Opinion
Case No. 04-60279-CR-ZLOCH.
March 18, 2005
Brian McCormick, Esq., AUSA Michael Dittoe, Esq., AUSA, For Plaintiff.
Edward R. Shohat, Esq. Fred Haddad, Esq., For Defendant.
ORDER
THIS MATTER is before the Court upon Plaintiff United States of America's Motion For Review Of Order To Release (DE 22). The Court has carefully reviewed said Motion and the entire court file and is otherwise fully advised in the premises.
I. Background
On February 22, 2005, a Grand Jury returned a Superseding Indictment (DE 9) indicting Samuel I. Burstyn, Esquire (hereinafter "Defendant") for offenses relating to his alleged conduct as "house counsel" for the Tobin criminal enterprise, an enterprise allegedly engaged in drug trafficking, money laundering and the obstruction of justice. Defendant was indicted on seven counts: conspiracy to commit money laundering, conspiracy to obstruct justice, four counts of obstruction of justice and one count of inducing a false declaration before a Grand Jury.
After his arrest on February 23, 2005, Defendant was brought before United States Magistrate Judge Barry S. Seltzer (hereinafter the "Magistrate Judge") for a detention hearing. At said hearing, the United States of America (hereinafter the "Government") argued bond was improper for Defendant because he was a danger to other persons and the community as well as a flight risk. The Government further argued that no set of conditions, short of detention, could reasonably assure Defendant's appearance before the Court or the safety of individuals and the community. In support, the Government proffered evidence it gathered from members of the Tobin criminal enterprise: Jeffrey Tobin, David Tobin, Leo Manzanilla and Charles Grande. Additionally, the Government included excerpts of recorded conversations Defendant had with David and Jeffrey Tobin, which it argued corroborated the statements of its cooperating witnesses. Finally, the Government proffered evidence implicating Defendant in a conspiracy to murder a witness in the "Miami River Cops" trial.
At the end of the hearing, the Magistrate Judge set conditions for bond, thereby implicitly holding that both the danger to individuals and the community posed by Defendant, as well as the risk of flight he posed, could be adequately addressed by restrictions less severe than detention. The Magistrate Judge then ordered Defendant's release upon the posting of a $200,000 corporate surety bond and a $200,000 personal bond. Thereafter, the Government requested a de novo review of the Magistrate Judge's decision; whereupon, the Magistrate Judge stayed the pre-trial release order pending this Court's review of the matter.
The Magistrate Judge also imposed the following conditions:
1. Reporting to Pretrial Services,
2. Cessation of contact with witnesses,
3. The relinquishment of any weapons,
4. Periodic drug testing,
5. Notify clients of Superseding Indictment (DE 9),
6. No new clients or new cases for current clients,
7. Surrender of passport to Pretrial Services.
II. Applicable Law
The Court notes that the Bail Reform Act, 18 U.S.C. § 3141, et seq. (hereinafter the "Act") governs the release and detention of a defendant prior to trial. 18 U.S.C. § 3142(f)(1) entitles the Government to move for detention if the defendant has been charged with one of the offenses enumerated in the Act which Congress has determined warrant detention. Where a charged offense is described in 18 U.S.C. § 3142(f)(1), there is a rebuttable presumption that no combination of conditions will reasonably assure the safety of any other person or the community. See 18 U.S.C. § 3142(e). Here, the Government concedes that Defendant has not been charged with an offense that triggers a presumption in favor of detention.
Alternatively, as in the matter currently before the Court, the Government may move for detention where the matter involves a serious risk that the defendant will flee or obstruct or attempt to obstruct justice. See id. at § 3142(f)(2). When considering pre-trial trial detention, the Court must decide whether there are conditions of release that will reasonably assure the appearance of the defendant and protect the safety of any other person or the community. See 18 U.S.C. § 3142(e). Factors relevant to this inquiry are: (1) the nature and circumstances of the offense(s), including whether the offense(s) are a crime of violence or involve a narcotic drug, (2) the weight of the evidence, (2) the history and characteristics of the defendant and (4) the nature and seriousness of the danger posed by the defendant's release.See 18 U.S.C. § 3142(g).
A court has the "inherent right to use extreme measures, including the revocation or denial of bail, to protect the trial process." United States v. Fernandez-Toledo, 737 F.2d 912, 918 (11th Cir. 1984); United States v. Wind, 527 F.2d 672, 675 (6th Cir. 1975). Such authority permits courts to detain defendants to ensure the integrity of the trial process. Carbo v. United States, 82 S.Ct. 662, 668 (1962); United States v. Gotti, 794 F.2d 773, 778 (2d Cir. 1986); United States v. Payden, 768 F.2d 487, 489 (2d 1985); United States v. Graewe, 689 F.2d 54, 57-58 (6th Cir. 1982). 18 U.S.C. § 3142(f) (2) (B) codifies this inherent power. United States v. Ippolito, 930 F. Supp. 581, 583 (M.D. Fla. 1996).
"The term `Dangerousness,' as used in the Bail Reform Act of 1984, has a much broader construction than might be commonly understood in everyday parlance. The report of the Senate Judiciary Committee is particularly instructive in delineating the types of conduct which Congress viewed as dangerous:
The concept of defendant dangerousness is described throughout this chapter by the term `safety of any other person or the community.' The reference to safety of any other person is intended to cover the situation in which the safety of a particular identifiable individual, perhaps a victim or witness, is of concern, while the language referring to the safety of the community refers to the danger that the defendant might engage in criminal activity to the detriment of the community. The Committee intends that the concern about safety be given a broader construction than merely danger of harm involving physical violence. This principle was recently endorsed in United States v. Provenzano and Andretta [ 605 F.2d 85 (3rd Cir. 1979)], in which it was held that the concept of `danger' as used in current 18 U.S.C. § 3148 extended to non physical harms such as corrupting a union. The Committee also emphasizes that the risk that a defendant will continue to engage in drug trafficking constitutes a danger to the `safety of any other person or the community.'"United States v. King, 849 F.2d 485, 487 (11th Cir. 1988) (quoting Report of the Senate Committee on the Judiciary, S. Rep. No. 98-225, 98th Cong. 2d Sess. (1984) U.S. Code Cong. Admin. News 3182, 3195-96).
With regards to dangerousness, the Government must present clear and convincing evidence that no conditions of release will reasonably assure the safety of any other person or the community. United States v. Rodriguez, 897 F. Supp. 1461, 1464 (S.D. Fla. 1995). Alternatively, regarding the risk of flight, the Government bears the burden of establishing by a preponderance of the evidence that no conditions will reasonably assure the defendant's presence at trial. United States v. Medina, 775 F.2d 1398, 1402 (11th Cir. 1985). A finding ofeither danger to the safety of any other person or the community or risk of flight is sufficient to detain the defendant pending trial. King, 849 F.2d at 488. If, based on the evidence presented, no conditions will reasonably assure the defendant's presence or the safety of any other person or the community, then the Court must order detention. See 18 U.S.C. § 3142(e). Conversely, if there are conditions that will ensure the appropriate safeguards, then the Court must release the defendant subject to these conditions. See id. at § 3142(c). In any event, nothing in the Act modifies the presumption of innocence.See id. at § 3142(j).
Where a federal magistrate judge conducts a detention hearing and orders pre-trial release, the Government may seek review by the district court. See id. at § 3145(a)(1); see also Ippolito, 930 F. Supp. at 82. Review of the magistrate judge's decision is de novo. King, 849 F.2d at 489-91. The Court must exercise independent judgment as to the facts before it and include findings of fact and reasons for detention. United States v. Gaviria, 828 F.2d 667, 670 (11th Cir. 1987). Here, the Court considers the transcript of the aforementioned hearing, the Pretrial Services report and the parties' pleadings. As no additional facts are needed to supplement the record, the Court declines to conduct an evidentiary hearing. See King, 849 F.2d at 489-91.
The Court notes that in reviewing the parties' pleadings it has reviewed and considered both Defendant's Emergency Motion To Supplement Record (DE 35) — including the Miami Herald article attached therein — and the contents of a Motion filed by the Government under seal.
A. Application of 18 U.S.C. § 3142(g)
1. The Nature and Circumstances of the Offenses Charged
Count One of the Superseding Indictment (DE 9) charges Defendant with conspiracy to commit money laundering. See 18 U.S.C. §§ 1956(a) (1) (B) (i)-(ii), 1957. As to this charge, the Government proffered that Defendant made a loan of nearly $500,000 to the Tobin criminal enterprise which was collateralized by drug proceeds. The alleged loan was to finance a business, entitled Auto Fund, to buy and sell automobiles and thereby generate non-criminal criminal proceeds. The Auto Fund was allegedly operated by Rodney Fund, an associate of the Tobin Criminal enterprise.
The maximum potential penalty is twenty years imprisonment.See 18 U.S.C. § 1956(h).
Count Two charges Defendant with conspiracy to obstruct justice. See 18 U.S.C. §§ 1503, 1512(b)-(c), 1623. This charge spans the breadth of Defendant's alleged attempts to obstruct justice in concert with members of the Tobin criminal conspiracy and to shield those members from prosecution for drug distribution and money laundering. This conspiracy was allegedly effected, in part, through Defendant's advice and counsel to Jeffrey Tobin to flee law enforcement to avoid arrest, and through Tobin's subsequent flight upon said advice.
The maximum potential penalty is five years imprisonment.See 18 U.S.C. § 371.
Counts Three and Five charge Defendant with obstruction of justice and Count Four charges Defendant with inducing a false declaration before the Grand Jury. See 18 U.S.C. §§ 1512(b)(1), 1622-23. More specifically, Count Three charges that Defendant encouraged Charles Grande to falsely testify before the Grand Jury, and Count Four charges that he subsequently did so, regarding certain funds he received from David Tobin. Count Five charges Defendant with attempting to persuade another member of the Tobin criminal enterprise, Leo Manzanilla, to testify falsely to the Grand Jury regarding the source of funds which were part of the money laundering conspiracy.
The maximum potential penalty is ten years imprisonment.See 18 U.S.C. § 1512.
The maximum potential penalty is five years imprisonment.See 18 U.S.C. § 1623.
Count Six also charges Defendant with obstruction of justice.See 18 U.S.C. § 1503. This Count alleges that Defendant protected the property of David Tobin, a home allegedly purchased with drug proceeds, from forfeiture by encouraging Tobin to convey said property to Defendant. The Government avers that Tobin acted pursuant to this advice thereby eluding forfeiture.
The maximum potential penalty is ten years imprisonment.See 18 U.S.C. § 1503.
Count Seven charges Defendant with a final attempt to obstruct justice. See 18 U.S.C. § 1512(b) (3). This Count alleges that Defendant advised the Tobin brothers to conceal from the Government Defendant's role as in-house counsel for the criminal enterprise. The Government proffered excerpts of various recorded conversations between the Tobin brothers and Defendant which it claims corroborate Defendant's involvement in several of the aforementioned charges and other bad acts. For example, the Government claims that in these taped conversations, Defendant indirectly admits to participating in the aforementioned money laundering scheme. The Government also argues that the excerpts confirm its contention that Defendant encouraged Rodney Fund to flee to Israel to avoid prosecution and to protect the enterprise.
The maximum potential penalty is ten years imprisonment.See 18 U.S.C. § 1512.
As noted, Defendant is not charged with violations that would give rise to the rebuttable presumption of 18 U.S.C. § 3142(e). In other words, Defendant has not been charged with a crime involving narcotics, nor has Defendant been charged with a crime involving violence. However, the nature of the alleged crimes are nonetheless very serious. Money laundering is the lifeblood of the narcotics business, see United States v. Botero, 604 F. Supp. 1028, 1033 (S.D. Fla. 1985), and obstruction of justice, an attack on the rule of law, is a traditional ground for pretrial detention, see United States v. LaFontaine, 210 F.3d 125, 134 (2d Cir. 2000).
The Court further notes that the potential penalty faced by a defendant is an incentive to consider flight. See United States v. Falcon, 930 F. Supp. 1518, 1521 (S.D. Fla. 1996). Here, Defendant faces a lengthy prison sentence if convicted. Moreover, if the aforementioned allegations are true, Defendant's willingness to obstruct justice evinces a lack of respect for the rule of law and weighs heavily towards a finding that Defendant is a flight risk and a danger to the community. That Defendant allegedly counseled two members of the Tobin criminal enterprise — Jeffrey Tobin and Rodney Fund — to flee the country magnifies the Court's concern that pre-trial detention may be warranted because no set of restrictions would reasonably ensure Defendant's presence at trial.
The Government suggests that were Defendant convicted of all Counts, the United States Sentencing Guidelines would likely see to it that Defendant was incarcerated for ten to twenty years. However, in the post-Booker era, the guidelines are merely advisory, and, if convicted on all counts and sentenced to serve the maximum terms consecutively, Defendant faces a sentence of over fifty years. See United States v. Booker, 125 S. Ct 738 (2005).
Additionally, that Defendant allegedly counseled other members of the Tobin criminal enterprise to testify falsely before the Grand Jury in an effort to obstruct justice suggests a serious risk that, absent pre-trial detention, Defendant would take further steps to obstruct justice. This conclusion is bolstered in light of the fact that it is now in Defendant's own self-interest, not merely the self-interest of his clients, to engage in the obstruction of justice. The Court finds, therefore, that the nature and circumstances of these charges weigh significantly against pre-trial release.
2. The Weight of the Evidence
As an initial matter, the Court notes that the Grand Jury found that the aforementioned charges were supported by probable cause. Moreover, the Government obtained most of the evidence it has proffered from the testimony of four co-conspirators, Jeffrey Tobin, David Tobin, Charles Grande and Leo Manzanilla, who were part of the criminal enterprise that Defendant is alleged to have served in the capacity of in-house counsel. Their testimony is bolstered by recorded conversations between members of the enterprise, Jeffrey and David Tobin, and Defendant. The nature of the evidentiary sources upon which the Government relied in its proffer — tapes, co-conspirator statements, interviews and so forth — suggest a strong evidentiary basis for the Government's conclusions. The Court, therefore, finds that the weight of the evidence against Defendant is strong. More specifically, as to Defendant's danger to the community, the Court finds that the nature and circumstances of the aforementioned charges, together with the weight of the Government's proffer, illustrate a consistent pattern of activity by Defendant to obstruct justice.
As to Defendant's risk of flight, the Court notes that such a risk is directly related to the weight of the evidence. See United States v. Al-Arian, 280 F. Supp. 2d 1345, 1358 (M.D. Fla. 2003). Thus, the "stronger the government's case, especially if the sentence will be severe, the greater a defendant's incentive to flee." See id. Considering both the severity of the potential penalty and the weight of the evidence against Defendant, the Court finds Defendant has a significant incentive to flee. Of particular concern to the Court is strong evidence suggesting Defendant counseled two of his clients to flee the Court's jurisdiction. The Court is concerned that one who counsel's others to flee in order to avoid prosecution may himself, under the right circumstances, do the same. Thus, the strength of the evidence increases the Court's concern that Defendant is a serious flight risk.
Finally, the Court notes that the weight of the evidence against the Defendant is strong regardless of the Government's proffer as to Defendant's alleged participation in a conspiracy to murder a witness in the "Miami River Cops" trial. Given that the Government claims it has had knowledge of this evidence for nearly two decades, but has never acted, the Court accords that evidence little weight. However, regardless of that portion of the Government's proffer, the Court finds that the Government has a strong case and that this factor weighs towards pre-trial detention.
3. The History and Characteristics of the Defendant
This factor requires the Court to consider the history and characteristics of the defendant, including: character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history of drug or alcohol abuse, criminal history — including record of appearance at court proceedings — and whether the defendant was on probation or pretrial release at the time of the offense. See 18 U.S.C. § 3142(g)(3)(A). Here, a number of factors suggest Defendant is not a flight risk. The record reveals that Defendant has lived for 36 years in South Florida, was educated here and is involved with several cultural, artistic, religious and philanthropic organizations. The record further reveals Defendant is financially responsible for multiple family members within the community and that he has practiced law here for 29 years. Defendant has no criminal history and, therefore, no history of a failure to appear. Additionally, numerous community witnesses and family members all testified Defendant is of upstanding character and is unlikely to flee or pose a danger. This testimony buttresses the argument that any risk of flight Defendant exhibits could be addressed short of pre-trial detention.
The Court notes that the legislative history of the pretrial detention statute cites this factor as having no more weight than the other factors to be considered when making a determination concerning pre-trial detention:
The Committee . . . notes, with respect to the factor of community ties, that it is aware of the growing evidence that the presence of this factor does not necessarily reflect a likelihood of appearance, and has no correlation with the question of the safety of the community. While the Committee considered deleting this factor altogether, it has decided to retain it at this time. However, the Committee wishes to make it clear that it does not intend that a court conclude there is no risk of flight on the basis of community ties alone; instead, a court is expected to weigh all the factors in the case before making its decision as to the risk of flight and danger to the community.
S. Rep. No. 225, 98th Cong., 2d Session 24-25, 1984 U.S. Code Cong. Admin. News, 3207-08.
Conversely, the Court notes that Defendant has a substantial incentive to flee in light of the seriousness of the aforementioned charges and his awareness of strong, damaging evidence against him, including taped conversations. Because the pretrial services report indicates Defendant has substantial financial assets, the Court presumes he has the resources to flee. Furthermore, both parties proffered that Defendant had substantial international business connections. These factors compel the Court to conclude that Defendant poses a significant flight risk. In other words, the Court does not believe that Defendant's ties to South Florida, or the conditions the Magistrate Judge suggests will ensure his appearance, are sufficient to ensure Defendant's presence at trial. Considering the potential penalty Defendant faces, strong evidence suggesting he engaged in the systematic obstruction of justice — including counseling clients to flee the Court's jurisdiction — and his wealth and international contacts, the Court finds Defendant to be a flight risk by a preponderance of the evidence.
As to the question of Defendant's danger to the community, the Court notes that history and characteristics would seem less relevant to the dangerousness analysis than to the risk of flight analysis. See United States v. Young, 647 F. Supp. 1128, 1132 (N.D. Ga. 1986). To the extent Defendant's character, past conduct and the like are relevant to the dangerousness analysis, the evidence proffered by Defendant suggests he is a law abiding citizen unlikely to pose a danger to the community. However, this factor must be weighed against the other enumerated factors.
4. The Nature and Seriousness of the Danger to Any Person or the Community Posed By Defendant's Release
Defendant is alleged to be in-house counsel to an ongoing criminal enterprise involved in a drug distribution scheme. In pertinent part, he is accused of counseling witnesses to testify falsely before the Grand Jury, advising defendants to flee the jurisdiction of the Court, and of moving property into his name to enrich himself and to assist an alleged drug dealer from forfeiting a home purchased with drug money. As noted, the Court has found the evidence in support of these allegations is weighty. The alleged conduct of Defendant, in particular his apparent systematic obstruction of justice, raises serious concerns about what additional steps he might take to avoid conviction. If Defendant was willing to obstruct justice in order to aid his clients, and there is strong evidence that he was, the Court believes he would be willing to obstruct justice were he to be released prior to trial in order to aid himself.
Because of the serious risk that Defendant would obstruct or attempt to obstruct justice prior to trial, which the Court considers a danger to the community, this factor weighs heavily in favor of detention. As such, the Court finds that the conditions set forth by the Magistrate Judge are insufficient to reasonably ensure the safety of the community. The court also finds by clear and convincing evidence that, absent pre-trial detention, there is a serious risk Defendant will obstruct or attempt to obstruct justice. Pre-trial detention, therefore, is proper.
III. Conclusion
The Court has conducted a de novo review of the Magistrate Judge's aforementioned order of pre-trial release. In said review, the Court exercised independent consideration of all the facts properly before it. Upon considering the nature and the circumstances of the offenses charged, the weight of the evidence against Defendant, Defendant's history and characteristics and the nature and seriousness of the danger posed to the community by Defendant's release, the Court concludes that Defendant poses a serious danger to the community and is a serious flight risk.
In sum, the Government has established by clear and convincing evidence that there is no set of conditions, absent pre-trial detention, that can reasonably ensure the community is safe from the serious risk that Defendant will obstruct or attempt to obstruct justice. The Government has also established, by a preponderance of the evidence, that no set of conditions, absent pre-trial detention, can reasonably ensure Defendant's appearance at trial. Therefore, Defendant's pre-trial detention is proper and this Court must grant the Government's request for reversal of the Magistrate Judge's order granting bond.
Accordingly, after due consideration, it is
ORDERED AND ADJUDGED as follows:
1. The Plaintiff United States of America's Motion For Review Of Order To Release (DE 22) be and the same is hereby GRANTED;
2. The Pretrial Release Order of United States Magistrate Judge Barry S. Seltzer, issued from the bench on February 28, 2005, be and the same is hereby VACATED, set aside, and of no further force or effect;
3. Defendant Samuel I. Burstyn shall be committed to the custody of the Attorney General for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal;
4. Defendant Samuel I. Burstyn shall be afforded reasonable opportunity for private consultation with counsel; and
5. Upon order of a court of the United States or request of an attorney for the Government, the person in charge of the corrections facility in which Defendant Samuel I. Burstyn is confined shall deliver Defendant to a United States marshal for the purpose of an appearance in connection with a court proceeding.
DONE AND ORDERED.