New York Gang Prosecutions Use Conspiracy Charges to Criminalize Whole Communities

Defendants like Carletto Allen are not supposed to go to trial. The 23-year old Bronx man was already in jail on a pending gun charge when hundreds of NYPD officers and federal agents from the Department of Homeland Security, the Drug Enforcement Administration, and the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives stormed a public housing project in the neighborhood where he lived with his grandmother and arrested dozens of his friends and neighbors.

The April 2016 raid, which authorities boasted was the “largest gang takedown in New York City history,” ended in 88 arrests and 120 indictments on federal conspiracy charges. The defendants — mostly young black and Latino men in their late teens or early 20s, whom police had surveilled for the better part of a decade — were listed in two separate indictments by their names and a variety of street aliases. Prosecutors said they were affiliated with two rival gangs connected to eight homicides that had occurred in the area since 2009, including that of a 92-year-old woman struck in her home by a stray bullet.

Like Allen, several of the defendants in the case were already behind bars at the time of the raid, some serving time after having been convicted in state court of the same crimes now being pursued by federal prosecutors. As The Intercept reported at the time, the Bronx raid, which followed a similar 2014 raid in Manhattan that led to 103 indictments, marked a shift by police and prosecutors toward mass conspiracy cases that see dozens of arrests and indictments quickly resolve in guilty pleas.

Defendants in these kinds of cases, often from New York City’s poorest neighborhoods, can’t afford to hire attorneys. The conspiracy charges they face — in the Bronx case, under the Racketeer Influenced and Corrupt Organizations Act, or RICO, a federal law passed in 1970 to combat the Mafia — are broad and hard to fight, because proving individuals “conspired” with others accused of crimes is easier for prosecutors than proving they committed that crime. Threatened with draconian sentences, almost all defendants in these situations agree to plea deals — usually getting years rather decades in prison, and scoring prosecutors dozens of easy convictions.

“The government doesn’t have to do a lot of heavy lifting to prove that there was an alleged agreement between two people,” said Anthony Posada, supervising attorney with the Community Justice Unit at Legal Aid Society. “I think it’s very telling of the strategy that’s being used,” he added. “By using a statute that has very severe penalties, you sort of do this thing where you overcharge. … Large amounts of bail are set on people. And when you have bail set on you, you are more likely to take a plea, you are more likely to plead guilty to something, rather than to fight the matter.”

Prosecutors rely on that. Trying every single individual charged in connection with a mass raid would take years and cost the government millions. For the system to run efficiently, defendants can’t go to trial, and most don’t. Nationwide, 94 percent of felony convictions at the state level and 97 percent at the federal level are the result of plea bargains.

“Police and prosecutors know that people don’t go to trial and don’t fight these cases,” said Marne Lenox, an attorney at the NAACP Legal Defense and Educational Fund who worked at the Bronx Defenders at the time of the raid. “And for many of these individuals, the risk is far greater than the reward; once you get into federal court, you are facing mandatory minimums.”

Ninety-seven of the 103 individuals charged after the 2014 Manhattan raid — on state charges — entered guilty pleas. Of the 120 defendants charged following the Bronx raid, 110 have pleaded so far. Some 111 defendants had court-appointed attorneys, according to a recent presentation on the Bronx indictments by Babe Howell, a professor at the CUNY School of Law, and Priscilla Bustamante, a graduate student in critical psychology at CUNY Graduate Center. The U.S. Attorney’s Office for the Southern District of New York, which brought federal charges against those indicted in the Bronx raid, declined to comment.

Resisting the Pressure to Plea Out

Despite the pressure to plead guilty, Allen didn’t stick to the script. He is one of only two defendants in the Bronx case who chose to go trial. The second, Donque Tyrell, was tried last month on seven charges, including “aiding and abetting murder in aid of racketeering.” On Wednesday, a jury convicted him on all counts.

As Allen learned, tempting fate — and challenging the system — comes at a premium.

According to John Kenney, one of Allen’s attorneys, at the time of the raid, Allen had been in jail for just over a year after he was caught selling small quantities of marijuana to a police informant — “nickel bags on a corner,” as Kenney told The Intercept. Officers who were watching the transaction pulled Allen out of the car he was sitting in and said they found a gun in his pocket. Allen admitted that he sold marijuana but testified that the gun was in the pocket of a jacket on the car’s back seat, and not his. The officer who testified about the gun had substantiated complaints with the NYPD’s Internal Affairs Bureau and the Civilian Complaint Review Board, and he had been sued at least six times over excessive force, false imprisonment, and malicious prosecution, settling each time — but prosecutors successfully blocked the defense from discussing the officer’s history at trial, on the grounds that it did not impact his “credibility.”

After the raid, Allen was moved to a federal jail downtown and saw his pending state charges balloon into federal counts of racketeering narcotics conspiracy, narcotics possession, and a firearms offense. In the mass indictment, his name was listed among dozens of “members and associates” of the “Big Money Bosses” gang, which prosecutors described as a “criminal organization” responsible for a string of serious crimes, including murder.

As they did following similar raids in other communities, prosecutors held a meeting with residents arguing that all the arrests were justified. “The lead prosecutor on the case would come out with the other detectives that investigated the matter, and they’d speak to community members in a very brief, sort of matter-of-fact way,” said Posada, whose group held forums for communities impacted by the raids. “This is what we did, and we did it in a very surgical way, and we refer to this as precision policing: We are precise in what we do so that we only get the worst and the worst out of the neighborhood.”

“The NYPD and the District Attorney’s Office tout these raids and the resulting large-scale indictments as an effective policing tool,” said Lenox. “But in truth, that’s an incredibly sanitized narrative that ignores the substantial harm that these takedowns inflict on communities of color and exaggerates the danger that arrested individuals pose to society.”

“The majority of people who are arrested in these takedowns are actually accused of having committed only low-level offenses and being engaged in low-level conduct,” she added. “But prosecutors rely on these conspiracy statutes to demonize individuals who commit petty offenses by implicating them in violent crime.”

Residents strongly objected to the narrative painted by prosecutors in the Bronx. Everyone living in a housing project was “associated” to everyone else, they argued, and the indictments accused dozens of people of crimes committed by a handful. “Are you going to lock up every black boy or Spanish boy who lives around here?” the mother of two young men arrested in the raid told The Intercept at the time. Still, with nearly all defendants taking pleas, nobody could challenge prosecutors’ allegations in court.

Like dozens of the men charged with him, Allen was offered a deal that would grant him close to time served —  about three years at the time of the offer, according to Kenney. The attorney tried to convince him that taking the plea was in his best interest, but Allen rejected the idea and asked for a new attorney. In court, again over his attorneys’ objections, he insisted on testifying.

But if Allen had hoped trial would give him an opportunity to challenge the premise of a mass gang conspiracy, he was mistaken. “They didn’t try that case,” said Kenney. “They dropped everything except the marijuana and the gun.”

“They said, We’re not going to pursue murder, and all these other things, and narcotics sales except marijuana. We’re not talking about bank robbery; we’re not going to talk about all these things that were part of the conspiracy,” he added. “They just struck it from the indictment, so we never really got to the point.”

“They didn’t even allege he was a member of the gang,” he added, “which means they didn’t have any evidence.”

In their closing remarks, Allen’s attorneys tried to distinguish between the crimes he was accused of and the unproven allegations of a conspiracy, the very existence of which was never tested in court. “There is no evidence that you can rely upon … to suggest that he behaved in any way, shape, or form to promote the activities of that group in whatever shape or form that so-called BMB group existed,” attorneys told the jury, according to court transcripts. “Is it a [crime] to take a photograph that shows up on Facebook with a classmate of yours or a schoolmate of yours? Does that make him a member of a conspiracy?”

In the end, Allen was convicted of racketeering conspiracy, narcotics conspiracy, narcotics distribution, and a firearms offense. He faces up to a decade in prison, with a mandatory minimum of five years.

Allen, who is incarcerated at the Metropolitan Correctional Center in Manhattan while awaiting sentencing, could not be reached for comment. His mother, Martha Allen, declined to talk about the case. “He gets slammed for the audacity of asking for his trial,” said Howell, the CUNY professor, who has studied the case. “If the police brought Carletto Allen all by himself to the federal prosecutor and said, We want to prosecute him for having a gun while selling marijuana in the street, they would look at this and say, That is not a federal case.”

The irony of Allen facing up to a decade in federal prison in connection with an incident stemming from a marijuana sale is that legalization is gaining fast traction in New York state and has become a central issue in the upcoming gubernatorial election. In New York City, where black and brown residents are arrested for marijuana possession at 10 times the rate of white residents, Mayor Bill de Blasio recently ordered police to stop arresting people for smoking marijuana in public. But the “gang” label — which critics say police and prosecutors use indiscriminately and without transparent criteria — precludes sympathy.

“The irony is that some people are taken aback by Trump’s comments about gang members as animals,” Josmar Trujillo, an organizer with the Coalition to End Broken Windows, told The Intercept referring to the president’s comment about members of the MS-13 gang. “In the most progressive city in America, the policies that actually treat people like animals and dehumanize them happen every day.”

“Mayor de Blasio has made gang policing one of his cornerstones of criminal justice reform; he talks about precision policing alongside boasts about the number of stop-and-frisks going down,” Trujillo added. “What he doesn’t mention is that this is exactly the point: He has shifted from low-level street harassment to high-level, complex, federally assisted arrests and prosecutions that actually much more impact and devastate communities of color.”

“I don’t see the point of bringing a RICO case against a guy who’s selling marijuana,” said Kenney, Allen’s attorney, calling his client’s ordeal “a case of massive overcharging.”

Still, he warned of the risks that defendants incur when challenging the system. “The reason people plead guilty is because it makes sense.”

Top photo: Preet Bharara, at the time the U.S. attorney for the Southern District of New York, gestures at a map showing where dozens of people were arrested on gang-related charges on April 27, 2016 in the Bronx borough of New York City. Authorities dubbed the raid “the largest gang takedown in New York City history.”