United States v. Cirrincione

• Decision Date: 16 January 1985
• Docket Number: No. 82 CR 778.,82 CR 778.
• Citation: 600 F. Supp. 1436
• Court: U.S. District Court — Northern District of Illinois
• Parties: UNITED STATES of America v. Biagio CIRRINCIONE and Tom Cirrincione, et al.

600 F. Supp. 1436

UNITED STATES of America v. Biagio CIRRINCIONE and Tom Cirrincione, et al.

No. 82 CR 778.

United States District Court, N.D. Illinois, E.D.

January 16, 1985.

Joseph Hartzler, David Stetler, Asst. U.S. Attys., Chicago, Ill., for plaintiff.

Edward M. Genson, Jeffrey B. Steinback, Thomas A. Corfman, Genson & Steinback, Chicago, Ill., for defendant Tom Cirrincione.

Patrick Tuite, David Mejia, Patrick A. Tuite, Ltd., Chicago, Ill., for defendant Biagio Cirrincione.

MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

This case is before the court on the motions for release on bond pending appeal of defendants Biagio Cirrincione and Tom Cirrincione. On August 8, 1984, after a jury trial, defendants were found guilty of violations of federal law in connection with the bombing of certain restaurants. On October 18, 1984, the court denied both defendants' motions for new trial and for judgment of acquittal, and sentenced them to periods of incarceration. Both have filed Notices of Appeal, and now move the court for release on bond pending appeal. Defendants contend that they meet the standards for release under 18 U.S.C. § 3143 of the Bail Reform Act of 1984. Alternatively, defendants have argued that application of the Bail Reform Act to them would violate the ex post facto clause, Article I, § 9 of the Constitution.

Standards Governing Bond Pending Appeal

On October 12, 1984, the President signed into law the continuing appropriations resolution, Public Law No. 98-473, 98 Stat. 1837. Title II of that Public Law is the Comprehensive Crime Control Act of 1984, Chapter I of which contains substantial revisions of the law governing bond pending appeal. See Bail Reform Act of 1984, §§ 202-210 (codified at 18 U.S.C. §§ 3141-3150, 3041-3043, 3062) (the "Act"). As the Act contains no effective date, it is clear that it became effective on October 12, 1984, the date of enactment. United States v. Gavrilovic, 551 F.2d 1099, 1103 (8th Cir.1977) (citing Arnold v. United States, 13 U.S. (9 Cranch) 103, 119 (1815)). See U.S. Department of Justice, Handbook on the Comprehensive Crime Control Act of 1984 and Other Criminal Statutes Enacted by the 98th Congress, at 27 (Dec. 1984).

The new standards governing bond pending appeal provide that in a case such as this, bond shall be denied unless the court finds:

(1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released ...; and

(2) that the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.

18 U.S.C. § 3143(b). This substantially changes the standards governing bond pending appeal. Before the Act became effective, bond pending appeal could be denied in this case only if "a risk of flight or danger to any other person or to the community is believed to exist, or if it appears that an appeal is frivolous or taken for delay...." 18 U.S.C. § 3148, repealed by Bail Reform Act of 1984, § 203(a). In addition, while the burden of establishing that the defendant will not flee or pose a danger to another person or the community rested with the defendant, Fed.R.App.P. 9(c), amended by Bail Reform Act of 1984, § 210, the burden of establishing that the appeal was frivolous or taken for delay rested with the government. Id. at advisory committee note.

The new standards for bond pending appeal substantially increase the Cirrinciones' burden on this motion. First, amended Appellate Rule 9(c) provides that the defendants carry the burden of establishing, by clear and convincing evidence, both elements of § 3143(b). Second, § 3143(b)(2) requires them to show that their appeal raises a "substantial question of law or fact likely to result in reversal." This is a more stringent test than the previous "frivolous" standard. The legislative history makes clear that the change in wording represents an intentional change in the standard. A Senate Report gives this description of a predecessor to § 3143(b):

Subsection (b) deals with release after sentence of a defendant who has filed an appeal or a petition for a writ of certiorari. Such a person is ... to be detained unless the judicial officer finds by clear and convincing evidence that the defendant is not likely to flee or pose a danger to the safety of any other person or the community. In addition, the court must affirmatively find that the appeal is not taken for the purpose of delay and that it raises a substantial question of law or fact likely to result in reversal or an order for a new trial. This is a further restriction on post-conviction release. Under the current 18 U.S.C. § 1348, release can be denied if it appears that the appeal is frivolous or taken for delay. The change in subsection (b) requires an affirmative finding that the chance of reversal is substantial. This gives recognition to the basic principle that a conviction is presumed to be correct.

S.Rep. No. 97-317, at 57, 97th Cong., 2d Sess. (1982) (concerning S. 1554); see also S.Rep. No. 98-147, at 52-54, 98th Cong., 1st Sess. (1983) (concerning S. 215). The United States Department of Justice, quoting the Senate Report, has also interpreted this change as requiring "an affirmative finding ... that the chance for a reversal is substantial." U.S. Department of Justice, Handbook on the Comprehensive Crime Control Act of 1984 and Other Criminal Statutes Enacted by the 98th Congress, at 10.

The defendants argue that the Act requires nothing more than a nonfrivolous issue on appeal which, if successful, would result in a reversal or an order for a new trial. The Act requires more. It requires either a likelihood — that is something more than a 50% chance — of reversal, or a substantial chance of reversal, or at least a substantial question of law or fact which has not been foreclosed on appeal, for example, by a specific Seventh Circuit precedent which is unlikely to be changed by the Court of Appeals or considered by the Supreme Court.

In their post-trial motions, the defendants raised what the court has called a "serious" issue based on the fact that the defendants were represented by the same lawyer. Dual representation generally raises a serious legal question. However, for the reasons stated in the court's opinion of October 18, 1984 denying the post-trial motions, the attorney's conflict of interest was knowingly waived by the defendants. The issue is not substantial and the chance for reversal or a new trial order is neither likely nor substantial. Since the defendants cannot succeed under any of these possible standards, the court declines to define more specifically the requirements of the Act.

The government has also urged that Biagio Cirrincione has not demonstrated by clear and convincing evidence that he is not likely to flee. The court has reserved ruling on this issue pending receipt of further information from the parties.

The court is convinced, and the government does not disagree, that Tom Cirrincione neither poses a danger to the community nor a risk of flight. The sole reason for denying Tom Cirrincione's motion would be his failure to demonstrate a likelihood or a substantial chance of reversal on appeal. Hence, in his case, application of the Bail Reform Act of 1984 results in incarceration pending appeal where he would otherwise be released. This requires the court to examine the argument that application of the new provisions concerning bond pending appeal in this case violates the federal ex post facto clause.

Ex Post Facto Clause

Article I, § 9 of the United States Constitution prohibits Congress from passing any "ex post facto" law. This clause was adopted to protect an individual's right to fair notice when the government changes "that conduct which will give rise to criminal penalties," Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 992, 51 L.Ed.2d 260 (1977); or "increases punishment beyond what was prescribed when the crime was committed," Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981); or "deprives one charged with crime of any defense available according to law at the time when the act was committed." Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68, 70 L.Ed.2d 216 (1925).

In the most recent ex post facto case decided by the Supreme Court, Weaver v. Graham, 450 U.S. at 29, 101 S.Ct. at 964 (1981), the Court noted that two critical elements must be present for a criminal or penal law to be held ex post facto: it must apply to criminal acts occuring before its enactment into law, and it must disadvantage the offender affected by it. The Bail Reform Act of 1984 facially fits these criteria. First, the Act retrospectively affects all defendants whose crimes occurred before the effective date of the Act, October 12, 1984. Secondly, the Act severely limits the availability of bond pending appeal and is disadvantageous to defendants who routinely seek to delay commencement of their sentences by obtaining release on bail pending appeal.

The Supreme Court has repeatedly recognized, however, that no ex post facto violation occurs by retrospective operation of a purely procedural change in the law even though a particular criminal defendant is thereby disadvantaged. In Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), the Court upheld retroactive application of a statute reversing the roles of judge and jury in determining a sentence of death, despite the fact that the new statute allowed the judge to disregard a jury recommendation of mercy which would have been binding under previous law. In Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925), the Court upheld retroactive application of a statutory amendment eliminating an earlier prohibition against joint trials, despite the contentions of the defendants in those cases that they were thereby...