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UNITED STATES v. DIVARCO

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):

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 ...

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