BY ALICE SPERI

https://theintercept.com/2019/04/25/bronx-120-report-mass-gang-prosecution-rico/

KRAIG LEWIS WAS living in Connecticut and was nine credits away from his MBA when the neighborhood he had spent his life trying to get away from came back to haunt him. Growing up in a mostly poor and at times violent section of the Bronx, Lewis had seen his share of illegal activity. Some of those behind the criminality — mostly low-level drug dealing — were his friends. Lewis hung out with them while also keeping focused on school. Education was his ticket to a different life, his mother always said, and no one could take that away from him.

She was wrong. Three years ago this week, helicopters and armored vehicles swarmed Lewis’s old neighborhood, and SWAT teams and some 700 officers with the NYPD and a host of federal law enforcement agencies knocked down doors at the Eastchester Gardens public housing project and nearby homes. At the same time, 40 miles and a world away, police showed up at the loft apartment Lewis shared with his girlfriend in the seaside city of Bridgeport. Lewis, who had no criminal record and had never been arrested before, was taken away in handcuffs while his 6-year-old son was asleep in his bed. Police drove Lewis to the local station and then back to the Bronx, to a police precinct where he saw dozens of his childhood friends, some for the first time in years.

“It’s not a crime to be a gang member. You shouldn’t be prosecuted simply because of association.”

Lewis was one of 120 people, almost all young black and Latino men, who were indicted following that pre-dawn raid as part of what prosecutors called the “largest gang takedown in New York City history.” According to Preet Bharara, then U.S. Attorney for the Southern District of New York, the 120 were members of two violent, rival street gangs that had “wreaked havoc” in the neighborhood for years and were responsible for at least eight murders. “These gang members do not belong on our streets,” William Bratton, then NYPD commissioner, said at a press conference the day after the raid. “Instead they belong exactly where they are going, to federal prison, for many years, where they won’t be surrounded by their buddies, they won’t be close to their families, and they’ll no longer be free to terrorize the neighborhoods in which they grew up.”

The raid made news for a couple days, with mostly sensationalized headlines and images peddling police and prosecutors’ claims about those swept up in the bust. But few reporters followed up. Now a new report, published ahead of the raid’s third anniversary and shared exclusively with The Intercept, reveals troubling details about the prosecution and raises serious questions about due process, the abuse of federal conspiracy charges, and the criminalization of social relationships in communities of color.

Babe Howell, a co-author of the report and a professor at CUNY School of Law who studies gang policing practices, told me that she feared that the overinclusive, error-ridden, and nontransparent way in which police have long labeled individuals as gang members would be replicated in mass gang prosecutions. “When I saw these big, mass indictments coming down, what I wanted to know was, are these people gang members?” she said. “More importantly, not every gang member actually engages in violent crime; contrary to popular belief, many people who are in gangs do nothing more than smoke weed and hang out.”

“I wanted to see, are these prosecutions narrow and targeted? And even for actual gang members, are they fair?” she added. “It’s not a crime to be a gang member. You shouldn’t be prosecuted simply because of association.”

The report’s conclusions were startling even to Howell. Only two out of the 120 defendants chose to fight their charges at trial. But while 115 entered plea agreements — an all-too-common outcome among poor defendants — the crimes they pled guilty to were significantly less severe than the crimes prosecutors had originally accused them of committing. While a series of murders and other violent incidents, some dating back years, were highlighted in statements to the press and as part of the prosecutors’ narrative about the gangs, none of the 120 were charged with murder in the original indictments. Instead, prosecutors referred to the murders and violence to successfully argue against bail for 101 of the defendants, but what they actually charged each individual with was some combination of federal conspiracy charges, two different narcotics charges, and a firearms charge. Of the 91 defendants charged with the firearms charge, only 22 were convicted. Two-thirds of the defendants were not convicted of any violent crime at all.

 

The report, co-authored with CUNY graduate student Priscilla Bustamante and based on an analysis of dozens of public court records relating to each individual’s case, also found that nearly half of the 120 defendants, including many of those accused of the more serious conduct, had already been prosecuted in state court for it. Several defendants were in prison at the time of the raid, and were brought out to face new federal charges over the same crimes for which they were already doing time.

Perhaps most shockingly, more than half of the 120 indicted in the “largest gang takedown” in New York City history, including Lewis, were never actually alleged by prosecutors to be gang members at all. “Why on earth would they bring mass gang indictments, have a press conference saying that this is the largest takedown of two violent gangs in history, and actually be taking down dozens of people who are not gang members, and 80 individuals who are not violent?” Howell asked. “It’s because these prosecutions are politically advantageous. These cases make for easy wins, high-profile, good press coverage, and they give prosecutors a platform to appear tough on crime.”

A spokesperson for the U.S. District Court for the Southern District of New York, which prosecuted the case, declined to comment for this story. Bharara, who was fired as U.S. attorney under the Trump administration, declined a request for interview through a representative.

The RICO Act and Gangs

The “Bronx 120 raid,” as it came to be known, was the largest of a growing number of gang sweeps that have removed dozens of mostly young people from their communities, often indicting them all under the same broad conspiracy charges. Police and prosecutors have billed these raids as precise, surgical efforts to remove “the worst of the worst” from the same neighborhoods where police had once stopped and frisked countless residents, before a federal civil rights lawsuit reined in the controversial practice. But while the abuses of stop and frisk took place in the open, infuriating New Yorkers and eventually building up widespread opposition to the practice, gang raids are mostly executed out of sight, and their aftermath plays out behind closed doors in court hearings and as part of a system in which, for poor defendants, pleading guilty is often the only option.

More than half of the 120 indicted in the “largest gang takedown” in New York City history were never actually alleged by prosecutors to be gang members at all.

The recent raids have come at a time when crime in general is at a record low in New York City, and gang-related crime, in particular, makes up less than 1 percent of the total. As The Intercept has reported, the raids are part of a broader crackdown on gangs that has also seen the swift expansion of massive gang databases, which critics have denounced as arbitrary and discriminatory, as well as the enhanced targeting of individuals based on dubious and nontransparent allegations of gang membership. While the Bronx 120 were all painted as dangerous gang members, the report reveals that fewer than half of them were actually accused of being gang members in prosecutors’ sentencing submissions, including four who contested the allegation in their own submissions. Seventeen people were described as being “associated with” gangs, for instance because they were selling marijuana in gang territory. Thirty-four were affirmatively described in prosecutors’ submissions as not being gang members at all, and there was no reference to gang membership for 13 others. But that didn’t prevent all 120 from being paraded in front of the media and mostly denied bail as gang members.

 

“There is absolutely no protection from false accusations of gang membership; there’s no criminality required, no notice required, no review, no audit, no assurance that that label means anything,” said Howell. “We are in a world where the label and the surveillance that law enforcement has engaged in just takes on a life of its own.”

The problem, she added, is that the label alone is enough to alienate public support. “A lot of people may say it doesn’t matter if you’re a violent gang member or just a gang member, good riddance. If you hang out with gang members and aren’t a gang member, good riddance,” she said. “What we really need to do is uncover what these cases involve, and hope that the public can understand how incredibly unfair they are even to the guilty defendants, and how unnecessary they are for the vast majority of these defendants.”

The Bronx 120 raid wasn’t the first of its kind. In 2014, a raid in Harlem, which at the time was also billed as “the largest” in the city’s history, led to 103 indictments. Since the Bronx raid, police have executed some 250 smaller sweeps across the city. But unlike the Harlem defendants, those indicted in the Bronx and a growing number of defendants in similar cases were charged not in state court but under the federal Racketeer Influenced and Corrupt Organizations or RICO Act, a broad conspiracy statute that was passed in 1970 to empower prosecutors to pursue organized crime networks.

One of dozens of suspected gang members corralled in simultaneous early-morning raids is led into a police van in the Harlem neighborhood of New York, on June 4, 2014.

Photo: Robert Stolarik/The New York Times via Redux

RICO and state-level conspiracy laws modeled after it were dubbed the “darling of the modern prosecutor’s nursery” because of the broad discretion they allow in bringing charges against large numbers of people. Proving conspiracy does not require evidence that someone committed a crime, was present at the time of a crime, or even knew about the crime: all that’s required is an agreement to commit a crime, whether the agreement is explicit or not, and that a party to the conspiracy commits some act to advance the agreement. Prosecutors don’t necessarily need to prove the agreement itself, but just the underlying crime, which is known as a “predicate act.”

“There is absolutely no protection from false accusations of gang membership.”

In practice, that means that if someone is claimed to be a member of a gang and is found guilty of selling marijuana as part of the gang’s activities, then that person is also liable for any other crimes committed by the gang as a whole. “If a defendant is accused of a conspiracy to commit robbery, evidence of every robbery any member of the group has ever committed, as well as knowledge that the group committed other crimes, can be admitted at trial,” the report notes. “Showing that a defendant was nowhere near the scene of the actual robbery would be no defense.”

“The single defendant is faced with the prospect of defending against allegations relating to all the crimes committed by the defendant himself as well as dozens of co-conspirators over a span of years,” the report continues.

“The fundamental problem with putting 120 people on an indictment is that there’s almost no way to defend that case,” said Melissa Geller, a lawyer who represented one of the 120 and specializes in white-collar RICO cases. “It’s a due process issue.”

“The fundamental problem with putting 120 people on an indictment is that there’s almost no way to defend that case.”

Geller noted that mass prosecutions come with an overwhelming amount of discovery material most appointed lawyers can’t properly process, and that the majority of the evidence ends up being based on cooperators and defendants turning against one another. In the Bronx 120 case, as in other gang indictments, prosecutors relied heavily on text messages and social media posts to prove connections between defendants, essentially turning friendships and social relationships into evidence of conspiracy. Then they pressured co-defendants to incriminate one another in exchange for better deals. “I have a problem with going in and rounding up an entire neighborhood and accusing them of being part of a gang simply because they occasionally text with people who are part of a gang,” Geller said. “It’s guilt by association. It’s not a federal matter. And it’s really problematic.”

 

The RICO Act was a powerful legal tool that was meant to target much more sophisticated criminal networks than the loose neighborhood groups to which it is now being applied. As the report notes, “Congress armed federal prosecutors with the RICO Act not to fight local street crime, but to root out wealthy, criminal enterprises that could hide criminality in legal enterprises or informal associations, retain the most sophisticated legal teams, and avoid prosecution using ill-gotten wealth.” Perhaps the most recognized criminal convicted under the RICO Act was John Gotti, a Mafia boss who at his peak controlled a criminal enterprise worth some $20 million.

But as the war on drugs ramped up, federal prosecutors who had mostly been pursuing large-scale money laundering schemes and white-collar crimes started receiving financial incentives from Congress to target drug sales in poor communities. Attorneys and community advocates warn that bringing federal conspiracy charges against poor young defendants, mostly over low-level drug dealing, is overbroad to the point of undermining the fairness of the justice process. In the Bronx 120 case, for example, 35 people were ultimately convicted of federal conspiracy charges based on the sale of marijuana alone. And while selling marijuana is normally a misdemeanor under New York law, because conspiracy laws allow the aggregation of all drugs sold by all co-defendants throughout the years-long span of the conspiracy, individual defendants had to plead to participation in a conspiracy to sell more than 50 kilos of marijuana — even if they were caught selling mere nickel bags.

“It may be illegal, but let’s leave it to New York State to prosecute the drug cases,” said Geller. “Do we really need to decimate this entire community to make a point? … All you’re doing is putting an entire generation of people in jail.”

Stuck in the Machine

Like 117 other defendants in the case, Lewis was originally given a court-appointed lawyer. At his first court appearance, in federal court in downtown Manhattan, a judge told Lewis and dozens of his co-defendants that they could face the death penalty, though depending on the specific counts each of them was charged with, they faced a maximum sentence of 20 years or life. Lewis’s bail was initially set at $1.5 million, but prosecutors appealed that and he was held without bail as a “danger to society.”

Lewis spent 22 months in jail before pleading guilty to conspiring to distribute marijuana and once having owned a gun. There was no physical evidence against him — just text messages he had exchanged with friends from his neighborhood, social media photos that showed him socializing with other co-defendants, and the word of an unnamed witness. Prosecutors offered him a 12-year deal, which he refused. By the time they came back and offered him five years, life at the Metropolitan Detention Centerhad taken its toll. One of his friends there had been stabbed, and Lewis wanted out. He accepted the five years but the judge in the case thought that was too much, calling what had happened to him an “injustice” and releasing him on time served.

Lewis is now a convicted felon, on federal probation, unable to get the financial aid he needs to finish his MBA. He’s back at his mother’s home in the Bronx, living in a tiny room that had belonged to his teenage sister, his law and business textbooks stacked against pastel blue walls covered in butterfly decals. He works odd jobs, delivering Uber Eats and signaling traffic at road construction sites. “This is where I have got to rebuild everything from scratch,” he told me during a recent interview. “I am trying to do legal things and I keep getting the door shut in my face; the illegal activities are wide open in front of me.”

“I worked so hard, I had a plan, and that’s what’s killing me,” he added. “Growing up, you always feared the word ‘felon,’ because it’s like, you get a felony, you can’t do anything in the world.”

“I feel like I’m just going back in a machine. I made it out of the machine, and they grabbed me, and put me back into the machine, and now I’m stuck in the machine.”

Left/top: Lewis and his mother, Shyrill Glen, at her home in the Bronx. Right/bottom: Lewis points out his 2008 middle school yearbook photo.Photos: Stephanie Tangkilisan for The Intercept

Police and prosecutors spent years building a case against the Bronx 120. When the conspiracy allegedly started, in 2007, the average age of those who would eventually be swept up in it was 14. The youngest were 9. By the time the raid happened, most of those involved in crimes had already been caught by the system — and most others had moved on with their lives, if not out of the neighborhood, and had jobs and families.

That was the case for Nicholas Bailey. Bailey had just turned 18 when he ended up in state court on two robbery charges. Defense and prosecution agreed he should be given a second chance, and the judge at the time used her discretion to grant him youthful offender status and sentence him to a rigorous rehabilitation program with the Fortune Society, an organization that promotes alternatives to incarceration. Bailey completed the program and earned stellar recommendations from his mentors there. Outside the program he struggled, especially after one of his friends was shot in the head and died in his arms, but he didn’t stray. His mother told me that he lived in fear of gangs after he had refused to join one, and that he was often too terrified to leave the house. “The kid used to vomit, he used to get sick,” she said. When it was dark out, he refused to walk as far as the local store.

As the years passed, Bailey landed jobs at a nursing center and a home for the developmentally disabled. He was never accused of any new crimes, and his youthful offender record was sealed. But none of that mattered to federal prosecutors. “They opened it,” Bailey’s mother said. “And they used it against him.”

When police came to his home the night of the raid, Bailey reassured his mother that he would be fine because he had done nothing wrong. But prosecutors used his old robbery plea as the predicate act to charge him under RICO. Bailey, who is 26 today, was ultimately sentenced to six years in federal prison, five years after committing a crime for which a state court judge had given him a second chance.

“The system broke its promise to me, I stayed out of trouble for 5 years before this case came about and that meant nothing to them,” he wrote to me from the federal prison where he’s serving his sentence. “I was being charged for and imposed a sentence as if I hadn’t been doing all I was doing to keep myself out of trouble, keeping jobs, and being a productive citizen.”

“That just made me know the justice system is corrupt,” he added. “I don’t believe in the system because personally I feel like it’s designed for black men to fail.”

“All you’re doing is putting an entire generation of people in jail.”

Bailey was one of nearly half of the defendants who were indicted based on conduct that had already been adjudicated. In some cases, prosecutors even brought up simple violations or years-old arrests that never resulted in convictions. Many of the crimes described as part of the conspiracy case dated back years. In their press releases and the background narrative they provided as evidence of the conspiracy, prosecutors particularly zeroed in on several murders — they mentioned eight in their statements to the press, but only five in the actual indictments. What they didn’t say at the time was that three people had already been convicted and sent to prison for those murders. In the end, only six of the 120 were charged in connection with the murders.

The case of Jamal Blair is perhaps the best example. At the time of the raid, prosecutors had highlighted the 2009 killing of Sadie Mitchell, a 92-year-old woman who was hit by a stray bullet while she was watching TV.

Blair was the one who had fired that bullet, as a warning to a rival. The 18-year-old was quickly arrested, convicted of manslaughter, and sentenced to 14 years in state prison. He was more than seven years into that sentence when the raid took place, but he was brought out of prison and into federal court, re-prosecuted for the same murder and ultimately sentenced to 12 years, to run concurrently with the state sentence he was already serving. Federally re-prosecuting crimes already tried in state court doesn’t count as double jeopardy because by presenting them as predicate acts underlying a RICO charge, prosecutors were essentially able to prosecute the same people, over the same conduct, for a technically different crime: conspiracy.

But the point of the new prosecution was not so much about punishing Blair, who was already in prison and ultimately didn’t end up getting additional time, as it was about finding a way to justify the mass prosecutions, the report suggests.

“I don’t know why they did that except that it was the most sensational case,” said Russell Neufeld, an attorney who represented Blair in his federal case. “It was the most high-profile crime that was associated with all these crimes.”

Neufeld added that Blair has a low IQ and a tragic story. His father murdered his mother when he was 2 years old, and Blair was left alone with her body for an entire day before someone found him. Neufeld also said the confession in the case had been “obviously written by the cops” — all points he raised as part of Blair’s plea negotiation. “If he’d gone to trial on it, he would have almost undoubtedly gotten a lot of additional time,” Neufeld said, noting that in federal court Blair’s crime could have earned him the death penalty. “The death penalty is rarely used, but it’s this sword of Damocles that hangs there. It does tremendous damage.”

The two defendants who did go to trial were both convicted and received significantly harsher sentences than their co-defendants who pleaded guilty to similar crimes.

Police and prosecutors claimed that the raid brought peace to a neighborhood devastated by violence — but residents didn’t quite see it that way.Photos: Stephanie Tangkilisan for The Intercept

One of them, Carletto Allen, was not accused of being a member of a gang but rather of selling marijuana in gang territory with the permission of gang members — a scenario he shared with many co-defendants. That shouldn’t be held against individuals who have no choice but “to make nice” with the gangs that control their neighborhoods, said Geller. Prosecutors also alleged that Allen possessed a gun “in connection” with the conspiracy, even though Allen always maintained that the gun in question was not his. There was no physical evidence tying him to the gun, and the officer who was the only witness to the gun possession charge has a troubling history of civilian complaints, but jurors were not allowed to hear about that.

As The Intercept reported last year, at the time of Allen’s sentencing, prosecutors offered him a deal that would sentence him to close to time served. His attorneys tried to convince him to take the deal, but Allen refused and insisted on testifying. At trial, jurors were told about all the crimes the 120 as a whole had been accused of, and Allen was convicted and sentenced to six years — far more than prosecutors had offered him.

While Bratton had promised the Bronx 120 would go to prison “for many years,” three defendants had their charges dismissed, 23 were released on time served, and 18 received sentences of less than two years — a testament to the fact that their crimes were not actually as serious as originally described, as well as to the workings of the plea bargaining process. “There’s a very real trial penalty and it’s part of the reason why cases don’t go to trial anymore; you can lose a lot by going to trial,” said Geller. “The plea bargaining process effectively works to deprive criminal defendants of a right to trial.”

“Everybody Who Was Left Was Hurt”

Three years after the raid, residents of the Eastchester Gardens housing project have not forgotten the trauma of that night. On the first warm Saturday of the season, dozens of children played in the complex’s yard, as groups of teenagers and elderly people hung out on benches and near a basketball court. It was the perfect picture of a peaceful community police and prosecutors claimed to have cleaned up of its worst elements — but those I spoke with didn’t quite see it that way.

One man who lived in the complex for more than two decades told me that when he first heard the helicopters buzzing overhead, the night of the raid, he rushed to the windows. When he saw police everywhere, he instinctively ducked, then turned on the TV to try to learn what was happening.

“Immediately, as a black man, you start thinking, ‘Did I do something wrong? Was I with the right people? Are they looking for me? Are they looking for my son?’” he told me. For days after the raid, he added, residents of all ages lived in panic, as nobody really understood whom police were looking for exactly and why, and rumors spread that they would be coming back for more.

The man, who asked not to be identified because he often mediates conflicts in the neighborhood, admitted that there had been some violence in the area — “a once-in-a-while shooting,” as he put it — though most of it had occurred long before the raid. He and other residents had already taken steps to address the problems. But the place “wasn’t really a war zone,” he said. “It wasn’t like the drug dealers had the place hostage and you couldn’t move around.” There had been drug dealers in the neighborhood, he conceded, but that was still the case after the raid. “Nothing has changed.”

Those who did experience the greatest change — in addition to the 120 themselves — are the younger residents, who saw much of their generation removed overnight. Helen Jones, who said many of her friends and her oldest brother were picked up in the raid, told me that it took over a year for young people to get out of their homes and start hanging out again. Even then, and even when some of the 120 started coming home after serving their sentences, the mood had changed. Prosecutors had turned friends into “snitches” and made everyone fearful they might be caught in the next raid just for hanging out with people accused of crimes.

“I feel like they just scooped up everybody,” said Jones. “Some people didn’t really do nothing. It was more, if you were in a video or a picture, they assumed you’re in it too.”

“Everybody who was left was hurt,” she added. “I’m trying to figure out what they thought they were going to accomplish. I understand that they were trying to put down the violence, but they destroyed a lot at the same time.”

For Kraig Lewis, the toll of the raid is still unfathomable. He lost two years of his son’s childhood, his life in Connecticut, and the chance at a degree he had worked so hard to earn. Perhaps worst of all, he lost his dreams and his self-confidence.

“Everything I imagined for myself …” he said, “I have nothing.”

His probation conditions require him to stay in New York — which means at his mother’s place in the Bronx — but they also require him not to interact with his co-defendants, the only friends he has around here. “I’m not supposed to be around them because they violate my probation,” he told me recently, growing frustrated. “Like how? They put me back in the neighborhood. I spent two years in prison with them every day. And then you put us back and tell us we are not supposed to be around each other. These are the only people I know who are left.”

Mostly, Lewis stays at home, reliving his days at the Metropolitan Detention Center in his head. “I’m hurt,” he said. “I’m not going to lie, it takes a lot sometimes to just move.”

“I feel like society did me wrong, I didn’t deserve that,” he added. Then, pointing to the floor, he said, “My soul is still down here and I’m trying to pick it up.”