Massive Bronx Gang Prosecution Raises Fairness Questions

A crowd of residents from the northern Bronx streamed out of the Federal Southern District of New York’s marble courthouse, two blocks north of City Hall. They’d all just been kicked out into the unusually warm autumn morning. It was October 19, the first court date for defendants in what has been called the largest gang indictment in New York City history.

Families and press were told by security that the courtroom was full. If they wanted to see what was going on, they were told, there was a designated viewing room where they could do so. Families and friends were dismayed and confused. They had been looking forward to this day for months—for many, it was to be the first time they saw their friend or loved one since the “takedown.” After making a formal request to the judge, I and one other reporter were allowed in.

Twenty minutes later the calm bureaucratic proceedings were interrupted by a scuffle outside the entrance door. One mother was allowed to enter. Self-assured, she sat down quietly beside me, on a half-empty bench toward the back of the room. The Honorable Judge Lewis Kaplan continued uninterrupted. A deadline for taking plea deals was set, tentative trial dates were agreed on, and the number of capital punishment charges the prosecution was pursuing—four—for the day’s batch of defendants was announced.

When the hearing concluded, a crowd of families and activists slowly re-convened outside the courtroom doors. The audio in the viewing room hadn’t worked and all the cameras showed were the defendants’ shins, the families said.

As the crowd swelled outside the courtroom, activists began to speak out. Soon, everyone was escorted out of the building.

I asked the mother who sat down beside me what she thought. Like many there, she refused to comment.

The gang raid—the reason everyone was there—was orchestrated by the NYPD, Homeland Security and other federal agencies. During the early hours of April 27, 2016, 700 agents descended on the Bronx’s Williamsbridge neighborhood—seventy-eight people were arrested that morning and 120 pre-indicted, on conspiracy charges. According to the indictments, those accused—24 years old on average—are being held collectively responsible for at least eight murders and firearms and narcotics charges dating back to 2007.

After being ushered out of the courthouse on the 19th, many relatives of the accused said they felt left in the dark. “All I know is four charges, one indictment. That’s it,” a sister told me on the steps outside, “I really just don’t know that much.” Like all the family members I spoke to that day, she did not want to be identified for fear of retaliation. “That’s why we’re here,” a father told me, “to find out what’s going on.”

The military-style raid is an outgrowth of the NYPD’s new “precision” tactics. It was adopted soon after the NYPD’s use of stop-and-frisk was ruled unconstitutional in 2013 and places “gangs” and “crews” in the department’s crosshairs.

Old crimes live again

The accused are being charged under the 1970 Racketeer Influenced and Corrupt Organizations Act (RICO), a federal statute invented to bring down the mafia. Being charged under RICO allows prosecutors to charge members or associates of an “enterprise” with conspiring to commit crimes—“predicate acts”—committed by others in the group, hence the “conspiracy” charges. That means if the prosecution can show you are associated to alleged gang members it doesn’t matter if you have committed the crime yourself or not. The Southern District of New York’s District Attorney’s Office declined to comment on how it determines gang membership or association.

Following the April 27 raid, a Homeland Security Investigations (HSI) spokesperson justified the use of RICO against the two indicted gangs—“2Fly” and “Big Money Bosses”—calling them “the epitome of organized crime today.” Then-Police Commissioner William Bratton continued: “They will no longer be free to terrorize the neighborhoods in which they grew up.”

Analysis of court documents, conversations with defense attorneys involved in the case, the indictments and interviews with families and friends show that many of the crimes the gang is being held responsible for are a compilation of the alleged gang members’ past criminal records. Some of the accused were doing time in state prison when the indictment was handed down. Now, their charge, for which they had already been convicted, is being re-packaged and applied to the federal conspiracy indictment. These prior convictions are among the predicate acts the rest of the gang is being charged of conspiring to commit. One murder being tacked to the gang as a whole is the killing of a 92-year-old woman by a stray bullet, even though the perpetrator already plead guilty and was doing time in state prison.

The U.S. Attorney’s Office* declined to comment on whether or not any unsolved crimes were part of the indictment.

The inclusion of old crimes and the murky process for establishing who is and isn’t in a gang raise concerns by some civil liberties experts about the prosecution.

“Given the NYPD’s policing history,” says executive director of the Center for Constitutional Rights Vince Warren, “one’s past criminal history can reflect bad policing as much as it reflects personal conduct. Prosecutors stacking the deck by repackaging one’s criminal record to make a case for a subsequent accusation further weaponizes that bad policing. Moreover, it can lead to a flawed narrative of how one’s past is predictive of their prologue.”

A mother told me on the concrete patio beneath the courthouse that her son “did seven years, seven years, and he was about to come home. And they went to re-arrest him again….And put a federal indictment on him.” One of the accused told me, “I was already in custody on state charges for the last four years. I was about to come home and they grabbed me…and are basically trying to re-charge me.”

The reach of RICO

The practice of retrying these sorts of cases under the federal RICO indictment has drawn comparisons by academics and those directly impacted to double jeopardy—charging someone for the same crime twice. But because the charges differ—conspiracy as opposed to something concrete like a firearms charge—double jeopardy is not triggered. Even if the charges were exactly the same however, the dual sovereignty doctrine that allows both state and federal governments to individually prosecute crimes committed in their respective jurisdictions would also mean double jeopardy would not be triggered. It is common practice in gang indictments like this, says Babe Howell of City University of New York.

At least one defendant in the case however has no criminal convictions on his record. He is being denied bail in part based on testimonies by alleged gang members who are cooperating with authorities. According to NYPD detective and Homeland Security Investigations (HSI) agent testimonies, the alleged gang members tie the defendant to a shooting in 2012, when he was 14. The detective and agent also allege that the defendant told someone he was in the gang, and they accuse him of engaging in “specialized greetings,” selling marijuana, holding a gun and committing two sidewalk robberies. Also used against him is a photo of him with accused members of 2Fly and his arrest record.

In 2014 police found a pocket knife and arrested him for possession of a dangerous weapon, which the young man claimed he used to open boxes at his job. The case was dismissed.

Old Facebook posts intercepted by HSI were also used as evidence to deny the defendant bail. One of his posts reads: “Beef Neva Gon sTop #biGmoneyK.” According to a letter from the defense lawyer to the judge, the prosecution believes that the “K” at the end of the rival gang’s name—“Big Money Bosses”—means the defendant is a “Killer of the gang’s members.”

According to the prosecution, the meaning of the post is that, “the gang war in question will never stop, and that [the accused] will kill members of the rival Big Money Bosses gang.” The defense attorney counters, pointing out that, “a Google search quickly showed ‘BigMoneyK’ appears to be the moniker of a young black writer/rap artist.”

If the defendant can be linked to the so-called “enterprise,” by the photograph and testimonies, the prosecution may not need proof of criminal wrongdoing. As it’s a conspiracy, the records of his alleged co-conspirators may be enough to indict and sentence him as well. A young adult resident of Eastchester Gardens told me he thought some of the accused were merely a “victim of [the] circumstances” of growing up in public housings. Having a cousin or an old friend who was a gang member, residents say, got some of the accused wrapped up in the indictment. One of the accused who was attending college told me he felt he was added to the indictment because, “I didn’t cut off all of my friends and I stayed in contact with the friends that I had growing up.”

It is not clear whether the case is an appropriate application of federal conspiracy and racketeering charges, typically reserved for sophisticated and lucrative organized crime. The federal government’s application of RICO to modern street gangs has drawn scorn from lawyers and academics who argue the statute is being misused and that the practice is at risk of running afoul of the constitution.

Evidence under tight wraps

According to court documents, accused members of the 2Fly gang worked at Whole Foods, TGI Fridays and Home Depot before the raid, drawing into question HSI’s assertion that the gangs are “the epitome of organized crime.” A phone conversation intercepted by HSI and presented by the prosecution at bail hearings show accused members of 2Fly referring to the man accused by the prosecution of being the kingpin as “a mess.” “He selling weed for days,” one said to the other, “working in Stop and Shop in the move department. He’s a mess.”

“Conspiracy for what?” One family member said to me below the steps of the courthouse. “[My son] doesn’t have a dime to his name. Money laundering? He doesn’t have a dime to his name….He’s being taken care of by his parents.”

Strict protective orders have been placed on the discovery materials—the evidence gathered from the prosecution’s investigation. Often, many of these materials are made public and shared freely with families of the accused. But in this case, only defendants and their attorneys are given copies, and only one family member is allowed to view the materials. None of them are allowed to speak about the materials, including to other family members and friends.

Challenging the prosecution’s justification for the secrecy, a defense attorney wrote in a letter to the judge that, “[the government] has posited that certain unidentified people connected to certain defendants may themselves be subjects of the government’s continuing investigation and that these unidentified subjects should be prevented from seeing the discovery.” It is common practice to exclude certain individuals or seal a specific piece of information, the attorney writes, but these protective orders are indiscriminate and apply to all the materials and all family and friends. In effect, the letter continues, “the government is treating law abiding citizens as if they are a danger to the community.” Some siblings are even being treated as “uncharged co-conspirators.”

The DA’s office would not comment on why the high level of secrecy is necessary in this case.

One sister told me that she felt like the community as a whole was being indicted. “People are getting kicked out of their [Section 8] homes because of this,” she said. City Limits could not confirm or deny this claim, but we do know that at least one mother from Eastchester Gardens is facing eviction for being found to be in violation of a permanent exclusion order against her son, on the morning of the raid. “Everyone is being judged and swept under one blanket.”

A tactic for the times

Williamsbridge is not alone. In 2015 the NYPD estimated there were 375 gangs or “street crews” in the city; 130 in Brooklyn, 87 in the Bronx, 75 in Queens, 40 in Manhattan, and 13 in Staten Island. At a January 4 press conference Chief of Detectives Robert K. Boyce announced that in 2016 the department conduced 107 total takedowns and 41 gang takedowns. NYPD Commissioner James P. O’Neill said the takedowns “locked up somewhere north of 1,000 people.” He continued: “we are picking them off one by one or in many cases dozens by dozens.”

New York Daily News headlines have announced: “NYCHA cracking down on criminal tenants more than ever as it aims to kick those swept up in gang raids to the curb.” Alleged gang members who are “taken down” in the raids could be excluded from living in NYCHA housing.

It is a paradigm of policing Mayor de Blasio has praised. At a June 2 press conference, the mayor said that “when people see a gang that used to terrorize them, and their block, their [housing] development, suddenly taken down, nothing is a more powerful indicator…of the ability of the NYPD to improve their lives.”

One mother I spoke to on the 19th disagrees. “I never thought I could have actually looked at the justice system differently,” she said. “Now when I hear things on the radio I’m like: ‘who the hell did they just set up?’ This has totally changed my entire point of view. I never thought…I pay taxes, I have a decent job, I did the right thing all my life, I raised my son accordingly. [I told him], ‘you have to [get an education].’ He was on the right path,” she said, “and then at the end of the day this is what you did to him? For what?”

According to the District Attorney’s Office*, as of January 9, 39 and 30 of the accused have plead guilty from 2Fly and the Big Money Bosses, respectfully. Initial trials will begin on February 13 for 2Fly and May 1 for Big Money Bosses.

*Correction: The initial version of this story incorrectly referred to the District Attorney, who is not involved in the case.