Appendix — Crabtree v. United States
Supreme Court brief1985
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FILED
g4-1718 o) APR 22 1985
N O. ALEXANDER L. STEVAS.
— dicted F2K
In the
Supreme Court of the United States
OCTOBER TERM, 1982
HUBERT T. CRABTREE
_ Petitioner
VERSUS
UNITED STATES OF AMERICA
Respondent
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
APPENDIX
ARTHUR A. LEMANN, III
LEMANN, O’HARA & MILES
300 Lafayette Street
Suite 100
New Orleans, Louisiana 70130
Phone: (504) 522-8104
Attorneys for Petitioner
A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555
i
TABLE OF CONTENTS
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A-l
APPENDIX “A”
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 85-3050
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUBERT T. CRABTREE,
Defendant-Appellant.
Application for Release related to
Appeal from the United States District Court
for the Eastern District of Louisiana
(February 22, 1985)
ORDER:
After conviction and sentence, Hubert T. Crabtree ap-
plied to the district court to continue his bail terms pend-
ing appeal. The district court denied the application, find-
ing that the trial generated no substantial questions of law
or fect that were likely to result in reversal on appeal or
A-2
order for a new trial. Crabtree has now applied to me as a
judicial officer authorized to order release from detention
pending appeal under 18 U.S.C. §3141 to allow him to re-
tain his bail status pending appeal of the district court's
ruling on his application and our ruling on his appeal from
his conviction and sentence.
Crabtree irdicates he will raise five issues on the latter
appeal: (1) the presence of a ‘‘contaminated”’ juror on the
panel during trial; (2) the lack of evidence of two separate
predicate acts required under 18 U.S.C. $1962; (3) the lack
of evidence with respect to the court’s ruling on a motion
under U.S. v. James, 590 F.2d 575 (5th Cir. en banc),cert.
denied, 442 U.S. 917 (1979); (4) the impropriety of govern-
ment counsel’s rebuttal argument; and (5) the admissibility
of prejudicial tapes concerniug Crabtree’s spouse.
18 U.S.C. §3143 (b) provides in pertinent part:
(b) Release or Detention Pending Appeal by the
Defendant. The judicial officer shall order that a
person who has been found guilty of an offense
and sentenced to a term of imprisonment, and
who has filed an appeal or a petition for a writ of
certiorari, be detained, unless the judicial officer
finds —
(1) by clear and convincing evidence that the
person is not likely to flee or pose a danger to
the safety of any other person or the com-
munity of released pursuant to section
3143(b) or (c); and
(2) that the appeal is not for purpose of delay
and raises a substantial question of law or
fact likley to result in reversal or an order for
a new trial.
A-3
Under Federal Rule of Appellate Procedure 9(c), the
burden of establishing the criteria enumerated in §3143(b)
rests with Crabtree. In this application proceeding, he need
not be concerned with the need for a showing by clear and
convincing evidence that he was not likely to flee or pose a
danger to the community. The district court made that
finding in his favor and I will not disturb it. The remaining
tests are whether the appeal (a) is taken for the purpose of
delay, (b) raised a substantial question of law or fact, and
(c) is likely to result in reversal or an order for a new trial.
There is no reason to pass on whether delay or in-
substantiality are present because Crabtree has failed to
carry the burden imposed on him to show that his appeal is
likely to result in reversal or a new trial order. Crabtree’s
application is presented to me without a transcript. Crab-
tree acknowledges that the issue he raises as to improper
argument of counsel must depend on an examination of the
transcript. In the brief he has filed in support of his ap-
plication, the remaining issues are discussed in factual
terms which Crabtree proffers without record support. The
brief of the government in opposition contends that I can-
not find that the district judge who heard the case abused
his discretion in ruling that the appeal was not likely to
result in a reversal or an order for a new trial. Regardless of
whether this application should be considered as a review
of the action of the district judge and, if so, whether the
proper standard of review is abuse of discretion or the
clearly erroneous test, or whether the application is ad-
dressed to me for independent action, I must refuse relief.
Two things are clear. Section 3141 vests in the district
judge the authority to make the identical determinations
which Crabtree seeks to have me make; and those deter-
A-4
minations, in this case, call for a decision which is both fac-
tual and legal as to every issue Crabtree seeks to raise. The
judicial officer who first made the decisions was conver-
sant with the facts involved. I am not. In such a situation,
any meaningful review or independent reconsideration by
me must await a proper transcript or stipulated factual
record. Since Crabtree has not produced such a transcript
or record, he has failed to ciemonstrate that the issues he
seeks to raise are likely to result in reversal of the convic-
tion and sentence or in an order for a new trial. Thus, he has
failed to carry the burden imposed on him by Rule 9c). Cf.
United States v. Miller, F.2d____(3rd Cir., Jan. 18,
1985, Nos. 83-4030, 83-4032). My order obviously does not
predict what a subsequent judicial officer or panel of this
court might rule on any such issue when a transcript or fac-
tual stipulation accompanies any further request for relief.
Crabtree also argues that the Bail Reform Act of 1984
violates the ex post facto clause of the United States Con-
stitution. I disagree. Although the offense took place
before the effective date of the Act, the change in the law is
merely procedural and does not alter a substantial right.
The Act does not increase the punishment nor change the
ingredients of the offense or the ultimate facts necessary to
establish guilt. See Weaver v. Graham, 450 U.S. 24, 29n.2,
101 S.Ct. 960, 67 L.Ed.2d 17 (1981), citing Hopt v. Utah,
101 U.S. 574, 590, 4 S.Ct. 202, 28 L.Ed. 262 (1884). In U.S.
v. Miller, supra, the Third Circuit found that the Bail
Referm Act of 1984 was procedurai and did not offend the
ex post facto clause.
The Act changes the manner in which convicted de-
fendants will be dealt with after conviction. It contains a
presumption in favor of immediate detention upon convic-
A-5
tion rather than the former requirement that a convicted
defendant be enlarged on bail absen’ certain conditions.
However, this court has held that a defendant who has
been found guilty by jury and sentenced is not necessarily
entitled to bail pending appeal as a matter of law. U.S. v.
Bright, 541 F.2d 471, 477 (5th Cir. 1976), cert. deniea, 430
U.S. 935 (1977). Even though the change works to the
disadvantage of the defendant, it is merely a procedural
change and does not offend the ex post facto clause. See
Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 53
L.Ed.2d 344 (1977).
The application for release is DENIED.
IS/
CHARLES CLARK
CHIEF JUDGE
A-6
“APPENDIX B”
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA
VERSUS
JOSEPH ROBERT PROVENZANO, ak/a “JUNIOR”;
HUBERT CRABTREE, a/k/a “HUEY”;
HERBERT THIBODEAUX; DR. NATCHEZ MORICE;
DR. SALVATORE CANALE; HAROLD BLANCHARD;
JOSEPH MANZELLA, JR.; JOSEPH JIMENEZ, JR.
CRIMINAL DOCKET NO: 84-103
Section: M
VIOLATIONS: 18 U.S.C. 1962(c)
18 U.S.C. 1962 (d)
18 U.S.C. 1341
18 U.S.C. 1952 (a)(3)
18 U.S.C. 2
CRABTREE’S MOTION AND INCORPORATED
MEMORANDUM TO REMAIN ON BOND
PENDING APPEAL
Now into this Honorable Court, through undersigned
counsel, comes Hubert Crabtree, defendant herein, who
respectfully moves this Court to allow him to remain at
large on his bond pending the completion of the appellate
process for the reasons stated herein below:
A-7
1. On December 21, 1984, your defendant was found
guilty in Counts I and II of the indictment herein. At that
time the government moved for his immediate detention
stating it feared that defendant would flee the jurisdiction.
2. At that time the Court stated that it was aware of
the Bail Reform Act of 1984 and its duties thereunder. The
Court increased defendant's bail and gave him stringent
orders on reporting to his case worker in the U.S. Proba-
tion and Parole Department.
3. Your defendant has faithfully complied with all of
these requirements.
4. Your defendant is the sole support of his wife and
two adopted children and has posted as his bond herein a
collateral mortgage on the family home for very nearly all
of its appraised value thereby making flight highly unlike-
ly.
5. It is your defendant’s intention to raise the follow-
ing serious issues on the appeal of the matter herein:
a) The presence of a ‘‘contaminated” juror on the
panel during the trial of the matter;
b) The lack of evidence of two separate predicate
acts;
c) The lack of evidence pertaining to the ruling
pursuant to the ‘James”’ motions filed herein;
d) The impropriety of government counsel’s
rebuttal argument;
e) The admissibility of prejudicial tapes concern-
ing your defendant’s wife.
A-8
6. The appeal taken upon these and other issues is,
therefore, not taken as a frivolous or delaying tactic.
7. The government has failed to show that your
defendant’s status has in any way changed or that he is
more likely to flee at the present time than when it original-
ly urged his detention. We submit that this failure to go
forward should, therefore, mandate continuation of his
present status pending the appeal of this matter.
Respectfully submitted:
JOHN-MICHAEL LAWRENCE
WILLIAM J. O’HARA, III
LEMANN, O’HARA & MILES
400 Lafayette Street
Suite 100
New Orleans, Louisiana 70130
Phone: (504) 522-8104
Attorneys for Defendant,
Hubert Crabtree
CERTIFICATE
I hereby certify that a copy of the above and foregoing
document has been served upon opposing counsel by hand
delivery this 23rd day of January, 1985.
IS/
JOHN-MICHAEL LAWRENCE
A-9
APPENDIX “C”’
MINUTE ENTRY
BEER, J.
JANUARY 25, 1985
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA
VERSUS
JOSEPH ROBERT PROVENZANO,
ET AL
CRIMINAL ACTION
NUMBER 84-103
SECTION M
Before the Court, by written motion and, in some in-
stances, oral motion of counsel for various defendants, is a
consideration of the question of detaining the defendants
pending appeal.
All defendants before the Court in these proceedings
(except defendant Provenzano, who has already com-
menced serving a term of imprisonment) are to self-
surrender at the institution where they will serve their
prison sentence by noon on February 6, 1985. Thus, time is
a definite consideration in dealing with these motions.
The record in these proceedings will authenticate that
defendants were able and diligently represented and fairly
tried in a trial that lasted approximately three weeks. At
A-10
the conclusion of the evidence gathering portion of the
trial, all defense counsel were accorded an extended period
in which to make their closing arguments, after which the
jury was charged and then began their deliberations. Those
deliberations continued over a period of four days. The jury
seriously and conscienciously went about their work. The
verdict rendered by them speaks clearly to the point that
they carefully considered each count as to each defendant.
Indeed, it may now be noted that I had some concern about
the government’s proof regarding one or two of the counts
upon which the jury did, in fact, return not guilty verdicts.
I did agree in all respects with their verdict as to each
count involving each defendant.
Equally as diligent as the able defense counsel were the
attorneys presenting the government’s case. Though cer-
tain decisions which the government’s attorneys made
with respect to the method of presentation of their case
may have been different than those which I might have
made under the circumstances, I have no hesitation in con-
cluding that the trial generated no substantial questions of
law or fact which are likely to result in reversal on appeal.
Nor were there any substantial questions of law or fact
which will result in an order for a new trial.
Squarely before me, then, is the matter of determining
whether I am empowered to grant defendants’ motions. I
conclude that I am not. For, having made the factual and
legal determination above referred to, I find the provisions
of 18 U.S.C. §3143 to be clear, unambiguous and
straightforward.
The report of the Senate Judiciary Committee regard-
ing the statute here involved included a detailed discussion
A-11
of the change brought about as a result of the Comprehen-
sive Crime Control Act of 1984. See: S. Rep. No. 98-225,
98th Cong., 2nd Sess., reprinted in 1984 U.S. Code Cong. &
Ad. News, Vol. 9A, p. 29.
The legislative history of the statute includes the
following:
“It has been held that although denial of bail
after conviction is frequently justified, the cur-
rent statute incorporates a presumption in favor
of bail after conviction. It is the (sic)! presump-
tion that the Committee wishes to eliminate in
Section 3143.”
The report further states that:
“Once guilt of a crime has been established in a
court of law, there is no reason to favor release
pending ... appeal. The conviction, in which the
defendant's guilt of a crime has been established
beyond a reasonable doubt, is presumably correct
in law.
Second, release of a criminal defendant into the
community after conviction may undermine the
deterrent effect of the criminal law, especially in
those situations where an appeal of the convic-
tion may drag on for many months or even
years.”’ Id.
District courts similarly confronted seem to have split
on whether they will or will not follow what I perceive to be
a clear, unequivocal mandate from the Congress. For exam-
ple, a memorandum opinion of Honorable Susan Getzen-
' I believe this word was intended to be ‘‘this’”’ instead of ‘‘the.”’
A-12
danner, United States District Judge for the Northern
District of Illinois, reached an opposite result in United
States of America v. Biagio Cirrincione, et al, No.
82-CR-778 (N.D. Ill., Jan. 16, 1985).
Judge Getzendanner reasons:
“The apparent purposes of the Act - to eliminate
dilatory appeals and to help deter crime - are
laudatory ones, but may not be used to enhance
punishment of those who committed unlawful
acts in possible reliance on previous standards.”’
Slip op. at 21.
I am in disagreement with this rationale and with the
conclusion that the congressional mandate embodied in the
Comprehensive Crime Control Act of 1984 is being ‘used
to enhance punishment.” Here there is no enhancement of
punishment. Congress has simply spoken clearly to the
point at issue. They have revised the manner in which con-
victed defendants will be dealt with after conviction, and
their mandate is to be followed on the basis of its fair,
reasonable and sensible consiruction compatible with the
apparent object and plain intention as expressed therein.
There is no constitutional guarantee of bail pending ap-
peal. See United States v. Baca, 444 F.2d 1292 (10th Cir.),
cert. denied, 404 U.S. 979 (1971). Furthermore, Judge
Getzendanner, apparently acknowledging this, has ob-
served:
“To the extent that the post-conviction bail pro-
vision of the new Act is regulatory and not
A-13
punitive, it necessarily falls outside the prohibi-
tions of the ex post facto clause:. . .”
However, she determines that:
‘“. . .Congress must have concluded that a
sentence which commences immediately upon
conviction is somehow more severe than a
sentence which commences only after appeal.”
Slip op. at 15-17.
I believe this to be an inaccurate observation. Congress has
done no more (and no less) than vo conclude, in their
legislative wisdom , that judicial officers shall order a per-
son who has been found guilty of an offense and sentenced
to a term of imprisonment and who has filed an appeal (or a
petition for a writ of certiorari) be detained unless the ap-
peal raises a substantial question of law or fact likely to
result in reversal or an order for a new trial. Having here
made the determination that such is not here the case,
defendant’s motions for bail pending appeal must be
denied.
[S/
PETER BEER
COUNSEL OF RECORD
A-14
APPENDIX “D”
ese ee 4 *
assume it applies that, point one, of the new act, by clear
and convincing evidence the person is not likely to flee or
poses any danger to the community. At least, the Court
makes a finding, as far as Dr. Canale, that this has not been
the issue.
It was the second one --
THE COURT: Well, I haven’t made a finding one way,
or the other, as far as anybody is concerned. I have just
done what probably most district judges do in a situation
between a finding of guilty by the jury and the imposition
of sentence.
I’ve made a decision to let the defendants remain on
bond pending the imposition of sentence by the Court.
Now, whatever is implicit in that decision that I made, is
implicit.
I will state on the record, that I have no different feel-
ing about the defendant Canale, than I do about any of the
other defendants, and that is, that I would not deprive him,
any more, or less than any of the others, of the opportunity
to have whatever advantages the Federal Bureau of
Prisons ascribes to self surrender, as any of the other
defendants. That’s basically the way I feel about the other
defendants, and about the defendant Canale.
MR. CAPITELLI: I appreciate that, Your Honor,
because I also filed a motion to self surrender this morning,
A-15
based on that, as I appreciate that.
THE COURT: Well, I understand that.
MR. CAPITELLI: I just needed that point clarified.
But, in terms of the motion to remain on bond, Your
Honor, the new provision that really comes into play is the
second point, the likely result in reversal, or an order for a
new trial. Based on the ability to self surrender and that
Court position on that, I would forego putting Dr. Canale
on the stand to reiterate that he is a doctor, his
background, and all the things that this Court already
knows, because it just deals with point one, which is the
issue that flight and the danger to society.
THE COURT: I don’t think that’s necessary.
MR. CAPITELLI: Thank you.
Also, Your Honor, as to the second point, we deal with,
and I hope I feel, based on all the proffers that were made
and strenuous arguments by counsel and ithe documenta-
tion, that the Court, in terms of this appeal, I will state for
the record, certainly is not in any way appeal on Dr.
Canale’s part being made for a delay, or a frivolous nature,
and we feel we are dealing with, in my motion, the second
part of my motion, Your Honor, is really too late for this
Court to review it in depth, deals with the substantive
issues that were raised during the trial, Your Honor, as
concerns in particular the point, and that is cited in Judge
Getzendanner’s opinion, concerning ex post facto nature of
the application of this law to Dr. Canale and the other co-
defendants. I would ask the Court to look especially at the
A-16
fact that Dr. Canale was charged with events that occurred
in 1979, and in early February — excuse me, of 1982. The
Government had a right within the prescriptive period to
pursue their case at their own speed, and chose to in-
vestigate it and pursue the acts that they felt were suffi-
cient to bring to Court at their speed. The acts
eee e284 4 €
THE COURT: Allright, I say this, Mr. O’Hara is pres-
ent, so I will let him make the statement at this time with
respect to whether he wishes to persist in the motion for
continuance.
MR O’HARA: No, sir, that’s all right, I will go forward
with it, now, with everything.
THE COURT: Well, I appreciate the fact that you are
here, Mr. O’Hara, and I certainly don’t intend to do
anything that would in any way jeopardize your health.
MR. O’HARA: No, sir, it wasn’t a life threatening
thing, he just told me to take a couple of days off until the
lungs cleared up.
THE COURT: Well, with your consent, I would like to
go ahead and proceed, then, with respect to the motions
which you have made in behalf of defendant Crabtree.
MR. O’HARA: Yes, sir.
THE COURT: And I will hear you, now.
Let me say that I think, just to put you in the picture,
or help you out in terms of the argument on the issue of in-
A-17
carceration pending appeal has been pretty fully argued,
and I realize that your concerns on behalf of Mr. Crabtree
would certainly be such that I would not deprive you of ad-
ding to that in any way that you wish to add to it, except to
say to you that I think both sides of it have been pretty ful-
ly aired.
MR. O’HARA: Yes, sir.
Very briefly, Your Honor, since I don’t know what was
said, on behalf of Mr. Crabtree, as I stated in the motion, it
would seem to me that when the jury returned, and the
Government at that point moved for detention, Your
Honor stated that he had taken the facts and the new law
into account and raised Mr. Crabtree’s and Mr. Proven-
zano’s bonds, and I believe Mr. Thibodeaux’s and Mr.
Blanchard’s, also. Those obligations have been met and
that absent some showing by the Government, that either
the conditions of the bond having been met or that there is
some new evidence to change Your Honor’s opinion since
the date the jury came in on December 21st, that I believe
the situation is the same as it was, then.
THE COURT: Well, I realize that you are catching us
kind of on the second go around here, but I don’t have any
trouble with that, as far as not ordering incarceration of
any defendant between the time of verdict and the time of
sentencing. But, what I am having a lot of trouble with is
the next provision of the Crime Control Act of 1984, which
provides a very stringent basis upon which I must decide
whether or not to order incarceration pending appeal, not
pending sentencing.
You are right about - I mean, I made my decision
A-18
about that and to the defendants’ credit and that of their
a.torneys, they have lived up to that and they are all here
and they have done what they are supposed to do, as far as
being present. So, they have convinced me of the correct-
ness of my having faith in them to showing up here today,
consistent with my order.
The things that I am very much confronted by, right
now, is the next provision of the Crime Control Act which
says that the appeal is not for the purpose of delay and
raises the substantial question of law, or fact, likely to
result in reversal, or an order for a new trial. And if you
want to address that in Mr. Crabtree’s behalf, go ahead.
MR. O’HARA: Yes, sir, very briefly, because I believe,
and beyond the Court, of course, but I believe the wording
in that statute is very unfortunate and puts Your Honor in
a very difficult position. I don’t see where this trial court
judge can say yes, I think there is substantial areas of
disagreement and a likelihood of a reversal, when Your
Honor has already ruled on the matters that are subject to
the appeal. If Your Honor please, certainly if Your Honor
believed that there were substantial errors, I would think
Your -Zonor would be forced to grant a new trial, However,
I can, within the framework of the law, and where in-
telligent men may disa,**2, I believe that there be substan-
tial issues to be raised on appeal and this I have listed five
of them in my motion which I intend to appeal very
vigorously. It’s not a situation where we have a blank
record on appeal. The case was tried strenuously by both
sides, by the Government and by the defense, and I believe
there are some substantial issues to be argued on appeal.
So, certainly, the appellate work in this case is not done
simply for the purpose of delay, and further that and again
A-19
it goes back, I realize Your Honor, what Your Honor says
goes from the point of the jury returning the \ erdict up un-
til the sentencing, but the requirements have been met,
and during this period Mr. Crabtree, at this point, is living
under, or facing forty years imprisonment. And certainly,
anything Your Honor does today won't exceed his fear of
forty years, and may substantially lessen it by an actual
number. That’s about all I can say. I think the situation
would be different if we were going forward on a blank
transcript, or if we had done the trial by stipulation, or an
issue like that. But, where it was litigated this hard, there
are some close issues in here, I think the Government will
concede that, I don’t think that an appeal in this matter
can be called frivolous, or just for terms of delay.
THE COURT: Thank you, sir. I assume that insofar as
the motion for judgment of acquittal and alternatively for
a new trial, that you submit that on the papers?
MR. O’HARA: Yes, sir, and on the record.
THE COURT: And I assume the Government submits
their position on the papers.
MS. BITZER: Your Honor, we have never received a
copy of those motions and I will be glad to respond to them
within ten hours, or whatever, I just have never received a
copy.
THE COURT: When was that filed? I have in my notes
defendant Crabtree’s motion for judgment of acquittal, or
in the alternative for a new trial.
MR. O’HARA: I believe they were all filed the same
day.
A-20
THE COURT: Well, I am going to deal with this -
MR. O’HARA: I apologize.
THE COURT: I am going to go ahead and deal with
this on my own motion. I am satisfied that I have read the
motion papers and I feel that insofar as the motion for new
trial and for judgment of acquittal, they must be denied.
MR. O’HARA: To which ruling I respectfully note an
objection.
THE COURT: All right, I am going to take under con-
sideration the motions as they have to do with the question
of the Crime Control Act of 1984, this is 18 U.S.Code
es*e ee 84244
REPORTER’S CERTIFICATE
I, THOMAS H. CONRAD, certify that the foregoing is a
correct transcript from the record of proceedings in the
above-entitled matter.
Si
THOMAS H. CONRAD, CP, CSR
Official U. S. Court Reporter
A-21
APPENDIX “E”
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO.
HUBERT T. CRABTREE,
Defendant-Appellant
Vv.
UNITED STATES OF AMERICA,
Plaintiff-Appellee.
Application for Release After Judgment of Conviction
and Appeal from the United States District Court
for the Eastern District of Louisiana,
the Honorable Peter H. Beer, Judge, Section “‘M””,
Denying the Same
BRIEF FOR APPELLANT,
HUBERT T. CRABTREE
William J. O’Hara III
John-Michael Lawrence
LEMANN, O’HARA & MILES
300 Lafayette Street
Suite 100
New Orleans, Louisiana 70130
Phone: (504) 522-8104
COUNSEL FOR APPLICANT
January, 1985
A-22
UNITED STATES OF AMERICA
STATE OF LOUISIANA
AFFADAVIT
BEFORE ME, the undersigned authority, personally came
and appeared:
JOHN-MICHAEL LAWRENCE
who, after being sworn, did depose:
1) That he is one of the trial counsel for Hubert T. Crabtree
in this action;
2) That he has attempted to contact the court reporter in
this action on several occasions since this application
became necessary and hes failed;
3) That the companion case of Dr. Salvatore Canale con-
tains a certification that the transcript of the matter will
not be prepared before February 9, 1985;
4) That all necessary arrangements have been made to
assure the payment of the court reporter’s fees.
IS/
John-Michael Lawrence
Sworn before me this
3ist day of January, 1985.
IS/
Notary Public
A-23
AFFIDAVIT
STATE OF LOUISIANA
PARISH OF ORLEANS
BEFORE ME, the undersigned authority, appeared
William J. O’Hara III, who, after being duly sworn, did
depose and say that:
1. He is counsel for Hubert T. Crabtree;
2. The transcript of the proceedings relative to appli-
cant’s Motion to be Released on Bond Pending Appeal is
not filed with the attached application for the following
reasons:
A. The hearing took place on January 23, 1985.
B. The transcript has been ordered from Tom
Conrad, the court reporter, but has yet to be completed.
/S/
WILLIAM J. O’HARA III
Sworn to and subscribed before me,
this 30th day of January, 1985.
IS/
NOTARY PUBLIC
A-24
TABLE OF CONTENTS
Page
ee 2g iio. ks kas Uh a cen kaa een i
Table of Statutes and other Authorities ............... i
Statement of Issues Presented for Review............. ii
Statement of Personal Facts ..................-2545: 1
NS ok, kids iosdecceeceessabeenas 2
PN ogee cc cccasectscansdvecsssveneeaakeee 4
ee POUT OCCTTETT CTC COCO ey 5
| Pr rr rrrrrr rrr rr rrr errr re cr. 5
COUN... kas iksccdocdgurecsenasbssaen 14
Exhibits
Exhibit “‘A’’- Minute Entry of January 25th,
BE ocd cc oc tees teeeaees 4
Exhibit “‘B’’- Crabtree’s Motion of January
23rd, 1985 to remain on bond
pendingappeal .............. 4
Exhibit “‘C’”- U.S. us. Meloni, CR No.
ER ois os een we eae ied 6
Exhibit ‘“‘D’’- | Newspaper Article of December
OE 545 ask 6k cane eae 8
Exhibits “E’’- U.S. vs. Cirrincione, No. 82 CR
WE iis ed cesarean eo 12
Exhibits “F’’- Crabtree’s Motion of January
30th, 1985 for Stay of Execu-
tion of Sentence............. 15
A-25
TABLE OF CONTENTS
Page
Go ke... i
Table of Statutes and Other Authorities...........__— i
Statement of Issues Presented for Review.....__.. a ae
Statement ofPersonalFacts........................ 1
el... 2
ero ts... 4
ee ...... 5
i. ck... eee. 5
ee 14
Exhibits
TABLE OF CASES
Page
United States v. Cirrincione, No. 82 CR 778, U.S.D.C.,
EEE OT 12
United States v. James, 590 F.2d 575 (5th Cir.)
(en banc) cert. denied 442 U.S. 917 (1979).......... 10
United States v. Meloni, Cr. No. 84-00295, U.S.D.C.,
kk. 6
Weaver v. Graham, 450 U.S. 24(1981) ............... 12
A-26
TABLE OF STATUTES
AND OTHER AUTHORITIES CITED
Constitution
Article I, Section9 ............: ee eect eens
Statutes
18 U.S.C.$1962 0.0... cece eee teen eee eees
18 U.S.C.§3143 (Bail Reform Act MD say yee ate nts
SUE kao a on haa eee a ens in eke iain
Rules
A-27
STATEMENT OF ISSUES PRESENTED FORK REVIEW
A
WHETHER THE DISTRICT COURT IMPROPERLY
INTERPRETED THE REQUIREMENT OF A
SUBSTANTIAL ISSUE ON APPEAL LIKELY TO
RESULT IN REVERSAL OR AN ORDER FOR A NEW
TRIAL.
Il.
WHETHER THE TRIAL COURT’S APPLICATION OF
THE 1984 AMENDMENT TO 18 U.S.C.§3143 TO AN OF-
FENSE WHICH OCCURRED BEFORE ITS EFFEC-
TIVE DATE CONSTITUTES A VIOLATION OF THE
PROHIBITION AGAINST EX POST FACTO LAWS.
STATEMENT OF PERSONAL FACTS
Hubert T. Crabtree has been a resident of Marrero,
Louisiana since 1956, moving there from his native
Florida. He married Katherine Crabtree and adopted her
two children of a previous marriage, Claudia Jennette, age
17, and Kerry Vernon, age 19. He remains the sole support
of this family. He has lived at his present address for over
ten years. This is the same property upon which a collateral
mortgage was executed to serve as his bond.
He has spent the majority of his adult life in oil related
ousinesses. Mr. Crabtree has an ownership interest in
Casper Equipment Rentals, an oil field equipment compa-
ny located in Casper, Wyoming. This corporation was
begun in 1977. He expanded his business in Louisiana and
formed a separate corporation, Diamond C Tool Rentals, in
Marrero, Louisiana over a year ago. Prior to that, since
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1978, he was doing business as Diamond C Tool Rentals of
Casper, Wyoming.
A complete work history, as well as record of convic-
tions and character references is contained in the pre-
sentence investigation. Mr. Crabtree cooperated fully in its
preparation. It should be noted that Mr. Crabtree has
faithfully complied with every requirement of his bond
throughout the course of this litigation and, in fact, was in-
formed as early as the summer of 1983 that he would be a
target in the investigation. The actual indictment was not
returned until 1984.
STATEMENT OF CASE
On December 21, 1984, applicant, Hubert T. Crabtree,
was convicted in Case Number 84-103(M) of the United
States District Court for the Eastern District of Louisiana
on two counts of “racketeering” under 18 U.S.C.§§1962(c)
and 1962(d). On January 23, 1985, Mr. Crabtree was
sentenced to a prison term of three years and four months
on each count (concurrent) and ordered to pay a fine of
$12,500.00 on each count. He was assigned a surrender
date of February 6, 1985.
When Mr. Crabtree was originally arrested and
charged in this indictment, he posted a property bond in
the amount of $100,000.00, using his family domicile as the
basis for the collateral mortgage therein. At all times prior
to the trial of the matter, Mr. Crabtree faithfully dis-
charged all of his obligations toward remaining free on that
bond. Then he was convicted on December 21, 1984, the
government moved for his immediate detention. Four of
the original eight co-defendants were so singled out by the
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attorney for the United States. A specific reason for the re-
quest for detention of each defendant was given. In Mr.
Crabtree’s case, it was stated that there was fear on the
part of the government that he would attempt to flee the
jurisdiction because of his substantial business interests in
the state of Wyoming. At that time, the trial court judge,
the Honorable Peter Beer, after listening to argument by
both the government and defense, decided to amend de-
fendant Crabtree’s bond as follows:
1. The amount of the bond was increased to the sum of
$250,000.00;
2. Mr. Crabtree was to report in person on Friday of
each week to the U.S. Department of Probation and
Parole;
3. Mr. Crabtree was to contact the U.S. Department of
Probation and Parole by telephone on each Monday.
All of these provisions were complied with, the defend-
ant placing a collateral mortgage in the sum of $200,000.00
on his family residence and using a commercial surety
bond for the balance of $50,000.00. The commercial surety
bond was made necessary because the family residence, the
only piece of real property owned by Mr. Crabtree in the
State of Louisiana, was appraised at approximately
$226,000.00, making it inappropriate for the entire bond.
Mr. Crabtree faithfully complied with all of the provisions
of this bond arrangement until the date of his sentencing,
January 23, 1985.
On that date he received the sentence enumerated
above, and also filed with the district court a Motion to Re-
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main on Bond Pending Appeal. Judge Beer took this mo-
tion under advisement until January 25, 1985, at which
time he denied the motion and ordered your defendant to
surrender on February 6, 1985 at a federal detention center
to be designated by the U.S. Bureau of Prisons.
At the hearing of applicant’s motion to remain free on
bond pending appeal, the district court judge stated that
he was compelled to apply the Bail Reform Act of 1984 to
the instant case in spite of the fact that the predicate acts
allegedly committed by applicant occurred in 1979 and
1980. The court did not feel that the application of the Bail
Reform Act of 1984 to the instant case was violative of the
ex post facto clause of Article I, Section 9, of the United
States Constitution.
It is indeed noteworthy that on both December 21,
1984 and January 23, 1985 the court stated that it was
aware of its duties pursuant to that statute, 18
U.S.C.§3143. Further, on January 23, 1985, the court
stated that it was solely concerned with the provisions of
18 U.S.C.§3143(b)(2), that section of the Act which changes
the standards to be applied from those of a ‘merely
frivolous” appeal to one which places a burden on the
defendant to show that the appeal ‘raises a substantial
question of law or fact likely to result in reversal or a new
trial.” This brief will, therefore, concern itself primarily —
with that portion of the statute as well as with other prob-
lems concerning the application of that statute to the in-
stant case rather than the entire provisions of the statute.
This is done because the trial court has already determined
that there is little or no likelihood of your defendant fleeing
or posing a danger to the safety to any other person or to
the community if he is maintained on his present bond.
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RELIEF SOUGHT
Based on the case as it has thus unfolded, your defend-
ant seeks the following relief:
1). Applicant seeks an Orcer from this Court allowing
him to remain on bond in his present status pending the
resolution of this appeal from the trial court’s Minute En-
try of January 25, 1985. (Attached hereto as Exhibit A).
2). Applicant seeks to remain on bond during the entire
pendency of the appeal of this matter due to the erroneous
interpretation of 18 U.S.C.§3143(b)(2) by the district court
in denying his Motion to Remain on Bond Pending Appeal.
(Attached hereto as Exhibit B).
3). Applicant seeks, alternatively, to be allowed to re-
main on bond during the pendency of the entire appeal of
this matter due to the erroneous application of 18
U.S.C.§3143(b)(2) to the instant case because it is violative
of the ex post facto clause of the United States Constitu-
tion.
ISSUES PRESENTED
I.
WHETHER THE DISTRICT COURT IMPROPERLY
INTERPRETED THE REQUIREMENT OF A
SUBSTANTIAL ISSUE ON APPEAL LIKELY TO
RESULT IN REVERSAL OR AN ORDER FOR A NEW
TRIAL.
II.
WHETHER THE TRIAL COURT’S APPLICATION OF
THE 1984 AMENDMENT TO 18 U.S.C.§3143 TO AN OF-
FENSE WHICH OCCURRED BEFORE ITS EFFEC-
TIVE DATE CONSTITUTES A VIOLATION OF THE
PROHIBITION AGAINST EX POST FACTO LAWS.
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ARGUMENT
|
WHETHER THE DISTRICT COURT IMPROPERLY
INTERPRETED THE REQUIREMENT OF A
SUBSTANTIAL ISSUE ON APPEAL LIKELY TO
RESULT IN REVERSAL OR AN ORDER FOR A NEW
TRIAL.
The Bail Reform Act of 1984 requires that a defendant
moving for post conviction bail demonstrate:
‘that the appeal is not ‘or purpose of delay and
raises a substantial question of law or fact likely
to result in reversal or an order for a new trial.”’
18 U.S.C.§3143(6)(2).
The January 25, 1985 Minute Entry (Exhibit A) in this
matter, in which the trial court denied applicant’s motion
to remain on bond, contained only the district court’s con-
clusion as to the absence of substantial issues. It did not
address any of the issues which applicant raised in his Mo-
tion to Remain on Bond Pending Appeal (Exhibit B). In
fact, several co-defendants in the matter filed similar mo-
tions which contained issues which they considered
substantial and these were not addressed either. The trial
court offered only the conclusion that no such issues exist:
though certain decisions which the govern-
ment’s attorneys made with respect to the
method of presentation of their case may have
been different than those which I might have
made under the circumstances, I have no hesita-
tion in concluding that the trial generated no
substantial questions of law or fact which are
likely to result in reversal or appeal. Nor were
there any substantial questions of law or fact
A-33
which will result in a new trial.” Minute Entry,
January 25, 1985. (Exhibit A).
The trial court then concluded:
“Having made the determination that such is not
here the case, defendant’s motions for bail pend-
ing appeal must be denied.”’ Minute Entry,
January 25, 1985. (Exhibit A).
It is submitted that the trial court could not find other-
wise, having just denied numerous motions in arrest of
judgment and motions for a new trial filed by various
defendants herein. This highlights the highly illogical posi-
tion in which a trial court judge is placed if 18
U.S.C.§3143(b)(2) is interpreted as it was by the district
court in this matter.
Any discussion of post-sentence bail must begin with
two basic premises. The first is that bail is essential to
make meaningful the right of appeal. The second is that
Congress could, in fact, outlaw completely post-conviction
bail but has chosen not to. The second, it is submitted, is a
reflection upon the importance of the first. Given the fact
that Congress chose not to simply outlaw post-conviction
bail, it is incumbent upon this Court to closely examine any
interpretation of 18 U.S.C.§3143(b)(2) that would in effect
deny post-conviction bail in all cases. Thus, the dilemma
within which a trial court judge finds himself. As Judge
Katz pointed out in U.S. v. Meloni (attached hereto as Ex-
hibit C):
“‘Now, the due process rights of the Constitution
also guarantee that the defendant have an impar-
tial tribunal deciding material issues. It’s dif-
ficult for me to understand how an impartial
A-34
judge would deny post-trial motions and then cer-
tify he is likely to be reversed on appeal. I can’t
conceive really how that is done. A statute which
requires a court to make that determination
before granting release on appeal does, to my
mind, raise at least constitutional concerns.”
Meloni, supra, (Exhibit C) p.6.
Judge Katz continues in that case to effectively inter-
pret the Bail Reform Act in a manner which is not abhorent
to the Constitution and, in fact, makes it an effective piece
of legislation. He distinguishes between those cases which
merely present substantial legal issues and those which
present substantial legal issues where there is no legal im-
pediment to reversal by stare decisis or otherwise. Thus, a
defendant may raise a substantial legal issue which has
been passed upon by the U.S. Supreme Court. This type of
issue would be one where the chances of reversal are
remote. On the other hand, a defendant may raise those
types of issues, such as sufficiency or admissibility of
evidence which must be reviewed on a case by case basis
which bear no impediment to reversal. These types of
issues are at the very heart of Mr. Crabtree’s appeal and
are the types of issues whici. cry for resolution by an im-
partial tribunal, having already been decided upon at the
trial court level.
In Mr. Crabtree’s motion to remain on bond pending
appeal, five issues were raised as serious issues for appeal:
a) The presence of a “contaminated” juror on the panel
during the trial of the matter;
b) The !ack of evidence of two seperate predicate acts
as is required under 18 U.S.C.§1962;
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c) The lack of evidence pertaining to the ruling of the
trial court pursuant to James motions filed therein;
d) The impropriety of government counsel’s rebuttal
argument;
e) The admissibility of prejudicial tapes concerning Mr.
Crabtree’s wife.
Briefly, as to a) above, on the morning of the second
day of the trial of the matter, an article appeared in the
Times Picayune newspaper (attached herein as Exhibit D)
which contained a reference to co-defendant Provenzano’s
prior conviction. It should be noted that the government's
theory of the case as reflected by testimony and, indeed, as
demonstrated on charts displayed to the jury, was that
defendant Provenzano was the titular and de facto head of
an organized racketeering enterprise. He was, in effect, the
hub of the illegal enterprises alleged. He was the sole de-
fendant named in every count of the indictment. The trial
court had not instructed the jury to disregard any media
reports of the trial and, on motion of the defense after this
article appeared, examined the jury to determine if any of
the jurors had read the article. Three jurors indicated that
they had. All of the jurors were then sent to the jury
deliberation room and the three who had indicaved that
they had read the article were called back into the court-
room individually and examined by the court. In the
court’s examination of the first juror, the court asked her if
she had read of Mr. Provenzano’s prior conviction as it was
related in the article. While the juror said she did not recall
noticing anything about the conviction, the very fact that
Mr. Provenzano had been so convicted was brought to her
attention inadvertently by the court.
A-36
It is noteworthy that this prior conviction concerned
an attack on a potential government witness with a shovel
handle. That witness was, in fact, one of the chief govern-
ment witnesses in the present trial. The juror was then in-
structed to return to the jury room and send out the next
juror who had indicated having read the article. No ad-
monishment was given to that juror to refrain from
discussing with the other jurors what had occurred in court
out of their presence. The two remaining jurors who had
stated that they read the article were then examined
without incident and returned to the jury deliberation
room. The juror who had been initially examined was
subsequently released from the jury and replaced by an
alternate. The critical issue revolves around the lack of ad-
monishment to the juror and the fact that she remained in
the presence of the balance of the jury for some period of
time after she was acquainted with this fact. It is also
noteworthy that defendant Provenzano elected not to
testify in this matter, and thus, this was the only way that
the jury had of knowing of his prior conviction.
As to the lack of evidence of two separate predicate
acts, it is submitted that the government failed to prove
that Mr. Crabtree participated in two separate predicate
acts as required under 18 U.S.C. $1962. He was alleged to
have been involved in those two counts of the indictment
which came to be known as Oil Patch I and Oil Patch II.
These activities centered around two alleged aggravated
arsons of a barroom in south Louisiana named The Oil
Patch Lounge. The first arson occurred December 31, 1979
and the second occurred June 26, 1980. One government
witness testified as to Mr. Crabtree’s involvement in the
planning of each. It was never alleged that he was present
when the arsons occurred. The only evidence that the
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government could offer as to the first arson of the Oil
Patch was through a witness named John Toal who
testified merely that Mr. Crabtree was present when the ar-
son of December 31, 1979 was discussed. He made no
reference to Crabtree’s participation in the planning or ac-
tual execution of the deed. Noteworthy under this heading
is the fact that there was no physical evidence of
Crabtree’s involvement nor was he intercepted or recorded
in any fashion in the over seven hundred hours of govern-
ment wiretaps and consensual recordings in this matter.
Regarding the lack of evidence pertaining to the ruling
pursuant to the “James” motions filed, it is submitted by
the defense and will be argued most vigorously on appeal,
that there was no independent evidence of Crabtree’s in-
volvement in a conspiracy as required by U.S. v. James,
590 F.2d 575 (5th Cir.) (en banc) cert. denied 442 U.S. 917
(1979). As stated above, he was not intercepted on any Ti-
tle III wiretap nor was he recorder by any of the govern-
ment informants in this matter during their extensive con-
sensual taping of other defendants. Further, as stated
above, there was no physical evidence of Crabtree’s in-
volvement whatsoever.
Also on appeal in this matter will be the impropriety of
government counsel’s rebuttal argument which contains
several ad hominum arguments directed at various defend-
ants and their counsel. Obviously this issue cannot be fully
discussed until the entire transcript is prepared. That this
circuit has, however, treated this in a serious fashion.
As to e) above, prior to the trial of the matter, both
your defendant’s wife and defendant Provenzano’s wife
were placed under subpoena by the government. At trial, a
A-38
tape was introduced into evidence by the government
wherein these two discussed the possible sale of stolen
goods. The government then elected to call neither as a
witness after having introduced the tape through an in-
formant who said that he could identify the voices of the
participants. It is submitted that the tape was absolutely
irrelevant to the matter at trial because neither woman was
charged in the indictment and there were no counts against
any defendant involving stolen goods. Further, Crabtree
was in no way even alleged to have known of that par-
ticular act. In short, it served only to show a proportedly
deep relationship between Crabtree’s family and Proven-
zano’s family. This could only serve to, if not inflame the
jury, at least show that Mrs. Crabtree as well as defendant
Crabtree knew people whom the government thought to be
evil.
II.
WHETHER THE TRIAL COURT'S APPLICATION OF
THE 1984 AMENDMENT TO 18 U.S.C.§3143 TO AN OF-
FENSE WHICH OCCURRED BEFORE ITS EFFFEC-
TIVE DATE CONSTITUTES A VIOLATION OF THE
PROHIBITION AGAINST EX POST FACTO LAWS.
As stated above, the instant offenses for which your
defendant has been convicted occurred in 1979 and 1980.
On October 12, 1984, Public Law No. 94-473, 98 Stat. 1837
was signed into law. Title II of that statue bears the
popular name “Comprehensive Crime Control Act of
1984.” Within Chapter I of the Act found the law
regulating bail and is popularly referred to as the “Bail
Reform Act of 1984.” This law substantially revised the
rules governing bail pending appeal. Both the old and new
A-39
laws set up a two-prong test to determine whether or not a
convicted defendant could remain on bond pending the
completion of the appeal. The first hurdle was and is a re-
quirement that the defendant show by ‘clear and convinc-
ing evidence that the person is not likely to flee or pose a
danger to the safety of any other person or to the communi-
ty if released.” 18 U.S.C.§3143(b)(1). The revision now re-
quires the defendant to also demonstrate that the appeal is
not “for the purpose of delay and raises a substantial ques-
tion of law or fact likely to result in reversal or an order for
a new trial.” 18 U.S.C.§3143(b)(2). The prior statute, 18
U.S.C.§$3148, required a finding that the appeal was not
frivolous or merely taken to delay proceedings. It should
be noted that Rule 9(c) of the Federal Rules of Appellate
Procedure made it clear that, while the burden was on the
applicant to establish the absence of the likelihood of flight
or danger, the burden for establishing that the appeal was
frivolous or dilitory was placed squarely on the govern-
ment.
Further, it should again be noted that the trial court
judge stated that he was only concerned with the second
element of the test in this case, and was not concerned with
the likelihood of flight or the defendants posing a danger.
The question is, then, one of interpretation of 18
U.S.C.§3143(b)(2) and its applicability to a defendant who
was convicted of crimes which occurred before its date of
enactment.
Counsel could find no published opinions dealing with
the application of the pertinent amendments to offenses
predating the effective date or with the interpretation of
the statute as a whole. It is submitted that because the
Bail Reform Act of 1984 has only been in effect since Oc-
tober 12, 1984, that this issue is res nova.
A-40
While it is hornbook law that a procedural change in
the law jis applicable immediately to all cases pending,
Judge Susan Getzendanner, United States District Judge
for the Northern District of "linois, Eastern Division, in
United States v. Cirrincione (attached hereto as Exhibit E),
pointed out that there are procedural matters which may
have sufficient effect upon a defendant’s substantive
rights as to cause them to fall within the ambit of the ex
post facto prohibition. She then continued, citing Weaver
v. Graham, 450 U.S. 24 (1981), that the test to determine
whether or not a penal law can be held to be ex post facto is
as follows:
‘*..1t mus’ - pply to criminal acts occurring before
its enact ent into law, and it must disadvantage
the offender affected by it. The Bail Reform Act
of 1984 facially fits these criteria. First the act
retrospectively affects all defendants whose
crimes occurred before the effective date of the
Act, October 12, 1984. Second, the Act severely
limits that availability of bond pending appeal
and is disadvantageous to defendants who
routinely seek to delay commencement of their
sentences by obtaining release on bail pending
appeal.” Cirrincione, supra, (Exhibit E) p.6.
It should be clear that the effects of this Act are
punitive and disadvantageous to Crabtree. It is likely that
he will have served a substantial portion of his sentence
prior to the time that this litigation is finally resolved.
Should his conviction be reversed or set aside altogether
and a verdict of acquittal entered, he would then have been
denied his liberty needlessly and for a substantial period of
time. This increase in the likelihood of an unjust incarcera-
tion cannot be rationally viewed as a simple matter of pro-
cedure. Analogizing the instant case to the situation ad-
dressed in Weaver, supra, wherein the Supreme Court
A-41
found that a statute reducing ‘‘good time” credits was an
ex post facto application of the law it is clear that applica-
tion of the Bail Reform Act of 1984 to offense committed
before the effective date of the Act is similarly violative of
that prohibition.
On January 30, 1985, the Honorable Peter Beer, trial
judge in this matter, denied defendant’s motion to remain
on bond pending appeal, a copy of which is attached hereto
as Exhibit F.
Respectfully submitted:
/s/
WILLIAM J. O’HARA, III
JOHN-MICHAEL LAWRENCE
LEMANN, O’HARA & MILES
300 Lafayette Street
Suite 100
New Orleans, Louisiana 70130
Phone: (504) 522-8104
CERTIFICATE
I hereby certify that a copy of the above and foregoing
document has been served upon opposing counsel by hand
delivery this 3lst day of January, 1985.
/s/
WILLIAM J. O’HARA, III
A-42
APPENDIX “F”
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
vs.
SAM MELONI,
Defendant
CRIMINAL NO. 84-00295
Philadelphia, PA
December 11, 1984
BEFORE THE HONORABLE MARVIN KATZ, J.
BENCH OPINION
TRANSCRIPT ORDERED BY: DONALD GOLDBERG,
ESQ.
APPEARANCES:
For the United States: FRANK H. SHERMAN
Asst. United States Attorney
Philadelphia, PA
For the Defendant: DONALD GOLDBERG, ESQ.
1310 Three Girard Plaza
Philadelphia, PA 19102
Court Reporter: Nancy O'Neill Reusing
Room 510, 35 North 6h Street
Reading, PA 19601
¢
A-43
EXCERPT FROM THE PROCEEDINGS
THE COURT: Have both sides had a chance to review
the presentence report?
MR. GOLDBERG: Yes, sir.
MR. SHERMAN: Yes, sir.
THE COURT: And let me -- Maybe it would be betier if
we proceeded this way. I had the benefit of your arguments
on the issue of Section 3142, and perhaps it would be better
if I ruled on that at the present time and then, of course, I
will hear you fully on the issue of sentence. If after hearing
both sides, I do sentence the defendant to a term of im-
prisonment, I must then decide whether his bail may con-
tinue pending appeal.
The release of a defendant pending appeal of his con-
viction is governed by the Comprehensive Crime Control
Act of 1984 which became effective for this purpose on Oc-
tober 12, 1984. The Comprehensive Crime Control Act
significantly changes prior law governing this issue and its
interpretation as applied to a case like this one, which is ap-
parently a matter of first impression. Under the new law,
essentially a judicial officer shall order that a person who
has been found guilty and who has filed an appeal be de-
tained unless the officer finds by clear and convincing
evidence that the person is not likely to flee or pose a
danger to the safety of any other person or the community
if released. And I take it from the presentence report and
my hearing of you at the oral argument that there is really
not an issue about that portion of the law.
A-44
I take it that is really not an issue?
MR. SHERMAN: That’s correct, Your Honor.
THE COURT: And what is at issue, of course, is the
second portion that the appeal is not for purpose of delay
and raises a substantial question of law or fact likely to
result in the reversal or an order for a new trial.
The legislative history of the Act indicates that the law
shifts the prior presumption in favor of release to one
favoring detention. Under prior law, release can be denied
only if it appeared that the appeal was frivolous or taken
for purposes of delay. Under the new act, the burden rests
upon the defendant to establish not only that he will not
flee or pose a danger to the safety of other persons in the
community, but also that his appeal is not taken for pur-
poses of delay and raises a substantial question of law or
fact likely to result in reversal or an order for a new trial.
I find, as government counsel very properly concedes
that — and on my own reading of the presentence report,
that the first part of the law is satisfied, that is, that Mr.
Meloni is not likely to flee, nor is he likely to pose a danger
to any other person in the community if released. Whether
the defendant has satisified the requirements of the second
part is the issue that I have thought about.
One interpretation of b(2) would require the judicial of-
ficer to deny release whenever the question being appealed
is either insubstantial or unlikely to be resolved in the
defendant’s favor on appeal. However, the well-established
rule of statutory construction is that a statute should be
construed to give meaning to all of its words. Since every
A-45
question that is likely to result in reversal or a new trial is a
substantial question, that reading of the law would make
the substantiality test completely meaningless. In other
words, if there are two requirements in the statute, I want
to read the statute in a sensible way to give effect to both
of them. And if one of the requirements is that it’s likely to
be reversed on appeal, then what sense is there to the other
requirement of substantiality? Every case that is likely to
be reversed on appeal involves a substantial question of
law or fact. So, I think that is perhaps not a reading of the
statute which makes sense of all the words, and I think my
obligation is to try to read a statute sensibly and to read all
the words of the statute sensibly.
In addition to that, the Draconian interpretation of the
statute has been considered by other courts to raise con-
stitutional concerns. Now, those other courts didn’t resolve
those constitutional concerns, and neither will I. But the
opinion of the Court of Appeals for the District of Colum-
bia in the Brown case considered an identical statute ap-
plicable by its terms, at least to the District of Columbia,
and in construing that statute expressed very serious con-
stitutional concerns.
I recognize there is no automatic right to bail pending
appeal. On the other hand, the other side of that is that
courts have said in their opinions by Justice Black and
Justice Douglas indicating very clearly that the other side
of that proposition is that judges should not deny such
relief unless there are very strong reasons.
To deny bail pending appeal to persons convicted of
crimes may, in certain instances, raise constitutional con-
cerns because it would deprive a defendant of a meaningful
A-46
right of appeal which is granted by a statute, and there are
commentators who have considered the issue. And one
commentator, for example, puts it this way: one who suf-
fers imprisonment after conviction and during the penden-
cy of his appeal suffers the same injustice if his conviction
is reversed and he is acquitted as one who is denied bail
before trial and then acquitted. Bail is essential to make
meaningful the right of appeal. Otherwise a sentence might
be served before the appellate courts could set aside a con-
viction for infirmities at trial. An effective right of appeal
would thus be lost.
Reading the statute in a way to deny bail would indeed
in this case probably deprive Mr. Meloni of any meaningful
review of a conviction in the court. Indeed, he would proba-
bly serve a sentence before the appeal was determined.
Now, the due process rights of the Constitution also
guarantee that the defendant have an impartial tribunal
deciding material issues. It’s difficult for me to understand
how an impartial judge would deny post-trial motions and
then certify he is likely to be reversed on appeal. I can’t
conceive really how that is done. A statute which requires a
court to make that determination before granting release
on appeal does, to my mind, raise at least constitutional
concerns. Reading the statute to require this kind of a
determination, that is, the motions for new trial, for judg-
ment of acquittal are denied by the court is likely to be
reversed on appeal is just, in my mind, not a sensible inter-
pretation of the statute. When a statute is susceptible of
more than one construction, one presenting constitutional
concerns that are serious, the other avoiding such ques-
tions, I think it’s the duty of a court to choose the latter
kind of reading.
A-47
As I interpret Section 3143(b)(2), a judge may release
the defendant pending appeal where the defendant’s ap-
peal presents a substantial legal issue and where there is no
legal impediment to reversal by stare decisis or otherwise.
Not all defendants who raise substantial legal issues would
be released under this interpretation. For example, there
are many substantial legal issues that are decided by the
Supreme Court of the United States in a divided opinion.
And if the defendant raises one of those legal issues which
has been decided adversely to him by the Supreme Court of
the United States in a 5 - 4 opinion, it would be foolish to
say that isn’t a substantial legal issue. On the other hand,
it’s an issue that is not likely to result in reversal because,
under the principle of stare decisis, that decision would be
binding on me and the other judge who had to face the legal
issue.
Another example would be if the defendant raises a
substantial legal issue that has been decided contrary to
his position in the court of appeals that has jurisdiction
over the appeal. He would not be freed if it’s likely, as
perhaps Judge Pollak did in the bench opinion. Judge
Pollak decided in the opinion which the government was
kind enough to furnish me that the Supreme Court would
likely decline to hear that issue. That’s the end of it. Sure
it’s a substantial legal issue we will assume, but it’s not
likely to result in reversal. And, of course, the example
which defense counsel pointed out to me at the oral argu-
ment of this matter: there is a substantial legal issue, but
the defendant on other evidence is just guilty beyond a
reasonable doubt or whatever. And the harmless error doc-
trine would prevent reversal would be another example of
reading the statute in a sensible way to deny release pend-
ing appeal because all of the other legal issues is substan-
A-48
CERTIFICATE
I, Nancy O'Neill Reusing, certify that the foregoing is
a correct transcript from the record of proceedings in the
above-entitled matter.
Official Court Reporter Date
A-49
tial. It is not likely to result in reversal.
Interpreting the statute to permit release pending ap-
peal where the defendant raises a substantial legal issue in
a context where there is no legal impediment which
forecloses reversal is consistent with the rules of statutory
construction. Both the words ‘‘substantial’’ and ‘‘likely to
result in reversal or and order for a new trial’’ is given two
meanings. Neither one is read out of the statute. In addi-
tion, this interpretation furthers Congressional intent of
shifting the burden to the defendant to show that release is
justified, and whether, of course, a legal or factual issue is
substantial depends on the facts of each case.
4
| I believe that the legal issue which Mr. Meloni has
) raised falls within that portion of the spectrum which
satisfies the test of substantiality as I read the Keller case,
: although I denied the motions for a new trial and I really
think there are sufficient circumstantial evidence to justify
the conviction or I wouldn’t have denied the motions for a
new trial and for judgment of acquittal. The Keller case
does raise a substantial legal question. And if another
ccourt decided that Keller controls, of course, there is no
legal impediment to reversal.
For those reasons, and after considering the able
arguments of counsel last week, if I do, after hearing you,
impose a term of imprisonment, Mr. Meloni’s bail will be
continued pending determination of his appeal. I apologize
for doing this first, and I will hear you fully. But I thought
it would just perhaps be more appropriate to dispose of
this issue first, although perhaps in a more wooden way I
wouldn’t reach it until later. I just thought it would be bet-
ter to do it now.
A-50
APPENDIX “G”’
Gang was run by Provenzano, trial jury told
By Susan Finch
Staff Writer
West Bank businessman Joseph ‘‘Junior’’ Provenzano
ran a sometimes haphazard crime gang that specialized in
arson, extortion, prostitution, mail fraud and burglary, a
prosecutor told a federal court jury Tuesday.
But attorney’s for Provenzano, 49, of 5313 Fourth St.,
Marrero, and four of the six men on trial with him said the
government’s case is based on information from former
Provenzano associates who are protecting themselves from
prosecution for their own crimes.
Prosecutor Virginia B. Bitzer said the government will
prove that, from 1979 to 1982, Provenzano and four of the
defendants were ‘‘a group of people that got together for
the purpose of committing serious, violent crimes.”’
Those being tried with Provenzano on the racketeering
and conspiracy charges are:
Former Westwego surgeon Dr. Salvatore Canale, 63,
now of Las Vegas, Nev. ;
Houma, La., lounge owner Herbert J. Thibodaux, 44.
Hubert ‘“‘Huey”’ Crabtree, 43, 319 Avenue I, Marrero,
owner of an oilfield tool rental company.
Offshore oil worker Harold P. Blanchard, 27, 1144
Scottsdale, Harvey.
A sixth man, Gretna dentist Dr. Natchez Morice, also
was accused of being a part of the criminal enterprise. But
A-51
Morice, who underwent surgery last weekend, will be tried
separately.
Two other men are on trial in the case only on mail
fraud charges. They are deputy state fire marshal Joseph
Manzella, 4508 Leo St., Marrero, and salesman Joseph
Jimenez, 48, of 2101 Manhattan Blvd., Harvey.
Bitzer, a prosecutor with a federal organized crime
strike force, detailed some of what she said were Proven-
zano schemes that didn’t pan out.
She said, for example, the government will show that
three Provenzano associates sent out to burn a car belong-
ing to Canale’s first wife torched the wrong vehicle.
Later, when Provenzano ordered two men to burglarize
and burn a West Bank restaurant owned by Canale’s
estranged second wife, they committed the burglary but
didn’t go through with the arson because a country-and-
western lounge next door was full of customers, she said.
One of the men told to burn the restaurant was John
Rietzke, Bitzer said. Provenzano was convicted in January
of hitting Rietzke with a shovel handle after Rietzke
testified before a grand jury investigating Provenzano.
Provenzano is seeking a new trial on that charge.
In one alleged extortion incident, Bitzer said, Proven-
zano beat up his associate Rondell ‘‘Tiny”’ Hulburt because
Provenzano was unhappy about his share of a prostitute’e
earnings.
“You will hear that argument as it is taking place,”’
A-52
said Bitzer, referring to one of several tape recordings
made by informants.
Provenzano’s attorney Provino Mosca, however, told
jurors that Hulburt started the fight, during which Pro-
venzano hit him over the head with a chair and pointed a
gun at Hulburt to frighten him.
Mosca said that afterward, as the two men walked out
of the West Bank lounge where the fight had occurred,
Hulburt apologized to Provenzano, saying, ‘I love you.”
‘What Tiny means by that is the kind of love a woman
has for a man. Junior sensed this and wanted no part of it,”’
said Mosca, who said the case involved “a lot of sensitive
areas: homosexuality, bisexuality, rape and prostitution.”’
Mosca likened the case against Provenzano to George
Orwell’s novel ‘1984’ saying it ‘involves overreaching
authority. It gives us a warning about the future of our
freedom.”’
Canale attorney Ralph Capitelli attacked the credibili-
ty of two key witnesses in the case — Hulburt and Robert
John Toal, who had been described by Bitzer as Proven-
zano’s former right-hand man.
Hulburt, he said, pleaded quilty to a charge of sexual
battery in Plaquemines Parish while he was a government
witness in the Provenzano investigation. Hulburt is serv-
ing 10 years in prison, Capitelli said.
He said Toal is not being prosecuted for state crimes
he committed and was paid almost $30,000 to investigate
A-53
and testify against Provenzano.
Blanchard attorney Ed Castaing Jr. said Hulburt, Toal
and Rietzke all had worked as pimps and shouldn’t be
believed. He said Rietzke was manipulated by Toal, and
Toal wanted to get Blanchard in trouble because Blan-
chard had run away with Toal’s first wife and child.
A-54
APPENDIX “H”
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NEW ORLEANS, LOUISIANA
UNITED STATES OF AMERICA
VERSUS
JOSEPH ROBERT PROVENZANO
CRIMINAL ACTION
NUMBER 84-103
SECTION M
TRANSCRIPT OF THE COURT‘S QUESTIONING OF
THREE JURORS PERTAINING TO AN ARTICLE IN
THE NEWSPAPER, HELD IN OPEN COURT,
WEDNESDAY, DECEMBER 5, 1984, DURING THE
TRIAL IN THE ABOVE-MENTIONED CASE,
BEFORE THE HONORABLE PETER BEER, UNITED
STATES DISTRICT JUDGE.
REPORTED BY:
RHONDA J. BALLARD
OFFICIAL COURT REPORTER
PROCEEDINGS
ese 2%
MR. MOSCA: In connection — there was an article in
A-55
todays paper and I would ask the Court, I have a copy
marked as Provenzano double A. The article makes
reference to this trial. It goes deeper than that. It makes a
reference to Mr. Provenzano’s prior conviction. I would ask
the court if it would respectfully consider asking the jurors
if they read the newspaper, if anyone raises their hand, if
you would take them individually and discuss it with them.
THE COURT: Yes, I'l deal with it this way. I think
it’s in order for you to make that request and I'll handle it
this way. I am not going to ask if anybody has or hasn’t, I
am going to simply indicate to the jury if anybody has seen
the newspaper article that they should disregard anything
that is contained in it with resepect to any other events in
Mr. Provenzano’s life because they don’t have anything
whatsoever to do with the matter we are dealing with here.
And that they should consistently disregard any reference
to any other events, for the only thing that they are to ad-
judicate here is the guilt or innocence of any of the defend-
ants here, in light of the evidence aduced with repect to
this trial. And I am going to tell them that in the future
they should disregard any public statement by the paper or
on the tube or anything like that, that they should
disregard it. I think paper has a right to print what they
want to print. I’m not sure that it is really all that possible
to tell the jury they can’t read anything or watch the tube
or inadvertantly come across information. I think it’s far
more useful to the administration of justice, in fairness to
the defendants and the whole process of fair jury pro-
ceedings to tell them to disregard it rather than try to have
them cut off a part of their lives. I will do that, consistent
with what I said.
MR. MOSCA: Your Honor, in connection with your
A-56
decision, it seems reasonable that we have four alternates.
It seems reasonable that if one of the jurors or one of the
alternates has read about his prior conviction that is a step
beyond just reading the article and disregarding it. If there
is anyway you can edit that out or confront the jury about
it and see if it’s tainted them anyway, because that seems
to m to be a little bit more severe of a problem than just
reading the article and disregarding it.
THE COURT: Well, okay. I am not going to do it that
way I am going to do it the way I indicated and proceed on
that basis. I ll note your statement as to how you believe it
should have been done.
MR. MOSCA: Thank you. Respectfully note my objec-
tion.
MR. FANNING: We had a conversation previously
about this and I think the other attorneys thought we were
going to make a motion just now, Judge.
THE COURT: Okay if you want to distill this into a
motion for mistrial, make the motion. Ill deal it right now.
I am going to deal with the jury the way I indicated. If
you think that forms a basis for moving for a mistrial, go
ahead make the motion.
MR. FANNING: I am concerned about making our
record. We would urge the court for a mistrial due to the
substantial danger that some of the jurors may have read
the article in the metro section in the paper. It makes
reference to Mr. Provenzano’s previous conviction and call
to the court’s attention that had the government made
A-57
mention of such a conviction during it’s opening statement
for example, there would have been no way to cure that.
We think there is no way to cure it at this point by giving
any cautionary instruction to the jury.
THE COURT: Does the government wait to be heard
from on that?
M3. BITZER: No, your Honor.
THE COURT: Any alternative suggestion to that
which I intend to follow?
MS. BITZER: I think cautionary instructions should
solve the problem. There may be other articles in the
future.
THE COURT: That is the way I intend to deal with it.
The record is clear. The Government said what they want
to say, I told you what I want to do. Everybody has their
ducks in a row.
MR. FANNING: The other defendants want to be in-
cluded on behalf of all parties.
THE COURT: I don't know exactly what specific
grounds, but I will note that they have made the motion as
well and has been denied.
MR. HAND: Does that mean the court would like us to
articulate on behalf of each client? 3
THE COURT: I don’t find it necessary. You can save
that for the court of appeal.
A-58
(Whereupon, the jury enters the courtroom.)
THE COURT: It looks like, it is hard for me to tell
what has happened to Mr. Woods. I waited essentially an
hour for him to show up. Apparently there was‘ call early
this morning to the jury section by Mr. Woods, at which
time, apparently it was indicated he would be here by noon.
But, we were an hour into the time that we had indicated
we would start up again. And I have just found it
necessary to go ahead. I don’t feel like I could impose on
the other members of the jury, the lawyers, the defendants,
the government, the witnesses et cetera. And so that
nobody will bear the responsibility except me and the
record will be clear that there isn’t anyone else making
decision. I just made the decision to go ahead now that an
hour has passed from the time we were supposed to start.
And reconstitute the jury with the first alternate becoming
a member of the panel. If anybody has some objection,
wants to note it, Il] permit you to do so when we break. For
whatever purpose or reason you may wish to note any ob-
jection. I am perfectly willing to make it clear on the record
I am just doing it on my own responsibility. I don’t see any
alternative but to go ahead. If anyone wants to specifically
voice an objection at this time, I am willing for them to do
so. I'l permit you to note any objection during the after-
noon break.
The first thing I want to do is clear up a couple of
points as far as what I guess you call good housekeeping is
concerned, Ladies and Gentlemen of the jury. One of the
great things about this country, I suppose, is the fact that
the court process is one that is open to the public. The
public certainly includes people from the press, the radio,
television, newspaper, et cetera. And thus, in the course of
A-59
this trial as has now been brought to my attention, some
articles may, from time to time, appear in the newspaper,
you may even notice yourself some of them have reference
to the fact that this matter is in trial, something on the
radio, something in the paper. It was called to my atten-
tion, though I didn’t see it myself, there was an article in
this morning’s Times Picayune about this trial. Which is
quite in order. The press has a perfect right to be present in
the courtroom, just like any other citizen. However, the
newspaper article makes reference with respect to Mr. Pro-
venzano, of another case that had been before this court.
And if any of you all did, by chance, see the article or read
it, I want to say to you that any reference to any other pro-
ceedings is so totally irrelevent and immaterial to what we
are dealing with here. And I want to instruct you in the
strongest possible terms to disregard any reference to any
other event or events as they have to do either with Mr.
Provenzano, or any other defendant in the case. The ob-
vious purpose of my instructions to you on that point is
clear, the only thing that this jury is concerned with is a
determination of the guilt or innocence of the defendants
before this court, with respect to these charges, in these
proceedings, at this time. And it would have been quite in
order for defense counsel to object if anyone in the pro-
ceedings sought to make reference to any other event or
events involving any of these defendants that is not
material to these proceedings. It isn’t before us. and I
direct you in the strongest possible way to disregard any
reference wherever it may be, in the newspaper, television,
radio, et cetera, with respect to any other alleged, or pro-
posed, or contended activities on the part of any of these
defendants in every respect. Because that is not what we’re
dealing with here. What we’re dealing with here is the
charge that the grand jury returned that I read to you
A-60
carefully yesterday and I noticed that you all listened to
carefully yesterday. And that is all. And Basically, what
the jury has to decide in this case, is whether any of these
defendants are guilty of any of these charges, the ones that
we discussed yesterday. And nothing else. Indeed, the jury
doesn't even have to be concerned in any respect with
regard to any dealing with that finding if there is, whatever
the finding is. The court will deal with that finding itself.
So, what you all have got to concentrate on and I know you
will, is simply the question of guilt of innocence of these
defendants as they are involved with the charges that have
been brought against them by The United States. That is
all. In this court proceeding, before us here in this-court-
room. And I know that you will do that. I can sense in my
eye contact with you and just my own appraisal of your
togetherness as far as operating as a jury is concerned,
that you're going to follow my request and my direction
that you deal with it on that basis. And I know that you
will. Let me say to you the best way of avoiding any con-
sideration of what may be carried in the press when, I say
the press, I mean the whole area of press activities, radio,
television, newspaper, magazines, whatever. Try to avoid
concerning yourself with any articles or what not. Because
all it could possibly be in so far as what is going on here is
concerned, is report of those events which you all are more
privy to than anybody. You all know better than anybody
what is going on here. Really, the best way to avoid any
possibilities of having anything that should not be con-
sidered by you in anyway called to your attentions is just
to flip it off if something comes on or disregard it, not read
it, if it shows up in the paper. I don’t mean to demean those
sources of information. I just mean that that is probably
the fairest thing you can do in the circumstances. But most
important, of course, is to follow my very strong admoni-
A-61
tion to you not to in any way be effected by, or consider, or
even take into account other events involving any of these
defendants as they have to do with other contentions,
other findings in other proceedings whatsoever. That is the
only way to live up to your oath, which is that you will give
the defendants a fair and impartial trial and, of course, the
government, the same thing. And consistent with that
fairness and impartiality is that you regard only what you
hear and perceive here in this courtroom in these pro-
ceedings. And I know you will do that. Okay, let’s go right
ahead, then call your next witness.
MR. MOORE: Could we have a sidebar conference, if
the court please?
(Whereupon a bench conference was held outside the
hearing of the jury on the record.)
MR. MOORE: Your Honor, what concerns the govern-
ment at this time is if any of the jurors could have read the
article. We suggest that the court should probably pro-
pound the question as to whether or not anyone of them
have read the article. Because the court kind of mentioned
to them there was another case. And we think that needs to
be clarified at this time, that if anyone has, in fact, read the
article. That the court should probably inquire whether or
not that would effect them in so far as any judgement of
this case.
MR. MOSCA: This basically is what I asked for initial-
ly, and at this time I would like to ask that if you so deem it
appropriate you would ask the juror to raise their hand and
take them individually so we don't taint the whole jury if
that is ameanable to you.
eed
A-62
THE COURT: I'll do that.
(Whereupon, the discussion at the bench was conclud-
ed.)
THE COURT: Kind of along the lines of the article in
the paper, let me ask if any of you did, in fact, read that ar-
ticle. In the Times Picayune, this morning? Let me just ask
your name, please.
JUROR, BAILY: Valerie Baiicy.
JUROR, VOLINTINE: Donna Volintine.
JUROR, MEIDERA: Jean Meidera.
THE COURT: Okay. I think perhaps the easiest way
to deal with this would be to ask — I know this is a slight
inconvenience to you all — let me ask that the jury step out
for just a moment and Miss Bailey, would you remain for
just a second after the jury steps out.
(Whereupon the jury exited the courtroom.)
THE COURT: I’m going to ask you some questions. I
want to check with you to satisfactory myself of a couple of
points. Did you recall if you noticed in the article, the arti-
cle made reference to another trial, another conviction with
respect to Mr. Provenzano.
JUROR, BAILEY: I don’t remember.
THE COURT: You don’t remember, If indeed it did,
and you happened to have read it, would that in anyway af-
A-63
fect your ability to fairly and impartially hear and decide
this case?
JUROR, BAILEY: No, It won't.
THE COURT: Any other questions.
MR. FANNING: I'd like to ask the juror if she dis-
cussed the article with anyone else, including any of the
jury.
THE COURT: Did you discuss that article with any
other members of the jury.
JUROR, BAILEY: No, I did not.
THE COURT: Thank you, Miss Bailey, would you ask
Miss Volintine if she would step in a minute.
(Whereupon, Juror, Bailey, exited the courtroom.)
MR. CAPITELLI: Before the next juror comes in, I
would like to ask the court not to reference the point in the
article. I think that has an effect on all the people involved.
THE COURT: I don’t understand what you mean.
MR. CAPITELLI: I withdraw it.
MS. BITZER: We agree with that. I understand what
he is saying, that the court would not pinpoint the specific
case. More particularly, whether or not there was a convic-
tion, as a matter of fact. Just whether or not they read it, if
it would effect it would have on them.
aaa is.
A-64
THE COURT: I am going to try to do this the way all
of you want to. I don’t have the forum in prospective, as
much as I do the necessity of a fair trial. And as far as I am
concerned, the verbage that somehow, apparently effects
everyones thinking, because the Fifth Circuit pronounces
some existing attitude of the manner these things have to
be addressed, doesn’t concern me as much as being sure I
satisfactory myself as a United States District Judge these
people are going to have a fair trial at the hands of this
jury, than some rote adherance to some specific verbage
announced by some panel of the Court of Appeal. Go ahead
call the next juror. (Whereupon, Juror, Volintine entered
the courtroom.)
THE COURT: Consistent with your response to the
court, with respect to having read the article that appeared
in the Times Picayune this morning, did you read the arti-
cle in its entirety.
JUROR, VOLINTINE: No, I just glanced through it.
THE COURT: Let me simply ask you this: Would the
discussion of the article, what is included in the article, in
anyway effect your ability to fairly and impartially hear
and decide the issues in this case.
JUROR, VOLINTINE: No sir. The few facts that I did
see were facts that I had heard here yesterday. And my
thought was that whoever wrote that was pretty accurate.
And I put it aside and had my coffee I learned from yester-
day that I am not going to make my mind up until I heard
everything.
THE COURT: Couldn’t do any better than that.
A-65
THE COURT: Anybody have any other questions.
Have you discussed the article at all with any of the
other jurors.
JUROR, VOLINTINE: Just that I glanced at article,
it was in the paper.
(Whereupon Juror, Volintine exited the courtroom and
Juror, Medare entered the courtroom.)
THE COURT: Miss Medare. I want to reference you to
the fact that you had noticed the article in the paper this
morning, the Times Picayune newspaper, this morning.
Did you read it in its entirety.
JUROR, MEDARE: I really just glanced at it.
THE COURT: Would any of the matters that are con-
tained in it, that you noticed, in any way effect your ability
to fairly and impartially here and decide the issues in the
case?
JUROR, MEDARE: No, it would not.
THE COURT: Do you remember Miss Medare,
discussing it with any of the other members of the jury?
JUROR, MEDARE: No, I didn’t discuss it with
anyone.
THE COURT: Remain if you will.
MR. MOSCA: I have a motion after the close of the
day.
~
A-66
THE COURT: Okay. Let’s reserve it until then.
ese e222 4%
CERTIFICATE
I certify that the foregoing is a correct transcript from
the record of proceedings in the above-entitled matter.
/s/
RHONDA J. BALLARD
OFFICIAL COURT REPORTER
UNITED STATES DISTRICT COURT
SECTION M
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NEW ORLEANS, LOUISIANA
UNITED STATES OF AMERICA
VERSUS
JOSEPH ROBERT PROVENZANO, ET AL.
CRIMINAL ACTION
NUMBER 84-103
SECTION M
\ A-67
TRANSCRIPT OF THE DISMISSAL OF JUROR,
BAILEY, DURING THE TRIAL OF THE MATTER,
BEFORE THE HONORABLE PETER BEER, UNITED
STATES DISTRICT JUDGE, THURSDAY,
DECEMBER 6, 1984.
REPORTED BY:
RHONDA J. BALLARD
OFFICIAL COURT REPORTER
PROCEEDINGS
(DISMISSAL OF JUROR, BAILEY)
THURSDAY, DECEMBER 6, 1984
*e ee *
MR. MOSCA: On behalf of Mr. Provenzano, this mo-
tion is made in connection with yesterday’s proceedings.
And we would just ask the court to consider if it’s going to
replace one of the jurors that it consider just replacing the
jurors who read the articles. We have enough alternates, it
seems to me, that that would —
THE COURT: Although it is perfectly obvious it had
no effect on them whatsoever, as is the case with Mrs.
Bailey, I want to say on the record, as far as this whole pro-
ceeding is concerned, I have absolutely doubt that the pro-
ceeding that the court followed with respect to Mrs. Bailey
and the other two jurors is entirely in order, it was perfect-
ly clear to me, absolutely categorically clear on the face of
the discussion with Miss Bailey, there was absolutely no
basis whatsoever for her to be excused. It was postively
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clear to me that she had not, in anyway, been influenced by
the article. Indeed, it was absolutely clear that that was
not the case, that it had no effect on her whatsoever, and
yet I am now, confronted with a request by the U. S. At-
torney’s office to remove Mrs. Bailey from the jury. Now,
because of the apparent concern on the part of the U. S. At-
torneys office with respect to this one particular juror or
actually, if the truth be known, the concern from the U. S.
Attorneys office that some appellate panel might take
umberage at the process that the court instituted as a
United States District Judge concerned not with the rote
business of verbage but with the actual determination of
whether or not there had been any possibility of any pre-
judge whatsoever or any misgiving or any hesitancy what-
soever, being absolutely sure that that was not the case
and making that statement on the record, and to the
United States Attorneys office, nevertheless, the court is
confronted by a request from the U.S. Attorneys office to
replace Miss Bailey in accordance with that categoric re-
quest on the part of the U.S. Attorneys office, which I
essentially, an in disagreement with, but, nevertheless, in
an effort to make absolutely certain that we are not
wasting everybody’s time here aiid taking into account the
remote possibility that in the instance that they have
underlined and show all of this concern about could
possibly be some basis for dealing with this case in some
basis, even after the court made it absolutely clear as an of-
ficer of the United States, that I am convinced there is no
basis whatsoever to discharge Miss Bailey. I am going to
do that to simply go on with the trial of this matter and get
this matter resolved as far as the government is concerned,
as far as the defendants are concerned, as far as the jury is
concerned and everybody else involved is concerned. I’m
not going to discharge any of the other two persons who
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say that they at least took a look at the article because, as
far as I am concerned, that is even more ridiculous and I
will not proceed in accordance with your request.
MR. MOSCA: Respectfully note our objection and
urge the motion for mistrial.
MR. CAPITELLI: For everyone, I would object to the
court’s proceeding here. Think it taints the remaining
defendants, and move for a mistrial on behalf of Doctor
Canale.
THE COURT: It’s denied:
(Whereupon juror, Bailey, entered the courtroom.)
THE COURT: Miss Bailey yesterday I asked a couple
of questions about the article in the newspaper. And con-
cerning certain aspects of the case as it was mentioned in
the newspaper. Did you in anyway discuss my questioning
of you with the other members of the jury?
JUROR, BAILEY: Well, they asked me what you said.
I told them that you asked about the paper.
THE COURT: That’s all, that I asked about the article
in the paper?
JUROR, BAILEY: In the paper.
THE COURT: That was the extent of your response to
them?
JUROR, BAILEY: Yes, that was it.
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THE COURT: Anybody have any questions they want
to put to this juror with respect to that.
MR. CAPITELLI: Did you, as far as that discussion is
concerned, go into any particular detail about the article. in
particular, what was in the article?
JUROR, BAILEY: No. No more than when someone
mentioned that the article was in the paper and most of
them said they didn’t see it, so I said I saw it, another lady
said she saw it, that was it. Nobody discussed what went
on in the paper.
MR. CAPITELLI: Thank you.
MR. HAND: I have one question. Did you, after you
had spoken with the judge when the judge brought you in
by yourself and asked you some questions, did you discuss
with those jurors any of the questions which the court had
asked you.
JUROR, BAILEY: No. What he asked me. And I said
about the article.
MR. HAND: What it was about, that it was the article
in the paper.
THE COURT: Okay Miss Bailey. Because of some
technical problems that certain of the attorneys think are
existent in the matter with respect to the procedures that
were followed in connection with the article, I am obliged to
excuse you. So I am going to send you home. And thank
you very much for your service.
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THE COURT: Call the jury and replace Miss Bailey
with the second alternate.
(Whereupon the jury entered the courtroom.)
THE COURT: Let me say to the jury that the court, in
an effort to be responsive to certain contentions by various
counsel in connection with the manner in which the court
dealt with, the people who had indicated any reading of the
article that I mentioned to all of you all, has found it
necessary, in the circumstances, to excuse Miss Bailey.
Certainly it isn’t any reflection on Miss Bailey. If
anything, it has to do with the handling of the interroga-
tion of Miss Bailey by me. So, the fact that she has been ex-
cused should not be construed by any of you in anyway
with repect to the trial of this matter at all. Quite the con-
trary. Miss Bailey has been cooperative and interested and
an excellent juror. Let’s proceed with the witness that was
on the stand when we broke.
** &* *
CERTIFICATE
I certify that the foregoing is a correct transcript from
the record of proceedings in the above-entitled matter.
/s/
RHONDA J. BALLARD
OFFICIAL COURT REPORTER
UNITED STATES DISTRICT COURT
SECTION M
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APPENDIX “I”
IN THE UNTIED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DISTRICT
UNITED STATES OF AMERICA
V.
BIAGIO CIRRINCIONE and
TOM CIRRINCIONE, et al.
No. 82 CR 778
MEMORANDUM OPINION AND ORDER
SUSAN GETZENDANNER, District Judge:
This case is before the court on the motions for release
on bond pending appeal of defendants Biagio Cirrincione
and Tom Cirrincione. On August 8, 1984, after a jury trial,
defendants were found guilty of violations of federal law in
connection with the bombing of certain restaurants. On Oc-
tober 18, 1984, the court denied both defendants’ motions
for new trial and for judgment of acquittal, and sentenced
them to periods of incarceration. Both have filed Notices of
Appeal, and now move the court for release on bond pend-
ing appeal. Defendants contend that they meet the stand-
ards for release under 18 0.S.C.§3143 of the Bail Reform
Act of 1984. Alternatively, defendants have argued that
application of the Bail Reform Act to them would violate
the ex post facto clause, Article I, §9 of the Constitution.
a ee ee eae ween Wa
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Standards Governing Bond Pending Appeal
On October 12, 1984, the President signed into law the
continuing appropriations resolution, Public Law No.
98-473, 98 Stat. 1837. Title II of that Public Law is the
Comprehensive Crime Control Act of 1984, Chapter I of
which contains substantial revisions of the law governing
bond pending appeal. See Bail Reform Act of 1984,
§§202-210 (codified at 18 U.S.C. §§3141-3150, 3041-3043,
3062) (the ‘‘Act”’). As the Act contains no effective date, it
is clear that it became effective on October 12, 1984, the
date of enactment. United States v. Gavrilonic, 551 F.2d
1099, 1103 (8th Cir. 1977) (citing Arnold v. United States,
13 U.S. (9 Cranch) 103,119 (1815)). See U.S.Department of
Justice, Handbook on the Comprehensive Crime Control
Act of 1984 and Other Criminal Statutes Enacted by the
98th Congress, at 27 (Dec. 1984).
The new standards governing bond pending appeal
provide that in a case such as this, bond shall be denied
unless the court finds:
(1) by clear and convincing evidence that the per-
son is not likely to flee or pose a danger to the
safety of any other person or the community if
released. . .; and
(2) that the appeal is not for purpose of delay and
raises a substantial question of law or fact likely
to result in reversal or an order for a new trial.
18 U.S.C.§3143(b). This substantially changes the stand-
ards governing bond pending appeal. Before the Act
became effective, bond pending appeal could be denied in
this case only if ‘‘a risk of flight or danger [to any other per-
son or to the community] is believed to exist, or if it ap-
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pears that an appeal is frivolous or taken for delay .. .”" 18
U.S.C.§3148, repealed by Bail Reform Act of 1984, §203(a).
In addition, while the burden of establishing that the
defendant will not flee or pose a danger to another person
or the community rested with the defendant, Fed.R.App.P.
O(c), cxzended by Bail Reform Act of 1984, §210, the burden
of establishing that the appeal was frivolous or taken for
delay rested with the government. Jd. at advisory commit-
tee note.
The new standards for bond pending appeal substan-
tially increase the Cirrinciones’ burden on this motion.
First, amended Appellate Rule 9(c) provides that the de-
fendants carry the burden of establishing, by clear and con-
vincing evidence, both elements of §3143(b). Second,
§3143(b)(2) requires them to show that their appeal raises a
“substantial question of law or fact likely to result in rever-
sal.” This is a more stringent test than the previous
“frivolous’’ standard. The legislative history makes clear
that the change in wording represents an intentional
change in the standard. A Senate Report gives this
description of a predecessor to §3143(b):
Subsection (b) deals with release after sentence of
a defendant who has filed an appeal or a petition
for a writ of certiorari. Such a person is .. . to be
detained unless the judicial officer finds by clear
and convincing evidence that the defendant is not
likely to flee or pose a danger to the safety of any
other person or the community. In addition, the
court must affirmatively find that the appeal is
not taken for the purpose of delay and that it
raises a substantial question of law or fact likely
to result in reversal or an order for a new trial.
This is a further restriction on post-conviction
release. Under the current 18 U.S.C.§1348,
-" a ii
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release can be denied if it appears that the appeal
is frivolous or taken for delay. The change in
subsection(b) requires an affirmative finding tnat
the chance of reversal is substantial. This gives
recognition to the basic principle that a convic-
tion is presumed to be correct.
S. Rep. No. 97-317, at 57, 97th Cong., 2d Sess. (1982) (con-
cerning S. 1554); see also S.Rep. No. 98-147, at 52-54, 98th
Cong., 1st Sess. (1983) (concerning S. 215). The United
States Department of Justice, quoting the Senate Report,
has also interpreted this change as requiring ‘jan affirma-
tive finding ... that the chance for a reversal is substan-
tial.’ U.S. Department of Justice, Handbook on the Com-
prehensive Crime Control Act of 1984 and Other Criminal
Statutes Enacted by the 98th Congress, at 10.
The defendants argue that the Act requires nothing
more than a nonfrivolous issue on appeal which, if suc-
cessful, would result in a reversal or an order for a new
trial. The Act requires more. It requires either a likelihood
— that is something more than a 50/chance — of reversal,
or a substantial chance of reversal, or at least a substantial
question of law or fact which has not been foreclosed on ap-
peal, for example, by a specific Seventh Circuit precedent
which is unlikely to be changed by the Court of Appeals or
considered by the Supreme Court.
In their post-trial motions, the defendants raised what
the court has called a “serious” issue based on the fact that
the defendants were represented by the same lawyer. Dual
representation generally raises a serious legal question.
However, for the reasons stated in the court’s opinion of
October 18, 1984 denying the post-trial motions, the at-
torney’s conflict of interest was knowingly waived by the
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defendants. The i3sue is not substantial and the chance for
reversal or a new trial order is neither likely nor substan-
tial. Since the defendants cannot succeed under any of
these possible standards, the court declines to define more
specifically the requirements of the Act.
The government has also urged that Biagio Cirrincione
has not demonstrated by clear and convincing evidence
that he is not likely to flee. The Court has reserved ruling
on this issue pending receipt of further information from
the parties.
The court is convinced, and the government does not
disagree, that Tom Cirrincione neither poses a danger to
the community nor a risk of flight. The sole reason for de-
nying Tom Cirrincione’s motion would be his failure to
demonstrate a likelihood or a substantial chance of re-
versal on appeal. Hence, in his case, application of the Bail
Reform Act of 1984 results in incarceration pending appeal
where he would otherwise be released. This requires the
court to examine the argument that application of the new
provisions concening bond pending appeal in this case
violates the federal ex post facto clause.
Ex Post Facto Clause
Article I,°9 of the United States Constitution prohibits
Congress from passing any “ex post facte’’ law. This
clause was adopted to protect an individual's right to fair
notice when the government changes ‘“‘that conduct which
will give rise to criminal penalties,” Marks v. United
States, 430 U.S. 188, 191 (1977); or “increases punishment
beyond what was prescribed when the crime was commit-
ted,”” Weaver v Graham, 450 U.S. 24, 30 (1981); or
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“deprives one charged with crime of any defense available
according to law at the time when the act was committed.”
Beazell v. Ohio, 269 U.S. 167, 169-70 (1925).
In the most recent ex post facto case decided by the
Supreme Court, Weaver v. Graham, 450 U.S. at 29 (1981),
the Court noted that two critical elements must be present
for a criminal or penal law to be held ex post facto: it must
apply to criminal acts occuring before its enactment into
law, and it must disadvantage the offender affected by it.
The Bail Reform Act of 1984 facially fits these criteria.,
First, the Act retrospectively affects all defendants whose
crimes occurred before the effective date of the Act, Oc-
tober 12, 1984. Secondly, the Act severely limits the
availability of bond pending appeal and is disadvantageous
to defendants who routinely seek to delay commencement
of their sentences by obtaining release on bail pending, ap-
peal.
The Supreme Court has repeatedly recognized,
however, that no ex post facto violation occurs by
retrospective operation of a purely procedural change in
the law even though a particular criminal defendant is
thereby disadvantaged. In Dubbert v. Florida, 432 U.S. 282
(1977), the Court upheld retroactive application of a
statute reversing the roles of judge and jury in determin-
ing a sentence of death, despite the fact that the new
statute allowed the judge to disregard a jury recommenda-
tion of mercy which would have been binding under
previous law. In Beazell v. Ohio, 269 U.S. 167 (1925), the
Court upheld retroactive application of a statutory amend-
ment eliminating an earlier prohibition against joint trials,
despite the contentions of the defendants in those cases
that they were thereby prejudiced. Finally, in Hopt uv.
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Utah, 110 U.S. 574 (1884), the Court found no ex post facto
problem in retrospective operation of a statute allowing
convicted felons to serve as competent witnesses. In all
these cases, the Court reasoned that purely procedural
changes in the law are not ex post facto unless these
changes make criminal a previously innocent act, change
the proof necessary to convict, or increase the punishment
for a particular crime. See, e.qg., Hopt., 110 U.S. at 589.
In other cases, however, the Supreme Court has
recognized that procedural changes in the criminal law
may so affect substantial rights as to fall within the ex
post facto prohibition. In Kring v. Missouri, 107 U.S. 221
(1882), the Court invalidated retrospective application of a
state constitutional amendment allowing a defendant to be
tried for first-degree murder after a previous conviction for
second-degree murder had been reversed on appeal. Under
the law in effect at the time the offense was committed, the
conviction for second-degree murder would have amounted
to an acquittal of the first-degree murder charge regardless
of events on appeal. The Court held that the defendant’s
right to plead the second-degree murder conviction as a bar
to more serious charges could not be taken away retrospec-
tively.
Similarly, in Thompson v. Utah, 170 U.S. 343 (1898)),
the Court held that a Utah constitutional provision allow-
ing trial by a jury of eight in non-capital cases was ex post
facto in application to crimes committed within its limits
while Utah was still a federal territory, since Utah was at
that time subject to the then constitutional requirement
that juries in felony cases be composed of twelve persons.
The Court recognized that matters of procedure generally
do not trigger ex post facto concerns but reasoned that the
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decrease in the number of jurors necessary to convict
“materially impair[edj the right of the accused to have the
question of his guilt determined according to the law as it
was when the offense was committed.” Jd. at 351. Subse-
quent cases, however, have limited the rationale of Thomp-
son to changes in constitutional procedural rights by
stating that a defendant is disadvantaged only when a pro-
cedural right is taken away, not when a change in pro-
cedure advantages the prosecution. See Note, Ex Post Fac-
to Limitations on Legislative Power, 73 Mich.L.Rev. 1491,
1510-11 (1975).
Defendants have argued that application of the Bail
Reform Act to them would both increase punishment and
take away substantial rights in violation of the ex post fac-
to clause. The latter argument responds to the govern-
ment’s contention that the Act is ‘merely procedural’”’ and
derives from the following passage in Beazell v. Ohio, 269
U.S. 167,171 (1925):
Just what alterations of procedure will be held to
be of sufficient moment to transgress the con-
stitutional prohibition cannot be embraced,
within a formula or stated in a general proposi-
tion. The distinction is one of degree. But the con-
stitutional provision was intended to secure
substantial personal rights against arbitrary and
oppressive legislation, and not to limit the
legislative control of remedies and modes of pro-
cedure which do not affect matters of substance.
In no case, however, has a procedural change in the law
been held to have ex post facto implications absent an in-
crease in punishment or a change in the quantity and
degree necessary to establish a defendant’s guilt. Thus, the
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“substantial rights’ language of Beazell is just another
way of stating that alterations in what constitutes criminal
conduct or the limits of punishment for a recognized crime
will not escape ex post facto scrutiny merely because
enacted in ‘a seemingly procedural form.’’ Weaver v.
Graham, 450 U.S. 24, 29 n.12 (1981).
Since the Bail Reform Act does not criminalize conduct
that was innocent when done or otherwise affect the ques-
tion of defendant’s guilt or innocence, it is clear that the
Act is ex post facto only if the denial of release on bail
pending appeal amounts to a retroactive enhancement of
punishment, i.e., if accelerating the time when imprison-
ment commences for defendants who choose to appeal and
could establish eligibility for post-conviction release under
the old but not the new statute constitutes an ‘‘increase”’ in
punishment.
Defendants have cited several state law cases in sup-
port of this contention, but none of them is particularly in-
structive. The first, Parker v. State, 667 P.2d 1272 (Alaska
Ct.App. 1983), relied on a state statute prohibiting
retrospective application of statutes in order to avoid
reaching the federal question. In Ellis v. State, 544 S.W.2d
908 (Tenn. Ct. Crim. App. 1976), the court held that a
statute denying bail pending appeal had ‘‘ex post facto’’
overtones but cited no cases nor discussed any reasons for
its holding. In Greene v. State, 238 So.2d 296 (Fla. 1970),
the Florida Supreme Court held that retroactive applica-
tion of a statute denying post-conviction bail to repeat of-
fenders was ex post facto as to defendants both of whose
felonies were committed before the statute’s effective date,
but cited no federal case law in support of its conclusion.
Greene was then followed in Cunningham v. State, 423
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So.2d 580 (Fla. Dist. Ct. App. 1982), in which the appellate
court, citing Weaver v. Graham, 450 U.S. 24 (1981), con-
cluded without explanation that a retrospective restriction
on eligibility for release on appeal bond is fully analogous
to a penal provision “more onerous than the law in effect
on the date of the offense.’’ 423 So.2d at 581.
Cases which have upheld the retroactive application of
bail reform statutes are somewhat more lucid, but not
necessarily more persuasive. In Spitznas v. State, 648 P.2d
1271 (Okla. Ct. Crim. App. 1982), the court conclusorily
held that denial of bail while appeal is pending is neither an
increase in punishment nor an “alteration of ... substan-
tive rights on appeal” which would bring the ex post facto
clause into play. In State ex rel. Dorton v. Circuit Court,
274 Ind. 373, 412 N.E.2d 72 (1980), the Indiana Supreme
Court noted that the right to bail pending appeal does not
affect a criminal defendant’s ‘substantial rights concern-
ing proof of the offense or the time to be served upon con-
viction therefor.” Jd. at 74. The Dorton court also relied on
the ground that the “opportunity for release on appeal
bond is a status which must be determined at the time a
convicted person seeks such relief” and therefore does not
“vest” at the time an offense is committed. Jd. at 75. To
the extent that Dorton relies on a ‘‘vested rights’”’ analysis,
however, its rec. 30ning is without merit. See Weaver, 450
U.S. at 30 (‘‘The presence or absence of an affirmative, en-
forceable right is not relevant ... te the ex post facto pro-
hibition ... ”’).
Only two federal cases to this court’s knowledge have
addressed the precise issue before the court. In United
States v. Davis, 82 CR 564-CSH, Slip op. (S.D.N.Y. Nov.
20, 1984) (available on WESTLAW), Judge Charles Haight
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rejected the defendant’s ex post facto objections and
granted a government motion to revoke bail pending ap-
peal based on the intervening passage of the Bail Reform
Act. Relying on Dobbert v. Florida, 432 U.S. 282 (1977),
and Portley v. Grossman, 444 U.S. 1311 (1980) (Rehnquist,
Circuit Justice), Judge Haight held that the Bail Reform
Act’s new standards for obtaining post-conviction bail con-
stituted ‘‘modes of procedure” which do not affect a de-
fendant’s ‘‘substantive personal rights, in contesting his
guilt or pressing an appeal.” Slip op. at 35. The court did
not address whether the new standards increase punish-
ment in any way. In United States v. Dante Gill, No. Crim.
84-87 (W.D.Pa. 1984), Judge Gustav Diamond reached the
opposite conclusion. In a bench opinion, Judge Diamond
found that the provisions restricting bail pending appeal
constituted ‘‘a substantive and substantial change in the
law’’ which was ex post facto as to defendants whose
crimes were committed prior to the statute’s enactment.
Judge Diamond also found the shift of the burden of proof
regarding entitlement to bail to be ex post facto.’
This ruling was brought to the court’s attention in a Supplement-
al Memorandum filed by defendants with this court on January 15, 1985.
In that memorandum, defendants also raise new constitutional issues
for the first time regarding the due process clause and the eighth amend-
ment. Despite defendant’s effort to characterize these arguments as hav-
ing been raised previously, the court notes that defendants’ earlier objec-
tions were raised as a matter of statutory construction, and not as con-
stitutional arguments. Since defendants were given leave to file sup-
plemental authority, not to introduce new legal theories, the court
declines to entertain these arguments. In light of this court’s disposition
of the ex post facto issue, defendants are hardly prejudiced by this deci-
sion.
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Derendants initially argue that the standards for
release pending appeal mandated by the new Act are
“more onerous” than the standards in effect at the time
they committed their crimes and therefore cannot be ap-
plied retroactively. This conclusion is not so apparent as
defendants maintain. While the Supreme Court has held
retrospective restrictions on parole eligibility to be ex post
facto, it has done so only where operation of the new
restriction effectively lengthened the term of incarceration
to which defendants were subject at the time they commit-
ted their crimes. In Weaver v. Graham, 450 U.S.24 (1981),
for example, the Supreme Court held that changes in
Florida’s statutory formula for computing ‘gain time”’
credits could not apply retrospectively. The Court rea-
soned that, whether or not ‘‘gain-time”’ credits had vested
at the time of a prisoner’s sentencing, the prospect for such
credit’”’ in fact is one determinant” of the length of a
prisoner’s incarceration so as to alter the ‘“‘quantum of
punishment” and thereby implicate ex post facto concerns.
Id. at 30-33.
While the Supreme Court has on at least one occasion
found alterations in punitive conditions outside the
sentence to be ex post facto, see, e.g., In re Medley, 134
U.S. 169 (1890) (statute requiring solitary confinement
prior to execution for all prisoners sentenced to death), the
rational of Weaver is tied to changes in the actual term of
incarceration. Under the Bail Reform Act, defendants’
period of incarceration remains the same as it was before.
Thus, there is no change in the ‘“quantum”’ of punishment,
and it is unclear at best whether Weaver applies.
Defendants seek to escape this cc_.clusion by pointing
to the effect that detention pending appeal will have on
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their ability to obtain a reduction in sentence under
Fed.R.Cr.P. 35(b). Generally, Rule 35(b) motions tc reduce
may be made any time after sentencing up to 120 days
after affirmance on appeal. A defendant who has been
released pending appeal and evidenced good behavior dur-
ing uhat time may be able to demonstrate the changed cir-
cumstances which would convince a court to reduce an
earlier sentence, whereas a defendant who has been in-
cerated throughout the same period might not be able
make such a showing.
The court recognizes that application of the Bail
Reform Act significantly changes the calculus behind fil-
ing a Rule 35(b) motion and that district courts sometimes
reduce sentences, or completely eliminate any period of in-
carceration, if during the appeal period the defendant’s cir-
cumstances have changed or he has demonstrated good
behavior or other positive qualities. The court also
recognizes that defendants’ Rule 35(b) rights cannot be
disregarded simply because they have not vested. See,
supra. page 11. Nonetheless, defendants still have the right
to make a Rule 35(b) motion for reduction of sentence
within 120 days of sentencing and then again within 120
days of affirmance on appeal. Any shift in their actual abili-
ty to obtain a sentence reduction is speculative. Any effect
of the Bail Reform Act on the actual length of incarceration
is therefore too remote to justify the kind of reliance on
criminal penalties with which the ex post facto clause is
concerned.
The government has argued that the Bail Reform Act
does not increase punishment by analogy to case law
upholding retroactive application of the pretrial detention
provisions of the Bail Reform Act and similar legislation.
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United States v. Hazzard, 84 CR 771-1, Slip op. (N.D. II.
Dec. 11, 1984); DeVeau v. United States, 454 A.2d 1308,
1314 (D.C. Ct. App. 1982), cert. denied, 460 U.S. 1087
(1983). In Hazzard, Judge William T. Hart reasoned that
pretrial detention under the new Act is imposed on a de-
fendant not for having committed criminal acts, but
because of the defendant’s status as an arrestee whose
pretrial release presents a threat to community safety
which no conditions on release can reasonably prevent. Slip
op. at 26-27. Judge Hart therefore concluded that the Act’s
pretrial detention provisions are regulatory rather than
punitive. Judge Hart also concluded that these provisions
are not retrospective since the eligibility for release on bail
is determined according to present status and not acts oc-
curring before the passage of the statute. Jd. Judge Hart
then likened the Bail Reform Act to habitual offender
statutes and legislation prohibiting preciously convicted
felons from undertaking certain activities, both of which
have withstood ex post facto scrutiny. Slip op. at 27-28.
See DeVeau v. Braisted, 363 U.S. 144, 160 (1960) (law pro-
hibiting previously convicted felons from participating in
waterfront labor unions not ex post facto increase in
punishment); McDonald v. Massachusetts, 180 U.S. 311
(1901) (laws creating aggravated penalties for recidivist
criminal activity not ex post facto even though predicate
offense predates statute); United States v. Sutton, 521
F.2d 1385, 1390-91 (7th Cir. 1975) (Congress constitutional-
ly allowed to restrict criminals whose felonies occurred in
the past from receiving firearms).
To the extent that the post-conviction bail provision of
the new Act is regulatory and not punitive, it necessarily
falls outside the prohibitions of the ex post facto clause:
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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 comes
about as a relevant incident to a regulation of a
present situation...
DeVeau v. Braisted, 363 U.S. 144, 160 (1960). However,
unlike the pretrial detention provisions which are con-
cerned solely with safety of the community, the post-
conviction bail restrictions are not unrelated to punish-
ment nor merely incidental to regulation of a present situa-
tion. In the legislative history accompanying §3143, Con-
gress expressed the notion that swifter punishment is a
greater deterrent to criminal conduct: “release of a
criminal defendant into the community after conviction
may undermine the deterrent effect of the criminal law,
especially in those situations where an appeal of the convic-
tion may drag on for many months or even years.” S. Rep.
No. 98-225, at 26, 98th Cong., 2d Sess. (1984); S. Rep. No.
98-147, at 562, 98th Cong., 1st Sess. (1983); S. Rep. No.
97-317, at 56, 97th Cong., 2d Sess. (1982). Congress
therefore specified that the former presumption in favor of
bail pending appeal was to be eliminated, and that defend-
ants must establish a substantial change or likelihood of
reversal before post-conviction release pending appeal will
be ordered.
By viewing the restrictions on release pending appeal
to be a deterrent to crime, Congress must have concluded
that a sentence which commences immediately upon con-
viction is somehow more severe than a sentence which com-
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mences only after appeal. Certainly, a sentence which com-
mences before, rather than after, appeal, is more certain to
be served. For example, the defendant may die during the
interim period. Not all procedural changes increasing the
certainty of conviction, however, will be ex post facto when
applied to prior criminal acts. See, e.g., United States ex
rel. Massarella v. Elrod, 682 F.2d 688, 689 (7th Cir. 1982)
(extension of statutes of limitation before a given prosecu-
tion is barred). Certainly, if Congress were to increase pros-
ecutorial capacity to investigate crime, the law achieving
that increase could be applied to crimes committed before
its effective date without offending the ex post facto
clause. That a criminal defendant might escape punish-
ment altogether for reasons unrelated to his guilt or to the
process of justice is not an expectation worthy of protec-
tion against retroactive impairment.
On the other hand, that people generally value the
present more than the future cannot be ignored for ex post
facto purposes. One need not be an economist to believe
that a sentence which commences, for example, two years
from now is less onerous than a sentence which commences
today.? By amending former §3148 to help deter crime,
? People’s preference for the present over the future has been
documented by several economists. Mancur Olson and Martin Bailey
concluded in a 1981 study that the case for positive time preference is
absolutely compelling. Positive Time Preference, 89 J. Pol. Econ. 1
(1981). See also Easterbrook, Criminal Procedure as a Market System, 12
J. Legal Studies 289, 294-95 (1983):
[People discount the future .. . The threat of spending next year in
jail is more serious than the threat of spending one year in jail ten years
from now. For many people, the opportunities of the present seem more
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Congress has implicity recognized that criminals consider
the date on which a period of imprisonment commences to
be part of the price paid for unlawful activity. While the
Supreme Court has not always been clear on the underly-
ing rationales for the ex post facto clause, certainly one ra-
tionale is that an individual who acts in reliance upon the
known criminal penalties for his acts must be punished in
accordance with that reliance. That rationale, by
Congress’s own determination, is fully implicated here.
More importantly, however, at least some of the
reasons that defendants seek bail pending appeal are enti-
tled to protection from retroactive impairment. A defend-
ant sentenced to imprisonment who chooses to appeal his
conviction has hope, however unjustified by the statistics,
of reversing that conviction or even obtaining a judgment
of acquittal. Under former §3148, those defendants within
this class whose appeals were not shown to be frivolous
also had an expectation that success on appeal would mean
a release from punishment altogether. By restricting
eligibility for release pending appeal, the new Act takes
away that expectation.
This expectation — while not always reasonable — is of
longstanding historical importance. As long ago as 1895,
(Footnote 2 Continued)
important than those of the future, and even people who weight years of
their lives equally will consider the possibility that the state will relent
or they will die before the tenth year arrives. Prison disrupts the forma-
tion of human capital and also creates a stigma that may reduce future
income substantially. Although it is not possible to know the size of this
discount with certainty — for some people there are countervailing con-
siderations, such as growth of income, that may make prison in the
future especially onerous compared to prison now — it seems reasonable
to assume that the discount and risk factors together are significant.
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the Supreme Court noted that the statutes of the govern-
ment “‘have been framed upon the theory that a person ac-
cused of a crime shall not, until he has been fully adjudged
guilty in the court of last resort, be absolutely compelled to
undergo imprisonment or punishment, but may be admit-
ted to bail, not only after arrest and before trial, but after
conviction and pending a writ of error.’’ Hudson v. Parker,
156 U.S. 277, 285 (1895). Accord, United States v. Motlow,
10 F.2d 657, 662 (7ta Cir. 1926). The right to bail pending
appeal, while not itself constitutionally guaranteed, had
nonetheless been deemed necessary in order to make the
defendant's right to appeal fully effective and is therefore
more than “merely procedural.”’ See Patterson v. United
States, 75 S.Ct. 256, 257 (1954) (Frankfurter, Circuit
Justice) (‘‘{T fhe actual operation of the appellate procedure
should not be allowed, through the denial of bail, to render
the right to appeal nugatory.”’) Unlike rules regarding the
competency of witnesses or the vesting of sentencing
discretion in judge as opposed to jury, eligibility for release
pending appeal is a right personal to the defendant the
retroactive restriction of which can only work to his or her
detriment.
While the Supreme Court has newer addressed the
issue directly, support for this conclusion can be gleaned
from Rooney v. North Dakota, 196 U.S. 319 (1905). In
Rooney, the Supreme Court held that extending the time
before a death sentence can be executed is a mitigation in
punishment. The language of the case is revealing:
The giving, by the later statute, of three months’
additional time to live, after the rendition of judg-
ment, was clearly to [the prisoner's] advantage,
for the court must assume that every rational
person desires to live as long as he may. If the
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shortening of the time of confinement .. . before
execution, would have increased, as undoubtedly
it would have increased, the punishment to the
disadvantage of a criminal sentenced to be hung,
the enlargement of such time must be deemed a
change for his benefit.
196 U.S. at 235 (emphasis added). The court further noted
that the extension of the time to live not only increased the
prisoner’s life, however, but also ‘increased the opportuni-
ty of the accused to obtain a pardon or commutation from
the governor of the state before his execution.’’ Jd. at
235-36.
Rooney is distinguishable in that a defendant sentenced to
death whose execution of sentence is postponed thereby
gains longer life whereas defendants who postpone a period
of incarceration merely exchange time today for time
tomorrow. Even so, the court finds that most rational per-
sons desire to put off punishment as long as they may.
While countervailing considerations, such as family, in-
come, or the desire to resume a normal life, may cause some
criminals to choose punishment now, similar countervail-
ing factors may cause a defendant sentenced to death to
choose execution now and avoid prolonged anxiety. More
importantly, however, the new Act does not affect defend-
ants who wish to commence their sentences immediately
upon conviction; only those who seek release pending ap-
peal are disadvantaged.
The second rationale of Rooney — that enlargement of
the time before execution increases the possibility of a
commutation or pardon — is, of course, fully applicable to
the present situation. The defendant who is on release
pending appeal thereby increases the possibility that a
Rule 35(b) motion for reduction of sentence might be
sa ap i -
A-91
granted which would prevent his or her ever being sent to
prison. As noted earlier, the possibility that this will hap-
pen is speculative, but certainly no more so than the
possibility that a prisoner sentenced to death will obtain a
governor’s pardon. The language of Rooney — admittedly
dictum — thus suggests an additional ground for finding
that application of the Bail Reform Act of 1984 to the Cir-
rinciones offends ex post facto prohibitions.
In light of all these factors, the court concludes that
the Bail Reform Act’s standards for release pending appeal
cannot be applied to offenses committed before October 12,
1984 without offending the ex post facto clause. The ap-
parent purposes of the Act — to eliminate dilatory appeals
and to help deter crime — are laudatory ones, but may not
be used to enhance punishment of those who committed
unlawful acts in possible reliance on previous standards.
Since the Cirrinciones’ crimes took place prior to October
12, 1984, their eligibility for release on appeal must be
governed by former 18 U.S.C. §3148. As already explained,
Tom Cirrincione meets those standards and his motion for
release on bond pending appeal is therefore granted. De-
fendant Biagio Cirrincione’s motion is taken under advise-
ment pending the receipt of further information as to
whether he is a flight risk.
Accordingly, defendant Tom Cirrincione’s motion for
release on bond pending appeal is granted. Defendant
Biagio Cirrincione’s motion for release on bond pending ap-
peal is taken under advisement.
It is so ordered.
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/s/
Susan Getzendanner
United States District Judge
January 16, 1985
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.