794 F.2d 64 (2nd Cir. 1986), 1386, United States v. Salerno

• Docket Number: 1386,86-1198.,Dockets 86-1197,1387
• Date: 03 July 1986
• Citation: 794 F.2d 64
• Parties: UNITED STATES of America, Appellee, v. Anthony SALERNO and Vincent Cafaro, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

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794 F.2d 64 (2nd Cir. 1986)

UNITED STATES of America, Appellee,

v.

Anthony SALERNO and Vincent Cafaro, Defendants-Appellants.

Nos. 1386, 1387, Dockets 86-1197, 86-1198.

United States Court of Appeals, Second Circuit

July 3, 1986

Argued May 29, 1986.

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Alan M. Cohen, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty. for the Southern Dist. of N.Y., Mark R. Hellerer, Warren Neil Eggleston, Asst. U.S. Attys., New York City, on brief), for appellee.

Anthony M. Cardinale, Boston, Mass. (Roy Cohn, New York City, on brief), for defendant-appellant Salerno.

Steven K. Frankel, New York City, for defendant-appellant Cafaro.

Before FEINBERG, Chief Judge, NEWMAN and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

Defendants Anthony Salerno and Vincent Cafaro appeal from orders of the United States District Court for the Southern District of New York, 631 F.Supp. 1364, committing them to the custody of the Attorney General for pretrial detention pursuant to the Bail Reform Act of 1984 (the "Bail Reform Act" or "Act"), 18 U.S.C. Secs. 3141-3156 (Supp. II 1984), on the ground that no condition or combination of conditions of their release will reasonably assure the safety of any other person and the community. On appeal, defendants raise statutory and constitutional challenges to their continued confinement. We find no merit in their statutory arguments but agree that to the extent that Sec. 3142(e) of the Act permits their pretrial detention on the stated ground, that section violates the Due Process Clause of the Constitution of the United States. We therefore vacate the orders of the district court, remand for the setting of conditions of bail, and stay the issuance of the mandate until the mandate of this Court is issued in United States v. Melendez-Carrion, 790 F.2d 984 (2d Cir.1986).

I. BACKGROUND

Salerno and Cafaro were arrested on March 21, 1986, and have been incarcerated since that date. They were charged, along with 13 others, in a 29-count indictment with one count of conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C. Sec. 1962(d) (1982); one count of participating in a racketeering enterprise, in violation of 18 U.S.C. Sec. 1962(c) (1982); 16 counts of mail fraud, in violation of 18 U.S.C. Sec. 1341 (1982); one count of wire fraud, in violation of 18 U.S.C. Sec. 1343 (1982); eight counts of extortion, in violation of 18 U.S.C. Sec. 1951 (1982); and one count of operating an illegal bookmaking business and one count of operating an illegal numbers business, in violation of 18 U.S.C. Sec. 1955 (1982). The RICO counts allege 35 specific acts of racketeering activity, including the alleged mail and wire frauds, extortion, and gambling, and two conspiracies to commit murder.

1. The Initial Decision by Judge Walker

   At the arraignment of Salerno and Cafaro before Judge John M. Walker, Jr., sitting as Part I Judge, the government moved for their pretrial detention pursuant to 18 U.S.C. Sec. 3142(e). The government conceded that neither defendant posed a risk of flight, but it contended that no condition of bail or combination of conditions would assure the safety of the community or any person. After a three-day continuance at the request of the government, Judge Walker conducted an evidentiary hearing.

   At the hearing, the government submitted to the court a lengthy and detailed proffer of evidence derived from court-ordered electronic surveillance at various locations and from the anticipated testimony of two of the government's trial witnesses. The proffer indicated that Salerno was the "boss" of the Genovese Crime Family of La Cosa Nostra, that Cafaro was a "captain" in the Genovese Family, and that the two had participated in conspiracies to use violence in seeking to, inter alia, eliminate competition for their gambling operations, collect moneys in the course of their loansharking business, and control labor unions. The proffer also indicated that the expected testimony of the two witnesses, former high-ranking members of organized

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   crime who had testified for the government at trials of other organized crime figures, would show Salerno's participation in conspiracies to murder two named individuals. Tapes of electronic surveillance also disclosed Salerno's approval of at least one other plan to commit murder.

   Salerno, in opposition to the motion for detention, suggested that the government's key witnesses were subject to impeachment on the basis of their criminal pasts and their favorable cooperation agreements with the government, and he proffered the testimony of witnesses who, while denying knowledge relating to any of the allegations in the indictment, would state that they did not consider Salerno to be any danger to the community. Salerno also produced a letter from his doctor, who had attended him since 1977, stating that Salerno, age 74, has had a history of high blood pressure complicated by congestive heart failure since 1961 and that his condition has resulted in serious vascular damage which, despite a strict medical regimen, has progressed. The doctor noted also that in 1981 Salerno suffered a stroke from which he has recovered with some limited residual disability.

   Cafaro presented no evidentiary material at the hearing. He relied on argument that the government's tape recordings of his threats of violence and counseling of others to use violence revealed at most "tough talk" and that the government had offered no proof that any of the violent acts discussed by him were actually carried out.

   After the two-day hearing, the court granted the government's motion for detention in an Opinion and Order dated March 28, 1986 ("March 28 Order"), which apparently was not filed but was modified by an Opinion and Order filed on April 2, 1986 ("April 2 Opinion"). In the April 2 Opinion, the court reviewed in detail the government's proffer with respect to the defendants' use or threatened use of violence and concluded that the government had established by clear and convincing evidence that no condition or combination of conditions of release would ensure the safety of the community or any person in the community. As to Salerno, the court noted, inter alia, that

   [t]he government has proffered information showing that Salerno could order a murder merely by voicing his assent with the single word "hit." Although some of these murder conspiracies occurred between six and ten years ago, their seriousness and the ease with which they could be ordered weigh heavily in favor of finding that Salerno is a present danger to the community.

   April 2 Opinion at 1371. The court noted that the release conditions proposed by Salerno, which included so-called "house arrest" and an order not to commit crimes or intimidate witnesses, closely paralleled those found inadequate in United States v. Colombo, 777 F.2d 96 (2d Cir.1985), and it concluded that Salerno should remain detained pending trial.

   As to Cafaro, the court found that the government had "established by clear and convincing evidence that Cafaro was actually conducting the business of the enterprise and that he did so by directing others to commit violent acts." April 2 Opinion at 1375. The court concluded that the release conditions proposed by Cafaro, which were that he surrender his passport and not be allowed to go to specified restaurants, social clubs, and offices, or to associate with other defendants, would at most assure Cafaro's presence at trial but would in no way assure the safety of the community:

   The activities of a criminal organization such as the Genovese Family do not cease with the arrest of its principals and their release on even the most stringent of bail conditions. The illegal businesses, in place for many years, require constant attention and protection, or they will fail. Under these circumstances, this court recognizes a strong incentive on the part of its leadership to continue business as usual. When business as usual involves threats, beatings, and murder, the present danger such people pose in the community is self-evident.

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   Id. at 1375. The court stated that "this court cannot envision any set of conditions that could ensure the safety of the community from Cafaro." Id. at 1375.

   Accordingly, the court ordered that Salerno and Cafaro be committed to the custody of the Attorney General for confinement prior to trial. To the extent practicable, defendants were to be confined in a corrections facility separate from persons awaiting or serving sentences or being held in custody pending appeal, and were to be afforded reasonable opportunity for private consultation with their respective attorneys.

2. The Decision by Judge Lowe

   While the government's motion was pending before Judge Walker as Part I judge, the present prosecution was assigned by lot to Judge Mary Johnson Lowe for trial. On April 1 defendants asked Judge Lowe to review the March 28 detention order announced by Judge Walker and thereafter made a more formal motion for review of both the March 28 Order and the final detention order embodied in the April 2 Opinion. Following a hearing on April 11, Judge Lowe denied defendants' motion. She ruled that Judge Walker's findings were not subject to de novo review and that there was no new evidence sufficient to warrant disturbing those rulings.

   Defendants have filed notices of appeal seeking review of the orders of Judges Walker and Lowe.

3. Issues on Appeal

   Defendants raise several issues on appeal. Salerno contends that the government's reliance on the fruits of electronic surveillance without giving him 10 days' notice violated the provisions of 18 U.S.C. Sec. 2518(9) (1982). Both defendants contend that the evidence was insufficient under the standards set by 18 U.S.C. Sec. 3142(f) to support the district court's...