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finding defendants indicted as racketeering co-conspirators in the Boot Camp gang to be criminally responsible for acts committed by other members and associates because they had adopted the goal of furthering the gang's criminal enterprise
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5:03-CR-243 (NAM)
September 17, 2003
HON. GLENN T. SUDDABY, United States Attorney, OF COUNSEL, JOHN G. DUNCAN, JOHN M. KATKO, Assistant U.S. Attorneys, Syracuse, New York, FOR THE UNITED STATES.
CRAIG P. SCHLANGER, ESQ., Syracuse, New York, FOR THE DEFENDANT BARNETT.
THOMAS D. MARRIS, ESQ., Syracuse, New York, FOR THE DEFENDANT BETSY.
DONALD E. KELLY, ESQ., Syracuse, New York, FOR THE DEFENDANT EDWARDS.
KENNETH M. MOYNIHAN, ESQ., Syracuse, New York, FOR THE DEFENDANT OTHMAN.
LAURENCE A. WANGERMAN, ESQ., Syracuse, New York, FOR THE DEFENDANT EDWARD THOMAS.
A. SHELDON GOULD, ESQ., Syracuse, New York, FOR THE DEFENDANT HILL.
ROBERT G. WELLS, ESQ., Syracuse, New York, FOR THE DEFENDANT CHEIRON THOMAS.
DETENTION DECISION and ORDER
I. Introduction
On June 24, 2003, the defendants Barnett, Betsy, Edwards, Hill, Othman, and Cheiron and Edward Thomas first appeared on an indictment charging each with participation in a racketeering conspiracy in violation of 18 U.S.C. § 1962(d). Additionally, Betsy, Edwards, Hill and others were charged with participating in a conspiracy to distribute an unspecified amount of marijuana in violation of 21 U.S.C. § 846. Pursuant to 18 U.S.C. § 3142(f)(1)(A) (crime of violence), (f)(1)(C) (drug offense penalized by a sentence exceeding ten years), (f)(1)(D) (multiple prior felonies), (f)(2)(A) (risk of flight), and (f)(2)(B) (obstruction of justice or witness intimidation), the government moved for the detention of all defendants, arguing that they were risks of danger and flight.
As the court stated at the subsequent detention hearing, it was unclear whether the government had articulated the multiple prior provision ((f)(1)(D)) as a basis for detention at the defendants' first appearance. Ordinarily, the government must do so. United States v. Melendez-Carrion, 790 F.2d 984, 993-94 (2d Cir. 1986); United States v. Carswell, 144 F. Supp.2d 123, 136-37 (N.D.N.Y. 2001). Regardless, the court exercised its discretion to permit supplementation since the application of that section is contingent on a defendant's prior criminal record, a fact easily discerned from paragraph 4 of the Pretrial Services Report. Furthermore, there is no appreciable preparation necessary to a defendant's response. See Carswell at 137.
On June 26, the court conducted a detention hearing, and received evidence by proffer and exhibit from the government and Othman, and by proffer from all other defendants. Thereafter, the court issued an oral order detaining all defendants as risks of danger and flight, and indicated that a written decision would follow. The court also offered all parties an opportunity to submit additional legal memoranda addressing one or more of the bail principles articulated by the court during the hearing. Having received no submissions, the court reiterates its conclusions and renders its decision. First, however, it begins with a summary of the charges and evidence followed by an analysis of the nature and characteristics of each defendant.
This decision specifically incorporates the record of the detention hearing, including the court's findings of fact and law, and the uncontroverted facts in the Pretrial Services Reports ("PSR's").
II. The Charges
Each defendant has been charged with participating in a conspiracy to conduct the affairs of an enterprise through a pattern of racketeering activity. See 18 U.S.C. § 1962(c)(d). The enterprise is identified as the Boot Camp, a street gang whose purpose was to control a specific area in Syracuse so that members and associates could exclusively distribute drugs there. In order to secure their turf and further their narcotics activities, Boot Camp members and associates routinely carried and used illegal weapons, engaged in acts of violence, and obtained and sold drugs. Specifically, gang members engaged in murders and attempted murders, violent assaults, shootings, robberies, witness tampering, obstruction of justice and drug distribution. Additionally, several members conspired to distribute marijuana in order to generate income for the gang.
In furtherance of the racketeering conspiracy, these defendants participated in numerous criminal acts; namely: Barnett sold crack cocaine and possessed illegal firearms ( see Overt Acts 1, 10, 40); Betsy possessed crack cocaine and conspired to distribute marijuana ( see Overt Acts 4-5, 9, 31; see also, Count II); Edwards possessed a handgun to protect Boot Camp turf, hid Boot Camp handguns to preclude police detection and seizure, conspired to distribute marijuana, and stabbed a rival gang member in retaliation for a prior murder ( Overt Acts 12, 14, 31, 41; see also, Count II); Hill possessed crack cocaine, conspired to distribute marijuana, participated in the stabbing of a rival gang member in retaliation for a prior murder, and possessed three handguns during a high speed police chase ( Overt Acts 31, 38, 41-42; see also, Count II); Othman sold crack cocaine ( Overt Act 21) Cheiron Thomas possessed crack cocaine, fired a handgun at a rival gang member during a drive-by shooting, and bartered for handguns and ammunition ( Overt Acts 3, 6-7); and, Edward Thomas possessed and sold crack cocaine and illegally possessed a sawed-off rifle ( Overt Acts 25, 29).
Whether or not these defendants directly participated in racketeering acts, they are criminally responsible for acts committed by other members and associates on behalf of the Boot Camp gang. As the Second Circuit has observed, "a conspirator charged with racketeering conspiracy need not commit or even agree to commit the predicate acts that are elements of a substantive count to be found guilty of the racketeering conspiracy, for `it suffices that he adopt[ed] the goal of furthering or facilitating the criminal endeavor.'" United States v. Ciccone, 312 F.3d 535, 542 (2d Cir. 2002) (citing Salinas v. United States, 522 U.S. 52, 65 (1997)). Thus, these defendants are responsible for the criminal acts of others insofar as those acts furthered the ends of the Boot Camp gang. See also, Pinkerton v. United States, 328 U.S. 640 (1946).
By its indictment, the grand jury has determined that sufficient probable cause exists to support the charges. The court is satisfied that their decision has ample evidentiary support since most of the allegations are a by-product of prior police investigations, arrests and convictions. Furthermore, the government's proof is bolstered by the testimony of cooperating witnesses and other physical evidence seized in the past. Accordingly, the weight of the evidence is strong.
If convicted, all racketeering defendants face a possible twenty year sentence while the narcotics defendants face an additional five or ten years. III. The Nature and Characteristics of the Defendants A. Rasue Barnett
At the hearing, the government contended that the maximum penalties were life (racketeering) and twenty years (narcotics conspiracy). However, the court adopts the argument of Craig Schlanger, Esq., counsel for Barnett, that the maximum racketeering penalty is twenty years. The government may be right, but the manner in which the indictment is drafted makes it impossible for the court to resolve the issue at this juncture. As the court noted, this racketeering indictment does not identify by state or federal statutory citation the discrete crimes that are alleged to constitute the pattern of racketeering. Therefore, the court cannot easily discern whether the possible sentence is governed by the generic racketeering penalty or a more severe penalty associated with those crimes that may constitute the underlying racketeering activity. See 18 U.S.C. § 1963(a). As to the maximum narcotics penalties, the indictment does not allege quantity. Accordingly, the maximum marijuana penalty is either five or ten years, depending on the existence of a prior drug conviction.
Barnett, twenty-three years old, is a life-time Syracuse resident, and although never married, has fathered two children who reside with their mother. He has a sporadic work history and never completed high school. He has extensive medical bills generated by two prior gunshot wounds, and a substance abuse problem resulting from repetitive marijuana, ecstacy and cocaine use. He has never received substance abuse treatment.
Although only twenty-three, Barnett has an abysmal criminal record. In 1996, he was convicted of a state drug felony as a youthful offender, and sentenced to a period of local incarceration and five years probation. He failed to abide by the terms of his probation, and it was revoked in 1996 and converted to a period of local incarceration. In the interim, he was again convicted of grand larceny, but received a concurrent sentence with the drug conviction. That sentence was also revoked as a consequence of his probation violation. The probation violations appear to have been filed following his arrest and second felony drug conviction in 1996. He was sentenced to one year in prison, and shortly after his release, he was again arrested on a felony drug charge and a weapons possession charge. As recited in Overt Act 10, the drugs were ten bags of crack and the firearm was a .22 caliber handgun with an obliterated serial number. Barnett plead guilty to the felony firearms offense in 1998, and was sentenced to 1 ½ to 3 years in state prison. Before his final parole discharge in 2001, he was twice paroled and his parole twice revoked. During his parole releases, he was arrested six times, and convicted of a misdemeanor theft offense. Following his discharge, he was again arrested in 2002 for felony possession of two firearms. See Overt Act 40. He plead guilty to two felony firearms offenses on May 12, 2003, and was awaiting sentencing and on bail when arrested in connection with the federal indictment.
At the detention hearing, Barnett argued that he would benefit from drug treatment and that there were conditions of release that would ameliorate his risks of flight and danger.
B. Akim Betsy
Betsy, twenty-five years old, is a life-time Syracuse resident, and although never married, has fathered two children who reside with their mothers. He has a sporadic work history and limited education. He has $17,000 in liabilities, no assets, and is supported by his mother and father. He reports a substance abuse problem with alcohol, but denies problems with mood altering substances. His mother disagrees and states that he is currently receiving treatment for alcohol and cocaine dependence.
Betsy also has an abysmal criminal record. In 1994, he was adjudicated a juvenile delinquent when he assaulted a swimming pool guard with an aluminum pole. As a juvenile, he also threatened a postal worker with a knife. In 1996, he was arrested for a felony drug charge, convicted in 1997, and sentenced to five years probation. After his arrest and while on bail, but before his plea, he was again arrested on a felony drug charge. That felony arrest was reduced to a misdemeanor, and he was sentenced to a period of local incarceration. During his probationary term, he was arrested six times, and convicted at least once. His adjustment to probation supervision was also terrible as reflected by the numerous violations recited in the PSR. See ¶ 4. After the expiration of his probationary term in 2001, he was convicted of assault in 2002 and a felony drug offense in 2003. In connection with the drug conviction, he was sentenced to 3 ½ to 7 years in state prison, and paroled on March 11, 2003. During this time frame, and while under some form of supervision, Betsy also possessed handguns and crack, and was engaged in a marijuana distribution conspiracy. See Overt Acts 11, 31; Count 2.
Arguing against detention, Betsy emphasized his life-time community ties and his compliance with parole supervision as evidenced by parole's failure to file parole violations. Naturally, the facts belie his parole compliance. He also argued he had "no crimes of violence" which is also ridiculous in light of his prior criminal record.
C. Corey Edwards
Edwards, twenty-four years old, is a life-time Syracuse resident, and although never married, has fathered four children who reside with their mothers. He has a sporadic employment history, has not worked since 1999, and has no explanation as to how he supports himself. He denies a substance abuse history.
Edwards also has an abysmal criminal record. He was arrested and convicted in 1995 of felony trespass. He was then sentenced to five years probation which was ultimately revoked on May 3, 1999. While on bail following his original arrest, he was again arrested for trespass. Following his conviction and while on probation, he was arrested four times, and twice convicted of additional crimes. The first conviction was for theft in 1996, and the second for felonious possession of a loaded handgun. See Overt Acts 12, 14. During this period, five bench warrants were issued because he failed to make court appearances. Additionally, he was under a 1996 conditional discharge in connection with his theft conviction when he committed the additional crimes. That conditional discharge was accompanied by a judicial order that he commit no further crimes, an order he obviously ignored. His 1998 firearms conviction resulted in a local period of incarceration of one year. Following his release, and between 1997-2003, he was arrested fourteen times on a variety of charges, and convicted at least twice. One conviction was for property damage and the other for trespass. Each conviction was accompanied by a judicial order that he not violate the law, and he ignored both orders. On June 10, 2003, he was arrested for weapons possession following a gang assault during which he seriously stabbed another gang member. See Overt Act 41.
In opposition to the government's detention motion, Edwards argued that most of his prior convictions and failures to appear were attributable to "youthful exuberance." He suggested no conditions that would ameliorate his flight and danger risks.
D. Rodney Hill
Hill, eighteen years old, is a near life-time Syracuse resident, and although never married, is an expectant father. Hill resides with his mother who has an extensive criminal record, a serious substance abuse problem and a history of mental illness. Hill has never worked, and is supported by his mother. He denies a substance abuse history, but lied to pretrial officers as is evidenced by failed marijuana and cocaine tests administered during periods of prior supervision. See PSR, ¶ 3. During that time, drug treatment was mandated, and Hill refused to comply.
For one so young, Hill also has an abysmal criminal record. In 1998, he was twice arrested for violent, assaultive behavior as a juvenile. On one occasion, he slashed a victim with a razor, and on the other, he and others attacked a victim and stabbed him. These arrests resulted in a juvenile adjudication, accompanied by a one year probationary term and placement in a juvenile facility. While on probation and in the facility, he tested positive for cocaine and marijuana use and was charged with robbery. The robbery then resulted in a probation violation. In the year following his release, he was arrested four times for petty offenses although the arrest dispositions are unknown.
On August 27, 2002, he was arrested on a state drug felony charge, adjudicated a youthful offender in 2003, and placed on five years probation. Within four months, his probation was revoked for a host of violations including drug and weapons possession and gang activity. See Overt Acts 41-42. The weapons possession was a by-product of his arrest on June 8, 2003, when he participated in a high speed chase with the police and threw two loaded handguns from the car. Additionally, he was involved during this time with the marijuana distribution conspiracy charged in Count 2.
In response to the detention motion, Edwards sought to minimize his "youthful record," but offered no suggested conditions to ameliorate his risks of danger and flight.
E. Ridwan Othman
Othman, twenty-four years old, is a life-time Syracuse resident, and although never married, is the father of two children who reside with his former paramour. He currently resides with his twenty-year old girlfriend. For the past two and one-half years, Othman has worked, part-time, for the St. Anthony's Boys and Girls Club as a recreation director, a job that is now unavailable because of his arrest. His employment history before that was sporadic. Othman denies any substance abuse history, but was ordered to participate in outpatient counseling following a prior drug conviction. He was discharged for poor participation and an unwillingness to cooperate.
Othman also has an extensive criminal record. In 1995, he was convicted of criminal trespass and sentenced to a conditional discharge with a condition that he commit no crimes within the succeeding year. He violated the condition when he was subsequently arrested for weapons possession in 1996 although that charge was later reduced, following which he plead and was sentenced to another conditional discharge. He was then arrested three times within the next year, one of which resulted in another plea and yet another conditional discharge. Within four months, he was again arrested, and subsequently plead to yet another violation. In 2000, he was arrested for a state felony drug charge and plead guilty in 2001. See Overt Act 21. He was sentenced to five years probation which was promptly revoked because he failed to abide by the terms of supervision; namely, new arrests, participation in the Boot Camp gang (racketeering enterprise), failure to report, curfew violations and other general conditions. He was sentenced to a period of local incarceration as a result of the violation. See Gov't Ex. 1; PSR, ¶ 4. Furthermore, there is probable cause to believe that he possessed crack and a handgun during 1998, offenses for which he was not prosecuted in state court. See Overt Act 11.
In response to the detention motion, Othman sought to minimize his participation in the 1998 crack and gun possession overt act. He further argued that he had abandoned the Boot Camp gang, and sought to turn his life around. In support of his argument, he submitted letters of general support from Steven Muhammad and others. Muhammad is the Outreach Coordinator for the Syracuse Partnership to Reduce Juvenile Gun Violence. Also, a favorable letter was submitted by Akua Goodrich, Program Director, who attested to Othman's participation in a program to reduce violence in the Syracuse community. While the court welcomes the comments reflected in the letters, it is also true that Othman was engaged in the earlier noted behavior that resulted in his probation violation during much of the same period. Other than to argue that he was a good release candidate, Othman suggested no specific conditions of release that would ameliorate his danger and flight risks.
F. Cheiron Thomas
Cheiron Thomas, twenty-five years old, is a life-time Syracuse resident and although never married, is the father of one child and the expectant father of another, both a by-product of his relationship with a paramour. He lied in the pretrial services report when he stated that he resided with his parents. In fact, he lives with his paramour. For the past two years, Thomas has worked, part-time, for the St. Anthony's Boys and Girls Club as a gym director, a job that is now unavailable because of his arrest. His employment history before then was sporadic. He denies any substance abuse history other than alcohol, and prior supervised drug tests support his statements.
Thomas also has an extensive criminal record. In 1996, he was arrested for three separate felonies, two drug charges and a firearms offense. All three were wrapped into a single plea to a drug felony charge in 1997, and he was sentenced to six months local incarceration and five years probation. His probationary term was discharged in 1999. While on probation, he violated the conditions when he was twice convicted of new crimes — criminal mischief and sexual abuse. He was sentenced to conditional discharges on both occasions, and his probation was apparently not revoked despite the new criminal conduct. Within four months of his discharge, he was arrested three times, one of which resulted in his conviction for criminal possession of a weapon. During the course of his state probationary term, he admitted that he was a member of the Boot Camp gang. Additionally, there is probable cause to believe that during his Boot Camp membership, he possessed crack, shot a rival gang member, and possessed and traded handguns. See Overt Acts 3, 6-7.
In response to the detention motion, Thomas sought to minimize the strength of the government's evidence, and challenged his prior youthful offender adjudication as an appropriate bail consideration. He further suggested that release in his mother's custody would serve as an adequate condition to ameliorate his danger and flight risks.
G. Edward Thomas
Edward Thomas, twenty-two years old, is a life-time Syracuse resident, and has never married nor does he have children. He resides with his parents, and they support him. He has a sporadic employment record, and was expelled from high school because of assaultive and aggressive behavior. He admits a history of marijuana abuse, but lied to pretrial services when he denied cocaine abuse which was amply documented during an earlier probationary term. See PSR, ¶ 3.
Thomas also has an extensive criminal record. Between June 1998 and April 1999, Thomas was arrested seven times on various misdemeanor and felony charges, including possession of stolen property, drug possession, resisting arrest and unauthorized use of a motor vehicle. In July 1999, he plead guilty to a misdemeanor offense in satisfaction of all charges, was adjudicated a youthful offender, and was sentenced to three years probation. Within three months, he violated the terms of his probation by using marijuana and cocaine, failing to report, violating curfew, failing to obtain employment and failing to participate in substance abuse treatment. His probation was revoked, and he was sentenced to a local period of incarceration. In June 2000, he was again convicted of a misdemeanor offense and sentenced to a conditional discharge, including a condition that he not violate the law. Within two months, he was arrested on a state felony drug charge, and convicted the following May. While on bail, he was arrested four times before he was finally sentenced to five years probation. After the probationary sentence was imposed, he was convicted on two of the earlier arrests, one for criminal mischief and one for weapons possession, and each was accompanied by a local jail sentence. Finally, his 2001 probationary sentence was revoked in August and he was sentenced to one year in prison. Following his release, he was arrested three more times for misdemeanor offenses, all of which were pending when he was arrested on the federal charges. During his sojourns into state criminal court, bench warrants were issued on thirteen occasions because he failed to appear as ordered. Furthermore, in 2001, he possessed an illegal sawed-off rifle in furtherance of his participation in the Boot Camp racketeering conspiracy. See Overt Act 29.
In response to the detention motion, Thomas contested the accuracy of his bench warrant history and suggested that release in his mother's custody would serve as an adequate condition to ameliorate his danger and flight risks. He further argued that the state court judges had released him on bail, a decision this court should support by releasing him on the federal charge.
IV. Bail Principles
Because of the charges and the unique circumstances of several defendants, the court first generically summarizes the bail principles and then addresses the application of others.
A. General
After arrest, release on bail is governed by 18 U.S.C. § 3142. See also, Fed.R.Cr.P. 46(a) . When the charge meets any of the criteria recited in the statute ( see 18 U.S.C. § 3142(f)(1)(A-D) and (f)(2)(A-B)), the judicial officer must hold a hearing to determine whether there are release conditions that will reasonably assure future appearance and the safety of others and the community ("flight" and "dangerousness"). § 3142(f). The evidence may be introduced by proffer since normal evidentiary rules do not apply. 18 U.S.C. § 3142(f); United States v. Ferranti, 66 F.3d 540, 542 (2d Cir. 1995) (citing United States v. Salerno, 481 U.S. 739, 743 (1987)). Following the hearing, the court must release defendants unless it finds that there are no conditions or combination of conditions that will reasonably preclude flight or dangerousness. § 3142(e).
Under specified circumstances, the statute creates a rebuttable presumption that there are no conditions that will preclude flight and dangerousness. 18 U.S.C. § 3142(e). Despite that presumption, the government retains the burden of proof, by clear and convincing evidence as to dangerousness and by a preponderance of the evidence as to flight. § 3142(f); United States v. Ferranti, 66 F.3d at 542; United States v. Chimurenga, 760 F.2d 400, 405-06 (2d Cir. 1985). Clear and convincing evidence is more than a preponderance, but means something less than "beyond a reasonable doubt," instead requiring "that the evidence support such a conclusion with a high degree of certainty." United States v. Chimurenga, 760 F.2d at 405 (quoting Addington v. Texas, 441 U.S. 418, 431 (1979)).
If defendants present rebuttal evidence, the presumption does not disappear completely, but continues to be weighed along with other factors. United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir. 1991). Those other factors are recited in the statute and include the nature and circumstances of the charged offense, the weight of the evidence, the nature and characteristics of the defendants, the nature and seriousness of the risk to the community, and the risk of flight. 18 U.S.C. § 3142(g); see also, United States v. Jessup, 757 F.2d 378, 384 (1st Cir. 1985).
As to flight and danger, various considerations govern the court's decision. In order to detain for flight, the court must determine: (1) whether defendants are likely to flee the jurisdiction if released; and, (2) whether any release conditions will reasonably guard against that propensity. 18 U.S.C. § 3142(e); United States v. Berrios-Berrios, 791 F.2d 246, 250 (2d Cir. 1986). Factors pertinent to that inquiry may include: a severe sentence, an extensive criminal history, a general lack of ties to the community, hidden assets, and the use of false names. United States v. Jackson, 823 F.2d 4, 7 (2d Cir. 1987).
Regarding dangerousness, the Bail Reform Act is the Congressional expression of concern about a group of dangerous defendants as to whom neither stringent release conditions nor the prospect of revocation of release can reasonably assure the safety of the community. Thus, "[w]here there is a strong probability that a person will commit additional crimes if released, the need to protect the community becomes sufficiently compelling that detention is, on balance, appropriate." United States v. Colombo, 111 F.2d 96, 98-99 (2d Cir. 1985). In assessing dangerousness, it is not necessary that defendants personally engaged in dangerous acts. Id. at 98. And, simply prohibiting defendants from "committing further crimes" as a condition of release is not sufficient to protect the public from dangerousness. Id. at 100, see also, United States v. Ferranti, 66 F.3d at 544. Furthermore, release in cases involving dangerousness risks injury to others while release in cases involving flight risks only a loss of a conviction. United States v. Orena, 986 F.2d 628, 630 (2d Cir. 1993). So too, the possession of a dangerous weapon demonstrates a capacity for violence. Id. at 630.
Recidivism was also a substantial motivating factor leading to the Congressional enactment of the Bail Reform Act. As the Supreme Court observed in United States v. Salerno, 481 U.S. 739, 742 (1987), "[r]esponding to the `alarming problem of crimes committed by persons on release,' Congress formulated the Bail Reform Act of 1984 as the solution to a bail crisis in federal courts." (internal quotation marks omitted). The Court upheld the Act's provisions permitting detention of those who are dangerous as long as procedural safeguards are met. Id. at 750. And again, elaborate conditions dependent upon good faith compliance are sometimes insufficient when a defendant's criminal history provides no basis for believing good faith will be forthcoming. United States v. Tortora, 922 F.2d 880, 886-87 (1st Cir. 1990).
B. Specific Principles
1. Detention Authority Limited to Charged Crimes
At the detention hearing, the court began by reciting the bases for the government's detention motion, referring the parties to this court's previous decision in United States v. Carswell, 144 F. Supp.2d 123 (N.D.N.Y. 2001). The court also provided the parties an opportunity to supplement the record, but none did. The first issue is whether the indictment charges crimes that empower the court to conduct a hearing and detain. Carswell at 128-130. The government contends that the indictment charges a crime of violence, a drug offense penalized by more than ten years, and offenses in which the defendants are serious flight risks and serious risks to obstruct justice or to threaten, injure or intimidate witnesses. See 18 U.S.C. § 3142(f)(1)(A), (f)(1)(C), (f)(2)(A-B). The government also contends that certain defendants have two or more prior felonies that warrant detention. See 18 U.S.C. § 3142(f)(1)(D). Since the court concludes that the racketeering conspiracy does charge a crime of violence, it has the authority to detain in the first instance. Furthermore, all defendants are charged with the racketeering conspiracy and it is, therefore, unnecessary to consider the alternative bases.The court raised the issue ab initio because racketeering, in and of itself, is not a crime of violence as defined in 18 U.S.C. § 3156. Racketeering is defined at 18 U.S.C. § 1961 et. seq. in Chapter 96 of the Code, and Chapter 96 is not specifically included in 18 U.S.C. § 3156(4)(C). However, any offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another is a crime of violence, as is any felony that by its nature involves a substantial risk that in the course of committing the offense, physical force may be used against the person or property of another. 18 U.S.C. § 3156(4)(A-B).
As the court noted, the analysis of whether racketeering is a crime of violence is further complicated in this instance because the indictment does not recite the statutory basis for the charged overt acts, and in this Circuit, the court is limited to the crimes charged. See Carswell, 144 F. Supp.2d at 129-30 (citing, inter alia, United States v. Chimurenga, 760 F.2d 400, 4005 (2d Cir. 1985)). Therefore, there is an issue as to what has actually been charged.
Here, each defendant has been charged with engaging in a racketeering conspiracy in violation of 18 U.S.C. § 1961(d). In turn, § 1961(d) refers to a conspiracy to violate any of the preceding subsections, § 1961(a-c). These defendants have been charged with conspiring to violate § 1961(c), which, as relevant, provides:
It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conductor participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity . . .
The enterprise is the Boot Camp, and each defendant is charged as either a member or associate of the gang. It is unnecessary that an enterprise constitute a legal entity as long as the defendants were associated in fact. See 18 U.S.C. § 1961(4). Next, the gang members must have conspired to conduct Boot Camp affairs, directly or indirectly, through a pattern of racketeering activity. Racketeering activity is defined at 18 U.S.C. § 1961 (1) and includes: acts or threats involving murder; robbery; felonious drug dealing; obstruction of justice; and, witness tampering and retaliation. With the exception of drug dealing, each of these offenses have elements involving the use, or threatened use, of physical force, or are offenses involving a substantial risk that physical force against another may be used. Therefore, each is a crime of violence, and the grand jury has found probable cause to believe that each defendant conspired to carry on the affairs of the Boot Camp gang through these acts of violence. For purposes of detention authority, it is sufficient that the indictment specifies the racketeering conspiracy alone, as long as it is accompanied by a factual recitation of racketeering activity that permits the court to make findings concerning violent crime. As long as that precondition is met, the indictment charges a crime of violence, and the court is empowered to conduct the detention hearing and detain.
2. Statutory Presumption
The bail statute creates a different rebuttable presumption in two alternative situations. 18 U.S.C. § 3142(e). It is presumed that no conditions will reasonably assure safety and appearance if the court finds probable cause to believe that a defendant has committed a drug offense penalized by a sentence of ten years or more or carried or used a firearm in furtherance of a drug trafficking offense. Id. When a defendant has been indicted for such an offense, a grand jury has already found probable cause sufficient to trigger the presumption. United States v. Rodriguez, 950 F.2d at 87(citing United States v. Contreras, 766 F.2d at 55).
A different presumption limited to community safety is triggered if certain preconditions are met. 18 U.S.C. § 3142(e)(1-3). This recidivist offender provision applies when a defendant is charged federally with an offense defined in 18 U.S.C. § 3142(f)(1)(A-D), and has previously been convicted of a similar offense. State convictions that otherwise meet the criteria constitute predicate felonies. § 3142(e)(1). Application of the presumption requires proof of four statutory preconditions: (1) the defendant is currently charged with an (f)(1) offense; (2) the defendant has previously been convicted of a federal or state offense described in 3142(f)(1); (3) the previous offense was committed while the defendant was on release pending trial; and, (4) not more than five years have elapsed since the defendant's conviction or prison release, if incarcerated. 18 U.S.C. § 3142(e)(1-3).
Here, the only specific drug crime charged is the marijuana distribution conspiracy in Count Two which names Edwards, Hill, Betsy and others. By statute, the penalties associated with a narcotics conspiracy are contingent on those attendant to the object crime. 21 U.S.C. § 846. The object crimes charged in this indictment are possession and possession with intent to distribute marijuana, the penalties for which are recited in 21 U.S.C. § 841. In turn, those penalties vary according to the quantity of marijuana involved.
Since the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), this Circuit has adopted the uniform national view that absent a recitation in the indictment as to quantity, a sentence is limited to the lowest, un-enhanced statutory maximum. See United States v. Outen, 286 F.3d 622, 637 (2d Cir. 2002); United States v. Richards, 302 F.3d 58, 66-67 (2d Cir. 2002). Because this indictment fails to recite quantity, the maximum sentence is thus governed by 21 U.S.C. § 841(b)(1)(D) which provides a maximum sentence of five years, escalated to ten if a defendant has a prior drug conviction. Thus, the presumption does not apply to the marijuana conspiracy defendants unless a particular defendant has a prior drug conviction. See 18 U.S.C. § 3142(f)(1)(C) (a drug offense for which a maximum term of imprisonment of ten years or more is prescribed). Betsy and Hill have such a conviction, but Edwards does not. Accordingly, Betsy and Hill are presumed to be dual risks of flight and danger.
The court recognizes that Hill's prior drug conviction was treated under New York's youthful offender statute. Nonetheless, this court may consider that adjudication for federal bail purposes. See United States v. Carswell, 144 F. Supp.2d 123, 133-35 (N.D.N.Y. 2001).
As to the presumption of dangerousness which attaches to recent recidivist offenders if the statutory preconditions are met, most of the defendants do not have a prior criminal record that implicates that presumption, or at least the government has failed to satisfy its burden of proving that the presumption applies. For example, both Barnettand Edwards are charged with a violent crime (racketeering) and have a prior qualifying (f)(1) conviction within the preceding five years (crime of violence — weapons possession). Although their criminal histories reflect arrests for which they may well have been released on bail when they committed those offenses, the history of those arrests in the Pretrial Services Reports do not establish pretrial release or a disposition date which would permit the court to conclude the offenses were pending when the violent crimes were committed. Since the government did not offer proof in that regard, the court may not apply the presumption.
Having carefully reviewed the criminal records of each defendant, the court concludes that the presumption applies only to Betsy for the following reasons: (1) he is charged with (f)(1) offenses, a crime of violence (racketeering) and a drug offense with a maximum penalty of ten years; (2) he was convicted on January 31, 2003, of a state drug felony, the equivalent of a federal drug felony; (3) he committed that offense on July 17, 2002, while he was admitted to bail following an April 21, 2002, assault arrest; and, (4) not more than five years have elapsed as to that conviction.
In summary, the presumption applies to Betsy in two alternative circumstances, to Hill because of his prior drug conviction, and to no others.
3. Youthful Offender and Juvenile Adjudications
In United States v. Carswell, 144 F. Supp.2d 123, 133-35 (N.D.N.Y. 2001), this court reviewed New York's youthful offender and bail statutes and federal bail principles, and held that youthful offender adjudications constituted admissible evidence at federal bail hearings. In that decision, the court also observed that New York permits its courts to consider juvenile records on the issue of bail. Id. at 134 (citing Matter of Brunetti v. Scotti, 77 Misc.2d 388 (N.Y.Sup.Ct. 1974)). Having provided the parties an opportunity to respond, and the parties having failed to do so despite the objection of some defendants, the court now reiterates its detention hearing ruling, and holds that juvenile and youthful offender records constitute admissible evidence in federal bail proceedings.
4. Judicial Considerations Regarding Bail Conditions as Alternatives to Incarceration
On numerous occasions, this court has articulated those factors it deems critical to the analysis of whether various bail conditions are sufficient to ameliorate the risks of danger and flight particular defendants might pose. Because this case almost universally invokes those factors, the court summarizes them again.
The quintessential factor is whether a defendant will do what the court directs. There are a variety of conditions that could reduce potential danger and flight if a defendant would abide by them. Examples include home confinement, electronic monitoring, curfews, pretrial services or family supervision, drug testing and treatment, and employment or educational mandates. However, none of these conditions will suffice to protect the community or minimize the flight risk if a defendant's past behavior amply demonstrates that he will not honor them. In other words, past behavior best predicts future behavior and whether the court can rely on a defendant's good faith promises. Therefore, an analysis of how a defendant has honored his criminal justice promises in the past is a critical component of the bail analysis.
In this regard, Paragraph 4 of the PSR often provides vital information. If a defendant has a recidivist record, much can be gleaned from that record. Every state conviction accompanied by a conditional discharge sentence imposes a condition that the defendant not engage in new criminal behavior within a specified period. A defendant who violates that condition demonstrates a total lack of respect for the court that imposed it. Every sentence of probation or parole requires a defendant to meet judicially imposed conditions, and violations of either are further evidence of a defendant's inability to comply with judicial mandates and supervision. Evidence of new criminal behavior while other charges are pending inevitably leads to the conclusion that a defendant places his own self-interests above that of the community. In turn, the community has a right to expect courts to protect it. Evidence of bench warrants issued following a defendant's failure to appear demonstrates not only a defendant's flight potential, but also his inability to meet the court's demands.
All of these factors need to be weighed against the severity of the pending charges and the underlying severity of the conduct in terms of the potential harm to the public and the risk that a defendant will abscond. This court has often stated that it is far more concerned with the likelihood of recidivist violent behavior than flight. In that regard, this court has also often stated that there is no more deadly combination than drugs and guns in terms of the community harm caused if a defendant fails to meet the court's release expectations. This case demonstrates a lack of judicial foresight because it does raise an even more deadly combination — drugs, guns and a gang mentality focused on violence in every way imaginable to protect its turf and narcotics activity. Congress has penalized conspiracies because the public harm caused by criminal groups usually exceeds that which an individual can accomplish. There is probable cause to believe that those who belong to the Boot Camp gang have caused extraordinary public harm, thus ratifying the wisdom of that Congressional observation.
A number of these defendants have acknowledged that their behavior may, in part, be the by-product of drug abuse, and have requested that the court place them in this district's High Impact Incarceration Program (HIIP). That program is a short-term substance abuse course administered during a finite period of incarceration. A judicial recommendation authorizing participation is tantamount to a finding that the court would consider release after successful program completion. The court declined to issue such recommendations at the bail hearing because it would not consider release whether those who sought the recommendation successfully completed the program or not.
V. Conclusion
Although various subsections of the bail statute apply to one or more of the defendants, the court concludes that all have been charged with a crime of violence — the racketeering conspiracy — and has limited its analysis accordingly. Although the presumption of community danger and flight is limited in its application to only a few defendants, each of those defendants sought to rebut it, and the court has done nothing more than weigh that as a factor with all of the other factors recited in the statute, including the nature and circumstances of the offenses, the weight of the evidence, and each defendant's history and personal characteristics.
The Boot Camp gang is a menace to that part of the Syracuse community it seeks to control. Law-abiding citizens are not free to engage in the daily activities accorded by right to all people in a democratic society without the well-founded fear that they or their loved ones will find themselves in the cross-hairs of an illegal gun or the victim of a stray bullet. There is overwhelming evidence to support the conclusion that each of these defendants is associated in fact with the Boot Camp gang, has adopted the organizational philosophy dedicated to drugs, guns and violence, and has fostered the gang mentality that has enveloped the community. Each is responsible for the acts of all. Furthermore, each of these defendants has demonstrated that he has no respect for himself, the community, or those whose responsibility it is to protect that community, just as each has demonstrated disrespect for the courts and court-ordered directives to refrain from committing violent crimes. All of these defendants have serious recidivist criminal records and all are confronting a significant prison term, if convicted.
The court recognizes that these defendants are cloaked with the presumption of innocence unless and until a jury decides to remove that cloak. However, the court's bail decision requires that it balance that presumption with the likelihood that the defendants will refrain from violent criminal behavior and appear when the court requires it. Having evaluated the evidence and the individual lives of these defendants, the court has no faith that it can rely on their good faith assurances. Given their past behavior, it would be fool-hearty and dangerous to do so. Accordingly, each defendant is a danger to the community and a flight risk, and no conditions of bail the court can imagine would ameliorate that risk.
Accordingly, each defendant is committed to the custody of the Attorney General or his designated representative for confinement in a corrections facility separate to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal. Each shall be afforded a reasonable opportunity for private consultation with defense counsel. On order of a court of the United States or on request of an attorney for the Government, the person in charge of the corrections facility shall deliver each to the United States Marshal for the purpose of an appearance in connection with a court proceeding.