Free Reply to Response - District Court of California - California

Case 3:08-cr-00298-SI

Document 4

Filed 05/16/2008

Page 1 of 5

1 2 3 4 5 6 7 8

JOSEPH P. RUSSONIELLO (CABN 44332) United States Attorney BRIAN J. STRETCH (CABN 163973) Chief, Criminal Division ERIKA R. FRICK (CABN 208150) Assistant United States Attorneys 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: (415) 436-6973 Facsimile: (415) 436-7234 E-Mail: [email protected] Attorneys for the United States of America

9 10 11 12 13 14 15 16 17 18 Defendant. 19 20 21 22 23 24 25 26 27 28
UNITED STATES' RESPONSE TO PRE-DETENTION HEARING MEMORANDUM 1

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

UNITED STATES OF AMERICA, Plaintiff, v. JAMES LINTZ, a/k/a "Zuke,"

) ) ) ) ) ) ) ) ) ) )

No. CR 08-0298 SI (EMC) UNITED STATES' RESPONSE TO DEFENDANT LINTZ'S PREDETENTION HEARING MEMORANDUM

INTRODUCTION Defendant Lintz is scheduled for a detention hearing on May 16, 2008. In advance of this hearing, defendant has filed a lengthy memorandum objecting to the government proceeding by proffer at the detention hearing. Because the case law makes clear that both parties may proceed by proffer at a detention hearing, the United States opposes defendant's baseless effort to convert the detention hearing into a full-blown evidentiary hearing.

CR 08-0298 SI (EMC)

Case 3:08-cr-00298-SI

Document 4

Filed 05/16/2008

Page 2 of 5

1 2 3 4 5 6 7 8 I.

ARGUMENT The United States is Entitled to Proceed By Proffer at the Detention Hearing. Defendant Lintz objects to the government's use of proffers at the detention hearing. The governing statute and caselaw, as well as the long-standing practice in this District, are directly to the contrary and make clear that the government may proceed by proffer at a detention hearing. A. The Bail Reform Act Provides for the Use of Proffers and Relaxes Evidentiary Requirements at Detention Hearings.

The Bail Reform Act provides that a defendant may, among other things, "present 9 information by proffer or otherwise" at a detention hearing. 18 U.S.C. § 3142(f). The Act also 10 greatly relaxes evidentiary requirements at detention hearings, providing that "[t]he rules 11 concerning admissibility of evidence in criminal trials do not apply to the presentation and 12 consideration of information at the hearing." Id. Quoting a D.C. Circuit case, defendant notes 13 that while the Act explicitly allows a defendant to proceed by proffer at a detention hearing, "the 14 Act is `silent upon the question whether the Government may do so." Def. Memo. at 3 (quoting 15 United States v. Smith, 79 F.3d 1208, 1210 (D.C. Cir. 1996)). But defendant fails to note the 16 Smith court's response to this statutory silence. Not only did the D.C. Circuit hold in Smith that 17 the government may present evidence by proffer at a detention hearing: it also noted that 18 "[e]very circuit to have considered the matter ... has ... permitted the Government to proceed by 19 proffer" at a detention hearing. Smith, 79 F.3d at 1210. 20 The Ninth Circuit is one of the circuits that has considered the matter. In United States v. 21 Winsor, 785 F.2d 755, 756 (9th Cir. 1986), that court held squarely that "the government may 22 proceed in a detention hearing by proffer or hearsay." The Ninth Circuit also held that "[t]he 23 accused has no right to cross-examine adverse witnesses who have not been called to testify" at a 24 detention hearing. Id. Thus, it is settled law in this circuit ­ and has been settled law for over 20 25 years ­ that the government may proceed by proffer and that a defendant has no right to cross26 examine witnesses who do not testify at a detention hearing. 27 B. 28
UNITED STATES' RESPONSE TO PRE-DETENTION HEARING MEMORANDUM 2

The Fifth and Sixth Amendments Present No Bar to Proceeding by Proffer.

CR 08-0298 SI (EMC)

Case 3:08-cr-00298-SI

Document 4

Filed 05/16/2008

Page 3 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendant attempts to unsettle this settled law by arguing that the Fifth and Sixth Amendments bar the use of proffers by the government at a detention hearing. Defendant's Fifth Amendment argument is easily disposed of, since the Ninth Circuit in Winsor rejected Winsor's argument "that due process requires a defendant in a pretrial detention hearing be afforded rights of confrontation and cross-examination." Id. In other words, the Ninth Circuit has long established that there is no general Fifth Amendment right to cross-examine witnesses or to bar the government from proceeding by proffer at a detention hearing.1 Moreover, defendant has failed to present any adequate, specific-to-this-case factual basis for mandating that government witnesses testify and be cross-examined at the detention hearing in this specific case. Defendant's argument under the Sixth Amendment has no more merit than his argument under the Fifth. Defendant claims that under Crawford v. Washington, 541 U.S. 36 (2004), the Sixth Amendment's Confrontation Clause bars the use of proffers and hearsay evidence at a detention hearing. But magistrate judges of this court have repeatedly rejected this very same argument. See, e.g., United States v. Bibbs, 488 F. Supp. 2d 925 (N.D. Cal. 2007); United States v. Henderson, No. CR 05-0609 JSW (May 31, 2006); United States v. Wade, No. CR 06-0287 MHP (July 19, 2006). See also United States v. Salerno, 481 U.S. 739, 746 (1987) ("pretrial detention under the Bail Reform Act is regulatory, not penal"). As such, the right to confrontation does not apply. See Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) (Sixth Amendment's "right to confrontation is a trial right") (emphasis in original); United States v. Littlesun, 444 F.3d 1196, 1199 (9th Cir. 2006) ("Crawford speaks to trial testimony") (emphasis

United States v. Hall, 419 F.3d 980 (9th Cir. 2005), and United States v. Comito, 177 F.3d 1116 (9th Cir. 1999), on which defendant relies, are not relevant here because they do not address pretrial detention hearings and instead deal with supervised release revocation hearings. The distinction is important, since (as we describe below) detention hearings are purely regulatory proceedings. Supervised revocation hearings are not and instead have a penal nature. Even if Hall and Comito were relevant here, they would conflict directly with Winsor's square holding that the government is entitled to proceed by proffer and hearsay at a detention hearing. To the extent defendant seeks to have Winsor overruled based on Hall, Comito, or any other case, that is a request properly addressed to the Ninth Circuit, not this Court.
UNITED STATES' RESPONSE TO PRE-DETENTION HEARING MEMORANDUM 3

1

CR 08-0298 SI (EMC)

Case 3:08-cr-00298-SI

Document 4

Filed 05/16/2008

Page 4 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

added).2 The D.C. Circuit has specifically rejected the argument that permitting the government to proceed by proffer at a detention hearing violates a defendant's "right under the Sixth Amendment to confront his accusers." Smith, 79 F.3d at 1210. The Ninth Circuit's decision in Winsor also undercuts defendant's Sixth Amendment argument. While the Winsor court did not reference the Sixth Amendment directly, apparently because the defendant there failed to argue under the Sixth Amendment, the Ninth Circuit did reject Winsor's arguments that allowing the government to proceed in a detention hearing by proffer or hearsay violated his "rights of confrontation and cross-examination." Winsor, 785 F.2d at 756. C. The Court Should Not Order Production of Witnesses as a Matter of Discretion.

Defendant Lintz argues that even if the government generally is permitted to offer evidence by proffer at a detention hearing, the Court nevertheless should exercise discretion to require the United States to produce witnesses at the detention hearing here. Def. Memo. at 19. Defendant offers no specific basis for why this Court should take this extraordinary step of ordering a full-blown evidentiary hearing. In other words, without presenting any specific factual basis defendant asks this Court to override the rule established by the Ninth Circuit in Winsor that "the government may proceed in a detention hearing by proffer or hearsay." Winsor, 785 F.2d at 756. There is no basis for such an action.

There are at least two problems with defendant's efforts to rely on United States v. Abuhamra, 389 F.3d 309 (2d Cir. 2004), for his Sixth Amendment arguments. First, Abuhamra addresses the Sixth Amendment's right to public trial, not its right to confrontation. Second, the Abuhamra court noted that "the presentation of evidence at bail hearings may be more informal than at probable cause and suppression hearings" and made no suggestion that there is an constitutional problem with that "informal" presentation of evidence. Id. at 323-24.
UNITED STATES' RESPONSE TO PRE-DETENTION HEARING MEMORANDUM 4

2

CR 08-0298 SI (EMC)

Case 3:08-cr-00298-SI

Document 4

Filed 05/16/2008

Page 5 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: May 15, 2008

CONCLUSION For the foregoing reasons, the United States respectfully asks the Court to follow the Ninth Circuit's decision in Winsor and permit the government to proceed by proffer at the detention hearing.

Respectfully submitted, JOSEPH P. RUSSONIELLO United States Attorney ___________/s/______________________ ERIKA R. FRICK Assistant United States Attorney

UNITED STATES' RESPONSE TO PRE-DETENTION HEARING MEMORANDUM

5

CR 08-0298 SI (EMC)