1 of 10 DOCUMENTS

PRIOR HISTORY:

[***1]

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

DISPOSITION:

794 F.2d 64, reversed.

CORE TERMS: detention, bail, pretrial detention, arrestee, Eighth Amendment, Bail Reform Act, excessive, flight, detain, clear and convincing evidence, indictment, presumption of innocence, probable cause, judicial officer, future dangerousness, punitive, excessive bail, sentenced, detained, detainee, safeguard, pretrial, juvenile, arrest, authorize, arrested, innocent, adversary hearing, right to bail, proffer

DECISION:

Provisions of Bail Reform Act of 1984 (18 USCS 3141 et seq.) allowing pretrial detention without bail on ground of dangerousness held not to violate either (1) bail clause of Eighth Amendment, or (2) due process.

SUMMARY:

Under particular conditions, the Bail Reform Act of 1984 (18 USCS 3141 et seq.) permits a federal court to detain an arrestee without bail, pending trial, on the ground of such an arrestee's dangerousness to any other person and to the community. Two defendants were arrested after being indicted on numerous counts of racketeering activity--including fraud, extortion, gambling, and conspiracy to commit murder--as well as other federal crimes. At a hearing pursuant to the Bail Reform Act in the United States District Court for the Southern District of New York, the Federal Government presented evidence--contested by the defendants--that (1) the defendants were a "boss" and a "captain," respectively, in an organized crime "family"; (2) both defendants had participated in conspiracies to aid their illegitimate enterprises through violent means; and (3) one defendant had personally participated in two murder conspiracies. The District Court (1) granted the government's motion for pretrial detention under the Act on the grounds of dangerousness, and (2) expressed the view that the evidence of the two defendants' present danger to the community was overwhelming (631 F Supp 1364). On appeal, the United States Court of Appeals for the Second Circuit ruled that the District Court's pretrial detention order ought to be vacated, expressing the view that (1) pretrial detention of the two defendants on the ground of dangerousness met the Act's statutory conditions; but (2) the Bail Reform Act's authorization of pretrial detention on the ground of dangerousness to the community was repugnant to the Federal Constitution's concept of substantive due process, which concept, the Court of Appeals reasoned, prohibited a total deprivation of liberty simply as a means of preventing future crimes (794 F2d 64).

On certiorari, the United States Supreme Court reversed. In an opinion by Rehnquist, Ch. J., joined by White, Blackmun, Powell, O'Connor, and Scalia, JJ., it was held that the contested provisions of the Bail Reform Act--which allowed a federal court to detain an arrestee pending trial if the Federal Government demonstrated by clear and convincing evidence after an adversary hearing that no release conditions would reasonably assure the safety of any other person and the community--did not, on their face, violate (1) substantive due process under the Fifth Amendment, (2) procedural due process under the Fifth Amendment, or (3) the Eighth Amendment guaranty against excessive bail.

Marshall, J., joined by Brennan, J., dissented, expressing the view that (1) due to developments after the District Court issued its pretrial detention order, there was a substantial question whether, within the meaning of Article III of the Constitution, a live case or controversy remained; and (2) under the due process clause of the Fifth Amendment and the bail clause of the Eighth Amendment, the contested Bail Reform Act provisions--which permitted indefinite detention of an indicted defendant, pending the trial of allegations which were legally presumed to be untrue, if the Federal Government showed to the satisfaction of a judge that the defendant was likely to commit crimes, unrelated to the pending charges, at any time in the future--were invalid as infringing upon the constitutionally established presumption of innocence.

Stevens, J., dissented, expressing the view that (1) there might be times when the government's interest in protecting the safety of the community would justify the brief detention of a person who had not committed any crime; but (2) the provisions of the Bail Reform Act which allowed pretrial detention on the basis of future dangerousness to the community were unconstitutional; and (3) there was a possibility that, in the case at hand, the Federal Government was more interested in litigating a "test case" than in resolving an actual controversy concerning the two defendants' threat to the safety of the community.

LEXIS HEADNOTES - Classified to U.S. Digest Lawyers' Edition:

BAIL AND RECOGNIZANCE § 7

CONSTITUTIONAL LAW § 853.4

Bail Reform Act -- pretrial detention without bail -- substantive due process --

Headnote: [1A] [1B] [1C] [1D] [1E] [1F] [1G]

The pretrial detention provisions of the Bail Reform Act of 1984 (18 USCS 3141 et seq.)--which allow a federal court to detain arrestees without bail, pending trial, if the Federal Government demonstrates by clear and convincing evidence after an adversary hearing that no release conditions will reasonably assure the safety of any other person and the community--do not, on their face, violate substantive due process under the Fifth Amendment to the United States Constitution, because (1) the pretrial detention provisions are regulatory, not penal; and (2) under the limits imposed by the Act, the Federal Government's legitimate and compelling interest in preventing crime by such arrestees outweighs the arrestees' fundamental interest in liberty. (Marshall, Brennan, and Stevens, JJ., dissented from this holding.)

BAIL AND RECOGNIZANCE § 7

CONSTITUTIONAL LAW § 831.5

Bail Reform Act -- pretrial detention without bail -- procedural due process --

Headnote: [2A] [2B] [2C] [2D] [2E] [2F]

The pretrial detention provisions of the Bail Reform Act of 1984 (18 USCS 3141 et seq.)--which permit the detention of certain arrestees without bail on the grounds of dangerousness to any other person and to the community--do not, on their face, violate procedural due process under the Fifth Amendment to the United States Constitution, because the procedures under the Act by which a judicial officer evaluates the likelihood of future dangerousness are specifically designed to further the accuracy of that determination, where (1) there is nothing inherently unattainable about a prediction of future criminal conduct; (2) detainees have a right to counsel at a detention hearing; (3) detainees may testify on their own behalf; (4) detainees may present information by proffer or otherwise; (5) detainees may cross-examine witnesses who appear at such a hearing; (6) the judicial officer charged with the responsibility of determining the appropriateness of detention is guided by statutorily enumerated factors, which include (a) the nature and circumstances of the charges, (b) the weight of the evidence, (c) the history and characteristics of the putative offender, and (d) the danger to the community; (7) the government must prove its case by clear and convincing evidence; (8) the judicial officer must include written findings of fact and a written statement of reasons for the decision to detain; and (9) the Act provides for immediate appellate review of the detention decision. (Marshall, Brennan, and Stevens, JJ., dissented in part from this holding).

BAIL AND RECOGNIZANCE § 7

Bail Reform Act -- pretrial detention without bail -- Eighth Amendment --

Headnote: [3A] [3B] [3C] [3D] [3E] [3F] [3G]

The pretrial detention provisions of the Bail Reform Act of 1984 (18 USCS 3141 et seq.)--which permit the pretrial detention, without bail, of certain arrestees on the ground of dangerousness to any other person and to the community--do not, on their face, violate the clause of the Eighth Amendment of the United States Constitution which provides that excessive bail shall not be required, because, (1) even if the bail clause--which says nothing about whether bail shall be available at all--imposes substantive limitations on Congress' power to define the classes of criminal arrestees to be admitted to bail, the clause does not categorically prohibit the government from pursuing compelling interests other than the risk of flight through the regulation of pretrial release; (2) in the Bail Reform Act, Congress has mandated pretrial detention on the basis of a legitimate and compelling interest in the prevention of crime by arrestees who have been shown to be dangerous to any other person and to the community; and (3) the government's Bail Reform Act response of pretrial detention is not excessive in light of the interest asserted. (Marshall, Brennan, and Stevens, JJ., dissented from this holding.)

APPEAL § 1659

mootness -- pretrial detention -- sentence in unrelated proceeding --

Headnote: [4A] [4B]

A pretrial detainee's challenge to the constitutionality of the pretrial detention provisions of the Bail Reform Act of 1984 (18 USCS 3141 et seq.) remains alive and properly presented on certiorari for resolution by the United States Supreme Court--even though the detainee has subsequently been sentenced in unrelated proceedings before a different judge--where (1) the detainee has not been confined pursuant to the unrelated sentence, and (2) a Federal District Court's pretrial detention order in the case at hand is the authority for the detainee's present incarceration. (Marshall, Brennan, and Stevens, JJ., dissented in part from this holding.)

BAIL AND RECOGNIZANCE § 6

CONSTITUTIONAL LAW § 930

STATUTES § 13

Bail Reform Act -- facial challenge -- overbreadth --

Headnote: [5]

In a facial challenge to a legislative act, a challenger must establish that no set of circumstances exists under which the act would be valid; the fact that, as to criminal trials, the Bail Reform Act of 1984 (18 USCS 3141 et seq.) might operate unconstitutionally under some conceivable set of circumstances is insufficient to render the Act wholly invalid, since the United States Supreme Court has not recognized an "overbreadth" doctrine outside the limited context of the First Amendment to the United States Constitution.

CONSTITUTIONAL LAW § 514

substantive and procedural due process --

Headnote: [6]

The due process clause of the Fifth Amendment to the United States Constitution protects individuals against two types of government action: (1) "substantive" due process prevents the government from engaging in conduct that (a) shocks the conscience, (b) or interferes with the rights implicit in the concept of ordered liberty; and (2) even if government action depriving a person of life, liberty, or property survives substantive due process scrutiny, "procedural" due process requires that such government action be implemented in a fair manner.

BAIL AND RECOGNIZANCE § 7

CONSTITUTIONAL LAW § 853.4

STATUTES § 145.4

Bail Reform Act -- pretrial detention without bail -- due process -- regulation -- legislative history --

Headnote: [7A] [7B] [7C] [7D]

For the purpose of substantive due process analysis under the Fifth Amendment to the United States Constitution, the restrictions on liberty imposed by the pretrial detention provisions of the Bail Reform Act of 1984 (18 USCS 3141 et seq.) constitute permissible regulation rather than impermissible punishment, where (1) the legislative history of the Act indicates that Congress did not formulate the pretrial detention provisions (a) as punishment for dangerous individuals, but (b) as a potential means of achieving the legitimate regulatory goal of preventing danger to the community; and (2) the incidents of pretrial detention are not excessive in relation to the danger-prevention goal, since (a) the Act limits detention to the most serious of crimes, (b) the arrestee is entitled to a prompt detention hearing, (c) the maximum length of pretrial detention is limited by the stringent time limitations of the Speedy Trial Act (18 USCS 3161 et seq.), and (d) the conditions of confinement envisioned by the Act--to the extent practicable, in facilities separate from persons awaiting or serving sentences, or being held in custody pending appeal--appear to reflect the regulatory goal relied upon by the government. (Marshall, Brennan, and Stevens, JJ., dissented in part from this holding.)

CONSTITUTIONAL LAW § 848

STATUTES § 91

substantive due process -- punishment -- legislative intent --

Headnote: [8]

For the purpose of substantive due process analysis under the Fifth Amendment to the United States Constitution, the mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment; in order to determine whether a restriction on liberty constitutes impermissible punishment or permissible regulation, the United States Supreme Court will first look to legislative intent; unless Congress expressly intends to impose punitive restrictions, the punitive/regulatory distinction turns on whether (1) an alternative purpose, to which the restriction may rationally be connected, is assignable for the restriction, and (2) the restriction appears excessive in relation to the alternative purpose assigned to the restriction. (Marshall, Brennan, and Stevens, JJ., dissented in part from this holding.)

CONSTITUTIONAL LAW § 528.3

due process -- detention without conviction -- war -- aliens -- mental incompetents -- juveniles -- arrestees --

Headnote: [9A] [9B]

Despite the general rule of substantive due process, under the Fifth Amendment of the United States Constitution, that the government may not detain a person prior to a judgment of guilt in a criminal trial, a number of exceptions exist whereby the government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest, where, for example, a government may detain (1) individuals whom the government believes to be dangerous, during times of war or insurrection; (2) potentially dangerous resident aliens, pending deportation proceedings; (3) mentally unstable individuals who present a danger to the public; (4) dangerous criminal defendants who become incompetent to stand trial; (5) juvenile arrestees, prior to trial, when they present a continuing danger to the community; (6) arrestees who are suspected of a crime, until a neutral magistrate determines whether probable cause exists; and (7) arrestees, prior to trial, when they present either a risk of flight or a danger to witnesses.

BAIL AND RECOGNIZANCE § 7

CONSTITUTIONAL LAW § 853.4

Bail Reform Act -- pretrial detention without bail -- substantive due process --

Headnote: [10A] [10B]

For the purpose of determining whether the pretrial detention provisions of the Bail Reform Act of 1984 (18 USCS 3141 et seq.) violate substantive due process under the Fifth Amendment of the United States Constitution, the Federal Government's legitimate and compelling interest in preventing crimes by arrestees outweighs such arrestees' fundamental interest in liberty, where (1) the Act operates to detain without bail only those individuals who have been arrested for a specific category of extremely serious offenses; (2) Congress has specifically found that such individuals are far more likely to be responsible for dangerous acts in the community after arrest; (3) the government must demonstrate probable cause to believe that the charged crime has been committed by such an arrestee; and (4) in a full-blown adversary hearing, the government must convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person. (Marshall, Brennan, and Stevens, JJ., dissented from this holding.)

BAIL AND RECOGNIZANCE § 7

criminal case -- exceptions --

Headnote: [11]

A court may refuse bail in (1) a capital case, or (2) a criminal case in which the defendant presents a threat to the judicial process by intimidating witnesses. (Marshall and Brennan, JJ., dissented in part from this holding.)

BAIL AND RECOGNIZANCE § 6

criminal case -- function --

Headnote: [12]

A primary function of bail is to safeguard the courts' role in adjudicating the guilt or innocence of criminal defendants.

BAIL AND RECOGNIZANCE § 7.5

excessive amount --

Headnote: [13]

Pursuant to the clause of the Eighth Amendment to the United States Constitution which provides that excessive bail shall not be required, when the government has admitted that its only interest is in preventing flight, bail must be set by a court at the sum designed to insure that goal, and no more.

BAIL AND RECOGNIZANCE § 7

pretrial detention -- criminal case --

Headnote: [14]

In the United States, liberty is the norm, and detention prior to a criminal trial, or without trial, is the carefully limited exception.

SYLLABUS:

The Bail Reform Act of 1984 (Act) requires courts to detain prior to trial arrestees charged with certain serious felonies if the Government demonstrates by clear and convincing evidence after an adversary hearing that no release conditions "will reasonably assure ... the safety of any other person and the community." 18 U. S. C. § 3142(e) (1982 ed., Supp. III). The Act provides arrestees with a number of procedural rights at the detention hearing, including the right to request counsel, to testify, to present witnesses, to proffer evidence, and to cross-examine other witnesses. The Act also specifies the factors to be considered in making the detention decision, including the nature and seriousness of the charges, the substantiality of the Government's evidence, the arrestee's background [***2] and characteristics, and the nature and seriousness of the danger posed by his release. Under the Act, a decision to detain must be supported by written findings of fact and a statement of reasons, and is immediately reviewable. After a hearing under the Act, the District Court ordered the detention of respondents, who had been charged with 35 acts of racketeering activity. The Court of Appeals reversed, holding that § 3142(e)'s authorization of pretrial detention on the ground of future dangerousness is facially unconstitutional as violative of the Fifth Amendment's substantive due process guarantee.

Held:

1. Given the Act's legitimate and compelling regulatory purpose and the procedural protections it offers, § 3142(e) is not facially invalid under the Due Process Clause. Pp. 746-752.

(a) The argument that the Act violates substantive due process because the detention it authorizes constitutes impermissible punishment before trial is unpersuasive. The Act's legislative history clearly indicates that Congress formulated the detention provisions not as punishment for dangerous individuals, but as a potential solution to the pressing societal problem of crimes committed [***3] by persons on release. Preventing danger to the community is a legitimate regulatory goal. Moreover, the incidents of detention under the Act are not excessive in relation to that goal, since the Act carefully limits the circumstances under which detention may be sought to the most serious of crimes, the arrestee is entitled to a prompt hearing, the maximum length of detention is limited by the Speedy Trial Act, and detainees must be housed apart from convicts. Thus, the Act constitutes permissible regulation rather than impermissible punishment. Pp. 746-748.

(b) The Court of Appeals erred in ruling that the Due Process Clause categorically prohibits pretrial detention that is imposed as a regulatory measure on the ground of community danger. The Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest. Such circumstances exist here. The Act narrowly focuses on a particularly acute problem -- crime by arrestees -- in which the Government's interests are overwhelming. Moreover, the Act operates only on individuals who have been arrested for particular extremely serious offenses, and carefully delineates [***4] the circumstances under which detention will be permitted. Pp. 748-751.

(c) The Act's extensive procedural safeguards are specifically designed to further the accuracy of the likelihood-of-future-dangerousness determination, and are sufficient to withstand respondents' facial challenge, since they are more than "adequate to authorize the pretrial detention of at least some [persons] charged with crimes." Schall v. Martin, 467 U.S. 253, 264. Pp. 751-752.

2. Section 3142(e) is not facially unconstitutional as violative of the Excessive Bail Clause of the Eighth Amendment. The contention that the Act violates the Clause because it allows courts essentially to set bail at an infinite amount for reasons not related to the risk of flight is not persuasive. Nothing in the Clause's text limits the Government's interest in the setting of bail solely to the prevention of flight. Where Congress has mandated detention on the basis of some other compelling interest -- here, the public safety -- the Eighth Amendment does not require release on bail. Pp. 752-755.

COUNSEL:

Solicitor General Fried argued the cause for the United States. With him on the briefs were Assistant Attorney [***5] General Weld, Deputy Solicitor General Bryson, Jeffrey P. Minear, Samuel Rosenthal, and Maury S. Epner.

Anthony M. Cardinale argued the cause for respondents. With him on the brief was Kimberly Homan. *

* Briefs of amici curiae urging affirmance were filed for the National Association of Criminal Defense Lawyers by Jon May and Mark King Leban; and for the Public Defender Service by Cheryl M. Long, James Klein, and David A. Reiser.

Briefs of amici curiae were filed for the American Bar Association by Eugene C. Thomas, Charles G. Cole, and David A. Schlueter; for the American Civil Liberties Union et al. by William J. Genego, Dennis E. Curtis, Mark Rosenbaum, Paul Hoffman, Richard Emery, Martin Guggenheim, Alvin Bronstein, and David Goldstein; and for Howard Perry by Allen N. Brunwasser.

JUDGES:

Rehnquist, C. J., delivered the opinion of the Court, in which White, Blackmun, Powell, O'Connor, and Scalia, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 755. Stevens, J., filed a dissenting opinion, post, p. 767.

OPINIONBY:

REHNQUIST

OPINION:

[*741] [**2098] CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

[***6]

The Bail Reform Act of 1984 (Act) allows a federal court to detain an arrestee pending trial if the Government demonstrates by clear and convincing evidence after an adversary hearing that no release conditions "will reasonably assure ... the safety of any other person and the community." The United States Court of Appeals for the Second Circuit struck down this provision of the Act as facially unconstitutional, because, in that court's words, this type of pretrial detention violates "substantive due process." We granted certiorari because of a conflict among the Courts of Appeals regarding the validity of the Act. n1 479 U.S. 929 (1986). We hold that, as against the facial attack mounted by these respondents, the Act fully comports with constitutional requirements. We therefore reverse.

n1 Every other Court of Appeals to have considered the validity of the Bail Reform Act of 1984 has rejected the facial constitutional challenge. United States v. Walker, 805 F.2d 1042 (CA11 1986); United States v. Rodriguez, 803 F.2d 1102 (CA11 1986); United States v. Simpkins, 255 U. S. App. D. C. 306, 801 F.2d 520 (1986); United States v. Zannino, 798 F.2d 544 (CA1 1986); United States v. Perry, 788 F.2d 100 (CA3), cert. denied, 479 U.S. 864 (1986); United States v. Portes, 786 F.2d 758 (CA7 1985).

[***7]

[*742] I

Responding to "the alarming problem of crimes committed by persons on release," S. Rep. No. 98-225, p. 3 (1983), Congress formulated the Bail Reform Act of 1984, 18 U. S. C. § 3141 et seq. (1982 ed., Supp. III), as the solution to a bail crisis in the federal courts. The Act represents the National Legislature's considered response to numerous perceived deficiencies in the [**2099] federal bail process. By providing for sweeping changes in both the way federal courts consider bail applications and the circumstances under which bail is granted, 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." S. Rep. No. 98-225, at 3.

To this end, § 3141(a) of the Act requires a judicial officer to determine whether an arrestee shall be detained. Section 3142(e) provides that "if, after a hearing pursuant to the provisions of subsection (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 [***8] of the person prior to trial." Section 3142(f) provides the arrestee with a number of procedural safeguards. He may request the presence of counsel at the detention hearing, he may testify and present witnesses in his behalf, as well as proffer evidence, and he may cross-examine other witnesses appearing at the hearing. If the judicial officer finds that no conditions of pretrial release can reasonably assure the safety of other persons and the community, he must state his findings of fact in writing, § 3142(i), and support his conclusion with "clear and convincing evidence," § 3142(f).

The judicial officer is not given unbridled discretion in making the detention determination. Congress has specified the considerations relevant to that decision. These factors include the nature and seriousness of the charges, the substantiality of the Government's evidence against the arrestee, the [*743] arrestee's background and characteristics, and the nature and seriousness of the danger posed by the suspect's release. § 3142(g). Should a judicial officer order detention, the detainee is entitled to expedited appellate review of the detention order. § § 3145(b), (c). [***9]

Respondents Anthony Salerno and Vincent Cafaro were arrested on March 21, 1986, after being charged in a 29-count indictment alleging various Racketeer Influenced and Corrupt Organizations Act (RICO) violations, mail and wire fraud offenses, extortion, and various criminal gambling violations. The RICO counts alleged 35 acts of racketeering activity, including fraud, extortion, gambling, and conspiracy to commit murder. At respondents' arraignment, the Government moved to have Salerno and Cafaro detained pursuant to § 3142(e), on the ground that no condition of release would assure the safety of the community or any person. The District Court held a hearing at which the Government made a detailed proffer of evidence. The Government's case showed that Salerno was the "boss" of the Genovese crime family of La Cosa Nostra and that Cafaro was a "captain" in the Genovese family. According to the Government's proffer, based in large part on conversations intercepted by a court-ordered wiretap, the two respondents had participated in wide-ranging conspiracies to aid their illegitimate enterprises through violent means. The Government also offered the testimony of two of its trial [***10] witnesses, who would assert that Salerno personally participated in two murder conspiracies. Salerno opposed the motion for detention, challenging the credibility of the Government's witnesses. He offered the testimony of several character witnesses as well as a letter from his doctor stating that he was suffering from a serious medical condition. Cafaro presented no evidence at the hearing, but instead characterized the wiretap conversations as merely "tough talk."

The District Court granted the Government's detention motion, concluding that the Government had established by [*744] clear and convincing evidence that no condition or combination of conditions of release would ensure the safety of the community or any person:

"The activities of a criminal organization such as the Genovese Family do not [**2100] cease with the arrest of its principals and their release on even the most stringent of bail conditions. The illegal businesses, in place for many years, require constant attention and protection, or they will fail. Under these circumstances, this court recognizes a strong incentive on [***11] the part of its leadership to continue business as usual. When business as usual involves threats, beatings, and murder, the present danger such people pose in the community is self-evident." 631 F.Supp. 1364, 1375 (SDNY 1986). n2

n2 Salerno was subsequently sentenced in unrelated proceedings before a different judge. To this date, however, Salerno has not been confined pursuant to that sentence. The authority for Salerno's present incarceration remains the District Court's pretrial detention order. The case is therefore very much alive and is properly presented for our resolution.

Respondents appealed, contending that to the extent that the Bail Reform Act permits pretrial detention on the ground that the arrestee is likely to commit future crimes, it is unconstitutional on its face. Over a dissent, the United States Court of Appeals for the Second Circuit agreed. 794 F.2d 64 (1986). Although the court agreed that [***12] pretrial detention could be imposed if the defendants were likely to intimidate witnesses or otherwise jeopardize the trial process, it found "§ 3142(e)'s authorization of pretrial detention [on the ground of future dangerousness] repugnant to the concept of substantive due process, which we believe prohibits the total deprivation of liberty simply as a means of preventing future crimes." Id., at 71-72. The court concluded that the Government could not, consistent with due process, detain persons who had not been accused of any crime merely because they were thought to present a danger to the community. Id., at 72, quoting United States v. Melendez-Carrion, 790 F.2d 984, 100-1001 [*745] (CA2 1986) (opinion of Newman, J.). It reasoned that our criminal law system holds persons accountable for past actions, not anticipated future actions. Although a court could detain an arrestee who threatened to flee before trial, such detention would be permissible because it would serve the basic objective of a criminal system -- bringing the accused to trial. The court distinguished our decision in Gerstein v. Pugh, 420 U.S. 103 (1975), in which we upheld police [***13] detention pursuant to arrest. The court construed Gerstein as limiting such detention to the "'administrative steps incident to arrest.'" 794 F.2d, at 74, quoting Gerstein, supra, at 114. The Court of Appeals also found our decision in Schall v. Martin, 467 U.S. 253 (1984), upholding postarrest, pretrial detention of juveniles, inapposite because juveniles have a lesser interest in liberty than do adults. The dissenting judge concluded that on its face, the Bail Reform Act adequately balanced the Federal Government's compelling interests in public safety against the detainee's liberty interests.

A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that the Bail Reform Act might operate unconstitutionally [***14] under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an "overbreadth" doctrine outside the limited context of the First Amendment. Schall v. Martin, supra, at 269, n. 18. We think respondents have failed to shoulder their heavy burden to demonstrate that the Act is "facially" unconstitutional. n3

n3 We intimate no view on the validity of any aspects of the Act that are not relevant to respondents' case. Nor have respondents claimed that the Act is unconstitutional because of the way it was applied to the particular facts of their case.

[*746] [**2101] Respondents present two grounds for invalidating the Bail Reform Act's provisions permitting pretrial detention on the basis of future dangerousness. First, they rely upon the Court of Appeals' conclusion that the Act exceeds the limitations placed upon the Federal Government by the Due Process Clause of the Fifth Amendment. Second, they contend that the Act contravenes [***15] the Eighth Amendment's proscription against excessive bail. We treat these contentions in turn.

The Due Process Clause of the Fifth Amendment provides that "No person shall ... be deprived of life, liberty, or property, without due process of law ...." This Court has held that the Due Process Clause protects individuals against two types of government action. So-called "substantive due process" prevents the government from engaging in conduct that "shocks the conscience," Rochin v. California, 342 U.S. 165, 172 (1952), or interferes with rights "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325-326 (1937). When government action depriving a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). This requirement has traditionally been referred to as "procedural" due process.

[***16] Respondents first argue that the Act violates substantive due process because the pretrial detention it authorizes constitutes impermissible punishment before trial. See Bell v. Wolfish, 441 U.S. 520, 535, and n. 16 (1979). The Government, however, has never argued that pretrial detention could be upheld if it were "punishment." The Court of Appeals assumed that pretrial detention under the Bail Reform Act is regulatory, not penal, and we agree that it is.

As an initial matter, the mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment. Bell v. Wolfish, supra, at [*747] 537. To determine whether a restriction on liberty constitutes impermissible punishment or permissible regulation, we first look to legislative intent. Schall v. Martin, 467 U.S., at 269. Unless Congress expressly intended to impose punitive restrictions, the punitive/regulatory distinction turns on "'whether an alternative purpose to which [the restriction] may rationally [***17] be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].'" Ibid., quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963).

We conclude that the detention imposed by the Act falls on the regulatory side of the dichotomy. The legislative history of the Bail Reform Act clearly indicates that Congress did not formulate the pretrial detention provisions as punishment for dangerous individuals. See S. Rep. No. 98-225, at 8. Congress instead perceived pretrial detention as a potential solution to a pressing societal problem. Id., at 4-7. There is no doubt that preventing danger to the community is a legitimate regulatory goal. Schall v. Martin, supra.

Nor are the incidents of pretrial detention excessive in relation to the regulatory goal Congress sought to achieve. 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 [***18] 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). The arrestee is entitled to a prompt detention hearing, ibid., and the maximum length of pretrial detention is limited by the stringent time limitations of the Speedy Trial [**2102] Act. n4 See 18 U. S. C. § 3161 et seq. (1982 ed. and Supp. III). Moreover, as in Schall v. Martin, the conditions of confinement envisioned by the Act "appear to reflect the regulatory purposes relied upon by the" Government. [*748] 467 U.S., at 270. As in Schall, the statute at issue here requires that detainees be housed in a "facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal." 18 U. S. C. § 3142(i)(2). We conclude, therefore, that the pretrial detention contemplated by the Bail Reform Act is regulatory in nature, and does not constitute punishment before trial in violation of the Due Process Clause.

n4 We intimate no view as to the point at which detention in a particular case might become excessively prolonged, and therefore punitive, in relation to Congress' regulatory goal.

[***19]

The Court of Appeals nevertheless concluded that "the Due Process Clause prohibits pretrial detention on the ground of danger to the community as a regulatory measure, without regard to the duration of the detention." 794 F.2d, at 71. Respondents characterize the Due Process Clause as erecting an impenetrable "wall" in this area that "no governmental interest -- rational, important, compelling or otherwise -- may surmount." Brief for Respondents 16.

We do not think the Clause lays down any such categorical imperative. We have repeatedly held that the Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest. For example, in times of war or insurrection, when society's interest is at its peak, the Government may detain individuals whom the Government believes to be dangerous. See Ludecke v. Watkins, 335 U.S. 160 (1948) (approving unreviewable executive power to detain enemy aliens in time of war); Moyer v. Peabody, 212 U.S. 78, 84-85 (1909) (rejecting due process claim of individual jailed without probable cause by [***20] Governor in time of insurrection). Even outside the exigencies of war, we have found that sufficiently compelling governmental interests can justify detention of dangerous persons. Thus, we have found no absolute constitutional barrier to detention of potentially dangerous resident aliens pending deportation proceedings. Carlson v. Landon, 342 U.S. 524, 537-542 (1952); Wong Wing v. United States, 163 U.S. 228 (1896). We have also held that the government may detain mentally unstable individuals who present a danger [*749] to the public, Addington v. Texas, 441 U.S. 418 (1979), and dangerous defendants who become incompetent to stand trial, Jackson v. Indiana, 406 U.S. 715, 731-739 (1972); Greenwood v. United States, 350 U.S. 366 (1956). We have approved of postarrest regulatory detention of juveniles when they present a continuing danger to the community. Schall v. Martin, supra. Even competent adults may face substantial liberty restrictions as a result of the operation of our criminal justice system. If the police suspect an individual of a crime, they may arrest and hold him until a neutral magistrate determines [***21] whether probable cause exists. Gerstein v. Pugh, 420 U.S. 103 (1975). Finally, respondents concede and the Court of Appeals noted that an arrestee may be incarcerated until trial if he presents a risk of flight, see Bell v. Wolfish, 441 U.S., at 534, or a danger to witnesses.

Respondents characterize all of these cases as exceptions to the "general rule" of substantive due process that the government may not detain a person prior to a judgment of guilt in a criminal trial. Such a "general rule" may freely be conceded, but we think that these cases show a sufficient number of exceptions to the rule that the congressional action challenged here [**2103] can hardly be characterized as totally novel. Given the well-established authority of the government, in special circumstances, to restrain individuals' liberty prior to or even without criminal trial and conviction, we think that the present statute providing for pretrial detention on the basis of dangerousness must be evaluated in precisely the same manner that we evaluated the laws in the cases discussed above.

[***22]

The government's interest in preventing crime by arrestees is both legitimate and compelling. De Veau v. Braisted, 363 U.S. 144, 155 (1960). In Schall, supra, we recognized the strength of the State's interest in preventing juvenile crime. This general concern with crime prevention is no less compelling when the suspects are adults. Indeed, "the [*750] harm suffered by the victim of a crime is not dependent upon the age of the perpetrator." Schall v. Martin, supra, at 264-265. The Bail Reform Act of 1984 responds to an even more particularized governmental interest than the interest we sustained in Schall. The statute we upheld in Schall permitted pretrial detention of any juvenile arrested on any charge after a showing that the individual might commit some undefined further crimes. The Bail Reform Act, in contrast, narrowly focuses on a particularly acute problem in which the Government interests are overwhelming. The Act operates only on individuals who have been arrested for [***23] a specific category of extremely serious offenses. 18 U. S. C. § 3142(f). Congress specifically found that these individuals are far more likely to be responsible for dangerous acts in the community after arrest. See S. Rep. No. 98-225, at 6-7. Nor is the Act by any means a scattershot attempt to incapacitate those who are merely suspected of these serious crimes. The Government must first of all demonstrate probable cause to believe that the charged crime has been committed by the arrestee, but that is not enough. In a full-blown adversary hearing, the Government must convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person. 18 U. S. C. § 3142(f). While the Government's general interest in preventing crime is compelling, even this interest is heightened when the Government musters convincing proof that the arrestee, already indicted or held to answer for a serious crime, presents a demonstrable danger to the community. Under these narrow circumstances, society's interest in crime prevention is at its greatest.

[***24]

On the other side of the scale, of course, is the individual's strong interest in liberty. We do not minimize the importance and fundamental nature of this right. But, as our cases hold, this right may, in circumstances where the government's interest is sufficiently weighty, be subordinated [*751] to the greater needs of society. We think that Congress' careful delineation of the circumstances under which detention will be permitted satisfies this standard. When the Government proves by clear and convincing evidence that an arrestee presents an identified and articulable threat to an individual or the community, we believe that, consistent with the Due Process Clause, a court may disable the arrestee from executing that threat. Under these circumstances, we cannot categorically state that pretrial detention "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

Finally, we may dispose briefly [***25] of respondents' facial challenge to the procedures of the Bail Reform Act. To sustain them against such a challenge, we need only find them "adequate to authorize the pretrial detention of at least some [persons] charged with crimes," Schall, supra, at 264, whether or not they might be insufficient in some particular circumstances. We think they pass that test. As we stated in Schall, "there is [**2104] nothing inherently unattainable about a prediction of future criminal conduct." 467 U.S., at 278; see Jurek v. Texas, 428 U.S. 262, 274 (1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.); id., at 279 (WHITE, J., concurring in judgment).

Under the Bail Reform Act, the procedures by which a judicial officer evaluates the likelihood of future dangerousness are specifically designed to further the accuracy of that determination. Detainees have a right to counsel at the detention hearing. 18 U. S. C. § 3142(f). They may testify in their own behalf, present information by proffer or otherwise, and cross-examine witnesses who appear at the hearing. Ibid. The [***26] judicial officer charged with the responsibility of determining the appropriateness of detention is guided by statutorily enumerated factors, which include the nature and the circumstances of the charges, the weight of the evidence, the history and characteristics of the putative offender, [*752] and the danger to the community. § 3142(g). The Government must prove its case by clear and convincing evidence. § 3142(f). Finally, the judicial officer must include written findings of fact and a written statement of reasons for a decision to detain. § 3142(i). The Act's review provisions, § 3145(c), provide for immediate appellate review of the detention decision.

We think these extensive safeguards suffice to repel a facial challenge. The protections are more exacting than those we found sufficient in the juvenile context, see Schall, supra, at 275-281, and they far exceed what we found necessary to effect limited postarrest detention in Gerstein v. Pugh, 420 U.S. 103 (1975). Given the legitimate and compelling [***27] regulatory purpose of the Act and the procedural protections it offers, we conclude that the Act is not facially invalid under the Due Process Clause of the Fifth Amendment.

Respondents also contend that the Bail Reform Act violates the Excessive Bail Clause of the Eighth Amendment. The Court of Appeals did not address this issue because it found that the Act violates the Due Process Clause. We think that the Act survives a challenge founded upon the Eighth Amendment.

The Eighth Amendment addresses pretrial release by providing merely that "excessive bail shall not be required." This Clause, of course, says nothing about whether bail shall be available at all. Respondents nevertheless contend that this Clause grants them a right to bail calculated solely upon considerations of flight. They rely on Stack v. Boyle, 342 U.S. 1, 5 (1951), in which the Court stated that "bail set at a figure higher than an amount reasonably calculated [to ensure the defendant's presence at trial] is 'excessive' under the Eighth Amendment." [***28] In respondents' view, since the Bail Reform Act allows a court essentially to set bail at an infinite amount for reasons not related to the risk of flight, it [*753] violates the Excessive Bail Clause. Respondents concede that the right to bail they have discovered in the Eighth Amendment is not absolute. A court may, for example, refuse bail in capital cases. And, as the Court of Appeals noted and respondents admit, a court may refuse bail when the defendant presents a threat to the judicial process by intimidating witnesses. Brief for Respondents 21-22. Respondents characterize these exceptions as consistent with what they claim to be the sole purpose of bail -- to ensure the integrity of the judicial process.

While we agree that a primary function of bail is to safeguard the courts' role in adjudicating the guilt or innocence of defendants, we reject the proposition that the Eighth Amendment categorically prohibits the government from pursuing other admittedly compelling interests through regulation of pretrial [***29] release. The above-quoted [**2105] dictum in Stack v. Boyle is far too slender a reed on which to rest this argument. The Court in Stack had no occasion to consider whether the Excessive Bail Clause requires courts to admit all defendants to bail, because the statute before the Court in that case in fact allowed the defendants to be bailed. Thus, the Court had to determine only whether bail, admittedly available in that case, was excessive if set at a sum greater than that necessary to ensure the arrestees' presence at trial.

The holding of Stack is illuminated by the Court's holding just four months later in Carlson v. Landon, 342 U.S. 524 (1952). In that case, remarkably similar to the present action, the detainees had been arrested and held without bail pending a determination of deportability. The Attorney General refused to release the individuals, "on the ground that there was reasonable cause to believe that [their] release would be prejudicial to the public interest and would endanger the welfare and safety of the United States." Id., at 529 (emphasis added). The detainees brought the same challenge that respondents bring to us today: [***30] the Eighth Amendment [*754] required them to be admitted to bail. The Court squarely rejected this proposition:

"The bail clause was lifted with slight changes from the English Bill of Rights Act. In England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept. The Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country. Thus, in criminal cases bail is not compulsory where the punishment may be death. Indeed, the very language of the Amendment fails to say all arrests must be bailable." Id., at 545-546 (footnotes omitted).

Carlson v. Landon was a civil case, and we need not decide today whether the Excessive Bail Clause speaks at all to Congress' power to define the classes of criminal arrestees who [***31] shall be admitted to bail. For even if we were to conclude that the Eighth Amendment imposes some substantive limitations on the National Legislature's powers in this area, we would still hold that the Bail Reform Act is valid. Nothing in the text of the Bail Clause limits permissible Government considerations solely to questions of flight. The only arguable substantive limitation of the Bail Clause is that the Government's proposed conditions of release or detention not be "excessive" in light of the perceived evil. Of course, to determine whether the Government's response is excessive, we must compare that response against the interest the Government seeks to protect by means of that response. Thus, when the Government has admitted that its only interest is in preventing flight, bail must be set by a court at a sum designed to ensure that goal, and no more. Stack v. Boyle, supra. We believe that when Congress has mandated detention on the basis of a compelling interest other than prevention [*755] of flight, as it has here, the Eighth Amendment does not require release on bail.

III

[***32]

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. The numerous procedural safeguards detailed above must attend this adversary hearing. We are unwilling to say that this congressional determination, based as it is upon that primary concern of every government -- a concern [**2106] for the safety and indeed the lives of its citizens -- on its face violates either the Due Process Clause of the Fifth Amendment or the Excessive Bail Clause of the Eighth Amendment.

The judgment of the Court of Appeals is therefore

Reversed [***33] .

DISSENTBY:

MARSHALL; STEVENS

DISSENT:

JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting.

This case brings before the Court for the first time a statute in which Congress declares that a person innocent of any crime may be jailed indefinitely, pending the trial of allegations which are legally presumed to be untrue, if the Government shows to the satisfaction of a judge that the accused is likely to commit crimes, unrelated to the pending charges, at any time in the future. Such statutes, consistent with the usages of tyranny and the excesses of what bitter experience teaches us to call the police state, have long been thought incompatible with the fundamental human rights protected by our Constitution. Today a majority of this Court holds otherwise. Its decision disregards basic principles of justice [*756] established centuries ago and enshrined beyond the reach of governmental interference in the Bill of Rights.

A few preliminary words are necessary with respect to the majority's treatment of the facts in this case. The two paragraphs which the majority devotes to the procedural posture are essentially correct, but they omit certain matters which are of substantial [***34] legal relevance.

The Solicitor General's petition for certiorari was filed on July 21, 1986. On October 9, 1986, respondent Salerno filed a response to the petition. No response or appearance of counsel was filed on behalf of respondent Cafaro. The petition for certiorari was granted on November 3, 1986.

On November 19, 1986, respondent Salerno was convicted after a jury trial on charges unrelated to those alleged in the indictment in this case. On January 13, 1987, Salerno was sentenced on those charges to 100 years' imprisonment. As of that date, the Government no longer required a pretrial detention order for the purpose of keeping Salerno incarcerated; it could simply take him into custody on the judgment and commitment order. The present case thus became moot as to respondent Salerno. n1

n1 Had this judgment and commitment order been executed immediately, as is the ordinary course, the present case would certainly have been moot with respect to Salerno. On January 16, 1987, however, the District Judge who had sentenced Salerno in the unrelated proceedings issued the following order, apparently with the Government's consent:

"Inasmuch as defendant Anthony Salerno was not ordered detained in this case, but is presently being detained pretrial in the case of United States v. Anthony Salerno et al., SS 86 Cr. 245 (MJL),

"IT IS HEREBY ORDERED that the bail status of defendant Anthony Salerno in the above-captioned case shall remain the same as it was prior to the January 13, 1987 sentencing, pending further order of the Court." Order in SS 85 Cr. 139 (RO) (SDNY) (Owen, J.).

This order is curious. To release on bail pending appeal "a person who has been found guilty of an offense and sentenced to a term of imprisonment," the District Judge was required to find "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 ...." 18 U. S. C. § 3143(b)(1) (1982 ed., Supp. III). In short, the District Court which had sentenced Salerno to 100 years' imprisonment then found, with the Government's consent, that he was not dangerous, in a vain attempt to keep alive the controversy as to Salerno's dangerousness before this Court.

[***35]

[*757] The situation with respect to respondent Cafaro is still more disturbing. In early October 1986, before the Solicitor General's petition for certiorari was granted, respondent Cafaro became a cooperating witness, assisting the Government's investigation "by working in a covert capacity." n2 The information that Cafaro was [**2107] cooperating with the Government was not revealed to his codefendants, including respondent Salerno. On October 9, 1986, respondent Cafaro was released, ostensibly "temporarily for medical care and treatment," with the Government's consent. Docket, SS 86 Cr. 245-2, p. 6 (MJL) (SDNY) (Lowe, J.). n3 This release was conditioned upon execution of a personal recognizance bond in the sum of $ 1 million, under the general pretrial [*758] release provisions of 18 U. S. C. § 3141 (1982 ed., Supp. III). In short, respondent Cafaro became an informant and the Government agreed to his release on bail in order that he might better serve the Government's purposes. As to Cafaro, this case was no longer justiciable even before certiorari was granted, but the information bearing upon the essential issue of the Court's jurisdiction was not made [***36] available to us.

n2 This characterization of Cafaro's activities, along with an account of the process by which Cafaro became a Government agent, appears in an affidavit executed by a former Assistant United States Attorney and filed in the District Court during proceedings in the instant case which occurred after the case was submitted to this Court. Affidavit of Warren Neil Eggleston, dated March 18, 1987, SS 86 Cr. 245, p. 4 (MJL) (SDNY).

n3 Further particulars of the Government's agreement with Cafaro, including the precise terms of the agreement to release him on bail, are not included in the record, and the Court has declined to order that the relevant documents be placed before us.

In his reply brief in this Court, the Solicitor General stated: "On October 8, 1986, Cafaro was temporarily released for medical treatment. Because he is still subject to the pretrial detention order, Cafaro's case also continues to present a live controversy." Reply Brief for United States 1-2, n. 1. The Solicitor General did not inform the Court that this release involved the execution of a personal recognizance bond, nor did he reveal that Cafaro had become a cooperating witness. I do not understand how the Solicitor General's representation that Cafaro was "still subject to the pretrial detention order" can be reconciled with the fact of his release on a $ 1 million personal recognizance bond.

[***37]

The Government thus invites the Court to address the facial constitutionality of the pretrial detention statute in a case involving two respondents, one of whom has been sentenced to a century of jail time in another case and released pending appeal with the Government's consent, while the other was released on bail in this case, with the Government's consent, because he had become an informant. These facts raise, at the very least, a substantial question as to the Court's jurisdiction, for it is far from clear that there is now an actual controversy between these parties. As we have recently said, "Article III of the Constitution requires that there be a live case or controversy at the time that a federal court decides the case; it is not enough that there may have been a live case or controversy when the case was decided by the court whose judgment we are reviewing." Burke v. Barnes, 479 U.S. 361, 363 (1987); see Sosna v. Iowa, 419 U.S. 393, 402 (1975); Golden v. Zwickler, 394 U.S. 103, 108 (1969). Only by flatly ignoring these matters is the majority able to maintain the pretense that it has jurisdiction to decide the question which it [***38] is in such a hurry to reach.

The majority approaches respondents' challenge to the Act by dividing the discussion into two sections, one concerned with the substantive guarantees implicit in the Due Process Clause, and the other concerned with the protection afforded by the Excessive Bail Clause of the Eighth Amendment. This is a sterile formalism, which divides a unitary argument [*759] into two independent parts and then professes to demonstrate that the parts are individually inadequate.

On the due process side of this false dichotomy appears an argument concerning the distinction between regulatory and punitive legislation. The majority concludes that the Act is a regulatory rather than a punitive measure. The ease with which the conclusion is reached suggests the worthlessness of the achievement. The major premise is that "unless Congress expressly [**2108] intended to impose punitive restrictions, the punitive/regulatory distinction turns on '"whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it]."'" Ante, at [***39] 747 (citations omitted). The majority finds that "Congress did not formulate the pretrial detention provisions as punishment for dangerous individuals," but instead was pursuing the "legitimate regulatory goal" of "preventing danger to the community." Ibid. n4 Concluding that pretrial detention is not an excessive solution to the problem of preventing danger to the community, the majority thus finds that no substantive element of the guarantee of due process invalidates the statute.

n4 Preventing danger to the community through the enactment and enforcement of criminal laws is indeed a legitimate goal, but in our system the achievement of that goal is left primarily to the States. The Constitution does not contain an explicit delegation to the Federal Government of the power to define and administer the general criminal law. The Bail Reform Act does not limit its definition of dangerousness to the likelihood that the defendant poses a danger to others through the commission of federal crimes. Federal preventive detention may thus be ordered under the Act when the danger asserted by the Government is the danger that the defendant will violate state law. The majority nowhere identifies the constitutional source of congressional power to authorize the federal detention of persons whose predicted future conduct would not violate any federal statute and could not be punished by a federal court. I can only conclude that the Court's frequently expressed concern with the principles of federalism vanishes when it threatens to interfere with the Court's attainment of the desired result.

[***40]

[*760] This argument does not demonstrate the conclusion it purports to justify. Let us apply the majority's reasoning to a similar, hypothetical case. After investigation, Congress determines (not unrealistically) that a large proportion of violent crime is perpetrated by persons who are unemployed. It also determines, equally reasonably, that much violent crime is committed at night. From amongst the panoply of "potential solutions," Congress chooses a statute which permits, after judicial proceedings, the imposition of a dusk-to-dawn curfew on anyone who is unemployed. Since this is not a measure enacted for the purpose of punishing the unemployed, and since the majority finds that preventing danger to the community is a legitimate regulatory goal, the curfew statute would, according to the majority's analysis, be a mere "regulatory" detention statute, entirely compatible with the substantive components of the Due Process Clause.

The absurdity of this conclusion arises, of course, from the majority's cramped concept of substantive due process. The majority proceeds as though the only substantive right protected by the Due Process Clause is a right to be free from punishment [***41] before conviction. The majority's technique for infringing this right is simple: merely redefine any measure which is claimed to be punishment as "regulation," and, magically, the Constitution no longer prohibits its imposition. Because, as I discuss in Part III, infra, the Due Process Clause protects other substantive rights which are infringed by this legislation, the majority's argument is merely an exercise in obfuscation.

The logic of the majority's Eighth Amendment analysis is equally unsatisfactory. The Eighth Amendment, as the majority notes, states that "excessive bail shall not be required." The majority then declares, as if it were undeniable, that: "this Clause, of course, says nothing about whether bail shall be available at all." Ante, at 752. If excessive bail is imposed the defendant stays in jail. The same result is achieved if bail is denied altogether. Whether the [*761] magistrate sets bail at $ 1 billion or refuses to set bail at all, the consequences are indistinguishable. It would be mere sophistry to suggest that the Eighth Amendment protects against the former decision, and not the latter. Indeed, such a result would lead to the conclusion [***42] that there was no need for [**2109] Congress to pass a preventive detention measure of any kind; every federal magistrate and district judge could simply refuse, despite the absence of any evidence of risk of flight or danger to the community, to set bail. This would be entirely constitutional, since, according to the majority, the Eighth Amendment "says nothing about whether bail shall be available at all."

But perhaps, the majority says, this manifest absurdity can be avoided. Perhaps the Bail Clause is addressed only to the Judiciary. "We need not decide today," the majority says, "whether the Excessive Bail Clause speaks at all to Congress' power to define the classes of criminal arrestees who shall be admitted to bail." Ante, at 754. The majority is correct that this question need not be decided today; it was decided long ago. Federal and state statutes which purport to accomplish what the Eighth Amendment forbids, such as imposing cruel and unusual punishments, may not stand. See, e. g., Trop v. Dulles, 356 U.S. 86 (1958); Furman v. Georgia, 408 U.S. 238 (1972). The text of the Amendment, which provides simply that "excessive bail shall [***43] not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted," provides absolutely no support for the majority's speculation that both courts and Congress are forbidden to inflict cruel and unusual punishments, while only the courts are forbidden to require excessive bail. n5

n5 The majority refers to the statement in Carlson v. Landon, 342 U.S. 524, 545 (1952), that the Bail Clause was adopted by Congress from the English Bill of Rights Act of 1689, 1 Wm. & Mary, Sess. 2, ch. II, § I(10), and that "in England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail." A sufficient answer to this meager argument was made at the time by Justice Black: "The Eighth Amendment is in the American Bill of Rights of 1789, not the English Bill of Rights of 1689." Carlson v. Landon, supra, at 557 (dissenting opinion). Our Bill of Rights is contained in a written Constitution, one of whose purposes is to protect the rights of the people against infringement by the Legislature, and its provisions, whatever their origins, are interpreted in relation to those purposes.

[***44]

[*762] The majority's attempts to deny the relevance of the Bail Clause to this case are unavailing, but the majority is nonetheless correct that the prohibition of excessive bail means that in order "to determine whether the Government's response is excessive, we must compare that response against the interest the Government seeks to protect by means of that response." Ante, at 754. The majority concedes, as it must, that "when the Government has admitted that its only interest is in preventing flight, bail must be set by a court at a sum designed to ensure that goal, and no more." Ibid. But, the majority says, "when Congress has mandated detention on the basis of a compelling interest other than prevention of flight, as it has here, the Eighth Amendment does not require release on bail." Ante, at 754-755. This conclusion follows only if the "compelling" interest upon which Congress acted is an interest which the Constitution permits Congress to further through the denial of bail. The majority does not ask, as a result of its disingenuous division of the analysis, if there are any substantive limits contained in both the Eighth Amendment and the Due Process [***45] Clause which render this system of preventive detention unconstitutional. The majority does not ask because the answer is apparent and, to the majority, inconvenient.

III

The essence of this case may be found, ironically enough, in a provision of the Act to which the majority does not refer. Title 18 U. S. C. § 3142(j) (1982 ed., Supp. III) provides that "nothing in this section shall be construed as modifying or limiting the presumption of innocence." But the very pith [*763] and purpose of this statute is an abhorrent limitation of the presumption [**2110] of innocence. The majority's untenable conclusion that the present Act is constitutional arises from a specious denial of the role of the Bail Clause and the Due Process Clause in protecting the invaluable guarantee afforded by the presumption of innocence.

"The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law." Coffin v. United States, 156 U.S. 432, 453 (1895). Our society's belief, reinforced over the centuries, that all are innocent [***46] until the state has proved them to be guilty, like the companion principle that guilt must be proved beyond a reasonable doubt, is "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937), and is established beyond legislative contravention in the Due Process Clause. See Estelle v. Williams, 425 U.S. 501, 503 (1976); In re Winship, 397 U.S. 358, 364 (1970). See also Taylor v. Kentucky, 436 U.S. 478, 483 (1978); Kentucky v. Whorton, 441 U.S. 786, 790 (1979) (Stewart, J., dissenting).

The statute now before us declares that persons who have been indicted may be detained if a judicial officer finds clear and convincing evidence that they pose a danger to individuals or to the community. The statute does not authorize the Government to imprison anyone it has evidence is dangerous; indictment is necessary. But let us suppose that a defendant is indicted and the Government shows by clear and convincing evidence that he is dangerous and should be detained pending a trial, at which trial the defendant is acquitted. May the Government continue to hold the defendant in detention based upon its showing that he is dangerous? [***47] The answer cannot be yes, for that would allow the Government to imprison someone for uncommitted crimes based upon "proof" not beyond a reasonable doubt. The result must therefore be that once the indictment has failed, detention [*764] cannot continue. But our fundamental principles of justice declare that the defendant is as innocent on the day before his trial as he is on the morning after his acquittal. Under this statute an untried indictment somehow acts to permit a detention, based on other charges, which after an acquittal would be unconstitutional. The conclusion is inescapable that the indictment has been turned into evidence, if not that the defendant is guilty of the crime charged, then that left to his own devices he will soon be guilty of something else. "'If it suffices to accuse, what will become of the innocent?'" Coffin v. United States, supra, at 455 (quoting Ammianus Marcellinus, Rerum Gestarum Libri Qui Supersunt, L. XVIII, c. 1, A. D. 359).

To be sure, an indictment is not without legal consequences. It establishes that there is probable cause to believe that an offense was committed, and that the defendant committed it. Upon [***48] probable cause a warrant for the defendant's arrest may issue; a period of administrative detention may occur before the evidence of probable cause is presented to a neutral magistrate. See Gerstein v. Pugh, 420 U.S. 103 (1975). Once a defendant has been committed for trial he may be detained in custody if the magistrate finds that no conditions of release will prevent him from becoming a fugitive. But in this connection the charging instrument is evidence of nothing more than the fact that there will be a trial, and

"release before trial is conditioned upon the accused's giving adequate assurance that he will stand trial and submit to sentence if found guilty. Like the ancient practice of securing the oaths of responsible persons to stand as sureties for the accused, the modern practice of requiring a bail bond or the deposit of a [**2111] sum of money subject to forfeiture serves as additional assurance of the [*765] presence of an accused." Stack v. Boyle, 342 U.S. 1, 4-5 (1951) (citation omitted). n6

n6 The majority states that denial of bail in capital cases has traditionally been the rule rather than the exception. And this of course is so, for it has been the considered presumption of generations of judges that a defendant in danger of execution has an extremely strong incentive to flee. If in any particular case the presumed likelihood of flight should be made irrebuttable, it would in all probability violate the Due Process Clause. Thus what the majority perceives as an exception is nothing more than an example of the traditional operation of our system of bail.

[***49]

The finding of probable cause conveys power to try, and the power to try imports of necessity the power to assure that the processes of justice will not be evaded or obstructed. n7 "Pretrial detention to prevent future crimes against society at large, however, is not justified by any concern for holding a trial on the charges for which a defendant has been arrested." 794 F.2d 64, 73 (CA2 1986) (quoting United States v. Melendez-Carrion, 790 F.2d 984, 1002 (CA2 1986) (opinion of Newman, J.)). The detention purportedly authorized by this statute bears no relation to the Government's power to try charges supported by a finding of probable cause, and thus the interests it serves are outside the scope of interests which may be considered in weighing the excessiveness of bail under the Eighth Amendment.

n7 It is also true, as the majority observes, that the Government is entitled to assurance, by incarceration if necessary, that a defendant will not obstruct justice through destruction of evidence, procuring the absence or intimidation of witnesses, or subornation of perjury. But in such cases the Government benefits from no presumption that any particular defendant is likely to engage in activities inimical to the administration of justice, and the majority offers no authority for the proposition that bail has traditionally been denied prospectively, upon speculation that witnesses would be tampered with. Cf. Carbo v. United States, 82 S. Ct. 662, 7 L. Ed. 2d 769 (1962) (Douglas, J., in chambers) (bail pending appeal denied when more than 200 intimidating phone calls made to witness, who was also severely beaten).

[***50]

[*766] It is not a novel proposition that the Bail Clause plays a vital role in protecting the presumption of innocence. Reviewing the application for bail pending appeal by members of the American Communist Party convicted under the Smith Act, 18 U. S. C. § 2385, Justice Jackson wrote:

"Grave public danger is said to result from what [the defendants] may be expected to do, in addition to what they have done since their conviction. If I assume that defendants are disposed to commit every opportune disloyal act helpful to Communist countries, it is still difficult to reconcile with traditional American law the jailing of persons by the courts because of anticipated but as yet uncommitted crimes. Imprisonment to protect society from predicted but unconsummated offenses is ... unprecedented in this country and ... fraught with danger of excesses and injustice ...." Williamson v. United States, 95 L. Ed. 1379, 1382 (1950) (opinion in chambers) (footnote omitted).

As Chief Justice Vinson wrote for the Court in Stack v. Boyle, supra: "Unless th[e] right to bail before trial is preserved, the presumption of innocence, secured [***51] only after centuries of struggle, would lose its meaning." 342 U.S., at 4.

There is a connection between the peculiar facts of this case and the evident constitutional defects in the statute which the Court upholds today. Respondent Cafaro was originally incarcerated for an indeterminate period at the request of the Government, which believed (or professed to believe) that his release imminently threatened the safety of the community. That threat apparently vanished, from the Government's point of view, when Cafaro agreed to act as a covert agent of the Government. There could be no more eloquent demonstration of the coercive power of authority to imprison upon prediction, or [**2112] of the dangers which the almost [*767] inevitable abuses pose to the cherished liberties of a free society.

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people." United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting). Honoring the presumption of innocence is often difficult; sometimes we must pay substantial social costs as a result of our commitment to the [***52] values we espouse. But at the end of the day the presumption of innocence protects the innocent; the shortcuts we take with those whom we believe to be guilty injure only those wrongfully accused and, ultimately, ourselves.

Throughout the world today there are men, women, and children interned indefinitely, awaiting trials which may never come or which may be a mockery of the word, because their governments believe them to be "dangerous." Our Constitution, whose construction began two centuries ago, can shelter us forever from the evils of such unchecked power. Over 200 years it has slowly, through our efforts, grown more durable, more expansive, and more just. But it cannot protect us if we lack the courage, and the self-restraint, to protect ourselves. Today a majority of the Court applies itself to an ominous exercise in demolition. Theirs is truly a decision which will go forth without authority, and come back without respect.

I dissent.

JUSTICE STEVENS, dissenting.

There may be times when the Government's interest in protecting the safety of the community will justify the brief detention of a person who has not committed any crime, see ante, at 748-749, [***53] see also United States v. Greene, 497 F.2d 1068, 1088-1089 (CA7 1974) (Stevens, J., dissenting). n1 To [*768] use Judge Feinberg's example, it is indeed difficult to accept the proposition that the Government is without power to detain a person when it is a virtual certainty that he or she would otherwise kill a group of innocent people in the immediate future. United States v. Salerno, 794 F.2d 64, 77 (CA2 1986) (dissenting opinion). Similarly, I am unwilling to decide today that the police may never impose a limited curfew during a time of crisis. These questions are obviously not presented in this case, but they lurk in the background and preclude me from answering the question that is presented in as broad a manner as JUSTICE MARSHALL has. Nonetheless, I firmly agree with JUSTICE MARSHALL that the provision of the Bail Reform Act allowing pretrial detention on the basis of future dangerousness is unconstitutional. Whatever the answers are to the questions I have mentioned, it is clear to me that a pending indictment may not be given any weight in evaluating an individual's risk to the community or the need for immediate detention.

n1 "If the evidence overwhelmingly establishes that a skyjacker, for example, was insane at the time of his act, and that he is virtually certain to resume his violent behavior as soon as he is set free, must we then conclude that the only way to protect society from such predictable harm is to find an innocent man guilty of a crime he did not have the capacity to commit?" United States v. Greene, 497 F.2d, at 1088.

[***54]

If the evidence of imminent danger is strong enough to warrant emergency detention, it should support that preventive measure regardless of whether the person has been charged, convicted, or acquitted of some other offense. In this case, for example, it is unrealistic to assume that the danger to the community that was present when respondents were at large did not justify their detention before they were indicted, but did require that measure the moment that the grand jury found probable cause to believe they had committed crimes in the past. n2 It is equally unrealistic to [**2113] assume that the danger will vanish if a jury happens to acquit them. [*769] JUSTICE MARSHALL has demonstrated that the fact of indictment cannot, consistent with the presumption of innocence and the Eighth Amendment's Excessive Bail Clause, be used to create a special class, the members of which are, alone, eligible for detention because of future dangerousness.

n2 The Government's proof of future dangerousness was not dependent on any prediction that, as a result of the indictment, respondents posed a threat to potential witnesses or to the judicial system.

[***55]

Several factors combine to give me an uneasy feeling about the case the Court decides today. The facts set forth in Part I of JUSTICE MARSHALL's opinion strongly support the possibility that the Government is much more interested in litigating a "test case" than in resolving an actual controversy concerning respondents' threat to the safety of the community. Since Salerno has been convicted and sentenced on other crimes, there is no need to employ novel pretrial detention procedures against him. Cafaro's case is even more curious because he is apparently at large and was content to have his case argued by Salerno's lawyer even though his interests would appear to conflict with Salerno's. But if the merits must be reached, there is no answer to the arguments made in Parts II and III of JUSTICE MARSHALL's dissent. His conclusion, and not the Court's, is faithful to the "fundamental principles as they have been understood by the traditions of our people and our law." Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting). Accordingly, I respectfully dissent.

PRIOR HISTORY:

[**1]

Gennaro Langella and Carmine Persico appeal from an order of the United States District Court for the Southern District of New York (Owen, J.) denying their motion to dismiss an indictment charging various violations of the Racketeer Influenced and Corrupt Organizations Act and related offenses on double jeopardy grounds.

CORE TERMS: persico, indictment, extortion, bribery, racketeering, concrete-pouring, extortionate, contractor, conspiracy, organized crime, double jeopardy, Hobbs Act, loansharking, double jeopardy clause, concrete, payoff, racketeering activity, valued, participating, gambling, charging, overlap, divide, extorted, gotta, pattern of racketeering activity, criminal jurisdiction, offenses charged, prescription, embezzlement

COUNSEL:

Michael Chertoff, Asst. U.S. Atty., (Rudolph W. Giuliani, U.S. Atty., John F. Savarese and Kenneth Roth, Asst. U.S. Attys., of Counsel), for Appellee.

Michael Young, (David Breitbart, of Counsel), for Defendant-Appellant Langella.

Stanley M. Meyer, (Frank A. Lopez, of Counsel), for Defendant-Appellant Persico.

JUDGES:

Pratt and Miner, Circuit Judges, Re, Chief Judge, U.S. Court of International Trade.

OPINIONBY:

MINER

OPINION:

[*186] MINER, Circuit Judge:

The instant indictment was filed in the United States District Court for the Southern District of New York (Owen, J.) and charges appellants Gennaro Langella and Carmine Persico, together with seven others, with conspiring to participate and participating in the affairs of an enterprise known as "the Commission of La Cosa Nostra," in violation of the Racketeer Influenced and Corrupt Organizations [**2] Act ("RICO"), 18 U.S.C. § 1962(c), (d) (1982). United States v. Salerno, et al., No. SSS 85 Cr. 139 ("Salerno"). The indictment charges appellants, in essence, with extortion in relation to concrete-pouring jobs valued at more than $2 million.

Upon conviction in the United States District Court for the Southern District of New York on June 13, 1986, after a jury trial before the Honorable John F. Keenan, in United States v. Persico, et al., No. S 84 Cr. 809 ("Persico"), appellants moved before Judge Owen to dismiss the Salerno indictment on double jeopardy grounds. According to appellants, the double jeopardy clause of the fifth amendment bars their prosecution here, because the Persico convictions stemmed from the same illegal scheme in regard to concrete-pouring jobs in New York City. Following oral argument on June 20th and 23rd, Judge Owen denied the motion and Langella and Persico filed their notices of appeal on June 26th.

After hearing argument by counsel on August 15, 1986, we rejected appellants' contentions and affirmed the district court's denial of their motion in a summary order, indicating that this formal opinion would [**3] follow.

I. BACKGROUND

The Persico indictment was filed in 1984, charging Persico, Langella and twelve other individuals with conspiring to participate and participating in the affairs of an enterprise known as the "Colombo Organized Crime Family of La Cosa Nostra" ("Colombo Family") through a pattern of racketeering acts, in violation of 18 U.S.C. § 1962(c), (d). The alleged pattern included a Hobbs [*187] Act conspiracy to extort money from certain construction companies, 18 U.S.C. § 1951; extortion of ten named construction companies, 18 U.S.C. § § 1951-2; labor bribery, 29 U.S.C. § 186 and 18 U.S.C. § 2 or New York Penal Law § 180.15; embezzlement, 29 U.S.C. § 186 and 18 U.S.C. § 2; official bribery, 18 U.S.C. § 201; loansharking, 18 U.S.C. § § 891 and 892 or 891 and 894; and gambling, 18 U.S.C. § 1955. In addition, the indictment charged Persico and Langella with substantive counts of extortionate conspiracy and extortion, 18 U.S.C. § 1951; [**4] labor bribery, 29 U.S.C. § 186; official bribery, 18 U.S.C. § 201; loansharking, 18 U.S.C. § § 891 and 892 or 891 and 894; and gambling, 18 U.S.C. § 1955.

After the indictment was filed, the government furnished a bill of particulars further specifying the objectives and victims of the extortionate scheme. The bill of particulars explicitly stated that the conspiracy charged in the indictment was "confined to extorting payoffs in connection with construction jobs in which the portion of the contract price relating to the pouring of concrete did not exceed $2 million." Bill of Particulars, United States v. Persico, No. S 84 Cr. 809, para. 4. The bill of particulars also alleged that the money extorted by the conspirators "was used or intended to be used by and for the benefit of themselves and other members and associates of the Colombo Family." Id. para. 5. Moreover, the bill of particulars specified that the extortion payments were not divided among "other New York Families of La Cosa Nostra or among the 'Commission' of La Cosa Nostra." Id. para. 6.

Thereafter, on June 25, 1985, the [**5] government filed the Salerno indictment, charging Persico, Langella and seven other defendants with RICO conspiracy and asserting their membership in "the Commission of La Cosa Nostra" ("Commission" or "Club"). Salerno, No. SSS 85 Cr. 139. The indictment alleged that the Commission was a council of leaders of various organized crime families, "an enterprise distinct from the individual Families," Salerno Indictment, para. 6, established with the special purposes of, inter alia, resolving disputes among families and carrying out "joint ventures" involving more than one family. Id. para. 8. The alleged racketeering included extortionate conspiracy and substantive extortions, 18 U.S.C. § 1951; labor bribery, 29 U.S.C. § 186 and 18 U.S.C. § 2; loansharking conspiracy, 18 U.S.C. § § 891 and 892; and murder. The Salerno RICO indictment also addressed a different set of racketeers from those named in the Persico indictment. Of the fourteen conspirators named in the Persico indictment, only three -- Persico, Langella and Ralph Scopo -- are charged in the Salerno indictment. [**6]

Before the Persico trial began, Persico moved to sever the counts concerning extortion in the construction industry and to have those counts joined with the charges in the Salerno case. Judge Keenan denied the motion, finding that the Persico indictment alleged that a separate criminal enterprise -- the Colombo Family -- conducted an extortionate scheme wholly distinct from that charged in Salerno. United States v. Persico, 621 F. Supp. 842, 855-56 (S.D.N.Y. 1985).

Thereafter, the Persico case was brought to trial before Judge Keenan. The evidence adduced at trial showed that between 1981 and 1984, the Colombo Family demanded payoffs of either one or two percent of the contract price from certain contractors performing concrete-pouring jobs of less than $2 million. The government also offered proof that the scope of the Colombo Family's extortionate scheme was limited by the existence of another complementary extortionate scheme that was carried out as a joint venture by the Colombo Family and three other organized crime families in New York City. This joint scheme extorted money from contractors for concrete-pouring jobs in Manhattan in excess [**7] of $2 million. The two percent payoff received from these contractors was to be distributed among the four organized crime families that constituted the Club.

The distinction between the two schemes was well illustrated by testimony concerning [*188] Technical Concrete Construction Company ("Technical"). Initially, because Technical was involved in concrete jobs valued at less than $2 million, its principals were compelled to make payoffs to the Colombo Family. Eventually, Technical also obtained permission from the four families that jointly controlled the Club scheme to perform jobs valued at more than $2 million. On these jobs, Technical was required to make separate payoffs to each of the four families. Similarly, another concrete contractor, who was a victim of the Colombo Family's extortionate scheme for concrete-pouring jobs under $2 million, was told he would have to seek permission from the three other organized crime families before bidding for jobs of over $2 million.

At the conclusion of the Persico trial, on June 13, 1986, the jury returned verdicts convicting Persico and Langella of all racketeering acts and substantive counts arising out of the Colombo Family's [**8] extortionate scheme. Langella and Persico then moved to dismiss the Salerno indictment on the ground that the double jeopardy clause barred their further prosecution in light of their convictions in Persico. Judge Owen denied their motion, finding that the Salerno indictment alleged a distinct racketeering enterprise -- the Club or Commission -- and different racketeering acts -- extortion in concrete-pouring jobs involving more than $2 million, while Persico had involved only the Colombo Family and concrete-pouring jobs of less than $2 million. For the reasons stated by Judge Owen and set forth below, we affirm the denial of appellants' motion.

II. DISCUSSION

This appeal implicates the strand of fifth amendment jurisprudence concerned with determining whether one criminal offense is the same as a second criminal offense. Langella and Persico contend that the prosecution has artificially delineated between those concrete-pouring jobs involving more than $2 million and those involving less than $2 million for the purpose of charging them with participating in the affairs of two separate RICO enterprises.

Although both indictments charge these two defendants with [**9] membership in a criminal enterprise that extorted payments from construction companies involved in concrete-pouring jobs in New York, the two indictments purport to charge two separate enterprises. We are cognizant that "it is Congress, and not the prosecution, which establishes and defines offenses," Sanabria v. United States, 437 U.S. 54, 69, 57 L. Ed. 2d 43, 98 S. Ct. 2170 (1978), and that "few, if any, limitations are imposed by the Double Jeopardy Clause on the legislative power to define offenses." Id. As Sanabria advises, "once Congress has defined a statutory offense by its prescription of the 'allowable unit of prosecution,' ... that prescription determines the scope of protection afforded by a prior conviction or acquittal." Id. at 69-70 (citations omitted).

On the question of what Congress prescribed under RICO as the "allowable unit of prosecution," the Supreme Court's opinion in United States v. Turkette, 452 U.S. 576, 69 L. Ed. 2d 246, 101 S. Ct. 2524 (1981), is instructive. There the Court stated:

In order to secure a conviction under RICO, the Government must prove both the existence of an "enterprise" [**10] and the connected "pattern of racketeering activity." The enterprise is an entity, for present purposes a group of persons associated together for a common purpose of engaging in a course of conduct. The pattern of racketeering activity is, on the other hand, a series of criminal acts as defined by the statute. ... The former is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit. The latter is proved by evidence of the requisite number of acts of racketeering committed by the participants in the enterprise.

Id. at 583 (citation omitted). As we since have recognized, for a subsequent indictment to present a double [*189] jeopardy problem, "both the enterprise and the pattern of activity alleged in the [earlier] indictment must be the same as those alleged in the [second] indictment. If either is different, there is no infirmity under the double jeopardy clause." United States v. Russotti, 717 F.2d 27, 33 (2d Cir. 1983), cert. denied, 465 U.S. 1022, 79 L. Ed. 2d 678, 104 S. Ct. 1273 (1984).

Here, there is no double [**11] jeopardy bar, because the Persico and Salerno indictments plainly allude to different enterprises. The Persico indictment concerned the "Colombo Family of La Cosa Nostra," whereas the Salerno indictment alleges as the pertinent enterprise the "Commission of La Cosa Nostra." We reject Langella's argument that both indictments charge the enterprise to be La Cosa Nostra. Although the Commission and the Colombo Family, in a sense, are vertically organized segments of an intricate, organized crime structure, the allegations of the two indictments sufficiently demonstrate that they are two separate and independent criminal enterprises. Significantly, the Colombo Family is not merely a lower level of authority within the hierarchy of organized crime: Within its own sphere of operation, the Colombo Family is a self-sufficient enterprise that functions without oversight by the Commission. Consequently, we find that the current prosecution of these defendants in Salerno is not barred by the double jeopardy clause, because the two indictments charge the existence of two separate enterprises.

In any event, even if we were to assume an identity of the enterprises, we still [**12] would be compelled to reject appellants' double jeopardy claims, because the two indictments also allege two distinct patterns of racketeering activity. In Russotti, we adopted a five-factor test developed in the Eighth Circuit for determining whether two RICO counts charge two distinct patterns of racketeering activity. Id. at 33 (citing United States v. Dean, 647 F.2d 779 (8th Cir. 1981), modified in banc on other grounds, 667 F.2d 729 (8th Cir.), cert. denied, 456 U.S. 1006, 102 S. Ct. 2296, 73 L. Ed. 2d 1300 (1982)). Those factors are:

(1) the time of the various activities charged as parts of separate patterns; (2) the identity of the persons involved in the activities under each charge; (3) the statutory offenses charged as racketeering activities in each charge; (4) the nature and scope of the activity the government seeks to punish under each charge; and (5) the places where the corrupt activity took place under each charge.

Dean, 647 F.2d at 788. Under this five-factor test, there is a clear distinction between the patterns of racketeering charged in Persico [**13] and Salerno.

Nature and Scope of Racketeering Activity -- According to Russotti, this is the "most significant factor" in evaluating a double jeopardy claim. 717 F.2d at 34. Here, there is absolutely no overlap of any kind between the patterns of racketeering activity alleged in the two indictments. Extortions involving concrete contracts valued above the $2 million dividing line were assigned to the Commission. Extortions involving contracts of less than that amount were handled by the Colombo Family. We reject Langella and Persico's argument that the $2 million cut-off is an artificial distinction contrived by the prosecution to create two extortionate schemes where only one existed. The members of the Colombo Family and the Commission themselves decided to divide their areas of criminal jurisdiction in this manner and, in fact, the criminal activity was so divided. As much as a geographical boundary could be used to divide the criminal jurisdiction of two horizontally competing criminal enterprises, we consider significant the monetary demarcation used here to divide the jurisdictions of the vertically organized enterprises. At the Persico trial, [**14] it was shown that Scopo, one of the alleged co-conspirators, had explained to a contractor that Colombo Family members had only circumscribed authority to permit the contractor to bid for a concrete-pouring job:

CONTRACTOR: Yeah. Why can't I do the concrete?

[*190] SCOPO: You can't do it. Over two million you can't do it. It's under two million, hey, me, I tell you go ahead and do it.

CONTRACTOR: Who do I gotta go see? Tell me who I gotta go see[.]

SCOPO: You gotta see every Family. And they're gonna tell you, "no." So don't even bother.

Thus, the nature and scope of the racketeering acts that the government prosecuted in Persico are plainly distinct from the acts that are the subject of the Salerno indictment.

Time Range -- The individual racketeering acts in persico occurred between 1968 and 1986, with many taking place before 1979. The individual racketeering acts in Salerno extend from September 1978 to 1984, with only three occurring before 1980. The time periods, therefore, partially overlap with each other.

Personnel -- Of the twenty-three persons indicted in Salerno and Persico, only three -- Persico, Langella, [**15] and Scopo -- are named in both indictments.

Statutory Offenses -- Only three of the nine statutory offenses charged in the two indictments overlap -- Hobbs Act extortion, 18 U.S.C. § 1951; labor bribery, 29 U.S.C. § 186; and loansharking, 19 U.S.C. § 892 -- and, of these, the loansharking charges in Salerno do not even name Langella and Persico. In addition, the Persico indictment charged five types of statutory offenses not charged in Salerno: embezzlement, official bribery, gambling, possession of stolen property, and narcotics trafficking. Conversely, the Salerno indictment charges numerous homicides, a category of crime not charged in Persico.

Geographical Locations -- The activities of the Colombo Family, which were the subject of the Persico indictment, were centered in New York, New Jersey, and Florida. The Salerno enterprise is nationwide and international in scope.

In sum, although there is some identity of participants, statutory offenses, time, and place, we believe the different nature and delineated scope of each racketeering activity are dispositive on this [**16] issue. The two indictments address two highly formalized and rigidly structured enterprises, each clearly demarcated with distinct areas of authority and operation. The convictions of Langella and Persico for their participation in the affairs of the Colombo Family in no manner bars the current prosecution for their alleged participation in the affairs of the Commission.

Likewise, we reject appellants' claims that their double jeopardy rights are violated by the counts in the Salerno indictment alleging Hobbs Act extortion under 18 U.S.C. § 1951 and labor bribery under 29 U.S.C. § 186. The Persico indictment charged Hobbs Act and labor bribery violations by alleging that Persico and Langella conspired to commit extortion and that Langella engaged in substantive extortion and aided and abetted labor bribery in connection with specific construction jobs. The Salerno indictment similarly alleges under the Hobbs Act and the labor bribery statute that Persico and Langella participated in an extortionate conspiracy and certain substantive extortions and briberies. Nevertheless, none of the specific extortions or labor briberies [**17] of which Langella and Persico were convicted in Persico are now the subject of the Salerno prosecution. Moreover, the Salerno indictment is restricted to those extortions and briberies allegedly carried out at the behest of the Commission. Consequently, no double jeopardy issue is presented.

III. CONCLUSION

For the above reasons we affirmed, in our order of September 8, 1986, the district court's denial of defendant's motions to dismiss on double jeopardy grounds.

DISPOSITION:

[**1]

All motions are denied.

CORE TERMS: racketeering, bribery, bribe, prison, indictment, convicted, pleaded guilty, misconduct, payoff, conversation, pattern of racketeering activity, co-conspirator, co-defendant, prosecutor, restaurant, telephone, urge, conspiracy, arranged, statute of limitations, double jeopardy clause, condition imposed, incarcerated, unsuccessful, attacking, predicate, colleague, corrupt, phase, joins

COUNSEL:

For the United States America: Rudolph W. Giuliani, United States Attorney for the Southern District of New York, of counsel: Bruce A. Baird, Esq., Aaron R. Marcu, Esq., Frank H. Sherman, Esq., Assistant United States Attorneys.

For Defendant Carmine Persico: Frank Lopez, Esq.

For Defendant Gennaro Langella: David Breitbart, Esq.

New York, New York, for Alphonse Persico: David DePetris, Esq., Stanley Meyer, Esq.

For Defendant John J. DeRoss: Dennis Peterson, Esq.

For Defendant Anthony Scarpati: Jacob R. Evseroff.

For Defendant Andrew Russo: George Santangelo, Esq.

For Defendant Dominic Cataldo: Michael Hurwitz, Esq.

For Defendant Hugh McIntosh: Susan Kellman, Esq.

JUDGES:

John F. Keenan, United States District Judge.

OPINIONBY:

KEENAN

OPINION:

[*754] OPINION and ORDER JOHN F. KEENAN, United States District Judge:

Background

All defendants were convicted by jury verdict after an eight-month trial of RICO conspiracy violations, 18 U.S.C. § 1962(d) and all, save defendant Jack DeRoss, were convicted of substantive RICO violations, 18 U.S.C. § 1962(c). The jury also convicted on several other counts and acquitted on some other counts as well. [**2] To the degree necessary a factual recital and statement relating to the other convictions will be contained in the discussion below. The jury found that the defendants were members of, or associated with, the Colombo Family of La Cosa Nostra, a criminal enterprise that systematically engaged in a wide-range of criminal activities.

Several of the defendants move for an order setting aside the jury's verdict and entering judgments of acquittal, pursuant to Fed. R. Crim. P. 29(c), and for other relief. In the main, the motions raise arguments already advanced and rejected by this Court.

The defendant Dominic Cataldo joins in the motions applicable to him. Although defendant Gennaro Langella filed no post-trial motions, the Court assumes that he joins with those of his co-defendants.

All motions are denied for the reasons set forth below.

Discussion Carmine Persico's Due Process Contentions

Carmine Persico claims that the Indictment is the product of Government misconduct, so outrageous as to have deprived Persico of his right to due process of law and to require dismissal of the prosecution. He also urges a hearing to be held to establish the alleged misconduct. His son, Alphonse [**3] Persico, joins in this motion.

This and other parts of the defense motion relate to the bribery of Richard Annicharico, a Special Agent of the Internal Revenue Service, in violation of 18 U.S.C. § 201(b)(3). Defendants Carmine Persico, Andrew Russo, Dominic Cataldo and Hugh McIntosh all pleaded guilty to some aspects of this offense in the United States District Court for the Eastern District of New York in 1981 and 1982. Here, Carmine Persico was found guilty of five specific racketeering acts relating to the Annicharico briberies. On August 11, 1981 he pleaded guilty in the Eastern District of New York to conspiracy to bribe a public official, Agent Annicharico, (18 U.S.C. § 371). Those charges are essentially the racketeering acts 18-22 which Carmine Persico was found guilty of and which are the subject of this portion of the motion. By pleading guilty in the Eastern District without preserving the issue, Persico waived his due process claim. United States v. Muench, 694 F.2d 28, 34 (2d Cir. 1982), cert. denied, 461 U.S. 908, 103 S. Ct. 1881, 76 L. Ed. 2d 811 (1983) (a guilty plea is a waiver of all non-jurisdictional defects), see also Franklin v. United States, [**4] 589 F.2d 192, 194, 195 (5th Cir. 1979), cert. denied, 441 U.S. 950, 60 L. Ed. 2d 1055, 99 S. Ct. 2177 (1979).

Carmine Persico contends that he is entitled to an evidentiary hearing in connection with his alleged due process claim. The Court, over repeated prosecution objection, gave Persico broad latitude to prove governmental misconduct at trial.

Over objection Carmine Persico was permitted to call Joel Cohen, a former Strike Force prosecutor, as a witness. He subpoenaed Mr. Cohen. The Government maintains that Carmine Persico's counsel interviewed him and that Mr. Cohen appeared at the Courthouse on the appointed day. However, Mr. Cohen was discharged and not called to testify. The defense does not dispute those Government assertions.

Following is a summary recital of the evidence relating to the Annicharico situation.

In the summer of 1977, one Victor Puglisi asked Special Agent Annicharico to have Carmine Persico brought from the United States Penitentiary in Atlanta, where he was serving a sentence for hijacking, to the Metropolitan Correctional Center in New York so that his "colleagues," Andrew Russo, in particular, could meet with him. [*755] The Eastern District [**5] Organized Crime Task Force obtained a writ of habeas corpus ad testificandum, and Persico was produced in New York. Shortly thereafter, Puglisi passed a bribe to the agent to compensate him for the move. Later in the year, Carmine Persico was returned to Atlanta by the authorities. In December, 1977, Puglisi offered the agent another bribe. Again, Carmine Persico was brought to New York on a writ and again a payoff was made. In a recorded conversation with the agent on February 2, 1978 (GX 118), Carmine Persico confirmed that Victor Puglisi was acting on behalf of Mr. Persico and Andrew Russo in his dealings with the agent. In that conversation, Carmine Persico offered the agent $250,000 so Mr. Persico could get out of jail and told the agent that Puglisi was working for him. The evidence at trial supports the proposition that Carmine Persico was brought to New York because he and his subordinates wanted that to happen and paid for it to happen. The jury's verdict was proper under the circumstances. The defense contention that the Government invented the crimes and manipulated Carmine Persico into committing them was rejected by the jury and the Court sees nothing wrong with the [**6] jury's finding.

At the time in 1977 when the Eastern District Organized Crime Strike Force was investigating the Annicharico matter, part of it was taking place in the Strike Force offices. The prosecutor, Joel Cohen, filed with the District's Chief Judge, Jacob Mishler, a sealed affidavit setting forth the nature and progress of the investigation. A copy of that affidavit, dated February 3, 1978, accompanied the Government's Memorandum of Law on this motion. Mr. Cohen informed the Chief Judge about the writs and the facts surrounding their issuance. Rather than disciplining the prosecutors for misconduct, Judge Mishler permitted the investigation, including an aspect involving Persico's filing false statements with the court, to proceed.

Despite Mr. Cohen's appearance in this Courthouse during the trial of this Indictment pursuant to Carmine Persico's subpoena, Mr. Persico elected not to call him as a witness.

The Government urges in its memorandum on this motion on p. 19 and 25 that the defense failed to call Mr. Cohen because his "testimony would utterly decimate Persico's misconduct claim" and "it is inescapable that Persico sent Mr. Cohen home because his testimony would have [**7] unmasked Persico's alleged misconduct defense."

The Court will not speculate as to why the defense did not call Mr. Cohen. But the fact is that they had every opportunity to call him over Government objection. To reopen all this now would be a colossal waste of judicial time and a gross abuse of discretion by this Court.

On the facts of this case, United States v. Archer 486 F.2d 670 (2d Cir. 1973); United States v. Twigg, 588 F.2d 373 (3d Cir. 1978) and Greene v. United States, 454 F.2d 783 (9th Cir. 1971) give no solace to the defense position.

Even were the writs, which brought Carmine Persico to New York, obtained improperly (which the Court does not find), the rulings in Hampton v. United States, 425 U.S. 484, 490, 48 L. Ed. 2d 113, 96 S. Ct. 1646 (1976), United States v. Russell, 411 U.S. 423, 36 L. Ed. 2d 366, 93 S. Ct. 1637 (1973) and United States v. Hasting, 461 U.S. 499, 76 L. Ed. 2d 96, 103 S. Ct. 1974 (1983) would persuade the Court not to upset the conviction or order a hearing. Moreover, the decision in United States v. Caputo and Marino, 85 Cr. 0150 from the Eastern District of Pennsylvania is in no way controlling and is distinguishable [**8] from the facts here.

In partial support of his motion Carmine Persico submits an affidavit from an attorney, John Jacobs. Mr. Jacobs was a member of the Eastern District Organized Crime Strike Force at the time of the Annicharico investigation but he "had no direct responsibility in the Annicharico undercover IRS investigation." (Jacobs affidavit para. 4). The Jacobs affidavit states that, para. 7, in his "opinion ... the two writs of Habeas [*756] Corpus Ad Testificandum were a sham." The affidavit, in para. 10, contains an irrelevant and unwarranted bit of character assassination concerning a distinguished Federal judge and concludes in para. 12 with a bit of rumor mongering worthy of a second rate gossip columnist or a daytime soap opera as to how the instant indictment was prosecuted in the Southern District of New York, rather than the Eastern District of New York.

It should be noted that Mr. Jacobs on several occasions during the trial came to the courtroom and the Court observed him conferring with defense counsel during those visits. It is significant that Mr. Jacobs did not choose to come forward until after these convictions were obtained and that much of the information [**9] he claims to have, came into his possession nearly nine years ago and yet this is the first time he has come forward.

A cynic might also observe that Mr. Jacobs is presently representing Ralph Scopo in United States v. Salerno, et al., SSS 85 Cr. 139 (RO) before Judge Owen of this court. Mr. Scopo is an alleged member of the Colombo Family who was severed during this trial due to ill health. Mountains of evidence in the form of tape recordings with Mr. Scopo's voice on them were introduced in this trial in connection with the Construction Companies' payoffs phase of this case. This Court chooses not to be cynical and the Jacobs representation of Scopo plays no part in this ruling.

The Jacobs affidavit affords no basis for a hearing concerning Carmine Persico's claims. Mr. Jacobs has no personal knowledge of the investigation and the defense had every opportunity to examine Joel Cohen, the original prosecutor in the Annicharico phase of the case, before the jury. It chose not to do so.

In connection with Alphonse Persico's phase of this motion, Stanley Meyer, Esq. submitted an affidavit on September 17, 1986 in paragraph 6 of which he has the temerity to state that "had there [**10] been no confusion because of the fact that his uncle had the same name he had (Alphonse Persico), there is no way he would have been convicted." This audacious assertion about "confusion" is so blatantly false and insulting to the Court as to require special comment.

Throughout the whole trial, on literally scores of occasions, the Court interrupted the proceedings to specially instruct the jury that references to an "Alphonse Persico" were to the uncle, not the defendant nephew. There was no possibility of "confusion" and to suggest otherwise in an affidavit, borders on contemptible conduct.

The Due Process motions are denied.

The DeChristopher Testimony

Alphonse Persico moves to strike the testimony of the witness Fred DeChristopher. The Court adheres to its original rulings on this subject. The testimony was admissible under Fed. R. Evid. 801(d)(2)(E) and United States v. Stratton, 779 F.2d 820 (2d Cir. 1985); United States v. Ruggiero, 726 F.2d 913.

The Iannuzzi Testimony

Alphonse Persico moves to strike the testimony of Joseph Iannuzzi based on a recent decision, United States v. Cervantes Pacheco, 793 F.2d 689 (5th Cir. 1986). In Cervantes Pacheco [**11] , the Government pretargeted specific individuals and arranged for a contingent fee arrangement with the witness. Neither of these considerations apply with regard to Iannuzzi. Neither he nor the FBI knew, at the start of the investigation, where it would end up or whom it would involve. Further, the lump-sum payment which Iannuzzi has been promised at the end of "all judicial proceedings" is to "cover reasonable travel and relocation expenses to Iannuzzi's new area of residence within the continental United States of America." This is not a contingent fee arrangement. There is nothing wrong with the Government's agreement with Iannuzzi under United States v. Cuomo, 479 F.2d 688, 692 (2d Cir.), cert. denied, 414 U.S. 1002, 94 S. Ct. 357, 38 L. Ed. 2d 238 (1973) (quoting United States v. Smalls, 363 F.2d 417, 420 (2d [*757] Cir. 1966), cert. denied, 385 U.S. 1027, 17 L. Ed. 2d 675, 87 S. Ct. 755 (1967)).

The motion to strike the Iannuzzi testimony is denied.

Sufficiency of the Evidence

Alphonse Persico, Anthony Scarpati, and John J. DeRoss contend that the evidence on which the jury found them guilty was insufficient to sustain the verdicts. Under applicable [**12] law, their motions are denied.

A. Alphonse Persico

The jury found that Alphonse Persico committed two predicate acts of racketeering and found him guilty of two counts of racketeering. His moving papers contain attacks on the verdict and a recapitulation of his unsuccessful arguments to the jury. Essentially, his sufficiency claims boil down to: (1) there was no evidence from which a jury could conclude that he knew that he was participating in giving a thing of value to a prison official when he arranged for a Colombo Family associate in Las Vegas to take care of Ernest Goss's expenses there; and (2) there was no evidence from which a jury could infer that he believed that a federal official was involved in the bribery scheme seeking to have his father, Carmine, moved to and kept in a prison near New York. The arguments fail.

With respect to the Goss bribe, the evidence shows that Alphonse Persico knew that Ernest Goss was a federal prison official when the free trips to Las Vegas were arranged. Alphonse Persico was on his father's visiting list at the Ashland prison (GX 816). Goss testified and records showed that Alphonse Persico was coming to the prison to visit his father [**13] in July, 1979 (Tr. 7227-29; GX 812). Goss testified that Carmine Persico's whole family came to the prison for a picnic on about August 11, 1979 (Tr. 7346). Fred DeChristopher testified that Carmine Persico told him that his son Alphonse had Colombo associate, Vinny Vingo, arrange Goss' accommodations in Las Vegas (Tr. 13, 724). When viewed against the backdrop of Carmine Persico's corrupt relationship with Goss, the jury was justified in concluding that Alphonse Persico knew that Goss was a federal official. The inference was a fair and proper one.

Alphonse Persico's second sufficiency claim is founded upon the contention that there is no evidence that the person whom the Colombo Family bribed through Joseph Iannuzzi in order to ensure that Carmine Persico could serve his prison sentence in a nearby prison was a federal official. Viewing the evidence "not in isolation but in conjunction," United States v. Geaney, 417 F.2d 1116, 1121 (2d Cir. 1969), cert. denied, 397 U.S. 1028, 90 S. Ct. 1273, 25 L. Ed. 2d 538 (1970), this sufficiency argument also fails.

The jury learned that Joseph Iannuzzi told Dominic Cataldo and one Thomas Agro that he had a "Government connection" in [**14] Washington, D.C., who could alter decisions made by the Federal Bureau of Prisons. By apparently arranging for Cataldo and Carmine Persico to be designated to the prisons of their choice, Iannuzzi proved the supposed "connection." The proof showed that Carmine Persico, Gennaro Langella, Dominic Montemarano, n1 Dominic Cataldo, and unindicted co-conspirators Thomas Agro and Joseph Cataldo approved and/or participated in the payment in April, 1982, of a $20, 000 cash bribe to Iannuzzi's connection to compensate the "connection" for causing Carmine Persico to be jailed in the federal prison at Danbury, Connecticut. On the evidence the jury was justified in inferring that the defendant intended for the payment to be used to corrupt a federal official.

n1 Dominic Montemarano was originally a co-defendant. He was severed shortly before trial after he underwent serious surgery.

The evidence was that Alphonse Persico's involvement in the bribery scheme began no later than late February, 1982, before the $20,000 bribe [**15] was paid. Agro told Iannuzzi at that time that "Little Vic," a member of Alphonse Persico's crew, was setting up a meeting between Agro and [*758] Persico (GX 717). Alphonse Persico's role in the scheme was revealed in August, 1982 when Carmine Persico was transferred from Danbury. A series of conversations recorded from Montemarano's telephone demonstrated Alphonse Persico's participation in the bribery scheme (GX 745-756).

The jury was justified in finding that Alphonse Persico participated in the bribery scheme charged, with intent to corrupt a federal official.

B. Anthony Scarpati

Scarpati contends that the evidence was insufficient to convict him. This is essentially a reiteration of his unsuccessful jury argument that Arlyne Brickman, Frank Ancona and FBI surveillance agent Ronald Andachter should not be believed. The jury was justified in rejecting that argument.

With respect to the Brickman loan, the tape recordings, the surveillance, and the testimony were sufficient to sustain the jury's finding that Scarpati was guilty of loansharking.

With respect to the Ancona loan, the evidence was that Ancona personally borrowed money from Scarpati (Tr. 7738), that Scarpati [**16] let Ancona know that he, Scarpati, was aware of Ancona's problems with Scarpati's fellow loanshark and colleague in the Colombo Family, Gennaro Langella (Tr. 7738), and that, because he knew that Scarpati was a Capo in the Colombo Family, Ancona reasonably was afraid of what Scarpati would do to him if he failed to make his payments (Tr. 7740). United States v. Gigante, 729 F.2d 78, 83 (2d Cir.), cert. denied, 467 U.S. 1206, 104 S. Ct. 2390, 81 L. Ed. 2d 348 (1984). The evidence supports the jury's verdict on the Ancona loan.

C. John J. DeRoss

DeRoss' sufficiency claim repeats the unsuccessful arguments over disputed facts that he made at trial and which the jury, by its verdict, rejected. Government's Exhibit 350, the tape-recorded conversation of DeRoss, the late Paul Castellano and Anthony Amodeo at Castellano's house, when interpreted as the Government argued it should be interpreted, shows DeRoss' active participation in the control of the restaurant unions by the Colombo and Gambino Families and their use of that control to get payoffs from restaurant owners. Negotiations are heard on the tape recording how a payoff from Frank Sofia should be split between the [**17] Gambino and Colombo Families. There is other evidence to the same effect including Frank Falanga's n2 tape-recorded conversations with Vincent DiPenta about DeRoss being Vito Pitta's n3 boss, and Carmine Persico's statements to Fred DeChristopher about DeRoss being his man in control of the restaurant unions, including specific reference to the Sherry Netherlands as a restaurant he controlled (GX 311-313; Tr. 13, 708-09). This evidence was sufficient to show DeRoss' knowledge of and agreement to the payoffs. Whether DeRoss got money or whether the payoffs in fact occurred is irrelevant because DeRoss was convicted of the racketeering conspiracy, Count One. Obviously, this required only an agreement to commit crimes, not proof of completed crimes.

n2 Frank Falanga was a co-defendant who was convicted along with all the other defendants. He died of natural causes the day after the verdict while incarcerated.

n3 Vito Pitta is another union official, originally a co-defendant, as to whom the Government consented to a severance during jury selection.

[**18]

Under the ruling in United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984) and the cases cited therein, the evidence was sufficient to support the convictions.

DeRoss Confrontation Motion

John J. DeRoss argues that the Government's failure to call Anthony Cece and Frank Sophia violated his sixth amendment right to confrontation. It appears both from this DeRoss motion and from previous motions made at and before trial, that DeRoss knows the whereabouts of both Anthony Cece and Frank Sophia, whose testimony he claims would have helped him. Further, they both have been [*759] spoken to by defense representatives. In United States v. Inadi, 475 U.S. 387, 106 S. Ct. 1121, 1125-29, 89 L. Ed. 2d 390 (1986), the Supreme Court held "that the Confrontation Clause does not embody [any] rule" that requires the Government to call co-conspirators as witnesses or to show that they are unavailable before using co-conspirator statements. Id., at 1129. The Court in Inadi noted that if the co-conspirators were available, the defendant could call them to testify, and cross-examine them as hostile witnesses if necessary under Fed. R. Evid. 806, if the defendant thought [**19] such testimony would help him. Id., at 1127-28.

DeRoss' motion is denied.

Andrew Russo, Hugh McIntosh Motions

A. Double Jeopardy

Defendants Russo and McIntosh contend that their racketeering convictions in this case violate their rights under the double jeopardy clause. This issue was substantially litigated by the defendants both in this Court and in the Court of Appeals prior to trial, unsuccessfully.

In its July 23, 1985 Opinion and Order, this Court held that in utilizing defendants' prior convictions or dismissed charges as predicate acts of racketeering in a subsequent RICO case, the Government also must establish at trial either that the defendants so charged engaged "in some type of post-[guilty] plea unlawful conduct," or that the Government accumulated evidence after the plea demonstrating "participation in a criminal enterprise." United States v. Persico, 620 F. Supp. 836, 844 (S.D.N.Y.), affirmed, 774 F.2d 30 (2d Cir. 1985). In affirming this Court's ruling that this prosecution did not contravene the double jeopardy clause, the Court of Appeals specifically declined to consider whether the Constitution required the imposition of the condition [**20] established by this Court. n4

n4 The Government continues to believe that the condition imposed by this Court exceeds the requirements of the double jeopardy clause.

It should be noted that at the conclusion of its memorandum of law p. 33 on these motions, the Government further chided the Court for "the latitude that this trial Court gave the defendants in attacking the Government's proof, attacking the Government's witnesses, indeed, attacking the Government itself." The Court acted only to insure a fair trial for both sides and not to prolong the trial.

Andrew Russo

On April 26, 1982, Russo pleaded guilty in the Eastern District of New York to one count of conspiracy and one count of obstruction of justice in violation of Title 18, United States Code, § § 371 and 1505. These pleas arose out of the Annicharico investigation. Neither specific crime was charged in the instant Indictment, although Russo was accused of six acts of racketeering arising from the same two-and-a-half-year bribery scheme which [**21] gave rise to the changes to which he earlier had pleaded guilty. n5 The jury found that he had committed them in connection with his membership in the Colombo Family racketeering enterprise and thus found him guilty on the two RICO counts.

n5 Russo was charged in the Eastern District indictment with these other bribes, but they were dismissed when he pleaded guilty. Accordingly, jeopardy never attached as to them.

In addition to evidence that Russo was guilty of racketeering as charged, there was also proof that Russo remained a leading member of the Colombo Family enterprise up until the filing of the superseding Indictment in April, 1985. Fred DeChristopher, his brother-in-law, testified that Russo was "made" in late 1975 and remains a member of the Colombo Family (Tr. 13, 663). This would be sufficient to satisfy the condition imposed by the Court in its July 23, 1985 decision. There was, however, additional proof that in 1983 and 1984, Russo with his sons skimmed money from the gambling earnings of a cruise [**22] ship, the casino which Russo controlled on behalf of the Colombo Family (Tr. 13, 677-81). There was evidence that Russo remained a member of the enterprise based on the testimony of his brother-in-law, Fred DeChristopher.

[*760] Carmine Persico, to prevent his apprehension and prosecution on the instant Indictment, hid out at the house of Mrs. DeChristopher, the sister of Andrew Russo. Arguably, a different choice would have been made had Russo quit the enterprise. DeChristopher testified that Carmine Persico, while hiding out, instructed him to "stay close" to Andrew Russo when Russo got out of prison (Tr. 13, 685). Thus, while considering in 1985 the crime Family during his absence, Carmine Persico thought of Andrew Russo.

The Government offered proof at trial that Russo remained a member of the enterprise charged long after pleading guilty in the Eastern District of New York.

Hugh McIntosh

On November 1, 1982, McIntosh pleaded guilty in the Eastern District of New York to one count of bribery in violation of Title 18, United States Code, § 201 in connection with the Annicharico investigation. That charge basically constituted one of four acts of racketeering which [**23] the jury in this case found he committed in connection with his participation in the Colombo Family racketeering enterprise. The briberies constituting the other three racketeering acts had been charged in the Eastern District indictment, but were dismissed when McIntosh pleaded guilty to the one bribery count.

At this trial, there was proof that McIntosh engaged in those unlawful acts and that those acts were committed in connection with the enterprise charged. There was also proof that McIntosh remained a member of that enterprise after his role in the bribery scheme ended.

In November and December of 1978, after McIntosh claims he ceased his participation in the enterprise, McIntosh accepted 28 collect telephone calls from Carmine Persico (GX 839). DeChristopher testified that Persico later told him that this access to the telephone enabled Persico to maintain his position as Boss of the Family while incarcerated. In August, 1982, McIntosh met at Montemarano's social club in Brooklyn with Colombo Family colleagues Montemarano and Gennaro Langella (GX 349G-H). On September 14, 1982, McIntosh met with Langella, Montemarano, and Scarpati at the Casa Storta Restaurant where Colombo [**24] Family members frequently congregated. Further, there was evidence that on September 27, 1982, McIntosh was observed meeting with Langella for an hour in Langella's car (Tr. 11, 596-98). In December, 1982, after his guilty plea in the Eastern District, McIntosh was intercepted in telephone conversations with Langella. In one of these, they arguably discussed Colombo Family business (GX 1019). On December 20, 1982, Langella and Scarpati were intercepted in a coded telephone conversation discussing a meeting Scarpati was planning and whether McIntosh, an associate but not a "made guy," was permitted to attend (GX 1008). He was.

Finally, Fred DeChristopher testified that Carmine Persico told him that McIntosh remained a member of the enterprise, and that after McIntosh went to prison on the Eastern District conviction, Persico authorized weekly payments to McIntosh's wife of $500, for as long as McIntosh was incarcerated (Tr. 13, 719-20). The money was paid and accounted for by Scarpati and Alphonse Persico (Tr. 13, 720).

The proof set forth above satisfies the condition imposed by this Court in its July 23, 1985 ruling. The Russo and McIntosh double jeopardy motions are denied.

[**25] B. Statute of Limitations

Russo and McIntosh raise basically the same statute of limitations objections which McIntosh raised pre-trial and during trial. The defendants urge that United States v. Srulowitz, 785 F.2d 382 (2d Cir. 1986) somehow should change the result. But Srulowitz was a single defendant case and, as the Government maintains, does not apply in a multi-defendant case where the statute of limitations runs from the last date of alleged racketeering activity. For the reasons set forth in United States v. Persico, 621 F. Supp. 842, 872-73 (S.D.N.Y. 1985), this portion of the motion is denied.

[*761] C. Alleged Failure to Prove Pattern of Racketeering

This portion of the motions is put forth by the defense for the first time.

Russo and McIntosh assert that the predicate acts of racketeering arising from the lengthy scheme to bribe the IRS Agent for which they were convicted, as a matter of law, cannot constitute a pattern of racketeering activity. This claim is addressed to the face of the Indictment. The Government urges that it is waived by the defense failure to raise it before trial. Fed. R. Crim. P. 12(b)(2). The Government is no doubt [**26] correct.

However, it must be noted that the racketeering acts in issue do constitute a pattern of racketeering activity. The Court will not adopt the defense suggestion that the two-and-a-half year series of payments and offers of bribes to Agent Annicharico of which the defendants stand convicted is one crime. Such a contention is contrary to case law. Even multiple payments pursuant to one extortionate demand constitutes a pattern of racketeering activity. United States v. Tolub, 309 F.2d 286, 289 (2d Cir. 1962); United States v. Brooklier, 685 F.2d 1208, 1217 (9th Cir. 1982), cert. denied, 459 U.S. 1206, 75 L. Ed. 2d 439, 103 S. Ct. 1194 (1983). Certainly, the several bribes and bribe offers here, which stretch over a period of time, involving various different members and non-members of the enterprise, seeking to accomplish numerous illicit goals for the enterprise, including inmate prison transfers, stopping federal tax prosecutions, preventing a state perjury prosecution, and attempting to get a high Organized Crime figure out of prison altogether -- set forth a pattern of racketeering activity envisioned by the statute.

This portion of the motion is also denied. [**27]

Conclusion

Jury selection in this case commenced on October 15, 1985. The Court charged the jury on June 2, 1986. The jury returned its verdict on June 13, 1986. A review of the record of the twelve straight days of jury deliberation, during which the jury was sequestered, irrefutably demonstrates that the jury carefully examined the evidence before returning its discriminating and thoughtful verdict. As the Government argues "defendants were given every conceivable opportunity to dispute the Government's evidence and to defend themselves" (p. 33 Government Memo of Law, September 15, 1986).

There has been nothing submitted by the defense in these post-trial motions which warrants overturning this Court's earlier rulings or the jury's verdict.

All motions are denied.

IT IS SO ORDERED.