     10-1200-cr
     United States v. Persico
 1                               UNITED STATES COURT OF APPEALS
 2                                   FOR THE SECOND CIRCUIT
 3
 4                                           SUMMARY ORDER
 5
 6   RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 7   SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
 8   FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1. WHEN
 9   CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
10   EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
11   “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
12   PARTY NOT REPRESENTED BY COUNSEL.
13
14         At a stated term of the United States Court of Appeals for the Second Circuit, held at
15   the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
16   York, on the 12 th day of May, two thousand ten.
17
18   PRESENT:              JON O. NEWMAN,
19                         JOHN M. WALKER, JR.
20                         GERARD E. LYNCH,
21                                        Circuit Judges,
22
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24
25   UNITED STATES OF AMERICA,
26                           Appellee,
27                  v.                                                         No. 10-1200-cr
28
29   MICHAEL J. PERSICO,
30                                            Defendant-Appellant.
31
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33
34   FOR APPELLANT:                   Sarita Kedia (Henry Mazurek, on the brief), New York, N.Y.
35
36   FOR APPELLEE:                    Michael Tremonte, Assistant United States Attorney (Peter
37                                    Norling and Amy Busa, Assistant United States Attorneys, on
38                                    the brief) for Benton Campbell, United States Attorney for the
39                                    Eastern District of New York.

40              Appeal from the United States District Court for the Eastern District of New York

41   (Sandra L. Townes, Judge).

42              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
 1   DECREED that the matter is remanded to the district court with instructions to vacate its

 2   detention order and reconsider defendant’s bail application.

 3          Michael Persico was arrested on March 9, 2010, and charged with participating in a

 4   racketeering conspiracy in violation of 18 U.S.C. § 1962(d), conspiring to and attempting to

 5   commit extortion in violation of 18 U.S.C. § 1951(a), and conspiring to commit wire fraud

 6   in violation of 18 U.S.C. § 1349.        On March 29, 2010, the district court denied his

 7   application for release on bail. Persico now appeals that decision. We assume the parties’

 8   familiarity with the relevant facts and procedural history of this case, and the issues presented

 9   in this appeal.

10          Persico argues that the district court erred by presuming him to be dangerous pursuant

11   to the Bail Reform Act. We agree, and we conclude that this error requires remand.

12          The district court began its decision ordering Persico detained by announcing that

13   Persico was subject to a statutory presumption of dangerousness, saying:

14                 The Bail Reform Act creates a presumption of dangerousness
15                 when the case involves a crime of violence and when the
16                 violence is related to violent conduct . . . it need not be shown
17                 that the defendant personally engaged in violence, nor must the
18                 violent conduct be connected to the activity charged in the
19                 indictment.
20
21   After making this presumption, the court went on to conclude that Persico’s release would

22   have endangered the safety of the community because he “has violent men at his disposal

23   who act in accordance with his orders and directions,” and because “it is clear to this Court

24   that resort to violence is a resort that occurs and that everyone knows it but it only occurs

25   when Michael Persico says that it’s okay to do it.”

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 1          The court erred in presuming Persico to be dangerous. The Bail Reform Act allows

 2   a court to presume dangerousness only if it finds probable cause to believe that the defendant

 3   has committed various specific listed offenses. 18 U.S.C. § 3142(e)(3). Persico was not

 4   charged with any of the crimes set forth in 18 U.S.C. § 3142(e)(3), and he has never been

 5   convicted of a crime of violence. See United States v. Sabhnani, 493 F.3d 63, 75 (2d Cir.

 6   2007) (no presumption of dangerousness applied where the defendant was not charged with

 7   a crime listed in § 3142(e)(3)). The government concedes that no presumption applies, but

 8   downplays the court’s remark about the presumption as a “passing reference.” Moreover,

 9   the government argues both that the court “appropriately plac[ed] the burden of persuasion

10   squarely on the government” and that the court made its findings in support of detention

11   based on “clear and convincing evidence.” But the court’s erroneous reference to the

12   presumption cannot be so easily disregarded. The court deployed the presumption at the very

13   outset of its analysis, coloring all its subsequent rulings. Moreover, the court never corrected

14   or disavowed its application of the presumption, and we cannot say that the court’s error in

15   presuming dangerousness was harmless.

16          The government has argued that, regardless of any presumption, Persico should be

17   detained because he had the “ability to order others to use violence,” and that despite not

18   being a made member of the Colombo crime family he “controls violence” and “is in a

19   position to turn it off and to turn it on.” In support of its argument, the government proferred

20   evidence showing that Persico met several times with high ranking members of the Colombo

21   crime family. It also proffered recorded conversations, including one in which a co-


                                                    3
 1   defendant says he would check with Persico before using violence against a debtor, and

 2   another in which a different co-defendant tells someone that when he asked Persico if he

 3   should use violence against a debtor, Persico laughed and told him not to do that, but instead

 4   to give the debtor a chance to repay a loan, “because this way, now, he can’t say nothin’ later

 5   when we do what we gotta do for our money.”

 6          Persico, for his part, argues that the government offered insufficient evidence that he

 7   “assumed a leadership role in a criminal organization or that he intentionally placed himself

 8   in a position to direct the activities of violent men.” He points out that he has no prior

 9   criminal history, and that most of the ranking members of the Colombo crime family with

10   whom he met were his blood relatives. Significantly, he also argues that the government

11   offered no evidence that he ordered others to use violence – although the government claims

12   to have recorded about 800 conversations related to this case, none of those conversations

13   capture Persico ordering violence. Indeed, Persico argues that the recordings show that

14   whenever others asked him whether to use violence, he discouraged them. He also cites

15   recordings reflecting that he told his co-defendants to stop threatening debtors with violence,

16   and that the only threats he ever condoned were threats of legal action. Along those lines,

17   he says that his allusion to “what we gotta do” referred to resorting to legal action.

18          When reviewing the district court’s decision to detain Persico, we “will not reverse

19   except for clear error, i.e., unless ‘on the entire evidence we are left with the definite and firm

20   conviction that a mistake has been committed.’” Sabhnani, 493 F.3d at 75, quoting United

21   States v. Shakur, 817 F.2d 189, 195 (2d Cir. 1987). Nevertheless, given that Persico has no


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 1   criminal record, that the government offers no direct evidence of Persico either using

 2   violence or directing others to use violence, and that the evidence suggests that Persico used

 3   any influence he had in order to discourage violence, the record at best presents a close case

 4   as to whether the district court’s finding that no conditions of bail could assure the

 5   community’s safety can be sustained.

 6          But we need not determine whether the instant facts require us to reverse the district

 7   court’s ruling, despite the deference due its decision. Because the district court clearly erred

 8   in applying a presumption of dangerousness, and because the district court might well have

 9   released Persico had it not erroneously presumed him dangerous, we remand to permit the

10   district court to reconsider its ruling on the clear understanding that no presumption of

11   dangerousness applies.1

12          For the foregoing reasons, the case is remanded to the district court with instructions

13   to vacate its detention order and reconsider Persico’s application for release pending trial.

14                                       FOR THE COURT:
15                                       CATHERINE O’HAGAN WOLFE, Clerk of Court
16
17
18




     1
      Persico argues that the district court also committed two procedural errors: (1) that the
     district court failed to consider the 18 U.S.C. § 3142(g) factors, and (2) that the court
     failed to provide “written findings of fact” or a “written statement of the reasons for the
     detention” as required by the Bail Reform Act. Because we remand to the district court
     for reconsideration of its decision on separate grounds, it is unnecessary to address those
     arguments.

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