NO ORAL ARGUMENT SCHEDULED
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NO. 96-3164
APPELLANT’S REPLY MEMORANDUM OF LAW AND FACT
UNITED STATES OF AMERICA,Plaintiff-Appellee,
v.
xxxxxxx xxxxxxx,Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
A.J. KRAMER
Federal Public Defender
Counsel for Appellant
625 Indiana Avenue, Suite 550
Washington, D.C. 200004
(202) 208-7500
District Court
Cr. No. 91-436
Not until page seventeen of its memorandum does the government
acknowledge the plea offer in this case of a fine, with no jail
time, and no probationary term. The government completely fails to
address the relation of this plea offer to defendant's flight risk
- Mr. xxxxxxx's incentive to flee is significantly diminished by
a plea offer involving no period of incarceration. The government
also ignores the fact that the plea offer totally undermines its
arguments as to the seriousness of the offense, and demonstrates
the falsity of the government's statements at the bail hearing that
the case was an appropriate one for the imposition of consecutive
statements. While attempting to distinguish United States v.
Xulam, 84 F.3d 441 (D.C. Cir. 1996), the government refers to the
possible maximum penalty of 25 years in prison in the present case,
if each count was run consecutively, while still ignoring the plea
offer, which completely undermines the distinction (GM:19).
The government now claims that its purpose in seeking
detention is not an attempt to pressure Mr. xxxxxxx to plead
guilty (GM:17).
The government cites nothing to support this, but
claims that Mr. xxxxxxx's assertion in the district court about
the government's motive was "totally unsupported" (GM:17). The
fact is, at the bail hearing Mr. xxxxxxx proffered that the
government's motive in seeking detention was to pressure him to
plead, and that proffer was undisputed. The government's
belittling of Mr. xxxxxxx's undisputed proffer is sheer hypocrisy,
for earlier in its memorandum, the government relies upon its own
purported undisputed proffers at the hearing before the district
court (GM:4 n.4).
The pressure is especially intense for Mr.
xxxxxxx, who is sixty-eight-years-old and in poor health.
Mr. xxxxxxx recognizes that in United States v. Smith, 79
F.3d 1208, 1210 (D.C. Cir. 1996), this court held that the
government may proceed by way of proffer at detention hearings,
although the statute provides only that the defendant may do so.
The government’s position in the present case, however, apparently
goes much further in that it evidently believes only its proffers
should be considered, even when they are directly disputed by the
defense, and that defense proffers may be ignored. That view finds
no support in the law, and is contrary to the Supreme Court’s view
that the procedures of the Bail Reform Act are “designed to further
the accuracy of th[e] determination“ of flight risk. United States
v. Salerno, 481 U.S. 739, 751 (1987). As the Court stated, “[i]n
our society liberty is the norm, and detention prior to trial or
without trial is the carefully limited exception.” Id. At 755.
The government also fails to address, as did the district
court, the offer of third-party custody by Larry Shaw, which was
verified and recommended by the Pre-Trial Services department. The
government does not even dispute, as it likewise did not do in the
district court, Mr. Shaw's ability to provide close and appropriate
supervision and custody. This condition would clearly reasonably
assure Mr. xxxxxxx's presence at trial, as would electronic
monitoring.
With respect to electronic monitoring, the government
apparently now agrees with the district court about defendant's
sophistication in the "area of electronic equipment" (GM:18). The
government never made such an argument in the district court, the
argument has no support in the record, and the government refers to
nothing to dispute the discussion of the effectiveness and
reliability of electronic monitoring discussed in United States v.
O'Brien, 895 F.2d 810, 815-16 (1st Cir. 1990), and King-Hong v.
United States, 926 F.Supp. 1180, 1194-95 (D. Mass. 1996), both
cited in Mr. xxxxxxx's opening memorandum.
The government's argument about the letters written on behalf
of defendant also shows a duplicity that is alarming, and further
demonstrates the weakness of its argument. In the district court
the government called the letters "typical in life" (11/26:31).
Now, they mysteriously show "worldwide contact" and a "network of
far-flung acquaintances and friends across the country and
internationally, all of whom could be instrumental" in helping Mr.
xxxxxxx flee (GB:16 n.13, 18). If the government truly believed
this, it would have made the argument in the district court. The
district court gave no indication that its ruling was based on such
rank speculation.
The government also falsely states the "letters all evince a
longstanding but superficial acquaintanceship with defendant"
(GM:16). That is certainly not true with respect to the letter
from Mr. xxxxxxx's brother, and the vast majority of the letters
show a close and deep relationship with Mr. xxxxxxx. Many of the
letter writers from the United States have developed their
relationship with Mr. xxxxxxx during visits with him in Japan, as
well as his visits to them.
With respect to the nature of the charges, the government’s
memorandum primarily restates the alleged details of the offense,
with no acknowledgement that Mr. xxxxxxx vigorously objected to
the accuracy, reliability, sufficiency, and nature of the
accusations, and specifically denied all the allegations. The
government, as did the district court, just assumes that its
allegations are true, and that Mr. xxxxxxx committed the crime.
As pointed out at the bail hearing, however, there is no connection
between most of the documents and Mr. xxxxxxx, and the government
does not even know its theory on certain aspects of the case. The
government did not present any evidence to rebut the specific
denials by Mr. xxxxxxx, nor does it in its memorandum. The
government’s conclusory statements are not sufficient to overcome
the presumption of innocence, which is the cornerstone of the
American judicial system.
With respect to the weight of the evidence, as discussed
above, Mr. xxxxxxx vigorously challenged it. In any event, "the
weight of the evidence is the least important of the various
factors." United States v. Motamedi, 767 F.2d 1403, 1408 (9th Cir.
1985). Because "the statute neither requires nor permits a
pretrial determination that the person is guilty . . . if the court
impermissibly makes a preliminary determination of guilt, the
refusal to grant release could become in substance a matter of
punishment." Id. This danger is exactly what has happened to Mr.
xxxxxxx.
The government concedes that if Mr. xxxxxxx fled to Japan he
could be extradited for the bail offense, but claims he could not
be prosecuted for the current offenses, even if he signed a waiver
of extradition. The government claims an office at the Justice
Department stated that foreign courts generally do not honor such
waivers (GM:13). The government neglects to point out, however,
that Article VII 1.(3) of the Treaty on Extradition between the
United States and Japan, 31 UST 892, 898, specifically allows the
United States to prosecute Mr. xxxxxxx for offenses other than the
ones for which he was extradited:
When the requested Party has consented to
his detention,prosecution, trial or
punishment for an offense other than that for
which extradition has been granted or to his
extradition to a third State.
Indeed, the doctrine of specialty, to which the government refers,
contains a specific exception under which people may be tried for
a crime other than the one for which they were surrended if the
extraditing country agrees. United States v. Najohn, 785 F.2d
1420, 1422 (9th Cir. 1986). The government omits any mention of
this in it memorandum. There is no indication Japan would not so
agree in the present case, especially where the Treaty
contemplates. Furthermore, the government ignores Article X of the
Treaty, which specifically provides for waivers of extradition:
When a person sought advises a court or
other competent authorities of the requested
Party that he waives his rights to internal
procedures required for his extradition, that
Party shall take all necessary measures to
expedite the extradition to the extent
permitted under its laws.
Id. at 902. Interestingly, the office in the Department of Justice
did not refer to the Treaty provisions or even to what Japan would
likely do, but only to foreign courts "generally" (11/26:25).
The government also falsely states that Mr. xxxxxxx has
"previously fled to Japan from the jurisdiction of a state court"
(GM:1-2). This apparently refers to either the New York civil or
criminal case. In either event it is untrue. Mr. xxxxxxx entered
into a consent decree in the New York civil case. He continued to
litigate the case in Japan. He left for Japan before the criminal
case was filed in New York, and there is no evidence he had any
knowledge of those charges.
The government also claims that if New York authorities were
to release Mr. xxxxxxx on bond in that case he "would then be free
to flee" (GM:13 n.10). This is a non sequitur, not only because
being physically released in New York rather than in D.C. does not
make him any less subject to terms and conditions of release
imposed by the district court in this case, but also because his
release in New York would demonstrate that New York authorities
also felt he was not a flight risk.
If Mr. xxxxxxx is detained in New York, that case might well
be resolved before the present case, given the government's
representations about preparation time required for this case.
Even if the New York case is not resolved by the time this case is
ready for trial, Mr. xxxxxxx's presence could be obtained by a
writ of habeas corpus ad prosequendum, which is commonly used in
this district, and which New York will be required to honor. See
United States v. Graham, 622 F.2d 57, 59 (3d Cir. 1980); United
States v. Bryant, 612 F.2d 799, 802 (4th Cir. 1979).
The government also makes much of supposed use of different
Social Security numbers by Mr. xxxxxxx. There is nothing,
however, to show that they were ever used for a fraudulent purpose.
The numbers are all very close, and, if they were in fact given at
different times by Mr. xxxxxxx it is highly likely that it was due
to faulty memory rather than a conscious attempt to deceive. This
is especially true where the correct number was issued over forty
years ago (GM:9), and Mr. xxxxxxx, as a Japanese citizen, would
have no reason to use the number on a regular basis and thus be
able to remember it, as would an American citizen living in the
United States. In any event, the district court placed not
reliance on this issue.
The government has failed to meet its burden of proving that
the are no conditions of release which will reasonably assure Mr.
xxxxxxx's presence at trial.
CONCLUSION
As discussed in Mr. xxxxxxx's opening memorandum, the
government misused the bail statute to detain Mr. xxxxxxx. The
district court erred in acquiescing in this misuse where there are
conditions on which Mr. xxxxxxx could be released which would
reasonably assure his presence at trial. For all the above
reasons, and the reasons discussed in his original memorandum, Mr.
xxxxxxx respectfully requests this court remand the case to the
district court with directions to release Mr. xxxxxxx on
appropriate conditions.
Respectfully submitted,
A.J. KRAMER
Federal Public Defender
Counsel for Appellant
625 Indiana Avenue, N.W., Suite 550
Washington, D.C. 20004
(202) 208-7500
CERTIFICATE OF LENGTH
I hereby certify that the foregoing Reply Brief for Appellant
Kikoyuki xxxxxxx, does not exceed the number of words permitted
pursuant to D.C. Circuit Rule 28(d).
_________________________________
A.J. Kramer
Federal Public Defender
CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing Reply Brief
for Appellant Kikoyuki xxxxxxx have been delivered by mail to the
United States Attorney's Office, John R. Fisher, Esq., Appellate
Division, 555 Fourth Street, N.W., Washington, D.C., 20001, this
7th day of January, 1997.
_________________________________
A.J. Kramer
Federal Public Defender