CORE TERMS: nephew,
detention, flight, monitoring, appearance, murder, indictment, niece,
flee, pretrial detention, telephone, surrender, sentence, obstruct,
undercover operation, ceremony, violence, narcotic, indirectly,
communicate, intimidate, electronic, induction, recording, arrested,
pretrial, conspiracy, loansharking, participated, appointment
LexisNexis(R) Headnotes
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Headnotes
JUDGES: [**1]
Mark L. Wolf, United States District Judge.
OPINIONBY: WOLF
OPINION: [*1178]
MEMORANDUM AND ORDER
MARK L. WOLF, UNITED STATES DISTRICT JUDGE
I. SUMMARY
This case arises from an impressive undercover operation conducted by
the Federal Bureau of Investigation ("FBI") from 1983 to 1987, and from
the apparently unprecedented electronic surveillance of a La Cosa Nostra
("LCN") or Mafia induction ceremony on October 29, 1989. The evidence
preliminarily indicates that the defendant Biagio DiGiacomo is a "Capo
Regime," or "Captain," in the alleged Patriarca family of the LCN. It
appears that the defendant Anthony "Spucky" Spagnolo is a "Soldier" in
that family.
In February, 1987 DiGiacomo and Spagnolo were informed by the FBI that
for several years their criminal conversations and conduct with
undercover Special Agent Vincent delaMontaigne had been surreptitiously
tape-recorded. This disclosure was made in an unsuccessful effort to
obtain their cooperation in the investigation of other, presumably more
important, LCN figures.
Over 3 years later, on March 26, 1990, DiGiacomo, Spagnolo, and their
co-defendant Vincent Gioacchini were arrested on the charges in this
case. On the same day several of their alleged superiors in the
Patriarca family were arrested
[**2] in
another case now pending in this District.
United States v.
Patriarca, et al., Cr. No. 89-28-MA (the "Patriarca case"). Also on
the same day, 10 other alleged members of the
[*1179]
Patriarca family were arrested in the District of Connecticut.
United
States v. Bianco, et al., Cr. No. H-90-18(AHN) (the "Bianco case").
In contrast to certain defendants in the Patriarca and Bianco cases,
neither DiGiacomo nor Spagnolo is alleged to have committed a murder or
conspired to have committed a murder. n1 Although each case is unique, 8
of the 10 defendants in the Bianco case, including alleged "Underboss"
Nicholas Bianco (who would be superior to DiGiacomo) and alleged Capo
Matthew Guglielmetti, have been released pending trial. n2
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 The indictment in this case charges DiGiacomo with violations of
18 U.S.C. § 1962(d) (Racketeering Influenced and Corrupt
Organizations ("RICO") conspiracy);
18 U.S.C. §§ 1962(c) and 2 (RICO substantive);
21 U.S.C. §§ 846, 841(a)(1), and
18 U.S.C. § 2 (possession and distribution of narcotics and
conspiracy);
18 U.S.C. §§ 894(a), 892(a), and 2 (extortionate credit
transactions);
18 U.S.C. §§ 1953, 1955, and 2 (illegal gambling);
18 U.S.C. § 1951 (extortion, Hobbs Act);
Mass. Gen. L. ch. 265, § 25 (extortion);
18 U.S.C. §§ 1503, 1622, and 2 (subornation of perjury and
obstruction of justice);
18 U.S.C. §§ 1343, 1341, 1029(a), and 2 (mail and wire fraud);
18 U.S.C. §§ 1029(a) and (counterfeit access devices);
18 U.S.C. §§ 1952 and 2 (interstate travel in aid of racketeering);
18 U.S.C. § 371 (conspiracy).
Spagnolo is charged with violations of
18 U.S.C. § 1962(d) (RICO conspiracy);
18 U.S.C. §§ 1962(c) and 2 (RICO substantive);
21 U.S.C. §§ 841(a)(1), 846, and
18 U.S.C. § 2 (conspiracy to possess and distribute narcotics);
18 U.S.C. §§ 894(a) and 2 (extortionate credit transactions);
18 U.S.C. §§ 1953 and 2 (interstate and transportation and gambling
paraphernalia);
18 U.S.C. §§ 1953, 1955, and 2 (illegal gambling);
18 U.S.C. § 1951 (extortion, Hobbs Act);
18 U.S.C. §§ 1341, 1343, 1952, 1029(a) and 2, and
21 U.S.C. § 843(b) (mail fraud and wire fraud);
18 U.S.C. §§ 1029(a) and 2 (counterfeit access devices);
21 U.S.C. §§ 843(b),
18 U.S.C. § 2 (use of a telephone to further a drug conspiracy);
18 U.S.C. §§ 1952 and 2 (interstate travel in aid of racketeering);
and
18 U.S.C. § 371 (conspiracy).
[**3]
n2 Bianco and Guglielmetti have been released on terms which are less
restrictive than those which will be imposed upon DiGiacomo and Spagnolo
upon their release pursuant to this Memorandum and Order.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
On April 6, 1990, the magistrate ordered DiGiacomo and Spagnolo
detained, finding that no combination of conditions of release would
reasonably assure their appearance or the safety of the community. In
reaching her decision regarding detention, the magistrate relied
substantially on information contained in the April 2, 1990 Affidavit of
FBI Special Agent Joseph P. Hannigan, Jr. and related testimony.
DiGiacomo and Spagnolo requested that this court review the matter of
their detention. n3 This review, however, was delayed in part because
although the undercover operation had been completed for over three
years, the government had not prepared even preliminary transcripts of
the tape recordings relating to Hannigan's affidavit or other relevant
transcripts. Preliminary transcripts of the recordings relating to the
Hannigan affidavit were produced on June 8, 1990. Additional transcripts
were made
[**4]
available to the defendants on June 22, 1990.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 Co-defendant Vincent Gioacchini has also been detained. Because of
his desire to change counsel, his detention has not yet been reviewed.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
After receiving memoranda of law from the parties, from June 25 to June
29, 1990, the court conducted further evidentiary hearings concerning
the detention of DiGiacomo and Spagnolo. In view of the overlap in some
of the charges and evidence, it was agreed that a joint hearing would be
appropriate, with the understanding that the court would analyze the
evidence with regard to each defendant individually. The evidence now
before this court includes all of the testimony and other evidence
presented to the magistrate, additional testimony of Special Agents
Hannigan and delaMontaigne, the testimony of Anthony Spagnolo's brother
Vincent, various transcripts of tape-recorded conversations, and other
documents.
The court has independently reviewed the foregoing evidence. For the
reasons described in this opinion, the court concludes that with
[**5] regard
to each defendant the government has not satisfied its burden of proving
that no combination of conditions will reasonably assure the appearance
of the defendant, the safety of any person, or the safety to the
community. Rather,
[*1180] the
court concludes that there are a combination of conditions which will
provide the required reasonable assurances. These conditions include,
but are not limited to, requiring that each defendant remain at home
subject to electronic monitoring and permitting them to meet or
communicate only with their attorneys, members of their families, and a
small number of close friends not associated with the Mafia.
The reasons for this decision are many. They are described in detail
below. At the outset, however, it should be noted that the government
has failed to prove that either DiGiacomo or Spagnolo is likely to flee
if released in part because each of them for three years knew there was
substantial evidence of the likely charges against them and did not
attempt to flee before indictment.
Similarly, the government has failed to prove that the conditions to be
imposed by the court will not reasonably assure the safety of any person
or the community in part
[**6] because
of its conduct in the three years prior to the return of the indictment
in this case. More specifically, while the court understands that some
time after the conclusion of an undercover phase of an investigation is
necessary to conduct related overt investigation and to prepare a case
for indictment, it is evident that the government was not greatly
concerned by the risk of flight or danger presented by DiGiacomo or
Spagnolo after they were informed in February, 1987 of the undercover
operation. Since February, 1987, the defendants have not been under
surveillance. In addition, as the problem with producing the preliminary
transcripts, among other things, suggests, the government did not in
those three years feel an urgent need to secure the indictment and seek
the pretrial incarceration of DiGiacomo and Spagnolo. Rather, it appears
that the extraordinary event of the electronically surveilled induction
ceremony triggered the indictments of these defendants' alleged LCN
superiors and precipitated the prosecution of DiGiacomo and Spagnolo as
well.
The court's view that the government has not proven that the pretrial
detention of DiGiacomo and Spagnolo is warranted is reinforced
[**7] by its
perception of the defendants as calculating individuals. As described
below, it appears that the defendants have long known the government had
substantial evidence of their membership in the Mafia and of their
involvement in many of the crimes for which they are now charged. It has
also been foreseeable that conviction on such charges would probably
result in meaningful terms of incarceration for each of them. This is a
risk the defendants apparently decided to accept by not fleeing in the
past three years. As the court stated in the course of the detention
hearings, however, in view of defendants' dismal history of being
successfully investigated by the FBI, it should also now be foreseeable
that if they attempt to violate the conditions of their release they
will again be caught and, if ultimately convicted, they will be subject
to substantially enhanced penalties. It should be particularly evident
that any direct or indirect effort by DiGiacomo or Spagnolo to attempt
to obstruct justice or intimidate a witness while on release will not
only result in the revocation of bail, but also substantially increase
their sentences if they are convicted in this case. The court expects
[**8] that at
this point DiGiacomo and Spagnolo will recognize that the risk of a
further serious sentence is unnecessary and unacceptable.
II. THE APPLICABLE LEGAL STANDARDS
It is necessary to consider the pretrial detention of DiGiacomo and
Spagnolo because this is a case in which each is charged with both
crimes of violence and offenses for which a maximum term of imprisonment
of ten years or more is prescribed by the Controlled Substances Act.
18 U.S.C. § 3142(f)(1)(A) and (C).
With regard to the risk of flight as a basis for detention, the
government must prove by a preponderance of the evidence that no
combination of conditions will reasonably assure each defendant's
appearance
[*1181] at
future court proceedings.
United States v. Vortis, 251 U.S. App. D.C. 329, 785 F.2d 327,
328-29 (D.C. Cir.),
cert. denied,
479 U.S. 841, 107 S. Ct. 148, 93 L. Ed. 2d 89 (1986).
With regard to danger, however, there is a heightened standard of proof
because of "the importance of the interests of the defendant which are
implicated in a pretrial detention hearing." S.Rep. No. 225, 98th Cong.,
2d Sess. 22,
reprinted in 1984 U.S.Code Cong. & Admin.News 3182,
3205. Thus, clear and convincing evidence is required to establish the
facts relied upon to support
[**9] a
finding that no combination of conditions will reasonably assure the
safety of any other person or the community.
18 U.S.C. § 3142(f).
In addition, as Judge Robert Keeton has recently observed:
Congress . . . [chose] to use the term "danger" which by its nature
is a risk concept. By using this term, Congress did not declare that
the community is entitled to assurances of freedom from all harm,
and a court cannot detain arrestees on the mere apprehension of
danger of harm. Rather, the court's inquiry must focus on whether by
conditions of release the community can reasonably be assured
of its safety. See
United States v. Orta, 760 F.2d 887, 892 (8th Cir. 1985)
(en banc).
United
States v. Phillips, 732 F. Supp. 255, 266 (D.Mass. 1990)
(emphasis in original).
Generally, when reviewing a magistrate's order regarding pretrial
detention, it is the duty of the district court to "undertake an
independent review of the [] case []."
United States v. Hurtado, 779 F.2d 1467, 1480 (1985),
reh'g denied,
788 F.2d 1570 (11th Cir. 1986) (emphasis in original);
Phillips, 732 F. Supp. at 259. An independent review and
analysis of all of the evidence is particularly appropriate
[**10] here
because this court has received considerably more information than was
presented to the magistrate.
As DiGiacomo and Spagnolo are each charged with violations of the
Controlled Substances Act
(21 U.S.C. § 801 et seq.) for which there is a maximum
penalty of more than ten years, there is in this case a rebuttable
presumption that no combination of conditions will reasonably assure
their appearance or the safety of the community.
18 U.S.C. § 3142(e). This, however, simply requires the defendants
to produce some evidence to rebut the presumptions.
United States v. Jessup, 757 F.2d 378, 381-82 (1st Cir. 1985).
They have done so. The burden of persuasion remains with the government
with regard to the questions of flight and danger.
Id. at 383-84. The court, however, must still consider as
weighing in favor of detention the fact that Congress found that alleged
drug traffickers generally pose special risks of flight and danger to
the community.
Id. at 384. Nonetheless, the court "may still conclude that
what is true in general is not true in the particular case before [it]."
Id.;
United States v. Perez-Franco, 839 F.2d 867, 870 (1st Cir. 1988).
Along with the rebuttable
[**11]
presumptions, the court must also consider the following factors in
determining whether detention is warranted:
(1) the nature and circumstances of the offense charged, including
whether the offense is a crime of violence or involves a narcotic
drug;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including --
(A) the person's character, physical and mental condition,
family ties, employment, financial resources, length of
residence in community, community ties, past conduct, history
relating to drug or alcohol abuse, criminal history, and record
concerning appearance at court proceedings; and
(B) whether at the time of the current offense or arrest, the
person was on probation, or parole, or on other release pending
trial, sentencing, appeal, or completion of sentence for an
offense under Federal, State, or local law; and
(4) the nature and seriousness of the danger to any person or the
community [*1182]
that would be posed by the person's release.
18
U.S.C. § 3142(g).
With regard to the foregoing factors, it is appropriate for the court to
consider the evidence of DiGiacomo's and Spagnolo's membership in the
Mafia as a
[**12] factor
militating in favor of detention.
See e.g.,
United States v. Zannino, 798 F.2d 544, 547 (1st Cir. 1986);
United States v. Accetturo, 783 F.2d 382, 384-85 (3rd Cir. 1986);
United States v. Colombo, 777 F.2d 96, 99 (2d Cir. 1985).
Membership in the Mafia, however, cannot properly be the end of the
inquiry with regard to dangerousness or flight. Among other things, a
defendant's role in the Mafia is relevant because leaders or individuals
with the ability to direct the criminal activity of others pose a
special threat to the safety of the community.
See,
Zannino, 798 F.2d at 547 ("Zannino played a continuing
leadership role in mob activities . . . directing illegal activities
through communications with associates");
Accetturo, 783 F.2d at 384 (Accetturo "headed" a "well-run
criminal organization");
Colombo, 777 F.2d at 99 ("Colombo was the leader of an
enterprise that carried out its criminal activities at his direction . .
. orchestrating a series of violent criminal operations"). In addition,
accepting that Mafia membership at any level inherently entails a degree
of dangerousness and, because of the far-flung nature of the
organization, special
[**13] risks
of flight, the court must nevertheless consider whether there is a
combination of conditions which can reasonably protect against the
danger posed, directly or indirectly, by the particular defendant and
reasonably assure that individual's appearance in court.
The court has also considered whether the prospect of protracted
pretrial detention is a factor which may properly be considered as
weighing in favor of release. This question is presented because the
defendants have already been incarcerated for about four months and
their trial is not expected to be completed for another year. It is,
however, "the Speedy Trial Act,
18 U.S.C. 3161 et seq., not the preventive detention
provision of the Bail Reform Act [that] is the vehicle chosen by
Congress to regulate the length of pretrial delays for both detained and
undetained defendants."
Accetturo, 783 F.2d at 387;
Colombo, 777 F.2d at 100 ("Congress . . . relied on the
Speedy Trial Act to limit the period of pretrial incarceration."). In
some circumstances protracted pretrial detention may violate a
defendant's right to due process.
Zannino, 798 F.2d at 547. That has not yet occurred in this
case.
Id. Therefore,
[**14] the
court concludes that it would not be appropriate to deem the
inevitability of prolonged pretrial detention as a consideration
weighing in favor of release. The court has not done so. Understanding
that continued detention would likely be lengthy, however, has
reinforced the court's usual interest in carefully considering whether
the evidence concerning the factors which are relevant proves that each
defendant should be detained.
Similarly, the court has not considered as a factor favoring release
defendants' claim that because there is not a federal pretrial detention
center which is easily accessible to Boston, Massachusetts they should
be released in order to facilitate consultation with their counsel in
this complex case. There is a serious problem in this district relating
to the facilities for pretrial detention. DiGiacomo and Spagnolo have
been incarcerated in Danbury, Connecticut, which is a more than four
hour drive from Boston. While the government has temporarily moved them
to the Plymouth County Jail, which is closer to Boston, defendants'
object to the adequacy of the Jail for the purpose of long term
incarceration. At some point a serious question concerning whether
[**15]
defendants are being denied their right to effective assistance of
counsel might be generated by problems relating to the place or manner
of their pretrial detention. The court is not now presented with this
constitutional question. As with the length of detention, the court does
not regard the unavailability of a suitable federal pretrial detention
facility in this area to be a factor to be considered in assessing the
propriety of pretrial detention. Once again, however, this issue
magnifies
[*1183] the
importance of carefully considering whether the relevant factors
indicate detention is warranted. In this case, the release of the
defendants which the court finds is otherwise justified should have the
incidental, favorable effect of facilitating the fair and efficient
preparation of defendants' case for trial, and thus serve the interests
of the administration of justice.
III. THE UNDERCOVER OPERATION
Beginning in late 1983, Special Agent delaMontaigne rented a store
several doors away from the Roma Restaurant which DiGiacomo owned and
ran in East Boston. After frequenting the Roma and successfully
conveying the impression that he was a criminal who, among other things,
dealt cocaine,
[**16]
delaMontaigne became DiGiacomo's close companion. delaMontaigne and
DiGiacomo were together three or four times a week for several years.
Spagnolo was among DiGiacomo's associates whom delaMontaigne met in that
period. As an undercover operative, delaMontaigne engaged in several
crimes with DiGiacomo and/or Spagnolo.
At one point, DiGiacomo undertook to introduce delaMontaigne to a local
source of cocaine, Nicholas Rosato. DiGiacomo characterized this as a
"favor" he was doing for his friend, delaMontaigne. DiGiacomo told
delaMontaigne he did not expect any payment concerning delaMontaigne's
dealings with Rosato. Rather, not knowing he was being tape recorded,
DiGiacomo asserted that he refused to get involved with drugs because of
his family and reputation. Nevertheless, the evidence indicates that
DiGiacomo participated in negotiations to purchase kilograms of cocaine,
sought to obtain a better price for delaMontaigne, financed Rosato's
drug dealings by lending him money at the rate of 3% interest per week,
and unsuccessfully sought a source of heroin for delaMontaigne.
delaMontaigne also observed DiGiacomo receive payments at the Roma from
what he understood were loansharking activities.
[**17] In
addition, from November, 1986 to January, 1987, delaMontaigne,
DiGiacomo, and Spagnolo were partners in conducting illegal poker games.
They ceased this activity after earning $ 120 for their final month's
effort, of which $ 30 was paid to DiGiacomo and $ 30 was paid to
Spagnolo.
During their association, DiGiacomo told delaMontaigne of several
instances in which he had engaged in violence, alone or with associates.
In one instance DiGiacomo reported threatening a former boxer with a
gun. In another instance, which apparently occurred in the early 1970's,
DiGiacomo claimed to get his associates to join him in beating someone
with a baseball bat as a result of a traffic incident. delaMontaigne
heard DiGiacomo ask a young man to commit a murder for him, a request
which DiGiacomo later explained was intended to test the young man's
response. DiGiacomo also asked delaMontaigne if he could get him a
"clean" (untraceable) gun. delaMontaigne, however, never saw DiGiacomo
become violent or possess a weapon.
DiGiacomo informed delaMontaigne that he had recently risen in the ranks
of the local Mafia; he apparently became a Capo in the Patriarca family
in 1986. However, delaMontaigne also
[**18]
observed DiGiacomo cooking and working at the Roma, sometimes 7 days a
week. The restaurant was, in part, intended to provide the appearance of
a legitimate source for DiGiacomo's illegal income. Yet shortly before
the undercover operation surfaced, DiGiacomo told delaMontaigne that he
could not afford new clothes or a new car.
Spagnolo was introduced to delaMontaigne by DiGiacomo. Spagnolo borrowed
$ 35,000 from delaMontaigne to buy marijuana from a source in Ohio.
Spagnolo hoped the deal would provide "Christmas money." He was,
however, unable to raise the funds quickly enough to consummate the
deal. Thus, he returned the $ 35,000 to delaMontaigne.
Spagnolo asked delaMontaigne to get him a substantial source of cocaine,
but did not appear to have his own source. He did say he could get some
"Thai sticks," a potent form of marijuana.
Late one evening, delaMontaigne saw Spagnolo pull a knife with a 12 inch
blade
[*1184] in
a bar after one of the patron's antagonized him. He did not, however,
confront that person. Rather, he was persuaded by his colleagues to put
the knife away.
Spagnolo supplied delaMontaigne with stolen credit cards. As indicated
earlier, they also became partners in an
[**19]
illegal poker game. In January, 1987, after receiving $ 30 for the last
month of this venture, Spagnolo was disturbed. He had previously
complained that business was bad because "things are tough in the
Mafia." On this occasion he stuffed the $ 30 in his mouth and threatened
to return to making money the "old way" -- by pulling "kids out of their
sneakers" and stealing their money.
By late January, 1987, the FBI had decided to terminate delaMontaigne's
undercover operation. According to delaMontaigne, at this point it did
not appear that the cost of continuing the operation would be worth the
investment. Rather, a decision was made to confront DiGiacomo and
Spagnolo with the fact that they had been targets of a successful
undercover operation, warn them not to threaten or harm delaMontaigne or
his family, and seek their cooperation in the investigation of other LCN
figures. This was done in February, 1987.
Since February, 1987, DiGiacomo and Spagnolo have each known that their
contacts with delaMontaigne were continuously tape-recorded. In
February, 1987, and thereafter, the FBI told the defendants of the
serious charges -- including RICO and drug charges -- it expected to
prove against
[**20] them
as part of an unsuccessful effort to persuade DiGiacomo and Spagnolo to
cooperate with the FBI's continuing investigation of organized crime.
DiGiacomo consulted counsel, who contacted the government and offered to
surrender his client when he was indicted. Spagnolo asked delaMontaigne
from time to time when he would be arrested.
Spagnolo and DiGiacomo continued to see delaMontaigne occasionally.
Neither defendant, nor anyone else, has threatened delaMontaigne or his
family. Nor has either defendant attempted to flee Massachusetts.
According to delaMontaigne, after DiGiacomo and Spagnolo were
confronted, the FBI decided that incapacitating them was not an urgent
matter. Although each was occasionally observed in the course of the
FBI's other activities, neither was placed under surveillance.
Similarly, although some overt investigation relating to DiGiacomo and
Spagnolo was conducted, delaMontaigne worked on other matters which were
given higher priority. The court infers that if the government had since
1987 considered DiGiacomo or Spagnolo to have presented a serious threat
of flight or, particularly, a significant danger to the community, it
would have given more urgent attention
[**21] to
completing its investigation and indicting this case in order to secure
the defendants' detention.
In October, 1989, the FBI obtained a warrant to tape-record a Mafia
induction ceremony, apparently for the first time. The evidence
indicates that on October 29, 1989, many members of the alleged
Patriarca family, including DiGiacomo and Spagnolo, met at a residence
in Medford, Massachusetts to induct new members. Much of the
approximately six hours of discussion relates to subjects such as the
placement of the figs, nuts, and other food. DiGiacomo, however,
conducted the induction ceremony.
It is evident by their presence at the ceremony that DiGiacomo and
Spagnolo were by October 29, 1989, already "made members" of the Mafia.
DiGiacomo is identified as a Capo, and thus a person who must be obeyed
by those below him in the organization. The court infers that DiGiacomo
and Spagnolo, like the October 29, 1989 inductees, have sworn their
life-long, paramount loyalty to the Mafia and, explicitly or implicitly,
undertaken to kill even a close family member who informed on the Mafia
if instructed to do so; indeed, DiGiacomo was recorded giving such an
instruction to one inductee.
On March
[**22] 26,
1990, arrests were made in three cases relating to the Patriarca family
and the October 29, 1989 ceremony. Among those arrested in the two other
cases are Raymond Patriarca (the alleged
[*1185]
"Boss" of the family), Nicholas Bianco (an alleged Underboss), Joseph
Russo (the alleged "Consigliere" or "Counselor" and an alleged
de
facto Underboss), Vincent Ferrara and Matthew Gugliemetti (each an
alleged Capo Regime).
With regard to this case, DiGiacomo was arrested at home, without
incident. After learning that the FBI was looking for him, Spagnolo
returned to the vicinity of his home and waited to be arrested.
IV. THE STATUTORY FACTORS
A.
DiGiacomo
In addition to the foregoing information relating to the undercover
operation, the evidence relating to DiGiacomo concerning the factors
that must be considered pursuant to
18 U.S.C. § 3142(g) include the following.
DiGiacomo is charged with committing crimes of violence, such as
extortion and loansharking, and narcotics offenses, among other things.
In addition, the essence of the RICO charge is that DiGiacomo is an
official of the Mafia, an enterprise which engages in violence,
intimidation of witnesses, and murder in the regular
[**23] course
of its illegal business. DiGiacomo is also charged with attempting to
obstruct justice by soliciting false testimony in connection with
investigations concerning other individuals.
The undercover operation generated consensually monitored tape
recordings which seem to constitute strong evidence of the drug and
loansharking offenses with which DiGiacomo is charged. However, in view
of DiGiacomo's recorded statements to the effect that he was not
interested in being involved in drug transactions but only doing
delaMontaigne a favor, at this preliminary point there appears to be
adequate evidence of a lack of predisposition to require a jury to
consider the question of entrapment with regard to some of the drug
charges against him. Although the validity of the Title III surveillance
of the induction ceremony has not been litigated, at this point the
recordings appear to be clear and convincing evidence that DiGiacomo is
a Capo in the Mafia, an organization whose members swear to kill
informants if so directed.
DiGiacomo is 43 years old, was born in Sicily, and continues to have
family there. However, his family and his wife's family, the Caramazzas,
are engaged in a bloody vendetta
[**24]
against each other in Sicily. Evidently because of this, DiGiacomo did
not travel to Italy to visit his dying mother or to attend her wake. The
government has not presented clear and convincing evidence to establish
that DiGiacomo conspired to commit murders in Sicily. Rather, an Italian
magistrate has recommended that he be removed as a suspect in the
pending murder investigations.
DiGiacomo has lived in this community for over twenty years. The record
is replete with letters from friends who commend him as a hard worker in
his restaurant and as dedicated to his wife and three children,
particularly his youngest son who is now 20 months old. A letter from
one of his sons confirms this.
DiGiacomo appears to have substantial equity in several buildings, as
well as the Roma Restaurant. He has no history of drug or alcohol abuse.
He also has no criminal record. Thus, he was not under judicial
supervision when he allegedly committed the offenses involved in this
case.
In addition, DiGiacomo turned in his guns to the Boston police when his
license to carry them was revoked. This suggests that DiGiacomo is
capable of satisfying his legal obligations if he perceives that it is
in his interest
[**25] to do
so.
In contrast to the foregoing factors, the evidence is compelling that
DiGiacomo is a long-time "made member" of the Mafia, who was promoted to
Capo in 1986 when the successful prosecution of key New England LCN
figures created vacancies in the organization's hierarchy. The evidence
also suggests that DiGiacomo participated in hiding Joseph Russo in
Montreal when Russo was apprehensive about his possible indictment.
DiGiacomo himself claimed that if there was taped evidence that he had
participated in a murder he would flee. DiGiacomo unsuccessfully urged
Vincent
[*1186]
Ferrara, the alleged Patriarca family Capo now charged with murder in
the Patriarca case, to flee before his indictment.
With regard to the Mafia generally, the evidence indicates that some
members and associates have fled when released prior to trial. Others,
however, have been released and appeared as required. Among those
successfully released before trial, and indeed after trial, were Peter
Limone and
Richard Gambale, who were convicted
of attempting to obstruct justice by conspiring to murder Walter
LaFreniere.
As indicated earlier, there is formidable evidence that the Patriarca
family has historically been
[**26]
willing to use violence and to attempt to obstruct justice. Gennaro
Anguilo directed criminal activity while imprisoned. Ilario Zannino did
the same while under house arrest. DiGiacomo is now an official of the
LCN family they previously led.
B.
Spagnolo
Like DiGiacomo, Spagnolo is charged with committing crimes of violence
and narcotics offenses, as well as other offenses. The evidence
indicates he is a Soldier in the Mafia. Spagnolo is not accused of
personally participating in attempts to obstruct justice.
Although he was not a very active participant in the October 29, 1989
induction ceremony, Spagnolo's presence at that event constitutes
compelling evidence of his involvement in the Mafia. The consensual
recordings developed by delaMontaigne provide strong evidence of many of
the various crimes alleged in the indictment. These include the drug
charges against Spagnolo, as to which there does not appear to be a
basis for an entrapment defense. Nevertheless, the evidence indicates
that Spagnolo had little success in his efforts to operate as a drug
dealer.
Spagnolo is 48 years old. He has lived in this community all of his
life. He has usually resided in a triple decker in
[**27] Revere
owned by his now deceased mother. Although he is divorced, numerous
letters indicate that Spagnolo is very close to his five siblings and
many nieces and nephews in the Boston area. He did, however, travel to
Italy many years ago. It also appears that he may have visited Joseph
Russo when he was hiding in Montreal.
Spagnolo has no known financial resources and, judging from his
life-style and comments to delaMontaigne, none of which are undisclosed.
His brother Vincent, however, is an upstanding member of the community
who is willing to pledge his home (in which he has about $ 200,000 in
equity) and his mother's former home to assure his brother's appearance
at future proceedings.
Spagnolo has a record of arrests dating back to 1959. The charges range
from drunkenness to armed robbery, on which he was found not guilty. The
record does not indicate that Spagnolo ever failed to appear as required
in connection with any charge. Nor was he under judicial supervision
when charged in this case.
The court has considered with particular care the evidence relating to
the alleged specific instances of Spagnolo's dangerousness. n4 The
court's assessment of this evidence includes, but is not
[**28]
limited to, the following.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n4 Notwithstanding defendants' objection, the court has read the
affidavit of Special Agent Joseph P. Hannigan, Jr. dated June 22, 1990,
submitted
in camera, concerning the confidential informants
relied upon in Hannigan's original affidavit.
See
United States v. Acevedo-Ramos, 755 F.2d 203, 208-09 (1st Cir.
1985).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
There is not clear and convincing evidence that Spagnolo has
participated in murder for the LCN. As the testimony relating to the
sealed portion of paragraph 37 of Hannigan's April 3, 1990 affidavit
indicated, there is information suggesting that Spagnolo may have been
involved in the LCN shooting of Joseph Barboza, a government witness.
However, while others have been previously prosecuted, and Joseph Russo
is now being prosecuted, for Barboza's murder, Spagnolo has not been
charged. While this does not necessarily mean that Spagnolo was not also
involved, it does suggest that the evidence concerning Spagnolo's
participation in the Barboza
[*1187]
murder is measurably less than
[**29] clear
and convincing.
There is, however, clear and convincing evidence that Jimmy Limoli stole
drugs belonging to Spagnolo and was forced by Spagnolo to confess to
this. The evidence also indicates that Spagnolo complained to alleged
LCN Capo Vincent Ferrara concerning this. Less than two months later
Limoli was killed. Ferrara is now being prosecuted for Limoli's death.
Spagnolo, however, has not been charged.
Finally, however, there is sufficient evidence in the April 3, 1990
Hannigan Affidavit to establish that Spagnolo has engaged in the use of
force and violence to collect debts, among other things, in the course
of his career as a LCN member or associate.
V. ANALYSIS REGARDING DIGIACOMO
A.
Flight
The government has not proven by a preponderance of the evidence that
the conditions described below will not reasonably assure DiGiacomo's
appearance in this case. The court recognizes that there is evidence
which tends to suggest DiGiacomo presents a risk of flight. The drug
charges weigh in favor of this inference. More importantly, it appears
that DiGiacomo is a LCN Capo. As such, he is an official of a national
and international organization with the resources to finance
[**30] and
facilitate his possible flight. Some similarly situated LCN figures have
failed to appear to face the charges against them.
DiGiacomo himself seems to have national and international organized
crime contacts, although it does not appear he could hide safely in
Sicily. He evidently participated in hiding Joseph Russo in Montreal and
has in several ways indicated that he views flight as appropriate for
LCN figures charged with murder.
The foregoing evidence relating to flight, however, is outweighed by the
countervailing facts which indicate that the conditions described below
will reasonably assure DiGiacomo will not flee. DiGiacomo has strong
ties to his family. Although they might, with particular difficulty,
attempt to flee together, the court is not persuaded DiGiacomo is likely
to abandon them.
More importantly, DiGiacomo knew for more than three years before his
indictment that the government had substantial evidence against him,
including likely tape recordings relating to his membership in the Mafia
and involvement with narcotics. Apparently DiGiacomo decided to face the
type of charges he now confronts and to accept the reasonably
foreseeable consequences of a possible
[**31]
conviction on such charges. The court does not believe that the tape
recording of the induction ceremony or the actual indictment in this
case are facts which are likely to alter DiGiacomo's calculation
concerning flight. If he did not flee previously, it is not likely that
he would flee now, forfeiting all of his property and leaving behind his
indicted alleged superiors in the Patriarca family.
In any event, DiGiacomo will be required to remain at home, subject to
electronic monitoring, except for a reasonable number of authorized and
monitored visits to his attorney's office. These conditions should both
deter DiGiacomo from fleeing and facilitate his capture if he attempts
to flee.
In view of the foregoing, the court concludes that the government has
failed to bear its burden of proving that no combination of conditions
will reasonably assure DiGiacomo's appearance at future court
proceedings.
B.
Danger
The evidence described earlier concerning the Mafia, DiGiacomo's role in
the Patriarca family, and his past conduct do indicate that he would
present a danger to the community, and perhaps to particular
individuals, if released unconditionally. The government has, however,
[**32] failed
to prove that the conditions described below will not reasonably assure
the safety of the community or any individual.
With regard to the community, the court is mindful that Congress has
found that alleged drug offenders generally pose special risks if
released. The evidence in this
[*1188]
case, however, indicates that DiGiacomo was ambivalent, and perhaps
hypocritical, with regard to being involved with narcotics. In any
event, it appears that while DiGiacomo aided and abetted the narcotics
activities of others, he did not personally deal drugs. Thus, the court
expects he will not be dangerous in the sense of engaging in drug
activity if released on appropriate conditions.
The evidence indicates that DiGiacomo's primary, dangerous illegal
activity was loansharking -- lending money at high rates of interest,
while relying upon violence or a reputation for violence to collect such
loans. It does not appear, however, that he personally resorted to
violence to collect debts or had to direct others to use violence to
collect debts on his behalf. Nor did he previously have unlimited
resources to engage in loansharking. Rather, delaMontaigne was required
to provide some of the funds to
[**33] be
lent by DiGiacomo for Rosato's drug dealing. Thus, the court does not
find that DiGiacomo is likely to endanger the community through
loansharking activities if released on appropriate conditions.
DiGiacomo also engaged in gambling activities, such as illegal football
cards and poker games. These activities, however, are neither likely to
continue, nor endanger the community if continued, upon DiGiacomo's
release.
The only specific individuals identified who might be endangered if
DiGiacomo is released are delaMontaigne and his family. However,
DiGiacomo apparently understands the severe consequences almost certain
to result if he directly or indirectly threatens or injures a government
agent or his family. Neither he nor his associates did so in the three
years prior to his indictment. It would be particularly risky for them
to do so now. Thus, the court does not believe that DiGiacomo's release
on appropriate conditions will endanger delaMontaigne or his family,
although the court recognizes the risk which is, in any event, inherent
in delaMontaigne's now public role as a former undercover operative.
The court has also considered the risk presented by DiGiacomo's release
to other
[**34]
individuals, particularly other potential witnesses, and to the
administration of justice. DelaMontaigne observed DiGiacomo advise a
witness to lie to investigators when he was not a subject of
investigation himself. This is a serious matter. There is, however, no
evidence that DiGiacomo directly or indirectly attempted to intimidate
any witness. The restriction on his personal contacts when released
should inhibit DiGiacomo's ability to suborn perjury personally in this
case. The serious sentence he is likely to receive if it is shown that
he has, directly or indirectly, sought to intimidate any witness or
obstruct justice should also deter such conduct. Similarly, the fact
that the tape recordings and testimony of delaMontaigne will, in any
event, constitute formidable evidence of many pending charges, should
discourage DiGiacomo from seeking to tamper with any other witness.
The court views the evidence concerning the Mafia and DiGiacomo's
position as a Capo in the Patriarca family to be the most weighty
evidence favoring his detention. The LCN has been shown to engage in
violence, intimidation of witnesses, and obstruction of justice --
although certainly not in connection with
[**35] every
prosecution. The court views DiGiacomo as a person in a position within
the Mafia to both receive and issue orders. Other LCN figures have
directed criminal activity from prison or while under house arrest,
although not under conditions as stringent as those which will be
imposed on DiGiacomo. It would, however, be at least marginally easier
for DiGiacomo to direct criminal activity if released than if
incarcerated. These factors militate in favor of continued detention.
When all of the evidence is viewed in context, however, the court
concludes that the government has not shown that the conditions
described below will not reasonably assure the safety of the community
or any individual.
VI. ANALYSIS REGARDING SPAGNOLO
A.
Flight
The analysis relating to Spagnolo parallels that concerning DiGiacomo,
as to
[*1189]
whom the evidence concerning flight and dangerousness is stronger. The
court will not repeat all of the analysis concerning DiGiacomo which
also applies to Spagnolo. Some of the key points, however, are as
follows.
As a member of the Mafia, Spagnolo too is part of an international
organization with the resources to try to help him escape. He does not,
however, have
[**36]
DiGiacomo's national and international contacts. Nor does he have any
meaningful financial resources.
Spagnolo is a life long resident of this area. Although in contrast to
DiGiacomo, Spagnolo does not now have an immediate family, he is close
to his brothers, sisters, and many nieces and nephews in the Boston
area. If he did not flee in the three years prior to his indictment, the
court does not expect he will flee after his brother pledges his home
and the home which belonged to his mother in order to assure his
appearance at future court proceedings.
Thus, the government has failed to prove that the posting of this
security and the electronic monitoring to which Spagnolo will be subject
are not adequate to reasonably assure that he will not flee.
B.
Danger
With regard to danger, Spagnolo apparently had very limited success in
his sporadic efforts to deal drugs before he was indicted. The
conditions of release described below should assure that he will not
engage in narcotics crimes pending trial.
The evidence does suggest that Spagnolo has personally used violence or
threats of violence in connection with collecting debts, recovering
stolen drugs, and committing minor robberies.
[**37] The
evidence does not establish that Spagnolo has ever participated in a
murder. The home confinement which will be a condition of Spagnolo's
release should protect the community against the danger he has
traditionally presented.
For the reasons stated earlier concerning DiGiacomo, the court does not
believe that releasing Spagnolo on the conditions described below will
present a danger to delaMontaigne or his family. Nor is there evidence
to suggest that Spagnolo presents a particular risk to any other
witness. Unlike DiGiacomo, Spagnolo is not charged with attempting to
suborn perjury or to obstruct justice, and there is no evidence that he
has done so.
Once again, the most formidable evidence regarding Spagnolo's
dangerousness is his membership in the Mafia. As a Soldier in the Mafia,
he may have the capacity to obtain criminal assistance from "associates"
who are not "made members" of the organization. He does not have the
authority to direct other members of the LCN. The court views Spagnolo
as now constituting less of a threat to safety than DiGiacomo. As the
court has determined that conditions described below are adequate to
reasonably assure the safety of the community with
[**38] regard
to DiGiacomo, they are also sufficient with regard to Spagnolo.
VII. THE CONDITIONS
As indicated earlier, the court recognizes that DiGiacomo and Spagnolo
each present some risk of flight and to the safety of the community. The
court finds, however, that there is a combination of conditions that
will reasonably assure that those risks will not be realized.
Central to these conditions is the requirement that each defendant
remain at his residence every day, 24 hours a day. This requirement will
be subject to electronic monitoring, which will promptly alert the
Pretrial Services Department of this Court if either defendant leaves
his home without authorization. Each defendant will be authorized by
Pretrial Services to leave home only for consultation with their
attorneys and for medical appointments.
In addition, each defendant will be allowed to meet or communicate --
directly or indirectly -- only with their attorneys, certain members of
their families, and a small number of close friends not known by the
government to be associated with the Mafia. This requirement will be
monitored, in part, by the installation of a pen-register to
[*1190]
record the destination of outgoing
[**39] calls,
which may be supplemented by the tracing of incoming calls. Each
defendant will also be required to keep a record of his communications.
The information concerning defendants' communications will be available
to the government.
As a corollary of this limitation on contacts, each defendant will be
prohibited from communicating with his co-defendants, except in the
presence of counsel and for the purpose of preparation of the defense of
this case.
In addition, DiGiacomo will be required to post with the court all of
his assets, which will be subject to forfeiture if he fails to appear as
required. Vincent Spagnolo shall post his home and arrange for the
posting of the home formerly owned by his mother. They too will be
subject to forfeiture if the defendant Anthony Spagnolo fails to appear
as required.
The court concludes that these conditions will reasonably assure the
appearance of each defendant, as well as the safety of relevant
individuals and of the community.
VIII. THE STAY
The release of DiGiacomo and Spagnolo will be permitted when the
necessary conditions are met, but, in any event, not before 1:00 p.m. on
July 16, 1990. The stay of their release until at least
[**40] July
16, 1990, is intended to permit the government to decide whether it
wishes to appeal and, if so, to seek a longer stay from the Court of
Appeals.
IX. ORDER REGARDING DIGIACOMO
In view of the foregoing, the court has determined with regard to the
defendant Biagio DiGiacomo that there is a combination of conditions
which will reasonably assure his appearance as required and the safety
of any other person and the community. Accordingly, he shall be released
pending trial at 1:00 p.m. on July 16, 1990, or as soon thereafter as he
has satisfied the prerequisites for his release described below, on the
following conditions:
1. The defendant shall not commit any violation of federal, state, or
local law while on release in this case.
2. The defendant shall appear at all proceedings as required and shall
surrender as directed to serve any sentence imposed.
3. The defendant shall reside at 36 Whitby Street, Boston,
Massachusetts. He is restricted to his residence, subject to electronic
monitoring; defendant shall enter into the Electronic Monitoring
Conditions agreement attached hereto as Exhibit A. Defendant shall not
leave his residence without the prior approval of the Pretrial
[**41]
Services Department of this Court. In accordance with procedures to be
established by Pretrial Services, authorization will be given for a
reasonable number of visits to the offices of defendant's counsel and to
attend medical appointments. Procedures for reporting concerning the
commencement and termination of such visits and appointments shall be
established by Pretrial Services.
4. DiGiacomo shall meet and/or communicate -- directly or indirectly
through others -- only with his attorney(s) and individuals specifically
designated by the court. Defendant has requested the court designate the
35 individuals listed on Exhibit C hereto. The government has expressed
a persuasive objection to the designation of Leonard Arone and Joseph
Arone; contact with them is not authorized. In addition, the government
requests identifying information concerning the remaining individuals on
the list. Thus, defendant shall within 2 weekdays of this Order file the
addresses of the individuals listed on Exhibit C, identify their
relationship to the defendant and, where possible, provide their
birthdates. The government shall within 3 weekdays following the
submission of this information file any additional
[**42]
objections. If the government objects to any individual, defendant will
not be authorized to have contact with that person without further order
of this court. Anyone on Exhibit C as to whom the government does not
object is hereby authorized to meet and communicate with DiGiacomo
pursuant to this Order.
[*1191] In
addition, defendant may communicate with his co-defendants in this case,
provided that such communication occurs in the presence of counsel and
is limited to the preparation of the defense of this case.
Pretrial Services shall require defendant to keep a record of his direct
and indirect communications in order to monitor this provision.
5. Defendant shall have only one telephone line at his residence, which
will be subject to monitoring by a pen register to record the
destination of outgoing calls and, if the court determines it is
feasible, a tracing device to identify the origin of incoming calls.
6. Defendant shall execute an agreement to forfeit upon failing to
appear as required, and furnish in appropriate form the related
documents, concerning the following real estate: (a) 36 Whitby Street,
Boston, MA; (b) 19 Bennington Street, Boston, MA; (c) 7 Laurel Avenue,
Waltham,
[**43] MA;
and (d) 78-80 Fuller Street, Waltham MA.
7. Defendant shall also:
a. refrain from possessing a firearm, destructive device, or other
dangerous weapon.
b. refrain from the excessive use of alcohol or the use of any narcotic
drug unless prescribed by a physician.
c. Surrender any passport.
d. Obtain no passport.
e. Abide by any other condition consistent with the purposes of this
Order which Pretrial Services deems appropriate.
8. The defendant is hereby advised of the penalties and sanctions
relating to the violation of any of the foregoing conditions which are
described on Exhibit B hereto. Defendant's attention is particularly
directed to the requirement that he not personally, or with or through
others, seek to intimidate a witness or otherwise obstruct justice.
9. Defendant shall sign a document acknowledging that he is aware of the
conditions of his release; promising to obey those conditions, to appear
as directed, and to surrender to serve any sentence imposed; and
confirming his awareness of the penalties and sanctions described on
Exhibit B hereto.
X. ORDER REGARDING SPAGNOLO
In view of the foregoing, the court has determined with regard to the
defendant Anthony Spagnolo
[**44] that
there is a combination of conditions which will reasonably assure his
appearance as required and the safety of any other person and the
community. Accordingly, he shall be released pending trial at 1:00 p.m.
on July 16, 1990, or as soon thereafter as he has satisfied the
prerequisites for his release described below, on the following
conditions:
1. The defendant shall not commit any violation of federal, state, or
local law while on release in this case.
2. The defendant shall appear at all proceedings as required and shall
surrender as directed to serve any sentence imposed.
3. The defendant shall reside at 10 Brookdale Street, Revere,
Massachusetts. He is restricted to his residence, subject to electronic
monitoring; defendant shall enter into the Electronic Monitoring
Conditions agreement attached hereto as Exhibit A. Defendant shall not
leave his residence without the prior approval of Pretrial Services
Department. In accordance with procedures to be established by Pretrial
Services, authorization will be given for a reasonable number of visits
to the offices of defendant's counsel and to attend medical
appointments. Procedures for reporting concerning the commencement and
[**45]
termination of such visits and appointments shall be established by
Pretrial Services.
4. Spagnolo shall meet and/or communicate -- directly or indirectly
through others -- only with those individuals listed on Exhibit D
hereto, and his attorney(s). In addition, defendant may communicate with
his co-defendants in this case, provided that such communication occurs
in the presence of counsel and is limited to the preparation of the
defense of this case.
[*1192]
Pretrial Services shall require defendant to keep a record of his direct
and indirect communications to monitor this provision.
5. Spagnolo shall have only one telephone line at his residence, which
will be subject to monitoring by a pen register to record the
destination of outgoing calls and, if the court decides it is feasible,
a tracing device to identify the origin of incoming calls.
6. Defendant's brother Vincent Spagnolo shall execute an agreement to
forfeit upon Anthony Spagnolo's failing to appear as required (a) his
residence at 19 Juniper Drive, Saugus, Massachusetts and (b) his
mother's former home at 10 Brookdale Street, Revere, Massachusetts. He
shall also execute any necessary documents relating to this agreement to
forfeit.
[**46]
7. Defendant shall also:
a. refrain from possessing a firearm, destructive device, or other
dangerous weapon.
b. refrain from the excessive use of alcohol or the use of any narcotic
drug unless prescribed by a physician.
c. Surrender any passport.
d. Obtain no passport.
e. Abide by any other condition consistent with the purposes of this
Order which Pretrial Services deems appropriate.
8. The defendant is hereby advised of the penalties and sanctions
relating to the violation of any of the foregoing conditions which are
described on Exhibit B hereto. Defendant's attention is particularly
directed to the requirement that he not personally or with or through
others, seek to intimidate a witness or otherwise obstruct justice.
9. Defendant shall sign a form acknowledging that he is aware of the
conditions of his release; promising to obey those conditions to appear
as directed, and to surrender to serve any sentence imposed; and
confirming his awareness of the penalties and sanctions described on
Exhibit B hereto.
EXHIBIT A
United States District Court
District of Massachusetts
U.S. Pretrial Services Office
Electronic Monitoring Conditions
I, , [**47] Case
No., understand that I have been placed in the electronic monitoring
program as a condition of my pretrial release. I further acknowledge
that I will comply with the rules of this program as well as any
additional conditions set by the Court as requirements for my
pretrial release.
I shall reside at , telephone number , until I receive
permission of the Court to change my residence.
I acknowledge the following conditions:
1. I must have a telephone at my residence and provide the
Pretrial Services Office with a copy of my phone bill each
month. I understand that I may not have special phone
services/equipment (i.e. call waiting, call forwarding,
answering machine, cordless phone, etc.)
2. I will provide my Pretrial Services Officer with an itinerary
of my schedule and not deviate from it without approval. I
understand that I am required to remain at the above address at
all times unless granted prior approval by the Pretrial Services
Officer in the following circumstances:
[**48] [*1193]
3. In the event of an emergency, I will attempt to notify
Pretrial Services at prior to leaving the above address. I
will contact Pretrial Services immediately about this emergency
upon the earliest opportunity. I will be expected to provide
documented proof of the emergency.
4. I will provide Pretrial Services with copies of paycheck
stubs, medical and dental appointment verifications and such
other documentation as may be required.
5. I understand that to insure compliance with the program I
will be monitored by a tamper-proof, non-removable, ankle
bracelet which I agree to wear 24 hours a day during the entire
period of my participation. I understand that this monitoring
will be accomplished by a receiver attached to my residence
telephone [**49]
connected electronically by common carrier to a computer at
Guardian Technologies, Inc. I may also receive random telephone
calls and personal visits by a Pretrial Services Officer to
which I agree to respond as directed.
6. I agree to notify Pretrial Services immediately of telephone
or equipment failure.
7. I acknowledge that the loss of a receiving signal, the
receipt of a tamper signal, or the receipt of a signal
indicating absence from the residence, is evidence of a
violation. Physical evidence indicating the monitoring device
has been tampered with is a violation. I agree that a violation
determined by the monitoring equipment will be considered
evidence of a bail violation and a computer printout will be
used as evidence in a violation hearing.
8. I agree to hang up the telephone immediately when I hear a
clicking sound caused by the receiver/dialer. I will inform my
caller that I will call back in five minutes. My family and I
agree to limit calls to five minutes and leave the telephone
open for five minutes between each call. In no case will the
telephone be taken off the hook.
9. I realize that it will be necessary for the monitoring device
to be attached to my [**50]
residence telephone and that it will be necessary during the
period of this program for Pretrial Services Officers to
maintain or inspect this equipment as they determine necessary.
10. I understand that I will be held responsible for any damage,
other than normal wear, to the equipment installed in my
residence. If I do not return the equipment, or do not return it
in good condition, I will be charged for its replacement or
repair. I further understand that the United States and Guardian
Technologies, Inc. are not liable for any damage incurred as a
result of my wearing or tampering with the monitoring device.
11. The charges incurred for telephone calls from my residence
phone and the expenses incurred for electricity used to monitor
my participation shall be paid by me.
12. I understand that I cannot go beyond 150 feet from the
receiver (telephone) or a violation will be detected.
13. Additional conditions/instructions:
[**51]
I have read or had read to me the above and have been given an
opportunity to request clarification from the Pretrial Services
Officer. I understand the procedures I am to follow. I understand
that if I should violate any of these terms it shall be deemed a
violation of my pretrial release and I shall be subject to arrest [*1194]
and return to court as a violator subject to additional penalties. I
fully understand these rules and I will abide by them.
Defendant/Date
Pretrial Services Officer/Date
EXHIBIT B
Advice of Penalties and Sanctions
Violation of any of the foregoing conditions of release may result
in the immediate issuance of a warrant for the defendant's arrest, a
revocation of release, an order of detention, as provided in
18 U.S.C. § 3148, and a prosecution for contempt as provided in
18 U.S.C. § 401 which could result in a possible [**52] term
of imprisonment and/or a fine.
The commission of any offense while on pretrial release may result
in an additional sentence upon conviction for such offense to a term
of imprisonment of not less than two years nor more than ten years,
if the offense is a felony; or a term of imprisonment of not less
than ninety days nor more than one year, if the offense is a
misdemeanor. This sentence shall be consecutive to any other
sentence and must be imposed in addition to the sentence received
for the offense itself.
18 U.S.C. § 1503 makes it a criminal offense punishable by up to
five years in jail and a $ 250,000 fine to intimidate or attempt to
intimidate a witness, juror or officer of the court;
18 U.S.C. § 1510 makes it a criminal offense punishable by up to
five years in jail and a $ 250,000 fine to obstruct a criminal
investigation;
18 U.S.C. § 1512 makes it a criminal offense punishable by up to
ten years in prison and a $ 250,000 fine to tamper with a witness,
victim or informant; and
18 U.S.C. § 1513 makes it a criminal offense punishable by up to
ten years in jail and a $ 250,000 fine to retaliate against a
witness, victim or informant, or threaten or attempt to do so.
It is a [**53]
criminal offense under
18 U.S.C. § 3146, if after having been released, the defendant
knowingly fails to appear as required by the conditions of release,
or to surrender for the service of sentence pursuant to a court
order. If the defendant was released in connection with a charge of,
or while awaiting sentence, surrender for the service of a sentence,
or appeal or certiorari after conviction, for:
(1) an offense punishable by death, life imprisonment, or
imprisonment for a term of fifteen years or more, the defendant
shall be fined not more than $ 250,000 or imprisoned for not
more than ten years, or both;
(2) an offense punishable by imprisonment for a term of five
years or more, but less than fifteen years, the defendant shall
be fined not more than $ 250,000 or imprisoned for not more than
five years, or both;
(3) any other felony, the defendant shall be fined not more than
$ 250,000 or imprisoned not more than two years, or both;
(4) a misdemeanor, the defendant shall be fined not more than $
100,000 or imprisoned not more than one year, or both.
A term of imprisonment imposed for failure to appear or surrender
shall be consecutive to the sentence of imprisonment for any [**54] other
offense. In addition, a failure to appear may result in the
forfeiture of any bail posted.
Acknowledgement of Defendant
I acknowledge that I am the defendant in this case and that I am
aware of the conditions of release. I promise to obey all conditions
of release, to appear as directed, and to surrender for service of
any sentence imposed. I am aware of the penalties and sanctions set
forth above.
[*1195]
Signature of Defendant
Address
City and State Telephone
Directions to United States Marshal
() The defendant is ORDERED released after processing.
() The United States marshal is ORDERED to keep the defendant in
custody until notified by the clerk or judicial officer that the
defendant has posted bond and/or complied with all other conditions
for release. The defendant shall be produced before [**55] the
appropriate judicial officer at the time and place specified, if
still in custody.
Date:
Judicial Officer
EXHIBIT C
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA V. BIAGIO DIGIACOMO
JUN 23, 1990
CRIMINAL #90-65-WF
BBO #151800
LIST OF PERSONS TO VISIT BIAGIO DIGIACOMO
The list herein contains names of primary family members, and some
neighbors and friends to be allowed to visit Biagio DiGiacomo, in the
event that he is released to his home.
| Assunta Cacciatore |
Jerry Cacciatore |
| Andrea Cacciatore |
Eugenia Cacciatore |
| Crocetta Cacciatore |
Deborah Pagliucci |
| Michael Pagliucci |
Denise Baglio |
| Jack Baglio |
Linda Petrillo |
| Michael Petrillo |
Michael Petrillo, Jr. |
| Dominic Petrillo |
Carmella Rubino |
| Vincent Rubino |
Gelsomina Rubino |
| Anthony Rubino |
Nancy Fratorolli |
| Donato Fratorolli |
Angelo Castellano |
| Angela Castellano |
Florence Leone |
| Carmen Castellano |
Raymond Busiemi |
| Mary Busiemi |
Josephine Busiemi |
| Betty Busiemi |
Nancy Chaiara |
| Amadeo Chaiara |
Corey Chaiara |
| Betty Chiara, Jr. |
Benedetta Caramazza |
| Giuseppina DiGiacomo |
Salvatore DiGiacomo |
| Filippo Leonforte |
[**56] Of
course, counsel and those associated with the preparation of the defence
of Mr. DiGiacomo should be allowed to visit him.
[*1196]
Respectfully submitted, by his attorney,
/s/ Richard M. Egbert
Richard M. Egbert
125 Summer Street
17th F