U.S. v. Zannino, 85-1070

• Decision Date: 03 May 1985
• Docket Number: No. 85-1070,85-1070
• Citation: 761 F.2d 52
• Parties: UNITED STATES of America, Plaintiff, Appellant, v. Ilario M.A. ZANNINO, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 52

761 F.2d 52

UNITED STATES of America, Plaintiff, Appellant, v. Ilario M.A. ZANNINO, Defendant, Appellee.

No. 85-1070.

United States Court of Appeals,

First Circuit.

Argued March 8, 1985.

Decided May 3, 1985.

Diane M. Kottmyer, Boston, Mass., with whom Ernest S. Dinisco and Jane E. Serene, Sp. Attys., William F. Weld, U.S. Atty., and Jeremiah T. O'Sullivan, Sp. Atty., Boston, Mass., were on brief for plaintiff, appellant.

Joseph J. Balliro, Boston, Mass., with whom James L. Sultan, Boston, Mass., was on brief for defendant, appellee.

Before BREYER and TORRUELLA, Circuit Judges, and SELYA, ^* District Judge.

TORRUELLA, Circuit Judge.

The matter is before us on appeal by the United States from a denial by the United States District Court for the District of Massachusetts of its motion to revoke the bail of defendant/appellee Ilario M.A. Zannino and to detain him, after hearing, pursuant to the Bail Reform Act of 1984, specifically 18 U.S.C. Sec. 3142(e) and 3148(b). ¹

On September 19, 1983, a federal grand jury returned a twenty count indictment against Zannino and six others. The charges related to murders, gambling, and other illegal acts. When first brought before the magistrate on September 20, 1983, Zannino was ordered held without bail on the grounds that no conditions of pretrial release would reasonably assure his appearance at trial. Eventually, however, terms for release on bail were set. In his order dated December 23, 1983, the magistrate expressly found that Zannino posed a serious and substantial threat to the safety of the community and that, were it not for the fact that he had no authority to detain the defendant under the 1966 Bail Reform Act on those grounds, he would unhesitatingly order Zannino held without bail pending trial. Zannino was, therefore, released on bail in early January, 1984.

Shortly after the passage of the Bail Reform Act of 1984 in October of that year, the Government filed a motion to revoke bail as to Zannino and to hold a detention hearing, alleging, as grounds thereof, the previous findings of the magistrate concerning dangerousness to the community and the provision of the new 1984 Act which now provided for restrictive detention without bail under those circumstances. 18 U.S.C. Sec. 3142(e) (1984). Additionally, the Government submitted affidavits to support a finding of probable cause that the defendant had committed a felony while on pretrial release, which under the 1984 Act was grounds for revocation of bail. 18 U.S.C. Sec. 3148(b) (1984). The magistrate denied the motion, finding that the 1984 Act did not apply to pending cases in which the defendant was already released on bail. In his order, however, he once again reiterated his conclusion that no condition or combination of conditions could reasonably assure the safety "of any other person" or the community in the absence of Zannino's pretrial detention. The magistrate's denial was thereafter affirmed by the district court and the government appealed. Thus, the specific issue before us is whether Sections 3142(e), which provides for the pretrial detention, and 3148(b), which provides for bail revocation, apply to a defendant released on bail prior to the effective date of the 1984 enactments. ²

The Supreme Court has held that the federal courts must apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or where there is clear statutory direction or legislative history to the contrary. Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974). See United States v. Gennaro J. Angiulo, 755 F.2d 969, 970 (1st Cir.1985) (Breyer, J.); New England Power Co. v. United States, 693 F.2d 239, 244 (1st Cir.1982). Furthermore, and more to the point, it is clear that the conditions under which a defendant is originally released on bail are subject to review when changed circumstances require that the release be reappraised.

That the decision releasing Zannino was not unalterable and, even as originally issued, was subject to revision at any time prior to trial, is particularly evidenced by the text of the section of the pre-1984 Act under which he was released:

A judicial officer ordering the release of a person on any condition specified in this section may at any time amend his order to impose additional or different conditions of release. Provided that, if imposition of such additional or different conditions results in the detention of the person as a result of his inability to meet such conditions or in the release of the person on a condition requiring him to return to custody, subsection (d) [requiring review] shall apply.

(Emphasis in original). Bail Reform Act of 1966, 18 U.S.C. Sec. 3146(e), repealed by Bail Reform Act of 1984, 18 U.S.C. Sec. 3142(c). Thus the decision regarding the terms of bail may be considered to have been an open matter, subject to post-bail release review, even before the 1984 Act was passed on October 12th.

We thus look to the situation created by the passage of the 1984 Act, to ascertain whether an individual in Zannino's position should in effect receive a privilege vis-a-vis all defendants charged after October 12th, notwithstanding the pendency of all their proceedings. Since nothing in the new Act or its legislative history suggests that the new Act does not apply, Bradley requires that we look to the "justice" or "injustice" of the new Act's application. United States v. Angiulo, supra, at 970.

In our opinion in Angiulo, for a point of comparison with the facts in that case, we stated that a defendant released on bail prior to enactment of the new Act might have a stronger argument to support his contention that the pretrial detention provisions did not apply to his case. Id. By positing this hypothetical, we were not creating a hard and fast rule. Closer examination, within the context of an actual case and controversy, does not support this exception to the retroactivity of the new Act. Section 3146(e) of the 1966 Act clearly states that conditions of the release can be changed, and that the inability to meet such conditions could require the return to custody. Thus the release on bail allowed under the 1966 Act was not an absolute grant; defendants were given notice that a change in conditions or terms could bring about the revocation of the release. That statute, furthermore, created no expectation that conditions would not change.

What has actually occurred with the passage of the pretrial detention provision may be considered a statutorily mandated change in those conditions. That is, under Section 3142(e) of the 1984 Act, for a defendant to be eligible for pretrial bail, he must be able in certain instances to rebut the presumption that no condition or combination of conditions will reasonably assure the safety of "any other person and the community." 18 U.S.C. Sec. 3142(e). We hold that defendants released under the 1966 Bail Act must show their continued eligibility for bail by meeting the newly imposed conditions if this issue is affirmatively raised by the Government.

Moreover, in the case at bar, Zannino had further indication of possible revocation of bail in that the magistrate, upon both granting the motion for bail and denying the government's motion for revocation of bail, emphatically stated that he found the appellee to be a danger to the community and that, had a legal mechanism by which he could detain Zannino existed, he would have done so. This clearly constituted notice to appellee that a change of condition, such as has occurred by the passage of the 1984 Act allowing pretrial detention for dangerousness, would call for reevaluation of his release.

Under the manifest injustice standard of Bradley, supra, the disappointment of private expectations that results from the implementation of a new rule must be balanced against public interest in the enforcement of that rule. New England Power Co., supra, 693 F.2d at 245; Adams Nursing Home of Williamstown, Inc. v. Mathews, 548 F.2d 1077, 1080 (1st Cir.1977). Important public policy considerations dictated the enactment of a pretrial detention mechanism whereby the community could be safeguarded from the "alarming problem" of crimes committed "by demonstrably dangerous defendants" while on pretrial release. See Report of the Committee on the Judiciary, United States Senate, on S.1762, S.Rep. No. 225, 98th Cong., 1st Sess. at 1, 5-7 (1984), U.S.Code Cong. & Admin.News 1984, pp. 3182, 3184, 3187-3189. Logic and common sense, as well as the new Act's legislative history, dictate application of the new conditions to all dangerous defendants, including those previously released because of the lack of judicial power to prevent such a result.

Congress could scarcely have been plainer in indicating the concerns which prompted passage of the 1984 Act. S.Rep. No. 225, for example, explicitly remarked the need to confer "authority to deny release to those defendants who pose an especially grave risk to the safety of the community." Id. at 5. Furthermore, "[i]n the Committee's view, it is intolerable that the law denies judges the tools to make honest and appropriate decisions regarding the release of such defendants." This is strong talk, couched in a sense of legislative urgency. It is inconceivable to us that, in the face of such concerns, the Congress meant for the courts to temporize in the application of the pretrial release provisions of the 1984 Act by interdicting the use of such detention powers in any suitable case, whether or not the accused had previously been released under the more relaxed criteria of the 1966 Act. The legislative history, fairly read, represents a clear statutory directive favoring applicability of the new pretrial release scheme across the board. Indeed, the basic purposes of the new Act, as we delineated them in Angiulo, at 971-972, lead to the same conclusion.

The...