U.S. v. Giordano, 0580061CR.

• Decision Date: 11 May 2005
• Docket Number: No. 0580061CR.,0580061CR.
• Citation: 370 F.Supp.2d 1256
• Parties: UNITED STATES of America, Plaintiff, v. Anthony F. GIORDANO, Defendant.
• Court: U.S. District Court — Southern District of Florida

370 F.Supp.2d 1256

UNITED STATES of America, Plaintiff, v. Anthony F. GIORDANO, Defendant.

No. 0580061CR.

United States District Court, S.D. Florida.

May 11, 2005.

Rolando Garcia, Esq., United States Attorney's Office, PTS Officer, Pretrial Services Office, Probation Officer, United States Probation Office, West Palm Beach, FL, for Plaintiff.

Donald I. Bierman, Bierman Shohat Loewy & Klein, Miami, FL, Bruce Alan Zimet, Fort Lauderdale, FL, Jon A. Sale, Sale & Kuehne Bank of America Tower, Miami, FL, for Defendant.

ORDER DENYING MOTION FOR PRETRIAL DETENTION

TORRES, United States Magistrate Judge.

This matter is before this Court on the Government's motion to detain defendant Anthony F. Giordano ("defendant" or "Giordano") without bond pending his trial, in accordance with the Bail Reform Act, 18 U.S.C. § 3142. The defendant was arrested pursuant to the Grand Jury's Indictment that charged him with thirty-five (35) counts of conspiracy, mail fraud, wire fraud, and money laundering in violation of 18 U.S.C. §§ 2, 371, 1341, 1343, 1956 and 1957. The defendant is not charged with a crime of violence or a narcotic crime, nor does he have any past criminal history, which are predicates for a presumption of detention and necessary for the Government to seek to detention of this defendant as a danger to the community under 18 U.S.C. § 3142(f)(1). The Government is thus entitled to move for detention only on the argument that the defendant poses a serious risk of flight under 18 U.S.C. § 3142(f)(2)(A).

A detention hearing, pursuant to section 3142(f)(2)(A), was held on April 27, 2005, during which the Court considered the Government's proffer and evidence, evidence offered by the defendant that he did not pose a risk of flight, and the Pretrial Services Report that recommended no pretrial detention. Although the Government presented a good faith argument for detention based upon risk of flight, the Court concluded that the Government had not presented sufficient evidence under a preponderance of evidence standard to prove that this risk was serious enough to require detention. The Court found that there were bond conditions that could be imposed in this case that would reasonably assure the Court that Giordano will appear at trial.

The crux of the issue in this case is whether a U.S. citizen who has no prior criminal history, who has substantial family ties in the United States, who has no history of flight or known intentions to flee, who is only 29 years old and likely facing only about 8 to 10 years in prison if convicted on all counts, but who is charged with a long-running fraud that allegedly produced significant sums to finance flight, must be detained before trial. Like other Judges in this District faced with similar cases, this Court is not convinced that this defendant will flee from this indictment if released on a substantial monetary bond that would also be accompanied by strict conditions including home detention and electronic monitoring. The Government's contrary position seems to assume that there is a presumption of detention in any significant economic fraud case where the Government alleges that monies are available to finance flight. Yet, absent Congressional action to amend the statute, section 3142 now presumes that this defendant is eligible for a bond, even in a case involving serious economic crimes that may have been financially lucrative, where no compelling evidence exists that tips the balance against that presumption.

Furthermore, notwithstanding the Government's stated concession during the hearing that it understood it could not seek to detain the defendant strictly based upon danger to the community, it appears that the thrust of the Government's case was still based upon that perceived danger rather than a real serious risk of flight. The evidence of risk of flight was sparse and conclusory, while the evidence submitted showing the alleged pattern of fraudulent conduct on the part of this defendant was more identifiable. The statutory scheme as currently constructed, however, does not support the stronger part of the Government's case that the threat of continuing economic fraud triggers a right to detention. The Court, therefore, finds that there are conditions or combinations of conditions that will reasonably assure the appearance of Giordano at trial. Nevertheless, based upon the Government's intention to appeal this finding, the Court will stay this matter and order the defendant detained pending the District Judge's de novo determination of the Government's appeal pursuant to 18 U.S.C. § 3145(a)(1).

I. APPLICABLE PRINCIPLES OF LAW

A. The Bail Reform Act

The Bail Reform Act of 1984, 18 U.S.C. § 3141, et seq., sets forth the applicable principles of law this Court must follow in order to release or detain Giordano prior to trial. This statute was enacted in response to what Congress perceived to be a crisis in the area of federal bail determinations. Before 1984, the concept of future dangerousness of a criminal defendant that would be posed if the defendant was released on bail was not considered except in capital cases. See Bail Reform Act of 1966, 18 U.S.C. § 3148 (1982), repealed by Bail Reform Act of 1984, Pub.L. No. 98-473, 98 Stat.1976 (1984). In all other cases, bail and other conditions of release were imposed solely to assure the appearance of a defendant at trial. E.g., United States v. Himler, 797 F.2d 156, 159 (3d Cir.1986). Congress intended to expand the number of cases where defendants could be detained before trial based upon dangerousness, beyond just capital cases. "Congress hoped to give the courts adequate authority to make release decisions that give appropriate recognition to the danger a person may pose to others if released." United States v. Salerno, 481 U.S. 739 744, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (quoting S.Rep. No. 98-225, at 3).

Under this new expanded statute, a court is required to order pretrial release on personal recognizance or upon the execution of an unsecured appearance bond "unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community." 18 U.S.C. § 3142(b). In that case, the judicial officer must consider a number of conditions that will accompany the release order to satisfy itself that those predominant statutory goals are met. 18 U.S.C. § 3142(c). "If, after a hearing pursuant to [section 1342(f)], the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, he shall order the detention of the person prior to trial." 18 U.S.C. § 3142(e).

After the passage of the amended and broader statute, several constitutional challenges were raised to the expanded dangerousness determination, based upon the argument that it was unconstitutional to detain someone for an extended period without a trial. Eventually, these challenges reached the Supreme Court for its consideration in United States v. Salerno. Chief Justice Rehnquist's opinion rejected those constitutional challenges based upon the compelling regulatory interest that the Government has in reasonably safeguarding the community from further criminal acts. 480 U.S. at 749-51, 107 S.Ct. 1492. The Court's opinion expressly relied upon the procedural protections found in section 3142(f) to guard against unwarranted or unjustified intrusion into personal liberty. Id. at 742, 747-52, 107 S.Ct. 1492. As the Chief Justice explained:

The Bail Reform Act carefully limits the circumstances under which detention may be sought to the most serious of crimes. See 18 U.S.C. § 3142(f) (detention hearings available if case involves crimes of violence, offenses for which the sentence is life imprisonment or death, serious drug offenses, or certain repeat offenders).

Id. at 747, 107 S.Ct. 1492 (emphasis added). Moreover, the individual's liberty interests will be constitutionally protected based upon "Congress' careful delineation of the circumstances under which detention will be permitted...." Id. at 751, 107 S.Ct. 1492.

Accordingly, section 3142(f) is central to the detention determination because it sets forth the statutory mechanism that insulates this statute and this process from constitutional attack. Section 3142(f) provides in material part:

The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in subsection (c) of this section will reasonably assure the appearance of such person as required and the safety of any other person and the community —

(1) upon motion of the attorney for the Government, in a case that involves —

(A) a crime of violence, or an offense listed in section 2332b(g)(5)(B) for which a maximum term of imprisonment of 10 years or more is prescribed;

(B) an offense for which the maximum sentence is life imprisonment or death;

(C) an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C.App.1901 et seq.); or

(D) any felony if such person has been convicted of two or more offenses described in subparagraphs (A) through (C) of this paragraph, or two or more State or local offenses that would have been offenses described in subparagraphs (A) through (C) of this paragraph if a circumstance giving rise to Federal jurisdiction had existed, or a combination of such offenses; or

(2) Upon motion of the attorney for the Government or upon the judicial officer's own motion, in a case that involves —

(A) a serious risk that such person will flee; or

(B) a serious risk that such person will obstruct or attempt to obstruct justice, or...