NO ORAL ARGUMENT SCHEDULED
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
APPELLANT’S REPLY MEMORANDUM OF LAW AND FACT
UNITED STATES OF AMERICA,Plaintiff-Appellee,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Federal Public Defender
Counsel for Appellant
625 Indiana Avenue, Suite 550
Washington, D.C. 200004
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.
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.
Federal Public Defender
Counsel for Appellant
625 Indiana Avenue, N.W., Suite 550
Washington, D.C. 20004
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).
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.
Federal Public Defender