U.S. v. Zannino

• Citation: 798 F.2d 544
• Decision Date: 15 August 1986
• Docket Number: No. 86-1597,86-1597
• Parties: UNITED STATES, Appellant, v. Ilario M.A. ZANNINO, Defendant, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 544

798 F.2d 544

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

No. 86-1597.

United States Court of Appeals First Circuit.

Submitted July 24, 1986.

Decided Aug. 15, 1986.

William F. Weld, U.S. Atty., Jeremiah T. O'Sullivan, Diane M. Kottmyer, James B. Farmer and Stephen P. Heymann, U.S. Dept. of Justice, on brief for appellant.

Joseph J. Balliro and Balliro, Mondano & Balliro, Charles W. Rankin, James L. Sultan and Rankin & Sultan, on brief for appellee.

Before LEVIN H. CAMPBELL, Chief Judge, COFFIN and BOWNES, Circuit judges.

PER CURIAM.

Ilario M.A. Zannino was indicted on September 19, 1983, along with six co-defendants, in a multi-count indictment charging him with a number of racketeering, loansharking, and gambling violations, including predicate acts of two murders and four conspiracies to commit murder. After this court held that the Bail Reform Act of 1984 could be applied to a defendant, such as Zannino, who had been released on bail under the 1966 Bail Act, see United States v. Zannino, 761 F.2d 52 (1st Cir.1985), the district court on May 16, 1985 revoked Zannino's bail pursuant to a finding that "no conditions of release will reasonably assure the safety of any other person and the community." On July 17, 1985, soon after trial of Zannino and his co-defendants had begun, Zannino suffered cardiac arrest and was severed from the trial, without government objection. Zannino ultimately was placed in custody in the maximum security unit of the Lemuel Shattuck Hospital, where he still remains.

Trial of Zannino's co-defendants concluded on February 26, 1986. Subsequently, the district court, in response to Zannino's July 30, 1985 Motion for Reconsideration of Detention Order (in which Zannino sought release on bail on the grounds that he was no longer "dangerous" and that his indefinite detention while physically unable to stand trial violated due process), appointed a panel of cardiologists to assist the court's determination of Zannino's ability to stand trial. After reviewing the panel's report, the district court concluded "that Zannino at the present time is, and for the foreseeable future will remain, medically unable to withstand the several months of trial that would be needed to prosecute him on all pending counts in the instant indictment." The court left open the possibility of trying Zannino on one count at a time, as the government proposed, rather than trying him on all twenty counts of the indictment together. However, on June 17, 1986, the court ordered Zannino's temporary release on bail pending the court's determination, after further consultation with the panel of cardiologists, whether Zannino could stand trial to this limited extent. The court set various conditions for Zannino's release, including the following: that Zannino not leave his residence without court approval except for medical visits; that Zannino receive no visitors without approval of Pre-trial Services except counsel and his immediate family; and, with Zannino's consent, that the government monitor his telephone calls. The government appealed from the temporary release order. Upon the government's motion, this court stayed Zannino's release pending further order of this court. Given the unusual circumstances present in this case, we now reverse the temporary release order.

The district court elaborated its reasoning for its temporary release order in its July 1, 1986 Memorandum in Support of Order for Temporary Release on Bail and, following this court's request for certain further findings, its July 24, 1986 Memorandum in Response to Court of Appeals' July 18, 1986 Order. The court specifically held that Zannino remains "dangerous" for purposes of the Bail Reform Act, 18 U.S.C. Sec. 3142, and that its bail conditions did not suffice to neutralize his dangerousness. The court nonetheless found that continued pretrial detention of Zannino beyond thirteen months (commencing May 16, 1985) would raise serious questions as to the constitutionality of the Bail Reform Act as applied. The court accordingly found that avoiding this potential due process violation constituted a "compelling reason" to justify Zannino's temporary release under 18 U.S.C. Sec. 3142(i), which provides,

"The judicial officer may, by subsequent order, permit the temporary release of the person, in the custody of a United States marshal or another appropriate person, to the extent that the judicial officer determines such release to be necessary for preparation of the person's defense or for another compelling reason."

In the alternative, the court held that if this statutory basis for release were faulty, release was mandated by the due process clause of the fifth amendment. The court made clear that Zannino's release was in fact temporary, "only until such time as a final determination is made ... whether he is medically fit to stand trial under any proposed format." If he were then deemed fit, the court explained, he could be returned to detention pending an imminent trial; if he were deemed unable to stand trial, the court would then make a further ruling as to his detention, likely finding his continued release to be constitutionally compelled. The court estimated that it would reach a decision on Zannino's fitness for trial, following receipt of a further report from the panel of cardiologists, in early- to mid-September, 1986.

Because of the district court's alternative holding that Zannino's temporary release is mandated by due process, we cannot resolve this case on non-constitutional grounds alone. Furthermore, the district court's statutory ground of decision--its invocation of the temporary release provision of 18 U.S.C. Sec. 3142(i)--was premised wholly on the court's determination that release under Sec. 3142(i) was necessary for the "compelling reason" of averting the serious constitutional problems it thought posed by continued detention. Therefore, our holding, infra, that continued detention pending an imminent medical finding will not offend due process renders it unnecessary for this court to consider whether Sec. 3142(i) could provide a proper basis for temporary release in a case such as this. Instead, we now proceed to a consideration of the constitutional question.

As an initial matter, the parties dispute the proper standard of review to be applied to pretrial bail orders under the Bail Reform Act. The government urges that we undertake "[a]n independent review of the bail decision tempered by deference to the district court's firsthand judgment of the situation," the standard applied by this court to post-conviction bail decisions under United States v. Bayko, 774 F.2d 516, 520 (1st Cir.1985). See, e.g., United States v. Portes, 786 F.2d 758, 762 (7th Cir.1986); United States v. Hurtado, 779 F.2d 1467, 1470-73 (11th Cir.1985); United States v. Maull, 773 F.2d 1479, 1487 (8th Cir.1985) (en banc); United States v. Motamedi, 767 F.2d 1403, 1406 (9th Cir.1985); United States v. Hazime, 762 F.2d 34, 36-37 (6th Cir.1985); United States v. Delker, 757 F.2d 1390, 1399-1400 (3d Cir.1985). Zannino argues that the proper standard is a "clearly erroneous" or "abuse of discretion" standard. See, e.g., United States v. Fortna, 769 F.2d 243, 250 (5th Cir.1985); United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir.1985); United States v. Williams, 753 F.2d 329, 333 n. 12 (4th Cir.1985). However, we are not here called upon to review a pretrial release decision made by application of the standards set out in the Bail Reform Act, 18 U.S.C. Sec. 3142. Temporary release was ordered here in order to avert "serious questions as to the constitutionality of the 1984 Bail Reform Act as applied here," or, in the alternative, because compelled by the fifth amendment. No matter what the proper standard of review of pretrial release decisions based on statutory criteria may be, there is no question that we must make a de novo determination--with deference to the district court's underlying findings of fact--as to the instant constitutional question. Accordingly, we do not decide what standard ordinarily should govern our review of pretrial bail decisions.

Zannino argues, relying on the recent opinion of the Second Circuit in United States v. Salerno, 794 F.2d 64 (2d Cir.1986), that the Bail Reform Act is facially unconstitutional in that it provides for pretrial detention solely on the ground 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). However, we are in agreement with the dissenting opinion of Chief Judge Feinberg in Salerno that this aspect of the Act does not violate substantive due process. We adopt the reasoning stated in Part I of Chief Judge Feinberg's opinion. All other circuits which have considered the question have found no violation of the fifth amendment. See United States v. Perry, 788 F.2d 100, 112-13 (3d Cir.1986); United States v. Portes, 786 F.2d 758, 767 (7th Cir.1986). Zannino has not specifically suggested any other constitutional flaw on the face of the Bail Reform Act.

We turn, then, to Zannino's primary contention that the Act cannot constitutionally be applied to subject him to any further pretrial detention, since the resulting length of detention is substantial enough to constitute "punishment" without trial, in violation of the due process clause of the fifth amendment. We acknowledge that, as Zannino argues, other courts have found pretrial detention too prolonged to withstand due process challenge when imposed for periods of time substantially shorter than the sixteen months that Zannino will have been in custody as of mid-September, 1986. See, e.g., United States v. Melendez-Carrion, 790 F.2d 984, 1008 (2d Cir.1986) (Feinberg, C.J., concurring) (eight months); United States v. Theron, 782 F.2d 1510, 1516 (10th Cir.1986) (over four months); United States v. LoFranco, 620...