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United States v. Anthony Salerno and Vincent Cafaro
Citations: 794 F.2d 64; 1986 U.S. App. LEXIS 26959Docket: 1387
Court: Court of Appeals for the Second Circuit; July 3, 1986; Federal Appellate Court
Defendants Anthony Salerno and Vincent Cafaro appeal pretrial detention orders from the United States District Court for the Southern District of New York, which were issued under the Bail Reform Act of 1984. The court determined that no conditions of their release could ensure community safety. The defendants challenge their detention on both statutory and constitutional grounds. The appellate court finds no merit in the statutory arguments but rules that the provision permitting their pretrial detention violates the Due Process Clause of the U.S. Constitution. Consequently, the court vacates the district court's orders, remands for the establishment of bail conditions, and stays the mandate issuance pending a related case. Salerno and Cafaro were arrested on March 21, 1986, and charged with a range of offenses, including conspiracy under the Racketeer Influenced and Corrupt Organizations Act (RICO), mail and wire fraud, extortion, and operating illegal gambling businesses. The indictment details 35 specific acts of racketeering, including conspiracies to commit murder. During their arraignment, the government sought pretrial detention, asserting that while the defendants did not pose a flight risk, their release could threaten community safety. Following an evidentiary hearing, the government presented evidence from electronic surveillance indicating Salerno's leadership role in the Genovese Crime Family and Cafaro's position as a captain, along with their involvement in violent conspiracies to eliminate competition and enforce their criminal enterprises. The proffer indicated that two former high-ranking organized crime witnesses would testify to Salerno's involvement in conspiracies to murder two individuals, supported by electronic surveillance showing his approval of another murder plan. Salerno countered the government's motion for detention by arguing that the witnesses could be impeached due to their criminal backgrounds and cooperation agreements. He also presented witnesses who claimed he posed no danger to the community and a letter from his doctor detailing his serious health issues, including a history of high blood pressure and a prior stroke. Cafaro did not present evidence but argued that the government's recordings of his threats were merely "tough talk" with no proof of actual violence. After a two-day hearing, the court granted the government's detention motion, finding clear and convincing evidence that no release conditions could ensure community safety. The court highlighted Salerno's ability to order murders with a simple word and noted the seriousness of past conspiracies, determining he remained a present danger. Salerno's proposed conditions, including house arrest, were deemed inadequate based on precedents. For Cafaro, the court found evidence of his active involvement in directing violent acts of the enterprise, concluding that his proposed conditions would only ensure his trial presence, not community safety. The court recognized the ongoing threats posed by organized crime, emphasizing that criminal operations do not cease with arrests. Salerno and Cafaro were ordered by the court to be committed to the Attorney General's custody prior to trial, with confinement in a corrections facility separate from other detainees and the provision for private consultations with their attorneys. Judge Mary Johnson Lowe reviewed the detention order issued by Judge Walker and denied the defendants' request for reconsideration, concluding that there was no new evidence to overturn Walker's findings. The defendants have appealed both judges' orders, raising multiple issues including a claim that the government's use of electronic surveillance evidence violated 18 U.S.C. Sec. 2518(9) and that the evidence did not meet the standards for pretrial detention under 18 U.S.C. Sec. 3142(f). They also argue that pretrial detention based on the likelihood of committing further crimes violates due process. The government contends that the appeal notices were not timely filed, impacting jurisdiction. However, the court found the notices were timely because the March 28 order was never entered into the criminal docket and was superseded by the April 2 order, which initiated the 10-day appeal period. The court thus rejected the government's jurisdictional argument and found merit in the defendants' constitutional challenge to Sec. 3142(e) of the Bail Reform Act under the current circumstances. Defendants argue that the detention order violated statutory provisions, specifically pointing to two key issues: (1) the government's failure to provide Salerno with surveillance information before the detention hearing, as required by 18 U.S.C. Sec. 2518(9), and (2) insufficient evidence to support the court's finding that they pose a danger to the community under 18 U.S.C. Sec. 3142. Regarding the intercepted conversation, the government presented a recording obtained through electronic surveillance of a conversation in Edgewater, New Jersey. Salerno contends that the absence of the necessary surveillance application and order ten days prior to the hearing necessitated the rejection of this evidence. The court disagrees with the government's argument that Sec. 2518(9) does not apply to detention hearings under the Bail Reform Act due to the impossibility of compliance within the required timeframe. The court interprets the language of Sec. 2518(9) as inclusive of all hearings, including detention hearings, consistent with legislative history indicating that "proceeding" encompasses adversarial hearings. The Bail Reform Act guarantees defendants certain rights in these hearings, reaffirming the applicability of Sec. 2518(9). Thus, the court concludes that detention hearings fall under the provisions of Sec. 2518(9). The 10-day period for a defendant to be informed about surveillance orders and applications, as outlined in Sec. 2518(9), does not invalidate the scheduling of an initial detention hearing under Sec. 3142(f) before this period expires. Sec. 2518(9) permits a judge to waive this period if the government could not provide the required information in advance and the defendant is not prejudiced by the delay. Similarly, Sec. 3142(f) allows for continuances beyond the typical maximums for good cause, which may include delays caused by the government's inability to furnish the necessary information. However, the court found no violation of Sec. 2518(9) because its purpose is to give an "aggrieved person" the opportunity to file a pretrial motion to suppress. An "aggrieved person" is defined as someone involved in the intercepted communication, meaning Salerno, who was neither named in the surveillance order nor a party to any intercepted conversation, lacked standing to suppress the evidence and was not prejudiced by any delay. Furthermore, under the Bail Reform Act, pretrial detention can be authorized if the government proves by clear and convincing evidence that no conditions would assure public safety. The burden is on the government to demonstrate the defendant poses a danger, and the district court's findings in this regard are typically upheld unless clearly erroneous. In this case, the government successfully established that Salerno, as the leader of a violent organization, posed a danger to the community, and the court's findings were adequately supported by the evidence presented. The district court's application of the Bail Reform Act was upheld, finding the defendants' proposed release conditions insufficient to prevent them from continuing their criminal activities. The conditions suggested by Salerno were deemed inadequate, similar to those in United States v. Colombo, while Cafaro’s conditions were found to be even less effective. Consequently, the detention order was consistent with the Bail Reform Act. The defendants argued that the Bail Reform Act violates due process by allowing pretrial detention based on perceived danger to the community under Section 3142(e). The court noted that the government did not assert that such detention could be viewed as punishment, which is not permissible without a prior adjudication of guilt. Instead, the government framed pretrial detention as a necessary measure for public safety. However, a panel majority in a related case, United States v. Melendez-Carrion, ruled Section 3142(e) unconstitutional for prolonged detention based solely on danger to the community, with internal divisions on the rationale. In the current case, the court emphasized that the detention did not stem from concerns of flight risk or witness tampering, as the government acknowledged there was no flight risk. The court found that the sole basis for detention was the belief that the defendants would continue their criminal behavior if released. This rationale was deemed inconsistent with substantive due process, which does not permit deprivation of liberty solely to prevent potential future crimes. The court criticized the notion of preventive detention as a valid regulatory measure, highlighting that it would lead to a police state mentality if applied to individuals not accused of any crime. Total deprivation of liberty cannot be justified solely on the basis of rational regulation for a substantial government interest, according to the Due Process Clause. Incarceration of dangerous individuals who have not been accused of any crime exceeds constitutional limits, even if procedural protections, such as a jury trial, are provided. The statute permitting such detention would violate substantive due process limits because it constitutes preventive detention rather than punishment for past crimes. The Due Process Clause mandates that criminal justice systems must clearly define prohibited conduct and penalize those who commit crimes, focusing on accountability for past actions rather than potential future risks. Incarceration for the purpose of preventing future crime is constitutionally impermissible. This principle applies equally to individuals not convicted of a crime and to those who have completed their sentences; both cannot be detained based solely on the risk they might pose. Furthermore, if an arrest suggests greater danger than unaccused individuals, it would violate procedural due process by bypassing necessary legal safeguards. The Due Process Clause prohibits incarceration based on the likelihood of future criminal behavior without formal charges. Even for those charged with past crimes, the appropriate response is to impose the legally stipulated penalty, and post-sentence confinement for protective reasons is not permissible, regardless of recidivism rates. Thus, the potential for repeat offenses does not justify preemptive incarceration. Incarceration as a regulatory measure is prohibited by the substantive component of the Due Process Clause, rather than the Double Jeopardy Clause, which applies only to punitive measures. Upholding pretrial detention based on the assumption that defendants charged with violent crimes will continue their activities creates a contradiction: individuals charged but not yet convicted could be detained for potential future crimes, while those not charged or who have completed their sentences cannot be detained for similar predictions. The government’s argument that serious arrests justify detention due to the likelihood of continued criminal behavior is rejected. Arrests allow for some regulatory curtailment of liberty, and detention may be reasonable under the Fourth Amendment until a judicial determination of probable cause is made. The constitutional framework mandates that an arrest should lead to a trial, implying that reasonable measures can be taken to ensure trial attendance and prevent witness intimidation or harm. Pretrial detention is permissible to mitigate flight risks or trial interference but is not justified solely to prevent future crimes against society. Such a preventive measure conflicts with foundational principles of the criminal justice system, which distinguishes between detaining for past conduct versus future potential criminality. While risks may arise from allowing potentially dangerous individuals to remain free, constitutional guarantees of liberty cannot be overridden solely on the basis of preventing risk. Gerstein v. Pugh does not support pretrial detention aimed at preventing future crimes. The Supreme Court's allowance for brief detention was intended solely for administrative purposes related to arrest, not as justification for prolonged detention. The statement regarding a defendant's potential to commit further crimes during this brief detention was meant to underscore the necessity of presenting probable cause to a neutral magistrate, rather than to justify extended detention. The ruling in Schall v. Martin, which permits temporary preventive detention for juveniles, does not apply to adults, as the interests at stake differ significantly; juveniles have a lesser interest in liberty compared to adults. The majority disagrees with other appellate courts that have upheld pretrial detention based on dangerousness, noting that no findings in this case indicate that the defendants threaten witnesses or the judicial process. Instead, it was determined they would continue their normal activities if released. Consequently, the majority concludes that Section 3142(e) of the Bail Reform Act, which permits detention for this reason, is unconstitutional. The orders under appeal are vacated, and the matter is remanded for bail conditions to be set, with a stay on the mandate until the resolution of United States v. Melendez-Carrion. Chief Judge Feinberg dissents, arguing that pretrial detention based on dangerousness does not violate the Due Process Clause when supported by clear evidence of a risk of future crime, provided the detention is not excessively punitive. He supports the constitutionality of the Bail Reform Act of 1984, which permits the government to seek detention of defendants posing a threat to community safety prior to trial. Under 18 U.S.C. § 3142(f), a judicial officer must order detention if no conditions of release can prevent a threat. Following the precedent established in United States v. Melendez-Carrion, 790 F.2d 984 (2d Cir. 1986), it is noted that pretrial detention raises constitutional issues, particularly regarding the liberty interests of mentally competent adults not yet convicted. While such detention for dangerousness is unconventional, its legality hinges on whether it aligns with fundamental fairness under the Due Process Clause. Congress introduced preventive detention provisions in the Bail Reform Act due to concerns over crimes committed by individuals on release, emphasizing the need to protect the community from a subset of particularly dangerous defendants. The Supreme Court, in Bell v. Wolfish, left open the constitutional justification for pretrial detention based on such objectives. However, in Schall v. Martin, the Court upheld the detention of juvenile defendants for a limited period to prevent future crimes, establishing that such measures can serve legitimate governmental interests without constituting punishment. Although Schall involved juveniles, the compelling societal interest in preventing pretrial crimes applies equally, if not more so, to adults, who may pose greater risks due to their access to more serious offenses. Consequently, various circuit courts have found the preventive detention provisions of the Bail Reform Act to be constitutional, reinforcing the government's legitimate interest in pretrial confinement of adult defendants. The Due Process Clause requires heightened scrutiny of the Bail Reform Act, which limits a defendant's liberty. Under 18 U.S.C. Sec. 3142(e), a judicial officer can only order confinement for dangerousness if it's established that no release conditions can ensure community safety. Detention is intended as a last resort, with appellants failing to convincingly argue that the statutory procedures protecting against wrongful deprivations of liberty are inadequate. The government must avoid actions that "shock the conscience," but brief pretrial detention based on predictions of future crimes does not violate this standard. Such predictions are accepted in the judicial process for determining prison sentences and bail decisions. Additionally, individuals may be temporarily detained to prevent potential future offenses before appearing before a magistrate. The Bail Reform Act establishes safeguards: defendants must be charged with serious crimes, the government must prove dangerousness and that no release conditions would suffice, both by clear and convincing evidence. Detention under the Bail Reform Act is intended to be temporary, only lasting until a determination of the defendant's guilt is made. The critical constitutional question is whether a defendant, already indicted for a serious crime, can be denied bail based on clear and convincing evidence of the likelihood of committing another crime if released. This issue presents significant constitutional concerns, particularly in cases involving serious offenses, such as terrorism, where evidence suggests a potential for repeat offenses. The majority opinion notes an apparent inconsistency: individuals charged with serious violent crimes can be detained based on predictions of future violence, while those without such charges cannot. However, the Bail Reform Act applies solely to those indicted, which alters the due process analysis by establishing probable cause that the accused has committed a serious crime. This legal finding provides a basis for predicting future criminal behavior, justifying significant restrictions on liberty. The Act includes a limitation on the duration of detention, which ends upon the resolution of the criminal charges, whether by plea or trial. Although pretrial delays may impact due process considerations, the Act aims to maintain community safety pending legal proceedings. Ultimately, detaining indicted defendants based on compelling evidence of future law violations does not breach the principles of ordered liberty or the Due Process Clause. The evaluation of the statute's application, however, raises further questions about due process compliance, indicating that while the Act is constitutional in theory, its practical application must still adhere to due process standards. Appellate courts have consistently indicated that pretrial detention aimed at preventing future crimes may violate the Bail Reform Act if it is excessively prolonged. Key cases cited, such as Portes and Accetturo, highlight that the duration of detention can affect the due process balance. Even when objectives are legitimate, indefinite detention is not justifiable, as it may exceed due process limits. Lengthy pretrial incarceration can be seen as punishment, contradicting the principle that the government cannot punish those not convicted. The determination of whether a measure is punitive is based on its purpose and whether it is excessive relative to nonpunitive aims. In previous opinions, including Melendez-Carrion, it was assumed that Congress did not intend for preventive detention to be punitive, but excessive confinement can transform a regulatory measure into punishment under the Due Process Clause. The criteria for distinguishing regulatory from punitive measures involve assessing the nature of the restraint and historical context. Extended detention based on perceived danger, without the traditional justifications for jail, resembles punishment and can violate due process. Each case of preventive detention should be evaluated individually, as due process does not establish a strict time limit for pretrial confinement. In the current matter, Salerno and Cafaro have been detained for about three months; however, the mere passage of time may not be sufficient to determine whether the detention has become punitive. Length of time in pretrial detention may not fully reflect its impact on the accused; due process considerations should also evaluate the reasons for delays. Factors to consider include the complexity of the case and whether either party has unnecessarily complicated or delayed proceedings, as referenced in Accetturo, 783 F.2d at 388. The current record does not support the conclusion that the detention of Salerno and Cafaro amounts to punishment. Affirmation of the detention does not preclude the appellants from pursuing their constitutional claims in the future. The analogy to those who have served sentences for past offenses is not applicable due to double jeopardy concerns and the rehabilitative purpose of sentencing, which does not pertain to those not yet convicted. Pretrial detention is a severe remedy that requires the government to expedite trial processes; normal procedures may be insufficient. In complex cases, the government might need to seek severance or ensure quick transcription of evidence. If the government cannot manage these costs, pretrial detention may be inappropriate. The Speedy Trial Act mandates prioritization for cases involving detained individuals. The trial judge set a pretrial motions deadline shortly after October 1, 1986, which raises concerns about the justification for such a slow pace in a detention case.