10-2494-cr
United States v. Barone


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A D O CUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 23 rd day of Juy, two thousand ten.

PRESENT:         REENA RAGGI,
                 RICHARD C. WESLEY,
                 PETER W. HALL,
                                 Circuit Judges.
-------------------------------------------------------------
UNITED STATES OF AMERICA,
                                 Appellee,

                          v.                                    No. 10-2494-cr

JOSEPH S. BARONE,
                                 Defendant-Appellant,

ANTHONY V. PILIERO,
                                 Defendant.
-------------------------------------------------------------
SUBMITTING FOR APPELLANT:                         Jose A. Muniz, New York, New York.

SUBMITTING FOR APPELLEE:                          John T. Zach, Assistant United States Attorney,
                                                  for Preet Bharara, United States Attorney for the
                                                  Southern District of New York, New York, New
                                                  York.
       Appeal from the United States District Court for the Southern District of New York

(Naomi Reice Buchwald, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court entered on June 11, 2010, is AFFIRMED.

       Defendant Joseph Barone appeals from an order denying him bail pending trial on one

count of conspiracy to commit murder-for-hire, one count of murder-for-hire, see 18 U.S.C.

§ 1958, and one count of possession of firearms by a convicted felon, see id. § 922(g).1 We

review a district court’s bail determination, including its findings of fact pertaining to risk

of flight, danger to the community, and the adequacy of any proposed bail conditions, for

clear error, see United States v. Ferranti, 66 F.3d 540, 542 (2d Cir. 1995), and we will not

reverse “unless on the entire evidence we are left with the definite and firm conviction that

a mistake has been committed,” United States v. Sabhnani, 493 F.3d 63, 75 (2d Cir. 2007)

(internal quotation marks omitted); see also United States v. LaFontaine, 210 F.3d 125, 130

(2d Cir. 2000). Detecting no such error in this case, we affirm.

       Title 18 U.S.C. § 3142(e) permits a district court to order pretrial detention if, after

a hearing, it concludes that “no condition or combination of conditions will reasonably assure

the appearance of the person . . . and the safety of . . . the community.” In seeking pretrial

detention, the government bears the burden of establishing risk of flight by a preponderance



       1
       In light of the district court’s ruling suppressing the firearms that are the basis for the
§ 922(g) charge, the government advises that it will not pursue this charge at trial.

                                                2
of the evidence and dangerousness by clear and convincing evidence. See 18 U.S.C.

§ 3142(f); United States v. Sabhnani, 493 F.3d at 75. The government is not, however,

bound by the rules of evidence, see 18 U.S.C. § 3142(f), and may proceed by proffer, see,

e.g., United States v. Ferranti, 66 F.3d at 542 (citing United States v. Salerno, 481 U.S. 739,

743 (1987)).

       Here, the record supports the district court’s finding that Barone is both a danger to

the community and a flight risk and that there is no combination of bail conditions that would

reasonably assure his presence at trial or the safety of the community.              Barone’s

dangerousness was clearly and convincingly evidenced by facts demonstrating both his

readiness to commit the charged murder-for-hire and his past commission of crimes

involving or threatening violence. At the time of his arrest, Barone was in possession of two

firearms, ammunition, a bulletproof vest, a “how to” guide for conducting assassinations, and

$50,000 in cash, all of which would have allowed the charged murder to be committed. In

addition, in numerous conversations discussing the details of the planned murder with a

confederate, Barone revealed his involvement in a number of past uncharged crimes, notably,

his financing of a narcotics transaction, his authorization of arson, and his use of violence

in furtherance of extortion.

       While the district court acknowledged that Barone’s prior cooperation and his initial

release on bail might be viewed in his favor, it concluded that these factors were outweighed

by (1) the nature of the crimes with which Barone was charged; (2) the strength of the

                                              3
government’s case; and (3) Barone’s other personal characteristics and history, including the

numerous uncharged crimes evidenced by the recordings and the contraband in his

possession at the time of his arrest. See 18 U.S.C. § 3142(g). We identify no error in this

conclusion, let alone clear error. The fact that Barone committed and planned violent crimes

even when purportedly cooperating with authorities signals a degree of dangerousness

unlikely to be deterred by bail release conditions. Further, Barone’s failure to abide by the

conditions of his initial bail release, when considered together with the lengthy term of

incarceration he faced if convicted and the strength of the government’s evidence, supported

the district court’s conclusion that Barone’s proposed bail conditions could not reasonably

assure his appearance at trial. See Anderson v. Bessemer City, 470 U.S. 564, 574 (1985)

(noting that on clear-error review court will not disturb factual findings that are “plausible

in light of the record viewed in its entirety”). Although Barone urges a different view of the

relevant evidence, the law is clear that “[w]here there are two permissible views of the

evidence, the factfinder’s choice between them cannot be clearly erroneous.” United States

v. Salim, 549 F.3d 67, 74 (2d Cir. 2008) (internal quotation marks omitted). In any event,

even if our review were de novo, we would reach the same conclusion as the district court

on the issues of risk of flight and dangerousness.

       To the extent Barone urges us to direct his release on the ground that his seventeen-

month pretrial detention violates due process, we conclude – for substantially the reasons

stated by the district court – that the argument is without merit. As the district court

                                              4
expressly found, Barone bears the brunt of the responsibility for any delay in the

commencement of trial. Given the serious homicide charges at issue, the strong evidence

inculpating Barone in those crimes, and the July 2010 trial date, we decline to order Barone’s

bail release based on the length of his pretrial detention.2

       We have considered Barone’s remaining arguments on appeal and conclude that they

lack merit. For the foregoing reasons, the detention order is AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




       2
        Because Barone has been released from the Special Housing Unit, we need not
consider his argument that such detention supports bail release.

                                               5
