U.S. v. Tortora

• Decision Date: 06 November 1990
• Docket Number: No. 90-2067,90-2067
• Citation: 922 F.2d 880
• Parties: UNITED STATES of America, Appellant, v. Carmen A. TORTORA, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 880

922 F.2d 880

UNITED STATES of America, Appellant, v. Carmen A. TORTORA, Defendant, Appellee.

No. 90-2067.

United States Court of Appeals First Circuit.

Heard Nov. 6, 1990.

Decided Dec. 27, 1990.

James D. Herbert, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., and Jeffrey Auerhahn and Gregg L. Sullivan, Asst. U.S. Attys., were on brief for U.S.

Anthony M. Cardinale, Boston, Mass., for defendant, appellee.

Before BREYER, Chief Judge, BROWN ^*, Senior Circuit Judge, and SELYA, Circuit Judge.

SELYA, Circuit Judge.

The government appeals an order of the United States District Court for the District of Massachusetts releasing defendant-appellee Carmen A. Tortora from pretrial detention. The applicable bail statute provides in relevant part that if a "judicial officer finds that no condition or combination of conditions will reasonably assure ... the safety of any other person and the community," the judicial officer shall order the defendant detained pending trial. 18 U.S.C. Sec. 3142(e) (1988). ¹ We conclude that the district court erred in ordering Tortora's release.

I. STATEMENT OF THE CASE

On March 22, 1990, an indictment was returned which charged Tortora and seven others with various crimes, including violations of the Racketeer Influenced and Corrupt Organizations (RICO) statute, 18 U.S.C. Secs. 1962(c), (d). The eight men were alleged to be members of the Patriarca Family of the Mafia. ² Tortora, said to be a soldier, was charged with committing three predicate crimes in furtherance of the RICO enterprise: conspiring to collect an extension of credit by extortionate means; collecting an extension of credit through extortion; and traveling in aid of racketeering. Tortora was also charged with the commission of three substantive crimes, to wit: extortion, 18 U.S.C. Sec. 894; violation of the Travel Act, 18 U.S.C. Sec. 1952; and conspiracy to violate the Travel Act, 18 U.S.C. Sec. 371.

At the arraignment, the government moved to have appellee detained pending trial pursuant to 18 U.S.C. Sec. 3142. Detention hearings were conducted by a magistrate. ³ He concluded that no set of conditions could reasonably assure the community's safety if appellee were freed. Because he determined pretrial detention to be warranted based on dangerousness, the magistrate did not reach the question of whether there was a sufficient risk of flight to justify detention on that ground as well.

Appellee engaged new counsel and asked the district court to modify or revoke the magistrate's order. A hearing was convened, but no new evidence submitted. The district judge requested that appellee produce a specific release proposal. The proposal was received subsequent to the hearing. The judge found that the suggested conditions reasonably assured the safety of the community and adopted them as the foundation for a release order.

Passing over the boilerplate--the conditions mandated, for example, that the appellee not violate the law, appear at scheduled proceedings, eschew possession of weapons and substance abuse, restrict his travel, etc.--the court's order required the appellee to (1) remain at home twenty-four hours a day, except for a reasonable number of visits to doctors and lawyers, wearing an electronic bracelet; (2) refrain from communicating with any person not approved by the prosecutor and defense counsel; (3) meet with codefendants only in the presence of counsel for the purpose of preparing a defense; (4) allow only one telephone line into his residence, hooking it up to a pen register; and (5) post the residence--a house owned by his brother (who, apparently, agreed to execute the necessary documents)--as security.

We stayed the release order and expedited the government's appeal.

II. STANDARD OF REVIEW

We approach our task mindful of our obligation to afford independent review, tempered by a degree of deference to the determinations made below. See United States v. O'Brien, 895 F.2d 810, 814 (1st Cir.1990). Recognizing that appellate courts are ill-equipped to resolve factbound disputes, this standard cedes particular respect, as a practical matter, to the lower court's factual determinations. See id. at 813; United States v. Bayko, 774 F.2d 516, 520 (1st Cir.1985). Hence, independent review represents an intermediate level of scrutiny, more rigorous than the abuse-of-discretion or clear-error standards, but stopping short of plenary or de novo review. See Bayko, 774 F.2d at 519. "If upon careful review of all the facts and the trial judge's reasons the appeals court concludes that a different result should have been reached, the detention decision may be amended or reversed." O'Brien, 895 F.2d at 814.

This case requires that we be clear about what it is that we are independently reviewing. The district court's release order comprised simply a handwritten notation on the face of the appellee's proposal, declaring that, "[f]or reasons stated at [the 18 October 1990 nonevidentiary] hearing," the listed conditions "will reasonably assure the safety of the community." This conclusory language accomplished very little in the way of finding subsidiary facts or furnishing needed enlightenment to an appellate tribunal. The judge gave no explanation of why he believed the proposed conditions would prove adequate. Nor were these deficits ameliorated by the reference to the October 18 hearing; having reviewed the transcript of that session, we are unable to discover a meaningful articulation of the court's reasoning or discern its rationale.

Were this an appeal of a detention order rather than a release order, the lack of a written statement of particularized reasons would in all probability necessitate vacation of the order. See 18 U.S.C. Sec. 3142(i); see also United States v. Moss, 887 F.2d 333, 338 (1st Cir.1989) (per curiam); United States v. Hurtado, 779 F.2d 1467, 1480 (11th Cir.1985). We believe that, although not specifically required by the statute, a similar statement of reasons should ordinarily accompany release orders in contested cases. Accord United States v. Cook, 880 F.2d 1158, 1162 (10th Cir.1989) (per curiam); United States v. Coleman, 777 F.2d 888, 892 (3d Cir.1985); see also Fed.R.App.P. 9(a) ("Upon entry of an order ... imposing conditions of release, the district court shall state in writing the reasons for the action taken."). Only in this way will the judicial officer's reasoning be clearly conveyed to the point where an appeals court can most effectively perform its independent review function.

While it would be possible for us merely to set aside the release order and remand for a statement of the lower court's reasons, we believe that step to be unnecessary in this case. It appears from the hearing transcript, albeit only translucently, that the district court did not base its release order on new or different factfinding. The court seems instead to have accepted the subsidiary facts as found by the magistrate, concluding only, for reasons not articulated, that a particular set of conditions never suggested to the magistrate could reasonably assure public safety. ⁴ It is this decision that we must review, in conjunction with the facts as presented in the record and as found by the magistrate, and taking due cognizance of the district court's failure to state its reasons for disturbing the detention order. See O'Brien, 895 F.2d at 816 ("we shall give such deference as we think the care and consideration manifested by the magistrate and district court warrant"); Coleman, 777 F.2d at 892 (where district court does not set forth reasons supporting its conclusion that accused poses no danger upon release, appellate court must afford less than the usual "respectful consideration" to the district court's conclusion). Hence, appellate review can be satisfactorily accomplished on the existing record. See Moss, 887 F.2d at 338 (meaningful review possible if either the judicial officer initially considering the matter or the district judge provides written statement).

Should we independently determine that the release conditions do not reasonably assure community safety, we can either revise the conditions or reverse the order. The first of these options, however, may be more apparent than real. While we could, of course, modify the stated conditions if, on the record before us, there were minor, self-evident adjustments that would make the release conditions adequate, an appellate tribunal is at a considerable disadvantage. Unlike the district court, we do not have a nisi prius function and must, therefore, go very slowly in attempting to fashion neoteric conditions of release--particularly where, as here, there is little evidence of other alternatives and the court below has afforded us no cohesive explanation of its decision. ⁵

III. DISCUSSION

A. Detention for Dangerousness.

The Bail Reform Act of 1984, 18 U.S.C. Secs. 3141-3156, represented a watershed in the criminal law. It transformed preexisting practice in very significant ways, providing among other things for the pretrial detention of persons charged with certain serious felonies on the ground of dangerousness--a ground theretofore not cognizable. See United States v. Zannino, 761 F.2d 52 (1st Cir.1985) (upholding pretrial detention under 1984 Act of dangerous defendant released on bail under preexisting law); see also S.Rep. No. 225, 98th Cong., 2d Sess. 4-12, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3187-95. To arm this new weapon, the government was obliged to prove clearly and convincingly that no set of release conditions would reasonably assure the community's safety. 18 U.S.C. Sec. 3142(e). In determining whether suitable conditions existed, a judicial officer was required to take into account the following: (1) the nature and circumstances of the offense charged; (2) the weight of the evidence as to guilt or innocence; (3) the history and characteristics of the accused, including past conduct;...