Filed March 2000.
David Zuercher, Craig Gaumer, U.S. Attorney's Office, Sioux Falls, SD, Attorneys for Plaintiff.
Clint Sargent, Danforth, Meierhenry Meierhenry, Sioux Falls, SD, Attorney for Defendant.
[¶ 1] This matter came before the Court for hearing on March 6, 2000, on the United States Request for Detention of Defendant Totaro (Doc. 71). The Defendant, Ronald N. Totaro, appeared in person and by his counsel of record Clint Sargent, while the United States appeared by its Assistant United States Attorneys, David Zuercher and Craig Gaumer. While the United States' motion was served on the day of the hearing, the Defendant waived his time within which to respond under Local Rule 7.2. The Court has reviewed the United States' motion and the brief in support of that motion, as well as the entire file herein and carefully listened to the arguments of counsel. Based upon that review the Court hereby enters the following findings of fact and conclusions of law.
FINDINGS OF FACT
[¶ 2] Defendant Totaro is charged in a 67 count Superseding Indictment with various counts of wire fraud, mail fraud, money laundering and racketeering.
[¶ 3] On February 2, 1984, Defendant Totaro entered a guilty plea to mail fraud in the United States District Court for the Western District of New York. As a result of that plea Defendant Totaro received a suspended imposition of sentence, three years probation, and a $1000 fine.
[¶ 4] On June 3, 1985, Defendant Totaro entered a guilty plea to mail fraud in the United States District Court for the Western District of New York. As a result of that plea Defendant Totaro received a suspended imposition of sentence, three years probation, and a $1000 fine, the sentence to be concurrent with the sentence described in ¶ 2.
[¶ 5] The Superseding Indictment alleges that wire fraud in the instant case began sometime on or about 1984, while Defendant Totaro was on probation for mail fraud.
[¶ 6] Defendant Totaro has lived at his address of 1017 East Quaker Road, East Aurora, New York, for the past 25 years.
[¶ 7] Defendant Totaro travels to Europe three to four times per year for business reasons.
[¶ 8] Defendant Totaro has a valid passport, which was surrendered to the United States Probation and Pretrial Service office after he was indicted. While the United States proffered testimony that Defendant Totaro has more than one passport the Court concludes that the additional passports are either expired, fully stamped, or otherwise no longer valid.
[¶ 9] The Superseding Indictment alleges significant six figure losses to the victims of the purported scheme.
[¶ 10] Based upon the foregoing facts the Court found that Defendant Totaro posed a risk of flight and a risk of financial harm to the community, but that there was a set of conditions that could reasonably assure the safety of the community and released Defendant Totaro to the Glory House upon conditions more fully set forth in the Order Setting Conditions of Release (Doc. 19).
[¶ 11] Subsequently Defendant Totaro sought modification of the Order Setting Conditions of Release (Doc. 36).
[¶ 12] The Motion for Modification of Conditions of Release was denied by the Court because Defendant Totaro had not complied with the terms and conditions of his agreement to reside at the Glory House. See Doc. 45.
[¶ 13] Defendant Totaro again sought an Amendment of the Order of Release on February 9, 2000, alleging that he had complied with the Court's order. (Doc. 56).
[¶ 14] On February 22, 2000, the Court granted Defendant Totaro's motion to amend the conditions of his release, and directed the United States Pretrial Services Officer to contact a halfway house near Defendant Totaro's home in New York. (Doc. 67.)
[¶ 15] Following the entry of that order the Pretrial Services Officer reported that there were limitations upon halfway house placement and suggested the option of electronic monitoring and the United States moved the Court to detain Defendant Totaro on the basis of the alleged passports in his possession.
CONCLUSIONS OF LAW
[¶ 16] Courts must endeavor to impose the least restrictive bail conditions that will assure both the defendant's appearance at trials as well as the public's safety. See 18 U.S.C. § 3142(c); United States v. Himler, 797 F.2d 156, 159 (3d Cir. 1986).
[¶ 17] The pretrial detention provisions of the Bail Reform Act of 1984 did not signal a Congressional intent to incarcerate wholesale the category of accused persons awaiting trial. Congress was concerned about a small group of individuals who could not be motivated to comply with release conditions, no matter how stringent. The Senate Report states:
There is a small but identifiable group of particularly dangerous defendants as to whom neither the impostion [sic] of stringent release conditions nor the prospect of revocation of release can reasonably assure the safety of the community or other persons. It is with respect to this limited group of offenders that the courts must be given the powers to deny release pending trial. The decision to provide for pretrial detention is in no way a derogation of the importance of the defendant's interest in remaining at liberty prior to trial. . . . It is anticipated that [pretrial release] will continue to be appropriate for the majority of Federal defendants.
S.REP. NO. 225, 98TH CONG., 1ST SESS. 6-7, reprinted in 1984 U.S.C. CAN 3189-90 (footnotes omitted).
[¶ 18] The United States Supreme Court rejected a constitutional challenge to the Bail Reform Act of 1984 in United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). The Court held that the Act did not violate either the Fifth Amendment's guarantee of substantive due process, or the Eighth Amendment's proscription against excessive bail. Moreover the Court noted two safeguards in the Act limiting pretrial detention on grounds of danger to the community: (1) there are only six circumstances in which pretrial detention can be ordered on grounds of danger to the community; and (2) the government has a heightened burden of proof — "clear and convincing evidence" as opposed to a preponderance of the evidence. Id. at 750, 107 S.Ct. at 2103.
[¶ 19] The Court's decision relied heavily upon the narrowness of the Act's effect upon defendants awaiting trial:
In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception. We hold that the provisions for pretrial detention in the Bail Reform Act of 1984 fall within that carefully limited exception. The Act authorizes the detention prior to trial of arrestees charged with serious felonies who are found after an adversary hearing to pose a threat to the safety of individuals or to the community which no condition of release can dispel.United States v. Salerno, 481 U.S. at 755; 107 S.Ct. at 2105.
[¶ 20] The issue presented here is whether Defendant Totaro is, as the government argues, a member of that small group of individuals who are not entitled to pretrial release under the Act.
[¶ 21] Before considering detention the judicial officer must first consider whether there are any conditions or combination of conditions which "will reasonably assure the appearance of the person as required and the safety of any other person and the community." § 18 U.S.C. § 3142(c). The Act sets forth a number of conditions to be considered, including:
• third-party custody;
• employment or educational requirements;
• restrictions on personal associations, place of abode or travel;
• restrictions on contact with alleged victims or potential witnesses;
• supervision by the Pretrial Services Office, including reporting requirements;
• imposition of a curfew;
• prohibition against possessing a firearm, destructive device, or other dangerous weapon;
• restrictions on alcohol or narcotic use;
• medical, psychological, or psychiatric treatment, including residence in any treatment facility;
• execution of a property bond or posting of other security;
• return to custody for specified hours following release for employment, schooling, or other limited purposes; and
• "any other condition that is reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community."18 U.S.C. § 3142(c)(B).
[¶ 22] "The wide range of restrictions available ensures, as Congress intended, that very few defendants will be subject to pretrial detention." United States v. Orta, 760 F.2d 887, 891 (8th Cir. 1985) (en banc).
[¶ 23] Undoubtedly, the safety of the community can be reasonably assured without being absolutely guaranteed. See United States v. Orta, 760 F.2d at 891-92. Requiring that release conditions guarantee the community's safety would fly in the teeth of Congress's clear intent that only a limited number of defendants be subject to pretrial detention. See S.Rep. No. 225, supra, 1984 USCode Cong. Admin. News at 3189. Thus, the courts cannot demand more than an "objectively reasonable assurance of community safety." Orta, 760 F.2d at 892.
[¶ 24] There is a combinations of conditions of release that will reasonably assure, but not guarantee the defendant's presence at trial and assure the safety of the community. Those conditions are:
• The Defendant shall not commit any offense in violation of federal, state or local law while on release;
• The Defendant shall immediately advise the court, defense counsel, and the United States Attorney in writing of any change in address and telephone number;
• The Defendant promises to appear at all proceedings as required and to surrender for service of any sentence imposed;
• The Defendant executes an unsecured bond binding the Defendant to pay the United States the sum of One Hundred Thousand dollars ($100,000) in the event of a failure to appear as required or to surrender for service of any sentence imposed;
• The Defendant shall report to Pretrial Services as directed;
• The Defendant shall maintain or actively seek employment;
• The Defendant shall not work in any business related to providing financial services of any kind;
• The Defendant shall surrender all passports, whether currently valid or not, to the Pretrial Services Officer;
• The Defendant shall avoid all contact, directly or indirectly, (except by counsel), with any of the persons named in the Superseding Indictment, as well as Merton Ikenberry and John Appelhans;
• The Defendant shall participate in a program of Home Detention whereby the Defendant is restricted to his residence at all times except for employment; religious services; medical, substance abuse or mental health treatments; attorney visits; court appearances; court-ordered obligations or other activities as pre-approved by the Pretrial Services officer;
• The program of Home Detention will include electronic monitoring and the Defendant shall pay all or part of the cost of the program based upon his ability to pay as determined by the Pretrial Services officer.
[¶ 25] Based upon the foregoing discussion it is hereby
[¶ 26] ORDERED that the United States Request for Detention (Doc. 71) is DENIED.