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UNITED STATES v. DIVARCO

United States District Court, Northern District of Illinois, E.D


February 6, 1985

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JOSEPH DIVARCO, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Shadur, District Judge.

  MEMORANDUM OPINION AND ORDER

On January 9, 1985 each of Joseph DiVarco ("DiVarco") and Ronald Ignoffo ("Ignoffo") was convicted by a jury on all counts in which he was named in the indictment in this case. On January 10 the government moved for the detention of each of them pursuant to the Bail Reform Act of 1984 (the "Act"), 18 U.S.C. § 3143(a) ("Section 3143(a)"),*fn1 claiming each of them (though not any of their four convicted codefendants) was likely to pose a danger to the safety of other persons or the community if released pursuant to Sections 3142(b) or (c).

This Court immediately conducted a detention hearing (the "Hearing") on January 10 and 11. At the conclusion of the Hearing as to Ignoffo, this Court found he had not shown by clear and convincing evidence that he was not likely to pose such a danger. Accordingly Ignoffo was ordered detained in accordance with Section 3143(a).*fn2 DiVarco's hearing was not concluded because his doctors recommended he be hospitalized.*fn3 However, given the testimony to this point (implicating DiVarco not only in the gangland-type assassination tied to Ignoffo, see Ex. 1 Finding 1, but also to the botched assassination of Ken Eto, a witness in the trial of this case), this Court ordered DiVarco committed to the custody of the Attorney General for confinement at Bethany Methodist Hospital pending imposition of sentence (subject, of course, to a possibly different resolution if the Hearing were completed before that time).*fn4

Both DiVarco and Ignoffo have now moved for release from detention, launching a number of constitutional attacks on Section 3143(a). For the reasons stated in this memorandum opinion and order, their motions are denied.

Changed Standards Under the Act

Two of this Court's colleagues have recently dealt with the constitutionality of other bail provisions of the Act: Judge Hart in United States v. Hazzard, 598 F. Supp. 1442 (N.D.Ill. 1984) (pretrial detention) and Judge Getzendanner in United States v. Cirrincione, 600 F. Supp. 1436 (N.D.Ill. 1985) (detention after sentencing and pending appeal, based on the likelihood of reversal on appeal). Though the constitutional considerations in those situations are obviously related to the considerations applicable to the present question, the distinctions among the several situations make neither of the earlier analyses controlling here.

Here we deal with already-convicted but not-yet-sentenced defendants, as to each of whom the decision of detention or release is based on whether he "is not likely to . . . pose a danger to the safety of any other person or the community if released" (Section 3143(a)). Just such a likelihood of danger was an established basis for denying bail under former law, 18 U.S.C. § 3148 (repealed by Act § 203(a)):

  A person . . . who has been convicted of an offense
  and is either awaiting sentence or sentence review
  under section 3576 of this title or has filed an
  appeal or a petition for a writ of certiorari, shall
  be treated in accordance with the provisions of
  section 3146 [establishing conditions of release]
  unless the court or judge has reason to believe that
  no one or more conditions of release will reasonably
  assure that the person will not flee or pose a danger
  to any other person or to the community. If such a
  risk of flight or danger is believed to
  exist . . . the person may be ordered detained.

Pre-Act law also imposed the burden of establishing the absence of such danger on the convicted defendant — at least one who has already been sentenced. Although early case law under 18 U.S.C. § 3148 had treated its language as continuing to create the historial presumption against detention (United States v. Provenzano, 605 F.2d 85, 94 (3d Cir. 1979)), in 1972 Fed.R.App. ("Rule") 9(c) was adopted expressly (1972 Advisory Committee Notes to that Rule):

  to allocate to the defendant the burden of
  establishing that he will not flee and that he poses
  no danger to any other person or to the community.
  The burden is placed upon the defendant in the view
  that the fact of his conviction justifies retention
  in custody in situations where doubt exists as to
  whether he can be safely released pending disposition
  of his appeal.

See discussion in Provenzano, 605 F.2d at 93-95.

Thus the allocation of proof as to the dangerous post-sentence defendant is clear. But this Court has not located any case, either under prior law or under the Act, dealing with the burden-of-proof question in the post-conviction pre-sentence situation such as DiVarco's or Ignoffo's. It would surely seem, however, that Congress might reasonably have viewed the single fact of conviction (as opposed to the precise timing of a detention decision — whether pre-sentence or post-sentence) as determinative, so as to equate the burden of proof in any post-conviction situation to that defined in Rule 9(c) (see the later discussion of this subject). In any event, the Act has now changed the burden on the convicted defendant (both pre-sentence and post-sentence) to one of "clear and convincing evidence."*fn5

Constitutional Considerations*fn6

1. Eighth Amendment

At the outset it should be made clear the "right to bail" here — at least in terms of a literal constitutional right — is plainly a misnomer. What the Eighth Amendment says on the subject is simply this:

Excessive bail shall not be required. . . . In Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952) the Supreme Court rejected (albeit in dictum) the notion that because excessive bail cannot be set, the outright denial of bail must a fortiori be foreclosed. Instead the Eighth Amendment was there taken to mean that if an individual is found entitled to bail at all, the right created by that determination cannot be subverted by an unreasonably high bail setting (id. at 545, 72 S.Ct. at 536):

  The [Eighth Amendment's] bail clause was lifted with
  slight changes from the English Bill of Rights Act.
  In England

  that clause has never been thought to accord a right
  to bail in all cases, but merely to provide that bail
  shall not be excessive in those cases where it is
  proper to grant bail. When this clause was carried
  over into our Bill of Rights, nothing was said that
  indicated any different concept. The Eighth Amendment
  has not prevented Congress from defining the classes
  of cases in which bail shall be allowed in this
  country.

There is room for debate on that score in the pre-conviction context, fueled in part by a dictum in Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3, 96 L.Ed. 1 (1951) (decided the same term as Carlson) (emphasis in original):

  From the passage of the Judiciary Act of 1789, 1
  Stat. 73, 91, to the present Federal Rules of
  Criminal Procedure, Rule 46(a)(1), federal law has
  unequivocally provided that a person arrested for a
  non-capital offense shall be admitted to bail. This
  traditional right to freedom before conviction
  permits the unhampered preparation of a defense, and
  serves to prevent the infliction of punishment prior
  to conviction. See Hudson v. Parker, 156 U.S. 277,
  285 [15 S.Ct. 450, 453, 39 L.Ed. 424] (1895). Unless
  this right to bail before trial is preserved, the
  presumption of innocence, secured only after
  centuries of struggle, would lose its meaning.

For an extended discussion of the issues in this area, see United States v. Edwards, 430 A.2d 1321, 1325-31 (D.C. 1981) (en banc).

But even the Stack dictum addresses the pre-conviction, not post-conviction, defendant. As for the latter category of offender Justice Douglas, scarcely a foe of civil liberties, spoke to the issue in his capacity as Circuit Justice in Carbo v. United States, 82 S.Ct. 662, 666, 7 L.Ed.2d 769 (1962):

  If, for example, the safety of the community would be
  jeopardized, it would be irresponsible judicial
  action to grant bail.

Accord, Harris v. United States, 404 U.S. 1232, 1235-36, 92 S.Ct. 10, 13-14, 30 L.Ed.2d 25 (1971) (Douglas, J., Circuit Justice); and see Russell v. United States, 402 F.2d 185, 187 (D.C.Cir. 1968):

  Appellants will remain in custody not because they
  lack the means to make bail, but for the reason that
  their release would present danger to the community.

But see Sellers v. United States, 89 S.Ct. 36, 38, 21 L.Ed.2d 64 (1968) (Black, J., Circuit Justice) (questioning whether a defendant's dangerousness can ever justify denial of bail).

This Court therefore rejects, as to convicted defendants DiVarco and Ignoffo, the unconstitutionality of Section 3143(a) on Eighth Amendment grounds.*fn7 If defendants are to find relief, it must be elsewhere in the Constitution.

2. Due Process Clause

Both DiVarco and Ignoffo advance a potpourri of challenges to the procedure under the Act. None is persuasive, and none calls for more than brief discussion.*fn8

Though they call on such pejorative rubrics as vagueness and lack of standards, DiVarco and Ignoffo attack Section 3143 in both procedural and substantive due process terms. It is true the statute does not specifically prescribe the procedures to be followed. But its requirement of a judicial officer's "find[ing] by clear and convincing evidence" necessarily connotes a hearing, and the clear implication of the statute is that the neighboring provisions of Sections 3142(f) (dealing with hearings for presentence detention) and 3142(g) (specifying the factors to be considered in such hearings, including safety or danger to other persons and the community) apply to Section 3143(a) as well.*fn9 This Court in fact conducted just such a hearing. In that light the DiVarco-Ignoffo arguments evanesce:

    1. Any claim that it is not clear to whom the
  statute applies is absurd: It is potentially
  applicable to any convicted defendant, and it is
  actually applied against any such person about whom
  the government has information that he or she poses a
  potential danger to other persons or the community.
  That triggers the need for a judicial determination
  of the issue, and hence a hearing.

    2. By its very nature, such "danger" can take a
  number of forms. Nothing requires Congress to
  substitute the particular for the generic — to
  give the term more precise content by giving examples
  or by establishing a laundry list. Certainly DiVarco
  and Ignoffo, tied by testimony to gangland-type
  assassinations (and with their potential for
  retaliation against witnesses here), cannot claim the
  concept of danger to others or the community is
  devoid of content in their cases. That would follow a
  fortiori from such cases as Provenzano, 605 F.2d at
  95-96. And as to what constitutes a "sufficient
  showing" of the likelihood of such danger, that is no
  different from any other factual determination courts
  are regularly called upon to make.

    3. By imposing the burden of going forward at the
  Hearing on the government and by according to each
  defendant and his counsel as much time as they found
  necessary to deal with the government's charges, this
  Court assured both adequate notice of the allegations
  against the defendants and ample opportunity for a
  meaningful defense. Edwards, 430 A.2d at 1339-41.

    4. Even in full-blown criminal trials, the Sixth
  Amendment's Confrontation Clause poses the only
  constitutional objection to hearsay evidence. And it
  has always been true of bail hearings, including
  those resulting in detention, that the rules of
  evidence do not limit the conduct

  of the hearing. Hearsay may be considered, with the
  judge applying his or her experience as a factfinder
  to decide the extent to which it is to be credited or
  discredited because of insufficient reliability. In
  fact the catchall provision of Fed.R.Evid. 803(24)
  and 804(b)(5) (which some thoughtful academicians and
  courts have suggested ought to supplant entirely the
  particularized exceptions to the hearsay rule) permit
  essentially that result even in the more formal
  environment of a trial. On this issue generally, see
  Edwards, 430 A.2d at 1337-38.

    5. Burden of proof allocations do not necessarily
  implicate due process requirements. This opinion has
  already pointed out that prior law imposed on the
  defendant the burden of proof (at least in the
  post-conviction, post-sentencing situation) of
  negating his or her likely danger to other persons or
  the community where that was placed in issue. And so
  long as the issue is one of likelihood of danger, it
  appears rational for Congress to have equated the
  convicted felon before sentencing with the same
  convicted felon after sentencing for the purpose of
  protecting society against the dangers he or she
  presents. In turn, that equal need for protection
  carries with it the rationality of the congressional
  decision that the burden of proof in the two
  situations should be exactly the same. Once that
  determination is made, the use of a "clear and
  convincing" rather than a preponderance test does not
  appear to cross the borderline into a due process
  no-man's land.*fn10

3. Equal Protection Clause

Ignoffo suggests Section 3143's failure to distinguish between those who plead guilty and those convicted after trial, between those convicted of misdemeanors and those convicted of felonies, and between those convicted of nonviolent and those convicted of violent offenses raises equal protection problems. DiVarco puts related issues in a different way: Section 3143's presumption against all convicted defendants — regardless of their offenses or backgrounds — bears no rational relationship to legitimate governmental interests of protecting the community (including other persons).

Of course the distinctions between offenders made by Ignoffo cut against rather than for him, except the comparison based on the nonviolent nature of the offenses of which he has been convicted. That fact — that he is on the wrong side of two of the three comparisons — creates standing questions as to his ability to raise such other claims. But even apart from that, what both Ignoffo and DiVarco gloss over is that the occasion for this Court's present determination is not the offense leading to the conviction but the post-conviction threat to safety posed by the defendant.*fn11 That is the class Congress has defined — all convicted defendants who represent such a societal threat — and that class bears the most direct imaginable nexus to the remedy: detention pending sentencing. There can be no quarrel with the rationality of that classification for Equal Protection Clause purposes.*fn12

4. Effective Assistance of Counsel

DiVarco says detention pending sentencing effectively negates his right to appeal, and both DiVarco and Ignoffo assert Section 3143's alleged procedural flaws preclude any meaningful defense. Both those arguments are essentially Sixth Amendment right-to-counsel claims, and simply to state them is to disclose their total lack of merit. It is clearly possible for a court to structure the conditions of presentence detention so as to preserve those rights to a defendant.

5. Ex Post Facto Clause

Up to this point DiVarco and Ignoffo have struck out on all the grounds they assert. That leaves for consideration only the ex post facto question — a question that (given Judge Getzendanner's opinion invalidating a related provision of the Act on that score) bears careful scrutiny.

Because this Court is not called upon to decide the same issues as Judge Getzendanner or Judge Hart, and because orderly jurisprudence dictates the non-decision of constitutional questions until they must be resolved in the crucible of a live controversy (see Ashwander v. TVA, 297 U.S. 288, 346-47, 56 S.Ct. 466, 482-83, 80 L.Ed. 688 (1936) (Brandeis, J., concurring)), nothing in this opinion should be construed as either subscribing to or disavowing either Cirrincione or Hazzard. But as both the extended analysis in Cirrincione and the shorter treatment in Hazzard reflect, the key to ex post facto vulnerability vel non in this case is whether, in the words of the most recent Supreme Court pronouncement on the clause, Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981), a defendant's punishment has been increased by the new law:

  The presence or absence of an affirmative,
  enforceable right is not relevant, however, to the ex
  post facto prohibition, which forbids the imposition
  of punishment more severe than the punishment
  assigned by law when the act to be punished occurred.
  Critical to relief under the Ex Post Facto Clause is
  not an individual's right to less punishment, but the
  lack of fair notice and governmental restraint when
  the legislature increases punishment beyond what was
  prescribed when the crime was consummated.*fn13

It is true Weaver, id. at 29, 101 S.Ct. at 964 also speaks in terms of the challenged law "disadvantag[ing] the offender affected by it." But that characterization alone is oversimplistic, for the Supreme Court itself has consistently taught not every "disadvantage" is vulnerable under the Clause, and the core inquiry remains the retroactive increase in punishment. As DeVeau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 1155, 4 L.Ed.2d 1109 (1960) put it:

  The mark of an ex post facto law is the imposition of
  what can fairly be designated punishment for past
  acts. The question in each case where unpleasant
  consequences are brought to bear upon an individual
  for prior conduct, is whether the legislative aim was
  to punish that individual for past activity, or
  whether the restriction of the individual comes about
  as a relevant incident to a regulation of a present
  situation. . . .

Just last Term the Supreme Court held pretrial detention to protect society from the potential consequences of predictable criminal acts was not punishment. Schall v. Martin, 104 S.Ct. at 2412-13 (1984).*fn14 Though that decision was rendered in the context of juveniles (with their special rights and disabilities), the same punishment v. non-punishment analysis was announced as to adult pretrial detainees five years earlier in Bell v. Wolfish, 441 U.S. 520, 535, 537, 538, 99 S.Ct. 1861, 1871, 1873, 1874, 60 L.Ed.2d 447 (1979) (citations omitted):

  In evaluating the constitutionality of conditions or
  restrictions of pretrial detention that implicate
  only the protection against deprivation of liberty
  without due process of law, we think that the proper
  inquiry is whether those conditions amount to
  punishment of the detainee. For under the Due Process
  Clause, a detainee may not be punished prior to an
  adjudication of guilt in accordance with due process
  of law.

  Not every disability imposed during pretrial
  detention amounts to "punishment" in the
  constitutional sense, however. Once the Government
  has exercised its conceded authority to detain a
  person pending trial, it obviously is entitled to
  employ devices that are calculated to effectuate this
  detention. Traditionally, this has meant confinement
  in a facility which, no matter how modern or how
  antiquated, results in restricting the movement of a
  detainee in a manner in which he would not be
  restricted if he simply were free to walk the streets
  pending trial. Whether it be called a jail, a prison,
  or a custodial center, the purpose of the facility is
  to detain. Loss of freedom of choice and privacy are
  inherent incidents of confinement in such a facility.
  And the fact that such detention interferes with the
  detainee's understandable desire to live as
  comfortably as possible and with as little restraint
  as possible during confinement does not convert the
  conditions or restrictions of detention into
  "punishment."

  This Court has recognized a distinction between
  punitive measures that may not constitutionally be
  imposed prior to a determination of guilt and
  regulatory restraints that may.

  A court must decide whether the disability is imposed
  for the purpose of punishment or whether it is but an
  incident of some other legitimate governmental
  purpose. . . . Absent a showing of an expressed
  intent to punish on the part of detention facility
  officials, that determination generally will turn on
  "whether an alternative purpose to which [the
  restriction] may rationally be connected is
  assignable for it, and whether it appears excessive
  in relation to the alternative purpose assigned [to
  it]."

What is at work under Section 3143 is not punishment for past conduct but the protection of society generally, and its individual members particularly, from reasonably predictable future conduct. Schall, 104 S.Ct. at 2417-18 (citations omitted) said:

  Our cases indicate, however, that from a legal
  point of view there is nothing inherently
  unattainable about a prediction of future criminal
  conduct. Such a judgment forms an important element
  in many decisions, and we have specifically rejected
  the contention, based on the same sort of
  sociological data relied upon by appellees and the
  district court, "that it is impossible to predict
  future behavior

  and that the question is so vague as to be
  meaningless."

That calls into play the concept our Court of Appeals applied to the Ex Post Facto Clause (albeit in a different context from the present one) in United States v. Sutton, 521 F.2d 1385, 1390-91 (7th Cir. 1975) (quoting United States v. Karnes, 437 F.2d 284, 289-90 (9th Cir.), cert. denied, 402 U.S. 1008, 91 S.Ct. 2189, 29 L.Ed.2d 430 (1971)):

  It is well established "that where Congress has
  rationally concluded that persons who have
  demonstrated a tendency in the past to engage in
  conduct that Congress has the power to proscribe,
  Congress may restrict such future activities without
  violating the Ex Post Facto prohibition."

Again the result here is foreordained by the like conclusions as to pretrial detention. In the pretrial situation the mere probable cause to believe commission of a crime, coupled with a perceived threat of the defendant to the safety of others, has rendered the detention order something other than "punishment." Absent punishment there is no ex post facto problem. Here, by comparison, a jury has already found beyond a reasonable doubt that DiVarco and Ignoffo have committed crimes. Surely society cannot be less entitled to protect itself and its members against what this Court has found the likelihood of real dangers — dangers that would be posed by the continued enlargement of convicted defendants Ignoffo and DiVarco*fn15 pending their sentencing.

Conclusion

Section 3143 is not vulnerable to constitutional onslaught, either on its face or as applied to DiVarco and Ignoffo.*fn16 Both their motions for release on bail pending sentencing are denied.

Exhibit 1

Reprinted at 602 F. Supp. 1027

Exhibit 2

UNITED STATES OF AMERICA, Plaintiff,

v.

JOSEPH DiVARCO, et al., Defendants.

No. 84 CR 507

DETENTION ORDER

On January 9, 1985 following a jury trial, Joseph DiVarco ("DiVarco") was convicted on all counts in the indictment in which he was named in this case. On January 10 the government moved for DiVarco's detention pursuant to 18 U.S.C. § 3143(a). This Court immediately commenced a detention hearing (see 18 U.S.C. § [3142](f)), found that the government had presented credible evidence that established prima facie (though this Court has not at this time definitively found) that DiVarco was likely to pose a danger to the safety of other persons or the community if released pursuant to 18 U.S.C. § 3142(b) or (c) and that DiVarco had not yet established by clear and convincing evidence that he was not likely to pose such danger, and therefore ordered DiVarco detained pending completion of the hearing. Such completion of the hearing was not feasible at that time, in part because DiVarco's counsel advised that DiVarco's doctors had directed his hospitalization to avoid the possibility of his contracting pneumonia.

In accordance with 18 U.S.C. § 3143(a) this Court hereby orders that DiVarco be committed to the custody of the Attorney General for confinement at Bethany Methodist Hospital pending imposition of sentence, upon the following conditions:

    1. DiVarco shall be allowed monitored visits from
  his immediate family (his wife, their children and
  their children's spouses). All such visits are to be
  prearranged through the United States Marshal's
  Service.

    2. DiVarco's attorneys (George Lynch, Joseph Laraia
  and Jacqueline Walther) and his doctors shall have
  unlimited, unmonitored access to him.

    3. United States Probation Officer Rhoda Michaels
  shall have unmonitored access to DiVarco by
  prearranged appointment.

    4. DiVarco shall be provided telephone access to
  his immediate family (see Paragraph 1) if such access
  can be secured through the United States Marshal's
  Service. Such access shall not include a direct dial
  telephone.

    5. No access shall be provided the United States
  Marshal's Service to DiVarco's medical records, nor
  shall any Marshal discuss DiVarco's medical condition
  with hospital personnel.

                  /s/ Milton I. Shadur
                  Milton I. Shadur
                  United States District Judge

Date: January 11, 1985


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