Attorneys for indicted Buffalo mortgage broker Frank Giacobbe are pleading with a federal judge for leniency, acknowledging that their client violated the terms of his bail when he was arrested for drunk driving while in possession of a gun. But they argued that jailing him would subject him to the risk of catching Covid-19, while noting that he suffers from asthma.
"There is an alternative to incarceration," Giacobbe's attorney, Herbert L. Greenman, wrote in a filing late Friday
Greenman suggested "certain ankle bracelets which can detect whether an individual has consumed any alcohol," and which could be attached to his client when he returns to his home in Clarence.
Giacobbe was indicted in May 2018 and again in May 2019 in U.S. District Court as part of what Buffalo prosecutors allege was a wide-ranging mortgage fraud conspiracy centered around him and Rochester real estate developer Robert C. Morgan. Giacobbe was released on a $100,000 bail bond, secured by $20,000 in cash. The trial is not scheduled until at least January.
On April 18, he was arrested by Erie County sheriff's deputies after his car ran off the road in the Town of North Collins and struck a guard rail, in the middle of a Saturday afternoon. His breath smelled of alcohol, he failed routine field-sobriety tests, and he refused a subsequent breathalyzer, prompting his arrest for driving while intoxicated, deputies said. Deputies also found a shotgun in the back of his car, along with a shell.
That arrest violated the terms of his release, which included no "excessive use of alcohol" or possession of a firearm.
Prosecutors asked U.S. District Court Judge Elizabeth A. Wolford to revoke Giacobbe's bail at a hearing scheduled for Monday and to detain him, calling him "a danger to himself and the community." The government argued that "there are no conditions or combination of conditions of release" that would provide reassurance.
Noting the "complexity of this case," Greenman said that preparation for the trial would be "difficult if not impossible" if Giacobbe is jailed. Jailing him also would impose a health risk, the attorney said, providing a medical note as confirmation he is being treated for asthma.
He noted that prosecutors don't claim that Giacobbe "is a risk of flight."
The attorney said Giacobbe had "surrendered all weapons" but the friend he gave them to also uses some of them and left the shotgun in a pole barn on Giacobbe's property after hunting. He had asked Giacobbe to retrieve it, which he did. Giacobbe was intending to return the shotgun, but was arrested, Greenman said, adding that he had confirmed Giacobbe's story with the friend.
Finally, Greenman said Giacobbe "tested negative for all substances" since his initial arrest and drug screening, except for prescription drugs, and has "diligently reported to the probation department every month as directed."
Greenman said his client had taken "immediate action in order to address his issues," by making arrangements with Horizon Human Health Services for telephone counseling. He also contacted a clinical social worker "with extensive experience" in "mental health treatment," including "working for various courts in the area."
Giacobbe is currently living with his sister and brother-in-law in Amherst. who will help supervise him, Greenman wrote, adding that "there is no alcohol in their home. They have monitored Mr. Giacobbe for the past two weeks."
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Mortgage broker in fraud case seeks leniency after DWI, gun violations - Buffalo News
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