Amicus Curiae Brief — United States v. Salerno

Supreme Court brief1987

Ask Donna

What actually matters in this document.

Text

a §

NO. 8687

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TEPM, 1986

UNITED STATES OF AMERICA, PETITIONER

VS.

ANTHONY SALERNO AND VINCENT CAFARO,

RESPONDENTS

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF AMICUS CURIAE

Ina C. Brunwasser, Esquire

750 Washington Road #901

Pittsburgh, PA 15228

412-341-0125

ATTORNEY FOR AMICUS

CURIAE, HOWARD PERRY

CERTIFY THE WITHIN TO BE A

fiom ascmeay,

bas oh With A

— —_

SnoTuy JeTig PUe SETAND snotTwW SeTT_Z 02 saPeT IOJ uoTIoOW

SU3 JO SeTdod peares useq SAPY PSAISS 3q OF perTNbe2z

Setjzied [Te 3eYR PEeTJTAIeD Aqezey st 37

HOIAMaS dO NOILYOIZILYFO

OWWIVO LNFONIA

GNY ONYZ IVS ANOHLINY

(

L898 *ou ( “SA

(

( HWANOILILGd

‘WOIMAWY JO SBLWLS GALINA

986T ‘WHEL YAGOLOO

SALWLS GHLINN JO LYNOD AWAYdNS FHL NI

eitnbsg ‘zessemunig *5 eur

ee ees ss

9861 ‘7¢ requieseq

O€S02 “D*d ‘uojbutusem |

SsoT3asne jo jusewjzredsg

S83e3S peytun sy jo Tez8UsD IOZTOTTOS

eitnbsg ‘petzqg setTzeyD

ETOOT AN “HICK MOn

OO€Z S3TNS

38913S uospnH 09

Sitnbsg ‘Teyuezqz *y usaeqs

80TZ0 WW ‘uo jSOg

OC7ZT 93TNs

399173S uocoPeg TT

extibes ‘eTeutTpze) *‘w Auoyjuy

:HUTMOTTOJ su 03

weee seTées easea ‘eaeace (UES“eaaseeses ess tc, 2 .........

NO. 8687

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

UNITED STATES OF AMERICA, PETITIONER

VS.

ANTHONY SALERNO AND VINCENT CAFARO,

RESPONDENTS

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF AMICUS CURIAE

Howard Perry, by his Attorney,

Ina C. Brunwasser, respectfully files

this Motion and Brief Amicus Curiae in

support of Respondents Anthony Salerno

and Vincent Cafaro.

TO THE HONORABLE CHIEF JUSTICE AND

ASSOCIATE JUSTICES OF THE SUPREME COURT:

The Applicant, Howard Perry, a

petitioner for a Writ of Certiorari

before this Court (No. 86-5172, October

Term 1986), whose petition was denied on

October 6, 1986, hereby applies by

Supreme Court Rule 36 (amicus briefs) and

Rule 42 (motions) to file the brief of an

amicus curiae on behalf of Respondents.

On November 14, 1986,

Applicant, in accordance with Supreme

Court Rule 36.2, requested the consent of

all parties to the filing of an amicus

curiae brief at No. 8687, October Term,

1986. On December 1, 1986, Anthony M.

Cardinale, Esquire for Respondent

Salerno, granted consent to Applicant's

filing of an amicus brief. However, on

December 3, 1986, Charles Fried,

Solicitor General of the United States,

denied such consent. Although, as of the

date of filing this motion, Steven K.

Frankel, Esquire, Attorney for Respondent

Cafaro, has not replied to Applicant's

request, consent must be unanimous.

Applicant is, therefore, filing the

instant motion as required by Supreme

Court Rule 36.3.

Applicant's Attorney, Inc. C.

Brunwasser, was appointed to represent

Howard Perry (forma pauperis) ina

petition for Certiorari before this Court

at No. 86-5172, October Term, 1986.

Applicant's interest in the

case before this Court is to support the

position of Respondents by presenting a

brief supplementing questions already

-2-«

ee ee ee ee ee ee ee ele le ll

submitted to the court and by addressing

issues not yet addressed.

Howard Perry was indicted in

November and December, 1985 for various

drug offenses. Although the intricacies

of his case are now irrelevant to the

interest of am amicus curiae, the

following procedural history of his

litigation is necessary to explain his

desire to participate.

Since Mr. Perry was charged for

an offense punishable by imprisonment for

ten years or more under the Controlled

Substances Act (21 U.S.C. 801 et seq), he

was subject to pretrial detention under

the Bail Reform Act, 18 U.S.C. 3142 (e)

{the Act]. Mr. Perry was required to

rebut the Act's presumption of

dangerousness only. Although the United

-3-«

States District Court for the Western

District of Pennsylvania by order of

Judge Paul Simmons (December 6, 1985),

held that Perry rebutted all presumptions

of dangerousness, he has been

incarcerated since December 10, 1985

because he was unable to secure the

$100,000 bond required by the Court.

Although the Court also declared the

preventative detention features of the

Act unconstitutional, the order does not

specifically mention such a ground for

decision.

On April 7, 1986, the Third

Circuit of Appeals reversed Judge Simmons

by holding that (1) The Act is not a

violation of the Eighth Amendment, due

process, equal protection or the Sixth

Amendment (2) Perry failed to rebut the

-4-

presumption of dangerousness and,

therefore will be detained. The Court

did not address the issues of the alleged

unconstitutionality of the disparate

standards of appellate review employed by

various federal courts or the

questionable constitutionality posed by

the system of presumptions used to detain

defendants pending trial.

Perry was convicted at No.

85-263 cf all but one charge in April of

1986. In May, Perry plea bargained the

second charge (No. 253M). Both cases are

now on appeal to the Third Circuit where

Perry has asked for new trials. If his

request is granted, Mr. Perry will again

be subject to the pretrial detention

features of the Act.

Although Mr. Perry has been

- 5 -

convicted and is only awaiting the

possibility of a new trial (and,

therefore, arguably not at present

subject to pretrial bail), he asserts

that his case is within the following

exception cited in Murphy v. Hunt, 455

U.S. 478, 482, 102 S. Ct. 1181, 1183

(1982):

"Even when no more relief may be

granted to a plaintiff, a case

may...remain viable on appeal

if the problem presented is

capable of repetition yet

evading review. This standard

applies if (1) the problem

allegedly causing injury is

resolved within too short a

time period to ever be fully

litigated and appealed and

(2) the party seeking relief .

is likely to be subject to

the same injury in the future."

See also, Sibron v. New York,

392 U.S. 40, 88 S. Ct. 1889 (1968); Roe

v. Wade, 410 U.S. 113, 125, 93 S. Ct.

705, 712 (1973); Ameron Inc. v. U.S. Army

Corp. of Engineers, 787 F.2d 875, 880-881

(3d Cir. 1986).

By comparing the factual

Situation in Ameron, Inc. v. U.S. Army

Corp. of Engineers, 787 F.2d at 875, the

most recent case in this Circuit to apply

the Murphy v. Hunt role, 455 U.S. at 478,

102 S. Ct. at 1181, to that of Applicant,

it seems clear that Mr. Perry has

standing to challenge "the Act". In the

Ameron case, 787 F.2d at 881, the Third

Circuit held that one prong of the Murphy

v. Hunt test [problem resolved before

litigation completed] was met, See 455

U.S. at 482, when an unsuccessful bidder

challenged the constitutionality of the

Competition in Contracting Act (CICA) 131

USCA 3553 et seg (West Supp. 1985), even

after the contract was awarded to another

company. Since a bid protest will

normally be resolved within 90 days, by

the time a case can be appealed, it will

almost always face the prospect of being

regarded as moot.

Petitioner respectfully asserts

that he also satisfies prong one of the

° 6 «

. 2 az pe |

Murphy v. Hunt test, 455 U.S. at 478.

Because of the 70 day Speedy Trial Rule,

every defendant must be brought to trial

of his case plea bargained within 70

days. The constitutionality of "the Act"

will forever evade review if technical

aspects of our judicial system, intended

to safeguard civil rights, are used to

Silence defendants on appeal.

The Third Circuit also held in

the Ameron case, 787 F.2d at 881, that

prong two of the Murphy v. Hunt test for

standing was satisfied [i.e., there was a

reasonable expectation that this party

would be subjected to the same action

again]. Since the Ameron Company

frequently sought government contracts,

there was a high probability that it

would again protest the awarding of a bid

« Fe

to a competitor. Petitioner contends

that if one or both of his appeals result

in a remand or new trial or if, in the

future, he is charged with an offense

under "the Act", he will again be held

"dangerous" and be incarcerated.

Therefore, Applicant contends

that he has a live interest before the

Court either by reason of his pending

appeals or as an exception to the rule in

Murphy v. Hunt, 455 US at 482.

Respondents principally

challenge the Act on due process grounds.

Respondents’ concern is that the Act

punishes defendants by depriving them of

liberty upon a mere prediction of future

crime. Applicant supports Respondent in

this issue. However, Applicant's Brief

raises constitutional challenges to the

- § «

Act which Respondents do not appear to

raise. These issues, apparently not

presented by the Respondents are:

1. Whether the United States

Supreme Court should establish a national

standard of appellate review for

magistrates’ detention orders under the

Bail Reform Act (18 USCA 3142)?

2. Whether the Rebuttable

Presumption (18 USCA 3142 (e)) is

unconstitutional because facially vague

and must therefore be defined for the

nation?

3. Whether "the Act" should

be declared unconstitutional under the

Fifth Amendment, even if the United

States Supreme Court supplies a national

definition of the term "presumption"?

4. Whether the United States

- 9 -

Supreme Court should hold "the Act"

unconstitutional when pretrial detention

may be wholly founded upon oral testimony

which can be rejected by the Court, thus

allowing detention based upon a

conclusive presumption?

Applicant contends that it is

vital that the Court also consider these

constitutional challenges to the Act.

In addition, on its facts, Mr.

Perry's case illustrates that the Act is

not only detaining alleged high ranking

crime figures merely on "clear and

convincing" evidence of future

dangerousness" but also, and, it can be

argued, principally, is being used

against alleged "small time" criminals.

= 10 «

STATEMENT

On November 21, 1985, a

Criminal Complaint (No. 85-253M, Ct. of

Appeals No. 85-85-3680) was filed

charging Howard Perry and Gary Moore with

conspiracy to possess heroin with intent

to distribute in violation of 21 U.S.C.

841 (a)(1) (1982) and 21 U.S.C. 846

[1982].

Defendant Perry, thereby

charged for an offense punishable by

imprisonment for ten years or more under

the Controlled Substance Act (21 U.S.C.

801 et. seq.), was subject to possible

pretrial detention unless he was able to

rebut the presumption of dangerousness

under the Bail Reform Act, 18 U.S.C.A.

3142 (e) [the Act]. Such hearing was

held on November 25, 1985. The

- ll -

magistrate entered a detention order by

virtue of 28 U.S.C.A. 636 (a)(2) [West

Supp. 1985].

On November 27, 1985, defendant

Perry sought review of the magistrate's

order by the United States District Court

for the Western District of Pennsylvania

pursuant to 18 U.S.C.A. 3145 (b) [West

1985]. On December 5, 1985, District

Judge Paul Simmons held a de novo

detention hearing, which is the standard

of review applied by the Third Circuit.

On December 5, 1985, Judge Simmons held

the Bail Reform Act substantively and

procedurally unconstitutional and orally

set bail at $100,000.

During the December 5, 1985

detention hearing before Judge Simmons,

all parties learned of a second

indictment against Perry and others (No.

85-263, Ct. of Appeals No. 85-3671),

handed down on December 2, 1985, charging

them with conspiracy to distribute and

possession with intent to distribute

cocaine, marijuana and percodan. On the

evening of December 5, 1985, Judge

Simmons held a second detention hearing

on the new charge. Both hearings

involved the second rebuttable

presumption situation triggered by 3142

(e) of the Act.

During the second detention

hearing on December 5, 1985, the United

States moved for a stay of the decision

to grant bail, which the District Court

orally denied.

On December 6, 1985, District

Judge Simmons filed an order covering the

- 13-

two detention hearings held on

December 5, 1986. The order held that:

(1) Perry rebutted all

presumptions of dangerousness

(2) The United States failed

to present any evidence to discount

Perry's testimony

(3) Perry would be released

temporarily on his own recognizance until

December 10, 1985 to secure a $100,000

bond ($50,000 for each indictment).

Although the Court had, in both

hearings, declared the preventative

detention features of the Act

unconstitutional, the order does not

specifically mention such a ground of

decision.

Unable to secure the bond,

Perry has remained in jail since

- 14 «

December 10, 1985.

Perry was brought to trial at

No. 85-263 in April of 1986 and was

acquitted of the percodan charge but

convicted on all other counts. This

conviction is now on appeal to the Third

Circuit Court of Appeals. In May, Perry

plea bargained the second charge (No.

253M). These facts are irrelevant to the

constitutional issues raised by the Act's

pretrial detention features but are only

included as a complete factual synopsis.

The United States appealed the

December 6, 1985 order of Judge Simmons

in both cases and requested an emergency

stay of the order granting release on

bail. Perry's Counsel was given until

December 13, 1985 to file an answer.

However, on December 12, 1985, a panel of

- 15 -

the Third Circuit Court of Appeals

granted a stay, prior to the period given

Perry to file his answer and expedited

the appeal. There was appellate

jurisdiction by virtue of 18 U.S.C.A.

3145 (c) (West 1985] and 28 U.S.C.A. 1291

(West 1982].

Oral argument was held on

January 17, 1986, subsequent to which the

United States moved to dismiss its appeal

in No. 85-263. On April 7, 1986, the

motion to dismiss No. 263 was granted.

Also, on April 7, 1986, after @ de novo

review of the District Court release

order, by virtue only of case law, since

no statutory standard of review has been

established, see United States v.

Coleman, 777 F.2d 888 (3d Cir. 1985) and

United Scates v. Delker, 757 F.2d 1390

- 16 «-

——_—

—_

(3d Cir. 1985), the Third Circuit

reversed Judge Simmons. The Appellate

Court held:

(1) The act is not a

violation of the Eighth Amendment, Due

Process, Equal Protection or the Sixth

Amendment.

(2) Perry failed to rebut the

presumption of dangerousness and,

therefore, will be detained. The Court

did not address the issues of the alleged

unconstitutionality of the disparate

standards of appellate review employed by

various federal courts or the

questionable constitutionality posed by

the system of presumptions used to detain

defendants pending trial.

On April 30, 1986, a timely

petition for rehearing was denied by the

e 17 «

Third Circuit.

On July 1, 1986, a petition for

an extension of time within which to file

the writ of certiorari was granted to and

including July 29, 1986.

SUMMARY OF ARGUMENT

1. The Circuit Courts of the

United States are applying disparate

Standards of review for magistrates’

detention orders under the Bail Reform

Act [18 U.S.C. 3142 (e)] because the Act

is silent regarding the standard of

review to be applied to these orders. A

national standard of appellate review

should be pronounced by this court to

preserve uniform justice.

Yo The Circuits, without

- 18 -

guidelines from the Act regarding the

meaning of the word "presumption", are

devising disparate procedural

requirements. The initial constitutional

problem is whether the term "presumption"

requires defendants to meet the difficult

“burden of persuasion" or only a "burden

of production". There is also disparity

regarding the procedure required under

the "burden of production" standard.

It is urged that this

conflict be eliminated by this Court's

defining which of the two standards is

meant and if the "burden of production

standard" is approved, which of its

several theories is meant by the Act.

3. Even if this Court

supplies a national definition of the

term "presumption", the Act should still

- 19 «-

be declared unconstitutional.

Federal Courts have ruled

presumptions violative of criminal due

process. The Act is triggered by a

Criminal charge and, therefore, its

presumptions appear to fall within the

realm of criminal due process. However,

although triggered by a criminal charge,

the Act results in civil detention.

Presumptions have also been held to

violate the less stringent constitutional

requirements of civil due process.

4. Pretrial detention can be

ordered if the Court holds that "no

condition or combination of conditions

will reasonably assure the appearance of

the person as required and the safety of

the community..."

Because the Act does not

- 20 -

require any written evidence, oral

testimony, alone, may be used to support

the defendant's future capacity for

dangerousness.

The rules of evidence allow the

Court to totally reject even

uncontroverted oral testimony which it

views as inherently improbable,

unreasonable or questionable.

If oral testimony is rejected,

the "presumption" alone will result in

pretrial detention.

ARGUMENT

1. Whether the United States

Supreme Court should establish a national

Standard of appellate review for

magistrates’ detention orders under the

Bail Reform Act [18 U.S.C.A. 3142 (e)]?

Although appeal from a

- 21-

detention order, either that signed by a

magistrate or district judge, is allowed

by 18 U.S.C.A. 3145 (c), the Act is

Silent regarding the standard of review

to be applied to these orders. The Act's

legislative history makes no mention of

this issue. See U.S. v. Delker, 757 F.2d

1390, 1394 (3d Cir. 1985). Without such

Guidance, the (federal) courts are forced

to act beyond their authority as

legislators. See Giaccio v. State of

Pennsylvania, 382 US 399, 86 S. Ct. 518

(1966).

The Act's failure to provide

any guidance to the courts in this regard

has resulted in three different standards

of review among the Circuits. The Third,

Sixth, Seventh, Eighth, Ninth and

Eleventh Circuits apply a de novo

@ 22 «

Standard of review. See United States v.

Delker, 757 F.2d 1390, 1399-1400 (3rd

Cir. 1985); United States v. Hazime, 762

F.2d 34, 36-37 (6th Cir. 1985); United

States v. Maull, 773 F.2d 1479, 1487 (8th

Cir. 1985); United States v. Montamedi,

767 F.2d 1403, 1406 (9th Cir. 1985);

United States v. Hurtado, 779 F.2d 1967,

1472 (llth Cir. 1985); United States v.

Portes, 786 F.2d 758, 763 (7th Cir.

1985). As stated in Chrysler Corp. v.

Brown, 441 US 281, 288, 99 S. Ct. 1705,

1711 (1979), de novo means "a whole new

beginning". De novo review is the most

harsh of the three standards for

defendants to overcome. In the instant

case (U.S. v. Perry), the de novo

standard was applied both by the District

Court and by the Circuit.

- 23 «

In the Second and Fourth

Circuits, a district judge will not

overturn the magistrate's detention or

release order unless it is held "clearly

(

erroneous”. See United States v.

Chimurenga, 760 F.2d 400, 405 (2nd Cir.

1985); United States v. Williams, 753

F.2d 329, 333 (4th Cir. 1985).

The First and Fifth Circuits

have adopted the "supported by the

proceeding below" standard of review.

The order of the lower court (or

magistrate) will not be overturned as

long as it _is supported by some evidence.

These disparate review

standards result in unequal justice for

defendants similarly situated. In

addition, without guidance from the Act,

judges are forced to legislate in

- 24 -

violation of the separation of powers

doctrine.

Liberty, the most fundamental

of constitutional rights, which is lost

if pretrial detention is erroneously

ordered, will be more uniformly preserved

if this Court supplants the Act's silence

regarding the standard of appellate

review by a uniform rule.

2. Whether the rebuttable

presumption (18 U.S.C.A. § 3142 (e) is

(a) Unconstitutional

because facially vague andi

(b) Must, therefore, be

defined for the nation?

The Act, at 3142 (e) sets out

two situations which trigger a

presumption of dangerousness and/or

flight which result in a defendant's

- 25 -

pretrial incarceration unless such

presumption can be rebutted by "clear and

convincing evidence".

In the instant case, Defendant

Perry has standing to challenge the

constitutionality of the second of these

two rebuttable presumptions, although the

same arguments relevant to Perry would

apply to the first rebuttable

presumption.

Once Perry was charged with a

drug offense punishable by imprisonment

of ten years or more by the Controlled

Substances Import & Export Act (21 U.S.C.

955a), he was required to rebut the

presumption of dangerousness by proving

future model conduct (an almost

impossible burden) or be incarcerated

pending trial.

- 26 -

PD tase Bat ~e ~*°

Since the Act, on its face,

provides no guidelines regarding the

meaning of the word "presumption", those

federal courts which have been faced with

a case under the Act, were forced to

determine what procedure is required by

the undefined word "presumption".

The initial constitutional

problem is whether the term "presumption"

requires defendants to meet the difficult

"burden of persuasion" or only a "burden

of production". In the former, the

defendant must persuade the court of a

future negative (that he will not be a

danger, for example). In the latter, the

defendant must only go forward with some

evidence contrary to a presumed fact.

The confusion among the

circuits as to the procedural

@ 27 «

OO LL <= === =

requirements of the Act's "presumption"

is evidenced by the Third Circuit opinion

in Perry. The government, in Perry,

urged the Circuit to adopt the stringent

"burden of persuasion" standard. Id.

The Third Circuit's decision not to reach

this constitutional question reveals the

confusion which the Act's vagueness is

causing. Other Circuits have raised this

definitional problem but, like the Third

Circuit, were able to bypass decision on

the presumption issue by deciding the

case on other grounds. See U.S. v. Leon,

766 F.2d 77, 81 (2nd Cir. 1985) and

U.S. v. Hazime, 762 F.2d 34, 37 (6th Cir.

1985).

Although no circuit has yet

defined "presumption" under the burden of

persuasion standard, the Act's total

» 28 «

Silence regarding the term's meaning

allows for this result, unless the

Supreme Court sets a national definition

to assure uniform justice.

Even among those circuits which

have, so far, held "presumption" to mean

"burden of production", there is

disparity regarding the procedure

required even under the less stringent

"burden of production" standard.

The circuits, at present, are

applying the burden of production theory

using two methods. The First and Fifth

Circuits, for example, have held that the

presumption is only one of several

factors to be considered and is to be

weighed equally with other rebuttal

evidence submitted by the defendant. See

United States v. Jessup, 757 F.2d 378

- 29 -

(lst Cir. 1985) and United States v.

Fortna, 769 F.2d 243 (5th Cir. 1985).

Other circuits are applying the less

stringent "bursting bubble” burden of

production presumption. Under this

theory, the presumed against party must

introduce some rebuttal evidence which

production bursts the presumption. The

judge (in a detention hearing) must then

examine the evidence without any

reference to the presumption. See

Legille v. Dann, 544 F.2d 1, 6 (D.C. Cir.

1976).

The "bursting bubble" theory of

presumptions is the most widely followed

cheery ef presumptions in American law.

See Legille v. Dann, 544 F.2d at 6. This

standard has been adopted by the Federal

Rules of Evidence. See FRE 301. The

"bursting bubble" view of presumptions is

- 30 -

also the rule in the United States

Supreme Court. See New York Life

Insurance Company v. Gamer, 303 U.S. 16l,

170-171, 58 S. Ct. 500, 503 (1938).

"Presumption of death by accident rather

than by suicide is not evidence and

ceases upon the introduction of

substantial proof to the contrary ... The

presumption is not evidence and may not

be given weight as evidence”.

| For these reasons, it is urged

that, if the court is to approve any use

of "presumptions" under the Act, the

"bursting bubble” view should be adopted.

3. Whether the Act should be

declared unconstitutional under the Fifth

Amendment, even if the United States

Supreme Court supplies a national

definition of the term "presumption"?

= 31 -

The Fifth Amendment states:

"No person shall be... deprived

of life, liberty or property,

without due process of law".

Several appellate courts have

held presumptions to be due process

violations under either the Fifth

or Fourteenth Amendments.

Federal Courts have ruled

presumptions invalid as violations of

criminal due process. The only case, so

far, which has held the Act

unconstitutional (though on qualified

grounds), is U.S. v. Melendez-Carrion,

790 F.2d 984 (2nd Cir. 1986). Melendez-

Carrion, id., held that 3142 (e) of the

Act violated due process, at least where

such detention lasted for more than eight

months. The Melendez-Carrion court did

- 32 -

eee

not establish what constituted an

"excessive period” of detention.

However, the basis for the holding in

Melendez-Carrion, 790 F.2d at 988, was

the circuit's aversion to any conviction

triggered by a presumption. The

Melendez-Carrion court, 790 F.2d at 1004,

cited Korematsu v. U.S., 323 U.S. 214, 65

S. Ct. 193 (1944) as "the only instance

in the constitutional jurisprudence of

this country (where)... the Supreme Court

upheld the preventative detention of

competent adults prior to conviction of

any crime" and cited Korematsu v. United

States, 584 F. Supp. 1406 (N.D. Cal 1984)

which case made questionable whether

preventative detention based upon

presumption would be valid today, even

under those facts.

- 33-

Federal Court have held

presumptions invalid as violations of

criminal due process. See, for example,

‘Commonwealth of Pennsylvania v Franklin,

April 29, 1985, US , 105 S. Ct. 1965

(a jury charge whereby defendant may

rebut a presumption regarding intent

violates the Fourteenth Amendment's due

process clause). See also Leary v.

United States, 395 U.S. 6, 89 S. Ct. 1532

(1969) (The presumption in 21 U.S.C. 176

(a) whereby a possessor of marijuana is

presumed to know of its unlawful

importation violated the due process

clause).

Although the Act is triggered

by a criminal charge, it results in civil

detention. Presumptions have also been

held to violate the less stringent

- 34 -

constitutional requirements of civil due

process. See Speiser v. Randall, 357

U.S. 513, 78 S. Ct. 1332 (1958)

{Requirements that taxpayer to win tax

exemption, rebut presumption that he/she

intends overthrow of Federal and/or State

government by unlawful means held

violative of Fourteenth Amendment due

process]; Oyama v. State of California,

332 U.S. 633, 68 S. Ct. 269 (1948)

(California alien land law whereby only

aliens are presumed unable to transfer

land to offspring held unconstitutional

under Fourteenth Amendment]; Stanley v.

Illinois, 405 U.S. 645, 92 S. Ct. 1208

(1972) (Presumption that unwed fathers

are per se neglectful and, thereby,

denied custody of their natural children

deemed due process violation]; Heiner

- 35 -

v. Donnan, 285 U.S. 312, 52 S. Ct. 358

(1932) [Presumption that gifts made

within two years of death are taxable as

gifts made in contemplation of death

violates due process).

It is urged that the Act's

presumption, which can result in the loss

of freedom, a most fundamental right,

even more clearly violates due process.

4. Whether the United States

Supreme Court should hold "the Act"

unconstitutional when pretrial detention

may be wholly founded upon oral testimony

which can be rejected by the Court, thus

allowing detention based upon a

conclusive presumption?

The Act provides for a

detention hearing (3142 (f)). Pretrial

detention is ordered if the Court holds

- 36 -

the presumption unrebutted and presumes

that "no condition or combination of

conditions will reasonably assure the

appearance of the person as required and

the safety of the community..."

The Act does not require any

written evidence. Therefore, oral

testimony, alone, may be used to support

the defendant's future capacity for

dangerousness or for flight.

Even if this Court sets a

national definition for the term

"presumption", there is strong

opposition to the use of even a

rebuttable presumption as violative of

due process.

Basic to the law of evidence is

the rule that the court may totally

reject even uncontroverted oral testimony

e 37 «

which it views as inherently improbable,

unreasonable or questionable. See Quock

Ting v. United States, 140 U.S. 417, 1l

S. Ct. 733 (1891); Wooley v. Great

Atlantic and Pacific Tea Company, 281

F.2d 78 (3rd Cir. 1960); Rhoades Inc. v.

United Airlines Inc., 340 F.2d 481 (3rd

Cir. 1965); Jones v. N.V.

Nederlandsch-Amerikaansche Stoomvaart

Maatshappij, 374 F.2d 189, 191 (3rd Cir.

1967). Wigmore noted this principle:

The mere assertion of any witness does

not of itself need to be believed, even

though he is unimpeached in any manner".

7 Wigmore on Evidence, 3034 at 260-261

(3d ed. 1940). Further, the right to

reject oral testimony is particularly

appropriate when composed of opinion

(testimony). See Wooley, 281 F.2d at 80.

= 38 -

If oral testimony is rejected,

the presumption alone, already held

violative of due process by many courts

and triggered only by a charge under two

federal acts (3142 (e)], will result in

pretrial detention. It is especially

likely that such oral testimony will be

rejected (thereby foreclosing the

possibility of rebutting the presumption)

in cases under the Act. It is probable

that judicial officers will discard the

oral testimony of persons charged with

serious firearms or drug offenses who

have, as well, prior criminal records

since the reliability of such testimony

would be deemed "questionable" by most

people.

In addition, as stated in

Wooley, 281 F.2d at 80, opinion testimony

- 39 -

ee EEE OOOO OEE EE — ——E—EE———————— —

is particularly subject to rejection.

Detention hearings under the Act are

largely composed of opinions regarding

the defendant's future conduct. In the

instant case, the detention hearing was

almost totally composed of oral

testimony. -

Since oral testimony largely

constitutes detention hearings and is

likely to be rejected under the Rules of

Evidence, the Act's presumption,

rebuttable in theory, becomes a

conclusive presumption, in practice. It

is urged that the Act is both

overinclusive and a violation of due

process. Since the Act calls for civil

detention, thus eliminating the more

stringent procedural safeguards requred

in a criminal hearing [3142 (f)], there

- 40 -

is even greater danger in allowing these

presumptions to stand.

In determining the

constitutionality of the Act [3142 (e)],

the words of In Re Winship, 397 U.S. 358,

372, 70 S. Ct. 1068, 1077 (1970) are

instructive: "...it is far worse to

convict an innocent man than to let a

guilty man go free".

- 41 -

CONCLUSION

For the foregoing reasons, the

Bail Reform Act, 18 USCA § 3142 (e),

should be declared unconstitutional.

Respondents plus Howard Perry

should no longer be detained under its

provisions.

Respectfully submitted,

“rra 6 ASU MI MALL’

Ina C. Brunwasser, Esquire

Attorney for Amicus Curiae,

Howard Perry

750 Washington Road #901

Pittsburgh, PA 15228

412-341-0125

- 42 -

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.