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Case 1:08-mj-00552-SMG Document 7 Filed 06/27/08 Page 1 of 6 PageID #: 15

U.S. Department of Justice

United States Attorney


Eastern District of New York

271 Cadman Plaza East


Brooklyn, New York 11201

June 26, 2008

By Hand

The Honorable Cheryl L. Pollak


United States Magistrate Judge
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201

Re: United States v. Joseph Caponegro, Sr.


Miscellaneous Docket No. 08-552

Dear Judge Pollak:

The government respectfully submits this letter in


support of its application for pretrial detention of defendant
Joseph Caponegro, Sr. Caponegro is charged in a criminal
complaint with extortionate collection of credit conspiracy, in
violation of 18 U.S.C. § 894(a), related to his assault of a
debtor.

As further detailed herein, Caponegro poses a


significant danger to the community. Specifically, Caponegro has
recently – and repeatedly - discussed engaging in and actually
engaged in violence. In addition, because he faces a lengthy
period of incarceration, he poses a risk of flight.

I. Background

A. Caponegro is Charged with a Crime of Violence

As alleged in the criminal complaint filed against


Caponegro, he is involved in loansharking and other crimes. With
respect to the extortionate collection conspiracy, Caponegro was
actually captured on tape assaulting the debtor, John Doe.
During the recording, John Doe can be heard gasping for air,
asking Caponegro to leave him alone, and stating that he (the
debtor) cannot breathe. This act of violence is but one aspect
of the crime with which Caponegro is charged, which involves a
wider loansharking conspiracy and extortionate collection of
credit from John Doe.
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In addition, after the physical assault, Caponegro


continued to verbally threaten John Doe, telling the debtor: “you
did the wrong thing to the wrong person,” and “you got to live in
fear now, you hear me, you got to live in fear now.” As
discussed in the complaint, these threats to John Doe, which
included thinly veiled references to organized crime, led the
debtor to believe that his failure to pay would result in
physical harm at the hands of Caponegro and/or his organized
crime associates. Caponegro also displayed a handgun and taser
weapon to John Doe, and stated that John Doe was “lucky” that he
didn’t use the taser against John Doe during the assault.

B. Caponegro Has Recently and Repeatedly Discussed


Engaging in Acts of Violence

In addition to the extortion conspiracy with which he


is charged, Caponegro has recently been captured on a wiretap
discussing another extortionate collection and planned assault.1
On April 24, 2008, in a telephone call to a debtor (who is not
the John Doe alleged in the complaint), Caponegro stated that the
debtor had to pay or “I’ll bust your fucking head open.”

Thereafter, in a May 7, 2008 call to the same debtor,


Caponegro stated that the debtor was required to call him or “I’m
leaving the house and I’m coming to hunt you down. You better
call me right the fuck now.” The debtor then called Caponegro
back, during which call Caponegro stated: “You’re going to see my
teeth now. Twenty-two weeks of hell. You don’t think you’re
going to pay for that? I’m a grown motherfucking man -- I’m an
Italian man. I ain’t no motherfucking porkchop. Motherfucker.
Motherfucker.”

In a May 13, 2008 call with another person regarding


the debtor, Caponegro stated: “I am going to tell you something.
I am going to be honest with you. If he does not pay me by seven
o’clock tonight, I am breaking his legs. And don’t be mad at me.
I am telling you right now, I am going to put him in the
hospital. Out of respect for you I am telling you that I am
going to break his legs.” Thereafter, due to the specific nature
of Caponegro’s threats, the Federal Bureau of Investigation
warned the debtor that he was at risk of being assaulted.

1
The excerpts included herein are based on a draft
transcripts of the wiretap conversations.
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The next day, May 14, 2008, Caponegro admitted to


damaging the debtor’s property over the debt. In a call to the
debtor on that date, Caponegro stated:

I cut all the tires on your fucking car just


now.

. . .

If the money ain’t at my motherfucking house


by three o’clock, I’m coming to Newark, I’m
kicking the door down. I’ll bust everybody’s
head in in that house tomorrow. You hear me?
Do you hear me?

Thereafter, also on May 14, in a call with a criminal associate


regarding the debtor, Caponegro stated:

I’m on a fucking warpath. If I could get you


both together tonight I would be in jail.

. . .

He needs four new motherfucking tires. Okay,


and you can tell him I did it. I did it. As
God as my witness I did it. I catch him
tonight I will put him in the fucking
hospital. You hear me?

Later in the conversation, Caponegro reiterated, “I cut his


tires,” and further stated, “come Friday I want what’s mine from
you.” He continued: “I’m telling you this motherfucker I want my
six hundred forty dollars motherfucking tomorrow. If it ain’t at
my house I’m going to fucking Newark. I’ll bust his fucking
father’s head open. This is the frame of mind I’m in. Alright?”

II. Caponegro Should Be Detained

A. The Bail Reform Act

Under the Bail Reform Act, 18 U.S.C. §§ 3141 et seq.,


federal courts must order a defendant’s pre-trial detention upon
determining that “no condition or combination of conditions would
reasonably assure the appearance of the person as required and
the safety of any other person and the community[.]” 18 U.S.C.
§ 3142(e). A finding of dangerousness must be supported by clear
and convincing evidence. See United States v. Rodriguez, 950
F.2d 85, 88 (2d Cir. 1991); United States v. Chimurenga, 760 F.2d
400, 405 (2d Cir. 1985). A finding of risk of flight must be
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supported by a preponderance of the evidence. See Chimurenga,


760 F.2d at 405.

The Bail Reform Act lists the following four factors as


relevant to the determination of whether detention is
appropriate: (1) the nature and circumstances of the crimes
charged, (2) the history and characteristics of the defendant,
(3) the seriousness of the danger posed by the defendant’s
release, and (4) the evidence of the defendant’s guilt. See 18
U.S.C. § 3142(g).

Title 18, United States Code, Section 3156(a)(4)


defines the term “crime of violence” as “(A) an offense that has
[as] an element of the offense the use, attempted use, or
threatened use of physical force against the person or property
of another; (B) any other offense that is a felony and that, by
its nature, involves a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense.” As the legislative history to
the Bail Reform Act makes clear, danger to the community is not
limited to violent crimes, but to any crimes that would harm the
community. See Senate Report at 3195-96 (“language referring to
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”).

B. Caponegro Should Be Detained as a Danger to


the Community

In this case, all four of the Bail Reform Act factors


weigh in favor of detention. First, the nature and circumstances
of the charged crime demonstrate that Caponegro poses a real and
present danger to the community. As discussed above, Caponegro
is charged with an extortionate collection of credit conspiracy,
a charge that clearly constitutes a “crime of violence” for the
purposes of the Bail Reform Act. Not only did he physically
assault John Doe, he acted in concert with others. As the Second
Circuit has long recognized, those associated with organized
criminal groups pose a substantial continuing danger if released
due to their ability to direct others to commit crimes.2 See

2
Notably, the Second Circuit has repeatedly stated that
elaborate conditions of home detention cannot substitute for
incarceration where the defendant is violent or cannot be trusted
to comply with the conditions of release. See United States v.
Millan, 4 F.3d 1038, 1048-49 (2d Cir. 1993) (home detention and
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generally United States v. Gotti, 219 F. Supp. 2d 296 (E.D.N.Y.


2002), aff’d sub nom. United States v. Ciccone, 312 F.3d 535 (2d
Cir. 2002); United States v. Salerno, 631 F. Supp. 1364, 1375
(S.D.N.Y. 1986), order vacated, 794 F.2d 64 (2d Cir.), order
reinstated, 829 F.2d 345 (2d Cir. 1987); United States v.
Colombo, 777 F.2d 96, 99 (2d Cir. 1985).

In addition, the history and characteristics of the


defendant and the seriousness of the danger he poses to the
community weigh in favor of pre-trial detention. Notably,
Caponegro has a lengthy criminal history, including three prior
violent felony convictions.3 Specifically, on August 22, 1979,
Caponegro was convicted in Essex County Superior Court in New
Jersey of armed robbery in the second degree, in violation of the
New Jersey Code of Criminal Justice, Sections 2A:141-1 & 151-5,
and was sentenced to 4 to 6 years’ imprisonment. This offense
involved the robbery at gunpoint of a bank in New Jersey, during
which robbery a semi-automatic weapon was discharged. Caponegro
was then convicted of assault in the third degree in Union
County, New Jersey, on September 4, 1992. Finally, Caponegro was
convicted in Union County, New Jersey on August 7, 2002, of
aggravated assault in the third degree in violation of the New
Jersey Code of Criminal Justice, Section 2C:12-1B(7). This
assault involved Caponegro’s pouring bleach on his wife, causing
her to suffer burns that required medical treatment. The
defendant’s significant criminal history, in addition to his
demonstrated personal capacity for violence, strongly militates
in favor of a permanent order of detention.

Finally, the fourth Bail Reform Act factor weighs


heavily in favor of detention. The evidence of the defendant’s
guilt, which includes a consensual recording of the defendant

electronic surveillance can be circumvented); United States v.


Orena, 986 F.2d 628, 632 (2d Cir. 1993) (holding that home
detention and electronic monitoring at best “‘elaborately
replicate a detention facility without the confidence of security
such a facility instills’”) (quoting United States v. Gotti, 776
F. Supp. 666, 672 (E.D.N.Y. 1991)); see also United States v.
Tortora, 922 F.2d 880, 886-87 (1st Cir. 1990) (elaborate
conditions dependent upon good faith compliance were insufficient
where defendant’s violent history provided no basis for believing
that good faith would be forthcoming).
3
In addition to his violent felony convictions, Caponegro
has a number of other convictions in New Jersey state court,
including: (a) a fourth-degree larceny conviction in October
1988; and (b) drug-related convictions in April 1988, May 1989
and September 1989.
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actually committing an assault and wiretapped threats, is simply


overwhelming. Accordingly, there is ample “clear and convincing”
evidence of Caponegro’s dangerousness to support his pre-trial
detention.

C. Caponegro Presents a Risk of Flight

In addition to presenting a substantial danger to the


community, Caponegro is also a risk of flight due to the fact
that he will be facing a substantial term of imprisonment if
convicted of the instant charges.4

III. Conclusion

For the foregoing reasons, defendant Joseph Caponegro,


Sr. should be detained pending trial as a danger to the community
and a flight risk.

Respectfully submitted,

BENTON J. CAMPBELL
United States Attorney
Eastern District of New York

By:
John Buretta
Taryn A. Merkl
Jack Dennehy
Assistant U.S. Attorneys
(718) 254-6314/6064/6133

cc: Defense counsel (by hand)

4
The government notes that the defendant’s recent
involvement in violent crime is not limited to the extortionate
collection of credit conspiracy alleged in the criminal
complaint.