir. 1991)). The court
noted that in
United States v. Gotti, 794 F.2d 773, 779 & n.9 (2d
Cir. 1991), the Second Circuit held that a “single incident of
witness tampering constituted a ‘threat to the integrity of the
trial process, rather than more generally a danger to the
community,’ and was sufficient to revoke bail.”
LaFontaine, 2000
WL 373949, at *9 (quoting
Gotti,
794 F.2d at 779 n.5). The court
further observed that, as in
Gotti, “pre-trial detention was even
6
more justified in cases of violations related to
the trial
process (such as witness tampering) than in cases where the
defendant’s past criminality was said to support a finding of
general dangerousness.”
LaFontaine, 2000 WL 373949, at *9;
see
also United States v. Agnello, 101 F. Supp. 2d 108 (E.D.N.Y.
2000) (reversing magistrate judge and ordering detention based,
in part, on evidence that the defendant attempted to obstruct
justice in a prior case).
D.
Elaborate Bail Packages
The Second Circuit has repeatedly stated that even
elaborate conditions of home detention cannot substitute for
incarceration where the defendant is violent and cannot be
trusted to comply with the conditions of release.
See United
States v. Millan, 4 F.3d 1038, 1048-49 (2d Cir. 1993) (home
detention and electronic surveillance can be circumvented);
United States v. Orena, 986 F.2d 628, 632 (2d Cir. 1993) (“home
detention and electronic monitoring 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));
see also United States v.
Tortora, 922 F.2d 880, 886-87 (1st Cir. 1990) (elaborate
conditions dependent upon good faith compliance were insufficient
where defendant’s violent history provided no basis for believing
that good faith would be forthcoming).
In determining to detain an organized crime leader,
the
court in Defede stated:
In considering the adequacy of conditions to
safeguard the public, it is important to
recognize that the threat inherent in
Defede’s continued liberty need not stem
directly from the threat of violent acts by
him. Nor need it arise from the charged
offenses. Given Defede’s position of
leadership in a notorious and violent
criminal organization, his ability to plan,
order and supervise criminal activity is of
paramount importance. Defede is a danger at
least as much for what he might direct and
assist others in doing as for what he might
do himself. In consequence, for the reasons
set forth in
Bellomo, both
Gotti cases, and
in the Court of Appeals in
Colombo and
Orena,
the Court finds . . . that no condition or
combination of conditions adequately would
secure the safety of the community.