UNITED STATES OF AMERICA - against - VINCENT BADALAMENTI
12 CR 50 (S-1) (CBA)
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
February 15, 2012
POLLAK, M.J.
POLLAK, M.J.:
On Jаnuary 27, 2012, a 14-count superseding grand jury indictment was unsealed that charged defendant Vincent Badalamenti, along with five other alleged members and associates of the Bonanno Organized Crime Family (the “Bonanno Family“), with engaging in racketeering, and racketeering conspiracy over a period of time spanning from January 1, 1999 through November 21, 2011. Among the underlying predicate acts charged in the Superseding Indictment, there are numerous acts of violence alleged, including 7 separate predicate acts of extortionate extension and collection of credit and extortion conspiracy, in violation of
Badalamenti is charged in the Superseding Indictment with being a member of the administration of the Bonanno crime family, at various times serving as captain, acting captain, soldier and associate. According to the government‘s Memorandum dated January 27, 2012, Badalamenti is the “highest-ranking member [of the family] at liberty. . . wield[ing] day-to-day control over all other Bonanno members and associates who are at liberty.” (Gvt Mem.2 at 14). Several confidential sources are expected to testify that Badalamenti rose through the ranks following his induction into the family in the late 1990s, early 2000s, to now become the “Bonanno family‘s ruling administration” (id. at 15) – its acting “street boss.” (Tr.3 at 20). In addition to alleging that Badalamenti is responsible for managing the organization and directing others to conduct criminal activities on behalf of the Bonanno family, the Superseding Indictment charges Badalamenti with four substantive extortion acts, the most recent of which occurred in 2009.
BAIL REFORM ACT
Under the Bail Reform Act,
If 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);
The government has the burden of proving danger to the community by “clear and convincing evidence.”4 United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985) (quoting S. Rep. No. 225, 98th Cong., 1st Sess., at 6-7 (1984), as reprinted in 1984 U.S.C.C.A.N. at 3182, 3188-89). Thus, under the Act, a “court may order a defendant detained
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.”
The Second Circuit hаs 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). Thus, 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 noted in United States v. Bellomo, “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 chargеd 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
Although there is no per se rule requiring detention of leaders of organized crime families charged with racketeering-related offenses, see United States v. Ciccone, 312 F.3d at 543, and “[t]he Court must make a careful and individualized examination of the quality and quantity of the evidence supporting the govеrnment‘s proffer,” United States v. Cirillo, No. 05-CR-212, slip op. at 6 (E.D.N.Y. 2005), aff‘d, 149 Fed. Appx. 40 (2d Cir. 2005) (citing United States v. Ciccone, 312 F.3d at 543), nevertheless, defendants are routinely detained as dangers to the community when the government proffers clear and convincing evidence that they are high-ranking members of an organized crime family, involved in directing crimes of violence.5 See United States v. Cirillo, No. 05 CR 212, slip op. (ordering the detention of a Genovese crime family member detained as a danger to the community, based partly on government‘s proffer
DISCUSSION
A. Danger to the Community
1. Nature and Circumstances of the Offenses Charged
In analyzing the danger posed by defendant Badalamenti, the Court first considers the nature of the crimes charged. See United States v. Cicale, 2006 WL 2252516, at *2. The January 27, 2012 Superseding Indictment alleges that the Bonanno Family is an organized criminal group that constitutes an “enterprise” as that term is defined in
The January 27, 2012 Superseding Indictment charges defendant Badalamenti with four counts of extortion and extortion conspiracy in addition to charging him with RICO and RICO conspiracy. (S-1 ¶¶ 18-49, 67-70). As noted, extortion is a crime of violence under the Bail Reform Act.
In United States v. Cantarella, the court considered and rejected a similar argument to the one Badalamenti makes here. There, the defendant argued that allegations involving conduct that occurred seven to eleven years ago were irrelevant to the determination of whether he now should be detained as a danger to the community. In ruling that defendant remained a threat to society, the court stated that “[s]uch an argument might bear weight if there were no allegations that Defendant had continued to engage in violent conduct. . . .” 2002 WL 31946862, at *2. However, the indictment alleged additional, more recent acts of violence, portraying defendant as a career criminal. Id. Accordingly, the court ordered him detained. Id.; see also United States v. Salerno, 631 F. Supp. at 1372 (rejecting defendant‘s argument that government should be precluded from moving for detention in the current case because defendant had been previously indicted and the government did not move for detention in that case, despite already having knowledge of the alleged facts upon which it based its current detention motion).
With respect to the third predicate act that allegedly occurred within the statute of limitations in 2009, defendant argues that, essentially, the charge is based on a $5,000 loan to someone who is also a member of organized crime. (Tr. at 5). Badalamenti was eventually repaid $3,500, and the alleged crime is that Badalamenti then ordered the collection of the remaining $1,500 through threats of violence. (Id.) Defendant argues that for Badalamenti, who owns a home, has a wife and two children, and manages four buildings from which he collects rents on a monthly basis, to “jeopardize all this to try and collect $1,500 . . . is just quite frankly absurd.” (Id. at 11-12).
In response, the government contends that as the acting street boss of the Bonanno crime family, Badalamenti is not only charged with engaging in a pattern of loansharking going back to 1999, he is also charged with being a leader responsible for directing other members and
Like the defendant in United States v. Cantarella, the government alleges that Badalamenti has been engаged in extortion and loansharking as far back as 1999, through the date of his last conviction, through the 2009 charge, and up until today. Here, the defendant is not only charged with engaging in crimes of violence, one as recently as 2009; he is also facing charges that he is a leader of a violent criminal organization.
2. Weight of the Evidence Against Badalamenti
Turning to the next prong of the test – the weight of the evidence – the parties disagree as to the strength of the government‘s case against Badalamenti.
According to the government‘s submission to this Court, there are at least three cooperating witnesses who will testify as to Badalamenti‘s position within the Bonanno crime family. All of these witnesses are former high-ranking members, including a former acting captain of the Bonanno family, who will testify about Badalamenti‘s induction into the family, and his promotion through the ranks to the ruling administration. (Gvt Mem. at 15). Their testimony, according to the government, has been corroborated by law enforcement surveillance of the defendant at a “mob social club” that he controls, meeting with various members and associates of not only the Bonanno family, but of other families as well. (Id.) A fourth cooperating witness will testify that in connection with Badalamenti‘s loansharking business, the defendant, in or about 1999, extended a $50,000 loan to this witness at the rate of 1.5% per week. This loan was apparently made in connection with an attempt to dissolve this witness‘s association with the Colombo crime family, and when it apрeared that the Colombos would not release the witness, Badalamenti threatened the witness, demanding that the loan be repaid. (Id. at 19-20).
A fifth cooperating witness will testify about the third and most recent racketeering act in which Badalamenti sent three Bonanno family soldiers – Anthony Calabrese, Arthur Tarzia, and acting captain Vito Balsamo – to intimidate this fifth witness into paying the debt. (Id.) The witnеss, acting at the direction of the government, later wore a recording device and attempted to pay the money back to Badalamenti. According to Badalamenti, the money had already been paid on behalf of the witness by another individual. (Id.) This conversation, captured on tape, provides corroboration for the witness’ testimony and the 2009 extortion charge.
Witnesses for the government will also testify that Tarzia and Robert Bilello regularly collected loanshark payments on behalf of Badalamenti, and that in July 2011, law enforcement agents surveilled Badalamenti at Bilello‘s wake, along with Tarzia and co-defendants Balsamo and Calabrese. (Id. at 16-17). Other surveillances conducted by thе agents have placed Badalamenti in the company of Balsamo, Tarzia, and Anthony Graziano as recently as October 18, 2011. (Id.) According to the government, “multiple cooperating witnesses” will testify that Badalamenti is the acting street boss of the Bonanno crime family, and that he has numerous “members and associates at his disposal, both to engage in witness tampering and to continue to engage in the crimes that he‘s been engaging in for the past decade.” (Tr. at 25). Not only will these witnesses testify that he collects money from people, but the government has a recorded conversation confirming Badalamenti‘s role in the family. (Id.)
In responding to the government‘s evidence, counsel for defendant simply asked, “How do I defend against that in an argument? How do I do that?”
3. History and Characteristics of Badalamenti
Under the Bail Reform Act, courts considering a defendant‘s “history and characteristics” must consider the defendant‘s “physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings.”
Here, Badalamenti was previously convicted of extortion in September 2003, in violation of
4. Nature and Seriousness of the Danger Posed by Badalamenti‘s Release
Turning to the fourth factor – “the nature and seriousness оf the danger to any person or the community that would be posed” by defendant‘s release – this factor “‘essentially directs the court to predict, based on an assessment of the charges against the defendant, and the defendant‘s history and characteristics, whether he would pose a harm to the community at large or to any specific individuals.‘” United States v. Cicale, 2006 WL 2252516, at *6 (quoting United States v. Gotti, 358 F. Supp. 2d 280, 287-88 (S.D.N.Y. 2005)).
First, the acts alleged to have been committed – extortion and extortion conspiracy – are clearly acts of violence. Second, because of his rank within the family, he commands the ability to order others to engage in crimes on his behalf and on behalf of the family. See United States v. Salerno, 631 F. Supp. at 1375 (noting that the activities of a criminal enterprise do not cease upon the arrest of its principals and the illegal businesses require constant attention and protection, which provides “a strong incentive . . . 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“). Thus, the Court finds, based on all the circumstances, that there is a clear danger that Badalamenti will continue to pose a harm to the community if released.
5. The Government Has Satisfied Its Burden
In reviewing the government‘s proffer, the Court finds, by clear and convincing evidence, that Badalamenti has been charged in the Superseding Indictment with crimes of violence – extortion. The fact that the most recent charge relates only to the collection of a $1,500 dеbt does not alter the fact that the Indictment charges Badalamenti with sending three individuals to collect this amount with threats of violence. Similarly, the fact that two of the
Even if he had not been charged with personally participating in these acts of violence, the government has presented convincing evidence, which has not been controverted, that Vincent Badalamenti is the acting street boss of the Bonanno crime family, with day-to-day control over its members and assоciates, and as such poses a serious danger to the community.8 The government‘s evidence includes: (1) the statements of several cooperating witnesses that Badalamenti is the acting street boss of the family, having risen in the ranks during the last 20 years; (2) the fact that he has been observed on numerous occasions meeting with various members and associates of the Bonanno crime family and other crime families in a manner common for leadership figures in organized crime; and (3) the statements of several other cooperating witnesses linking Badalamenti to not only the extortions charged in the indictment but with an ongoing loansharking business for Badalamenti‘s benefit and that of the Bonanno crime family, with evidence thаt this was a routine practice to use threats of violence to collect such debts. These are all factors that the courts have considered in finding that a defendant is an acting street boss of a crime family. See, e.g., United States v. Ciccone, 312 F.3d at 538; United States v. Defede, 7 F. Supp. 2d at 395.
In United States v. Ciccone, the Second Circuit upheld the detention order of this Court, rejecting the defendant‘s argument that the court should only consider the predicate acts ascribed to him in the indictment and not the objects and means of the enterprise as a whole. 312 F.3d at
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 proffered a convincing case against Badalamenti. The Court finds that the evidence clearly and convincingly establishes that by his own actions, Badalamenti has earned a leadership position within the Bonanno crime 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 628, 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
In addition, the Court has considered that, unlike some organized crime figures that have appeared bеfore this Court, this is not Badalamenti‘s first experience with federal criminal charges. He has been previously convicted of the same type of crime for which he stands charged today.9 Accordingly, this Court finds that for purposes of determining bail in this case, the government has established by clear and convincing evidence that Badalamenti is a day-to-day acting leader of the Bonanno crime family, who controls others through the use of violence and threats of violence, and who engages in extortion. Thus, the Court finds that there are no conditions or combination of conditions that will adequately and reasonably ensure the safety of the community.
Defendant‘s counsel argues that the lengthy period of рretrial incarceration anticipated in this case violates his right to due process and justifies a decision to release him on bail.
B. Risk of Flight
The government also moves for the detention of defendant Badalamenti on risk of flight grounds. The government asserts that Badalamenti and his co-defendants face imprisonment for up to 20 years on each of the charged counts, and that “the significant sentences faced by the defendants give them a substantial incentive to flee. (Gvt Mem. at 52 (citing United States v. Dodge, 846 F. Supp. 181, 184-85 (D. Conn. 1994) (holding that the possibility of a “severe sentence” heightens the risk of flight))). By contrast, the defendant has proposed a bail package consisting of an offer of security in the form of various properties owned by family members10 and the signatures of financially responsible sureties. In addition, defendant emphasizes his ties to the community. Specifically, he has a wife, two children, a house with a mortgage, ownership
However, the Second Circuit has held that where a defendant poses a danger to the community, even stringent conditions beyond those proposed by defendant here, such as home detention and electronic monitoring, are insufficient to protect the community. See United States v. Domo, 275 Fed. Appx. 35, 37 (2d Cir. 2008) (reversing district court‘s decision to release Colombo Family members and associates, given their violent criminal acts, stating, “the idea that ‘specified conditions of bail protect the public more than detention is flawed’ because. . .‘[t]hese conditions would at best elaborately replicate a detention facility without the confidence of security such a facility instills‘“) (quoting United States v. Orena, 986 F.2d at 632). Among the concerns expressed by courts in rejecting bail packages even with stringent monitoring is that in cases involving alleged organized crime associates, these conditions can be easily circumvented, see United States v. Masotto, 811 F. Supp. 878, 884 (E.D.N.Y. 1993), and сan not effectively prevent the defendant from tampering with witnesses or directing others to engage in such conduct. See United States v. Gotti, No. S8 02 CR 743, 2004 WL 2274712, at *3 (S.D.N.Y. Oct. 7, 2004); United States v. Gotti, No. 02 CR 606, 2002 WL 31946775, at *6 (E.D.N.Y. June 10, 2002). Although Badalamenti has not been charged with witness tampering, other Bonanno Family members in the past have been convicted of such conduct, demonstrating that the organization has employed such tactics in the past. See, e.g., United States v. Wong, 40 F.3d 1347, 1376-77 (2d Cir. 1994) (noting that organization‘s “demonstrated willingness” to obstruct justice by intimidating and killing cooperating witnesses supported empaneling an anonymous jury).
Accordingly, even if the Court were to find that the proffered bail package is sufficient to ensure defendant‘s presence in court, the Court has determined that the government has established by clear and сonvincing evidence that due to defendant‘s dangerousness, no combination of conditions will secure the community‘s safety if defendant is released on bail.
After a thorough review of the evidence proffered, the Court finds that the government has established that the defendant poses a danger to the community based on his being charged with crimes of violence, the strength of the government‘s evidence against him, his prior criminal record, including an admission of the use of threats, and the fact of his close association with members of a violent organized crime family. Based on these elements, the Court finds that the government has established by clear and convincing evidence that Vincent Badalamenti would pose a danger to the community if released and that there are no conditions or combination of conditions that would reasonably ensure the safety of the community were he to be released.
Accordingly, the Court Orders the defendant Badalamenti detained pending trial.
SO ORDERED.
Dated: Brooklyn, New York
February 15, 2012
Cheryl L. Pollak
United States Magistrate Judge
Eastern District of New York