9TH CIRCUIT COURT OF APPEALS NO. 98-50241
UNITED STATES DISTRICT CASE NO. CR 95-603-MRP
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
vs. )
)
KEVIN DAVID MITNICK, )
)
Defendant-Appellant )
___________________________________)
MEMORANDUM OF LAW AND FACTS IN SUPPORT OF APPEAL
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
Honorable Mariana R. Pfaelzer, United States District Judge
DONALD C. RANDOLPH
RANDOLPH & LEVANAS
1717 Fourth Street, Third Floor
Santa Monica, California 90401
Telephone: 310/395-7900
Applicant Attorneys for
Defendant-Appellant
KEVIN DAVID MITNICK
I. INTRODUCTION 1
II. STATEMENT OF FACTS 1
III. ARGUMENT 5
A. JURISDICTION 5
B. STANDARD OF REVIEW 5
C. THE APPELLANT HAS BEEN DEPRIVED OF HIS FUNDAMENTAL LIBERTY INTERESTS WITHOUT DUE PROCESS OF LAW. 6
D. THE APPELLANT IS ENTITLED TO RELEASE ON BAIL 10
E. THE APPELLANT'S EXCESSIVELY PROLONGED DETENTION HAS BECOME PUNITIVE IN VIOLATION OF DUE PROCESS. 14
F. GIVEN THE RECORD, A FULL REMAND WOULD NEITHER REMEDY, NOR PROTECT THE APPELLANT'S CONSTITUTIONAL RIGHTS. 15
G. ORDERING APPELLANT'S RELEASE IS THE APPROPRIATE REMEDY IN THIS CASE. 16
IV. CONCLUSION 18
STATUTES
18 U.S.C. § 31426-13, 15, 16
18 U.S.C. § 3143 11, 12
18 U.S.C. § 3145 5, 16, 17
28 U.S.C. § 1291 5
Federal Rules of Appellate Procedure 9(a) 5, 7, 17
Ninth Circuit Rule 9-1.1 5
CASES
Stack v. Boyle, 342 U.S. 1 (1951) 5
United States v. El Paso Natural Gas Co., 376 U.S. 651 (1964) 16
United States v. Fernandez-Alfonso, 813 F.2d 1571 (9th Cir. 1987) 16, 17
United States v. Fernandez-Alfonso, 816 F.2d 477 (9th Cir. 1987) 6, 7
United States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984) 5
United States v. Montalvo-Murillo, 495 U.S. 711 (1990) 8-10, 16
United States v. Motamedi, 767 F.2d 1403 (9th Cir. 1985) 5, 6
United States v. Quinnones, 610 F.Supp. 74 (S.D.N.Y. 1985) 7
United States v. Reynolds, 956 F.2d 192 (9th Cir. 1992) 11, 12
United States v. Salerno, 481 U.S. 739 (1987) 7-9, 12-15, 17
The appellant Kevin David Mitnick brings this appeal as a result of a continuing and grievous abrogation of his constitutional and statutory rights which has resulted in his illegal detention. Mr. Mitnick respectfully requests that this Court remedy the situation by ordering his immediate and unconditional release pending his trial in United States v. Kevin David Mitnick, CR 96-881-MRP, currently before the Central District of California. In the alternative, the appellant requests that this Court order the appellant released and remand the matter to the district court for consideration of appropriate conditions of release.
On September 26, 1996, a twenty-five count indictment, United States v. Mitnick, CR-96-881-MRP, was filed in the Central District of California. The indictment, which forms the basis of the instant case, alleges various counts of computer fraud, wire fraud, possession of unauthorized access devices, causing damages to computers, and interception of wire or electronic communications.
On September 30, 1996, the appellant made his initial appearance at which time the case was reassigned to United States District Judge Mariana Pfaelzer under the Low Number Rule. Also at this time, the government filed a notice of request for detention of the appellant. [ER: 118-121].
On October 7, 1996, the parties stipulated to the appellant's temporary detention until such time as defense counsel was able to familiarize himself with the case and challenge the issue of detention at a later date. No formal detention order was issued by the court.
On June 27, 1997, the district court sentenced the appellant in two matters pending at the time of his indictment in this case. The court entered a sentence of eight months for a charge of unauthorized possession of access devices in United States v. Mitnick, CR 95-603- MRP. The court further sentenced the appellant to 14 months for violating the terms of his supervised release in United States v. Mitnick, CR 88-1031-MRP. The appellant, who remained in custody pending sentencing in these matters, had already served the aggregate sentence of 22 months at the time the sentence was rendered. [ER: 112-116].
On February 3, 1998, apparently in recognition of the fact that the appellant was being held in custody without a formal detention order, a bench warrant originally issued on September 26, 1996, was returned executed to the district court as to Mr. Mitnick. [CR: 6; ER: 9].
On March 25, 1998, the defendant-appellant filed an ex parte application for release forthwith pending trial. [CR: 8; ER: 11].
On March 27, 1998, Mr. Mitnick filed a form application for review of order setting conditions of release/detention pending trial. This application was filed in an abundance of caution to ensure the Clerk's timely scheduling of a hearing on this matter, despite the fact that no formal order to detain the appellant appeared in the court's record. A detention hearing was scheduled for April 6, 1998, at 1:30 p.m. [CR: 8; ER: 11].
On March 30, 1998, a hearing was held on a number of pending pretrial motions. At this hearing, without prior notice to the parties, and before the government had made any opposition to the appellant's application for release on bail, the district judge advanced the detention hearing scheduled for the following week and denied the appellant's request for release on bail. The district court failed to express any basis for the continued detention of the appellant pending trial in this matter. Nor did the court make any findings of fact which could be used to support its order. [CR: 8; ER: 11].
The district court's consideration of the appellant's application for bail is reflected, in its entirety, in the following three brief passages from the transcript of the March 30, 1998 hearing:
[Defense counsel making reference to the bail motion while addressing other motions currently pending before the Court.]
Mr. Randolph: Inasmuch as I have filed and I believe the Clerk has set a motion to have bail set on behalf of my client and that is set--
The Court: I am not going to give your client bail.
Mr. Randolph: I think the matter is set for next Monday, your Honor, at 1:30.
The Court: Well, I may take it under submission without oral argument because I am not going to give him bail.
[RT 3/30/98: 4-5, ER: 17-18].
[Discussing proposals for allowing the appellant to review evidence consisting of electronically stored computer files while incarcerated.]
Mr. Randolph: I think the most cost efficient would be for the Court to consider my client's bail motion and let him come to my office and review [the computer evidence].
The Court: I am not going to give him bail.
[RT 3/30/98: 14; ER: 27].
[Government counsel, Assistant United States Attorney Christopher Painter addressing the Court.]
Mr. Painter: Your Honor, first, I understood the Court to -- one thing that the government would ordinarily have to do would be to respond to the bail motion that was made. Does the Court--
The Court: You have no obligation to respond to the bail motion. I am not going to give Mr. Mitnick bail, and that is an order, and you do a formal order, and I will sign it.
[RT 3/30/98: 42; ER: 55].
On April 9, 1998, the appellant filed a timely notice of appeal from the district court's denial of his application for release on bail. [CR: 8; ER: 11].
On April 24, 1998, the government, in an apparent effort to cure defects in the district court's detention order, served on the defense a document entitled [Proposed] Findings of Fact and Conclusion of Law Re: Defendant's Application for Release Pending Trial. [ER: 153-160]. This document was prepared for the judge's signature and includes proposed findings of fact never addressed by the court. Apparently the pleading was not filed with the court since it does not appear in the court docket.
On April 27, 1998, the appellant filed an Opposition to the Government's Proposed Findings of Fact and Conclusion of Law Re: Defendant's Application for Release Pending Trial. [ER: 161-167].
The appellant is currently being held in custody without legal justification over thirty-six days after first requesting a detention hearing.
A. JURISDICTION
This court has authority to hear this case pursuant to 18 U.S.C. § 3145(c); 28 U.S.C. § 1291; Federal Rules of Appellate Procedure 9(a) and Ninth Circuit Rule 9-1.1. On March 30, 1998, the district court issued a final decision which was entered into the court record on April 7, 1998. [CR: 8; ER 11]. To date, no written order with respect to the appellant's request for bail has been issued by the court.
B. STANDARD OF REVIEW
In determining the applicable standard of review, this Court recognizes that federal law has traditionally provided that a person arrested for a non-capital offense shall be admitted to bail. See, United States v. Motamedi, 767 F.2d 1403, 1405 (9th Cir. 1985), citing Stack v. Boyle, 342 U.S. 1, 4 (1951). Only in rare circumstances should release be denied. Motamedi, 767 F.2d at 1405. Furthermore, doubts regarding the propriety of release should be resolved in favor of the defendant. Id.
With the above in mind, this Court reviews the district court's factual findings under a deferential, clearly erroneous standard. Id.; United States v. McConney, 728 F.2d 1195, 1200 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984). This Court further recognizes that:
"In reviewing a district court's order denying pretrial release, we must ensure not only that the factual findings support the conclusion reached, but also that the person's constitutional and statutory rights have been respected. Accordingly, this Court may make an independent examination of the facts, the findings, and the record to determine whether the pretrial detention order is consistent with those constitutional and statutory rights. Motamedi, 767 F.2d 1405, [internal citations omitted].
C. THE APPELLANT HAS BEEN DEPRIVED OF HIS FUNDAMENTAL LIBERTY INTERESTS WITHOUT DUE PROCESS OF LAW.
The district court's summary denial of the appellant's application for release pending trial constitutes a serious and continuing violation of his constitutional right not to be deprived of liberty without due process of law as guaranteed by the Fifth Amendment. This Court should remedy this violation by ordering the appellant's immediate release.
The Bail Reform Act of 1984 ("Act"), mandates that pretrial detention is permissible only where:
"after a hearing pursuant to the provisions of [18 U.S.C. § 3142(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." 18 U.S.C. § 3142(e).
In this case, the district court's order was substantively flawed in that it failed to find that no conditions will reasonably assure his appearance or the safety of the community, as required by substantive due process. Furthermore, the district court's order was procedurally flawed in that the court refused to hold a hearing during which evidence relevant to this determination could be presented.
1. The District Court failed to Consider Alternatives to Detention as Required by Law.
The district court must dispose of every alternative before ordering pretrial incarceration under the Bail Reform Act. United States v. Fernandez-Alfonso, 816 F.2d 477 (9th Cir. 1987). The alternatives provided for by the statute include release on personal recognizance or unsecured appearance bond (section 3142(b)), or release on one or more of the conditions listed under subsection (c) of the statute. 18 U.S.C. § 3142. Furthermore, section 3142(i) and Federal Rule Appellate Procedure 9(a), require that the district court discuss conditional release and state in the record the reasons for an order regarding release or detention of a defendant. Where, as here, the court fails to consider alternatives to detention, a finding that no conditions could be fashioned to assure the defendant's appearance constitutes error. 816 F.2d 477, 478; see also, United States v. Quinnones, 610 F.Supp. 74 (S.D.N.Y. 1985) (holding magistrate's failure to issue written order stating reasons for detention required defendant's release on conditions).
2. The District Court did not Make the Requisite Findings to Justify the Appellant's Detention Pending Trial.
Congress has determined that an individual may only be detained pending trial where 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." 18 U.S.C. § 3142(e). Detention of any person absent these findings constitutes a violation of substantive due process. United States v. Salerno, 481 U.S. 739, 746-47 (1987). The record in this case is devoid of any findings which would justify the appellant's detention. Consequently, there is no legal justification for the appellant's continued incarceration.
3. The Appellant was Ordered Detained Absent a Hearing Pursuant to 18 U.S.C. § 3142(f).
Even had the district court made sufficient findings to justify the appellant's detention, such findings would be invalid due to fatal defects in the observance of his rights to procedural due process. As mentioned above, an order for detention based upon appropriate justifications can only be made after a hearing pursuant to section 3142(f). It is only by virtue of the procedural protections afforded an individual during such a hearing that pretrial detention can comport with Due Process.(2) Salerno 481 U.S. 739, 751-52.
The Supreme Court has recognized the possibility that "some combination of procedural irregularities could render a detention hearing so flawed that it would not constitute 'a hearing pursuant to the provision of subsection (f)' for the purposes of § 3142(e)." United States v. Montalvo-Murillo, 495 U.S. 711, 717 (1990). This is such a case. The district court afforded the appellant none of the safeguards designed to ensure that pretrial detention is an exclusively regulatory procedure. Consequently, his continued detention is violative of his procedural due process rights and must necessarily be considered punitive.
The Supreme Court has characterized the nature of a properly conducted detention proceeding as a "full-blown adversary hearing" during which the government must convince a "neutral decision-maker" that detention is necessary in a given case. Salerno, 481 U.S. 739, 750. The aforementioned characteristics are in no way attributable to the proceedings which actually took place before the district court on this issue in the instant case.(3)
The Supreme Court has rejected the contention that simple abrogation of the timing requirement provided in section 3142(f) requires ordering the release of a defendant who would otherwise be subject to detention. Montalvo-Murillo, 495 U.S. 711. In Montalvo- Murillo, the government failed to request the defendant's detention upon his first appearance in court. The Supreme Court held that, although technically a violation of the statute, the government's inadvertent deficiency did not preclude them from subsequently requesting a prompt detention hearing upon discovering that the time limits had expired.
In this case, the appellant's constitutional rights were not abridged as a result of mere inadvertence with respect to a technicality of the Bail Reform Act. Rather, the district court's acts in denying the appellant's right to a detention hearing were intentional and resulted in deprivation of the most substantive individual rights and procedural protections which the Constitution seeks to preserve. For these reasons, the district court's detention order has resulted in an aggravated violation of the appellant's constitutional rights, and should be remedied by ordering his immediate release.
While the Supreme Court did not find that the defendant's release on bail was required in Montalvo-Murillo as a result of a simple timing violation, it maintained that all courts "remain open to order immediate release of anyone detained in violation of the statute." Montalvo-Murillo, 495 U.S. at 721 [emphasis added]. Moreover, the Court expressly recognized that other remedies may be appropriate in cases involving "aggravated or intentional" conduct, as occurred here, where the appellant was denied the right to a hearing altogether. Id.
In this case, the appellant was not afforded the opportunity to testify, present witnesses or cross-examine government witnesses.(4) The appellant did present a memorandum of law supplemented by various affidavits in support of his application for release on bail. However, the appellant was denied the ability to present further evidence in support of the application. Due to the fact that the government did not present, and was not required to present any evidence whatsoever in support of its request for a detention order, the proceedings cannot be considered adversarial.
D. THE APPELLANT IS ENTITLED TO RELEASE ON BAIL.
The appellant has not been charged with any offense which would raise a presumption that he is unsuitable for release on bail. See, 18 U.S.C. 3142(e). Furthermore, there is no legal authority upon which to detain the appellant on the basis of an alleged economic danger to the community, although the government may contend otherwise. [See discussion, infra and, ER: 81-86]. The government's only legitimate regulatory interest in this case is in preventing flight. Consequently, the Eighth Amendment requires that bail be set.
1. The Government Cannot Seek to Detain an Individual on the Basis of an Alleged Economic Threat.
The government has no authority to move for detention of an individual based upon an alleged economic danger to the community. As addressed at length in the appellant's Application for Release Pending Trial, the government may only move for a defendant's detention based upon the limited and specific grounds articulated under section 3142(f). [ER: 81-86]. Even the government's own pre-formatted request for a detention order recognizes the limitations on its authority to this effect.(5) [ER: 119-121].
The government may seek to rely upon United States v. Reynolds, 956 F.2d 192 (9th Cir. 1992) for the proposition that, for purposes of the Bail Reform Act, danger may include economic or pecuniary harm. However, this case is inapplicable to the instant matter. The court in Reynolds narrowly held that in the context of a motion for bail pending appeal, "danger may, at least in some cases, encompass pecuniary or economic harm." Reynolds, 956 F.2d 192. Significantly, the Reynolds decision was rendered pursuant to 18 U.S.C. § 3143(b), relating to bail pending appeal, rather than section 3142(f). The two statutes are not analogous.
Section 3143(b) requires that the a person who has been found guilty of an offense and sentenced to a term of imprisonment shall be detained unless the judicial officer finds, "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 under section 3142(b) or (c)." 18 U.S.C. § 3143(b). In this context, this Court has held that economic or pecuniary concerns may, at least in some cases, be considered. Reynolds at 192. Constitutional concerns associated with the presumption of innocence are inapplicable post- conviction due to the fact that the individual has already been accorded due process of law prior to detention by virtue of the procedural protections offered at trial.
On the other hand, the procedural safeguards designed to ensure that pretrial detention satisfies Due Process concerns require that its application be strictly limited to the government's legitimate regulatory interests. Salerno, 481 U.S. 739, 747 ("...the incidents of pretrial detention [are not] 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).") Both the Act and the Constitution would be perverted by allowing the government to incarcerate any defendant deemed to be an "economic danger" to the community. Presumably, every crime results in some degree of economic loss; thus, reliance on this ground as a basis for pretrial detention would allow for vastly overbroad and almost entirely arbitrary application. This basis for pretrial detention is flatly prohibited by both the Constitution and congressional statute. Salerno, 481 U.S. 750, ("the Bail Reform Act...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 a specific category of extremely serious offenses. 18 U.S.C. § 3142(f).")
2. Pursuant to the Eighth Amendment, Where the Government's Only Regulatory Interest is in Preventing Flight, Bail Must be Set.
Due to the fact that this appellant cannot be detained pending trial on the basis of an alleged economic threat to the community, the government's only legitimate interest in this matter lies in reasonably assuring his appearance at trial. 18 U.S.C. § 3142(f); [ER: 120]. The Supreme Court has determined that Eighth Amendment protections against excessive bail require that where the government's only regulatory interest is in preventing the defendant's flight, bail must be set:
"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." Salerno, 481 U.S. 739, 754 [emphasis added].(6)
In so holding, the Supreme Court implicitly determined that, in light of the perceived evil (flight), the unconditional detention of an individual is necessarily excessive. Id. Naturally, the Eighth Amendment does not require that every individual who is granted bail must be able to satisfy such conditions as are required in order to secure release. Nonetheless, it does recognize that there is always some condition or combination of conditions, apart from detention, which will reasonably assure the government's regulatory interests in protecting against flight. Salerno, 481 U.S. at 755-56 ("we believe that 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," [emphasis added]).
E. THE APPELLANT'S EXCESSIVELY PROLONGED DETENTION HAS BECOME PUNITIVE IN VIOLATION OF DUE PROCESS.
In his Application for Release Pending Trial, the appellant articulated in detail how, due to its excessive length, his pretrial detention has ceased to be regulatory (if it ever could have been considered such) and has, in effect, become punitive. [ER: 92-105]. The appellant has been in custody awaiting trial in this matter for nearly 20 months and, as of the date of this filing, there still is no scheduled date for the commencement of trial. It is expected that, at the earliest, trial may commence in late 1998. If he remains in custody, the appellant faces a non-speculative detention of at least 24 months. [ER: 95]. The government is responsible for a significant portion of the delay in the commencement of this trial; a factor which mitigates in favor the appellant's immediate release. [See discussion, ER: 95-99] The government's case is complex, a factor which further contributes to a finding of Due Process violation in this matter. [See discussion, ER: 100-103]. The performance of the co-defendant on release conditions additionally favors the release of this appellant. [See discussion, ER: 103-104]. Finally, the length of the appellant's pretrial detention has approached his sentence under the guidelines, an factor mitigating in favor of his immediate release. [See discussion, ER: 104-105].
The aggregate delay caused by the above-mentioned factors is effectively punitive and, therefore, constitutionally impermissible. This manifest Due Process violation is even more aggravated considering the fact that this matter was submitted to the district court over thirty-five days ago, but has yet to be addressed.
F. GIVEN THE RECORD, A FULL REMAND WOULD NEITHER REMEDY, NOR PROTECT THE APPELLANT'S CONSTITUTIONAL RIGHTS.
By virtue of the fact that the district court granted the government's request for detention, absent the presentation of even a scintilla of supporting evidence, a full remand of this matter would neither remedy the harm already suffered, nor adequately protect future observance of the appellant's constitutional rights. The record in this case demonstrates that the district court inappropriately placed both the burden of proof and of persuasion on the appellant in determining his eligibility for release on bail. Moreover, no findings were made with respect to the factors to be considered under section 3142(g). Thus, no evidence was before the court which could be used to support a conclusion that detention of this individual was permissible.
The court further erred in directing the government to prepare a formal order since this is an exclusively judicial function. 18 U.S.C. § 3142(i); Salerno, 481 U.S. 739 ("the judicial officer must include written findings of fact and a written statement of reasons for a decision to detain") at 752, see also, United States v. El Paso Natural Gas Co., 376 U.S. 651, 656 n.4 (1964) (adopting verbatim one party's proposed findings of fact is "an abandonment of the duty and trust that has been placed in a judge...").
It is only after a hearing pursuant to subsection 3142(f) that the court may determine 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, and, thereby, order the person's detention. 18 U.S.C. 3142(e). Absent either of these findings, the defendant must be released either on personal recognizance, upon execution of an unsecured appearance bond, or on the least restrictive condition or combination of conditions which will reasonably assure the appearance of the person and the safety of the community. 18 U.S.C. § 3142(a)-(c).
G. ORDERING APPELLANT'S RELEASE IS THE APPROPRIATE REMEDY IN THIS CASE.
Ordering pretrial release is a proper remedy for a defendant detained in violation of the Bail Reform Act. Montalvo-Murillo, 495 U.S. 711, 721; United States v. Fernandez-Alfonso, 813 F.2d 1571 (9th Cir. 1987). Given the extraordinary deprivation of constitutional and statutory rights inflicted upon this presumably innocent appellant, Due Process mandates his release.
In Fernandez-Alfonso, 813 F.2d 1571, this Court has held that a thirty-day delay in the review of a magistrate's detention order by the district court constituted a violation of the "promptness" requirement of 18 U.S.C. 3145(b) which, in and of itself, justified ordering the release of the defendant on conditions. The Court balanced the relevant policy implications of its remedy stating:
"Although the Bail Reform Act's procedural safeguards serve to protect the accused's liberty interests, societal interests in bringing defendants to trial and in preventing flight also counterbalance those concerns...In this case, the holding that thirty days violates the promptness requirement of section 3145(b) addresses the former concern; the remedy of conditional rather than unconditional release addresses the latter. 813 F.2d at 1573.
In Fernandez-Alfonso, the district court previously found that no condition or combination of conditions existed that would reasonably assure the defendant's appearance at future proceedings.(7) Nonetheless, due to the significance of the constitutional violations which occurred, this Court ordered the release of the defendant with instructions on remand to consider appropriate conditions of release. 813 F.2d at 1574. In light of all of the foregoing, such an order would, likewise, be reasonable and appropriate in this case.
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For all of the foregoing reasons, this Court should order the immediate release of the appellant. Furthermore, given the aggravated nature of the constitutional violations herein addressed, this Court should forthwith order the release of the appellant pending decision of this appeal pursuant to Federal Rule of Appellate Procedure 9(a). In the alternative, the appellant requests that this Court order his release and remand to the district court for consideration of appropriate conditions of release.
DATED: May 7, 1998 Respectfully submitted,
RANDOLPH & LEVANAS
By: __________________________
Donald C. Randolph
Attorneys for Defendant-Appellant
KEVIN DAVID MITNICK
(1)This statement is an abbreviated version of the statement of facts in this case. A more detailed statement of facts is included in the appellant's Application for Release Pending Trial [Excerpts of Record: 77-78]. (For the purposes of this appeal, the term excerpts of record will be indicated by the letters "ER", reporter's transcript by "RT"; and court record by "CR").
(2)These protections include: a detention hearing shall be held immediately upon the person's first appearance before the judicial officer; during the course of such a hearing, the defendant shall be entitled to be represented by counsel, afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise. 18 U.S.C. § 3142(f).
(3)As is evident from the transcript, the district judge had decided on the issue of bail before ever receiving so much as a proffer of evidence from the government. Although a hearing had been scheduled regarding the issue of detention, the judge advanced the hearing and stated her order without taking any evidence under submission. [RT 3/30/98: 4, 5, 14, 42; ER: 17, 18, 27, 55].
(4)The government did not call any witnesses to testify, nor was it required to produce any evidence which could be used to support a finding that the appellant should be detained. [See generally, RT 3/30/98: 4, 5, 14, 42; ER: 17, 18, 27, 55].
(5)In light of the limited and specific grounds upon which the government is entitled to request detention, as specified under 18 U.S.C. § 3142(f), the government was forced to acknowledge that the only possible basis for such a request in this case was due to an alleged risk of flight. [ER: 120].
(6) Logically, the government cannot seek to avoid the setting of bail simply by refusing to admit that its only interest is in preventing flight. Rather, whenever the government's only legitimate interest in seeking detention, as defined by 18 U.S.C. 3142(f), is in preventing flight, bail must be set.
(7)In light of the Supreme Court's holding in U.S. v. Salerno, 481 U.S. 747 (1987) such a determination is prohibited by the Eight Amendment.