finding that the defendant "has the burden of showing that 'extraordinary and compelling reasons' to reduce his sentence exist"Summary of this case from United States v. Ramirez-Ortega
02 CR 743-07 (CM)
John Michael Hillebrecht, Department of Justice, Michael Gerard McGovern, Assistant United States Attorney, New York, NY, for United States of America. Joseph DiBenedetto, Law Offices of Joseph R. Benfante, New York, NY, for Defendant.
John Michael Hillebrecht, Department of Justice, Michael Gerard McGovern, Assistant United States Attorney, New York, NY, for United States of America.
Joseph DiBenedetto, Law Offices of Joseph R. Benfante, New York, NY, for Defendant.
DECISION AND ORDER DENYING MOTION FOR COMPASSIONATE RELEASE
Peter Gotti was convicted of various federal crimes, including: racketeering; racketeering conspiracy; conspiracy to commit murder in aid of racketeering; and extortion. The Honorable Richard C. Casey sentenced Gotti to 300 months imprisonment, to be served consecutive to a 112-month sentence Gotti was then serving for convictions in the Eastern District of New York. See United States v. Gotti , 02 Cr. 606 (FB) (E.D.N.Y.). According to an estimate provided by the Bureau of Prisons ("BOP"), Gotti completed his Eastern District of New York sentence—and so began serving the sentence imposed in this case—in May or July 2010. He is presently serving his sentence at the Federal Medical Center at Butner, North Carolina. His current scheduled release date is May 5, 2032.
Before the Court is Gotti's motion for compassionate release, filed pursuant to 18 U.S.C. § 3582 and the First Step Act. The Government opposes the motion.
The Compassionate Release Statute
A court may not modify a term of imprisonment once it has been imposed except pursuant to statute. Until last December, a court could not modify a defendant's duly-imposed sentence on compassionate release grounds unless it received a motion from the Bureau of Prisons asking that the court consider such modification. 18 U.S.C.A. § 1B1.13. Reduction in Term of Imprisonment Under 18 U.S.C. § 3582(c)(1)(A) (Policy Statement) (Effective November 1, 2006; amended effective November 1, 2007; November 1, 2010; November 1, 2016; November 1, 2018).
In December 2018, as part of the First Step Act, Congress worked a change to that rule of long standing. A court may now consider a motion for compassionate release made by a defendant who has exhausted his administrative remedies by petitioning the Director of the BOP to make such a motion, assuming the Director fails to act on the inmate's request within thirty days:
[T]he court, ... upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment ...
18 U.S.C. § 3582(c)(1)(A) (emphasis added).
The court may modify a sentence on compassionate release grounds only:
after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that ... extraordinary and compelling reasons warrant such a reduction ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission....
The relevant Sentencing Commission policy statement is found in U.S.S.G. § 1B1.13. It provides that the Court may reduce the term of imprisonment only if three conditions are met:
(i) extraordinary and compelling reasons warrant the reduction, id. § 1B1.13(1)(A) ;
(ii) the defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g), id. § 1B1.13(2) ; and
(iii) "the reduction is consistent with this policy statement. id. § 1B1.13(3).
The Application Notes describe the circumstances under which "extraordinary and compelling reasons exist." Id. § 1B1.13 Application Note 1. One of those is the defendant's medical condition:
(A) Medical Condition of the Defendant.—
(ii) The defendant is—
(I) suffering from a serious physical or medical condition,
(II) suffering from a serious functional or cognitive impairment, or
(III) experiencing deteriorating physical or mental health because of the aging process, that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.
Id. § 1B1.13 Application Note 1(A).
According to a Program Statement issued by the BOP after passage of the First Step Act, a defendant may be considered for a reduced sentence based on a his/her medical condition only if s/he
(i) has an "incurable, progressive illness" or has "suffered a debilitating injury from which [he] will not recover;"
(ii) is "[c]ompletely disabled, meaning the [defendant] cannot carry on any self-care and is being totally confined to a bed or chair;’ " or
(iii) is "[c]apable of only limited self-care and ... confined to a bed or chair more than 50% of waking hours."
U.S. Department of Justice, Federal Bureau of Prisons, Program Statement, OPI OGC/LCI, Number 5050.50, January 17, 2019, Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g), at 5.
It is important to note that a defendant who meets all the criteria for compassionate release consideration listed above is not thereby automatically entitled to a sentence modification. He is simply eligible for a sentence modification. The court confronted with a compassionate release motion is still required to consider all the Section 3553(a) factors to the extent they are applicable, and may deny such a motion if, in its discretion, compassionate release is not warranted because Section 3553(a) factors override, in any particular case, what would otherwise be extraordinary and compelling circumstances.
From at least 1999 up to his conviction in 2002, Peter Gotti was the Acting Boss of the Gambino Crime Family of La Cosa Nostra (the "Gambino Family" or "Family"), one of the most powerful and violent organized crime organizations in New York. In the words of Judge Casey, the "vicious business of the Gambino family is to terrorize, extort, maim and murder in the pursuit of illegal profits." (Tr. Sent'g, Doc. No. 308, 23:7–9). During his tenure as Acting Boss, Gotti "stood atop this organization," "profited from the widespread illegal activities of the Gambino family," and exercised the "authority to decide life or death." (Id. 22:13–23:10.)
The evidence at trial showed how Gotti used his leadership of the Gambino Family to order the death of others and enrich himself. In 1999, Gotti ordered two Gambino Family subordinates, Eddie Garafola and Thomas Carbonara, to hunt down and kill Salvatore ("Sammy the Bull") Gravano, the former Underboss of the Family. Gotti sought to have Gravano murdered because Gravano had cooperated in the prosecution of numerous high-level Gambino Family members, including John Gotti, Sr., the defendant's brother and former Boss of the Family.
At the defendant's direction, Garafola and Carbonara took extensive steps to track down and kill Gravano. They created fake aliases, changed their physical appearances, and took two trips to the West Coast and Arizona, where Gravano was believed to be living. During the trips, Garafola and Carbonara purchased firearms, conducted surveillance, and photographed locations where Gravano might be found. They discussed specific ways to kill Gravano, including detonating a remote-control bomb and recruiting a Gambino Family marksman to shoot Gravano with a high-powered rifle. Ultimately, the plan to murder Gravano was aborted because Gravano was arrested and jailed in 2000 on drug charges.
The trial evidence showed that, after the plan was called off, Gotti was upset because he had spent approximately $70,000 on expenses that Garafola and Carbonara incurred when planning the murder.
The trial evidence also showed Gotti's role in extorting the construction industry. Gotti was a member of the Gambino Family's Ruling Panel and/or its Construction Panel, which oversaw the Family's criminal activities relating to labor unions and the construction industry. During that period, the Gambino Family extorted numerous construction companies and contractors by charging a "mob tax." If a contractor paid the Family cash and/or provided "no-show" jobs for Family members, the Family would use its criminal influence to prevent unions from objecting if the contractor hired non-union workers. If, on the other hand, a contractor or union member refused to go along with the shakedown, the Family would threaten strikes, work stoppages, or even violence. The trial evidence showed, among other things, that Gotti received $10,000 every month or every other month from a businessman at a construction company.
Gotti's Request to the BOP for Compassionate Release
On February 22, 2019, Gotti submitted an administrative request to the BOP, asking the bureau to file a motion for reduction of sentence on his behalf. In his request, he listed the various medical conditions he claimed to be suffering from:
(1) cardiomyopathy with a severe eccentric mitral valve regurgitation ; (2) first degree left bundle branch block ; mild to moderate left ventricular global heart dysfunction with an ejection factor; (3) atrial fibrilation [sic]; (4) likely cancerous growth in at least one of [his] lungs; (5) hypertension cardiovascular disease ; (6) arterial hypertension ; (7) hypothyroidism ; (8) cardiac arrythmia [sic];(9)
congestive heart failure ; (10) chronic obstructive pulmonary disease ; (11) early stage renal insufficiency ; (12) gout; (13) osteoarthritis ; (14) gastric reflux; (15) bilateral glaucoma ; (16) rhematoid [sic] arthritis ; (17) hyper lipidemia, (18) enlarged prostate; (19) total blindness in left eye; (20) hearing loss; (21) anticoagulant therapy ; and (22) borderline anemia.
The form that Gotti filled out instructed him to circle one of three listed grounds for compassionate release: (1) Terminal Medical Condition; (2) Debilitated Medical Condition; and/or (3) Elderly with Medical Conditions. Gotti did not circle any option. The BOP interpreted the Inmate Request to seek relief under either the "Terminal Medical Condition" or the "Debilitated Medical Condition" criteria established by the BOP. Under BOP regulations, a "Terminal Medical Condition" means a "terminal, incurable disease" resulting in a life expectancy of "eighteen (18) months or less." See Program Statement 50.50, Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g) ("PS 50.50"), at 4, available at https://www.bop.gov/policy/progstat/5050_050_EN.pdf. A "Debilitated Medical Condition" requires that the defendant be either "[c]ompletely disabled, meaning the inmate cannot carry on any self-care and is totally confined to a bed or chair" or "[c]apable of only limited self-care and ... confined to a bed or chair more than 50% of waking hours." PS 50.50, at 5.
On March 19, 2019, BOP issued a decision determining Gotti to be ineligible for relief under the "Terminal Medical Condition" criteria because he was "capable of adequately performing at a sufficient level" and his life expectancy was "indeterminate." On May 10, 2019, BOP issued a decision denying Gotti relief on the "Debilitated Medical Condition" ground:
Mr. Gotti, age 79, has a history of hypothyroidism, hyperlipidemia, gout, glaucoma, left eye blindness, hypertension, ischemic cardiomyopathy, heart failure, chronic obstructive pulmonary disease, esophageal reflux, and chronic atrial fibrillation. He uses a pacemaker and a manual wheelchair, but is capable of self-propelling and transferring independently. He remains independent with his activities of daily living and instrumental activities of daily living. As Mr. Gotti is able to independently perform self-care, he does not meet the criteria for a [reduction in sentence] under section 3(b), and his [reduction-in-sentence] request is denied.
(Memorandum for Donna M. Smith, Warden, Low Security Correctional Institution Butner, North Carolina, by Ken Hyle, Assistant Director/General Counsel).
Having exhausted his effort to have BOP file a compassionate release motion on his behalf, Gotti petitioned this court directly, asking it to grant him compassionate release—as is the new found right of defendants under the First Step Act.
Gotti's Motion for Compassionate Release in the District Court
On June 28, 2019, Gotti filed the instant motion seeking a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(1)(A) based on his health. Scant on medical analysis, his motion repleads the ailments he complained of in his Inmate Request, adding "early onset dementia" to the list.
In opposing the motion, the Government relies on Gotti's BOP medical records and the representation of BOP medical staff, including that of BOP Medical Director, Jeffrey D. Allen, M.D. (Memorandum from Jeffery D. Allen, M.D., Medical Director, Federal Bureau of Prisons, dated May 7, 2019). It was Dr. Allen's medical conclusions that Warden Smith and Assistant Director Hyle relied on when they denied Gotti's compassionate release motion. It is also the Government's position that Gotti remains a substantial danger to the community, and that given the seriousness of his crimes, the factors set forth in 18 U.S.C. § 3553(a) continue to weigh strongly against a sentencing reduction.
Gotti has filed no less than seven "supplemental replies," mostly to direct the Court's attention to cases around the country where defendants have had been granted compassionate release on medical grounds, as well as to provide the Court with anecdotal updates about defendant's deteriorating medical condition. Indeed, in his "Seventh Supplemental Reply," counsel suggested that Gotti's medical condition had become so dire that FCI Butner medical staff would now support his motion:
As we have noted before, Peter Gotti is increasingly difficult to understand on the phone. His voice is weak, labored and very faint. He advised today though that his medical team, physicians and nurses at FMC Butner, just told him in a meeting that they will support his efforts for release on either debilitated medical condition or terminally ill criteria, that they don't understand why he is still there, and that he should be home while there is yet time. We are truly afraid he is dying now, he feels he is, and it sounds as though his medical team agrees.
(Seventh Supplemental Reply, 12/10/2019, ECF document #428).
In response to Counsel's representation that BOP would now support Gotti's motion, the Court issued an order directing Gotti to procure a sworn statement from General Counsel of the BOP or someone authorized to speak on the agency's behalf, as to any change in the BOP's position on defendant's motion for compassionate release. The Court also directed the Government to make inquiries of BOP. (Order, 12/13/2019, ECF document #429). The Court's order issued on a Friday and Counsel responded the following Monday:
In our most recent filing on December 10, 2019, we indicated that Peter Gotti has the support of medical personnel at FMC Butner for compassionate release. We are confident though that the BOP officially will oppose compassionate release in its response to the Court's order entered December 13, 2019. We base this on the fact that the BOP consistently opposes compassionate release, and has done so routinely in every one of these cases cited in our filings in this case, in which compassionate release was granted by the particular District Court.
(Eighth Supplemental Reply, 12/10/2019, ECF document #430).
Gotti's counsel having voiced his cynicism about BOP ever changing its official position, the Government weighed in the following day:
The Government has spoken with a Senior Attorney at FMC Butner, where Gotti is housed, and has been advised of the following: (1) the BOP's position on Gotti's application is unchanged from May 2019, when the BOP denied Gotti's application for relief; (2) since May 2019, Gotti has not made any additional request to the BOP for compassionate release; (3) according to the Clinical Director of FMC Butner, Gotti continues to be independent in his activities of daily living, is able to move around to see other inmates and to attend medical appointments, and has not been diagnosed with a terminal illness. The Clinical Director is not aware of any compassionate release recommendation that medical staff at FMC Butner has made following the May 2019 decision.
(Government Letter, 12/17/2019, ECF document #431). Gotti's Motion is Denied
I have no doubt whatever that Gotti—who has the burden of showing that "extraordinary and compelling reasons" to reduce his sentence exist --has established that he suffers from a plethora of serious, debilitating, and progressive medical conditions. However, he has not shown that he has a terminal illness or a serious physical or medical condition that has substantially diminished his ability to provide self-care within the environment of a correctional facility.
Gotti does not have a terminal illness, defined as "a serious and advanced illness with an end of life trajectory," such as "metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia." U.S.S.G. § 1B1.13, Application Note 1(A)(i). Many of Gotti's claimed conditions are heart or lung conditions, which, according to the BOP, are adequately treated and monitored. Gotti has offered no proof to rebut the BOP's determination. As to Gotti's claim that he has a "likely cancerous growth in at least one of [his] lungs," there is no mention of lung cancer in the BOP's decisions, and there is no diagnosis of lung cancer in the BOP's medical records.
Gotti has also not shown that he has a condition that "substantially diminishes [his] ability to provide self-care within the environment of a correctional facility." Indeed, we know from the Clinical Director at Butner that as recently as December 17, 2019 (4 weeks ago), "Gotti continues to be independent in his activities of daily living, is able to move around to see other inmates and to attend medical appointments and"—rebutting his lung cancer claim—"has not been diagnosed with a terminal illness." (ECF document #431, supra. ).
Accordingly, Gotti has not shown that he has a terminal illness or that he has a medical condition that has substantially diminished his ability to provide self-care within the confines of FCI Butner low security correctional facility.
The Government argues that, even if Gotti had met his burden of showing eligibility for compassionate release (and the Court has specifically found that he has not), freeing him would still not be warranted. It is the Government's position that Gotti continues to be a danger to the community, and that reducing his sentence would undermine the goals of sentencing; among them, the need to provide just punishment to Gotti for his serious crimes, and to deter future would be mobsters. Gotti—a sickly, soon to be octogenarian—says the Government's claims are overblown. He claims that he is incapable of future violence, and that in any event, he has seen the errors of his ways and turned away from his lifetime of crime.
I agree with the Government.
A court is not required to reduce a sentence on compassionate release grounds, even if a prisoner qualifies for such reduction because of his medical condition (and it bears repeating, Gotti does not so qualify). The First Step Act was drafted using the word "may," not "must." In the end, whether to reduce a sentence is a matter that rests in the discretion of the court. And as a matter of my discretion, I do not believe that Peter Gotti's sentence should be reduced, notwithstanding his compromised medical condition. Gotti headed one of the most vicious and violent organized crime organizations in New York for a period of years. During that time, the Gambino Family earned millions of dollars from extorting the construction industry, and Gotti personally ordered the death of a Government cooperator, Gravano. In the words of Judge Casey, "the integrity of our justice system demands a sentence sufficient to punish the defendant for his crimes and to deter others who might consider following in his path." (Tr. Sentencing 23:22–25). Reducing Gotti's sentence—when he has served less than half of it—would undermine the goals of sentencing.
And I reject the notion that Gotti is no longer a threat to the community. The danger posed by a Gambino Family leader like Gotti is not that he will personally engage in acts of violence, but that he can command others to do so. As Judge Casey noted at sentencing: "Bosses don't commit violence themselves, they have subordinates to do their bidding." (Tr. Sentencing 24:1–9). Judge Casey's finding that "the public will be best protected from the defendant by putting him in jail for a very long time" remains true today. (Id. 24:7–13).
The motion for compassionate release is denied.
See, e.g. , United States v. Butler , 970 F.2d 1017, 1026 (2d Cir. 1992) ("A party with an affirmative goal and presumptive access to proof on a given issue normally has the burden of proof as to that issue."); cf. United States v. Hamilton , 715 F.3d 328, 337 (11th Cir. 2013)