The opinion of the court was delivered by: DUFFY
KEVIN THOMAS DUFFY, D.J.:
The passage of the Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, Title II, 98 Stat. 1837 (1984), containing the Bail Reform Act of 1984, has caused many individuals some consternation as it has revamped certain procedures and ideas which have become accepted by our society. Some would reject the new ideas and procedures apparently solely because they are new. Others would have the courts construe the Act to maintain those procedures which Congress has sought to replace. Such efforts have been directed particularly to the pretrial detention provisions of the Bail Reform Act ("the Act") and the "presumptions" required by that statute. I have not been presented in this case with clear arguments challenging the constitutionality of the Act, nor do I rule on that question, but it should be clear that I would be loath to enforce a statute which is so repugnant as to be facially unconstitutional.
This case involves the procedures to be followed in those cases where the government insists that pretrial detention is necessary and the effect of the statutory presumptions in such cases.
The government seeks review pursuant to 18 U.S.C. § 3145(a) of an order by Magistrate Nina Gershon that defendants Vito Aiello and Felippo Gambina be released on bail of $1 million and $1.5 million respectively. Defendant Guiseppe Guisto does not appeal from Magistrate Gershon's order detaining him pending trial. For the reasons that follow, Magistrate Gershon's order is reversed and Aiello and Gambina are ordered detained pending trial pursuant to the newly enacted detention provisions in the Act (codified at 18 U.S.C. § 3141 et seq.).
Magistrate Gershon held two hearings on November 19-20, 1984 on the question of bail in this case. The submissions by defendants consisted of proffers; no evidence was introduced nor witnesses examined. I note that the proceedings on the first day were not recorded by a court reporter but were instead tape-recorded. This is another example of the ineffectiveness of this manner of trying to record judicial proceedings because the tape that was supplied to me is apparently incomplete as the conversation stops mid-sentence at the point when Assistant United States Attorney Little begins to recount the items seized from the home of Vito Aiello at the time of his arrest. The proceedings on the second day, however, were taken down by a court reporter and the transcript has been provided to me. In any case, there does not appear to be a dispute between the parties about what transpired the first day. Furthermore, the transcript of the second day contains the positions of the parties. Finally, the government and the defendants summarized their positions at the hearing before me. Accordingly, I conclude that the record is not so deficient as to prevent a meaningful review.
In the complaint, the government alleges that Aiello and Gambina are part of the so-called "Pizza connection" in that they participated in a conspiracy to violate the federal narcotics laws and did in fact violate those laws by operating a narcotics business from a pizzeria located on West 125th Street, New York City. According to the government, the leader of the organization is Anthony Aiello who is a fugitive. Anthony's father, Vito Aiello, one of the respondents here, is alleged by the government to be the financier of and adviser to the organization. The government asserts that the other two defendants, Gambina and Giusto, are "active lieutenants" in the organization.
The government based its application for a pretrial detainer on the nature of the alleged criminal violations, the defendants' involvement in the drug operation, the nature of the items seized at the time of arrest, and the degree of defendants' ties in Sicily as compared with the United States. The defendants' proffers consisted of the fact that defendants have family ties in the United States and that neither defendant has a prior record. It should be noted that the defendants never actually called any witnesses nor submitted any evidence, by way of affidavit or otherwise, at the hearing. The Act specifically provides that the information presented at the hearing is not restricted to legally admissible evidence. 18 U.S.C. § 3142(f)(2) ("The rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing."). For reasons stated later, however, it is my view that in cases involving the invocation of the presumption to detain a defendant, a mere "proffer" by defense counsel will generally be insufficient rebuttal.
After the parties summarized their positions at the second hearing, the Magistrate granted the government's application for a pretrial detention order for Giusto. Magistrate Gershon stated that her decision was predicated on the fact that Giusto has "very limited roots in this community. His wife is here but he has been married only a short time. All of his other family ties are in Italy. He's only 22 years old." Transcript of Hearing held November 20, 1984 ("Tr.") at 7. Furthermore, the Magistrate found that Giusto came to the United States in 1974 but spent three of the last ten years in Italy and has never made an effort to become a United States citizen. Id. Thus, the Magistrate held that the government had sustained its burden of proving by clear and convincing evidence that there are "no conditions of bail which could satisfy me that this defendant would return to court if he were released." Id. at l8.
Magistrate Gershon, however, distinguished Aiello and Gambina for Giusto. With respect to Aiello, she stated that the nature of the charges against him "reduces the risk that he will feel has to flee in order to avoid facing these charges." Id. The Magistrate found that although a large sum of cash (in excess of $905,000) was found secreted in Aiello's ceiling along with a handgun and although the complaint sets forth facts sufficient to constitute probable cause, it nevertheless appeared that defenses might be available to Aiello which would encourage him to appear for his trial. Furthermore, the Magistrate noted that Aiello, who is 74 years old, had been in the United States for thirty years and his wife and children are here. Aiello, over the past years, has visited Sicily on at least six occasions, usually for period of approximately one month or more. The Magistrate noted also that Aiello had no prior record. After reciting the above factors, Magistrate Gershon concluded that there exists conditions that would assure Aiello's reappearance.
Turning to Gambina who is 41 years old, the Magistrate noted that he has been in the United States for 17 years and has been a citizen for 10 years. Gambina has been married 17 years and has three children. Magistrate Gershon stated also that Gambina has no prior record and no substantial ties with Sicily. Thus, the bail set for Gambina was $1.5 million and the bail set for Aiello was $1 million. See Tr. 12.
The Act provides that a judicial officer may issue an order pending trial to detain a defendant if, after a hearing, the judicial officer determines that "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142(e); see id. § 3142(a).
The factors to be considered by the judicial officer in making a determination as to bail include (1) the "nature and circumstances of the offense charged, including whether the offense is a crime" involving a narcotic drug, (2) the "weight of evidence against the person," (3) the "history and characteristics of the person," and (4) the "nature and seriousness of the danger to any person or the community that would be posed by the person's release." 18 U.S.C. § 3142(g). Furthermore, the Act provides that:
Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten ...