U.S. v. Spilotro

• Decision Date: 24 February 1986
• Docket Number: 84-1587 and 84-1623,Nos. 84-1586,s. 84-1586
• Parties: UNITED STATES of America, Appellee, v. Anthony John SPILOTRO, Appellant. UNITED STATES of America, Appellee, v. John Phillip CERONE, Appellant. UNITED STATES of America, Appellee, v. Joseph John AIUPPA, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 808

786 F.2d 808

UNITED STATES of America, Appellee, v. Anthony John SPILOTRO, Appellant.

UNITED STATES of America, Appellee, v. John Phillip CERONE, Appellant.

UNITED STATES of America, Appellee, v. Joseph John AIUPPA, Appellant.

Nos. 84-1586, 84-1587 and 84-1623.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 12, 1984.

Decided Feb. 24, 1986.

Charles N. Shaffer, Rockville, Md., for appellant.

Lloyd B. Monroe, Kansas City, Mo., for appellee.

Before BRIGHT, ^* Senior Circuit Judge, McMILLIAN, Circuit Judge, and MAGNUSON, ^** District Judge.

McMILLIAN, Circuit Judge.

Anthony J. Spilotro, John P. Cerone and Joseph P. Aiuppa appeal from an order entered in the District Court ¹ for the Western District of Missouri denying their motions For the reasons discussed below, we dismiss as moot the appeals of Aiuppa and Cerone and remand the Spilotro case to the district court with instructions.

to amend or modify certain conditions of pretrial release imposed by the magistrate ² in pretrial proceedings. For reversal appellant argues that the district court abused its discretion in imposing as a condition of pretrial release that each defendant not knowingly associate with any person who has been convicted of a felony except when necessary for business purposes or the preparation of his defense. Appellants argue that the association condition violates the first amendment guarantee of freedom of association. Appellants also argue that the association condition violates the eighth amendment prohibition against excessive bail and the Bail Reform Act of 1966 which permits restrictions upon the defendant's associations as a condition of pretrial release only if reasonably necessary to assure the defendant's appearance in court as required. 18 U.S.C. Sec. 3146(a)(2) (repealed and replaced by 18 U.S.C. Sec. 3142(c)( ). Bail Reform Act of 1984, Pub.L. No. Sec. 8.471, Tit. II, ch. 1, Sec. 203(a). 98 Stat. 1976 (1983)).

FACTS

In 1983 appellants were indicted with twelve other co-defendants and charged with conspiracy to travel in and use facilities in interstate commerce in aid of a racketeering enterprise, in violation of 18 U.S.C. Sec. 371, and with seven substantive violations of the Travel Act, 18 U.S.C. Sec. 1952, and faced a maximum sentence of 40 years and fines totaling $80,000 if convicted on each count. The government characterized the underlying prosecution as a complex case involving a lengthy, nationwide investigation of multiple defendants.

The defendants were charged with participation in a far-reaching, organized criminal enterprise consisting of appellants and others from five cities, who, over a ten-year period, traveled and used telephones in interstate commerce to acquire and maintain hidden interests in certain gambling casinos located in Las Vegas, Nevada, in violation of Nevada gambling laws and regulations, in order to skim and distribute substantial cash proceeds. According to the government, more than $2 million in gambling proceeds was illegally skimmed and distributed among the co-conspirators over a four-year period. The government specifically alleged that appellant Aiuppa and defendants Joseph Lombardo and Frank Peter Balistrieri used their influence with certain trustees of several Teamsters Union pension funds in order to obtain a multi-million dollar loan to enable Allen R. Glick to purchase the Las Vegas casinos involved in the skimming operation.

The government alleged that appellant Spilotro and others acted as the Las Vegas representatives for those co-conspirators, including appellants Aiuppa and Cerone, who lived in or near Chicago, Illinois. The government alleged 75 overt acts were committed in furtherance of the Las Vegas casinos skimming conspiracy, including telephone conversations and private meetings in defendants' homes and offices.

The indictment was returned on September 30, 1983. On October 11, 1983, each appellant was arrested in his respective home district upon execution of arrest warrants issued pursuant to the indictment. Appellants Aiuppa and Cerone were interviewed by pretrial services officers in the Northern District of Illinois and appeared before a federal magistrate there. Following a pretrial bail hearing, the magistrate set bond for each appellant at $40,000 to be secured by 10% deposit and directed each appellant to appear in the Western District of Missouri on October 26, 1983. Appellant Spilotro appeared before a federal magistrate in the District of Nevada and, after a pretrial hearing, was released on a $100,000 unsecured bond and similarly ordered to appear in the Western District of Missouri.

In late October 1983 each appellant was interviewed in the Western District of Missouri by pretrial services officers and appeared for arraignment before a magistrate in the Western District of Missouri. Pursuant to the provisions of the General Order for Magistrates to Fix Bail (W.D.Mo. filed Feb. 12, 1971, effective May 3, 1971) (banc), upon each appellant's appearance, the magistrate proceeded to review the pretrial bail set by magistrates in other districts by automatically revoking the bail previously entered, remanding each appellant into the custody of the U.S. Marshal (appellants remained in the courtroom pending the new bail hearing), conducting a new bail hearing, and setting new and more onerous conditions of pretrial bail, including travel and association conditions. Each appellant was released after agreeing to abide by the conditions of release and, in the case of appellant Aiuppa, after posting bond.

Motions to modify certain of the pretrial release conditions, including the association conditions, were granted in part by the magistrate, but the magistrate denied defense motions for further modification of the pretrial release conditions. United States v. DeLuna, No. 83-00124-01/15-Cr-W-8 (W.D.Mo. Apr. 9, 1984) (memorandum and order). The magistrate's order denying further modification was affirmed by the district court. United States v. DeLuna, No. 83-00124-08/10-Cr-W-8 (W.D.Mo. Apr. 24, 1984) (order). These appeals followed.

APPELLATE JURISDICTION

On January 21, 1986, appellants Aiuppa and Cerone were found guilty by a jury on all counts. Because the pretrial bail issues raised in their appeals became moot following their convictions, we dismiss their appeals. See Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982) (per curiam); United States v. Hollister, 746 F.2d 420, 426 n. 18 (8th Cir.1984). Appellant Spilotro was severed from the other defendants and is to be tried separately. His appeal remains a "live" controversy.

First, we address the question of the appealability of the district court order affirming the magistrate's denial of appellant's motion for modification of the conditions of pretrial release. See 18 U.S.C. Sec. 3147(b) (now repealed); Fed.R.App.P. 9(a). Appellant was not detained but released on bond subject to the conditions described above. We directed the parties to submit supplemental briefs on the issue of appellate jurisdiction.

Appellant argues that the district court order is final and appealable because it is an arbitrary exercise of discretion which violates constitutional rights, citing Stack v. Boyle, 342 U.S. 1, 6, 72 S.Ct. 1, 4, 96 L.Ed. 1 (1951), and United States v. Foster, 278 F.2d 567, 569 (2d Cir.), cert. denied, 364 U.S. 834, 81 S.Ct. 48, 5 L.Ed.2d 60 (1960). Alternatively, appellant argues that the district court order is appealable under the collateral order doctrine, citing Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

The government argues that there is no appellate jurisdiction under either 18 U.S.C. Sec. 3147(a) or (b) (now repealed) because appellant was not detained after denial of a motion to amend an order imposing conditions of release or detained as a result of conditions of release having been imposed or amended. The government also argues that in Stack v. Boyle, unlike the present case, the defendants were in custody, 342 U.S. at 3-4, 72 S.Ct. at 2-3, and had challenged the bail as excessive, which, because it was imposed in violation of statutory and constitutional standards, the district court "had no discretion to refuse to reduce." Id. at 6, 72 S.Ct.at 4; see United States v. Foster, 278 F.2d at 570 (Friendly, J., concurring as to the appeal from the bail order).

The Bail Reform Act of 1966 set forth the procedure for appellate review of release orders in non-capital cases. 18 U.S.C. Sec. 3147 (now repealed). Any person who was detained, or released upon a condition requiring his or her return to custody after specified hours, had to first file a motion to amend the order before the court which had original jurisdiction over the offense with which he or she was charged. Id. Sec. 3146. If a person was detained after the court denied the motion to amend the conditions of release or after conditions of release were imposed or amended by the court which had original jurisdiction over the offense charged, then the person could appeal to the court having appellate jurisdiction. Id. Sec. 3147(b); see generally 3A C. Wright & A. Miller, Federal Practice and Procedure Secs. 771-772 (1982).

Also relevant to appellate jurisdiction are Fed.R.App.P. 9(a) and Stack v. Boyle. Fed.R.App.P. 9(a) provides for "[a]n appeal authorized by law from an order refusing or imposing conditions of release [before conviction]."

The language of the rule, "[a]n appeal authorized by law from an order refusing or imposing conditions of release," is intentionally broader than that used in 18 U.S.C. Sec. 3147 in describing orders made appealable by that section. The summary procedure ordained by the rule is intended to apply to all appeals from orders respecting release, and it would appear that at least some orders not made appealable by 18 U.S.C. Sec. 3147 are nevertheless appealable under the Stack v. Boyle...