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November 14, 1986

UNITED STATES OF AMERICA, Plaintiff-Appellant,

The opinion of the court was delivered by: WEINSTEIN

MEMORANDUM and ORDER WEINSTEIN, Ch. J.: TABLE OF CONTENTS Page I. FACTS II. LAW A. Procedural Issues 1. Jurisdiction 2. Release of the Witness' Presentence Report 3. Reliance by the Court on the Witness' Grand Jury Testimony B. Detention Based on Threat to Witness 1. Trial Court's Powers 2. Severity of Threat a. Admission of Grand Jury Testimony b. Admission of Testimony at Hearing c. Consciousness of Guilt d. Power of Detention to Diminish Threat 3. Other Grounds for Detention 4. Due Process a. Punishment vs. Regulation b. Length of Detention c. Nature of Burdens and Harms Caused by Pretrial Detention i. Stigma and Burdens on Defense ii. Cumulative Effects 5. Need for Balancing, with Emphasis on Time Served 6. Need for Balancing, with Emphasis on Other Factors Emphasized by Courts of Appeals 7. Need for Balancing, with Emphasis on Statutory Considerations III. APPLYING LAW TO FACTS IV. ADDITIONAL PROTECTIVE BAIL CONDITIONS

 Defendants Anthony Vitta and Salvatore Migliorisi are in custody because they were found to constitute a danger to a potential witness, "X." They move for their release pending trial. Decision requires a balancing of the dangers to the witness and to society against the likelihood that the defendants' continued incarceration would protect "X" and the unfairness of incarcerating persons presumed to be innocent for long periods. As indicated below, analysis of the facts and various relevant factors requires conditional release.


 Vitta and Migliorisi were indicted on June 20, 1986 along with fourteen co-defendants. Both were charged with extortion in violation of 18 U.S.C. § 1951. Vitta is alleged to have engaged in loansharking. 18 U.S.C. §§ 892 and 894. He is also alleged to have been a member of a criminal enterprise in violation of the federal Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. United States v. Gallo, CR-86-452 (E.D.N.Y.). The government expects "X," the alleged victim of the defendants' extortion, to testify at trial.

 The defendants were arrested on June 20, 1986. At a June 24th hearing before the Magistrate an FBI agent testified about threats to "X." "X" had received three messages on his telephone answering machine on the evening of June 21st. The first message was from an unknown caller who threatened his life, and the second and third messages were from Migliorisi, asking for an appointment to see "X" at the latter's place of business. On Monday, June 23rd, Migliorisi and his attorney visited "X" seeking his signature on papers necessary to obtain Vitta's release on bail. Migliorisi was reported by one of "X"'s employees to have said that "X" was in danger.

 The Magistrate found that incarceration was required because of the defendants' threat to "X." Both defendants were ordered incarcerated pending trial. On stipulation that no additional hearing was required, this court affirmed the Magistrate's detention order on June 27th. On August 27th the Court of Appeals affirmed without opinion. 801 F.2d 392.

 At the time of the initial detention hearing and appeals it was believed that the case could be tried promptly. Subsequently, during pretrial conferences, it became clear that because of an overlap of defendants and defense counsel, the instant case could not be tried before two lengthy trials in complex multi-defendant cases, United States v. Gotti, CR-85-178 (E.D.N.Y.) and United States v. Ruggiero, CR-83-412 (E.D.N.Y.). Jury selection in the Gotti case was completed on September 25, 1986 and a projected three-month trial is now in progress. Trial in United States v. Ruggiero will start after the Gotti case is completed; it is expected to last several months. Accordingly, by agreement of all parties, and with due regard to Speedy Trial Act requirements, the instant case was set for trial in March of 1987.

 Since this is a complex case involving multiple counts and numerous defendants, the trial will take many months. The result of these necessary delays would be the incarceration of the defendants, who are presumed innocent, for over a year. Based on this trial date and on other information presented by defense counsel, the defendants moved under 18 U.S.C. § 3142(c) for reconsideration of the detention order.

 On September 22nd and 23rd the court held hearings at which "X" appeared before the court for the first time. During the course of the hearings the witness' presentence report in another case came to the court's attention.

 "X" had originally been scheduled to be sentenced by another judge for conspiracy to defraud the Internal Revenue Service on his corporate income taxes and for income tax evasion on his personal returns. The Indictment, CR-86-220, charges eleven counts of tax fraud using complex and extensive schemes to avoid taxes totaling some $100,000 from 1980 to 1984. "X" pled guilty to two counts. Since "X"'s sentence on these charges may depend on his testimony in this case, his sentencing was reassigned to the judge in charge of the instant case. It has been scheduled to follow the conclusion of the trial in this case.

 The hearing and presentence report puts "X," his relationship to the two incarcerated defendants, and the threat in a new light. Rather than being simply the blameless victim of extortion by the two defendants, "X" himself is a criminal. He has one prior conviction of conspiracy to transport obscene material in interstate commerce, 18 U.S.C. § 371, for which he was fined. He had an intimate social relationship with the defendants over a number of years; their families mingled in and outside their homes. "X"'s business benefited from the association since the defendants obtained and serviced customers for him; the defendants may have been instrumental in ensuring labor peace in his business. "X" may even be profiting financially from the defendants' incarceration, since he has retained the defendants' customers but stopped paying defendants' commissions.

 "X" appears to have more resources for his own protection than the average citizen. He carries a gun, for which he has held a license for a number of years, and has a private collection of twenty guns. He has not availed himself of the government's witness protection program. He has the resources to provide, and apparently has arranged for, private protection. He can call upon the FBI when he feels threatened, as he did following the telephone calls of June 21st.

 There are persons other than the defendants with a possible animus against "X." That enmity might have been intensified upon publication of the news of the indictment in the present case, with the suggestion that "X" was cooperating in the prosecution in order to avoid punishment for his own crimes. He received a light sentence in an obscenity case because he cooperated with the government against a number of his former colleagues, who had been engaged with him in producing and distributing pornographic pictures depicting a variety of perversions. "X" has had two divorces and has little, if any, contact with his offspring. He "bought out" his business partner. He has avoided unionization despite apparent labor problems. He lives in a fine home on the waterfront with a 38-foot cabin cruiser at his adjacent private dock.

 A person with "X"'s lifestyle and history might well have picked up enemies along the way other than the defendants. In addition, it is possible that one of Vitta's or Migliorisi's misguided friends spontaneously made the threats without the personal complicity of the defendants.

 All of the above derogatory information about "X" strongly suggests that it is in the defendants' best interests to have "X" appear at trial. As a witness his credibility may be attacked and his demeanor observed by the jury. Based upon the court's observation of "X" during his testimony before it, a jury is likely to find "X"'s believability something less than perfect.

 Lengthy pretrial detention has imposed upon the defendants the usual sorts of hardships and stigma that accompany imprisonment. The effects upon the defendants' families are illustrated by the insomnia of defendant Vitta's youngest son, and the difficulty of setting a wedding date for Vitta's affianced daughter while her father is detained pending trial. The effects felt by defendant Vitta have resulted in a stress-related heart attack suffered during his incarceration. These hardships have been inflicted upon a man whom the law presumes innocent until proven guilty. Vitta has been in prison before, after conviction for criminal usury, but a citation for meritorious service that he received in 1983 from his community for risking his life to rescue neighbors from a burning building indicates that he still has some kind of reputation in the community that might be damaged by this lengthy incarceration.

 Migliorisi has no prior criminal record. He and his family are also paying an emotional and financial price for his incarceration.

 Neither defendant is a gentle soul. Both are capable of violence for their own and their associates' gain. They both reportedly threatened to viciously kill or beat "X" and members of his family, coercing him to pay them tribute for a number of years.


 A. Procedural Issues

 1. Jurisdiction

 A preliminary issue is whether the trial court has jurisdiction to hold a de novo hearing on the defendants' continued pretrial detention after affirmance by the Court of Appeals of the original detention order. Since the Court of Appeals affirmed without analysis and "a summary affirmance is an affirmance of the judgment only," Mandel v. Bradley, 432 U.S. 173, 176, 97 S. Ct. 2238, 2240, 53 L. Ed. 2d 199 (1977), the trial court lacks guidance on that court's rationale.

 A summary affirmance is limited in effect to "prevent[ing] lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by [the] action[]." Id. The Rules of the Second Circuit specifically provide that dispositions by summary order "do not constitute formal opinions of the court and . . . shall not be cited or otherwise used in unrelated cases" before any court. 2d Cir. R. § 0.23.

 One avenue of inquiry in determining what issues the Court of Appeals necessarily decided is to determine the standard of review the Court of Appeals probably applied. Unfortunately the statutory scheme does not provide a standard. The Bail Reform Act, 18 U.S.C. § 3145(b), provides for expedited appeal of detention orders, but is silent on the standard of review. See also Fed. R. App. P. 9 (an appeal of a release or detention order may be heard without briefs and upon "such papers, affidavits, and portions of the record as the parties shall present").

 In the absence of statutory guidance, the Second Circuit has applied the "clearly erroneous" standard of review to district court findings that grounds exist to detain a defendant prior to trial under the Bail Reform Act of 1984. See United States v. Gonzalez Claudio, 806 F.2d 334, 338 (2d Cir. 1986); United States v. Gotti, 794 F.2d 773, 778 (2d Cir. 1986); United States v. Melendez-Carrion, 790 F.2d 984, 994 (2d Cir. 1986); United States v. Martir, 782 F.2d 1141, 1146-47 (2d Cir. 1986); United States v. Colombo, 777 F.2d 96, 100 (2d Cir. 1985). The Second Circuit has recently clarified the reach of the "clearly erroneous" standard -- it applies to "the District Judge's findings of underlying historical facts and the consequent factual determination[s]," United States v. Gonzalez Claudio, 806 F.2d at 343, but does not preclude the Court of Appeals from making a broader review of the application of the facts found to constitutional issues raised. Id.; see also United States v. Zannino, 798 F.2d 544, 546 (1st Cir. 1986); cf. Monaghan, Constitutional Fact Review, 85 Colum. L. Rev. 229 (1985) (appellate courts must independently evaluate constitutional facts); Sumner v. Mata, 455 U.S. 591, 597, 102 S. Ct. 1303, 1306, 71 L. Ed. 2d 480 (1982) (federal court may weigh facts found by state court differently in deciding constitutional claim).

 In view of its enigmatic affirmance in this case, it is likely that the narrow issue the Court of Appeals determined was whether the detention order was based on findings of fact which were "clearly erroneous." Since the record contained a finding of a tape-recorded threat to a witness and other evidence that supports attribution of that threat to the defendants, summary affirmance was appropriate. When the Court of Appeals affirmed, trial was expected to commence during the fall of 1986. Therefore, it is unlikely that the Court of Appeals considered the constitutional issue now raised -- that excessively long pretrial detention in this case violates the defendants' rights guaranteed by the due process clause of the Fifth Amendment.

 Where significantly changed circumstances raise a new issue of law, and additional evidence is proferred, a judicial officer has inherent power to reconsider his or her own order. See Federal Rule of Civil Procedure 60(b), which applies by analogy to federal criminal proceedings. United States v. Colombo, 616 F. Supp. 780, 783 (E.D.N.Y.), rev'd on other grounds, 777 F.2d 96 (2d Cir. 1985); cf. Fed. R. Crim. P. 57 (in "all cases not provided for" in the Rules of Criminal Procedure, the court may proceed in any lawful manner); cf. Fed. R. Crim. P. 46(g) (requiring the court to "exercise supervision over the detention of defendants . . . within the district pending trial for the purpose of eliminating all unnecessary detention"). The changed circumstances created by the setting of a March 1987 trial date, the proffer of evidence as to who other than the defendants may have had a motive to threaten the witness, and the opportunity to hear the witness' testimony, provide ample justification for the court's granting a de novo hearing on the motion for reconsideration.

 Additionally, the Bail Reform Act of 1984 provides that "the judicial officer may at any time amend his order to impose additional or different conditions of release." 18 U.S.C. § 3142(c). This section remains unchanged from the corresponding section of the 1966 Act. See 18 U.S.C. § 3146(e) (1982), amended by 18 U.S.C. § 3142(c) (Supp. IV 1985). That earlier act has been interpreted to authorize courts to entertain a motion to change a detention order to one granting release on conditions. See Wood v. United States, 129 U.S. App. D.C. 143, 391 F.2d 981, 984 (D.C. Cir. 1968) ("the judges of the District Court . . . have a broad discretion to amend the conditions imposed, or to grant release outright").

 Congress has recommended that courts hold a hearing in the defendant's presence upon a motion to amend release conditions. See Senate Report, supra, at 16, reprinted in 1984 U.S. Code Cong. & Ad. News at 3199. Motions to amend detention orders are generally based on new information or changed circumstances. See United States v. Logan, 613 F. Supp. 1227 (D. Mont. 1985) (absent changed circumstances court refused to grant motion for reconsideration).

 The Second Circuit has directed district courts to "fully reconsider a magistrate's denial of bail . . . in ruling on a motion for revocation or amendment of a detention order [and] not simply defer to the judgment of the magistrate, but reach its own independent conclusion." United States v. Leon, 766 F.2d 77, 80 (2d Cir. 1985). To aid in reaching an independent conclusion, the district court may schedule a de novo hearing before a magistrate or before a district judge. See United States v. Leon, 766 F.2d 77 (2d Cir. 1985); see also United States v. Ramey, 602 F. Supp. 821, 822 (E.D.N.C. 1985) ("duty of the district court to conduct a de novo hearing").

 Where a detention order has been affirmed by the Court of Appeals, it apparently is necessary to hold a de novo hearing unless the district court can take judicial notice of relevant new factors or the parties stipulate to new evidence. A motion for reconsideration based solely on the previous record would seem to be precluded by the Court of Appeals' affirmance.

 Here the district judge first referred the matter of reconsideration to the magistrate. The magistrate declined to hold a new hearing, apparently on the ground that in his opinion no significant new evidence was available. The district judge then held a bail hearing. Rules of evidence, except for privilege, do not apply to such a bail hearing. Fed. R. Evid. 1101(d)(3); United States v. Golding, 742 F.2d 840 (5th Cir. 1984). While it was full, the hearing was, accordingly, relatively brief.

 2. Release of the Witness' Presentence Report

 "X"'s presentence report contains information which could be used at trial to impeach his credibility. That information was also useful to the court in assessing "X"'s credibility at the detention hearing. The pattern of business and social relationships that the presentence report reveals may even provide exculpatory material on the extortion charges. Nevertheless, both the government and counsel to "X" resist disclosure of the presentence report to the defendants.

 Presentence reports are confidential court documents prepared for the sentencing authority, not for the prosecutor's office. There is a strong policy of confidentiality to encourage candor in interviews by probation officers. See, e.g., United States v. Charmer Industries, Inc., 711 F.2d 1164, 1175 (2d Cir. 1983). Disclosure to a third person should not be authorized "in the absence of a compelling demonstration that disclosure of the report is required to meet the ends of justice." Id. at 1175.

 Because they are court documents, presentence reports do not fall strictly within the ambit of the Brady rule requiring disclosure "by the prosecution of evidence favorable to an accused . . . where the evidence is material either to guilt or to punishment." Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963). See, e.g., United States v. Cyphers, 553 F.2d 1064, 1069 (7th Cir.) (no prejudice from failure of court to disclose presentence report), cert. denied, 434 U.S. 843, 98 S. Ct. 142, 54 L. Ed. 2d 107 (1977); United States v. Walker, 491 F.2d 236, 238 (9th Cir.) (no exonerating evidence in report), cert. denied, 416 U.S. 990, 94 S. Ct. 2399, 40 L. Ed. 2d 769 (1974); United States v. Evans, 454 F.2d 813, 820 (8th Cir.) (no abuse of discretion to deny access), cert. denied, 406 U.S. 969, 92 S. Ct. 2423, 32 L. Ed. 2d 668 (1972). Nor does a presentence report constitute a "statement" of a witness under the Jencks Act, 18 U.S.C. § 3500(e), which requires that statements of government witnesses be turned over to the defense for use in cross-examination at trial. See United States v. Dingle, 546 F.2d 1378 (10th Cir. 1976).

 The Brady rule is a constitutional rule of due process, repeatedly interpreted by the Supreme Court as requiring the disclosure of impeachment material as well as material which is more directly exculpatory. See United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481 (1985); Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972). Impeachment evidence is "evidence favorable to an accused." Brady, 373 U.S. at 87, 83 S. Ct. at 1196. Its availability "may make the difference between conviction and acquittal." Bagley, 105 S. Ct. at 3380. Information useful in assessing credibility as well as in assessing the truth or falsity of a material proposition through evidence-in-chief is relevant. See Fed. R. Evid. 401. "The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend." Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 1177, 3 L. Ed. 2d 1217 (1959).

 Failure to disclose under Brady will result in reversal "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, 105 S. Ct. at 3384. This reasonable probability limitation, formulated within the context of a post-conviction attack on the validity of a conviction, is not applicable to a pretrial proceeding where the rest of the prosecution's evidence is unknown. At the trial and pretrial stages the court and prosecutor must treat as Brady material any relevant evidence -- i.e., evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. Doubt as to both evidence-in-chief and evidence on credibility must be resolved in favor of revelation before trial.

 The testimony of "X" would be essential to prove extortion charges brought against the defendants. Potential impeachment material contained within "X"'s presentence report is Brady material. See United States v. Figurski, 545 F.2d 389, 391 (4th Cir. 1976) ("importance of the witness to the government's case" must be considered in determining whether impeachment evidence must be revealed).

 Since the evidence in the presentence report is relevant to guilt, due process requires its disclosure. The fact that the defendants made no request to the court for the witness' presentence report does not affect the result, since no formal request for such material needs to be made. See Bagley, 105 S. Ct. at 3384.

 It is not critical to the due process determination that the court rather than the prosecution holds the information. The prosecutor's role "transcends that of an adversary." Bagley, 105 S. Ct. at 3380 n.6. A fortiori that impartial role and responsibility rests on the court as well. It "is the representative . . . of a sovereignty . . . whose interest . . . in a criminal prosecution is . . . that justice shall be done." Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314 (1935).

 It would be unconscionable for a court, relying on the technical inapplicability of Brady, to refuse disclosure of evidence it knows to be exculpatory. Recognizing this rule, courts have established a policy of conducting in camera reviews of requested presentence reports. See, e.g., United States v. Cyphers, 553 F.2d 1064, 1069 (7th Cir.), cert. denied, 434 U.S. 843, 98 S. Ct. 142, 54 L. Ed. 2d 107 (1977); United States v. Figurski, 545 F.2d 389, 392 (4th Cir. 1976); United States v. Walker, 491 F.2d 236, 238 (9th Cir.) (probation officer ordered to review report), cert. denied, 416 U.S. 990, 94 S. Ct. 2399, 32 L. Ed. 2d 769 (1974); United States v. Evans, 454 F.2d 813, 819 & n.13 (8th Cir.), cert. denied, 406 U.S. 969, 92 S. Ct. 2423, 32 L. Ed. 2d 668 (1972). Such a review is necessary both to ensure the confidentiality of the document and to determine whether disclosure of the presentence report is "essential to effective presentation of a defense and therefore required in the interests of justice." United States v. Cyphers, 553 F.2d at 1069.

 Without deciding whether the high standard of "compelling need" is to be imposed on presentence reports containing Brady materials, the court finds that that test is met in the instant case. Disclosure of the witness' presentence report to the defendants and the government is required by constitutional considerations.

 The need for disclosure does not end the inquiry, for the subject of the presentence report and the process of compiling the report are also entitled to consideration. The Federal Rules of Criminal Procedure do not provide for the release of presentence reports to third parties. Federal Rule of Criminal Procedure 32(c)(3) requires the court to release presentence reports to defendants and counsel unless it determines that there is certain information which should not be disclosed, in which case the court must disclose a written summary of the facts to be relied upon in sentencing. No reported case and only two unreported cases have been found in which disclosure was made to third parties. United States v. Bernstein, CR-81-160 (E.D.N.Y. Jan. 12, 1982) (transcript of hearing at which court explained that it disclosed report to a third person in the interests of justice); United States v. Gotti, CR-85-178 (E.D.N.Y. Oct. 2, 1986) (transcript of hearing at which court disclosed presentence report of a witness to defendants). Most courts have concluded that Rule 32(c)(3) does not reach this question, not that the omission of a provision regarding disclosure to third parties affirmatively bars such disclosure. See United States v. Charmer Industries, 711 F.2d 1164, 1173 (2d Cir. 1983) (citing cases).

 Under the rule of United States v. Fatico, 441 F. Supp. 1285 (E.D.N.Y. 1977), rev'd, 579 F.2d 707, 712 (2d Cir.), on remand 458 F. Supp. 388, 398 (E.D.N.Y. 1978), aff'd, 603 F.2d 1053 (2d Cir. 1979), cert. denied, 444 U.S. 1073, 100 S. Ct. 1018, 62 L. Ed. 2d 755 (1980), a person has the right before being sentenced to test the accuracy of adverse statements in the presentence report so that the sentence is not based on misinformation. Accord United States v. Bass, 175 U.S. App. D.C. 282, 535 F.2d 110, 121 (D.C. Cir. 1976); United States v. Needles, 472 F.2d 652, 658 (2d Cir. 1973); United States v. Weston, 448 F.2d 626, 634 (9th Cir. 1971), cert. denied, 404 U.S. 1061, 92 S. Ct. 748, 30 L. Ed. 2d 749 (1972). A 1983 amendment to Federal Rule of Criminal Procedure 32(c)(3)(D) "requires the sentencing court, as to each matter controverted, either to make a finding as to the accuracy of the challenged factual proposition or to determine that no reliance will be placed on that proposition at the time of sentencing." Advisory Committee Note to 1983 Amendments to Fed. R. Crim. P. 32. "Decisions about appropriate procedures to ensure reliable information are left largely to the discretion of the sentencing judge." Fatico, 458 F. Supp. at 398. See also United States v. Rosner, 485 F.2d 1213, 1230 (2d Cir. 1973), cert. denied, 417 U.S. 950, 94 S. Ct. 3080, 41 L. Ed. 2d 672 (1974); United States v. Needles, 472 F.2d at 658.

 As a matter of fairness, the witness here, "X," should have the same opportunity to challenge adverse statements in his presentence report prior to its disclosure as he will have prior to sentencing; his welfare is at stake in this proceeding. Accordingly, the court arranged to have the witness' counsel present at the hearing on September 24th when it ordered the Probation Department to release the report to "X," so that counsel could review it with his client and determine whether to request a Fatico-type hearing. He has not requested ...

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